State of Louisiana v. Ron Cleon Johnson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
23-510 consolidated with 23-368

STATE OF LOUISIANA

VERSUS

RON CLEON JOHNSON

**********

APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NUMBER C32761
HONORABLE DESIREE DUHON DYESS, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

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Court composed of Elizabeth A. Pickett, Candyce G. Perret, and Sharon Darville
Wilson, Judges.

CONVICTIONS AFFIRMED; HABITUAL OFENDER SENTENCE
VACATED AND REMANDED FOR RESENTENCING
WITH INSTRUCTIONS.

G. Paul Marx
Louisiana Appellate Project
Post Office Box 82389
Lafayette, LA 70598-2389
(337) 237-2537
COUNSEL FOR DEFENDANT/APPELLANT:
Ron Cleon Johnson

Billy Joseph Harrington
District Attorney
Clifford Royce Strider, III
Assistant Attorney General
R. Bray Williams
Assistant District Attorney
Post Office Box 838
Natchitoches, LA 71458-0838
200 Church Street
Natchitoches, LA 71457
(318) 357-2214
COUNSEL FOR APPELLEE:
State of Louisiana

Ron Cleon Johnson
Madison Parish Correctional Center
Building 4, Dorm D
158 Treatment Plant Road
Tallulah, LA 71282-7406
DEFENDANT/APPELLANT
In Proper Person

PERRET, Judge.

Defendant, Ron Cleon Johnson, was convicted by a jury of three counts of

violation of a protective order, second offense, and was subsequently sentenced to

two years on each count, to be served consecutively, in the Department of

Corrections, without benefit of probation, parole, or suspension of sentence. A fine

of $1,000.00 on each count was also ordered. After the State filed a habitual offender

bill, Defendant was adjudicated a fourth habitual offender and sentenced to twenty

years in the Department of Corrections, without benefit of probation or suspension

of sentence. Defendant now appeals and challenges his convictions and sentence

via pro se and counsel-filed briefs. After review, we affirm Defendant’s convictions

but vacate the twenty-year sentence imposed by the trial court as indeterminate and

remand the matter for resentencing with instructions.

FACTS AND PROCEDURAL BACKGROUND:

Defendant was charged and convicted of violating three separate protective

orders on March 22, 2022, all three of which prohibited him from contacting Sabrina

Johnson. The three protective orders were issued following three separate arrests.

All three protective orders were in effect when Defendant made the phone call from

jail to Sabrina on March 22, 20222. The effective dates of the protective orders were

August 2, 2021–August 2, 2022; September 27, 2021–September 27, 2022; and

March 22, 2022–March 22, 2023.

Defendant was charged on October 13, 2022, with two counts of misdemeanor

violations of protective orders, violations of La.R.S. 14:79. The October 13, 2022

Bill of Information indicated that Defendant violated an August 2021 order and a

September 2021 order on March 22, 2022, by contacting the protected person.

Subsequently, on October 27, 2022, Defendant was convicted of violation of

a protective order in another docket number, C32155A. Information regarding that

conviction, specifically which protective order was violated and the date it was

violated, is not in the bill of information, and that information was not provided in a

stipulation from the parties.

Consequently, the State filed an amended bill of information, in the instant

case, charging Defendant with the same two counts originally charged, with a third

count of violation of a protective order, specifically a March 2022 order, and with

the enhanced charge of being a second offense on all three counts. According to

La.R.S. 14:79(B)(2), it does not matter that the instant offenses occurred before the

conviction used as the basis for the second offense enhancement.

Thus, on November 2, 2022, Defendant was charged by bill of information

with three counts of violation of a protective order, second offense, violations of

La.R.S. 14:79(B)(2). On November 15, 2022, a six-person jury found Defendant

guilty of all three counts. Subsequently, on December 15, 2022, the trial court

sentenced Defendant on each count to two years in the Department of Corrections,

without benefit of probation, parole, or suspension of sentence. The trial court also

imposed a $1,000 fine on each count and ordered the sentences to run consecutively.

At the same hearing, the State filed a habitual offender bill of information, and

Defendant entered a denial to the charge. On March 8, 2023, the trial court

adjudicated Defendant a fourth habitual offender and sentenced him to twenty years

in the Department of Corrections, without benefit of probation or suspension of

sentence.

After sentencing, Defendant filed two pro se motions that were denied by the

trial court—a motion for concurrent sentences and a motion to vacate and set aside

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illegal sentence. On June 8, 2023, Defendant filed a writ application with this court

seeking supervisory review of the denial of his motion to correct illegal sentence.

On August 30, 2023, this court ordered the writ application and Defendant’s appeal

be consolidated.

On January 20, 2023, Defendant filed a pro se Motion to Appeal Conviction

and Sentence. On February 8, 2023, Defendant filed a pro se motion for out-of-time

appeal, which was granted that same date. Now before the court is a brief filed by

Defendant’s appellate counsel, alleging four assignments of error—three attacking

Defendant’s convictions and one alleging excessive sentence. Also before the court

is a pro se brief filed by Defendant, alleging five assignments of error, all of which

challenge his convictions.

Counsel-Filed Assignments of Error:

I. The conviction in this case violates the constitutional bar
against double jeopardy, where the State relied on one phone call from
the jail to convict Ron Cleon Johnson of a misdemeanor offense, and
then to convict him on three felony counts.

