State v. Baker

148 So. 3d 217, 2014 La. App. LEXIS 2010, 2014 WL 4212678
CourtLouisiana Court of Appeal
DecidedAugust 27, 2014
DocketNo. 49,175-KA
StatusPublished
Cited by22 cases

This text of 148 So. 3d 217 (State v. Baker) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Baker, 148 So. 3d 217, 2014 La. App. LEXIS 2010, 2014 WL 4212678 (La. Ct. App. 2014).

Opinion

STEWART, J.

hThe defendant, Donald Ray Baker, was convicted of two counts of cyberstalking, in violation of La. R.S. 14:40.3. A unanimous jury found him guilty as charged on both counts. He was sentenced to one year in the parish jail for the first count, and to one year in the parish jail, suspended, with two years of supervised probation for the second count. He now appeals, arguing that the evidence was insufficient to convict him of cyberstalking and that his sentences are excessive. For the reasons set forth in this opinion, we affirm the defendant’s convictions and sentences as amended.

FACTS AND PROCEDURAL HISTORY

On April 15, 2008, the defendant was charged with two counts of cyberstalking, in violation of La. R.S. 14:40.3, by bill of [222]*222information. In the bill, it was alleged that the defendant “repeatedly communicated with Jay Kavanaugh via electronic mail for the purpose of harassment” between November 30, 2005, and March 28, 2007, for count one, and on March 29, 2007, for count two.

The jury trial commenced on February 25, 2013. The following evidence was adduced at trial.

Jay Kavanaugh, the state’s only witness, was an inspector and supervisor in the Criminal Investigation Division of the Ru-sten Police Department at the time of the incident. Kavanaugh testified that he knew the defendant from high school, but that he was not a friend or acquaintance of the defendant’s. Kavanaugh testified that in 2005, Kim Birch, who was previously romantically involved with the defendant, contacted him to |¡,report that the defendant was sending her threatening and harassing e-mails. On October 19, 2005, Ka-vanaugh sent the defendant an e-mail to inform him of La. R.S. 14:40.3 and to advise him not to have any further contact with Birch. The defendant continued to email Birch, and Kavanaugh consequently obtained an arrest warrant for the defendant on November 30, 2005.

The defendant was released on bail, and as a condition of his release, he was ordered not to have any contact with Birch. Soon thereafter, Kavanaugh testified that Ed Hall, a private investigator from Shreveport, contacted him to inform him that the defendant had hired him to conduct surveillance of Birch. Kavanaugh, fearful for Birch’s safety, provoked a motion to revoke the defendant’s bond. The defendant was arrested for violating his bond and held for five days without bond. The cyberstalking charges against the defendant involving Birch were ultimately dismissed per her request.

Kavanaugh testified that after the defendant’s charges involving Birch were dismissed, he received a series of unsolicited e-mails from him. In fact, he received 38 e-mails from the defendant between September 15, 2006, and March 28, 2007, and eight e-mails from the defendant on March 29, 2007. All of these e-mails were sent to Kavanaugh’s e-mail address at work. Ka-vanaugh testified that he only sent one email to the defendant, dated March 29, 2007, in which he told him not to send any more e-mails. That e-mail was sent under the direction of the district attorney’s office.

| .-¡Throughout his testimony, Kavanaugh expressed that the e-mails the defendant sent to him were harassing, threatening, irritating, and insulting based on both the content and the number of e-mails. He stated that he never lied about anything in relation to the defendant, that everything he did in the matter involving Birch was in accordance with the law and in consideration of Birch’s safety, and that he was never disciplined as a result of that matter. Kavanaugh testified that he eventually contacted the state police and asked them to investigate the matter, because he knew that the defendant was “computer savvy.” Kavanaugh was concerned that the defendant was putting things on his computer and making them appear as though he sent them. He also stated that he delayed asking the defendant to stop e-mailing him because he was fearful for Birch’s safety.

On February 26, 2013, the jury found the defendant guilty as charged on both counts of cyberstalking. The trial court ordered a presentence investigation report. On April 30, 2013, the sentencing hearing was held.

The trial court sentenced the defendant to one year in the parish jail for the first count. For the second count, the trial court sentenced the defendant to one year [223]*223in the parish jail, suspended, with two years of supervised probation. As a condition of the defendant’s probation, the trial court ordered that he perform 30 eight-hour days of court-approved community service, and pay a fine of $2,000.00 plus court costs, or serve six months in the parish jail in default. The trial court stated that the defendant’s probation on count two would commence upon his release from jail on count one, but ordered the sentences to run concurrently.

|4On May 1, 2013, the defendant filed a motion to reconsider sentence. At a hearing that took place on June 21, 2013, the trial court denied the motion and clarified that the defendant’s sentences were to be served consecutively.

The defendant filed the instant appeal, asserting two assignments of error.

LAW AND DISCUSSION

Insufficiency of the Evidence

In the defendant’s first assignment of error, he argues that the evidence was insufficient to support his eyberstalking convictions. He argues that the state failed to prove that his purpose for his correspondence to Kavanaugh was to harass, and that it failed to prove that he continued to e-mail Kavanaugh after being told to cease doing so. More specifically, the defendant argues that pursuant to La. R.S. 14:40.3(B)(1) and La. R.S. 14:40.3(B)(3), his e-mails to Kavanaugh did not contain any false statements and did not threaten harm to anyone or any property.

When issues are raised on appeal, both as to the sufficiency of evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La. App.2d Cir. 1/1-4/09), 1 So.3d 833. On appeal, a reviewing court must view the evidence in the light most favorable to the state and must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. Jackson, supra.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685,

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Cite This Page — Counsel Stack

Bluebook (online)
148 So. 3d 217, 2014 La. App. LEXIS 2010, 2014 WL 4212678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-baker-lactapp-2014.