STATE OF LOUISIANA NO. 23-KP-399
VERSUS FIFTH CIRCUIT
SHANE SMITH COURT OF APPEAL
STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT PARISH OF ST. CHARLES, STATE OF LOUISIANA NO. 94,880, DIVISION "D" HONORABLE M. LAUREN LEMMON, JUDGE PRESIDING
December 27, 2023
FREDERICKA HOMBERG WICKER JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson
CONVICTION AFFIRMED; REMANDED FOR CLARIFICATION OF SENTENCING RESTRICTIONS FHW JGG MEJ COUNSEL FOR PLAINTIFF/RESPONDENT, STATE OF LOUISIANA Joel T. Chaisson, II Louis G. Authement
COUNSEL FOR DEFENDANT/RELATOR, SHANE SMITH Lauren D. Rogers WICKER, J.
Defendant, Shane Smith, seeks supervisory review of his misdemeanor
conviction and sentence for battery of a dating partner, first offense, in violation of
La. R.S. 14:34.9. For the following reasons, we affirm defendant’s conviction and
sentence, except that we remand this matter and instruct the trial court to impose at
least forty-eight hours of the sentence without the benefit of parole in accordance
with La. R.S. 14:34.9(C), as more fully set forth in our Errors Patent Review
below.
STATEMENT OF THE CASE
On January 20, 2022, the St. Charles Parish District Attorney filed a bill of
information charging defendant with battery of a dating partner, first offense, in
violation of La. R.S. 14:34.9. On that same date, defendant entered a plea of not
guilty. On November 10, 2022, after a bench trial, the trial court found defendant
guilty as charged. On that same date, the court sentenced defendant to six months
in the parish prison with all but the first forty-eight hours being suspended.1
Defendant seeks supervisory review of his conviction, challenging the sufficiency
of the evidence presented against him.
FACTS
At trial, the victim, Shonette Sam, testified that she had known defendant
since high school and had been romantically involved with defendant for
approximately two years before the incident that led to defendant’s arrest. Ms. Sam
testified that, on May 6, 2021, defendant asked her for a ride from Hanhville to
Des Allemands. Ms. Sam picked defendant up in her vehicle and drove to her
house.2 When she arrived home, she went into the house while defendant waited in
the car. Ms. Sam testified that, a few minutes later, defendant walked into her
1 The trial court further ordered that defendant be placed on active probation with the District Attorney’s Office for a period of two years. 2 Ms. Sam testified that defendant did not own a vehicle.
23-KP-399 1 house and began making himself at home—sitting on the sofa, opening doors, and
jumping on her bed. At some point while defendant was jumping on Ms. Sam’s
bed, she became frustrated and told him to get off the bed. She testified that, at
that time, defendant “picked [her] up, slammed [her] on the ground.”3 Ms. Sam
further testified that, as she continuously tried to “get [defendant] out” of her
house, he punched her in the face, causing a knot and swelling near her eye.4 She
testified that after defendant left the house, she immediately called 9-1-1. She
stated that while she was on the phone with 9-1-1, defendant returned and kicked
the front door in, causing the frame and lock to break.5 She denied that defendant
returned to the home to retrieve his cell phone.
Ms. Sam testified affirmatively when asked if she had a “romantic
relationship” with defendant. When asked about the nature of the romantic
relationship, she responded, “We were just having sex.” After the May 6, 2021
incident, Ms. Sam and defendant continued to have communication and contact.
She testified that the two of them had “the same contact as before…everything.
Texting, calling, sex. Same.” Ms. Sam testified that in 2022, she had two surgical
procedures and that defendant visited her after the procedures. She further testified
that she spent Mardi Gras of 2022 with defendant and at some point in time had
dinner with defendant at a restaurant. She stated that, on July 9 and 10, 2022, she
spent time with defendant at bars in Killona, Edgard, and Kenner shooting pool.6
Ms. Sam testified generally that, “Everywhere I go, Shane’s there. If I go to Hot
Spot, he’s there. If I go to Killona, he’s there. If I go to St. Rose, he’s there. If I go
to Kenner, he’s there. He’s everywhere I go.” Ms. Sam stated that, approximately
3 Ms. Sam testified that her twelve-year-old daughter was standing in the bedroom doorway and witnessed defendant push her onto the ground. 4 The State introduced photographs of Ms. Sam’s face into evidence. Ms. Sam testified that the photographs reflect swelling to her eye. 5 Ms. Sam testified that her landlord required her to pay $300.00 for the damage defendant caused to the door. 6 The State introduced into evidence Facebook messages exchanged between the parties on July 9 and 10, 2022.
