State v. DeShazo

504 So. 2d 963, 1987 La. App. LEXIS 8912
CourtLouisiana Court of Appeal
DecidedMarch 4, 1987
DocketNo. KW 86 1048
StatusPublished
Cited by3 cases

This text of 504 So. 2d 963 (State v. DeShazo) 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. DeShazo, 504 So. 2d 963, 1987 La. App. LEXIS 8912 (La. Ct. App. 1987).

Opinion

LANIER, Judge:

The defendant, Diane F. DeShazo,1 was charged in a bill of information with disturbing the peace “in such a manner as would forseeably [sic] disturb and alarm the public, by playing loud music” in violation of La.R.S. 14:103. DeShazo filed a motion to quash the information asserting “the provisions of the statute for which defendant has been charged are unconstitutional as being overly broad and a violation of defendant’s first amendment rights.” DeShazo pled not guilty. A ruling on the motion to quash was referred to the merits. After a bench trial, DeShazo was found guilty as charged. She was sentenced to serve ninety days in jail and ordered to pay a fine of $100 and costs; however, execution of sentence was suspended on “no further complaints of this nature made against the defendant’s business establishment.” 2 DeShazo sought a writ of review [964]*964to this court. We granted the writ to consider, among other things, the serious constitutional issues raised in the writ application.

FACTS

DeShazo is the owner of Reuben’s Lounge in Bayou Vista, St. Mary Parish, Louisiana. She had been issued the proper licenses to operate the lounge. The area in which she operates her lounge is not zoned. The lounge is located adjacent to a residential area called the Arlington Trailer Park.

In an effort to attract customers to her lounge, DeShazo employed local musicians to play for her patrons. Some of the residents of the Arlington Trailer Park complained about the live music because it was disturbing their sleep. The St. Mary Sheriffs Office gave the defendant several warnings to lower the sound level of the music at her lounge. St. Mary Parish did not have an ordinance which prohibited music during certain hours or regulated the level of sound.

On April 21, 1986, the sheriff’s department received three complaints about the loud music at defendant’s lounge. At this time, the lounge had been opened about fifteen months. The first complaint was at approximately 10:30 p.m. from Joe Vala-chavic. Valachavic lived in Arlington Trailer Park on lot number 30. Thereafter, at approximately 11:48 p.m., Mrs. Barbara Le-Blanc also complained about the loud music at the lounge. Mrs. LeBlanc is a resident of Arlington Trailer Park on lot number 29. Deputy Robert Smith was dispatched in response to these complaints and, on both occasions, found the music was loud at the lounge. The defendant was advised on both occasions that a summons would be issued for disturbing the peace if another complaint was received for the loud music. A third complaint was received by the sheriff’s department at approximately 11:58 p.m. that evening. Deputy S.E. Armstrong, Jr. was dispatched to the lounge for this third complaint. Armstrong only took two to three minutes to respond and was aware of the two previous complaints. When he arrived, several patrons were standing in front of the lounge and the door was open. Armstrong found that the music was loud, even after the front door had been closed. Armstrong went into the lounge and asked for the defendant. She was not at the lounge at that time; her son was in charge. The defendant arrived in a few (3 to 5) minutes. At that time, Deputy Smith also arrived at the lounge. Deputy Armstrong then issued a citation for disturbing the peace to DeShazo,

SUFFICIENCY OF EVIDENCE

DeShazo asserts, “[tjhere is insufficient evidence to establish beyond a reasonable doubt of any specific intent on the part of defendant to violate any criminal law.” The state responds that “there is no evidence to conclude that the defendant-relator had the specific intent to annoy or disturb the complainants, but her actions clearly demonstrate that she was aware that the consequences of her actions were certain to follow.”

A plea of not guilty places upon the state the burden of proving beyond a reasonable doubt each element of the crime charged. La.R.S. 15:271; State v. Guirlando, 491 So.2d 38 (La.App. 1st Cir.1986). In State v. Mathews, 375 So.2d 1165 (La.1979), a majority of the Louisiana Supreme Court determined that the United States Supreme Court case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), required that the standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether, after reviewing 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. This standard for the appellate review of facts in criminal cases has been made statutory. La.C.Cr.P. art. 821; State v. Captville, 448 So.2d 676 (La.1984); State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). The standard of Article 821 is an objective standard for testing the overall evidence, direct and circumstantial, for reasonable doubt.

[965]*965According to the record and the briefs of the parties,3 DeShazo was charged with violation of La.R.S. 14:103(A)(2), which provides as follows:

Disturbing the peace is the doing of any of the following in such manner as would foreseeably disturb or alarm the public:
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(2)Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing bis lawful business, occupation, or duty; ...

The elements of the offense, as actually prosecuted, were as follows:

(1) making any noise (playing loud music);
(2) in the presence and hearing of Vala-chavic and LeBlanc;
(3) with the intent to annoy Yalachavic and LeBlanc; and
(4) in such manner as would foreseeably disturb or alarm the public.

As previously indicated, the state had the burden of proving each of these elements beyond a reasonable doubt.

Criminal intent is defined in La.R.S. 14:10 as follows:

Criminal intent may be specific or general:
(1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.
(2) 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 criminal eonse-quences as reasonably certain to result from his act or failure to act.
[Emphasis added.]

The reporter’s comment from La.R.S. 14:10 provides as follows:

This section states the two types of criminal intent generally accepted as existing in the criminal law. Both involve an adversión, or turning of the mind, to consequences. Where there is an active desire, sometimes called an ‘actual’ intent, there is no difficulty.

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Related

State v. Lavigne
623 So. 2d 1343 (Supreme Court of Louisiana, 1993)
State v. Nelson
612 So. 2d 837 (Louisiana Court of Appeal, 1992)
State v. McCoy
546 So. 2d 240 (Louisiana Court of Appeal, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
504 So. 2d 963, 1987 La. App. LEXIS 8912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-deshazo-lactapp-1987.