State Of Louisiana v. James Bourgeois

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

j` FIRST CIRCUIT

NUMBER 2019 KA 0426R

f
STATE OF LOUISIANA
r'

VERSUS

JCa JAMES BOURGEOIS

Judgment Rendered: NOV 16 2021

Appealed from the
Seventeeth Judicial District Court
In and for the Parish of Lafourche
State of Louisiana
Docket Number 569593

Honorable Steven M. Miller, Judge Presiding

Kristine Mr. Russell Counsel for Appellee
District Attorney State of Louisiana
Joseph S. Soignet
Jason Chatagnier
Assistant District Attorneys
Thibodaux, Louisiana

Thomas M. Calogero Counsel for Defendant/Appellant
Metairie, Louisiana James Bourgeois

Eric J. Santana
Metairie, Louisiana

Mark D. Plaisance
Marcus J. Plaisance
Prairieville, Louisiana

BEFORE: GUIDRY, WELCH, AND WOLFE, JJ.

GUIDRY, J.

Defendant, James Bourgeois, was charged by bill of information with filing

or maintaining a false public record, a violation of La. R.S. 14: 133. He pled not

guilty. After a trial by jury, defendant was unanimously found guilty as charged.

The trial court imposed a suspended sentence of three years imprisonment at hard

labor, with two years of active probation. Defendant appealed. This court found

the evidence was insufficient to sustain the verdict, so we reversed defendant' s

conviction and vacated the sentence. State v. Bourgeois, 19- 0426 ( La. App. 1st

Cir. 6/ 17/ 20), 306 So. 3d 465 ( Welch, J., dissenting). The State sought writs, and

the Louisiana Supreme Court reversed this court' s decision, finding the evidence

introduced by the State was sufficient for the jury to rationally find that defendant

had abandoned his domicile in Lafourche Parish and established a new domicile in

Jefferson Parish by the time he filed his election qualifying form. The court then

remanded the case to this court to consider the assignments of error in defendant' s

appeal that had been pretermitted. State v. Bourgeois, 20- 00883, p. 7 ( La.

5/ 13/ 21), 320 So. 3d 1047, 1052 ( per curiam). For the following reasons, we

affirm defendant' s conviction and sentence.

STATEMENT OF FACTS

On December 2, 2015, defendant filed a notice of candidacy qualifying form

with the Lafourche Parish Clerk of Court to run for a vacant position on the

Lafourche Parish Council. The Lafourche Parish Home Rule Charter requires that

a candidate for the council be a qualified elector who has been domiciled in the

district in which he seeks election for at least one year prior to the end of the

qualifying period. Defendant was elected to the council in April of 2016. In 2017,

the District Attorney received a complaint that defendant was not living in his

district and had not been domiciled in Lafourche Parish for the year before he

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qualified for candidacy, which ultimately resulted in the conviction challenged

herein.

ASSIGNMENT OF ERROR # 1: MOTION IN LIMINE

In his first assignment of error, defendant argues the trial court erred when it

denied his motion in limine, and subsequent objections at trial, regarding the

State' s presentation of evidence and testimony involving events occurring after

December 2, 2015, the date defendant filed his notice of candidacy qualifying

form. He asserts the only evidence relevant to his domicile is the evidence that

existed prior to the date he filed the notice of candidacy qualifying form, because

intent is formed at the time of the offense.

In response, the State argues the evidence of how defendant lived after the

December 2, 2015 filing date was relevant to establish a continued pattern of

behavior indicating defendant' s ongoing intent to abandon his domicile in

Lafourche Parish. The State highlights the Louisiana Supreme Court' s

consideration of evidence of defendant' s post -qualifying behavior in that court' s

opinion. The State concludes that the evidence was relevant and highly probative

because defendant' s continued commuting from Metairie, rather than from " his

more convenient Raceland property," demonstrated his intent to maintain a " de

facto" domicile in Metairie.

