State of Louisiana v. Larry Broussard, Jr. AKA Larry James Broussard Jr. AKA Larry J, Broussard Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-231

STATE OF LOUISIANA

VERSUS

LARRY BROUSSARD, JR.
AKA LARRY JAMES BROUSSARD, JR.
AKA LARRY J. BROUSSARD, JR.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 58613
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

REVERSED; JUDGMENT OF ACQUITTAL ENTERED.

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Larry Broussard, Jr.

Keith A. Stutes
District Attorney
Lafayette Parish
P. O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

J. N. Prather, Jr.
Assistant District Attorney
100 N. State St., Suite 215
Abbeville, LA 70510
(337) 898-4320
COUNSEL FOR APPELLEE:
State of Louisiana

EZELL, Judge.

On December 15, 2014, Larry Broussard, Jr., was charged by Bill of

Information with failure to register as a sex offender, a violation of La.R.S.

15:542.1.4. A jury trial commenced on October 15, 2015, following which the

jury found Defendant guilty as charged. Defendant was sentenced on December

17, 2016, to fifteen years at hard labor without the benefit of parole, probation, or

suspension of sentence. The sentence was ordered to be served consecutively with

the two-year sentence imposed on the same date in trial court docket number

56662.1 Defendant has perfected a timely appeal, wherein he asserts the following

assignments of error:

1. The evidence introduced at the trial of this case, when
viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979) standard, was insufficient to prove, beyond a
reasonable doubt, all of the elements of the charged offense.

2. The trial court erred in failing to correctly and sufficiently
instruct the jury as to the law necessary for the jury to evaluate the
evidence and render a proper verdict in the case, thereby denying
Appellant of his right to a fair trial as guaranteed to him by both the
Constitution of the United States and the Louisiana Constitution.

3. The State’s opening and rebuttal arguments improperly
misled the jury as to the law applicable to the case, to the detriment of
Appellant, thereby denying Appellant of his right to a fair trial as
guaranteed to him by both the Constitution of the United States and
the Louisiana Constitution.

4. Counsel’s representation of Appellant fell below that
guaranteed by the Sixth Amendment as she failed to object to the
deficiencies in the instructions given to the jury as to the applicable
law of the case and failed to object to the State’s improper argument
both in its opening statement and rebuttal argument.

5. The trial court erred in denying the defense’s challenge for
cause of potential juror Leger.

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Defendant was convicted of aggravated flight from a police officer on August 5, 2015,
under trial court docket number 56662. Defendant has appealed the conviction under this court’s
docket number 16-230.

We find that there is merit to Defendant’s assignment of error number one,

which requires this court to vacate the convciction of failure to register as a sex

offender, second offense. The remaining assignments of errors are therefore moot.

FACTS

On July 21, 1999, Defendant pled guilty to one count of sexual battery, a

violation of La.R.S. 14:43.1. The victim was eighteen years old at the time of the

offense. Defendant was sentenced to five years, suspended, eighteen months in the

parish jail, four years of supervised probation, and ordered to register as a sex

offender. The sentence was ordered to run concurrently with sentences imposed

under three other trial court docket numbers: 34686, 33597, and 33565.

Defendant’s initial sex offender registration date was February 12, 2001.

On April 3, 2007, Defendant pled guilty to failure to report “on or about

January 7, 2004 through April 8, 2004,” a violation of La.R.S. 15:542.1.4. He was

sentenced to five years at hard labor. The sentence was ordered to run

concurrently with a sentence imposed in lower court docket number 44744, but

consecutive to another sentence.

On or about April 8, 2014, a deputy with the Vermilion Parish Sheriff’s

Office, Susan Hebert, sent a “Notice Sex Offender and Child Predator Registry &

Notification” to Defendant where he then was incarcerated. The notice advised

Defendant that upon release from incarceration, he was to comply with the sex

offender requirements in August 2014. The notice also stated that the next

reporting date was in February 2015. Upon release, Defendant did not report in

August 2014.