23-KP-399 2 four months prior to trial, she stopped contacting defendant and they have not
communicated since.
At the conclusion of trial, the trial court found defendant guilty as charged
and sentenced defendant to six months in the parish prison with all but the first
forty-eight hours suspended.7
DISCUSSION
Defendant seeks supervisory review of his misdemeanor conviction for
battery of a dating partner, first offense, in violation of La. R.S. 14:34.9, assigning
two errors. First, defendant challenges the sufficiency of the evidence presented
against him at trial, pointing to the absence of any police report, 9-1-1 recordings,
or sufficient physical evidence. Second, defendant argues that his relationship with
the victim was casual and purely sexual and, thus, Ms. Sam did not meet the
definition of a “dating partner” as defined under La. R.S. 14:34.9(B); thus,
defendant asserted that the State failed to prove each element of the crime under
La. R.S. 14:34.9.
In defendant’s first assignment of error, he challenges the sufficiency of the
evidence presented against him at trial to support his conviction. In reviewing the
sufficiency of the evidence, an appellate court must determine if the evidence,
whether direct or circumstantial, or a mixture of both, viewed in the light most
favorable to the prosecution, was sufficient to convince a rational trier of fact that
all of the elements of the crime have been proven beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v.
Mickel, 09-953 (La. App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357
(La. 1/7/11), 52 So.3d 885; State v. Ordonez, 16-619 (La. App. 5 Cir. 3/15/17), 215
So.3d 473, 477.
7 The trial court also ordered that defendant participate in community service, pay various fines, and complete a substance abuse evaluation.
23-KP-399 3 When circumstantial evidence is used to prove the commission of the
offense, La. R.S. 15:438 provides, “[A]ssuming every fact to be proved that the
evidence tends to prove, in order to convict, it must exclude every reasonable
hypothesis of innocence.” The reviewing court is not required to determine
whether a defendant’s suggested hypothesis of innocence offers an exculpatory
explanation of events. Rather, the reviewing court must evaluate the evidence in
the light most favorable to the State and determine whether the possible alternative
hypothesis is sufficiently reasonable that a rational juror could not have found
proof of guilt beyond a reasonable doubt. State v. Baham, 14-653 (La. App. 5 Cir.
3/11/15), 169 So.3d 558, 566, writ denied, 15-40 (La. 3/24/16), 190 So.3d 1189.
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; 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. In the absence of internal
contradiction or irreconcilable conflicts with physical evidence, the testimony of
one witness, if believed by the trier of fact, is sufficient to support a conviction.
State v. Dixon, 07-915 (La. App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied
sub nom. State ex rel. Dixon v. State, 08-987 (La. 1/30/09), 999 So.2d 745.
Defendant was convicted of battery of a dating partner, first offense. La.
R.S. 14:34.9 defines battery of a dating partner as “the intentional use of force or
violence committed by one dating partner upon the person of another dating
partner.” Criminal intent may be specific or general. La. R.S. 14:10. La. R.S.
14:34.9 does not specify if it is a general or specific intent crime. In the absence of
a qualifying provision, the terms “intent” and “intentional” reference towards
general intent. La. R.S. 14:11. General criminal intent is present whenever there is
specific intent, and also when the circumstances indicate that the offender, in the
ordinary course of human experience, must have adverted to the prescribed
23-KP-399 4 criminal consequences as reasonably certain to result from his act or failure to act.
