State Of Louisiana v. Dustin M. Mcdowell

Supreme Court of Louisiana
March 05, 2024
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
STATE OF LOUISIANA
VS.
DUSTIN M. MCDOWELL
No. 2023-K-00508
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I
N RE: Dustin M. McDowell - Applicant Defendant; Applying For Writ Of
Certiorari, Parish of LaSalle, 28th Judicial District Court Number(s) 21- 814, Court
of Appeal, Third Circuit, Number(s) 22-692;
_ _ _ _ _ _
March 05, 2024
Writ application granted; relief denied. See per curiam.
Hughes, J., dissents.
Genovese, J., would grant the writ and the relief requested and assigns reasons.
Griffin, J., dissents.
JLW
SJC
WJC
JBM
03/05/2024 "See News Release 010 for any Concurrences and/or Dissents."

SUPREME COURT OF LOUISIANA
No. 2023-K-00508
STATE OF LOUISIANA
VS.
DUSTIN M. MCDOWELL
On Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of LaSalle
PER CURIAM:
Writ granted ; relief denied . Defendant was charged with one count of
domestic abuse battery with child endangerment in violation of R.S. 14:35.3, and
was convicted of attempted domestic abuse battery with child endangerment, which
was included in the jury instructions and verdict form as a responsive verdict upon
agreement by each party. 1 Defendant filed a motion for new trial, motion to vacate
conviction, and motion in arrest of judgment, arguing that the legislature has not
authorized attempted domestic abuse battery with child endangerment as a
responsive verdict to domestic abuse batter y with child endangerment. The trial
court denied the motions, and the court of appeal affirmed defendant’s convictions
and sentences. State v. McDowell, 2022-692 (La. App. 3 Cir. 3/8/23), 358 So.3d 277.
Defendant applied to this court to review the court of appeal ’s ruling. After
careful review, we find that the court of appeal correctly applied State v. Trackling,
2004-3222 (La. 1/19/06), 921 So.2d 79, to determine that attempted domestic abuse
battery with child endangerment is a cognizable offense and a responsive verdict to
the charge of domestic abuse battery with child endangerment. In Trackling, this
court held that attempted sexual battery is a cognizable offense and thus a responsive
verdict to sexual battery. Several of this court’s observations regarding sexual
1 The responsive verdicts listed on the verdict form in this matter were: (1) guilty, (2) guilty of
attempted domestic abuse battery with child endangerment, ( 3) guilty of domestic abuse battery,
(4) guilty of simple battery, (5) guilty of simple assault, and (6) not guilty.
03/05/24

2

battery in Trackling are equally applicable to domestic abuse battery with child
endangerment. As is the case with sexual battery, domestic abuse battery with child
endangerment lacks a companion crime prohibiting domestic abuse assault with
child endangerment. Because there is no statute prohibiting domestic abuse assault
with child endangerment, there is no logical or legal impediment to a conviction of
attempted domestic abuse battery with child endangerment. Trackling, 2004-3222,
p. 10, 921 So.2d at 84–85. For these reasons, and for the reasons set forth more fully
in the court of appeal’s decision, we grant the application but deny relief.
WRIT GRANTED; RELIEF DENIED