State Of Louisiana v. Jonathan Richardson

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 KA 1161

STATE OF LOUISIANA

VERSUS

V
JONATHAN S. RICHARDSON

Judgment Rendered: MAY 1 12020

On Appeal from the
Twenty -Second Judicial District Court
In and for the Parish of Washington
State of Louisiana
Trial Court No. 18- CR10- 138328

The Honorable William H. Burris, Judge Presiding

Lieu T. Vo Clark Attorney for Defendant/Appellant,
Mandeville, Louisiana Jonathan S. Richardson

Warren L. Montgomery Attorneys for Appellee,
District Attorney State of Louisiana
J. Bryant Clark
Assistant District Attorney
Covington, Louisiana

BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.

PENZATO, I

The defendant, Jonathan S. Richardson, was charged by felony bill of

information with failure to comply with provisions of supervised release, in

violation of La. R.S. 15: 561. 7( A). See also La. R.S. 15: 561. 2 and La. R.S.

15: 561. 5. He pled not guilty. After a trial by jury, the defendant was found guilty

as charged. The trial court denied the defendant' s amended motion for post -verdict

judgment of acquittal and amended motion for new trial but granted the

defendant' s motion to quash the habitual offender bill of information filed by the

State pursuant to La. R. S. 15: 529. 1. The defendant was sentenced to four years

imprisonment at hard labor without the benefit of probation, parole, or suspension

of sentence. The defendant now appeals, assigning error to the sufficiency of the

evidence to support the verdict and to the trial court' s denial of his amended

motion for post -verdict judgment of acquittal. For the following reasons, we

reverse the conviction and vacate the sentence.

STATEMENT OF FACTS

On March 31, 2018, Agent Kevin Kulivan, a sex offender specialist of the

Department of Public Safety and Corrections assigned to monitor the defendant

upon his release from prison, conducted a field visit at the defendant' s residence.

At trial, Agent Kulivan testified that due to the defendant' s prior sex offenses,

thirty counts of distribution of child pornography, his target for the field visit was a

computer-related search in order to prevent any further offenses. Upon his arrival,

Agent Kulivan asked to see the defendant' s computer, and the defendant complied.

Agent Kulivan noted that the computer, a laptop, had plug- in devices and flash

drives attached. As Agent Kulivan perused the photographs on the computer, he

noticed an article, saved on one of the attached flash drives, entitled, " Why do girls

become so f -----
g horrible when they grow up?". The article featured side- by- side

images of an adult female and a juvenile girl with an annotation, in part, describing

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little girls as having " innocent, virginal, angelic looks," while describing adult girls

as " overly sexual, bodies look like pornstars."

The article prompted Agent Kulivan to continue searching the computer.

Agent Kulivan attempted to access the internet search history to see when and from

where the article was obtained, but the history list was blank. The defendant

informed Agent Kulivan that the private browsing feature was enabled and

prevented the web browser from saving any history. Thus, Agent Kulivan was

unable to view any search or content history for the computer or its attachments.

Agent Kulivan reported his findings to his supervisor, and the defendant was

arrested for the instant offense on April 2, 2018.

SUFFICIENCY OF THE EVIDENCE

In a combined argument in support of both assignments of error, the

defendant contends that the State failed to prove beyond a reasonable doubt that he

had been convicted of a qualifying predicate felony that would subject him to the

conditions of supervised release. The defendant contends that the State offered

only the " equivocating" testimony of Agent Kulivan without any documentary

proof of a predicate. The defendant notes that Agent Kulivan initially testified that

the defendant was subject to monitoring pursuant to supervised release because he

had a prior sex offense in which the victim was under thirteen. However, when

asked specifically the crime for which defendant was convicted, he responded

t]hirty counts of distribution of child pornography." The defendant notes that the

State failed to offer a bill of information and certified minutes to prove that he was

legally required to be subjected to supervised release pursuant to La. R.S. 15: 561 et

seq. The defendant further contends that his pre -sentence investigation report

shows that he is factually innocent of the instant offense, claiming that his sole

felony conviction listed therein was not for a sex offense involving a victim under

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the age of thirteen.' Thus, the defendant argues that the trial court should have

granted his amended motion for post -verdict judgment of acquittal and that his

conviction should be reversed.