La. R.S. 14:10(2). In general intent crimes, “the criminal intent necessary to sustain
a conviction is shown by the very doing of the acts which have been declared
criminal.” State v. Harrell, 18-63 (La. App. 5 Cir. 10/17/18), 258 So.3d 1007
(citing State v. Howard, 94-23 (La. 6/3/94), 638 So.2d 216, 217).
At trial, Ms. Sam testified that when she tried to stop defendant from
jumping on her bed, he picked her up and slammed her on the ground. She further
testified that when she told defendant to leave her home, he responded by punching
her in the face, which caused a knot and swelling near her eye. The State
introduced into evidence a photograph of Ms. Sam’s eye taken after the incident.
To demonstrate the escalation of events that evening, the State also introduced into
evidence photographs of Ms. Sam’s broken door frame, which supported her
testimony that defendant attempted to return to the residence after she told him to
leave. We find that none of the physical evidence introduced at trial conflicts with
Ms. Sam’s testimony.
As stated above, the testimony of one witness, if believed by the fact finder,
is sufficient to support a conviction. See State v. Marcantel, 00-1629 (La. 4/3/02),
815 So.2d 50, 56 (affirming the defendant’s felon in possession of a firearm
conviction on the basis of witness testimony without any physical evidence); State
v. Page, 08-531 (La. App. 5 Cir. 11/10/09), 28 So.3d 442, writ denied, 09-2684
(La. 6/4/10), 38 So.3d 299 (affirming the defendant’s second degree murder
conviction obtained on the basis of witness testimony without any physical
evidence). Therefore, we find the State presented sufficient evidence to show that
defendant intentionally used force or violence upon Ms. Sam’s person. This
assignment is without merit.
In his second assignment of error, defendant claims that the evidence
introduced at trial detailing his relationship with Ms. Sam—which he contends was
23-KP-399 5 casual and purely sexual—does not support a finding that Ms. Sam was his “dating
partner” as defined in La. R.S. 14:34.9(B). Defendant argues that the State failed
to prove each element of the crime because it failed to prove that he and Ms. Sam
were dating partners as defined and contemplated under the statute.
The disputed issue in this case is one of statutory interpretation, which is
subject to de novo review. State v. Maldonado, 11-1090 (La. App. 5 Cir. 5/22/12),
96 So.3d 1221, 1224; Harrah’s Bossier City Inv. Co., LLC v. Bridges, 09–1916
(La. 5/11/10), 41 So.3d 438, 445. The starting point in the interpretation of any
statute is the language of the statute itself. State v. Maldonado, 96 So.3d at 1224.
Interpretation of the language of a criminal statute is governed by La. R.S. 14:3,
which states:
The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.
Additionally, La. R.S. 1:3 provides in part, “Words and phrases shall be read
with their context and shall be construed according to the common and approved
usage of the language.”
We start our analysis with the words of the statute itself. Defendant was
convicted of battery of a dating partner in violation of La. R.S. 14:34.9.
Subsection (B) defines “dating partner” as follows:
(3) “Dating partner” means any person who is involved or has been involved in a sexual or intimate relationship with the offender characterized by the expectation of affectionate involvement independent of financial considerations, regardless of whether the person presently lives or formerly lived in the same residence with the offender. “Dating partner” shall not include a casual relationship or ordinary association between persons in a business or social context.
Therefore, a dating partner is first “any person who is involved or has been
involved in a sexual or intimate relationship with the offender… .” Defendant
23-KP-399 6 does not dispute that he and Ms. Sam were involved in a sexual relationship. The
statute continues to define a dating partner as one in an intimate or sexual
relationship characterized by the “expectation of affectionate involvement.”
Therefore, the two factors that encompass a “dating partner” are: 1) a past or
current sexual or intimate relationship, and 2) an expectation of affectionate
involvement. The phrase “affectionate involvement” is not defined by La. R.S.
14:34.9, and it has not been interpreted under these circumstances by Louisiana
courts.8
For purposes of statutory interpretation, courts have commonly used
dictionaries as a valuable source for determining the “common and approved usage
of words.” Dunn v. City of Kenner, 15-1175 (La. 1/27/16), 187 So.3d 404, 411.
