State of Louisiana Versus Brian Clarke

STATE OF LOUISIANA NO. 21-K-517

VERSUS FIFTH CIRCUIT

BRIAN CLARKE COURT OF APPEAL

STATE OF LOUISIANA

August 11, 2021

Nancy F. Vega
Chief Deputy Clerk

IN RE BRIAN CLARKE

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-NINTH JUDICIAL DISTRICT
COURT, PARISH OF ST CHARLES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
M. LAUREN LEMMON, DIVISION "D", NUMBER 20,399

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

WRIT GRANTED

Relator, Brian Clarke, seeks review of the 29th Judicial District Court’s July

22, 2021 judgment granting the State’s Motion in Limine to Preclude Defense of

Intoxication. In an amended bill of information filed on November 17, 2020, the

State charged Mr. Clarke with one count of home invasion in violation of La. R.S.

14:62.8. The district court found that specific intent was not required to commit

the crime of home invasion, and therefore Mr. Clarke was not entitled to assert

voluntary intoxication as an affirmative defense. Mr. Clarke timely filed a Notice

of Intention to Apply for Writ of Certiorari and the subsequent, instant writ. For

the following reasons, we find that the district court abused its discretion and grant

the writ application.

Louisiana Revised Statute 14:15 provides, in pertinent part, that the

intoxicated or drugged condition of the offender at the time of the commission of

the crime is immaterial except when the offender’s intoxicated or drugged

condition precluded the presence of a specific criminal intent, then that fact

constitutes a defense to a prosecution for that crime. La. R.S. 14:15 (2).

“Voluntary intoxication can be considered as a defense only in cases where

specific intent is a necessary element of the crime.” State v. Boleyn, 328 So.2d 95

(La. 1976). State v. Yanes, 09-929 (La. App. 5 Cir. 4/27/10); 40 So.3d 245, 251.

Whether voluntary intoxication in a particular case is sufficient to preclude specific

intent is a question to be resolved by the trier of fact. State v. Leeming, 612 So.2d

308, 313 (La. App. 5 Cir. 1992), writ denied, 616 So.2d 681 (La. 1993).

The State argued in its motion that Mr. Clarke should not be able to assert

the defense of voluntary intoxication because home invasion is a general intent

crime. The use of the term “intent” in the definition of a crime references “general

criminal intent” in the absence of qualifying provisions. La. R.S. 14:11. (Emphasis

added.) Home invasion is the unauthorized entering of any inhabited dwelling, or

other structure belonging to another and used in whole or in part as a home or

place of abode by a person, where a person is present, with the intent to use force

or violence upon the person of another or to vandalize, deface, or damage the

property of another. La. R.S. 14:62.8. (Emphasis added.) The italicized portion of

the statute cited in the preceding sentence is its qualifying provision – the specific

criminal intent required to commit a home invasion. In order to prove an offender

committed a home invasion, circumstances must indicate that the offender entered

an inhabited dwelling, etc., without authorization and “actively desired” [. . . ] to

use force or violence against another person, or to vandalize, deface, or damage

another person’s property. See La. R.S. 14:10 (1).

“General criminal intent is present wherever there is specific intent.” La.

R.S. 14:10; see State v. Besse, 11-230 (La. App. 5 Cir. 12/28/11); 83 So.3d 257,

263–64, writ denied, 12-292 (La. 5/25/12); 90 So.3d 409 (illustrating general

criminal intent present in La. R.S. 14:62.3 (A) unauthorized entry of an inhabited

dwelling, which is an element of home invasion.) Therefore, as the State asserted

and the Second Circuit stated in State v. Williams, 49,249 (La. App. 2 Cir.

10/1/14); 149 So.3d 462, 468, writ denied, 14-2130 (La. 5/22/15); 173 So.3d 1167,

one could say that home invasion is also a general intent crime, but we,

respectfully, point out that such an assertion is misleading. Proof of specific intent

is required where the statutory definition of the crime “includes the intent to

produce or accomplish some prescribed consequence (the frequent language being

‘with intent to . . .’).” State v. Elzie, 343 So.2d 712, 713-14 (La. 1977). To sum,

we find that home invasion is a specific intent crime. Mr. Clarke is therefore

allowed to assert voluntary intoxication as an affirmative defense. Accordingly,

the writ application is granted.

Gretna, Louisiana, this 11th day of August, 2021.

MEJ
JJM
JJL

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

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www.fifthcircuit.org

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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

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