State of Louisiana v. Skylar Frank

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-893

STATE OF LOUISIANA

VERSUS

SKYLAR FRANK

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. CR-2014-3482
HONORABLE ERROL DAVID DESHOTELS JR., DISTRICT JUDGE

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DAVID KENT SAVOIE
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and David Kent Savoie,
Judges.

SAUNDERS, J., dissents and assigns written reasons.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Paula C. Marx
Louisiana Appellate Project
P. O. Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Skylar Frank

H. Todd Nesom
District Attorney
Steven Sumbler
Assistant District Attorney
33rd Judicial District Court
Parish of Allen
State of Louisiana
P. O. Box 839
Oberlin, LA 70655
(337) 639-2641
COUNSEL FOR APPELLEE:
State of Louisiana

SAVOIE, Judge.

On October 15, 2014, the State filed an indictment charging Defendant

Skylar Frank with felony carnal knowledge, a violation of La.R.S. 14:80;

malfeasance in office, a violation of La.R.S. 14:134; indecent behavior with a

juvenile, a violation of La.R.S. 14:81; and obstruction of justice, a violation of

La.R.S. 14:130.1. The indecent behavior charge was dismissed before trial. The

parties selected a jury on May 18, 2015. Said jury heard evidence on May 20-21

and found Defendant guilty of attempted felony carnal knowledge, malfeasance in

office, and obstruction of justice.

On July 7, 2015, the court heard argument on Defendant’s post-trial

motions, which it denied. At the same proceeding, the court sentenced him to a

two thousand dollar fine and four years at hard labor, with all but one year

suspended, on each of the charges. The court ordered the sentences to run

concurrent.

Defendant now seeks review by this court of his convictions and sentences.

For the following reasons, Defendant’s convictions and sentences are vacated in

part, affirmed in part, and remanded.

FACTS

Thomas Buxton discovered Defendant, then an Oakdale police officer, in his

fifteen-year-old niece’s bedroom with his shirttail out and his pants-belt undone,

hiding behind a door. Frank’s gun-belt was on the floor in the living room. The

victim testified that Defendant asked her to lie about why he was on the premises.

Specifically, she was to state that he was there to make his cousin Hesikiah

Hayward, a former boyfriend of hers, leave. Defendant also instructed her to

delete any text messages she had from him. A police dispatcher testified that

Defendant was on duty the day of the offense but did not report being at the

victim’s residence. He further testified that he should have reported his location

while on duty.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find several

errors patent.

The trial court imposed the following sentences:

The court sentences you Mr. Frank as follows: . . . . For the
Malfeasance in Office charge the court sentences you to four (4) years
with the Department of Corrections, one (1) year of that is suspended.
You are placed on three year supervised probation, ordered to pay a
two thousand ($2,000.00) dollar fine. The fine and the jail time is to
run concurrent with the Attempted Felony Carnal Knowledge of a
Juvenile. For Obstruction of Justice the court sentences you to four
(4) years Department of Corrections. All suspended except for one
(1) year, pay a two thousand ($2,000.00) dollar fine, plus court costs
and that two fines and sentences to be run concurrent with the other
two.

....

Mr. Frank you have two years from this date to file post-conviction
relief and Mr. Guidry can explain to you what that means.

The trial court failed to set forth a payment plan for the fines and court costs.

In State v. Wagner, 07-127, p. 7 (La.App. 3 Cir. 11/5/08), 996 So.2d 1203, 1208,

this court explained in pertinent part:

When the fines and costs are imposed as a condition of probation, but
the trial court is silent as to the mode of payment or the trial court
attempts to establish a payment plan, this court has required a specific
payment plan be established. See State v. Theriot, 04-897 (La.App. 3
Cir. 2/9/05), 893 So.2d 1016 (fine, court costs, and cost of
prosecution); State v. Fuslier, 07-572 (La.App. 3 Cir. 10/31/07), 970
So.2d 83 (fine and costs); State v. Console, 07-1422 (La.App. 3 Cir.
4/30/08), 981 So.2d 875 (fine and court costs).

