STATE OF LOUISIANA NO. 21-KP-657
VERSUS FIFTH CIRCUIT
HUSAM ODEH COURT OF APPEAL
STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE FIRST PARISH COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. F-2125202, DIVISION "B" HONORABLE DENNIS J. WALDRON, JUDGE AD HOC PRESIDING
December 23, 2021
FREDERICKA HOMBERG WICKER JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and John J. Molaison, Jr.
AFFIRMED FHW SJW JJM COUNSEL FOR PLAINTIFF/RESPONDENT, STATE OF LOUISIANA Thomas J. Butler
COUNSEL FOR DEFENDANT/RELATOR, HUSAM ODEH George G. Angelus Stephen H. Shapiro WICKER, J.,
After a two-day bench trial, Defendant, Husam Odeh, was found guilty as
charged of riding on a levee in violation of La. R.S. 38:213 and failing to obey the
direction of a traffic officer in violation of La. R.S. 32:56. Immediately after finding
the defendant guilty, the trial court sentenced defendant to a fine of $50.00 on each
count, a total of $100.00. Defendant now seeks review of his two misdemeanor
convictions and sentences. For the reasons set forth herein, we affirm defendant's
convictions and sentences, and we amend the minute entry to correct the patent error
to accurately reflect Mr. Odeh has a balance of $50.00 owed for the fine imposed by
the trial court as to count 2 and that the $50.00 fine paid by Mr. Odeh on May 26,
2021 applies to count 1.
PROCEDURAL HISTORY
On October 29, 2018, the District Attorney for First Parish Court in Jefferson
Parish filed a bill of information charging defendant, Husam Odeh, with riding on a
levee in violation of La. R.S. 38:213 and failing to obey the direction of a traffic
officer in violation of La. R.S. 32:56.1 At the January 14, 2019 arraignment,
defendant pled not guilty.
On November 15, 2019, Mr. Odeh filed a Motion to Quash regarding La. R.S.
38:213. In his motion, Mr. Odeh argued that the charge of violating La. R.S. 38:213
must be quashed since the charge was not relevant or material to the facts alleged in
the bill of information considering there were no allegations that he was riding,
driving, or hauling a vehicle upon the public levee.
At the October 14, 2003 hearing, the trial court denied the motion. A two-day
bench trial occurred on May 24, 2021 and May 26, 2021. Defendant was found
guilty as charged and sentenced to a fine of $50.00 on each count, a total of $100.00.
Thereafter, on June 23, 2021, defendant filed an application for writ of review
requesting this Court to exercise its supervisory jurisdiction regarding his
convictions and sentences. FACTS
This case arises from an incident that occurred on October 18, 2018, on the
levee located at North Arnoult and River Road on the East Bank of Jefferson Parish.
A cross-country track meet was being held in the levee batture (the river side of the
levee) for several local participating elementary schools. The race was scheduled to
begin at 8:00 a.m., and generally, the duration of the event was about 30 minutes.
Because he was running late for the event, Mr. Odeh parked his vehicle on the
levee to drop off his 11-year-old son who was participating in the race. Once he was
parked, Mr. Odeh’s son exited the vehicle to join the other participants of the race.
Two additional unoccupied vehicles were also parked on the levee. Mr. Odeh
remained in the vehicle, and was planning to exit the vehicle to observe and take
photographs of his son at the race. Prior to Mr. Odeh exiting his vehicle, Lieutenant
Kirt Arnold used the speaker of the public address (PA) system attached to his patrol
vehicle to alert and inform Mr. Odeh that parking on the levee was prohibited and
that he must move his vehicle immediately.
At trial, Lieutenant Arnold1 testified that after the first announcement, he
made two additional announcements for Mr. Odeh to move his vehicle. Mr. Odeh
did not respond to Lieutenant Arnold’s directives. For that reason, Lieutenant Arnold
pulled his patrol vehicle next to the driver-side window of Mr. Odeh’s vehicle and
instructed Mr. Odeh to roll down his window. At that point, Lieutenant Arnold again
told Mr. Oden that individuals were not permitted to park their vehicles on the levee,
and that Mr. Odeh had to move his vehicle. In response, Mr. Odeh told Lieutenant
Arnold that he was a parent of one of the race participants and that he was going to
take pictures. Mr. Odeh believed that vehicles were permitted to park on the levee
for the limited purpose of the race. Again, Lieutenant Arnold explained to Mr. Odeh
1 For eleven years, Lieutenant Arnold has been employed by the East Jefferson Levee District Police Department, and assigned to patrol River Road on the Eastbank of Jefferson Parish. He supervises a platoon of over four men, and works the 5:00 a.m. to 5:00 p.m. shift. 2 that he had to move his vehicle and parking was not permitted on the levee. Mr.
Odeh did not at first move his vehicle after Lieutenant Arnold instructed him to do
so.