Relevant evidence is " evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence." La. C. E. art. 401. All

relevant evidence is admissible, unless subject to a constitutional, statutory, or

codal exclusion. La. C. E. art. 402. The trial court enjoys broad discretion in

admitting or excluding evidence on relevancy grounds. Under La. C. E. art. 403,

relevant evidence " may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice." State v. Dressner, 08- 1366, p. 15

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La. 7/ 6/ 10), 45 So. 3d 127, 138, cert. denied, 562 U.S. 1271, 131 S. Ct. 1605, 179

L.Ed.2d 500 ( 2011). Absent a clear abuse of discretion, rulings on relevancy of

evidence should not be disturbed on appeal. State v. Anthony, 98- 0406, p. 16 ( La.

4/ 11/ 00), 776 So. 2d 376, 387, cert. denied, 531 U.S. 934, 121 S. Ct. 320, 148

L.Ed.2d 258 ( 2000).

In denying defendant' s motion in limine, the trial court ruled it would

address objections as they arose regarding events occurring after December 2,

2015. At trial, the court held some events were relevant and others were not.

Throughout the trial, the court found information and testimony the State sought to

introduce showing defendant' s intentions regarding his domicile as relevant.

Additionally, the supreme court, in finding the State had presented evidence

sufficient to support the conviction, cited evidence occurring before December

2015. 1 Specifically, the court noted the Jefferson Parish registration of defendant' s

2015 truck, defendant' s 2014 Lafourche Parish utility bills, the August 2015

burglary of defendant' s property, and his statement to police that " he wasn' t living

at the house for a while and was thinking about having it demolished." Bourgeois,

20- 00883 at 4- 5, 320 So. 3d at 1050- 51. Following the burglary, defendant moved

the majority of his remaining guns to Jefferson Parish. Defendant' s children

attended school in Jefferson Parish during 2015. In summary, the court held:

D] efendant' s daily routine before and at the time he filed his
qualifying form supports the jury' s conclusion that defendant intended
to abandon his Lafourche Parish domicile in favor of living with his
family in the Jefferson Parish home.

Id. at 5, at 1051.

Defendant is correct when he explains the post -qualifying conduct was not

criminal and not an integral part of the offense charged. Specifically, defendant

1 We recognize that in citing this evidence, the supreme court was not making a judgment about
the validity of the trial court' s admission of post -qualification evidence.

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posits that "[ t]here is no connexity between the 2015 qualifying date and 2017

travel."

The crux of the matter before us is the admission of " benign acts" as

opposed to " bad acts." As noted above, the analysis for the admission of otherwise

innocuous evidence falls under La. C. E. arts. 401- 403 and the wide discretion

permitted trial courts to make those determinations. See Dressner, 08- 1366 at 15,

45 So. 3d at 138. This being the case, the trial court did not err when it admitted

into evidence details regarding non -criminal acts that were probative as to

defendant' s knowledge or absence of mistake when he chose to file false

documents to qualify for an elected office in Lafourche Parish after having

changed his domicile to Jefferson Parish. The post -qualification evidence

presented at trial was relevant to and supported defendant' s conviction, while also

not being unduly prejudicial. La. C. E. arts. 402 and 403.

Additionally, though not directly applicable here, the law of other crimes

evidence is instructive. Louisiana Code of Evidence article 404( B) provides

narrow exceptions for the introduction of "bad acts" evidence that may otherwise

unduly prejudice the defendant, but is so probative as to be admissible. See State

v. Coleman, 14- 0402, pp. 68- 69 ( La. 2/ 26/ 16), 188 So. 3d 174, 222- 23, cert.

denied, U.S. , 137 S. Ct. 153, 196 L.Ed.2d 116 ( 2016) ( citing La. C. E. art.

404( B)); see also State v. Ta lor, 01- 1638, p. 17 ( La. 1/ 14/ 03), 838 So. 2d 729,

745, cert. denied, 540 U.S. 1103, 124 S. Ct. 1036, 157 L.Ed.2d 886 ( 2004)

Although all evidence of other crimes is prejudicial to defendant, the other

crimes evidence was necessary to give the jury a complete picture of

the events which gave rise to the instant offense and led to the defendant' s ultimate

arrest along with a context within which to evaluate defendant' s assertions ....");

State v. Swan, 18- 0320, p. 27 ( La. App. 1st Cir. 12/ 17/ 18), 2018 WL 6599023, at

15 ( unpublished), writ denied, 19- 0151 ( La. 5/ 20/ 19), 271 So. 3d 1270 (" Res