II. The protective orders recited in the [second] amended bill
of information . . . were not in effect on the March 22, 2022 date of
offense. The restraining orders issued as a condition of bail were
dismissed when bail was revoked on March 22, 2022.

III. There was insufficient evidence to convict, where the State
could not prove beyond a reasonable doubt that the single phone call
relied on by the State was made to the alleged “protected person” in the
protective orders.

IV. The mandatory 20 year minimum under R.S. 15:529 was
an excessive sentence, as there are no predicate convictions other than
property crimes, and the single phone call introduced into evidence was
not a threatening or harassing communication.

Pro Se Assignments of Error:

I. The evidence to which the (state) used at trial to convict
the appellant being the recorded jailhouse phone call was ruled by the
trial court upon the prior date of October 24, 2022, as inadmissible

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evidence and the presiding judge Hon. Desiree Duhon Dyess “allowed
the inadmissible evidence to be introduced at trial which is illegal on
behalf of the trial court to do so and to allow such.

II. The conviction of count number []3[] of the second
amended bill of information of trial docket number []32761-A[]
amounts to “double jeopardy.” Because the appellant was previously
convicted of the exact same identical offense within the misdemeanor
trial docket number []32155-A. Louisiana law prohibits sentencing an
accused defendant “twice” as for the same criminal charged offense.

III. The conviction in this case to which the prosecution for
the state used coerced perjured testimony of the state’s witness, namely:
Mr. Yancy Spillman who actually violated the appellant’s due process
rights when failing to comply with the statutory mandates of Louisiana
Electronic Surveillance Act. La.R.S. 15:1310 as the state’s witness,
namely: Yancy Spillman in his official capacity as an investigatory
employee at: Natchitoches Parish Jail, disregarded Louisiana Statutory
Law in failing to obtain or verify if the trial court judge issued an order
authorizing or approving interception of recorded jail phone calls
regarding the specific phone call of March 22, 2022, jail phone call.

IV. The Natchitoches Parish Clerk of Court [] Deputy Clerk:
Whitney Charles, upon the prior date of: 11/14/2022, was instructed,
thus ordered by the trial court to read the criminal accusation being the
second amended Bill of Information to which the above named officer
of the trial court incorrectly misinformed the jurors at the beginning of
trial that the appellant defendant had been previously convicted upon
the prior date of October 27, 2022, of a felony?

When in fact the defendant was only convicted of a misdemeanor
offense and not a felony so therefore the jurors during trial was [sic]
provided incorrect reading of the second amended bill of information.

V. The trial court “erred and abused its discretion” when
continuing with the trial court proceeding after the defendant properly
informed the court upon the record at the beginning of trial that he had
a pending supervisory writ application, within the third circuit court of
appeal regarding his prior predicate conviction out of Lafayette Parish
trial docket number []157844[,] and the trial court disregarded such
whereas the trial proceeding continued in an unlawful manner.

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 two errors

patent involving Defendant’s habitual offender sentence, one of which requires

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Defendant’s habitual offender sentence be vacated and the case remanded for

resentencing.

First, we find that the trial court imposed an indeterminate habitual offender

sentence. Defendant was found guilty of three counts of violation of a protective

order, second offense. At the original sentencing hearing on December 15, 2022,

the trial court sentenced Defendant on each count to two years in the Louisiana

Department of Corrections, without benefit of parole, probation, or suspension of

sentence. The trial court also imposed a $1,000 fine on each count and ordered each

of the counts to run consecutively. On that same date, the State filed a habitual

offender bill, charging Defendant as a fourth habitual offender. At a habitual

offender hearing on March 8, 2023, the trial court found that Defendant was a fourth

felony offender and vacated “defendant’s prior sentence, rendered on December 15,

2022[.]” The trial court then sentenced Defendant to serve twenty years at lard labor

without benefit of probation or suspension of sentence.

Because the trial court vacated the original “sentence,” but three sentences

had been originally imposed, and then imposed only one habitual offender sentence,

Defendant’s habitual offender sentence is indeterminate. Although it is possible for

the State to seek habitual offender enhancement on only one of the original

sentences, it is not clear that the State intended to do so in the present case. The

State alleged in the habitual offender bill that Defendant “was convicted by a jury of

Violation of a Protective Order, Second Offense, a felony, in violation of La.R.S.

14:79, on November 15, 2022, which was committed on March 22, 2022.” This

language does not clearly single out any one of the three convictions for violation of

a protective order, second offense. Additionally, the State’s prayer in the habitual

offender bill does not single out any one conviction. Consequently, it is not clear

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whether the trial court intended to vacate only one original sentence and impose a

habitual offender sentence on that count alone, and, if so, which count, or whether

the trial court intended to vacate all the original sentences and impose a habitual

offender sentence on each. If the latter is the case, the trial court erred in imposing

only one habitual offender sentence.

As a result, the habitual offender sentence is indeterminate and must be

vacated. The case is remanded for resentencing, with the trial court instructed to

specify which of the original sentences are vacated. For each sentence that is

vacated, the trial court is instructed to impose a separate sentence and specify

whether the sentence is being enhanced pursuant to the habitual offender

adjudication.

