State of Louisiana Versus Cire Johnson

STATE OF LOUISIANA NO. 23-KA-309

VERSUS FIFTH CIRCUIT

CIRE JOHNSON COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 23-49, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

December 27, 2023

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and Stephen J. Windhorst

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED
FOR RESENTENCING
FHW
MEJ
SJW

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Andrea F. Long
Taylor Somerville
Kristen Landrieu

COUNSEL FOR DEFENDANT/APPELLANT,
CIRE JOHNSON
Bertha M. Hillman

WICKER, J.

Defendant seeks review of his convictions and sentences for two counts of

attempted resisting a police officer with force or violence. For the following

reasons, we affirm defendant’s convictions, vacate his sentences, and remand for

resentencing.

PROCEDURAL HISTORY

On February 8, 2023, the Jefferson Parish District Attorney filed a bill of

information charging defendant, Cire Johnson, with one count of resisting a police

officer with force or violence, in violation of La. R.S. 14:108.2. Defendant pled

not guilty. A superseding bill of information was filed on February 15, 2023,

adding a second count of resisting a police officer with force or violence, in

violation of La. R.S. 14:108.2. The bill provides that count one occurred on

January 3, 2023, and count two occurred on January 4, 2023. Defendant was

arraigned on the superseding bill and pled not guilty.

After a one-day trial on March 15, 2023, a six-person jury found defendant

guilty of the responsive verdict of attempted resisting a police officer with force or

violence on each count. On March 27, 2023, the trial court sentenced defendant to

one and one-half years of imprisonment on each count, and it ordered the sentences

to run consecutively. Defendant now appeals arguing that his sentences are

constitutionally excessive.

FACTS

At trial, Deputy Alexander Tedesco of the Jefferson Parish Sheriff’s Office

(JPSO) testified that he was on patrol on January 3, 2023, when he, along with

Deputies Noah Blackwell and Tramell Brooks, went to the parking lot of West

Jefferson Medical Center in response to a complaint. Upon arrival, Deputy

23-KA-309 1

Tedesco spoke with the complainant,1 who advised that the suspect was defendant,

Cire Johnson, and provided the address of 1230 Avenue D in the “Harvey/Marrero

area.”2 The deputies discovered that defendant had an outstanding warrant for his

arrest in relation to another investigation. Based on this information, the deputies

went to the residence at 1230 Avenue D.

When they arrived, the officers met with defendant’s girlfriend, Nickeya

Royal, at the door, learned defendant was asleep in his bedroom, and entered the

apartment. Deputy Tedesco stated that Deputy Brooks woke defendant up and

advised him that he was under arrest for his outstanding warrant. According to

Deputy Tedesco, when Deputy Blackwell placed him in handcuffs, defendant’s

demeanor became “uncooperative and aggravated.” He recalled that defendant

began aggressively pulling away from them and throwing his shoulders back and

forth towards Deputy Blackwell. At that point, Deputy Blackwell placed

defendant on the ground in order to stop further resistance and to avoid injuries.

Deputy Brooks assisted Deputy Blackwell in picking up defendant and escorting

him out of the residence. Deputy Tedesco followed behind them and tried to keep

Miss Royal from interfering with the arrest, because she was trying to pull the

deputies away from defendant.

Deputy Tedesco testified that defendant was irate, and he continued to pull

away from the deputies and “throw his body around” while leaving the building.

When they approached the marked police unit, Deputy Tedesco observed that

defendant was being aggressive, so the other two deputies pushed him against the

closest vehicle to regain control of him, and they placed him in Deputy Tedesco’s

patrol unit. He described that on the way to jail, defendant was “very irate and also

very threatening.”

1
The complainant was later identified as the father of defendant’s girlfriend, Nickeya Royal, though his
name was not provided.
2
Deputy Tedesco did not testify regarding the substance of the complaint.

23-KA-309 2

Video footage was played for the jury during Deputy Tedesco’s testimony.

Deputy Tedesco indicated that he was wearing a body camera when defendant was

arrested, and he identified the video footage. During his narration of the video, the

deputy pointed out that defendant’s head turned as the deputies walked toward the

police unit. He later learned from Deputy Brooks that defendant spit on him at that

time. Deputy Tedesco also testified that his patrol unit had a camera, and he

narrated the footage from that date. He stated that Deputy Brooks tried to get

defendant into the unit, but he refused to cooperate. Deputy Blackwell went to the

other side of the vehicle and assisted in pulling defendant into the unit.