Black’s Law Dictionary defines “expectation” as “1. The act of looking forward;
anticipation. 2. A basis on which something is expected to happen; esp., the
prospect of receiving wealth, honors, or the like.”9 The term “affection” is defined
as “a feeling of liking and caring for someone or something: tender attachment:
fondness.”10 Black’s Law Dictionary defines “affection” as “[f]ond attachment,
devotion, or love.” Finally, the term “involved” is defined as “having a part in
something: included in something: actively participating in something: having a
romantic or sexual relationship.”11 Therefore, considering the common usage of the
words included in the phrase “expectation of affectionate involvement,” we
8 A review of other jurisdictions’ jurisprudence reflects that Alabama has a similar, but not identical, statutory definition of a dating partner or dating relationship. See Ala. Code § 30-5-2 (which similarly excludes “a casual or business relationship” from meeting the definition of a “dating relationship” but further defines a dating relationship to include “an expectation of affectionate or sexual involvement by either party.” See W.T. v. H.S., No. 2210492, 2022 WL 4282314 (Ala. Civ. App. Sept. 16, 2022) (emphasis added). 9 Black’s Law Dictionary (11th ed. 2019). 10 Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam- webster.com/dictionary/affection. 11 Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam- webster.com/dictionary/involved. Black’s law dictionary does not include a definition for “involvement” or “involved.”
23-KP-399 7 interpret that phrase to mean the prospect of liking someone or something that also
includes having a romantic or sexual relationship.
Upon a de novo review of the record and the applicable law, we find that the
State met its burden in this case to prove that Ms. Sam and defendant were dating
partners as defined in La. R.S. 14:34.9(B). In the instant case, Ms. Sam described
her relationship with defendant before and after the charged incident as “just
having sex” and “texting, calling, sex.” However, Ms. Sam also testified that she
met defendant in high school and was romantically involved with him for
approximately two years before he was arrested for the instant charge. Ms. Sam
also testified that defendant did not have a car and testified to instances where she
would provide transportation for defendant without any reference to financial
compensation. At some point during their involvement, Ms. Sam gave defendant a
key to her home, where her three children also lived, for approximately one month.
We find that being involved in a romantic or sexual relationship with defendant for
approximately two years, texting each other, calling each other, giving defendant a
key to her home, chauffeuring defendant upon his request, hanging out with
defendant, and bringing defendant to her home where her children were present
supports a factual finding Ms. Sam and defendant were involved in a sexual
relationship, and that they acted out on feelings of liking or caring for each other.
Ms. Sam testified that after the May 6, 2021 offense, until four months prior
to trial, her relationship with defendant was essentially the “same” as before the
incident. Ms. Sam testified that after defendant’s arrest, Ms. Sam continued to
involve defendant in her life in ways that were in addition to their sexual
involvement. Ms. Sam testified that she had two surgical procedures in 2022, and
that defendant visited her after those procedures. Defendant’s visitation after
23-KP-399 8 surgery could reasonably be considered an affectionate display of liking or caring
for Ms. Sam.
Based upon the trial court’s determination that defendant violated La. R.S.
14:34.9, the trial court found Ms. Sam credible and determined that her
relationship with defendant was more than a casual relationship or ordinary
association in a business or social context. Upon a review of the record and the
applicable law, we find that the evidence supports a finding that defendant and Ms.
Sam were “dating partners,” at the time of the offense as contemplated under La.
R.S.14:34.9—meaning they were involved in a sexual relationship with an
expectation of affectionate involvement independent of financial considerations.
This assignment of error lacks merit.