Lieutenant Arnold further testified that eventually Mr. Odeh moved his
vehicle and parked about 20 feet from his original parking place, and thus, remained
parked on the levee. Ten minutes passed from the time Lieutenant Arnold first
instructed Mr. Odeh to move his vehicle from the first location until the time Mr.
Odeh moved his vehicle and parked at the second location on the levee.
After parking in the second location on the levee, Mr. Odeh exited his vehicle
and proceeded to the race. Lieutenant Arnold again informed Mr. Odeh that he could
not park on the levee and to move his vehicle. Since Mr. Odeh refused to move his
vehicle, Lieutenant Arnold dispatched Officer Michael Rosenbohm, Officer Scott
Menieur, and Lieutenant Tyron Butler to assist him. Upon Officer Rosenbohm’s
arrival to the scene, Mr. Odeh proceeded to return to his vehicle. At the same time,
Officer Menieur and Lieutenant Butler arrived on the scene. Lieutenant Butler, who
was Lieutenant Arnold’s supervisor, took over the scene and interactions with Mr.
Odeh. In the meantime, Lieutenant Arnold went to Officer Rosenbohm’s patrol
vehicle to use the computer system to perform a background search of Mr. Odeh’s
license plate, and the results of the search revealed that Mr. Odeh had a concealed
carry license which prompted Lieutenant Arnold to inform Officer Menieur
regarding the possibility that Mr. Odeh had a weapon.
Lieutenant Arnold recounted speaking with a woman who informed him that
she heard his announcement regarding parking on the levee being barred, she owned
one of the other two vehicles parked on the levee, and her husband was going to
move her vehicle. Lieutenant Arnold testified that Mr. Odeh was given citations by
Lieutenant Butler after Mr. Odeh moved his vehicle to a third location which was to
3 the side of the road and off of the levee system. He explained that Mr. Odeh would
not have been cited if he had moved his vehicle as initially requested.
Lieutenant Arnold pointed out that when this incident occurred there was a
sign next to the access road that reads: “Motorized Vehicles Prohibited La. R.S.
38:213,” which Lieutenant Arnold recalled was the Louisiana statute that prohibits
riding and hauling on the levee. He further explained that La. R.S. 38:213 was a
moving violation that can be issued by the officer who observes it or by anybody on
the scene. He maintained that he was going to arrest defendant for disobedience but
did not do so because defendant’s son was present. Lieutenant Arnold recalled that
Mr. Odeh had a “serious attitude,” raised his voice, and his hands were “flying”
while Mr. Odeh was interacting with the officers. Lieutenant Arnold testified that
after Mr. Odeh received his citation, Mr. Odeh told Lieutenant Butler that he made
more money in a month than Lieutenant Butler made in a year, after which defendant
laughed and then left the scene. Lieutenant Arnold stated that the total interaction
with Mr. Odeh lasted approximately forty to fifty minutes.
At trial, Lieutenant Butler2 testified that on the day of the incident at issue he
was working a detail with the levee police for an elementary school race. Prior to
being dispatched by Lieutenant Arnold, he was located on the unprotected side of
the levee which is parallel to the river. Lieutenant Butler explained that he was
dispatched by Lieutenant Arnold on the date in question regarding a parent who
refused to move his parked vehicle off of the levee. He recalled confirming that he
was able to observe Lieutenant Arnold and Mr. Odeh at the top of the levee from his
current location. Upon arrival to the scene, Lieutenant Butler requested that Mr.
Odeh, who was standing at the top of the levee system, move his vehicle but Mr.
2 Since 2006, Lieutenant Butler has been employed with the East Jefferson Levee District Police Department. Prior to his employment with the levee district, he was employed with the New Orleans Police Department. Lieutenant Butler has been in law enforcement for approximately twenty years. 4 Odeh did not respond to his directives. Instead, Mr. Odeh continued to gaze at the
children on the grassy area.
Lieutenant Butler testified that once Mr. Odeh did not reply to his second
request to move his vehicle, he instructed Officer Rosenbohm to get his ticket book
so Lieutenant Butler could write a citation which was in fact issued. As Lieutenant
Butler proceeded to walk towards Mr. Odeh’s parked vehicle to issue the citation,
Mr. Odeh replied, “Do not f**k with my vehicle. I have a gun in there.” Lieutenant
Butler recalled that he asked Mr. Odeh if he was threatening him and that Mr. Odeh
replied, “I’m just telling you don’t f**k with my vehicle. I have a gun in there.”
Lieutenant Butler maintains that he asked Lieutenant Arnold to accompany him
since Mr. Odeh stated he had a gun in his vehicle. Mr. Odeh then returned to his
vehicle, started it, but did not move it. Mr. Odeh started recording the interaction
with his cell phone. Mr. Odeh refused to move his vehicle and continued to record
the incident.
Lieutenant Butler testified that he tried to get Mr. Odeh to cooperate several
times for approximately fifteen to twenty minutes. He explained that he asked Mr.