Deputy Tedesco also identified footage that was taken with Deputy Brooks’

body camera at the jail on January 3, 2023. He explained that the video shows that

the deputies got defendant out of the car at the “sally port”3 and that he was

combative and yelling in the face of a correctional officer. Defendant was placed

against the wall in an attempt to gain control. Deputy Tedesco stated that

defendant refused to walk into intake booking, so the deputies decided to grab him

by his hands and feet in order to carry him inside. He further explained that as

they carried him into an isolation-holding cell, defendant kicked his feet and

kicked Deputy Brooks. Deputy Tedesco’s involvement in the investigation ended,

and defendant was released into the custody of the correctional center. The

medical staff treated Deputy Tedesco for small cuts on his forearm that he

sustained while assisting with defendant at intake booking.

JPSO Deputy Eric Martin, who works in “intake booking” at the Jefferson

Parish Correctional Center, testified that on the morning of January 4, 2023, he

began conducting roll call. Deputies started moving individuals from two “holding

tanks” into one, in order to make roll call easier. Deputy Martin testified that after

3
Deputy Tedesco explained that the “sally port” is a garage that deputies drive into in order to transport
arrestees to intake booking.

23-KA-309 3

opening the door of the tank holding defendant, he asked everyone to stand up,

gather their belongings, and step next door. Defendant retreated to the back of the

tank, removed his shirt, and paced the floor. Then, he started screaming explicit

language to Deputy Martin, such as “You’re going to have to f*cking kill me, or,

You’re going to have to f*ck me up to remove me from here.” Due to defendant’s

demeanor, as well as the presence of other individuals in the tank, Deputy Martin

deployed his taser in the “low ready position”4 and then conducted a “warning

arc.”5

The deputy explained that after he conducted the warning arc, defendant

stepped toward him in a calm manner. He assumed defendant was no longer a

threat, so placed his taser back in the holster. However, Deputy Martin relayed

that defendant was still belligerent and screaming, and he refused to step out of the

tank after being ordered to do so three times. Deputy Martin then grabbed

defendant by his left wrist and escorted him out of the tank. Defendant broke free

from Deputy Martin’s grasp and lunged forward toward Deputy Dorrell Braud,

who was standing at the other tank. Deputy Martin grabbed defendant’s arm and

directed him away from Deputy Braud and towards the wall. He testified that

defendant refused to turn around, and the deputies attempted to remove his shoes

and place him in “detox.” During this time, defendant twisted, turned, pulled

away, and “took several swings” at the deputies. He stated that it took several

deputies to place defendant on the floor as he struggled with them. Because of this

behavior and for safety purposes, defendant was placed in “detox,” which is a

small cell for one person.

4
Deputy Martin indicated that “low ready position” is when the taser is removed from the holster and
pointed down, “not pointing towards anyone or anything like that.”
5
Deputy Martin testified that the taser allows a “warning arc” to be conducted without deploying any
probes. He explained that he activated the taser, turned it on, and pushed a button on the side, which
created a spark.

23-KA-309 4

Deputy Martin identified video footage from the jail on that date, which was

played for the jury, and it was consistent with his testimony. After this incident,

Deputy Martin advised defendant that he was under arrest for another count of

“resisting with force or violence.” He said that defendant was advised of his

Miranda6 rights from a card, after which he stated, “F*ck you.”

Deputy Dorrell Braud testified that he was employed by the JPSO and

worked in intake booking at the correctional center on the morning of June 4,

2023. His testimony largely corroborated that of Deputy Martin. Additionally,

Deputy Braud stated that prior to the incident, he informed Deputy Martin that he

had gone to junior high school with defendant. For this reason, Deputy Martin

decided that he would handle moving defendant to another holding cell instead of

Deputy Braud. Deputy Braud stated that defendant saw him, stepped out, and

swung at him, and that he responded by grabbing defendant’s fist and escorting

him to the ground. The deputy also viewed the video from the jail, which he

described as showing the “scuffle.”