Secondly, although the trial court imposed the habitual offender sentence

without benefit of probation or suspension of sentence, it failed to impose any

portion of the habitual offender sentence without benefit of parole. “[T]he

restrictions on parole eligibility imposed on multiple offender sentences under

La.R.S. 15:529.1 ‘are those called for in the reference statute.’” State v. Tate, 99-

1483, pp. 1–2 (La. 11/24/99), 747 So.2d 519, 520. At the time Defendant committed

the offenses at issue, the penalty provision for violation of a protective order, second

offense, required at least fourteen days to be served without benefit of parole.

La.R.S. 14:79(B)(2). Accordingly, we instruct the trial court that at least fourteen

days of the sentences imposed upon Defendant, whether enhanced as a habitual

offender or not, must be served without benefit of parole as well as without benefit

of probation or suspension of sentence.

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COUNSEL-FILED ASSIGNMENT OF ERROR NUMBER 3:

In this assignment of error, Defendant makes a sufficiency of the evidence

argument. We consider this assignment of error first, in accordance with State v.

Hearold, 603 So.2d 731 (La.1992) (sufficiency of the evidence should be addressed

prior to trial errors as the defendant may be entitled to an acquittal). In all three

protective orders that he was accused of violating, Defendant was prohibited from

contacting, including by telephone, the protected person named “Sabrina Johnson.”

Thus, in this assignment of error, Defendant asserts that the State failed to prove

beyond a reasonable doubt that the March 22, 2022 phone call was made to the

Sabrina Johnson protected by the protective orders.

Standard of Review

In reviewing the sufficiency of evidence, this court has set forth the standard

of review as follows:

When the issue of sufficiency of evidence is raised
on appeal, the critical inquiry of the reviewing court is
whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel.
Graffagnino v. King, 436 So.2d 559 (La.1983); State v.
Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393
So.2d 1212 (La. 1981). It is the role of the fact finder to
weigh the respective credibilities of the witnesses, and
therefore, the appellate court should not second guess the
credibility determinations of the trier of fact beyond the
sufficiency evaluations under the Jackson standard of
review. See Graffagnino, 436 So.2d at 563, citing State v.
Richardson, 425 So.2d 1228 (La.1983). To obtain a
conviction, the elements of the crime must be proven
beyond a reasonable doubt.

State v. Thacker, 13-516, p. 5 (La.App. 3 Cir. 1/28/15), 157 So.3d 798,
804 (quoting State v. Freeman, 01-997, pp. 2-3 (La.App. 3 Cir.
12/12/01), 801 So.2d 578, 580).

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State v. Worley, 21-688, pp. 3–4 (La.App. 3 Cir. 8/3/22), 344 So.3d 757, 760, writ

denied, 22-1381 (La. 12/20/22), 352 So.3d 86.

Evidence Introduced at Trial

At the beginning of trial, the parties stipulated that on October 27, 2022,

Defendant was convicted of violation of a protective order, a violation of La.R.S.

14:79, in docket number C32155A. Defendant was sentenced to six months in parish

prison and fined $500. This was the eventual basis for amending the bill of

information and charging Defendant with violating La.R.S. 14:79 (B)(2).

The first witness to testify was Lieutenant Gregory Eldridge of the

Natchitoches Parish Sheriff’s Office Correction Bureau. According to Lieutenant

Eldridge, Defendant was incarcerated at the Natchitoches Parish Detention Center.

The lieutenant identified State’s Exhibit One as a protective order in docket number

C31538A. When asked to name the defendant in the protective order, Lieutenant

Eldridge named Ron Johnson, Defendant in the present case. Lieutenant Eldridge

testified that the protected person was Sabrina Johnson. According to Lieutenant

Eldridge, the protective order, signed by Judge Dyess on August 2, 2021, ordered

Defendant not to contact the protected person personally through any means,

including telephone. Lieutenant Eldridge testified that the protective order was in

effect until August 2, 2022.

Lieutenant Eldridge identified State’s Exhibit Two as another protective order

naming Ron Johnson as the defendant and the protected person as Sabrina Johnson.

The order was signed on September 27, 2021, and remained in effect until September

27, 2022. Like State’s Exhibit One, the protective order labeled State’s Exhibit Two

prohibited Defendant from contacting the protected person by any means, including

telephone.

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The next witness to testify was Terry Williams, a patrol officer with the

Natchitoches Parish Sheriff’s Office. Officer Williams identified State’s Exhibit

Three as a protective order that named Ron Johnson as the defendant and Sabrina

Johnson as the protected person. Identifying Defendant’s signature on the protective

order, Officer Williams stated that it was effective beginning March 22, 2022, and

expired on March 22, 2023. According to Officer Williams, he served the protective

order on Defendant after a bond hearing held March 22, 2022.

A redacted copy of the March 22, 2022 bond reduction hearing was introduced

as State’s Exhibit Four. The State directed Officer Williams to a portion of Exhibit

Four, which Office Williams recognized as the trial judge stating the following to

Defendant:

She said, uh, as an additional condition of this arrest, you need
to have no contact with the victim, Sabrina Johnson. This contact
includes . . . and she reads off what’s actually on the protective order.
This includes no personal contact, no third-party contact, no telephone
contact, no email contact, no text messaging contact, no contact via
social network sites, uh, send no messages to the victim whether it is
by a family member . . . uh, no contact means no contact.