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We view this procedure as no different from payment plans for
restitution. See State v. Dean, 99-475 (La.App. 3 Cir. 11/3/99), 748
So.2d 57, writ denied, 99-3413 (La.5/26/00), 762 So.2d 1101
(restitution only), State v. Reynolds, 99-1847 (La.App. 3 Cir. 6/7/00),
772 So.2d 128 (restitution, fine, and costs), State v. Stevens, 06-818
(La.App. 3 Cir. 1/31/07), 949 So.2d 597 (restitution, fine, court costs,
and reimbursement to Indigent Defender Board), and State v.
Fontenot, 01-540 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255
(restitution, court costs and payments to victim’s fund, Indigent
Defender Board, and District Attorney).

We, therefore, remand this case to the trial court for establishment of a
payment plan for the fine, noting that the plan may either be
determined by the trial court or by Probation and Parole, with
approval by the trial court. See Stevens, 949 So.2d 597.

Accordingly, this case is remanded to the trial court for the establishment of a

payment plan for the fee and costs, noting that the plan may either be determined

by the trial court or by Probation and Parole, with approval by the trial court. See

State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597.

The trial court also failed to delay sentencing for twenty-four hours after it

denied the Defendant’s Motion for a New Trial. Louisiana Code of Criminal

Procedure Article 873 provides:

If a defendant is convicted of a felony, at least three days shall elapse
between conviction and sentence. If a motion for a new trial, or in
arrest of judgment, is filed, sentence shall not be imposed until at least
twenty-four hours after the motion is overruled. If the defendant
expressly waives a delay provided for in this article or pleads guilty,
sentence may be imposed immediately.

In the present case, there was no express waiver of the delay. However, any error

would be harmless since Defendant does not argue excessiveness of his sentence

on appeal and does not claim he was prejudiced by the lack of delay. State v.

Roberson, 06-1568 (La.App. 3 Cir. 5/2/07), 956 So.2d 736, writ denied, 07-1243

(La. 12/14/07), 970 So.2d 531, State v. Boyance, 05-1068 (La.App. 3 Cir. 3/1/06),

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924 So.2d 437, writ denied, 06-1285 (La. 11/22/06), 942 So.2d 553, and State v.

Shepherd, 02-1006 (La.App. 3 Cir. 3/5/03), 839 So.2d 1103.

The trial court improperly advised Defendant that he had “two (2) years

from this date to file post-conviction relief.” Louisiana Code of Criminal

Procedure Article 930.8 provides that the prescriptive period for filing post-

conviction relief is two years, and it begins to run when a defendant’s conviction

and sentence become final under the provisions of La.Code Crim.P. arts. 914 or

922. The trial court is instructed to inform Defendant of the correct provisions of

article 930.8 by sending appropriate written notice to Defendant within ten days of

the rendition of this opinion and to file written proof in the record that Defendant

received the notice.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues the verdicts of attempted

felony carnal knowledge and malfeasance in office violate double jeopardy as the

state proved both offenses with the same evidence. Although both parties cite a

number of double jeopardy cases, the most analogous case is State v. Cogswell, 05-

510, pp. 2-5 (La.App. 3 Cir. 12/30/05), 918 So.2d 590, 592-94, writ denied, 06-314

(La. 9/1/06), 936 So.2d 196. In Cogswell, this court stated:

Defendant argues that he was subjected to double jeopardy in
violation of La.Code Crim.P. art. 591 when he was convicted of
malfeasance in office and the sexual crimes. There is merit to this
assertion.

Defendant was convicted of two counts of malfeasance in office, in
violation of La.R.S. 14:134, which provides in the applicable parts
that a public officer commits malfeasance in office when he performs
“any duty lawfully required of him . . . in an unlawful manner.”
Defendant was also convicted of one count of obscenity and one count
of sexual battery as to one of the victims, and one count of obscenity
and attempted sexual battery as to the other victim. As the facts
adduced at trial indicated, after Defendant made late night traffic stops

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of the two women during the course of his employment as a patrol
officer, he then committed the sexual acts against them. The identical
conduct was the basis for both the malfeasance convictions and the
convictions for the sexual offences.

In State v. Vaughn, 431 So.2d 763 (La.1983), the accused was charged
with one count of malfeasance in office and one count of theft. The
Louisiana Supreme Court found that the unlawful manner by which
Vaughn violated his affirmative duty as a police officer was to have
committed theft when he took a suspect’s gun, then sold the gun back
to him. Vaughn was charged with malfeasance in office and theft of
the gun. Both counts cited the unlawful and fraudulent taking of the
money as the sole basis for the two counts. The Louisiana Supreme
Court stated:

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.”