LAW AND DISCUSSION

On appeal, defendant does not set forth any arguments pertaining to his

convictions or challenge the sufficiency of the evidence used to convict him on

either count of attempted resisting an officer with force or violence. However, the

Louisiana Supreme Court and this Court have reviewed the sufficiency of the

evidence to support a conviction even where the defendant fails to raise the issue

on appeal. See State v. Raymo, 419 So.2d 858, 860-61 (La. 1982); 7 State v.

Jackson, 99-1256 (La. App. 5 Cir. 7/25/00), 767 So.2d 848, 852, writ denied, 00-

6
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
7
In Raymo, the Supreme Court held that “[b]ecause the state’s case was devoid of evidence of an
essential element of the charged offense. . . defendant’s conviction and sentence must be set aside . . .
regardless of how the error is brought to the attention of the reviewing court.” Raymo, 419 So.2d at 861.

23-KA-309 5

2528 (La. 10/5/01), 798 So.2d 960. Accordingly, we review the sufficiency of the

evidence to support defendant’s convictions.

The constitutional standard for sufficiency of the evidence is whether, upon

viewing the evidence in a light most favorable to the prosecution, any rational trier

of fact could find that the State proved all of the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979); State v. Chinchilla, 20-60 (La. App. 5 Cir. 12/23/20), 307

So.3d 1189, 1195, writ denied, 21-274 (La. 4/27/21), 314 So.3d 838, cert. denied, -

- U.S. --, 142 S.Ct. 296, 211 L.Ed.2d 138 (2021). This directive that the evidence

be viewed in the light most favorable to the prosecution requires the reviewing

court to defer to the actual trier of fact's rational credibility calls, evidence

weighing, and inference drawing. State v. Hayman, 20-323 (La. App. 5 Cir.

4/28/21), 347 So.3d 1030, 1040; State v. Clifton, 17-538 (La. App. 5 Cir. 5/23/18),

248 So.3d 691, 702. Under the Jackson standard, a review of the record for

sufficiency of the evidence does not require the reviewing court to determine

whether the evidence at trial established guilt beyond a reasonable doubt, but

whether, upon review of the whole record, any rational trier of fact would have

found guilt beyond a reasonable doubt. State v. Lane, 20-181 (La. App. 5 Cir.

1/27/21), 310 So.3d 794, 804.

In the present case, defendant was charged with two counts of resisting a

police officer with force or violence, in violation of La. R.S. 14:108.2. This statute

provides, in pertinent part:

A. Resisting a police officer with force or violence is any of the
following when the offender has reasonable grounds to believe the
victim is a police officer who is arresting, detaining, seizing property,
serving process, or is otherwise acting in the performance of his
official duty:

(1) Using threatening force or violence by one sought to be arrested or
detained before the arresting officer can restrain him and after notice
is given that he is under arrest or detention.

23-KA-309 6

(2) Using threatening force or violence toward or any resistance or
opposition using force or violence to the arresting officer after the
arrested party is actually placed under arrest and before he is
incarcerated in jail.

(3) Injuring or attempting to injure a police officer engaged in the
performance of his duties as a police officer.

(4) Using or threating force or violence toward a police officer
performing any official duty.

Although defendant was charged with resisting a police officer with force or

violence in violation of La. R.S. 14:108.2, he was convicted on each count of the

lesser, responsive verdict of attempted resisting a police officer with force or

violence. An attempt is “a separate but lesser grade of the intended crime” that

occurs when the offender, “having the specific intent to commit a crime, does or

omits an act for the purpose of and tending directly toward the accomplishing of

his object.” La. R.S. 14:27. Even though the evidence at trial may show that the

crime attempted was actually completed by the defendant, he may nevertheless be

convicted of an attempt to commit the crime. La. R.S. 14:27(C); State v. Redell,

22-457 (La. App. 5 Cir. 4/26/23), 361 So.3d 1153, 1163; State v. Schrader, 518

So.2d 1024, 1034 (La. 1988), cert. denied, 498 U.S. 903, 111 S.Ct. 265, 112

L.Ed.2d 221 (1990).