Odeh three or four times to move his vehicle before writing the ticket and that
Lieutenant Arnold had also asked him to move his vehicle several times prior to
Lieutenant Butler’s involvement in the incident. Lieutenant Butler described Mr.
Odeh’s demeanor throughout the incident as “total disrespect.” He explained that
during his interactions with Mr. Odeh, the race had not started, and that in general,
the levee police does not tolerate illegal parking during the races. Lieutenant Butler
recalled that Mr. Odeh moved his vehicle approximately fifteen to twenty minutes
later. He maintained that if Mr. Odeh had simply moved his vehicle as requested, a
citation would not have been issued and Mr. Odeh would not have missed the race.
At trial, Lieutenant Butler confirmed that he provided a statement to Internal
Affairs about the incident. On cross-examination, Lieutenant Butler reviewed his
5 statement and confirmed that he had stated the following to Mr. Odeh: “I don’t know
how you treat police in the country you come from. However, the police are treated
with respect in this country.” Lieutenant Butler denied that the comment was racist.
He explained that the sole reason for issuing the citation was due to Mr. Odeh’s
vehicle being illegally driven on the levee. He recalled that because Mr. Odeh sped
off from the second location where he had parked his vehicle, Lieutenant Butler then
drove to the third location at which Mr. Odeh had parked his vehicle to issue the
citation.
At trial, Officer Michael Rosenbohm3 testified that on October 20, 2018, his
supervisor Lieutenant Arnold called him for backup regarding a parent refusing to
move his vehicle that was parked on the levee. He stated that he requested that Mr.
Odeh move his vehicle, but received a negative reply from Mr. Odeh, which
prompted him to allow Lieutenant Arnold to handle the incident. Officer Rosenbohm
described the incident as continuously escalating with a lot of children and parents
around to witness it. He recalled that they were trying to get Mr. Odeh to move his
vehicle. Officer Rosenbohm testified that he observed the vehicle at location one
when Lieutenant Arnold called him over, and at location two after Mr. Odeh had
moved his vehicle.
Officer Scott Menieur4 also testified at trial. He recalled on October 20, 2018,
being dispatched to provide backup assistance by Lieutenant Arnold who informed
him that assistance was needed for an individual who was acting “somewhat irate.”
Once he arrived to the scene of the incident, Officer Menieur observed police units
on the levee along with Mr. Odeh’s vehicle. He tried to assist with de-escalating the
situation and calming Mr. Odeh down. Officer Menieur reported that he observed
Lieutenant Butler and Mr. Odeh speaking to each other in a loud, angry fashion. He
3 Since 2005, Officer Rosenbohm has been employed as a patrol officer with East Jefferson Levee Police Department. 4 For the past three years, Officer Menieur has been employed with East Jefferson Levee District Police Department. 6 recalled Lieutenant Arnold informed him that Mr. Odeh had a firearm in his vehicle,
and that Lieutenant Arnold requested that he search Mr. Odeh’s license plate through
a database to discern whether he had a concealed handgun permit. Officer Menieur
recalled Mr. Odeh moved his vehicle off of the levee and onto the side of the road.
Thereafter, he recalled Lieutenant Butler issued a citation to Mr. Odeh, who
appeared to be upset.
Zachary Bordelon, the cross-country track coach employed by Arden Cahill
School, testified that Mr. Odeh’s son was on the track team for the race. He explained
that on October 20, 2018, fourteen to fifteen schools with 289 runners, both boys
and girls, participated in a race at the levee batture. Mr. Bordelon maintained that
parents would drive their children to the race, and that many observers of the race
would be seated in chairs on top of the levee. He further explained that the children
would run at the bottom of the levee, about three quarters of a mile down, turn
around, and run three quarters of a mile back. The girls’ race started at 7:30 a.m.
and the boys’ race started at 8:00 a.m. Mr. Bordelon reported that the track event
was sanctioned by the school board and parish authorities and that levee police
assisted with crowd control along the levee. Mr. Bordelon testified that there were
various stretches along the levee for parking and that sometimes vehicles parked
alongside the levee. He recounted that the police were tolerant of illegal parking
that occurs during these events. No parents or anyone else, other than Mr. Odeh,
had informed him that they had received a parking ticket at that event. Mr. Bordelon
pointed out that a medal ceremony occurred after the race, which the parents
attended.
When the incident occurred, Mr. Bordelon testified that he was coaching on
top of the levee facing towards the river and the street. While primarily focused on
the race, Mr. Bordelon explained that he observed when Mr. Odeh drove up to the
levee and that other vehicles were parked in the vicinity of his vehicle. Although he
7 could not hear the conversations, Mr. Bordelon did observe the interactions between
Mr. Odeh and the police officers when Mr. Odeh had parked in the third location.
He stated Mr. Odeh appeared to be detained by the police, and that while his son was
still in the race, Mr. Odeh was told to move his vehicle. He further testified that Mr.
Odeh’s vehicle was on the levee, and that he did not see any interactions that
occurred on the levee.