The standard of review for the sufficiency of the evidence to uphold a

conviction is whether, 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789, 61 L.Ed.2d 560, 573 ( 1979). See also La. Code Crim. P. art. 821( B);

State v. Ordodi, 2006- 0207 ( La. 11/ 29/ 06), 946 So. 2d 654, 660; State v. Jackson,

2018- 0261 ( La. App. 1st Cir. 11/ 2/ 18), 265 So. 3d 928, 933, writ denied, 2018-

1969 ( La. 4/ 22/ 19), 268 So. 3d 304. The Jackson standard of review, incorporated

in Article 821, is an objective standard for testing the overall evidence, both direct

and circumstantial, for reasonable doubt. State v. Cole, 2019- 0033 ( La. App. 1st

Cir. 9/ 27/ 19), 288 So. 3d 146, 156.

Circumstantial evidence consists of the proof of collateral facts and

circumstances from which the existence of the main fact may be inferred according

to reason and common experience. State v. Duncan, 2002- 0509 ( La. App. 1 st Cir.

9/ 27/ 02), 835 So. 2d 623, 630, writ denied, 2003- 0600 ( La. 3/ 12/ 04), 869 So. 2d

812. When analyzing circumstantial evidence, La. R.S. 15: 438 provides that the

fact finder must be satisfied that the overall evidence excludes every reasonable

hypothesis of innocence. See State v. Patorno, 2001- 2585 ( La. App. 1st Cir.

6/ 21/ 02), 822 So. 2d 141, 144. When a case involves circumstantial evidence and

the trier of fact reasonably rejects the hypothesis of innocence presented by the

defense, that hypothesis falls, and the defendant is guilty unless there is another

hypothesis which raises a reasonable doubt. State v. Dyson, 2016- 1571 ( La. App.

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This document was prepared subsequent to the trial and filed in the record following
sentencing. Despite defendant' s contention, it is not evidence and, therefore, ultimately not
considered by this court.

M

1st Cir. 6/ 2/ 17), 222 So. 3d 220, 228, writ denied, 2017- 1399 ( La. 6/ 15/ 18), 257

So. 3d 685. Unless there is internal contradiction or irreconcilable conflict with the

physical evidence, the testimony of a single witness, if believed by the fact finder,

is sufficient to support a factual conclusion. State v. Marshall, 2004- 3139 ( La.

11/ 29/ 06), 943 So. 2d 362, 369, cert. denied, 552 U.S. 905, 128 S. Ct. 239, 169

L.Ed.2d 179 ( 2007).

Here, the defendant was convicted of violating La. R.S. 15: 561. 7( A), by

failing to comply with the conditions of supervised release. The offense of failure

to comply with the conditions of supervised release is governed by several statutes.

State v. Lowrey, 2017- 399 ( La. App. 3rd Cir. 10/ 4/ 17), 228 So. 3d 779, 782. In

State v. Trosclair, 2011- 2302 ( La. 5/ 8/ 12), 89 So. 3d 340, 344, the Louisiana

Supreme Court observed that La. R.S. 15: 561 through 15: 561. 7, added by La. Acts

2006, No. 242, § 1, effective August 15, 2006, provides for supervised release of

certain sex offenders who committed their crimes upon children under thirteen

years of age. The court noted that in La. R.S. 15: 561, the Legislature set forth

numerous findings associated with the enactment of the supervised release laws

with regard to sex offenders. Trosclair, 89 So. 3d at 344- 45. Louisiana Revised

Statute 15: 561. 1 specifically provides that the supervised release provisions pertain

to any person convicted, on or after [ the effective date of the act], of a sex offense

as defined in [ La.] R.S. 15: 541 when the victim is under the age of thirteen years."

Supervised release is administered by the Department of Public Safety and

Corrections, division of probation and parole, and supervised release officers have

the powers and duties of parole officers. La. R.S. 15: 561. 3. Louisiana Revised

Statute 15: 561. 4 " directs the trial court at sentencing as well as the Department of

Public Safety and Corrections to inform the offender he will be placed on

supervised release and of the conditions of supervision." Trosclair, 89 So. 3d at

345. Louisiana Revised Statute 15: 561. 5 sets forth numerous conditions of

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supervised release.
The Department of Public Safety and Corrections is required to

adopt rules necessary to implement the provisions of supervised release. La. R.S.

15: 561. 6. Louisiana Revised Statute 15: 561. 7 provides the penalties for failing to

comply with the conditions of supervised release as follows:

A. A person who fails to comply with the conditions of supervised
release as provided for in [ La.] R.S. 15: 561. 5 shall, upon first
conviction, be fined not more than one thousand dollars and

imprisoned with hard labor for not less than two years nor more than
ten years without benefit of parole, probation, or suspension of

sentence.