In State v. Musacchia, 13-169 (La. App. 5 Cir. 12/12/13), 131 So.3d 286,

289, an officer, in full uniform, was responding to a domestic disturbance call and

asked the defendant what happened. The defendant responded with “expletives,

speaking with a belligerent, agitated tone, and took an aggressive stance” toward

the officer. Id. at 289. When the officer attempted to escort the defendant to a

nearby vehicle, the defendant shoved the officer’s hand off of him and took a

swing at the officer. After the officer attempted to secure the defendant and place

him on the ground, a physical altercation ensued. Id. The altercation ended when

a second officer intervened. After review, this Court held that the evidence was

23-KA-309 7

sufficient to support both the charged offense of resisting an officer with force or

violence, as well as the jury’s verdict finding the defendant guilty of the lesser and

included grade of attempted resisting an officer with force or violence. Musacchia,

131 So.3d at 292.

In State v. Turner, 51,228 (La. App. 2 Cir. 4/5/17), 217 So.3d 601, the

defendant was charged with resisting a police officer with force or violence and

was found guilty of attempted resisting a police officer with force or violence. In

that case, police officers arrested the defendant for domestic abuse battery. After

placing a handcuff on one of the defendant’s wrists, the defendant jerked his arm

loose and refused to allow the police to handcuff him. However, he was eventually

handcuffed and arrested. Id. at 604. The defendant continually used expletives

toward the officers, “had an attitude,” was combative, and refused to get in the

police vehicle. Id. at 608-09. On appeal, the defendant argued that there was

insufficient evidence to support either the offense charged or his conviction for

attempted resisting an officer with force or violence. The Court found that the

evidence was sufficient to support the jury’s finding that the defendant was guilty

of attempted resisting a police officer with force or violence. Turner, 217 So.3d at

606-07.

In the instant case, Deputy Tedesco testified that during defendant’s arrest

on January 3, 2023, he was aggressive, uncooperative, irate, and “very

threatening.” He also stated that defendant continued to pull away from the

deputies and throw his body around. Defendant refused to get into the police unit

and had to be pulled into it by the deputies. According to Deputy Tedesco, when

they arrived at the Jefferson Parish Correctional Center, defendant was combative,

yelled in the face of a correctional officer, and kicked Deputy Brooks.

Deputy Martin testified that on the next day, January 4, 2023, he was

involved in moving defendant from one cell to another. He testified that defendant

23-KA-309 8

was belligerent, verbally aggressive, and uncooperative. Deputy Martin further

testified that defendant refused to follow instructions, twisted, turned, pulled away,

and “took several swings” at the deputies.

Based on our review of the record pursuant to Raymo, supra, we find that

the State presented sufficient evidence under the Jackson standard to establish the

essential statutory elements of attempted resisting an officer with force or violence

on each count.

In his sole assignment of error on appeal, defendant argues that his

consecutive, maximum sentences are unconstitutionally excessive. He claims that

he is not the worst type of offender and that the trial court failed to consider

mitigating evidence, including his lack of criminal history, employment history,

family, and military career. After review, we are unable to review the merits of

defendant’s assignment of error, because we find that his sentences are

indeterminate.

Defendant was convicted of two counts of attempted resisting a police

officer with force or violence in violation of La. R.S. 14:108.2 and La. R.S. 14:27.

La. R.S. 14:108.2(C) provides:

Whoever commits the crime of resisting an officer with force
or violence shall be fined not more than two thousand dollars
or imprisoned with or without hard labor for not less than one
year nor more than three years, or both.

La. R.S. 14:27(D) provides, in pertinent part, that whoever attempts to

commit any crime shall be punished as follows:

***

(3) In all other cases he shall be fined or imprisoned or both,
in the same manner as for the offense attempted; such fine or
imprisonment shall not exceed one-half of the largest fine, or
one-half of the longest term of imprisonment prescribed for
the offense so attempted, or both.

23-KA-309 9

Therefore, under La. R.S. 14:108.2 and La. R.S. 14:27, the required penalty

for each count was a fine not to exceed of one thousand dollars, or a term of

imprisonment with or without hard labor not to exceed one and one-half years, or

both.