Mr. Odeh also testified at trial. He stated that he was a United States citizen
but originally from Palestine. Regarding the incident at issue, Mr. Odeh confirmed
that he was driving his son to the race on the levee. He reported that he arrived at
the levee at 7:54 a.m. Mr. Odeh explained that there was parking available “before
the stables” but it was full, and vehicles were parked everywhere. He dropped his
son off and then proceeded to find a place to park. Mr. Odeh reported that he saw
other cars parked on the grassy area of the levee, which led him to believe it was a
good place to park. Initially, he did not recall seeing any signs that prohibited parking
or riding on the levee. However, sometime thereafter, he noticed a sign, but it was
hidden by vegetation.
Mr. Odeh testified that he parked, took his phone out, exited his vehicle, and
removed his folding chair and backpack from his vehicle. He recalled Lieutenant
Arnold announced on the PA system that no parking was permitted on the levee. In
response, Mr. Odeh shouted to Lieutenant Arnold that he would be back in 2 minutes
after he took a picture of the race. Mr. Odeh confirmed that Lieutenant Arnold
repeated that no parking was allowed, and at this point, Mr. Odeh reported that he
entered his vehicle and started it. Lieutenant Arnold had already driven up to Mr.
Odeh’s driver-side window, and informed him that parking on the levee was
prohibited and to move his vehicle “now.”
In an effort to comply with Lieutenant Arnold’s directives, Mr. Odeh reported
that he moved his vehicle twenty to thirty feet away to location two. Since other
8 vehicles were parked in the area, Mr. Odeh explained that he was under the
impression that he was properly parked at location two. Mr. Odeh testified that he
did not know where the levee ended. After he parked, Mr. Odeh exited his vehicle,
and heard the race gun had been fired which signaled the start of the race. Mr. Odeh
immediately ran up to the top of the levee and told an officer that he was going to
take a picture and come right back down. The officer did not respond to Mr. Odeh’s
statement. For that reason, Mr. Odeh testified that he took three or four photographs
of the race, and that after doing so, he observed two police cars facing his vehicle,
which he stated made him uncomfortable.
Mr. Odeh further testified that he walked from the top of the levee to his
vehicle, entered it, started it, and put it in drive. He recalled Lieutenant Butler
appeared behind him “yelling and screaming. Give him a ticket now.” Mr. Odeh
stated that Lieutenant Arnold and Lieutenant Butler were both present when he
parked at location two, but Lieutenant Arnold did not talk to him after leaving
location one. He described Lieutenant Butler as angry, and that Lieutenant Butler
abruptly opened his vehicle door. Mr. Odeh recalled that Lieutenant Butler was
talking and shouting most of the time and uttered, “I don’t know what country you
come from, but that’s not how we do it around here.” He also testified that Lieutenant
Butler called him “stupid” a couple of times and commented that he was “sick of
you people.”
In an effort to explain his actions, Mr. Odeh testified that he tried to explain
the situation to Lieutenant Butler but denied yelling, cursing, or name calling. Mr.
Odeh reported that he asked Lieutenant Butler to close the door to his vehicle, and
Lieutenant Butler responded by commenting that he did not want to see him around
here anymore and slammed his door. At this point, Mr. Odeh stated that he
understood he needed to leave. At trial, Mr. Odeh denied being asked for his license,
registration, and proof of insurance. He recalled informing the officers that he had a
9 gun in his vehicle but did not threaten any of them with it. Afterwards, Mr. Odeh
reported that he left location two in a safe manner.
Thereafter, Mr. Odeh recalled that Officer Menieur moved in between him
and Lieutenant Butler. After explaining that he needed to issue a citation, Officer
Menieur then requested Mr. Odeh’s license and insurance information, and that
failure to provide him with the information would result in Mr. Odeh going to jail.
Officer Menieur also asked Mr. Odeh if there was a weapon in his vehicle and Mr.
Odeh responded affirmatively. Officer Menieur removed Mr. Odeh’s weapon from
his vehicle and later returned it. Lieutenant Butler issued two tickets at location three
and then asked Mr. Odeh to leave the area. After leaving the scene, Mr. Odeh
testified that he picked up his son.
At trial, Mr. Odeh confirmed that he videotaped part of the incident with his
cell phone. Mr. Odeh further admitted that he was very angry during the incident
and that he called Lieutenant Butler an “idiot” and “a**hole.” He explained that he
was more comfortable when Officer Menieur arrived to the scene and that Officer
Menieur spoke to him in a “calm, positive way.”
After considering the evidence and hearing arguments of counsel, the trial
judge found defendant guilty as charged.
ASSIGNMENTS OF ERROR
In his application for writ of review, Mr. Odeh sets forth the following
assignments of error:
1. The trial court erred in denying Odeh’s re-urged Motion to Quash the alleged
violation of La. R.S. 38:213 after trial, when all the material facts missing at
the initial Motion to Quash hearing were later developed at trial, and which
facts conclusively proved defendant’s violation was merely a non-moving,
parking violation that the statute clearly does not encompass.
