State of Louisiana Versus Randy Fink

STATE OF LOUISIANA NO. 20-KP-139

VERSUS FIFTH CIRCUIT

RANDY FINK COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-5357, DIVISION "K"
HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

June 01, 2020

ROBERT A. CHAISSON
JUDGE

Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and Robert A. Chaisson

WRIT DENIED; CONVICTIONS AND SENTENCES AFFIRMED
RAC
SMC
JGG

COUNSEL FOR PLAINTIFF/RESPONDENT,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler

DEFENDANT/RELATOR,
RANDY FINK
In Proper Person

CHAISSON, J.

Defendant, Randy Fink, seeks supervisory review of his three misdemeanor

convictions. He specifically challenges the sufficiency of the evidence used to

convict him, various evidentiary rulings, and the imposition of a non-expiring

protective order.1 For the reasons that follow, we deny defendant’s writ

application and affirm his convictions and sentences.

FACTS AND PROCEDURAL HISTORY

On October 9, 2018, the Jefferson Parish District Attorney filed a bill of

information charging defendant with three misdemeanors: domestic abuse battery

of Nicole Keating, in violation of La. R.S. 14:35.3 (count one), simple battery of

Nicole Bourgeois, in violation of La. R.S. 14:35 (count two), and violation of a

protective order issued on August 22, 2018, in violation of La. R.S. 14:79 (count

three). On October 17, 2019, defendant proceeded to a judge trial.

Several witnesses testified at trial about the circumstances surrounding the

charged offenses. Ms. Keating, defendant’s former girlfriend and the victim in

count one, testified that she met defendant in 2014, and that they began a

relationship and eventually moved in together. According to Ms. Keating, she

broke up with defendant on August 16, 2018,2 and later that same night, she went

with her friend, Nicole Bourgeois, to the Caddyshack Bar in Jefferson Parish for

dinner and drinks. At some point during the evening, Ms. Keating went to the

women’s restroom, and as she was closing the door to the stall, defendant pushed

the stall door open.3 Ms. Keating explained that when she tried to leave, defendant

put one of his hands by her clavicle, pushed her back, and told her that she was not

leaving and that he wanted to have sex in the restroom. Ms. Keating then heard

1
We note that both the trial court at sentencing and defendant in this writ application refer to this order as a
“permanent stay away order.”
2
Ms. Keating claimed that on that day, she and defendant were at a storage unit and that while defendant was in the
storage locker, she saw her opportunity to leave. She went to the front of the unit, called her father to pick her up,
and then had him drop her off at her aunt’s house.
3
Ms. Keating testified that she did not invite defendant to go to the Caddyshack Bar that evening and did not realize
he was there until he followed her into the restroom.

someone come into the restroom and asked that person to get “Gab,” who is Nicole

Bourgeois.

During her trial testimony, Ms. Keating relayed that Ms. Bourgeois came

into the restroom and tried to pull her out of the stall. Although defendant pushed

Ms. Keating back, she eventually escaped. At trial, Ms. Keating testified that she

felt trapped, scared, and in danger. Further, she asserted that she had marks as a

result of defendant’s actions and identified a photograph of herself that reflected

redness in the area where defendant had placed his hands on her.

Ms. Bourgeois, the victim in count two, testified at trial and corroborated

Ms. Keating’s testimony that on August 16, 2018, the two women went to the

Caddyshack Bar for dinner and drinks. According to Ms. Bourgeois, at some point

during the evening, one of the employees approached her and told her that there

was a gentleman in the restroom with her friend. When Ms. Bourgeois entered the

restroom, she saw defendant cornering Ms. Keating in a stall. Ms. Bourgeois

explained that Ms. Keating was up against the wall in the corner of the stall, and

defendant was standing in front of her with his back to the door. Ms. Bourgeois

asked defendant what he was doing there, pushed the stall door open, and pulled

Ms. Keating out of the stall. Ms. Bourgeois, who was standing between Ms.