According to Officer Williams, the trial judge informed Defendant that the

new protective order remained in effect until March 22, 2023, unless extended by

the court.

Yancy Spillman, a detective with the Natchitoches Parish Sheriff’s Office,

listened to the outgoing phone calls made by inmates. According to Detective

Spillman, every phone call made by an inmate is automatically recorded. As for

Defendant in particular, Detective Spillman testified that he was very familiar with

Defendant and saw him in the facility most every day. Detective Spillman further

testified that he had personally listened to some of Defendant’s phone calls and was

able to recognize Defendant’s voice. When asked how he was able to recognize

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Defendant’s voice, Detective Spillman responded that he had talked to Defendant

“face to face” “a lot.” The detective estimated that he had listened to hundreds of

phone calls made by Defendant.

Detective Spillman testified that he was contacted by the Natchitoches Police

Department regarding a specific phone call made by Defendant on March 22, 2022.1

When asked if he was able to find the specific phone call, Detective Spillman

responded, “Yes[,]” and explained that every call has the date, the time, the inmate’s

PIN, and the destination being called. Detective Spillman identified the phone call

as being made on March 22, 2022, at 5:28 p.m., from Defendant’s PIN, and he

identified the destination phone number. According to Detective Spillman, he also

recognized Defendant’s voice in the phone call. Detective Spillman confirmed that

the phone call was initiated by Defendant. Detective Spillman identified State’s

Exhibit Six as the transcript of the phone call made by Defendant to Sabrina Johnson

on March 22, 2022 at 5:28 p.m. The transcript of the phone call was published to

the jury, and the audio of the call was played for the jury.

On cross-examination, the following colloquy took place regarding the

detective’s knowledge that the recipient of the phone call in question was Sabrina

Johnson:

Q. Okay. So, you don’t know . . . you can only guess whose number
that is? What foundation do you have, that that number is a Sabrina
Johnson?

A. I’m just going off . . . I don’t know if that’s Sabrina Johnson.
You asked me, is there a method for me to be able to find out a
destination number. And, yes, there is [sic] ways I can, but I didn’t do
that on this number.

1
Detective Spillman stated that he believed the phone call was made on March 22, 2020 or
2022. The State then asked, “So, March 2, 2022?” Detective Spillman replied, “Yeah.” Later in
his testimony, however, Detective Spillman confirmed that the phone call was made on March 22,
2022.

10

Acknowledging that he had never met the Sabrina Johnson who was the

subject of the protective order in question and acknowledging that he did not know

for sure that the person Defendant called was the same Sabrina Johnson that was the

subject of the protective order, Detective Spillman testified: “I know a Sabrina. . . I

know it’s a Sabrina that he talks to, what she looks like, but I don’t know if it’s the

same Sabrina.

On re-direct examination, Detective Spillman testified that in the transcript of

the phone call, State’s Exhibit Six, Defendant called the person he was speaking to

“Sabrina” and told her he loved her. Defendant also told Sabrina to go on with her

life and that “[i]t’s over with.” Defendant also mentioned that pictures had been

taken of Sabrina’s neck and the side of her face. According to Detective Spillman,

Defendant complained in the phone call about the police taking pictures of Sabrina’s

neck and face the night of his arrest. Detective Spillman read from a portion of the

phone call transcript wherein Defendant referred to events that had occurred the

previous weekend, specifically mentioning that he had put his hands on Sabrina.

Finally, Detective Spillman read a portion of the phone call transcript wherein

Defendant told Sabrina that he knew she would not testify against him.

The next witness, Detective Shamaria Lewis, testified that he received a call

about a domestic disturbance sometime in March. According to Detective Lewis, a

female reported that a male subject was causing a disturbance. Detective Lewis

testified that he was in the courtroom when the telephone call was played and

identified the voices as Ronald Johnson and Sabrina Johnson. According to

Detective Lewis, he had met Sabrina Johnson twice before and had had a long

conversation with her. Detective Lewis also recognized the phone number called by

Defendant as being Sabrina Johnson’s phone number.

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When asked if he heard Defendant mention photographs during the phone

conversation, Detective Lewis testified that Defendant referred to a situation

between Defendant and “Ms. Sabrina.” Detective Lewis agreed that he was the one

who took photographs of Sabrina Johnson. When asked if he had any doubt as to

the identity of the voices on the telephone call, Detective Lewis responded, “No, I

know who [sic] voice is on the phone call. There’s no doubt at all.” Finally, on re-

direct examination, the following colloquy occurred between the State and Detective

Lewis:

Q. Detective Lewis, who are the two voices on that telephone call?

A. Mr. Ron Johnson, and Ms. Sabrina Johnson.

Q. Is there any doubt [sic] your mind as to the ID of those two
voices?

A. No, Sir. No doubt at all.

Q. And that’s because of your personal interactions with both Ron
Johnson and Sabrina Johnson.

A. Yes, sir. I spent quite some time dealing with that situation. So,
there’s no doubt at all.

Q. And facts that you testified to, that Mr. Johnson’s speaking of, in
his phone call, those were specific to your involvement with those two
individuals, isn’t that correct?

A. Yes, Sir, that is correct.

Q. And the number she gave you as her number, that’s the number
that’s listed there on the television screen is it not? As the phone call
that he made from the Detention Center . . . he being Mr. Johnson?

