State of Louisiana Versus Shane Smith

STATE OF LOUISIANA NO. 23-KP-399

VERSUS FIFTH CIRCUIT

SHANE SMITH COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 94,880, DIVISION "D"
HONORABLE M. LAUREN LEMMON, JUDGE PRESIDING

December 27, 2023

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Marc E. Johnson

CONVICTION AFFIRMED; REMANDED FOR CLARIFICATION OF
SENTENCING RESTRICTIONS
FHW
JGG
MEJ

COUNSEL FOR PLAINTIFF/RESPONDENT,
STATE OF LOUISIANA
Joel T. Chaisson, II
Louis G. Authement

COUNSEL FOR DEFENDANT/RELATOR,
SHANE SMITH
Lauren D. Rogers

WICKER, J.

Defendant, Shane Smith, seeks supervisory review of his misdemeanor

conviction and sentence for battery of a dating partner, first offense, in violation of

La. R.S. 14:34.9. For the following reasons, we affirm defendant’s conviction and

sentence, except that we remand this matter and instruct the trial court to impose at

least forty-eight hours of the sentence without the benefit of parole in accordance

with La. R.S. 14:34.9(C), as more fully set forth in our Errors Patent Review

below.

STATEMENT OF THE CASE

On January 20, 2022, the St. Charles Parish District Attorney filed a bill of

information charging defendant with battery of a dating partner, first offense, in

violation of La. R.S. 14:34.9. On that same date, defendant entered a plea of not

guilty. On November 10, 2022, after a bench trial, the trial court found defendant

guilty as charged. On that same date, the court sentenced defendant to six months

in the parish prison with all but the first forty-eight hours being suspended.1

Defendant seeks supervisory review of his conviction, challenging the sufficiency

of the evidence presented against him.

FACTS

At trial, the victim, Shonette Sam, testified that she had known defendant

since high school and had been romantically involved with defendant for

approximately two years before the incident that led to defendant’s arrest. Ms. Sam

testified that, on May 6, 2021, defendant asked her for a ride from Hanhville to

Des Allemands. Ms. Sam picked defendant up in her vehicle and drove to her

house.2 When she arrived home, she went into the house while defendant waited in

the car. Ms. Sam testified that, a few minutes later, defendant walked into her

1
The trial court further ordered that defendant be placed on active probation with the District Attorney’s
Office for a period of two years.
2
Ms. Sam testified that defendant did not own a vehicle.

23-KP-399 1

house and began making himself at home—sitting on the sofa, opening doors, and

jumping on her bed. At some point while defendant was jumping on Ms. Sam’s

bed, she became frustrated and told him to get off the bed. She testified that, at

that time, defendant “picked [her] up, slammed [her] on the ground.”3 Ms. Sam

further testified that, as she continuously tried to “get [defendant] out” of her

house, he punched her in the face, causing a knot and swelling near her eye.4 She

testified that after defendant left the house, she immediately called 9-1-1. She

stated that while she was on the phone with 9-1-1, defendant returned and kicked

the front door in, causing the frame and lock to break.5 She denied that defendant

returned to the home to retrieve his cell phone.

Ms. Sam testified affirmatively when asked if she had a “romantic

relationship” with defendant. When asked about the nature of the romantic

relationship, she responded, “We were just having sex.” After the May 6, 2021

incident, Ms. Sam and defendant continued to have communication and contact.

She testified that the two of them had “the same contact as before…everything.

Texting, calling, sex. Same.” Ms. Sam testified that in 2022, she had two surgical

procedures and that defendant visited her after the procedures. She further testified

that she spent Mardi Gras of 2022 with defendant and at some point in time had

dinner with defendant at a restaurant. She stated that, on July 9 and 10, 2022, she

spent time with defendant at bars in Killona, Edgard, and Kenner shooting pool.6

Ms. Sam testified generally that, “Everywhere I go, Shane’s there. If I go to Hot

Spot, he’s there. If I go to Killona, he’s there. If I go to St. Rose, he’s there. If I go

to Kenner, he’s there. He’s everywhere I go.” Ms. Sam stated that, approximately

3
Ms. Sam testified that her twelve-year-old daughter was standing in the bedroom doorway and
witnessed defendant push her onto the ground.
4
The State introduced photographs of Ms. Sam’s face into evidence. Ms. Sam testified that the
photographs reflect swelling to her eye.
5
Ms. Sam testified that her landlord required her to pay $300.00 for the damage defendant caused to the
door.
6
The State introduced into evidence Facebook messages exchanged between the parties on July 9 and 10,
2022.