The trial court failed to state on the record at sentencing whether the

sentences on counts one and two were to be served with or without hard labor. The

transcript reflects that the judge stated, “So that sentence is imprisonment with or

without hard labor. And I’m sentencing him to one and a half years on each count

to run consecutive.” The sentencing minute entry indicates the sentences were to

be served at hard labor. When there is a discrepancy between the minutes and the

transcript, the transcript generally prevails. State v. Lynch, 441 So.2d 732, 734

(La. 1983).

La. C.Cr.P. art. 879 requires a court to impose a determinate sentence. If the

applicable sentencing statute allows discretion, the failure to indicate whether the

sentence is to be served at hard labor is an impermissible indeterminate sentence.

State v. Bourgeois, 22-418 (La. App. 5 Cir. 4/26/23), 361 So.3d 1138, 1152; State

v. Clark, 20-167 (La. App. 5 Cir. 11/18/20), 306 So.3d 619, 637, writ denied, 20-

1459 (La. 2/17/21), 310 So.3d 1150.

In State v. Allen, 17-685 (La. App. 5 Cir. 5/16/18), 247 So.3d 179, 192, writ

denied, 18-1042 (La. 11/5/18), 255 So.3d 998, this Court found that the defendant

received indeterminate sentences for his simple burglary convictions, where the

applicable statute, La. R.S. 14:62, provided for a term of imprisonment “with or

without hard labor for not more than twelve years.” Although the commitment

reflected that the defendant’s sentences on these counts were imposed at hard

labor, the transcript did not reflect that the judge indicated whether the sentences

would be imposed at hard labor or would be served with the Department of

23-KA-309 10

Corrections.8 Accordingly, since the applicable statute allowed discretion, this

Court vacated the defendant’s sentences and remanded the matter to the trial court

for the imposition of a determinate sentence in accordance with La. C.Cr.P. art.

879. Id. at 192.

Additionally, in State v. Dixon, 17-422 (La. App. 5 Cir. 3/14/18), 241 So.3d

514, 523-25, writ denied, 18-542 (La. 2/11/19), 263 So.3d 415, the defendant

argued that his two and one-half year sentence for attempted possession of cocaine

was unconstitutionally excessive. This Court found that the trial court imposed an

indeterminate sentence, because it failed to indicate whether the sentence was to be

served at hard labor and the applicable statute allowed discretion. Therefore, this

Court vacated the sentence and remanded the matter to the trial court for

resentencing. Id. at 524-525.

In the present case, because the applicable sentencing statute, La. R.S.

14:108.2, allows discretion as to whether the sentence is to be served at hard labor,

we find that defendant’s sentences are indeterminate. Accordingly, we vacate

defendant’s sentences, and we remand to the trial court for the imposition of a

determinate sentence on each count, in accordance with La. C.Cr.P. art. 879.

ERRORS PATENT

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;

State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175

(La. App. 5 Cir. 1990). Our review did not reveal any errors requiring corrective

action, other than the sentencing error discussed above.9

8
This Court has previously held that when the trial judge states that the defendant is sentenced to the
“Department of Corrections,” the sentence is necessarily at hard labor. State v. Jamison, 17-49 (La. App.
5 Cir. 5/17/17), 222 So.3d 908, 909 n.2.
9
The transcript reflects that the trial judge did not advise defendant of the provisions of La. C.Cr.P. art.
930.8 at the time of sentencing. However, this deficiency is moot, given this Court’s decision to vacate
defendant's sentences and remand for resentencing. See State v. Clark, 19-522 (La. App. 5 Cir. 6/24/20),
299 So.3d 1228, 1237, n.14, writ denied, 21-62 (La. 3/9/21), 312 So.3d 585.

23-KA-309 11

DECREE

For the foregoing reasons, we affirm defendant’s convictions, vacate his

sentences on counts one and two, and remand this matter to the trial court for

resentencing.

CONVICTIONS AFFIRMED; SENTENCES
VACATED; REMANDED FOR RESENTENCING

23-KA-309 12

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL 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 JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 27, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-KA-309
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
ANDREA F. LONG (APPELLEE) THOMAS J. BUTLER (APPELLEE) BERTHA M. HILLMAN (APPELLANT)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
KRISTEN LANDRIEU (APPELLEE)
TAYLOR SOMERVILLE (APPELLEE)
ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053