B. Upon second or subsequent convictions, whoever fails to comply
with the conditions of supervised release as provided for in [ La.] R.S.
15: 561. 5 shall be fined three thousand dollars and imprisoned with
hard labor for not less than five years nor more than twenty years
without benefit of parole, probation, or suspension of sentence.

As noted by both Trosclair, 89 So.3d at 346 and Lowery, 228 So. 3d at 782,

La. R.S. 15: 561. 2 governs the commencement and duration of supervision.

Pursuant to La. R.S. 15: 561. 2( A),

a] person convicted on or after August 15, 2006, of a sex

offense as defined in [ La.] R. S. 15: 541 when the victim is under the
age of thirteen years shall be placed upon supervised release as
provided for by this Chapter whenever he is released from the
custody of the Department of Public Safety and Corrections upon the
expiration of his sentence. ( Emphasis added).

Under subsection B of La. R.S. 15: 561. 2, any person placed on supervised release

pursuant to the provisions of the section shall be on supervised release for life from

the date of release from incarceration. Pertinent to the instant case, pornography

involving juveniles, a violation of La. R.S. 14: 81. 1, is an enumerated sex offense

pursuant to La. R.S. 15: 541( 24)( a). Accordingly, the conditions of supervised

release enumerated in La. R.S. 15: 561. 5 are applicable to any person convicted of

pornography involving juveniles on or after August 15, 2006, to the extent the

offense involved a victim under the age of thirteen. See also La. R. S. 15: 561. 1.

Based upon this statutory scheme, in order to prove the defendant guilty of

violating La. R.S. 15: 561. 7, the State was required to show: ( 1) the defendant was

n.

previously convicted of a " sex offense" as defined in La. R.S. 15: 541; ( 2) the

conviction occurred on or after August 15, 2006; ( 3) the victim was under the age

of thirteen years; and ( 4) the defendant failed to comply with one of the conditions

of supervised release enumerated in La. R.S. 15: 561. 5. 2 Thus, proof beyond a

reasonable doubt that the defendant has a qualifying prior conviction is a necessary

element for conviction under La. R.S. 15: 561. 7. Herein, the defendant does not

contest the evidence to prove that he failed to comply with at least one of the

conditions of supervised release.' He only argues that the State failed to prove that

he was subject to the conditions of supervised release based on a qualifying

predicate conviction.'

It is well settled that to establish the defendant as the same person convicted

of a prior felony, the State need not use a specific type of evidence, and prior

convictions may be proven by any competent evidence. Proof of identity can be

established in various ways, including the State presenting: ( 1) the testimony of

witnesses to prior crimes, ( 2) expert testimony matching the fingerprints of the

accused with those in the record of the prior proceeding, ( 3) photographs contained

in a duly authenticated record, or ( 4) evidence of identical driver' s license number,

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A determination of the elements for this particular offense appears to be a matter of first
impression. Guidance is provided in examining the elements of the offense of failure to register
and notify as a sex offender or child predator: ( 1) a guilty plea or conviction of a sex offense in
violation of La. R. S. 15: 542; ( 2) the defendant resided in Louisiana for the period during which
he was required to register; and ( 3) the defendant failed to register within the requisite time
allotted for registration. La. R.S. 15: 542. 1. 4; State v. Lomas, 2014- 1300 ( La. App. 1st Cir.
3/ 9/ 15), 2015 WL 1019529, at * 2.

3 Pursuant to La. R.S. 15: 561. 5( 16), a person placed on supervised release shall submit himself
or herself to continued supervision, either in person or through remote monitoring, of all of the
following Internet related activities: ( 1) the person' s incoming and outgoing electronic mail and
other Internet -based communication; ( 2) the person' s history of websites visited and the content
accessed; and ( 3) the periodic unannounced inspection of contents of the person' s computer or
any other computerized device or portable media device and the removal of such information,
computer, computer device or portable media device to conduct a more thorough inspection.
This condition was identified at trial as the condition with which the defendant failed to comply.

4 The State in brief does not contest its requirement to prove that the defendant was subject to
the requirements of La. R.S. 15: 561, et seq., specifically that the defendant' s prior conviction
was for a sex offense when the victim was under the age of thirteen. Rather counsel avers that
the testimony of Agent Kulivan was sufficient to satisfy same.