10 2. The State failed to prove beyond a reasonable doubt that defendant was guilty
of violating La. R.S. 38:213 because there was no evidence to prove defendant
was riding, hauling, or driving upon the levee as proscribed by the statute.
3. The State failed to prove beyond a reasonable doubt that defendant was guilty
of violating La. R.S. 32:56 because: (1) the police order to remove the parked
vehicle from the levee was admittedly complied with in a delayed fashion; (2)
the police order to remove his vehicle from the levee was given in an arbitrary
and discriminatory fashion under the circumstances; (3) the disobedience
citation was issued by a levee police officer who had accosted defendant
racially, fabricated evidence in his Internal Affairs statement to investigators,
and was not present when the order to move the vehicle was given by the
ordering officer; and (4) the officer who issued the order, in his sole discretion,
chose not to issue any citations at all.
LAW AND ANALYSIS
In his first assignment of error, Mr. Odeh contends that the trial court erred by
denying his re-urged Motion to Quash the alleged violation of La. R.S. 38:213 after
trial. Seven months prior to trial, the trial court denied his motion to quash on the
basis that it was a procedural device available to raise pre-trial defenses that do not
go to the merits of the charge and that the only question at that time was whether the
bill of information charged a valid offense. Now, Mr. Odeh asserts that during the
two-day trial, the missing facts were developed and proved that he was not riding,
driving, or hauling upon the levee. Specifically, Mr. Odeh argues that La. R.S.
38:213 does not encompass parking on the levee and makes no mention of the word
“parking” in its text. He further argues that the applicable law on statutory
interpretation and the long-standing jurisprudential law are both plentiful and quite
clear. Mr. Odeh maintains that the articles of the Louisiana Code of Criminal
Procedure cannot be extended by analogy to create crimes not provided for. He
11 contends that the officers’ explanation, that any parking maneuver made on the levee
naturally encompasses driving on the levee, is a strained and arbitrary interpretation
that is prohibited by the law and jurisprudence. Mr. Odeh points out that Lieutenant
Arnold only observed a parked vehicle initially and that the ticket was not issued by
him but by Lieutenant Butler, who saw no movement on the levee at all. He contends
that his motion to quash was re-urged and should have been granted by law after the
trial court heard all of the factual evidence.
A motion to quash is a mechanism by which to raise pre-trial pleas or
defenses, or those matters which do not go to the merits of the charge. State v.
Arceneaux, 13-953 (La. App. 5 Cir. 4/23/14) (unpublished); citing State v.
Boudreaux, 99–1017 (La. App. 5 Cir. 2/16/00); 756 So.2d 505, 507. In considering
a motion to quash, a court must accept as true the facts contained in the bill of
information and determine, as a matter of law and from the face of the pleadings,
whether a crime has been charged. Id; citing State v. Byrd, 96–2302 (La.3/13/98);
708 So.2d 401, 411, cert. denied sub nom. Peltier v. Louisiana, 525 U.S. 876, 119
S.Ct. 179, 142 L.Ed.2d 146 (1998).
At a hearing on a motion to quash, evidence is limited to procedural matters
and the question of factual guilt or innocence is not before the court. Id; Boudreaux,
supra. When the issue presented in a motion to quash is exclusively a question of
law, appellate courts review the ruling de novo. Id; citing State v. Hamdan, 12–1986
(La.3/19/13); 112 So.3d 812, 816. Generally, the trial judge’s denial of a motion to
quash should not be reversed in the absence of a clear abuse of the trial court’s
discretion. State v. Lommasson, 11-536 (La. App. 5 Cir. 11/29/11), 81 So.3d 796,
799.
A review of the trial transcript reveals that Mr. Odeh did not re-urge his
motion to quash after the trial. In fact, the record shows instead that Mr. Odeh orally
moved for an acquittal following the State’s case-in-chief during which he merely
12 referenced his previously filed motion to quash. Notwithstanding Mr. Odeh’s failure
to re-urge his motion to quash after trial, the record further reveals that Mr. Odeh did
not give notice to the Court of his intent to seek this Court’s supervisory review of
the trial court’s ruling denying his motion to quash. Thus, this assignment of error
has not been properly preserved for review by this Court.
Additionally, we point out that Mr. Odeh has not briefed the issue of the trial
court denying his request for an acquittal. However, to the extent that Mr. Odeh is
arguing that the trial court erred in denying the motion for acquittal, we acknowledge
that the issue of whether there was sufficient evidence to uphold the convictions will
be addressed in the remaining assignments of error.
In his second assignment of error, Mr. Odeh avers that there was insufficient
evidence pursuant to the Jackson standard to support his conviction of riding,
hauling, or driving upon the levee in violation of La. R.S. 38:213. He further argues
that: (1) the officers testified that his violation was a parking violation; (2) no
evidence was presented at trial to support that he was riding, hauling, or driving on
the levee; (3) none of the officers, except Lieutenant Arnold, observed his vehicle at
location one; and (4) none of the officers observed any vehicle movement except the
non-levee movement from location two to location three, which was made at the
officers’ insistence.
