State of Louisiana v. Donald O'Conner

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 06-262

STATE OF LOUISIANA

VERSUS

DONALD O’CONNOR

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ON APPEAL FROM THE
FOURTEETH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 18721-03
HONORABLE G. MICHAEL CANADAY, PRESIDING
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders and Marc T. Amy, Judges.

MOTION TO QUASH AFFIRMED.

John F. DeRosier, District Attorney
Sharon Darville Wilson, Assistant District Attorney
Carla S. Sigler, Assistant District Attorney
1020 Ryan Street
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

James E. Boren
830 Main Street
Baton Rouge, LA 70802
(225) 387-5786
COUNSEL FOR DEFENDANT-APPELLANT:
Donald O’Connor

COOKS, Judge.

The Defendant, Donald O’Connor was in business with Robert Trost. As a part

of their business relationship, Defendant and Trost entered into a non-compete

agreement with Trost. According to Trost, Defendant violated that agreement, so he

filed a civil lawsuit against him. A preliminary injunction based on the non-compete

agreement between the parties was issued in that proceeding. The parties consented

to its issuance on August 1, 2003.

On October 3, 2003, Trost filed a motion for contempt alleging Defendant

failed to abide by the preliminary injunction. In a civil proceeding titled Robert

Trost, Sr. v. Donald O’Connor, Docket No. 03-3741, Judge David Painter held

Defendant in contempt of court for violating the terms of the preliminary injunction.

He was sentenced to serve twelve months in the parish jail, with all but 25 days

suspended, to pay a fine of one thousand dollars, and he was placed on probation until

July 7, 2005.

On September 29, 2003, Defendant was charged with committing one count of

theft over five hundred dollars, in violation of La.R.S. 14:67, in Docket No. 18721-

03. On May 16, 2005, he filed a Motion to Quash, urging double jeopardy predicated

on the assertion that the September 29, 2003 bill of information charged him with the

same conduct for which he had been punished in the contempt proceeding referenced

above. Judge Michael Canaday subsequently denied the Motion to Quash.

From the denial of this motion, Defendant filed an appeal with this court, which

was initially converted to a writ. A panel of this court subsequently determined the

writ conversion had been improvidently issued; and the matter was again converted

to an appeal.

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DOUBLE JEOPARDY

Defendant argues the trial court erred in denying his Motion to Quash based

on double jeopardy. Defendant contends he has already been punished for the

behavior for which he is currently on trial, i.e, the cashing of four checks received

from customers. He argues the present prosecution for theft from the same victims

constitutes double jeopardy. He points out the alleged conversion of the at issue

checks pre-dated the issuance of the injunction, and the facts surrounding the taking

of the checks were admitted as evidence in the contempt proceeding. Thus, he

contends the present prosecution for theft predicated on these same checks violates

the “same evidence rule.”

This court’s latest pronouncement on double jeopardy is found in State v.

Cogswell, 05-510, pp. 3-4 (La.App. 3 Cir. 12/30/05), 918 So.2d 590, 593-94, writ

denied, 06-314 (La. 9/1/06), 936 So.2d 196:

In State v. Knowles, 392 So.2d 651, 654 (La.1980), the Court
citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76
L.Ed. 306 (1932), outlined the following criteria for examining
violations of double jeopardy:

“. . . The applicable rule is that where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each
provision requires proof of an additional fact which the
other does not. . . .”

This rule is constitutionally required by the States. Brown v.
Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and is
embodied in La.C.Cr.P. 596:

“Double jeopardy exists in a second trial only when the
charge in that trial is: (1) Identical with or a different grade
of the same offense for which the defendant was in
jeopardy in the first trial, whether or not a responsive
verdict could have been rendered in the first trial as to the
charge in the second trial; or (2) Based on a part of a
continuous offense for which offense the defendant was in
jeopardy in the first trial.”

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Louisiana uses both the “Blockburger test” and the “same
evidence test”. State v. Steele, 387 So.2d 1175 La.1980); State v.
Doughty, 379 So.2d 1088 (La.1980); State v. Didier, 262 La. 364, 263
So.2d 322 (1972) and, 412 So.2d 1323 (La.1982). When a defendant is
charged with separate statutory crimes they need not be identical in
elements or in actual proof to be the same within the meaning of the
constitutional prohibition. State v. Hayes, 412 So.2d at 1325.

The Louisiana Supreme Court explains the “same evidence” test
in State v. Steele, 387 So.2d 1175, (La.1980), as follows:

“If the evidence required to support a finding of guilt of
one crime would also have supported conviction of the
other, the two are the same offense under a plea of double
jeopardy, and a defendant can be placed in jeopardy for
only one. The test depends on the evidence necessary for
conviction, not all the evidence introduced at trial. . . .

The ‘same evidence’ test is somewhat broader in concept
than Blockburger the central idea being that one should not
be punished (or put in jeopardy) twice for the same course
of conduct.” Id. at 1177.

Double jeopardy provisions protect an accused not only from a
second prosecution on the same offense, but also from multiple
punishments for the same criminal conduct. State v. Steele, supra; State
v. Hayes, supra; United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75
L.Ed. 354 (1931); Whalen v. United States, 445 U.S. 684, 692, 100
S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980).