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sex, race, and date of birth. State v. York, 2013- 1529 ( La. App. 1st Cir. 3/ 24/ 14),

2014 WL 1203207, at * 3, writ denied, 2014- 1047 ( La. 4/ 17/ 15), 168 So. 3d 392.

In the instant case, Agent Kulivan, the sole witness at trial, testified that the

defendant was released from the custody of the Department of Public Safety and

Corrections on March 14, 2018, after being imprisoned for five years. On

February 23, 2018, less than one month before his release, the defendant signed the

bottom of a two-page form entitled: " Completion of Hard Labor Sentence and

Notification of Supervised Release" and " Statement of General Conditions of

Supervised Released." The form includes the following pertinent language: ` Be it

Also Known, that upon release from the custody of the Department of Public

Safety and Corrections, said offender has agreed to observe and perform each and

all conditions and directives shown below and on the back of this certificate." On

March 16, 2018, two days after his release, the defendant came to Agent Kulivan' s

office, at which point the listed conditions of release were read and explained to

the defendant, and the defendant re- signed the form.

Regarding the defendant' s supervised release, Agent Kulivan testified, " So

the defendant] had a prior sex offense, which the victim was under the age of 13."

He further stated, " So when he completes his sentence, the State of Louisiana has

zero tolerance. And he is on supervision for the rest of his life under conditions of

supervised release."
When asked specifically what crime or crimes the defendant

was convicted of that resulted in him being on supervised release, Agent Kulivan

specified, "[ t]hirty counts of distribution of child pornography." The remainder of

Agent Kulivan' s testimony and the other exhibits admitted into evidence pertained

to the residence check performed on March 31, 2018.

At the outset, we note that the State offered de minimis evidence of the

defendant' s prior conviction. Specifically, to prove the qualifying predicate, the

State relied solely on the testimony of Agent Kulivan and the defendant' s signed

statement of general conditions of supervised release. Agent Kulivan testified that

the defendant had been convicted of "[ t]hirty counts of distribution of child

pornography" and that the " victim was under the age of U." He identified the

defendant as the individual who he supervised in his position as a sex offender

specialist with the State of Louisiana, Department of Public Safety and

Corrections. The two-page form admitted into evidence containing the

acknowledgment of the conditions of supervised release does not identify the

offense( s) for which the defendant was convicted or provide any other information

regarding the defendant' s conviction(s) other than a docket number, " WSH

IVY1I.7M

There was no additional documentary evidence or testimony offered to

establish the existence and nature of the conviction or the identity of the defendant

as the person who was previously convicted. The other exhibits introduced at trial

do not pertain to the alleged prior sex offenses, but instead consist of evidence to

show that the defendant failed to comply with an enumerated condition of

supervised release, an element that is not contested on appeal.

The State argues that the testimony of Agent Kulivan was sufficient to

establish that the defendant was previously convicted of a sex offense involving a

victim under the age of thirteen. The State, however, fails to recognize its burden

to prove the identity of the defendant as the same individual who committed the

predicate offense. Alternatively, the State apparently seeks to have the agent' s

testimony satisfy that factor as well. The testimony of probation/parole officers

has been accepted to establish the identity of defendants under their supervision.

However, courts have found such testimony sufficient to establish the defendant' s

identity as the same person who committed the predicate offense when coupled

with documentary evidence of the conviction.

I

For example, in State v. Dahlem, 2013- 0577 ( La. App. 1st Cir. 6/ 18/ 14), 148

So. 3d 591, 598, aff'd, 2014- 1555 ( La. 3/ 15/ 16), 197 So. 3d 676, the defendant

challenged the sufficiency of the evidence proving his identity with respect to DWI

predicate # 1. In order to prove the defendant' s identity for DWI predicate # 1, the

trial court relied on the probation officer who supervised the defendant during his

probation for DWI predicate # 3 and was aware of DWI predicate # 1 during that

supervision.
The State also introduced a certified copy of the bill of information

identifying the name, race, date of birth, driver' s license number, and address of

the defendant as well as the guilty plea for DWI predicate # 1.

In State v. Wallace, 2000- 1745 ( La. App. 5th Cir. 5/ 16/ 01), 788 So. 2d 578,

585, writ denied, 2001- 1849 ( La. 5/ 24/ 02), 816 So. 2d 297, the court noted that

courts have recognized various methods of proof to establish identity, including

testimony of witnesses, expert opinion as to the fingerprint comparisons, or

photographs in the record. In Wallace, the State introduced documentary evidence

and the testimony of the defendant' s parole officer to establish identity of the

defendant. The documentary evidence consisted of the entire record of a prior

conviction,
containing his conviction and sworn admission that he had been

convicted of three other offenses and pleaded guilty to one offense. Those

offenses were shown with documents consisting of certified copies of bills of

information, arrest registers, fingerprint sheets, waiver of rights forms, and

commitments. Furthermore, the parole officer identified the defendant as the

individual he had supervised for three of the prior offenses.