The constitutional standard for testing the sufficiency of the evidence is
whether after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979). Both the direct and circumstantial evidence must be sufficient to support
the conclusion that the defendant is guilty beyond a reasonable doubt. State v.
Harrell, 01–841 (La. App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019. Circumstantial
evidence is evidence of facts or circumstances from which one might infer or
13 conclude, according to reason and common experience, the existence of other
connected facts. State v. Kempton, 01–572 (La. App. 5 Cir. 12/12/01), 806 So.2d
718, 722. Pursuant to La. R.S. 15:438, assuming every fact to be proven that the
evidence tends to prove, in order to convict, it must exclude every reasonable
hypothesis of innocence. However, this requirement does not establish a standard
that is separate from the Jackson standard, but instead provides a helpful
methodology for determining the existence of reasonable doubt. State v. Lathers,
03–941 (La. App. 5 Cir. 2/23/04), 868 So.2d 881, 884. To support the conclusion
that the defendant is guilty beyond a reasonable doubt, all evidence, both direct and
circumstantial, must be sufficient. Id.
Here, the State presented its case at trial through the testimony of Lieutenant
Kirt Arnold, Lieutenant Tyron Butler, Officer Michael Rosenbohm, and Officer
Scott Menieur. The witnesses' testimony regarding the October 20, 2018 incident
were substantially similar. The State presented evidence to show that Mr. Odeh
violated La. R.S. 38:213 by operating his motor vehicle on the levee. At trial,
Lieutenant Arnold testified that next to the access road on the levee was a posted
sign visible to motorist that stated “Motorized Vehicles Prohibited La. R.S. 38:213.”
Further, Lieutenant Arnold explained that while he did not observe Mr. Odeh in the
act of riding on the levee, in order to park on the levee as Mr. Odeh had successfully
done, he had to ride on the levee to get to the location where his vehicle was parked.
Moreover, Mr. Odeh testified at trial that he had in fact driven his son to the race,
and that he had observed other vehicles parked on the grassy area of the levee, which
he believed was an area where parking was permissible. Mr. Odeh did not deny that
he was riding on the levee. Instead, he testified that he did not notice the sign
instructing motorists that no riding on the levee was permitted until sometime after
he encountered the officers.
14 Further, we find that Parish of Jefferson v. Davie Shoring, Inc., 14-701 (La.
App. 5 Cir. 2/11/15), 167 So.3d 925, is instructive regarding the interpretation of La.
R.S. 38:213, which provides, in pertinent part:
A. No person shall ride, drive, or haul upon the public levees or integrated coastal protection projects or their rights-of-way except where, in the judgment of the levee commissioners of a district and the Department of Transportation and Development, or, for levees or integrated coastal protection projects in the coastal area as defined in R.S. 49:214.2, the Coastal Protection and Restoration Authority, ample provision has been made to guard against any damage to which the levees or integrated coastal protection projects may thereby be exposed from wear, tear, and abuse. Each levee district shall publish guidance, erect signage, and require special permits as they deem appropriate to allow them to make provisions for limited riding, driving, or hauling.
In Davie, this Court found that in paragraph A, the statute described the
prohibited actions as riding, driving, or hauling “upon” the public levees or
integrated coastal protection projects or their rights-of-way. This Court stated that it
was undisputed that defendant did not drive upon the levee itself but rather drove
across the levee on a paved road open to the public. This Court found this distinction
was important, because paragraph D of the statute provided that “[n]othing in this
Section shall interfere with the crossing over any public levees, at ramps or inclines
established under plans and specifications of the [DOTD], ...”. This Court noted that
Paragraph D used the words “crossing over” as opposed to riding, driving, or hauling
“upon” the levee. As such, this Court found that the legislature’s specific exemption
of the act of “crossing over” the levee on a DOTD specified roadway distinguished
that act from the prohibited acts described in the first paragraph, which logically
referred to acts of driving, riding, and hauling that take place upon the levee at
locations other than on a DOTD specified paved road crossing thereof. Davie, 925
So.3d at 930-31.
15 Further, this Court in Davie asserted that paragraph A of the statute provided
that “[e]ach levee district shall publish guidance, erect signage, and require special
permits as they deem appropriate to allow them to make provisions for limited
riding, driving, or hauling.” This Court found that it was undisputed that no signage
of this sort was placed at this particular paved crossing of the levee. As such, this
Court further found that the public was not placed on notice that a special permit
was required to cross over the levee at that location, if in fact a permit to cross here
was required by La. R.S. 38:213, a requirement which it found unsupported by the
record. Additionally, this Court found that no evidence was presented that that road
crossing was used for “limited” riding, driving, or hauling but was in fact used for
public access to the Bucktown Marina and U.S. Coast Guard Station. This Court
stated that the record was devoid of any mention of limitations on vehicular travel
over the levee at this road crossing. Accordingly, this Court ultimately found that
defendant’s actions were not in violation of La. R.S. 38:213, among other things.