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 State v. Hayes, 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.

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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).

....

An overview of the record reveals that the conduct which formed the
basis of the malfeasance charge was the same conduct proven during
the jury trial on the theft charge. Therefore, we conclude that the
same evidence was used to convict Vaughn on both charges. The
conviction by the trial judge for malfeasance was for conduct forming
a part of the basis of the jury conviction on the theft charge and the
latter constitutes a jeopardy as to the former.

Id. at 766-67. The supreme court in this case vacated the conviction
for the lesser offense of theft. See also, State v. Coody, 448 So.2d 100
(La.1984) and State v. Gibson, 03-0647 (La.App. 4 Cir. 2/4/04), 867
So.2d 793.

In the present case, to prove Defendant committed malfeasance in
office required proof that he committed the sexual offenses.
Therefore, the evidence necessary to prove the sexual offenses also
proved the charge of malfeasance in office. Accordingly, the same
evidence test was satisfied. Consequently, this assignment of error
has merit.

The State now argues, as it did at the post-trial motion hearing, that evidence

not related to the sex offense supported the malfeasance conviction. However, it

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seems clear from the State’s closing statement that its theory of the case was that

Defendant committed malfeasance in office by committing the sex crime, since he

was a police officer:

And lastly we’ve proven beyond a reasonable doubt the third element
of Malfeasance in Office through the testimony of Bailey Ware saying
that she performed oral sex on the defendant while he was on duty.

In the present case, as in Cogswell, the same evidence that supported the

conviction for the sex crime supported the malfeasance conviction. Thus, the

convictions constitute double jeopardy. Cogswell stated the remedy:

The Louisiana Supreme Court has stated that “[t]o remedy a violation
of double jeopardy, this court has followed a procedure of vacating
the conviction and sentence of the less severely punishable offense,
and affirming the conviction and sentence of the more severely
punishable offense.” State ex rel. Adams v. Butler, 558 So.2d 552,
553 (La.1990).

In this case, the more severely punishable offenses are the sexual
battery violations. A violation of the offense of malfeasance in office
has a sentencing range of no more than five years, with or without
hard labor. La.R.S. 14:134. An offense of sexual battery provides for
a range of imprisonment of not more than ten years, with or without
hard labor, and without benefit of parole, probation, or suspension of
sentence. La.R.S. 14:43.1(C). Accordingly, the convictions for
malfeasance in office are vacated to eliminate the double jeopardy
violations suffered by Defendant.

Id. at 594.

Pursuant to La.R.S. 14:134(C), malfeasance is punishable by no more than

five years with or without hard labor with a potential fine of no more than five

thousand dollars. Also, restitution may be ordered. Pursuant to La.R.S.

14:27(D)(3) and La.R.S. 14:80, attempted felony carnal knowledge of a juvenile is

punishable by no more than five years with a potential fine of no more than two

thousand five hundred dollars. Also, personal property used in the commission of

the offense may be seized. La.R.S. 14:80(D). Thus, attempted carnal knowledge

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and malfeasance carry the same maximum term, but malfeasance includes a greater

fine. Consequently, in the present case, the attempted carnal knowledge conviction

must be vacated.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues the district court erred

by denying his motion for mistrial based on a remark in the State’s opening.

During said opening, a prosecutor said, “The evidence will show that after the

[D]efendant is [sic] caught he request[ed] that [the victim] lie, deny, and delete

evidence from her phone.” Before making his own opening statement,

Defendant’s counsel moved for a mistrial based on La.Code Crim.P. art. 767,

which states, “The state shall not, in the opening statement, advert in any way to a

confession or inculpatory statement made by the defendant unless the statement

has been previously ruled admissible in the case.” In response, the State argues

that the statement at issue was “res gestae,” having been made as part of the

commission of the offense, and thus does not fall within the purview of La.Code

Crim.P. art. 767. This court has explained:

Appellant claims the trial court erred in failing to grant a mistrial
based on the State’s reference to inculpatory statements made by the
defendant in the State’s opening argument. Reference to inculpatory
statements in the State’s opening argument is prohibited by La. C.Cr.P.
Art. 767. Appellant claims a mistrial is warranted based on this
Article.