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gestae events constituting other crimes are deemed admissible because they are so

nearly connected to the charged offense that the State could not accurately present

its case without reference to them."). Moreover, even bad acts occurring after the

offense can still be relevant, not unduly prejudicial, and therefore admissible. See

State v. Altenberger, 13- 2518, p. 11 ( La. 4/ 11/ 14), 139 So. 3d 510, 517 ( per

curiam) ("[ T] he mere fact this criminal conduct occurred after the underlying

offense does not preclude its admission or detract from its relevance in [ regard] to

the numerated exceptions of La. C. E. art. 404( B)."). As this exception exists for

other crimes evidence, which has long been recognized as posing a " substantial

risk of grave prejudice to a defendant" by presenting the offender in a bad light,2

we see no reason for holding evidence without such potential inadmissible for

similar purposes as allowed under La. C. E. art. 404( B).

Furthermore, even if admitted in error, the introduction of additional,

consistent, and cumulative post -qualifying 2015 evidence did not have such a

prejudicial effect on the jury so as to unduly influence its verdict. See State v.

Stockstill, 19- 01235, p. 7 ( La. 10/ 1/ 20), _ So. 3d , 2020 WL 6145223, at * 4

per curiam) (" Erroneous admission of evidence requires reversal only where there

is a reasonable possibility that the evidence might have contributed to the

verdict."). Consequently, the trial court did not abuse its considerable discretion,

and this assignment of error is without merit

ASSIGNMENT OF ERROR # 2: IMPROPER JURY CHARGE.

In his second assignment of error, defendant argues the trial court

improperly instructed the jury as to the definition of " domicile." After being

charged and during deliberations, the jury asked for the definition of the word three

2 See State v. Prieur, 277 So. 2d 126, 128 ( La. 1973). It has commonly been recognized that
other crimes evidence has the potential to portray the offender as a bad person or a person of
criminal character. See Altenberger, 13- 2518 at 7- 8, 139 So. 3d at 515; see also Taylor, 01-
1638 at 17, 838 So. 2d at 745 ("[ A] 11 evidence of other crimes is prejudicial to defendant").

separate times. Defendant concedes no objection was made to the jury instructions

as originally given, but defense counsel did object upon the third jury request when

counsel realized that the words " in place" had been added to the instructions that

were read to the jury.

The State contends that defendant waived the error by not objecting to the

instruction before it was read to the jury. The State further contends that the trial

court' s addition of the words " in place" did not rise to a misstatement of the law

nor " was it likely to mislead the jury on the definition of domicile."

Pursuant to La. C. Cr.P. art. 802( 1), the court shall charge the jury as to the

law applicable to the case. Louisiana Code of Criminal Procedure article 807

provides, in pertinent part, "[ t]he State and the defendant shall have the right

before argument to submit to the court special written charges for the jury. Such

charges may be received by the court in its discretion after argument has begun."

It further provides, "[ a] requested special charge shall be given by the court if it

does not require qualification, limitation, or explanation, and if it is wholly correct

and pertinent. It need not be given if it is included in the general charge or in

another special charge to be given."

The ruling of the trial court on an objection to a portion of its charge to the

jury will not be disturbed unless the disputed portion, when considered in

connection with the remainder of the charge, is shown to be both erroneous and

prejudicial. State v. Owens, 03- 2838, p. 4 ( La. App. 1 st Cir. 9/ 17/ 04), 888 So. 2d

239, 241, writ denied, 04- 2807 ( La. 3/ 11/ 05), 896 So. 2d 64. Some erroneous jury

instructions are subject to harmless error review. State v. Frank, 09- 2273, p. 6 ( La.

App. 1st Cir. 9/ 10/ 10), 2010 WL 3518055, at * 3 ( unpublished), writ denied, 11-

0270 ( La. 2/ 3/ 12), 79 So. 3d 322; see also State v. Jynes, 94- 0745, pp. 14- 15 ( La.

App. 5th Cir. 3/ 1/ 95), 652 So. 2d 91, 98. The question becomes whether it appears

beyond a reasonable doubt the erroneous instruction did not contribute to the jury' s

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finding of guilt or whether the error is unimportant in relation to everything else

the jury considered, as revealed in the record. See State v. Cooper, 05- 2070, p. 9

La. App. 1st Cir. 5/ 5/ 06), 935 So. 2d 194, 200, writ denied, 06- 1314 ( La.