23-KP-399 2

four months prior to trial, she stopped contacting defendant and they have not

communicated since.

At the conclusion of trial, the trial court found defendant guilty as charged

and sentenced defendant to six months in the parish prison with all but the first

forty-eight hours suspended.7

DISCUSSION

Defendant seeks supervisory review of his misdemeanor conviction for

battery of a dating partner, first offense, in violation of La. R.S. 14:34.9, assigning

two errors. First, defendant challenges the sufficiency of the evidence presented

against him at trial, pointing to the absence of any police report, 9-1-1 recordings,

or sufficient physical evidence. Second, defendant argues that his relationship with

the victim was casual and purely sexual and, thus, Ms. Sam did not meet the

definition of a “dating partner” as defined under La. R.S. 14:34.9(B); thus,

defendant asserted that the State failed to prove each element of the crime under

La. R.S. 14:34.9.

In defendant’s first assignment of error, he challenges the sufficiency of the

evidence presented against him at trial to support his conviction. In reviewing the

sufficiency of the evidence, an appellate court must determine if the evidence,

whether direct or circumstantial, or a mixture of both, viewed in the light most

favorable to the prosecution, was sufficient to convince a rational trier of fact that

all of the elements of the crime have been proven beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v.

Mickel, 09-953 (La. App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357

(La. 1/7/11), 52 So.3d 885; State v. Ordonez, 16-619 (La. App. 5 Cir. 3/15/17), 215

So.3d 473, 477.

7
The trial court also ordered that defendant participate in community service, pay various fines, and
complete a substance abuse evaluation.

23-KP-399 3

When circumstantial evidence is used to prove the commission of the

offense, La. R.S. 15:438 provides, “[A]ssuming every fact to be proved that the

evidence tends to prove, in order to convict, it must exclude every reasonable

hypothesis of innocence.” The reviewing court is not required to determine

whether a defendant’s suggested hypothesis of innocence offers an exculpatory

explanation of events. Rather, the reviewing court must evaluate the evidence in

the light most favorable to the State and determine whether the possible alternative

hypothesis is sufficiently reasonable that a rational juror could not have found

proof of guilt beyond a reasonable doubt. State v. Baham, 14-653 (La. App. 5 Cir.

3/11/15), 169 So.3d 558, 566, writ denied, 15-40 (La. 3/24/16), 190 So.3d 1189.

The credibility of witnesses is within the sound discretion of the trier of fact,

who may accept or reject, in whole or in part, the testimony of any witness; the

credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21

(La. App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. In the absence of internal

contradiction or irreconcilable conflicts with physical evidence, the testimony of

one witness, if believed by the trier of fact, is sufficient to support a conviction.

State v. Dixon, 07-915 (La. App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied

sub nom. State ex rel. Dixon v. State, 08-987 (La. 1/30/09), 999 So.2d 745.

Defendant was convicted of battery of a dating partner, first offense. La.

R.S. 14:34.9 defines battery of a dating partner as “the intentional use of force or

violence committed by one dating partner upon the person of another dating

partner.” Criminal intent may be specific or general. La. R.S. 14:10. La. R.S.

14:34.9 does not specify if it is a general or specific intent crime. In the absence of

a qualifying provision, the terms “intent” and “intentional” reference towards

general intent. La. R.S. 14:11. General criminal intent is present whenever there is

specific intent, and also when the circumstances indicate that the offender, in the

ordinary course of human experience, must have adverted to the prescribed

23-KP-399 4

criminal consequences as reasonably certain to result from his act or failure to act.