Defendant notes that for the sanctions imposed on the contempt violation to

constitute a basis for a claim of double jeopardy, we must first determine whether the

contempt penalty was “punitive” rather than “coercive,” and therefore, criminal as

opposed to civil. The State does not contest this issue and acknowledges, in brief,

that punishment in the civil case was punitive. Thus, the contempt sanctions were

criminal in nature.

The criminal charge pending is for theft, which is defined by La.R.S.

14:67(A):

Theft is the misappropriation or taking of anything of value which
belongs to another, either without the consent of the other to the
misappropriation or taking, or by means of fraudulent conduct,

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practices, or representations. An intent to deprive the other permanently
of whatever may be the subject of the misappropriation or taking is
essential.

Contempt is defined by La.Code Crim.P. art. 20:

A contempt of court is an act or omission tending to obstruct or
interfere with the orderly administration of justice, or to impair the
dignity of the court or respect for its authority.

Contempts of court are of two kinds, direct and constructive.

The contemptuous act for which Defendant was punished is found in La.Code

Crim.P. art. 23, which states, in pertinent part:

A constructive contempt of court is any contempt other than a
direct one.
A constructive contempt includes, but is not limited
to any of the following acts:

....

(2) Willful disobedience of any lawful judgment,
order, mandate, writ, or process of court;1 . . . .

The provisions of each violation require proof of elements not necessary for proof of

the other, and particularly the need to prove the additional element of enjoined

behavior in the contempt proceeding.

Defendant relies not on application of the “Blockburger test,” but rather stakes

his claim of double jeopardy on the applicability of the “same evidence rule.”

Defendant argues the contempt could not have been proven without the

introduction of the four checks which are relied on as evidence in the present theft

prosecution.2 In brief, Defendant points to his objection in the contempt proceeding

to the introduction of any checks written and allegedly converted prior to the issuance

1
While the definition of contempt is found in the cited code articles, penalties for
contempt are found in La.R.S. 13:4611.
2
In brief, the State argues the theft charge is not only predicated upon conduct evidenced
by checks, but, also upon evidence of theft of business files by Defendant.

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of the injunction, on the grounds of relevancy. He argues the trial judge relied on

these checks to find his conduct was contemptuous, and therefore, use of the same

checks to prove theft in this case constitutes double jeopardy.

As the supreme court held in State v. Steele, 387 So.2d 1175, 1179 (La.1980),

“[t]he test depends on the evidence necessary for conviction, not all the evidence

introduced at trial. . . .” Defendant also argues that the trial judge’s stated reasons

prove he relied on the checks to find him in contempt. Defendant points to the

following comments by the trial judge during the contempt proceeding:

[Defendant] violated not only the letter but the spirit of the agreement
by doing jobs in competition before the injunction, after the injunction,
and then setting up a sham corporation on September 15, 2003, to try to
circumvent the injunction.

Defendant suggests the language “before the injunction,” while admittedly

subject to varied interpretations, indicates the reliance on the checks as proof. We

disagree. Defendant does not dispute the trial judge could have found him in

contempt for multiple acts which occurred after issuance of the injunction.

Applying State v. Steele, 387 So.2d 1175, it is not the evidence introduced at

the contempt hearing which is relied on to form the basis for determining “same

evidence,” but rather, “the evidence necessary for conviction.” Checks written, prior

to an injunction being issued, cannot be considered as evidence of contempt for

violation of the injunction. The checks were superfluous to proof of contempt, and

cannot be found to be the “same evidence” needed to prove the instant charge of theft.

The State urges the civil contempt penalty cannot form the basis for double

jeopardy since it does not meet the definition pronounced in State v. Walker, 00-1028

(La.App. 3 Cir. 1/31/01), 778 So.2d 1192. In Walker, this court stated:

The protection against double jeopardy applies in three situations: (1)
a second prosecution for the same offense after acquittal, (2) a second
prosecution for the same offense after conviction, and (3) multiple

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punishments for the same offense. North Carolina v. Pearce, 395 U.S.
711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); State v. Smith, 95-61
(La.7/2/96), 676 So.2d 1068; and State v. Mayeux, 498 So.2d 701
(La.1986).

Id. at 1194.

It would be incongruous to hold that a contempt punishment for violation of

a court order, to which the State is not a party, precludes prosecution of a defendant

for a theft violation. This situation is not an attempt by the State to twice prosecute,

or twice punish, particular behavior. Rather, this situation presents a court’s attempt

to punish an individual for obstructing or interfering with its administration of justice,

and an independent attempt by the State to address asserted criminal behavior. As the

State points out, sanctions for contempt and prosecution for violation of the criminal

statute for theft each address unrelated actions, and one should not be exclusive of the

other.

DECREE

For the above reasons, the prosecution of Defendant for theft does not

constitute double jeopardy predicated on his having been found in contempt for

violating a court order in the civil proceedings. The trial court’s denial of the motion

to quash is affirmed.

MOTION TO QUASH AFFIRMED.

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