In State v. Lawrence, 40, 278 ( La. App. 2nd Cir. 3/ 15/ 06), 925 So. 2d 727,

755, a probation officer testified at trial that she had supervised the defendant for

an attempted manslaughter conviction, and she positively identified the defendant

in court as the person she supervised. The court found that the testimony of the

probation officer, along with the certified copies of the bill of information,

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minutes, and transcript of the guilty plea, was competent proof of the defendant' s

identity as the person who entered the plea of guilty to the charge of attempted

manslaughter.
In the instant case, the documentary evidence submitted by the

State failed to set forth the predicate offense and, therefore, failed to serve as

adequate proof of the underlying felony.

Further, while the defense attorney conceded in opening remarks that the

defendant was convicted of thirty counts of pornography, without any mention of

the date or the age of the victim(s), an attorney' s remarks are not evidence. See

State v. Broussard, 1999- 1054 ( La. App. 4th Cir. 5/ 22/ 02), 819 So. 2d 1141, 1146,

overruled on other grounds, State v. Maxwell, 2011- 0564 ( La. App. 4th Cir.

12/ 21/ 11), 83 So. 3d 113, writ denied, 2012- 0226 ( La. 9/ 21/ 12), 98 So. 3d 323; see

also State v. Bindom, 410 So. 2d 749, 753 ( La. 1982) ( holding that comments made

by counsel in opening statements are not evidence nor do they amount to a judicial

admission or stipulation).
Additionally, there was no stipulation in this case

regarding the defendant' s prior conviction( s). We further note that the defendant' s

failure to contest an element at trial does not constitute evidence of that element.

See Broussard, 819 So. 2d at 1146. The State was required to prove beyond a

reasonable doubt and by competent evidence that the defendant was subject to the

conditions of supervised release due to a conviction of at least one prior qualifying

sex offense. Based on the record before us, we cannot say that the evidence

supports such a finding by a rational trier of fact.

Additionally, the record reflects that the State offered no proof whatsoever

of another essential element of the offense charged. Specifically, the record is

devoid of any direct evidence to show that the defendant' s conviction occurred on

or after August 15, 2006. Agent Kulivan testified that the defendant served five

years imprisonment and was released on March 14, 2018. However, there was no

evidence or testimony presented regarding the amount of time that lapsed, or any

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appeals that may have occurred, between the unspecified date of the defendant' s

conviction and the date that he began serving his sentence. As such, we find the

evidence of the term of the defendant' s sentence and his release date alone are not

sufficient to infer the date of his conviction. See Duncan, 835 So. 2d at 630. As

the State' s case was devoid of an essential element of the charged offense, the

conviction must be set aside. See State v. Williams, 2013- 1226 ( La. 12/ 2/ 13), 131

So. 3d 33, 34 ( per curiam) ( setting aside defendant' s conviction and sentence when

State' s case was devoid of evidence of an essential element of the charged

offense); see also State v. Robinson, 52, 315 ( La. App. 2nd Cir. 11/ 14/ 18), 260

So. 3d 717, 722 ( reversing defendant' s conviction for attempted possession of a

firearm by a convicted felon when State failed to prove the essential element that

the ten-year cleansing period had not elapsed between defendant' s conviction and

eventual parole revocation).

A conviction based on insufficient evidence cannot stand as it violates Due

Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. A court of appeal

impinges on a fact finder' s discretion only to the extent necessary to guarantee the

fundamental protection of due process of law. Ordodi, 946 So. 2d at 660. Based

on the record before us, the State failed to establish that the defendant was

convicted of an enumerated sex offense on or after August 15, 2006, when the

victim was under the age of thirteen years. We find, therefore, that the State failed

to produce sufficient competent evidence of the predicate offense as required by

law subjecting the defendant to the conditions of supervised release pursuant to La.

R.S. 15: 561. 1. Considering the foregoing, we find merit in the assignments of

error. Accordingly, we are constitutionally constrained to reverse the defendant' s

conviction for failure to comply with provisions of supervised release and vacate

the sentence imposed.

CONVICTION REVERSED AND SENTENCE VACATED.

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