Thus, this Court reversed the trial court’s granting of summary judgment in favor of
the Levee District and remanded this matter to the trial court for further proceedings.
Davie, 925 So.3d at 931-33.
Unlike the defendant in Davie, in this instance, based on the evidence adduced
at trial, Mr. Odeh did not drive across the levee on a paved road open to the public.
Instead, he drove upon the levee to find parking so he could observe the race his son
was participating in on the levee. While no signage had been erected on the road
that the defendant in Davie drove across, here, the access road to the levee had a sign
erected to notify motorists that riding or driving upon the levee was prohibited. Mr.
Odeh admitted that there was signage erected although he stated he did not notice
the signage initially. In its oral reasons for finding Mr. Odeh guilty as charged, the
trial court explained that in all likelihood, Mr. Odeh was running late because he
testified that he arrived at 7:54 a.m., approximately 6 minutes before the race was
16 scheduled to begin. We further point out that Mr. Bordelon, the cross-country track
coach for Arden Cahill, testified that fourteen to fifteen elementary schools
participated in the race, and that there were 289 runners. Mr. Odeh testified that he
dropped his son off so he could most likely check-in with his coach and join the
other runners present from his school. Additionally, the trial court reasoned that Mr.
Odeh acknowledged that he was unable to find any parking, and in an effort not to
disappoint his son, he quickly drove up the levee and parked where the two other
vehicles had illegally parked.
In its oral reasons for finding Mr. Odeh guilty, the trial court further pointed
out that the only circumstantial evidence presented at trial pertained to Mr. Odeh
having driven on the levee rather than being parked on the levee. It reasoned that “a
reasonable person could find that any and all other reasonable explanations or
hypothesis of innocence, is excluded.” We agree. The trial court explained that
through Mr. Odeh’s testimony it had become apparent “officially and directly, who
drove the vehicle where it was first spotted by the police.” It further stated that even
if Mr. Odeh had not testified at trial, “it’s only reasonable that someone could say,
that vehicle had to be driven from the roadway to get to where it was first spotted up
on the levee.”
The credibility of witnesses is within the sound discretion of the trier of fact,
who may accept or reject, in whole or in part, the testimony of any witness; and the
credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21
(La. App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. Accordingly, considering the
foregoing, we find the State presented sufficient evidence under the Jackson
standard for the trial court to conclude that Mr. Odeh was guilty beyond a reasonable
doubt of riding or driving on a levee in violation of La. R.S. 38:213.
In his final assignment of error, Mr. Odeh contends that the evidence
presented at trial was insufficient to support his conviction of failing to obey the
17 direction of a traffic officer in violation of La. R.S. 32:56. Specifically, he asserts
that the State failed to prove beyond a reasonable doubt that he was guilty of
violating La. R.S. 32:56 because: (1) the police order to remove the parked vehicle
from the levee was admittedly complied with in a delayed fashion; (2) the police
order to remove his vehicle from the levee was given in an arbitrary and
discriminatory fashion under the circumstances; (3) the disobedience citation was
issued by a levee police officer who had just accosted defendant racially, fabricated
evidence in his Internal Affairs statement to investigators, was not present when the
order to move the vehicle was given by the ordering officer; and (4) the officer who
issued the order, in his sole discretion, chose not to issue any citations at all.
La. R.S. 32:56 provides in pertinent part:
A. No person shall fail or refuse to comply with any lawful order or direction of any police officer or weights and standards police officer invested by law with authority to direct, control, or regulate traffic.
This statute imposes a duty upon a motor vehicle operator to comply with any
lawful order or directive of any police officer invested by law with the authority to
direct, control or regulate traffic, irrespective of the instructions or signals of a traffic
control device. Theriot v. Bergeron, 05-1225 (La. App. 1 Cir. 6/21/06), 939 So.2d
379, 380 (internal citations omitted).
In the case at bar, the trial transcript is replete with testimony that Mr. Odeh
was given several directives from the officers that parking on the levee was not
permitted and that Mr. Odeh had to move his vehicle. Further, through his own
admission, Mr. Odeh acknowledges that he was told repeatedly by the officers to
move his vehicle because parking on the levee was prohibited.
Regarding Mr. Odeh’s contention that the State failed to prove beyond a
reasonable doubt that he was guilty of violating La. R.S. 32:56 because the police
order to remove the parked vehicle from the levee was admittedly complied with in
a delayed fashion, we find it is without merit. 18 La. R.S. 32:56 is clear that no person may fail or refuse to comply with any
lawful order or direction of any police officer invested by law with authority to
direct, control, or regulate traffic. Mr. Odeh admits that he delayed in complying
with the directives of the officers to move his vehicle. He cites reasons for his
delayed compliance, however, the statute is clear that Mr. Odeh was required to
immediately comply with the orders given to him without delay.
