City of Abbeville v. Terry Touchet

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-425

CITY OF ABBEVILLE

VERSUS

TERRY TOUCHET

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APPEAL FROM THE
ABBEVILLE CITY COURT
ABBEVILLE CITY COURT, NO. CT 90744
HONORABLE RICHARD PUTNAM, III, CITY COURT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, J. David Painter, and Shannon J. Gremillion,
Judges.

Painter, J., dissents and assigns written reasons.

AFFIRMED.

Ronald W. Melebeck
Attorney at Law
124 N. State Street, Suite 300
Abbeville, LA 70510
(337) 893-5776
Counsel for Defendant/Appellant:
Terry Touchet

Bart J. Bellaire
Edwards & Bellaire
P.O. Box 217-0217
Abbeville, LA 7051
(337) 893-2884
Counsel for Plaintiff/Appellee:
City of Abbeville

DECUIR, Judge.

Terry Touchet appeals a judgment of forfeiture rendered against him following

his conviction and sentence for aggravated assault, a misdemeanor. For the following

reasons, we affirm.

While preparing for Hurricane Gustave, Terry Touchet and his neighbor, Tim

Briggs, engaged in an argument over a trench dug by Briggs on their property line.

Both men were standing in their respective yards, and Briggs was accompanied by his

brother-in-law, Albert Hoffpauir. The testimony shows that Touchet had a gun, a

Colt 45 Government Special, in his possession. The evidence is in dispute, however,

as to whether Touchet was holding the gun or it was simply nearby. The evidence is

also unclear as to whether the gun was in a pouch or out in the open. In any event,

Touchet did not point the gun at Briggs, nor did he fire any shots. Briggs testified

that once he noticed the gun, he turned around, went inside his house, and called the

police.

The investigating officer spoke to Touchet, then seized the Colt 45. Touchet

was charged with aggravated assault, in violation of La.R.S. 14:37, and was

convicted. The trial court specifically found that Touchet was in possession of a gun

and that Briggs had a reasonable apprehension of receiving a battery from the use of

the gun. Upon sentencing, the City moved for forfeiture of the gun under La.Code

Crim.P. art. 891, which provides in pertinent part:

In addition to ordering the forfeiture of a firearm or dangerous
weapon as crime-related contraband as otherwise provided in this
Article or by any other provision of law, when a court sentences a
defendant, it may order the forfeiture of any weapon used in connection
with the offense or found in the possession or under the immediate
control of the defendant at the time of the arrest. The court may provide
for the destruction, sale, or other disposition of the weapons forfeited.

La.Code Crim.P. art. 891(E). The trial court granted the City’s motion, finding that

Touchet’s Colt 45 was the gun used in the commission of the aggravated assault.

Touchet was sentenced to two days in jail, suspended, and the payment of a $200.00

fine.

Touchet raises two assignments of error for our review. First, he asserts the

City failed to prove the Colt 45 was the actual gun used in the assault or that it was

in Touchet’s possession or control. He argues the gun was not introduced into

evidence by the City and the testimony describing the gun was inconsistent. To the

contrary, the City cites from the record Touchet’s admission that he had the gun

outside with him at the time of the argument, although he stated it was in a pouch

with the clip off to the side, and Touchet’s specific description of the Colt 45 seized

by the investigating officer immediately following the argument with Briggs.

Accordingly, we find no manifest error in the factual conclusion that the Colt 45

seized and forfeited was the same gun used in the instant offense.

Touchet next questions the applicability of La.Code Crim.P. art. 891. He

contends the statute provides for forfeiture of a weapon used in the commission of a

felony, not in the commission of a misdemeanor such as aggravated assault. In

support of this argument, Touchet cites Paragraph A of the statute which provides for

the seizure of a weapon used in the commission of a felony offense. The City relies

on the comprehensive language of Paragraph E which gives a sentencing court

discretion to order forfeiture of any weapon used in the commission of an offense, or

in the possession or control of a defendant, in circumstances additional to those

described previously in the statute.

2

The trial court found merit to the City’s position and ordered forfeiture of the

Colt 45. We find no error in the trial court’s decision. Given the inclusive and

comprehensive language of Paragraph E, we believe the legislature intended to

provide for the trial court’s discretion to be exercised deliberately in individual cases

which warrant the seizure and eventual forfeiture of a firearm or dangerous weapon.

For these reasons, the judgment rendered by the trial court is affirmed. Costs

of the appeal are assessed to the Defendant, Terry Touchet.

AFFIRMED.

3

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-425

CITY OF ABBEVILLE

VERSUS

TERRY TOUCHET

PAINTER, Judge, dissenting.

The majority determines that the trial court was correct in issuing a judgment

of forfeiture against Terry Touchet. I respectfully disagree, as I would find that

La.Code Crim.P. art. 891 applies to felony convictions and not to misdemeanor

convictions.

Louisiana Code of Criminal Procedure Article 891 reads, in pertinent part:

A. For purposes of this Article, a firearm or other dangerous
weapon either used in the commission of a felony offense or the use of
which constitutes an element of a felony offense may be declared to be
crime-related contraband which may be seized by a law enforcement
officer in the course of an arrest or issuance of summons or may be
seized by order of court pursuant to other provisions of law. The district
attorney of the parish where the arrest or seizure occurred may petition
the district court to forfeit to the seizing agency an item or thing seized,
or may petition the court for seizure, upon a showing that the item or
thing seized or to be seized constitutes crime-related contraband.

***

E. In addition to ordering the forfeiture of a firearm or dangerous
weapon as crime-related contraband as otherwise provided in this
Article or by any other provision of law, when a court sentences a
defendant, it may order the forfeiture of any weapon used in connection
with the offense or found in the possession or under the immediate
control of the defendant at the time of the arrest. The court may provide
for the destruction, sale, or other disposition of the weapons forfeited.

This version of the article became effective with the 1994 amendment. The

article previously read:

When a court sentences a defendant, it may, in addition to the
penalties otherwise prescribed by law, order the forfeiture of any
weapon used in connection with the offense or found in the possession
or under the immediate control of the defendant at the time of his arrest.
The court also may provide for the destruction, sale, or other disposition
of the weapons ordered forfeited.

Prior to the amendment, there was no distinction between a felony or misdemeanor

offense. After the amendment, the wording was made clear that the “crime-related

contraband” was a firearm or other weapon used in the commission of a felony

offense. There is nothing in the article itself or historical notes to indicate that the

article is to be applicable to any thing other than felony offenses after the amendment.

Based upon this, I find merit in Touchet’s assertion that it stands to reason that since

only crime-related contraband under section E can be forfeited, and section A defines

crime-related contraband as a firearm used in connection with a felony, then the lower

Court was clearly erroneous in ruling that the firearm at issue herein could be

forfeited under La.Code Crim.P. art. 891. Accordingly, I would reverse the trial

court’s judgment and order the seized property returned to Touchet.

Furthermore, the record is clear that the seized property was never introduced

into evidence. Even the majority opinion concedes that the testimony was in dispute

as to whether Touchet was actually holding the gun at the time of the offense or

whether it was simply nearby and as to whether the gun was in a pouch or out in the

open. Based upon these disputes in the testimony, I would find that it was not

adequately proven that the weapon seized was actually the weapon used in connection

with the offense committed by Touchet. Accordingly, for this additional reason, I

would find that the trial court’s judgment of forfeiture must be reversed.

For these reasons, I respectfully dissent.