La. R.S. 14:10(2). In general intent crimes, “the criminal intent necessary to sustain

a conviction is shown by the very doing of the acts which have been declared

criminal.” State v. Harrell, 18-63 (La. App. 5 Cir. 10/17/18), 258 So.3d 1007

(citing State v. Howard, 94-23 (La. 6/3/94), 638 So.2d 216, 217).

At trial, Ms. Sam testified that when she tried to stop defendant from

jumping on her bed, he picked her up and slammed her on the ground. She further

testified that when she told defendant to leave her home, he responded by punching

her in the face, which caused a knot and swelling near her eye. The State

introduced into evidence a photograph of Ms. Sam’s eye taken after the incident.

To demonstrate the escalation of events that evening, the State also introduced into

evidence photographs of Ms. Sam’s broken door frame, which supported her

testimony that defendant attempted to return to the residence after she told him to

leave. We find that none of the physical evidence introduced at trial conflicts with

Ms. Sam’s testimony.

As stated above, the testimony of one witness, if believed by the fact finder,

is sufficient to support a conviction. See State v. Marcantel, 00-1629 (La. 4/3/02),

815 So.2d 50, 56 (affirming the defendant’s felon in possession of a firearm

conviction on the basis of witness testimony without any physical evidence); State

v. Page, 08-531 (La. App. 5 Cir. 11/10/09), 28 So.3d 442, writ denied, 09-2684

(La. 6/4/10), 38 So.3d 299 (affirming the defendant’s second degree murder

conviction obtained on the basis of witness testimony without any physical

evidence). Therefore, we find the State presented sufficient evidence to show that

defendant intentionally used force or violence upon Ms. Sam’s person. This

assignment is without merit.

In his second assignment of error, defendant claims that the evidence

introduced at trial detailing his relationship with Ms. Sam—which he contends was

23-KP-399 5

casual and purely sexual—does not support a finding that Ms. Sam was his “dating

partner” as defined in La. R.S. 14:34.9(B). Defendant argues that the State failed

to prove each element of the crime because it failed to prove that he and Ms. Sam

were dating partners as defined and contemplated under the statute.

The disputed issue in this case is one of statutory interpretation, which is

subject to de novo review. State v. Maldonado, 11-1090 (La. App. 5 Cir. 5/22/12),

96 So.3d 1221, 1224; Harrah’s Bossier City Inv. Co., LLC v. Bridges, 09–1916

(La. 5/11/10), 41 So.3d 438, 445. The starting point in the interpretation of any

statute is the language of the statute itself. State v. Maldonado, 96 So.3d at 1224.

Interpretation of the language of a criminal statute is governed by La. R.S. 14:3,

which states:

The articles of this Code cannot be extended by analogy so as to create
crimes not provided for herein; however, in order to promote justice
and to effect the objects of the law, all of its provisions shall be given a
genuine construction, according to the fair import of their words, taken
in their usual sense, in connection with the context, and with reference
to the purpose of the provision.

Additionally, La. R.S. 1:3 provides in part, “Words and phrases shall be read

with their context and shall be construed according to the common and approved

usage of the language.”

We start our analysis with the words of the statute itself. Defendant was

convicted of battery of a dating partner in violation of La. R.S. 14:34.9.

Subsection (B) defines “dating partner” as follows:

(3) “Dating partner” means any person who is involved or has been
involved in a sexual or intimate relationship with the offender
characterized by the expectation of affectionate involvement
independent of financial considerations, regardless of whether the
person presently lives or formerly lived in the same residence with the
offender. “Dating partner” shall not include a casual relationship or
ordinary association between persons in a business or social context.

Therefore, a dating partner is first “any person who is involved or has been

involved in a sexual or intimate relationship with the offender… .” Defendant

23-KP-399 6

does not dispute that he and Ms. Sam were involved in a sexual relationship. The

statute continues to define a dating partner as one in an intimate or sexual

relationship characterized by the “expectation of affectionate involvement.”

Therefore, the two factors that encompass a “dating partner” are: 1) a past or

current sexual or intimate relationship, and 2) an expectation of affectionate

involvement. The phrase “affectionate involvement” is not defined by La. R.S.