A. Yes, Sir, that’s the number she gave me, and told me I could
contact her at.

As stated previously, the transcript of the phone call in question was

introduced as State’s Exhibit Six. In the call, Defendant called the recipient,

“Sabrina.” Defendant told Sabrina he loved her but that “it” was over and that she

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should go on with her life. When Sabrina asked Defendant what he was talking

about, Defendant complained about his bond being revoked. Defendant accused

Sabrina of letting the police take pictures of her neck and the side of her face.

Defendant also told Sabrina that her statement was read in court.

Although Defendant acknowledged that he was high, that he was drunk, and

that he was not in his right mind, he blamed his incarceration on Sabrina’s call to the

police. Defendant questioned Sabrina as to how they could have a relationship while

he was in prison. Continuing to lament over his predicament, Defendant told Sabrina

that he loves her, that he made a mistake, that he was not in his right mind, and that

he would not have put his hands on her.

When Sabrina said there must be something they could do, Defendant told her

not to throw his things in the trash. Sabrina told Defendant that she would not throw

his stuff away but would take it to his mom’s house when she was forced to leave

the apartment. Defendant asked Sabrina why she would have to leave the apartment,

and Sabrina explained that she could not afford to pay the bills by herself.

During the phone call, Defendant told Sabrina that he knew she would not

“come to court on none of that sh[] (inaudible) against [him].” Defendant further

told Sabrina to do what she had to do but to tell any man she is with that her

“husband” is in jail. Sabrina told Defendant that she loved him and would wait for

him.

Defendant’s Argument

Defendant argues the following in support of the sufficiency assignment of

error:

The record of this case has no testimony from the victim, who
actually filed affidavits recanting her claims of abuse (Rec. 483-484),
and she was never informed of her right to petition the court to amend

13

or suspend protective orders. In fact, the laws provides [sic] that a bail
condition regarding communication “shall not apply if the victim
consents by way of a request to the court and the court issues an order
permitting the communication” (La. C.Cr.P. Art. 320). The District
Attorney tendered Sabrina’s affidavits in lieu of the testimony of the
state’s “Victim Advocacy” person.[2] There is no evidence anyone
informed Sabrina of this right, but in fact, the tenor of the phone call in
this case and Sabrina’s accepting the call when it could easily have been
blocked indicate she would have made that request.

The evidence introduced at the trial of this case, when viewed
under the Jackson v. Virginia, 443 U.S. 307 (1979) standard, was
insufficient to prove beyond a reasonable doubt that the “Sabrina”
referenced in the phone call was the “protected person” who was not to
be contacted.

State’s Argument

The State summarizes the evidence introduced at trial, arguing that the

evidence was sufficient to convict Defendant. The State asserts that Detective

Spillman testified about his review of the transcript of the March 22, 2022 phone

call, noting that Defendant spoke in great detail to Sabrina about their relationship

and about the events that led up to the March 22, 2022 bond revocation and new

protective order. The State further asserts:

Mr. Johnson’s call makes references to the pictures that a law
enforcement officer took of the back of ‘Sabrina’s[] neck and side of
her face (RP 848) and that he was not himself the past weekend when
he put his hands on ‘Sabrina’. . . .

In his appeal, Mr. Johnson complains that Sabrina Johnson did
not testify at his trial. It should be noted that during his illegal phone
call to her on March 22, 2022[,] he stated that he did not believe she
would come to trial . . ., exhibiting a classic tool of manipulation and
abuse.

Finally, the State notes that Detective Lewis confirmed that he was the

arresting officer that took pictures of Sabrina Johnson after an incident between her

and Defendant. The State asserts that this was the same incident Defendant

2
The hearing at which these affidavits were introduced was a bond reduction hearing.

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complained to Sabrina about in the March 22, 2022 phone call. Further, the State

notes that Detective Lewis testified that he recognized both voices in the phone call

as belonging to Defendant and Sabrina Johnson and confirmed that the phone

number called by Defendant on March 22, 2022 was the same number that Sabrina

Johnson gave to Detective Lewis.

Law and Analysis

As for appellate review in cases relying on circumstantial evidence, this court

has stated the following:

When the conviction is based upon circumstantial evidence,
La.R.S. 15:438 provides that the state “must exclude every reasonable
hypothesis of innocence” in order to convict. State v. Camp, 446 So.2d
1207, 1209 (La.1984). “Circumstantial evidence consists of proof of
collateral facts and circumstances from which elemental factors may be
inferred according to reason, experience and common sense.” State v.
Burns, 441 So.2d 843, 845 (La.App. 3 Cir.1983). However, La.R.S.
15:438 does not establish a stricter standard of review on appeal than
the rational juror’s reasonable doubt standard. The statute serves as a
guide for the jury when considering circumstantial evidence. On
appeal, the issue is whether a rational trier of fact, when viewing the
evidence in a light most favorable to the prosecution, could find that all
reasonable hypotheses of innocence were excluded. State v. Williams,
13-497 (La.App. 3 Cir. 11/6/13), 124 So.3d 1236, writ denied, 13-2774
(La. 5/16/14), 139 So.3d 1024.

State v. Baumberger, 15-1056, pp. 10−11 (La.App. 3 Cir. 6/1/16), 200 So.3d 817,

826−27, writ denied, 16-1251 (La. 5/26/17), 221 So.3d 859, cert. denied, 583 U.S.

