State of Louisiana Versus Brian Clarke

STATE OF LOUISIANA NO. 21-K-517

VERSUS FIFTH CIRCUIT

BRIAN CLARKE COURT OF APPEAL

STATE OF LOUISIANA

September 24, 2021

Nancy F. Vega
Chief Deputy Clerk

ON APPLICATION FOR REHEARING

Panel composed of Marc E. Johnson,
John J. Molaison, Jr., and John J. Lee, Jr.

REHEARING DENIED

MEJ
JJM
JJL

STATE OF LOUISIANA NO. 21-K-517
VERSUS
BRIAN CLARKE FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

Considering the State’s Application for Rehearing of this matter, we
disagree with the State’s contention that our disposition in this matter
contradicts this Court’s findings in State v. Williams, 11-427 (La. App. 5
Cir. 2/28/12, 11–12); 88 So.3d 1102, 1111, or does not follow jurisprudence.

“A specific-intent crime requires that a defendant have
the intent to cause a particular result or that the defendant have
a specific purpose in mind.
Thus, a specific intent crime requires both an act and a
specific intent in committing that act, which means more than a
mere general intent to commit the act. A person acts with
specific intent when his or her conscious objective is to cause
the specific result proscribed by the statute defining the offense.
The term "specific intent" is used to designate a specific mental
element which is required above and beyond any mental state
required with respect to the actus reus of the crime.
Where the statute defining a crime includes a specific
intent as an ingredient of its criminality, such intent is essential
and must be established. For such crimes, the specific intent is
just as much an element of the crime as is the act. Thus, the
requirement as to intent is coextensive with the act prohibited,
and existence of the specific intent at the time the crime
charged was committed is required.
Proof of a required specific intent is just as necessary as
proof of the act itself, and it must be established as an
independent fact, and with the same certainty as any other
element. Mere general malice or criminal intent is insufficient,
and the requisite specific intent must be shown as a matter of
fact, either by direct or circumstantial evidence.”

22 C.J.S. Criminal Law: Substantive Principles § 36. (Citations in footnotes
omitted)

In the instant matter, the qualifying provision within the definition of
the crime of home invasion provided by La. R.S. 14:62.8, “to use force or
violence upon the person of another or to vandalize, deface or damage the
property of another” illustrates the specific purpose, or definite plan, the
defendant must have that also constitutes a particular element of that crime.
In Williams, supra, the defendant was charged with the crime of carjacking
in violation of La. R.S. 14:64.2 - the intentional taking of a motor vehicle, as
defined in R.S. 32:1(40), belonging to another person, in the presence of that

person, or in the presence of a passenger, or any other person in lawful
possession of the motor vehicle, by the use of force or intimidation.
(Emphasis added). The definition of carjacking does not contain a
qualifying provision that describes a specific intent, or specific result, that
the offender desires to cause other than the taking of the motor vehicle.
Carjacking is a general intent crime. The italicized portion of the carjacking
definition, cited by the State in its application, describes the manner by
which the defendant commits the act – specific intent is not a requisite
element of carjacking. “If the crime requires that an act or acts be done “with
the intent” that certain consequences follow, a specific intent is required. If
the terms ‘intent’ or ‘intentional’ are used without qualifying provisions, a
general criminal intent is required.” 17 La. Civ. L. Treatise, Criminal Jury
Instructions § 4:1 Criminal intent (3d ed.)

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. 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 DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 09/24/2021 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

21-K-517
E-NOTIFIED
29th Judicial District Court (Clerk)
Honorable M. Lauren Lemmon (DISTRICT JUDGE)
Maria M. Chaisson (Relator)

MAILED
Hon. Joel T. Chaisson, II (Respondent)
District Attorney
Twenty-Ninth Judicial District Court
Post Office Box 680
Hahnville, LA 70057