Keating and defendant, then pushed Ms. Keating out of the restroom. As Ms.

Bourgeois did so, defendant put one hand around the bottom part of her neck,

pushed her against the wall, and threatened to hurt her and her children if she tried

to keep Ms. Keating away from him. Ms. Bourgeois then ran out the restroom and

called 9-1-1.

Deputy Chase Matte of the Jefferson Parish Sheriff’s Office responded to the

call. At trial, Deputy Matte testified that he arrived at the Caddyshack Bar in the

early morning hours of August 17, 2018, in response to the call of a disturbance

and possible protective order violation. Upon his arrival, he observed several

2

people in front of the bar pointing towards defendant. Deputy Matte approached

defendant, brought him across the street to his patrol car, detained him with

handcuffs, and advised him of his Miranda4 rights.

After isolating defendant, Deputy Matte identified and spoke to the two

complainants, Ms. Keating and Ms. Bourgeois. He described both women as

slightly intoxicated but maintained that they were “coherent enough” and were able

to speak with him clearly about the events that took place. Deputy Matte testified

that he did not observe any visible injuries to Ms. Keating at the scene; however,

when he was reviewing the photographs taken the night of the incident, he did

notice some marks on Ms. Keating’s neck. With regard to Ms. Bourgeois, Deputy

Matte testified that he did observe redness around her neck when he talked to her at

the scene.

During the course of his investigation at the scene, Deputy Matte obtained

written statements from both Ms. Keating and Ms. Bourgeois, and he also learned

that there was no protective order in effect against defendant at the time. However,

Deputy Matte nonetheless arrested defendant for domestic abuse battery of Ms.

Keating and simple battery of Ms. Bourgeois and transported him to the Jefferson

Parish Correctional Center.

At trial, evidence was also presented that subsequent to the incident at the

Caddyshack Bar, a protective order was issued against defendant in favor of Ms.

Keating, which was effective from August 22, 2018, until November 22, 2018.

The order, which was introduced at trial, directed defendant not to contact, abuse,

harass, stalk, monitor, or track Ms. Keating, or go within two hundred feet of her

or one hundred yards of her residence.

Deputy Paul Lalla of the Jefferson Parish Sheriff’s Office testified regarding

his arrest of defendant for violation of this order. In particular, Deputy Lalla

4
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
3

relayed that on August 29, 2018, at approximately 5:30 a.m., he investigated a

suspicious person complaint at Ninth Street and Severn Avenue in Jefferson

Parish. Upon his arrival to this area, he came into contact with an individual,

identified in court as defendant, straddling his bicycle on the corner. Defendant

told the officer that he had Ubered his bicycle and himself to that location and that

he was just exercising and riding around waiting for a job interview.

Deputy Lalla collected identifying information from defendant, ran his name

through the Arms and Mobile Cop, and discovered that there was a protective

order for a person using a Ninth Street location. After he confirmed that the

protective order was still in effect for that address, he arrested defendant, read him

his rights, and transported him to jail. During his testimony, after viewing a

Google map of the area, Deputy Lalla confirmed that defendant was within

approximately one hundred yards from the house encompassed by the protective

order.

After the State presented its case, defendant relayed his version of events.

According to defendant, the night prior to the Caddyshack incident, he and Ms.

Keating went to the Caddyshack Bar and then spent the night together at a hotel.

The following morning, they went to the storage locker, and defendant noticed that

Ms. Keating started acting “weird” and distant. Defendant did not know where

Ms. Keating went and was concerned about her, so later that evening, he went to

the Caddyshack Bar to try to find her and talk to her about the status of their

relationship. At trial, defendant maintained that he did not think that they were

broken up when he went looking for her at the Caddyshack Bar.