950, 138 S.Ct. 392 (2017). “When a trier of fact has reasonably rejected the

hypothesis of innocence proposed by the defense at trial, the defendant is guilty

unless an alternative hypothesis is sufficiently reasonable that rational jurors must

have a reasonable doubt as to guilt.” State v. Fields, 02-388, p. 2 (La. 3/18/03), 842

So.2d 316, 317.

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Defense counsel’s closing argument focused on the lack of proof that the

protected person named in the protective orders at issue was the same person

Defendant spoke to during the March 22, 2022 jail phone call. The jury obviously

rejected this defense when, instead, it found Defendant guilty of all three counts of

violating a protective order. Considering the testimony of Detective Lewis (his

identification of the voices on the phone call, his testimony regarding his history

with Sabrina Johnson, his knowledge of Sabrina Johnson’s phone number) as well

as the transcript of the March 22, 2022 phone call (describing the arrest incident and

photographs as well as establishing the relationship between Defendant and Sabrina)

we find that the jury’s rejection of Defendant’s hypothesis of innocence was

reasonable.

Further considering the absence of any evidence that Defendant had a

relationship with another woman named “Sabrina,” the jury reasonably concluded

that the Sabrina Johnson called by Defendant on March 22, 2022, was the same

Sabrina Johnson that Defendant was ordered not to contact in the three protective

orders at issue.

For the foregoing reasons, this assignment of error lacks merit.

COUNSEL-FILED ASSIGNMENT OF ERROR NUMBER 1:

Defendant asserts that his convictions violate double jeopardy, “where the

State relied on one phone call from the jail to convict Ron Cleon Johnson of a

misdemeanor offense[] and then to convict him of three felony counts.”

Law

It is unconstitutional to place a person twice in jeopardy of life
or limb for the same offense. State v. Steele, 387 So.2d 1175 (La.1980).
“The guarantee against double jeopardy provides three central
constitutional protections” one of which is “protection against multiple
punishments for the same offense.” State v. Brown, 42,188, 42,189,

16

42,190, p. 38 (La.App. 2 Cir. 9/26/07), 966 So.2d 727, 755. We must
determine whether a single or multiple offenses were involved.

The Louisiana Supreme Court has very recently announced that
Louisiana courts “are bound only to apply the standard established by
the U.S. Supreme Court in Blockburger v. United States, 284 U.S. 299,
52 S.Ct. 180, 76 L.Ed. 306 (1932) to protect against double jeopardy[.]”
State v. Frank, 16-1160 (La. 10/18/17), 234 So.3d 27. Under the
Blockburger test, “there is no double jeopardy . . . where each provision
requires proof of an additional distinct element that the other does not.”
State v. Cooley, 11-959, p. 12 (La.App. 3 Cir. 4/4/12), 87 So.3d 285,
295, writ denied, 12-1008 (La. 10/26/12), 99 So.3d 640. In other words,
“a defendant can be convicted of two offenses arising out of the same
criminal incident if each crime contains an element not found in the
other.” Frank, 234 So.3d at 30, (citing State v. Balentine, 47,858, p. 2
(La.App. 2 Cir. 7/10/13), 119 So.3d 979, 985 (Drew, J., dissenting) ).

State v. Hampton, 17-383, pp. 11–12 (La.App. 3 Cir. 11/15/17), 259 So.3d 1125,

1132 (alterations in original).

Defendant’s Argument

Defendant claims that this case presents “a classic violation of double

jeopardy: the state presented evidence of a single phone call[] and sought to punish

Mr. Johnson four times for that single transgression.” In the actual assignment of

error, Defendant contends that he was convicted of a misdemeanor offense and then

convicted of three felony offenses. In the case at issue, Defendant was convicted of

three offenses. Thus, it is not clear what Defendant is referring to when he states

that he was punished “four times” for a single transgression. Since Defendant does

not provide any particular information about the misdemeanor offense, we cannot

determine to what offense Defendant is referring.

As previously mentioned, the parties stipulated that on October 27, 2022,

Defendant was convicted of a misdemeanor violation of a protective order. The

factual basis for the misdemeanor conviction, however, was not introduced. Thus,

it is not possible to determine whether that misdemeanor conviction was based on

17

the same conduct or the same protective orders that Defendant’s three current

convictions are based upon. Accordingly, we find that Defendant failed to prove

that the misdemeanor conviction was for the same offense or offenses involved in

Defendant’s three convictions for violations of protective orders.

However, Defendant also states: “The protective orders were duplicitous, and

that one act is not punishable as three separate crimes simply because there were

three copies of the Uniform Domestic order to stay away from Sabrina Johnson.”

Defendant further states:

The state charged violation of three protective orders by a single phone
call on March 22, 2022 . . . .

....

. . . the state took the position that the protective orders were in
force at the time of the March 22, 2022 phone call, and so the state
could stack the charges and sentence consecutively for each one.

Considering the above, we will focus on Defendant’s double-jeopardy claim

that each of his three current convictions for violation of a protective order are based

on the same conduct, i.e. the single phone call made on March 22, 2022.