14:34.9, and it has not been interpreted under these circumstances by Louisiana

courts.8

For purposes of statutory interpretation, courts have commonly used

dictionaries as a valuable source for determining the “common and approved usage

of words.” Dunn v. City of Kenner, 15-1175 (La. 1/27/16), 187 So.3d 404, 411.

Black’s Law Dictionary defines “expectation” as “1. The act of looking forward;

anticipation. 2. A basis on which something is expected to happen; esp., the

prospect of receiving wealth, honors, or the like.”9 The term “affection” is defined

as “a feeling of liking and caring for someone or something: tender attachment:

fondness.”10 Black’s Law Dictionary defines “affection” as “[f]ond attachment,

devotion, or love.” Finally, the term “involved” is defined as “having a part in

something: included in something: actively participating in something: having a

romantic or sexual relationship.”11 Therefore, considering the common usage of the

words included in the phrase “expectation of affectionate involvement,” we

8
A review of other jurisdictions’ jurisprudence reflects that Alabama has a similar, but not identical,
statutory definition of a dating partner or dating relationship. See Ala. Code § 30-5-2 (which similarly
excludes “a casual or business relationship” from meeting the definition of a “dating relationship” but
further defines a dating relationship to include “an expectation of affectionate or sexual involvement by
either party.” See W.T. v. H.S., No. 2210492, 2022 WL 4282314 (Ala. Civ. App. Sept. 16, 2022)
(emphasis added).
9
Black’s Law Dictionary (11th ed. 2019).
10
Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-
webster.com/dictionary/affection.
11
Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-
webster.com/dictionary/involved. Black’s law dictionary does not include a definition for “involvement”
or “involved.”

23-KP-399 7

interpret that phrase to mean the prospect of liking someone or something that also

includes having a romantic or sexual relationship.

Upon a de novo review of the record and the applicable law, we find that the

State met its burden in this case to prove that Ms. Sam and defendant were dating

partners as defined in La. R.S. 14:34.9(B). In the instant case, Ms. Sam described

her relationship with defendant before and after the charged incident as “just

having sex” and “texting, calling, sex.” However, Ms. Sam also testified that she

met defendant in high school and was romantically involved with him for

approximately two years before he was arrested for the instant charge. Ms. Sam

also testified that defendant did not have a car and testified to instances where she

would provide transportation for defendant without any reference to financial

compensation. At some point during their involvement, Ms. Sam gave defendant a

key to her home, where her three children also lived, for approximately one month.

We find that being involved in a romantic or sexual relationship with defendant for

approximately two years, texting each other, calling each other, giving defendant a

key to her home, chauffeuring defendant upon his request, hanging out with

defendant, and bringing defendant to her home where her children were present

supports a factual finding Ms. Sam and defendant were involved in a sexual

relationship, and that they acted out on feelings of liking or caring for each other.

Ms. Sam testified that after the May 6, 2021 offense, until four months prior

to trial, her relationship with defendant was essentially the “same” as before the

incident. Ms. Sam testified that after defendant’s arrest, Ms. Sam continued to

involve defendant in her life in ways that were in addition to their sexual

involvement. Ms. Sam testified that she had two surgical procedures in 2022, and

that defendant visited her after those procedures. Defendant’s visitation after

23-KP-399 8

surgery could reasonably be considered an affectionate display of liking or caring

for Ms. Sam.

Based upon the trial court’s determination that defendant violated La. R.S.

14:34.9, the trial court found Ms. Sam credible and determined that her

relationship with defendant was more than a casual relationship or ordinary

association in a business or social context. Upon a review of the record and the

applicable law, we find that the evidence supports a finding that defendant and Ms.

Sam were “dating partners,” at the time of the offense as contemplated under La.

R.S.14:34.9—meaning they were involved in a sexual relationship with an

expectation of affectionate involvement independent of financial considerations.

This assignment of error lacks merit.