11/ 22/ 06), 942 So. 2d 554. Stated another way, the appropriate standard for

determining harmless error is whether the guilty verdict was surely unattributable

to the jury charge error. See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct.

20785 2081, 124 L.Ed. 2d 182 ( 1993); State v. Revish, 15- 0470, 15- 0471, p. 10 ( La.

App. 1st Cir. 11/ 9/ 15), 185 So. 3d 8, 15, writ denied, 15- 2247 ( La. 5/ 20/ 16), 191

So. 3d 1066 (" The question becomes whether it appears beyond a reasonable doubt

that the erroneous instruction did not contribute to the jury' s finding of guilt or

whether the error is unimportant in relation to everything else the jury

considered[.]"); State v. Mickey, 14- 1471, p. 5 ( La. App. 1st Cir. 4/ 29/ 15), 2015

WL 2062562, at * 2 ( unpublished), writ denied, 15- 1077 ( La. 4/ 15/ 16), 191 So. 3d

1034.

The trial court gave the following jury instruction regarding domicile:

Under Louisiana law, domicile is defined as a person' s

principal or habitual place of residence. Domicile essentially consists

of two elements, namely residence and the intent to remain in place.
Residence and domicile are not synonymous. A person can have
several residences but only one domicile.A person may reside in
several places but may not have more than one domicile. In the
absence of a habitual residence, any place of residence may be
considered one' s domicile at the option of persons whose interests are
affected. Spouses may either have a common domicile or separate
domiciles. [ Emphasis added.]

During deliberations, the jury asked three more times for the definition of

domicile." In its second request for the definition of "domicile," the jury asked

that the definition be provided in writing, and the trial court denied the request.

The third time the jury requested the definition, defendant objected to the inclusion

of "in place" following " intent to remain." After observing that the language had

been agreed upon after " conferences, plural" and further finding the words to be

surplusage," the trial court read aloud the same jury instruction again.

As an initial matter, as acknowledged by defendant, he did not object to the

jury instruction on domicile before it was first read. The State filed three proposed

instructions regarding domicile with the court on September 10, 2018, the first day

of trial. Defendant only contested the language regarding witness credibility and

truthfulness. The failure to make a contemporaneous objection to jury instructions

waives review of those jury instructions on appeal. See La. C. Cr.P. arts. 801( C)

and 841; State v. Williams, 17- 0585, p. 4 ( La. App. 1st Cir. 11/ 16/ 17), 236 So. 3d

6041 607. However, jury instructions may be reviewed on appeal despite the lack

of a contemporaneous objection when the alleged error violates a fundamental due

process right. State v. McCasland, 16- 1178, P. 13 ( La. App. 1st Cir. 4/ 18/ 17), 218

So. 3d 1119, 1129, writ not considered, 17- 0823 ( La. 3/ 2/ 18), 269 So. 3d 706. As

no fundamental due process right was violated, defendant arguably waived the

claim by untimely objecting to the instruction after it had already been twice

provided to the jury.

Here, even assuming arguendo that defendant did not waive his complaint

by not objecting to the alleged erroneous instruction until after it had already been

read to the jury twice, he does not show how the inclusion of the words " in place"

rendered the guilty verdict attributable to the " surplusage." The trial court' s jury

instruction is consistent with Louisiana jurisprudence. See Landiak v. Richmond,

05- 0758, pp. 8- 9 ( La. 3/ 24/ 05), 899 So. 2d 535, 542. It is without question that the

determination of the jury hinged on the meaning of the word " domicile"; however,

the State' s contention, supported by testimony and other evidence adduced at trial,

indicated defendant' s ongoing intention to remain in Metairie, even if he continued

to own and visit the Raceland address. As found by the Louisiana Supreme Court,

the State presented evidence sufficient to find defendant had purposefully changed

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his domicile to habitually reside with his second wife and their respective children.

See Bourgeois, 20- 00883 at 5, 320 So. 3d at 1051. Defendant fails to show how

the inclusion of the two words, " in place" undermines confidence in the jury' s

conclusion. The trial court did not err, and this claim is without merit.

CONVICTION AND SENTENCE AFFIRMED.

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