State’s Argument

In response to Defendant’s argument that it is double jeopardy to base his

three felony convictions upon the same phone call, the State asserts that there is no

double jeopardy because each of the convictions was based on a different protective

order. Each protective order was issued on a different date, and each was issued for

different offenses committed by Defendant. The State contends that it was required

to prove additional facts for each offense—the protective order’s effective dates and

the underlying basis for the order. Consequently, the State argues, each protective

18

order was a “new order and not merely an extension of an existing order.” The State

further argues (footnote omitted):

Art. 320 embodies the strong public policy in Louisiana to
protect victims of domestic violence. Art. 320(L) mandates that the
trial court shall order a protective order regardless of whether another
already exists “under any other provision of law”. Each court order is
a binding order on the defendant[,] and the defendant can be held
accountable for the violation of each protective order.

This is not the case that a protective order that was issued by a
trial court was then extended[,] and [the] basis [sic] for the order
remained the same. Each protective order in this case was based on
new criminal charges stemming from different conduct that occurred
on different dates for which Mr. Johnson was arrested for and bail set.
If one of the three docket numbers that Mr. Johnson had a protective
order issued against him pursuant to Art. 320 were dismissed in its
entirety, it would not affect the validity of the other two issued
protective orders. If Mr. Johnson violated the term(s) of those two
remaining protective orders, he could be prosecuted for violating both
orders through two separate counts.

Mr. Johnson’s argument that he was subjected to double jeopardy
is meritless[,] and his Assignment of Error No. 1 should be denied.

Analysis

Defendant was convicted of three counts of violating a protective order, a

violation of La.R.S. 14:79, which provides, in pertinent part:

A. (1)(a) Violation of protective orders is the willful
disobedience of a preliminary or permanent injunction or protective
order issued pursuant to R.S. 9:361 et seq., R.S. 9:372, R.S. 46:2131 et
seq., R.S. 46:2151, R.S. 46:2171 et seq., R.S. 46:2181 et seq.,
Children’s Code Article 1564 et seq., Code of Civil Procedure Articles
3604 and 3607.1, or Code of Criminal Procedure Articles 320 and 871.1
after a contradictory court hearing, or the willful disobedience of a
temporary restraining order or any ex parte protective order issued
pursuant to R.S. 9:361 et seq., R.S. 9:372, R.S. 46:2131 et seq., R.S.
46:2151, R.S. 46:2171 et seq., criminal stay-away orders as provided
for in Code of Criminal Procedure Article 320, Children’s Code Article
1564 et seq., or Code of Civil Procedure Articles 3604 and 3607.1, if
the defendant has been given notice of the temporary restraining order
or ex parte protective order by service of process as required by law.

....

19

(3) Violation of protective orders shall also include the willful
disobedience of the following:

(a) An order issued by any state, federal, parish, city, or
municipal court judge, magistrate judge, commissioner or justice of the
peace that a criminal defendant stay away from a specific person or
persons as a condition of that defendant’s release on bond.

For count one, the jury found Defendant guilty of violating a protective order

issued on August 2, 2021, which was effective through August 2, 2022. The August

2021 protective order was issued based on “domestic abuse aggravated battery-

strangulation[,] stalking[.]” For count two, the jury found Defendant guilty of

violating a protective order issued on September 27, 2021, and effective through

September 27, 2022. The September 2021 protective order was issued based on a

violation of La.R.S. 14:34.1 (second degree battery). Finally, for count three, the

jury found Defendant guilty of violating a protective order issued on March 22,

2022, and effective until March 22, 2023. The March 2022 protective order was

issued based on a violation of La.R.S. 14:35.3(L) (domestic abuse battery by

strangulation) and a violation of La.R.S. 14:79 (violation of protective order).

Since the three offenses for which Defendant was convicted, i.e. violations of

La.R.S. 14:79, are all the same crime, it is arguable that the elements for each offense

are the same. Thus, at first glance, it appears that the Blockburger analysis indicates

that double jeopardy was violated in this case. However, it is also arguable that since

each conviction involved a different protective order, the “protective order” element

was different for each conviction. Thus, under Blockburger, each conviction would

have a unique element and would not violate double jeopardy. As discussed below,

a different type of analysis may be more appropriate.

Faced with a similar factual circumstance, a court of appeal in Virginia used

a different type of analysis. In Groffel v. Commonwealth, 831 S.E.2d 503, 506

20

(2019), aff’d, 849 S.E.2d 905 (2020), the defendant argued that “he received multiple

convictions and punishments for the same offense in violation of the constitutional

protection against double jeopardy.” Groffel was charged with five counts of

transporting a firearm while subject to five separate protective orders. Id. The five

protective orders were issued by different courts and issued to protect five different

individuals. The Virginia Court of Appeals began its double jeopardy analysis as

follows:

“The Fifth Amendment to the Constitution of the United States
declares that no person shall ‘be subject for the same offence to be twice
put in jeopardy of life or limb.’ ” Severance v. Commonwealth, 295
Va. 564, 571-72, 572 n.8, 816 S.E.2d 277 (2018) (quoting U.S. Const.
amend. V) (noting that the Virginia Constitution provides the same
protections). This prohibition includes protection from “multiple
punishments for the same offense.” Id. at 572, 816 S.E.2d 277 (quoting
Commonwealth v. Gregg, 295 Va. 293, 298, 811 S.E.2d 254 (2018)).
“We review de novo whether ‘multiple punishments have been
imposed for the same offense in violation of the double jeopardy
clause.’ ” Gregg, 295 Va. at 296, 811 S.E.2d 254 (quoting Johnson v.
Commonwealth, 292 Va. 738, 741, 793 S.E.2d 321 (2016)).