In State v. Carter, 95-703 (La. App. 3 Cir. 9/12/95), 663 So.2d 152, 153, the
Third Circuit reversed the trial court’s ruling granting a motion to suppress based on
a lack of defendant's consent to search the vehicle because defendant's driving
conduct during flight from the deputy provided deputy with probable cause to arrest
defendant. In Carter, the court found that the deputy attempted to pull over
defendant's vehicle for a lack of license plate, but defendant fled, ran a stop sign, and
did not stop until he pulled into private driveway. It explained that even though the
defendant eventually stopped, at the time the defendant pulled into the private
driveway, the deputy had probable cause to arrest the relator for a violation of La.
R.S. 32:56, failure to obey a police officer.
Here, just like the defendant in Carter, Mr. Odeh did eventually obey the
officers’ request to move his vehicle. However, his failure to promptly comply with
the officers’ orders was proven beyond a reasonable doubt. At trial, Lieutenant
Arnold testified that Mr. Odeh moved his vehicle ten minutes after the order to move
was initially given. He further testified that Mr. Odeh moved his vehicle from
location two to location three after ten additional minutes had passed. Lieutenant
Arnold stated that the entire interaction with Mr. Odeh lasted approximately forty to
fifty minutes.
Mr. Odeh also asserts that the State failed to prove beyond a reasonable doubt
that he was guilty of violating La. R.S. 32:56 because the disobedience citation was
issued by a levee police officer who had just accosted him racially, fabricated
19 evidence in his Internal Affairs statement to investigators, and was not present when
the order to move the vehicle was given by the ordering officer. He further argues
that the State failed to prove beyond a reasonable doubt that he was guilty of
violating La. R.S. 32:56 because the officer who issued the order, in his sole
discretion, chose not to issue any citations at all. We find no merit to Mr. Odeh’s
assertions.
At trial, Lieutenant Butler admitted that he stated, “I don’t know how you treat
the police in the country you come from, however, the police are treated with respect
in this country.” Lieutenant Butler denied that the comment was racial. Also, a
review of Lieutenant Butler’s Internal Affairs statement reflects that it is similar to
his trial testimony. No evidence was presented at trial that Lieutenant Butler has a
history or pattern of bias or racially motivated behavior towards persons from
Palestine. Also, no evidence was presented at trial by Mr. Odeh that Lieutenant
Butler fabricated evidence in his Internal Affairs statement to investigators. Mere
conjecture is insufficient to challenge if an element of a crime has been met.
As to Mr. Odeh’s contentions regarding issuance of the citation, a review of
the record reveals that at trial Lieutenant Arnold explained that La. R.S. 38:213 was
a moving violation and that tickets for such violations could be issued by the officer
who saw it or by any other officer on the scene. He further testified that Lieutenant
Butler was his supervisor, who agreed to take over the scene and believed that Mr.
Odeh would comply if his supervisor spoke with him.
Considering the evidence presented at trial, we find that a rational trier of fact
could have found that the evidence was sufficient under the Jackson standard to
support the conviction of failing to obey the direction of traffic officers in violation
of La. R.S. 32:56.
ERROR PATENT REVIEW
20 Finally, as is our customary practice, we have reviewed the record for errors
patent, pursuant to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975);
State v. Weiland, 556 So.2d 175 (La. App. 5 Cir.1990). Our review reveals the
following errors patent that require correction.
According to the sentencing transcript, the trial court imposed a $50.00 fine
on each count, for a total of $100.00. However, the minute entry on the docket master
attached to the writ application reflects that the fine was $50.00. The docket master
does not indicate which count or counts that fine was associated with. When there is
a discrepancy between the minute entry and the transcript, the transcript prevails.
State v. Lynch, 441 So.2d 732 (La.1983).
The record reflects that Mr. Odeh paid a $50.00 fine on May 26, 2021, the day
he was convicted and was sentenced, and that his remaining balance was zero.
Nevertheless, it is unknown which sentence, if either, was satisfied. It does not
appear that the record before this Court adequately shows that both fines were paid.
Thus, we hereby amend the minute entry to accurately reflect that Mr. Odeh has a
balance of $50.00 owed for the fine imposed by the trial court as to count 2. We
further amend the minute entry to reflect that the $50.00 fine paid by Mr. Odeh on
May 26, 2021 applies to count 1, which was imposed by the trial court during
sentencing.
CONCLUSION
In conclusion, we find no merit in defendant's arguments in the writ of review
application. Mr. Odeh’s convictions and sentences are hereby affirmed, and we
amend the minute entry to accurately reflect Mr. Odeh has a balance of $50.00 owed
for the fine imposed by the trial court as to count 2 and that the $50.00 fine paid by
Mr. Odeh on May 26, 2021, applies to count 1.
AFFIRMED
21 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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