On August 28, 2014, a registered letter sent to Defendant at the address he

listed where he could be located once he bonded out of jail, reminding him of the

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requirement to report in August, was returned to sender as unclaimed. Defendant

was charged by Bill of Information on December 15, 2014, with failure to register,

a violation of La.R.S. 15:542.1.4. An Amended Bill of Information was filed on

March 23, 2015, for failure “to register, periodically renew and update registration,

provide proof of residence or notification of change of address or other registration

information, or provide community notification as required,” second offense.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment, Defendant argues that the evidence given to the jury was

not only insufficient but incorrect and misleading. At trial, the State insisted, the

witness testified, and the trial court instructed the jury that Defendant was required

to register as a sex offender for twenty-five years and report to the applicable

agency twice a year.

For a defendant who was convicted of sexual battery of a victim who was

not a minor, as in the present case, the sex offender registration duration period is

fifteen years, and the defendant is required to report and update information

annually on the date of the initial registration. The applicable law pertaining to sex

offender registration and notification is as follows:

Louisiana Revised Statutes 15:544(B)(2), in pertinent part, provides:

A. Except as provided for in Subsection B of this Section, a
person required to register and provide notification pursuant to the
provisions of this Chapter shall comply with the requirement for a
period of fifteen years from the date of the initial registration in
Louisiana, or the duration of the lifetime of the offender as provided
in Subsection E of this Section, unless the underlying conviction is
reversed, set aside, or vacated. The requirement to register shall apply
to an offender who is pardoned.

B. (1) A person required to register pursuant to this Chapter
who was convicted of a sexual offense against a victim who is a minor
as defined in R.S. 15:541 shall register and maintain his registration
and provide community notification pursuant to the provisions of this

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Chapter for a period of twenty-five years from the date of initial
registration in Louisiana, or the duration of the lifetime of the offender
as provided in Subsection E of this Section, unless the underlying
conviction is reversed, set aside, or vacated.

Furthermore, La.R.S. 15:542.1.1(A), in pertinent part, provides:

A. (1) Any person convicted of an aggravated offense as
defined in R.S. 15:541 or any person with a prior conviction or
adjudication for an offense which requires registration pursuant to this
Chapter, regardless of whether or not the prior offense required
registration at the time of commission or conviction, who is
subsequently convicted of or adjudicated for an offense which
requires registration pursuant to the provisions of this Chapter, shall
renew and update his registration required by R.S. 15:542 in person
every three months from the date of initial registration.

(2) Any person convicted of a sexual offense against a victim
who is a minor as defined in R.S. 15:541 shall renew and update his
registration required by R.S. 15:542 in person every six months from
the date of initial registration.

(3) Any other person subject to registration as provided in R.S.
15:542 shall update his registration in person annually from the date
of initial registration.

Insufficient Evidence

Defendant argues that he was not required to report on or about October 1,

2014, (which was the date listed in the amended bill of information), after he

bonded out of jail in April 2014. Defendant argues that the State failed to meet its

burden of proving all the elements of failure to report and notify as required by

La.R.S. 15:542 and failed to prove that the provisions of La.R.S. 15:544(E) had not

lapsed or was not applicable to Defendant. Accordingly, Defendant argues the

evidence was insufficient to sustain the verdict of failure to register, second

offense.

In reviewing the sufficiency of evidence, an appellate court
must determine that 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

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doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979). Additionally, when circumstantial evidence forms the
basis of the conviction, the evidence, “assuming every fact to be
proved that the evidence tends to prove . . . must exclude every
reasonable hypothesis of innocence.” La. R.S. 15:438; see State v.
Jacobs, 504 So.2d 817, 820 (La.1987) (all direct and circumstantial
evidence must meet the Jackson v. Virginia test); State v. Porretto,
468 So.2d 1142, 1146 (La.1985) (La. R.S. 15:438 mandates that “all
evidence both direct and circumstantial, must be sufficient under
Jackson to satisfy a rational juror that the defendant is guilty beyond a
reasonable doubt.”).

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. Jones, 97-2591, p. 7 (La.App. 4 Cir. 9/8/99), 744 So.2d 165, 169.
The trier of fact makes credibility determinations, and may, within the
bounds of rationality, accept or reject the testimony of any witness.
Thus, the reviewing court may impinge on the fact-finder’s discretion
only to the extent necessary to guarantee the fundamental due process
of law. State v. Harris, 02-1589, p. 4 (La.5/20/03), 846 So.2d 709,
713, citing State v. Mussall, 523 So.2d 1305, 1310 (La.1988).