Once in the bar, he observed Ms. Keating in the back shooting darts. When

Ms. Keating passed him, he followed her into the restroom to talk to her. As he

was in the stall talking to Ms. Keating, Ms. Bourgeois came in, told defendant to

get out, reached into the stall, and pulled Ms. Keating out. Defendant testified that

4

after Ms. Bourgeois pulled Ms. Keating out of the stall, he walked outside the

restroom and was asked to leave by the manager. Defendant then left the bar and

went outside.

At trial, defendant admitted that he did reach for Ms. Keating’s hand to hold

it as he was talking to her, but he denied touching her chest, pushing, hitting, or

choking her that night. With regard to Ms. Bourgeois, defendant denied that he

grabbed, hit, choked, physically abused, punched, or pushed her and also denied

threatening Ms. Bourgeois and her children.

With regard to the protective order, defendant admitted that on August 29,

2018, he went to Severn Avenue because he thought Ms. Keating was cheating on

him. He relayed that he saw a car in front of her house, which confirmed his

suspicion about her cheating. Defendant maintained that he did not go in front of

her house, that he stayed one hundred yards away, that he did not have any

weapons, and that he “had no intentions of doing anything.”

After considering the testimony and evidence presented, the trial court found

defendant guilty as charged. On October 24, 2019, the trial court imposed a

sentence of six months on each count to run concurrently, suspended all but forty-

eight hours of the sentence, and placed defendant on active probation for two years

subject to various conditions. In addition, the trial court imposed a non-expiring

protective order directing defendant to have absolutely no contact with Ms.

Keating.

Defendant thereafter filed a motion for appeal, which was granted by the

trial court. On March 20, 2020, this Court dismissed defendant’s appeal for lack of

jurisdiction but reserved his right to file an application for a supervisory writ of

review in compliance with U.R.C.A. Rule 4-1 et seq. See State v. Fink, 20-115

(La. App. 5 Cir. 3/20/20), __ So.3d __. In response to this Court’s opinion,

defendant has filed the instant writ application.

5

DISCUSSION

In his writ application, defendant challenges the sufficiency of the evidence

used to convict him, various evidentiary rulings, and the imposition of a non-

expiring protective order.

Sufficiency of the Evidence

In his writ application, defendant challenges the sufficiency of the evidence

used to convict him of all three offenses. In reviewing the sufficiency of evidence,

an appellate court must determine that 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. Neal, 00-

674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323,

152 L.Ed.2d 231 (2002).

In the present case, defendant was convicted of domestic abuse battery of

Nicole Keating, his former live-in girlfriend. La. R.S. 14:35.3(A) defines domestic

abuse battery as “the intentional use of force or violence committed by one

household member or family member upon the person of another household

member or family member.” Criminal intent may be specific or general. La. R.S.

14:10. La. R.S. 14:35.3 does not state the level of intent to be proven. In the

absence of qualifying provisions, the terms “intent” and “intentional” refer to

“general criminal intent.” La. R.S. 14:11; State v. Gatewood, 12-281 (La. App. 5

Cir. 10/30/12), 103 So.3d 627, 631-32.

Defendant was also convicted of simple battery of Nicole Bourgeois.

Simple battery is defined in La. R.S. 14:35(A) as a battery committed without the

consent of the victim. A battery is defined in La. R.S. 14:33, in pertinent part, as

the “intentional use of force or violence upon the person of another.”

6

In the present case, we find that the State sufficiently proved the elements of

these offenses, as set forth in the defining statutes. At trial, Ms. Keating testified

that she and defendant were involved in a relationship for several years and lived

together. Ms. Keating stated that on August 16, 2018, she ended her relationship

with defendant, and later that evening, she went to the Caddyshack Bar with her

friend, Ms. Bourgeois. At some point during the evening, defendant followed Ms.

Keating into the women’s restroom and cornered her in one of the stalls.