The portions of the opening statement to which defendant objects read
as follows:

The cashier asked him at the time of presentation--presumably, you
walk up to the counter with your items. The cashier states, “How will
you pay for this, cash, check or change?” The defendant said,
“Check”, and presented an instrument to the cashier at that time. . . .

What he did, was call back Huard’s and said I would like that TV set.
Have it delivered to me at a particular place.

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The State shall not, in the opening statement, advert in any way to a
confession or inculpatory statement made by the defendant. La.
C.Cr.P. Art. 767. An inculpatory statement is an out-of-court
admission of incriminating facts made by the defendant after the
crime has been committed. State v. Reynolds, 473 So.2d 886 (La.App.
3rd Cir.1985). In Reynolds, the State referred in its opening statement
to remarks made by the defendant to the victim during the
commission of the crime. The court found this was not an inculpatory
statement under the provisions of Article 767. The court held
defendant's motion for mistrial was correctly denied.

In the instant case, the defendant’s statements, which the prosecutor
referred to in his opening statement, were made during the
commission of the offense. As in Reynolds, supra, the statements are
not considered to be inculpatory statements because they were not
made after the crime had been committed. Consequently, Article 767
does not prohibit the prosecutor from mentioning them in his opening
statement. The trial court did not err in denying a mistrial on this
ground.

State v. Hernandez, 503 So.2d 1181, 1182-83 (La.App. 3 Cir. 1987).

Defendant’s remarks or requests were made in the course of the obstruction

of justice offense. Thus, in light of Hernandez, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third and final assignment of error, Defendant argues the district court

erred by denying his motion in limine and thus allowing evidence of “instant

messages” to be admitted at trial without proper authentication. In brief, he

focuses on “screen shots” admitted during the victim’s testimony. At a hearing on

May 20, 2015, Defendant argued his pretrial motion in limine, contending in part

that the State would not be able to authenticate any text messages or copies of text

messages it might seek to introduce. Defendant’s argument at the time appeared to

assume that the deleted texts would somehow be retrieved from his own cell

phone. However, counsel made reference to “both these phones” later. The State

then clarified that it intended to introduce “screen shots” from the victim’s phone

9

depicting messages delivered via an application called “Kick.” Although the

messages were ostensibly from “Joseph Miller,” the victim would testify that they

were from Defendant. Defendant then argued there was no way to authenticate the

messages. He appeared to assume at that point that the deleted messages had been

retrieved by some electronic means.

We have found little jurisprudence regarding the authentication or

identification of “screen shots,” but we note that the victim testified, in effect, that

they are analogous to photographs of a cell phone’s screen:

Q. Did you delete any messages off your cell phone?

A. Uh - - -

Q. - - wait, let me go back. Do you have Kick on the actual phone?

A. Yes, sir.

Q. Did you delete that app off your phone?

A. No, sir I didn’t.

Q. Okay, how was [sic] the messages that you received from this Joseph
Miller that you identified Skylar Frank to be memorialized in the phone?

A. I had screen shoted’ [sic] them before I deleted them.

Q. What is screen shot, what is that?

A. It’s where you take a picture of the screen of the phone. Like the
whole screen of the phone.

Q. And so you screen shot’ed [sic] the messages and deleted the actual
message.

A. Yes, sir.

Q. But had a picture of the actual message?

A. Yes, sir.

MR. SUMBLER:

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May I approach Your Honor?

THE COURT:

Yes, you may.

MR. SUMBLER:

Let the record reflect that I’m handing to the witness what was
previously marked State Exhibit 6.

Q. Do you recognize that?

A. Yes, I do.

Q. How do you recognize that?

A. Because those of [sic] the messages that I screen shot’ed [sic] from
the Kick before I deleted them.

Q. And that particular messages was [sic] sent to a person, Joseph
Miller?

A. The blue ones were sent to Joseph Miller and the white ones were sent
to me.

Q. Okay, and also I see that you have (inaudible) that came from your
phone?

A. All the blue ones came from my phone.

Q. (Inaudible), matter of fact go through em’ right click [sic].

A. Uh-huh (indicating yes).

Q. That was those messages fairly depicted [sic] what came off your
phone?

A. Yes, sir.

A police witness, Michael Hebert, characterized “screen shots” similarly.