State v. Watts, 09-912, pp. 21-22 (La.App. 4 Cir. 6/16/10), 41 So.3d 625, 640-41,

writ denied, 10-1685 (La. 1/28/11), 56 So.3d 966 (alteration in original).

At trial, prior to bringing the jury into the courtroom, the following

conversation ensued among the trial court, the State, and defense counsel:

YOUR HONOR: I need to know whether or not his
requirement is to register for 15, 25, or a lifetime?

MR. PRATHER: Twice a year for 25.

YOUR HONOR: Twenty-five? So is it an offense against a
minor?

MR. PRATHER: I want to say that’s the - -

MS. DE MAHY: What’s this? For the purpose of an inquiry?

YOUR HONOR: For preliminary instructions, I’m to read the
law. So 1544 [sic] provides the duration of registration which will be
read to the jury. So the duration is either 15, 25, or lifetime.

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MS. DE MAHY: Since it’s not evidence yet, I would just - - I
mean, I hate to put them through that. I just think we have to read the
whole thing.

YOUR HONOR: It’s the law. They have - - I have to read the
statute.

MS. DE MAHY: Well, no. But rather than reading them just
the 15, I would rather you just read the whole statute, because it’s not
- - unless we have part of the record or something that shows or
something that’s been put into evidence that shows what his tier level
is and his requirement - -

YOUR HONOR: I mean, it’s going to read, “A person required
to register as a sex offender or child predator shall register and
maintain his registration for a period of blank years.”

MR. PRATHER: Twenty-five.

MS. DE MAHY: Do we have something that’s already in the
record? That’s what I’m saying. I’m not trying to be difficult. I’m
just - - that’s part of what the State’s burden is, is to prove his
registration requirement. So if we’re reading that the registration
requirement is so many years, they’re not having to prove anything
about how long he has to register.

YOUR HONOR: They would have to prove - -

MS. DE MAHY: They have to prove that he has to register and
what registration requirements he has.

YOUR HONOR: So he’s telling me that he falls under Tier 2,
which is 25 years.

MS. DE MAHY: Who’s telling you?

YOUR HONOR: The State is telling me, the one who brought
the charge that’s listed on the Bill of Information. And I’m reading
the law as it’s provided on the Bill of Information, the statute, right?

MR. PRATHER: Correct.

YOUR HONOR: Okay. So it will read, “A person required to
register under this section as a sex offender or child predator shall
register and maintain his registration for a period of 25 years after the
day on which the person was released from prison, placed on
probation, supervised release, or probation for a conviction giving rise
to the requirement to register.” Any objection to that question Ms. De
Mahy? I’m assuming, Mr. Prather you don’t have an objection - -

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MR. PRATHER: No objection.

YOUR HONOR: - - so you want to note an objection?

MS. DE MAHY: I noted my objection on the record, Your
Honor, my previous objection.

Accordingly, prior to opening statements by the State and defense counsel,

the trial court instructed the jury as to the sex offender registration and notification

law that “[a]ny person required to register shall update his registration annually or

twice a year as required by law, on the anniversary of the initial registration, with

the appropriate law-enforcement officials.” The trial court further instructed the

jury that “[a] person required to register under this section as a sex offender or a

child predator shall register and maintain his registration for a period of twenty-

five years after the date on which the person was released from prison, placed on

parole, supervised release, or probation for a conviction giving rise to the

requirement to register.” During its opening statement, the State further advised

the jury that Defendant failed to meet his biannual registration date after he was

given a document telling him that he was “supposed to be back and register on

such-and-such date and in six months you’re supposed to be back and register

again, because he has a 25-year registration requirement as a result of the

conviction of the Sexual Battery.”