According to Ms. Keating, when she tried to leave, defendant put one of his

hands on her clavicle, pushed her back, and told her she was not leaving. She

further testified that as Ms. Bourgeois tried to pull her out of the stall, defendant

pushed her again. Ms. Keating testified that she felt trapped, scared, and in danger,

and that she did not consent to defendant pushing her. She also testified that she

had marks as a result of defendant’s actions and identified a photograph of herself

that reflected redness in the area where defendant had placed his hands on her.

Ms. Bourgeois testified that at some point during the evening, one of the

employees approached her and told her that there was a gentleman in the restroom

with her friend. When Ms. Bourgeois entered the restroom, she saw defendant

cornering Ms. Keating in a stall. Ms. Bourgeois explained that Ms. Keating was

up against the wall in the corner of the stall, and defendant was standing in front of

her with his back to the door. Ms. Bourgeois pushed the stall door open and pulled

Ms. Keating out of the stall. Ms. Bourgeois, who was standing between Ms.

Keating and defendant, then pushed Ms. Keating out of the bathroom, at which

point defendant put one hand around the bottom part of her neck, pushed her

against the wall, and threatened to hurt her and her children if she tried to keep Ms.

Keating away from him. Deputy Matte testified that he observed redness around

Ms. Bourgeois’ neck when he talked to her at the scene. In addition, he identified

7

some redness below her neck in the photograph that was taken of Ms. Bourgeois

the night of the incident.

In his writ application, defendant does not seem to focus on the State’s

failure to prove any essential element; rather, his primary complaint revolves

around the credibility determinations of the trial court. Defendant asserts that this

is a classic case of “he said she said, with little to no evidence to support the

allegations.” He contends that Ms. Keating and Ms. Bourgeois were clearly not

credible. He particularly notes that they were intoxicated the night of the incident

at the Caddyshack Bar and only made the battery allegations after it was

discovered there was no protective order in place. In addition, he notes Deputy

Matte’s testimony that he did not observe any injuries on Ms. Keating the night of

the incident, as well as inconsistencies in statements given by the victims at the

time of the incident and at trial.

In the present case, the trial judge considered the testimony of the witnesses

and any inconsistencies therein and obviously found the State’s witnesses to be

more credible than defendant. 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 witnesses will not be reweighed on

appeal. State v. Rowan, 97-21 (La. App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

Considering the testimony and evidence presented at trial, we find that a

rational trier of fact could have found the evidence was sufficient under the

Jackson standard to support defendant’s convictions for domestic abuse battery

and simple battery.

We now turn our attention to the sufficiency of the evidence for defendant’s

conviction of violation of a protective order. Defendant does not contest that there

was a protective order in effect, nor does he contest that he was in the vicinity of

Ms. Keating’s house. Rather, defendant challenges Deputy Lalla’s estimate that he

8

was within one hundred yards of Ms. Keating’s residence, specifically noting that

the officer did not actually measure the distance.

In the present case, the trial court heard the officer’s testimony that

defendant was within one hundred yards of Ms. Keating’s house. Deputy Lalla

testified that he was familiar with the area as it was within his patrol area for the

prior three and a half years and that his estimate of the distance was based upon his

knowledge of houses and construction and general knowledge of distance and

feet.5 We find Deputy Lalla’s testimony sufficient to establish that defendant was

located within one hundred yards of Ms. Keating’s residence. Accordingly, we

find that the evidence presented was likewise sufficient under the Jackson standard

to support defendant’s conviction for violation of a protective order.

Evidentiary Rulings

In his writ application, defendant complains that “there are many errors in

the trial involving objections relative to testimony and evidence being allowed.”

In the present case, defendant did not properly brief this issue. Rule 4-5 of

the Uniform Rules - Courts of Appeal sets forth the items necessary for a proper

submission of a writ application and specifically provides that the writ application

should contain the assignments or specifications of errors and a memorandum in

support of the application, in accordance with Rules 2-12.2 and 2-12.10. U.R.C.A.