In the following case, this court discussed the admissibility of photographs

and digital photographs:

Defendant also claims that some of the photographs introduced at trial
were provided to Defense counsel only a day or two before trial; thus,
counsel did not have an opportunity to determine whether they had

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been retouched. At trial, Defense counsel made essentially the same
argument when objecting to a group of digital photographs. We note,
however, that a photograph is admissible when a witness, who has
personal knowledge of the item depicted, identifies it. State v. Leggett,
363 So.2d 434 (La.1978). In the present case, the items depicted in
the contested photographs were identified by Nugent [a police officer].
This assignment lacks merit.

State v. Benedict, 04-742, p. 12 (La.App. 3 Cir. 11/10/04), 887 So.2d 649, 657.

In the instant case, the “screen shots” were identified by the victim. In light

of Benedict, this assignment lacks merit.

DECREE

The conviction and sentence for attempted carnal knowledge of a juvenile

are vacated. The remaining convictions and sentences are affirmed. However, the

case is remanded to the trial court for establishment of a payment plan for the fees

and costs to be determined by the trial court or by Probation and Parole, with

approval by the trial court. Additionally, the trial court is instructed to inform

Defendant of the correct provisions of article 930.8 by sending appropriate written

notice to Defendant within ten days of the rendition of this opinion and to file

written proof in the record that Defendant received the notice.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

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STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

15-893

STATE OF LOUISIANA

VERSUS

SKYLAR FRANK

Saunders, J., dissents and assigns written reasons.

I disagree with the majority’s decision to vacate Defendant’s conviction and

sentence for attempted felony carnal knowledge of a juvenile. First, we must apply

the Blockburger test. In order to avoid a double jeopardy challenge, under the

Blockburger test, “each provision [must] require[] proof of additional facts which

the other does not.”

The two crimes in question, malfeasance and attempted carnal knowledge,

do not, according to their definitions, appear to be the same offense. Attempted

carnal knowledge occurs when a person, age seventeen or older, attempts to have

sexual intercourse,

with consent, with a person who is thirteen years of age or older but
less than seventeen years of age, when the victim is not the spouse of
the offender and when the difference between the age of the victim
and the age of the offender is four years or greater.

La.R.S. 14:80; La.R.S. 14:27. It is sufficient that oral sex occurred. La.R.S. 14:80.

Malfeasance in office is committed when a public officer intentionally refuses or

fails to perform his lawfully required duty or intentionally performs his lawfully

required duty in an unlawful way.

On their face, it is clear that there are several elements for attempted carnal

knowledge that are not required to convict for malfeasance and vice versa. For

1

example, for malfeasance in office, the State must show that Defendant was a

public officer. No such showing is necessary for attempted carnal knowledge.

Likewise, for attempted carnal knowledge, Defendant’s age is a relevant fact that

the State must establish, no such showing is necessary for a malfeasance in office

prosecution. Thus, each offense requires proof which the other does not, and this

case fails the Blockburger test.

Additionally, in order for double jeopardy to apply, we perform the “same

evidence” test. This test examines whether “the evidence to support a finding of

guilt of one crime would have also supported conviction of the other. . . .The test

depends on the evidence necessary for conviction, not all the evidence introduced

at trial.” State v. Steele, 387 So.2d 1175, (La.1980). The concern is that “one

should not be punished (or put in jeopardy) twice for the same course of conduct.”

Id.

Here, Defendant lied to the dispatch officer regarding his location, failed to

notify the discharge officer of his location, and entered a home without a

complaint. The evidence of this conduct would not support a conviction for

attempted carnal knowledge. Additionally, there must be evidence that he was a

public officer, which also would not support a conviction for attempted carnal

knowledge. In the instant matter, it is this conduct on which the jury could have

reasonably based a malfeasance conviction and this conduct would not support the

conviction for the attempted carnal knowledge charge. In essence, this was not one

course of conduct, but two. Defendant lied about his whereabouts to the dispatch

officer and entered a home as a police officer without a complaint to serve as the

reason to do so. Separately, he engaged in sexual activity with a fifteen year old

girl. In this case, to prove he committed malfeasance in office, it was not required

2

to prove that he committed the sexual offenses. Therefore, in my opinion,

Defendant’s double jeopardy challenge cannot stand and I respectfully dissent.

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