Susan Hebert, a deputy with the Vermilion Parish Sheriff’s Office, testified

that Defendant was convicted in 1999 of sexual battery. She stated that as a sex

offender he is required to register and update the registration bi-yearly for twenty-

five years. She testified that he was convicted of failure to report as required in

2007. She testified that on April 8, 2014, she took a registration and notification

letter to wherever Defendant was in jail at the time, notifying him that he had to

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report in August 2014. August and February would be correct if he was required

to report twice yearly, as she testified his initial registration date was on February

12, 2001. Deputy Hebert stated that in September 2014, she sent a registered letter

to the address Defendant provided on the April registration and notification letter,

202 Tenth Street, Gueydan, Louisiana, but the letter came back as “Return to

Sender.” She stated she attempted to contact him by phone at the number in his

record to no avail. She said she called his mother, and she did not have a good

telephone number for him. Deputy Hebert also stated that when she took the April

registration and notification letter to Defendant, she did not know if he was in

compliance with the sex offender registration and notification requirement at that

time.

Gerald Trahan, a deputy with the Vermilion Parish Sheriff’s Office, testified

that one of his duties was to make compliance checks on registered sex offenders.

Deputy Trahan testified that in 2010, he went to the address Defendant listed as his

address on the April 2014 registration and notification letter and located Defendant

at that address. He then testified that “[a]fter that point is where I was contacted

and tried to contact Mr. Broussard again and was unable to reach Mr. Broussard at

his home.”

Defendant argues that the jury did not have the correct information in which

to determine on what date he was required to report and whether he failed to report

on that date.

Analysis

Defendant argues the evidence presented on that issue was insufficient

precisely because the jury was given the incorrect law to apply to the alleged

offense. The only evidence was Deputy Hebert’s testimony, and her testimony

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was inconsistent and irreconcilable. Defendant notes in brief that it is not a matter

of reweighing the credibility of the witness. “[T]he testimony of a single witness,

absent internal contradictions or irreconcilable conflicts with physical evidence, is

sufficient to support a conviction.” State v. Jeter, 09-1004, p. 3 (La.App. 3 Cir.

4/7/10), 33 So.3d 1041, 1043. Defendant argues “that [Deputy Hebert’s] testimony

is internally inconsistent as she testified that the last tier (tier three) was all sexual

offenses that do not include minors or the ones that were required to register for

life – or was minors to a certain age, yet she testified that Appellant was a tier two

reporter, requiring twice a year reporting, despite testifying that the victim of the

sexual battery was eighteen years old and was not a minor.” A minor in the case of

sexual battery for the purpose of the sex offender registration law is defined as a

victim under the age of eighteen. La.R.S. 15:541(25)(a).

Conclusion

We find that the evidence was insufficient to establish that Defendant was

required to report to the appropriate sex offender registration agency twice yearly,

in August and in February. Defendant was not convicted of sexual battery of a

minor. According to the witness, Deputy Hebert, Defendant’s initial registration

date was in February and he was required to register and report in August and

February; however, she also testified that the victim was not a minor and did not

explain what circumstances required Defendant to report twice yearly. We note

that in response to allegations made in Defendant’s appellate brief, the State still

did not explain why Defendant was required to register for twenty-five years and

report biannually. The State argues only that Defendant “offered neither testimony

nor documentary evidence to refute any of the evidence presented by the State.”

The only evidence presented by the State was Deputy Hebert’s testimony, and her

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testimony was internally contradictory and irreconcilable with the facts of the

sexual battery offense. See State v. Jeter, 33 So.3d 1041. She testified Defendant

was classified in the same tier as a sex offender whose victim was a minor, yet she

testified the victim was not a minor.

The best evidence regarding Defendant’s duration and notification

requirements, in this case, would have been the sex offender’s registration contract

pursuant to La.R.S. 15:543.1. While Defendant was not required to at the time he

was convicted in 1999, he would have been required to sign a contract after the sex

offender registration law was amended in 2007, possibly after he was convicted of

failure to register, first offense. The contract was never introduced into evidence.

Even the trial court was confused. When the trial court inquired about how many

years Defendant was required to register and was told twenty-five years, the trial

court asked, “Twenty-five? So is it an offense against a minor?” There was never

an explanation given at trial which supported the State’s assertion. We have

thoroughly reviewed the Sex Offender Laws and have found nothing that would

permit or require an enhancement or increase in the duration period of the

registration and notification obligation for Defendant.

Defendant’s remaining assignments of error are moot.

DECREE

For all of the above reasons, Larry Broussard, Jr.’s conviction and sentence

are reversed and set aside and a judgment of acquittal is entered in Defendant’s

favor.

REVERSED; JUDGMENT OF ACQUITTAL ENTERED.

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