Rule 4-5(C)(5). Further, Rule 2-12.4(A)(9)6 states, in part, that the appellant’s

brief shall include the argument, which shall contain:

(a) appellant’s contentions, with reference to the specific page
numbers of the record and citations to the authorities on which the
appellant relies,

5
Although Deputy Lalla marked on a Google map printout the location of Ms. Keating’s residence and the location
where he encountered defendant, the trial court admitted that exhibit only for the purpose of showing the map of the
area, not for purposes of scale.
6
We recognize that U.R.C.A. Rule 2-12.4 relates to appeal briefs; however, U.R.C.A. Rule 4-8 specifically
provides: “The Rules of the court pertaining to appeals and not conflicting with Rules specifically pertaining to
applications for writs, when applicable and insofar as practicable, shall govern writ applications and the disposition
thereof.”

9

(b) for each assignment of error and issue for review, a concise
statement of the applicable standard of review, which may appear
in the discussion or under a separate heading placed before the
discussion[,] …

In the present case, defendant did not properly assign or brief his arguments

relating to the trial court’s evidentiary rulings. He merely listed the page numbers

and substance of the portions of the transcript, in outline form, that related to his

claims of evidentiary errors and insufficient evidence.7 He did not set forth

specific assignments of error, did not present arguments, and failed to cite any

authority for his complaints regarding the trial court’s evidentiary rulings. Given

these deficiencies, we consider defendant’s claims relating to the evidentiary

rulings abandoned.8

Imposition of Non-Expiring Protective Order

In the present case, the trial court, at sentencing, imposed a non-expiring

protective order directing defendant to have absolutely no contact with Ms.

Keating and particularly ordered defendant “NOT TO abuse, harass, assault, stalk,

follow, track, monitor, or threaten” her. Defendant asserts that the non-expiring

protective order does not fit the crimes, and requests that, in the event his

convictions are not overturned, the stay away order be reduced to two years as

originally requested by the State.

La. R.S. 46:2136(F)(2)(a) specifically provides:

For any protective order granted by the court which directs the
defendant to refrain from abusing, harassing, or interfering with the
person as provided in R.S. 46:2135(A)(1), the court may grant the
order to be effective for an indefinite period of time as provided by
the provisions of this Paragraph on its own motion or by motion of the
petitioner. The indefinite period shall be limited to the portion of the
protective order which directs the defendant to refrain from abusing,

7
We note that defendant also failed to properly brief his claims relating to the sufficiency of the evidence used to
convict him. Nonetheless, we have reviewed the issue of insufficient evidence, in accordance with State v. Raymo,
419 So.2d 858, 861 (La. 1982).
8
La. C.E. art. 103 (A)(2) provides: “Error may not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected, and … [w]hen the ruling is one excluding evidence, the substance
of the evidence was made known to the court by counsel.” In the present case, even had defendant’s arguments
been properly briefed, we note that he failed to proffer any testimony or evidence after the trial court’s rulings
excluding evidence. See U.R.C.A. Rule 2-12.4(A)(9)(c).
10

harassing, or interfering with the person as provided in R.S.
46:2135(A)(1).

Based on the foregoing, we find that the trial court did not abuse its

discretion or exceed its authority in imposing a non-expiring protective order under

the circumstances of this case. Further, we note that La. R.S. 46:2136(D)(2) states,

“On motion of any party, after a hearing, the court may modify the effective period

of a protective order pursuant to Paragraph (F)(2) of this Section.”

CONCLUSION

For the reasons set forth herein, we deny defendant’s writ application and

affirm his convictions and sentences.

WRIT DENIED; CONVICTIONS
AND SENTENCES AFFIRMED

11

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN 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

(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
JUNE 1, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

20-KP-139
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE)
THOMAS J. BUTLER (RESPONDENT)

MAILED
RANDY FINK (RELATOR) HONORABLE PAUL D. CONNICK, JR.
IN PROPER PERSON (RESPONDENT)
222 NICKLAUS DRIVE DISTRICT ATTORNEY
SLIDELL, LA 70458 TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053