ERRORS PATENT REVIEW

Generally, an errors patent review is not conducted on misdemeanor

convictions. Nevertheless, this Court has on occasion considered a “misdemeanor

appeal” as an application for supervisory review of the case and has conducted an

errors patent review. See State v. Jones, 12-640 (La. App. 5 Cir. 10/30/13), 128

So.3d 436, 443. A review of the record for errors patent according to La. C.Cr.P.

art. 920 reflects the following errors requiring correction:

First, we point out that the trial judge failed to restrict the benefit of parole

for at least the first forty-eight hours of defendant’s sentence. La. R.S. 14:34.9(C)

requires that at least forty-eight hours of the sentence be imposed without the

benefit of parole, probation, or suspension of sentence. The court sentenced

defendant to serve six months in the parish prison with all but forty-eight hours

suspended and further placed defendant on active probation with certain

conditions. However, the sentencing transcript reflects that the trial court did not

specify the period of time during which defendant’s sentence was imposed without

the benefit of parole.

23-KP-399 9

Generally, when a trial court does not mention the restriction of benefits,

such conditions are deemed to exist by operation of law under La. R.S. 15:301.1.

State v. Shelby, 18-186 (La. App. 5 Cir. 12/27/18), 263 So.3d 1223, 1228.

However, in this case, La. R.S. 15:301.1 does not cure the lack of a specified time

period for the restriction of benefits because the portion of the sentence to be

served without benefits is left to the discretion of the trial court. State v. Mouton,

22-444 (La. App. 5 Cir. 12/29/22), 358 So.3d 106, 122.

Accordingly, we therefore remand this matter and instruct the trial court to

impose at least forty-eight hours of the sentence without the benefit of parole in

accordance with La. R.S. 14:34.9. See State v. Jenkins, 22-443 (La. App. 5 Cir.

2/27/23), 359 So.3d 1006, 1015 (case remanded for clarification of the defendant’s

sentence as to the restriction of benefits); State in Interest of J.R., 22-339 (La. App.

5 Cir. 11/30/22), 354 So.3d 172, 179-80 (“Because the language of the sentencing

provision gives the trial judge discretion in determining the exact length of time

that benefits are to be restricted, we remand this matter and instruct the juvenile

court to impose at least forty-eight hours of the disposition without the benefit of

parole, probation, or suspension of sentence”).

Second, the sentencing transcript does not reflect that the trial judge advised

defendant of the provisions of La. C.Cr.P. art. 930.8, which states in pertinent part,

“No application for post-conviction relief, including applications which seek an

out-of-time appeal, shall be considered if it is filed more than two years after the

judgment of conviction and sentence has become final under the provisions of

Article 914 or 922.” If a trial court fails to advise, or provides an incomplete

advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error

by informing the defendant of the applicable prescriptive period for post-

conviction relief by means of its opinion. State v. Taylor, 20-215 (La. App. 5 Cir.

4/28/21), 347 So.3d 1008. Accordingly, we hereby advise defendant that no

23-KP-399 10

application for post-conviction relief, including applications that seek an out-of-

time appeal, shall be considered if filed more than two years after the judgment of

conviction and sentence has become final under the provisions of La. C.Cr.P. arts.

914 or 922. See Taylor, supra.

DECREE

For the reasons provided herein, we affirm defendant’s conviction. Upon an

errors patent review, we determine that the trial court failed to restrict the benefit

of parole for at least the first forty-eight hours of defendant’s sentence, as required

under La. R.S. 14:34.9(C). We therefore remand this matter and instruct the trial

court to impose at least forty-eight hours of the sentence without the benefit of

parole in accordance with La. R.S. 14:34.9(C). In all other respects, we affirm

defendant’s sentence.

CONVICTION AFFIRMED;
REMANDED FOR CLARIFICATION
OF SENTENCING RESTRICTIONS

23-KP-399 11

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-KP-399
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE M. LAUREN LEMMON (DISTRICT JUDGE)
LOUIS G. AUTHEMENT (RESPONDENT)

MAILED
LAUREN D. ROGERS (RELATOR) HON. JOEL T. CHAISSON, II (RESPONDENT)
ATTORNEY AT LAW DISTRICT ATTORNEY
4224 FLORIDA AVENUE TWENTY-NINTH JUDICIAL DISTRICT
SUITE 2 COURT
KENNER, LA 70065 POST OFFICE BOX 680
HAHNVILLE, LA 70057