ERRORS PATENT REVIEW
Generally, an errors patent review is not conducted on misdemeanor
convictions. Nevertheless, this Court has on occasion considered a “misdemeanor
appeal” as an application for supervisory review of the case and has conducted an
errors patent review. See State v. Jones, 12-640 (La. App. 5 Cir. 10/30/13), 128
So.3d 436, 443. A review of the record for errors patent according to La. C.Cr.P.
art. 920 reflects the following errors requiring correction:
First, we point out that the trial judge failed to restrict the benefit of parole
for at least the first forty-eight hours of defendant’s sentence. La. R.S. 14:34.9(C)
requires that at least forty-eight hours of the sentence be imposed without the
benefit of parole, probation, or suspension of sentence. The court sentenced
defendant to serve six months in the parish prison with all but forty-eight hours
suspended and further placed defendant on active probation with certain
conditions. However, the sentencing transcript reflects that the trial court did not
specify the period of time during which defendant’s sentence was imposed without
the benefit of parole.
23-KP-399 9 Generally, when a trial court does not mention the restriction of benefits,
such conditions are deemed to exist by operation of law under La. R.S. 15:301.1.
State v. Shelby, 18-186 (La. App. 5 Cir. 12/27/18), 263 So.3d 1223, 1228.
However, in this case, La. R.S. 15:301.1 does not cure the lack of a specified time
period for the restriction of benefits because the portion of the sentence to be
served without benefits is left to the discretion of the trial court. State v. Mouton,
22-444 (La. App. 5 Cir. 12/29/22), 358 So.3d 106, 122.
Accordingly, we therefore remand this matter and instruct the trial court to
impose at least forty-eight hours of the sentence without the benefit of parole in
accordance with La. R.S. 14:34.9. See State v. Jenkins, 22-443 (La. App. 5 Cir.
2/27/23), 359 So.3d 1006, 1015 (case remanded for clarification of the defendant’s
sentence as to the restriction of benefits); State in Interest of J.R., 22-339 (La. App.
5 Cir. 11/30/22), 354 So.3d 172, 179-80 (“Because the language of the sentencing
provision gives the trial judge discretion in determining the exact length of time
that benefits are to be restricted, we remand this matter and instruct the juvenile
court to impose at least forty-eight hours of the disposition without the benefit of
parole, probation, or suspension of sentence”).
Second, the sentencing transcript does not reflect that the trial judge advised
defendant of the provisions of La. C.Cr.P. art. 930.8, which states in pertinent part,
“No application for post-conviction relief, including applications which seek an
out-of-time appeal, shall be considered if it is filed more than two years after the
judgment of conviction and sentence has become final under the provisions of
Article 914 or 922.” If a trial court fails to advise, or provides an incomplete
advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error
by informing the defendant of the applicable prescriptive period for post-
conviction relief by means of its opinion. State v. Taylor, 20-215 (La. App. 5 Cir.
4/28/21), 347 So.3d 1008. Accordingly, we hereby advise defendant that no
23-KP-399 10 application for post-conviction relief, including applications that seek an out-of-
time appeal, shall be considered if filed more than two years after the judgment of
conviction and sentence has become final under the provisions of La. C.Cr.P. arts.
914 or 922. See Taylor, supra.
DECREE
For the reasons provided herein, we affirm defendant’s conviction. Upon an
errors patent review, we determine that the trial court failed to restrict the benefit
of parole for at least the first forty-eight hours of defendant’s sentence, as required
under La. R.S. 14:34.9(C). We therefore remand this matter and instruct the trial
court to impose at least forty-eight hours of the sentence without the benefit of
parole in accordance with La. R.S. 14:34.9(C). In all other respects, we affirm
defendant’s sentence.
CONVICTION AFFIRMED; REMANDED FOR CLARIFICATION OF SENTENCING RESTRICTIONS
23-KP-399 11 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK JOHN J. MOLAISON, JR. SCOTT U. SCHLEGEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY DECEMBER 27, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-KP-399 E-NOTIFIED 29TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE M. LAUREN LEMMON (DISTRICT JUDGE) LOUIS G. AUTHEMENT (RESPONDENT)
MAILED LAUREN D. ROGERS (RELATOR) HON. JOEL T. CHAISSON, II (RESPONDENT) ATTORNEY AT LAW DISTRICT ATTORNEY 4224 FLORIDA AVENUE TWENTY-NINTH JUDICIAL DISTRICT SUITE 2 COURT KENNER, LA 70065 POST OFFICE BOX 680 HAHNVILLE, LA 70057