“When considering multiple punishments for a single
transaction, the controlling factor is legislative intent.” Id. at 298, 811
S.E.2d 254 (quoting Kelsoe v. Commonwealth, 226 Va. 197, 199, 308
S.E.2d 104 (1983)). In determining legislative intent, the court first
looks to the plain language of the statute. Baker v. Commonwealth, 284 Va. 572, 576, 733 S.E.2d 642 (2012). “If the language is clear and
unambiguous, [an appellate court] will assign the statute its plain
meaning.” Browning-Ferris Indus. of S. Atl. v. Residents Involved in
Saving the Env’t, Inc., 254 Va. 278, 284, 492 S.E.2d 431 (1997).
Additionally, we must “give effect to the legislature’s intention as
expressed by the language used unless a literal interpretation of the
language would result in a manifest absurdity.” Conyers v. Martial Arts
World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174 (2007). On
the other hand, if the statutory language is ambiguous, the court must
rely on “the gravamen of the offense to determine the legislature’s
intent” regarding the permissible unit of prosecution. See Baker, 284
Va. at 576, 733 S.E.2d 642; see also Johnson, 292 Va. at 741-42, 793
S.E.2d 321 (examining legislative intent in order to determine “the unit
of prosecution”); Acey v. Commonwealth, 29 Va. App. 240, 250-51,
511 S.E.2d 429 (1999) (analyzing the gravamen of an offense in
considering “the unit of prosecution by which the state may assess
punishment”).

21

....

Code § 18.2-308.1:4(A) provides, in pertinent part, that “[i]t is
unlawful for any person who is subject to . . . a protective order . . . to
purchase or transport any firearm while the order is in effect.” The
appellant’s transportation of the firearm found strapped to his ankle
when he was captured and arrested while subject to five protective
orders was the basis for five separate convictions and corresponding
sentences. The question for this Court to resolve is whether the statute
penalizes the act of purchasing or transporting a firearm while subject
to multiple protective orders as a single offense or as multiple ones
subject to separate punishments.

In answering this question, we first look to the statutory
language. See Baker, 284 Va. at 576, 733 S.E.2d 642. Only if the plain
text is ambiguous do we “us[e] the gravamen of the offense to
determine the legislature’s intent.” Id.

The language in Code § 18.2-308.1:4(A) is ambiguous on this
point because it “can be understood in more than one way.” See id.
(quoting Boynton v. Kilgore, 271 Va. 220, 227 n.8, 623 S.E.2d 922
(2006)); see also Acey, 29 Va. App. at 250, 511 S.E.2d 429 (analyzing
the gravamen of the offense of possession of a firearm by a convicted
felon in violation of Code § 18.2-308.2). On the one hand, the statute
prohibits the purchase or transportation of a firearm by a person subject
to “a protective order.” The use of the singular “a” suggests that for
each protective order in place, the act of purchase or transportation of a
firearm constitutes a separate offense. Johnson, 292 Va. at 742, 793
S.E.2d 321 (holding that the statutory phrase “ ‘a’ felony” provided that
“each felony charge could serve as the predicate of a failure to appear
conviction”). On the other hand, the language “any person who is
subject to” suggests that the statute describes a class of people who are
forbidden from buying or transporting firearms and that the prohibited
conduct is the purchase or transportation regardless of the number of
protective orders in place. See United States v. Dunford, 148 F.3d 385,
388-89 (4th Cir. 1998) (holding that possession of a firearm or
ammunition is a single offense regardless of the number of
disqualifying classes to which a defendant belongs).

As a result of this ambiguity, we must look to the gravamen, or
essence, of the crime. We conclude that the purpose of Code § 18.2-
308.1:4 is to protect the individuals who are the subjects of the
protective orders. In some circumstances, a petitioner obtains a
protective order on his or her own behalf. See generally Code §§ 16.1-
253.1, -279.1 (allowing issuance of a protective order against an
allegedly abusive person in order “to protect the health and safety of
the petitioner [or any] family or household member[ ] of the
petitioner”). In others, “[u]pon the motion of any person or upon the
court’s own motion,” a court may enter a protective order to protect a

22

child who has been subjected to parental abuse or neglect. See Code
§§ 16.1-253(A), (F), -278.2(C). Each protective order entered to
safeguard a unique principal protected person (the principal), whether
a petitioner or a child of an allegedly abusive or neglectful parent, “has
a separate existence with separate consequences and effects.” See
Johnson, 292 Va. at 742, 793 S.E.2d 321 (discussing summonses and
felony charges). The focus of Code § 18.2-308.1:4 must be upon the
principal whom each protective order is in place to protect. Therefore,
the gravamen of the offense of the purchase or transportation of a
firearm by a person subject to a protective order is the occurrence of
the act while the protective order is in effect.

This purpose and gravamen contrast with those of a statute
prohibiting possession of a firearm. The purpose of a firearm
possession statute is to protect society generally from the individual
who belongs to a described class or group such as previously convicted
felons. See Baker, 284 Va. at 578, 733 S.E.2d 642. Consequently, the
gravamen of the offense of possession of a firearm by a convicted felon
is the possession itself. See Acey, 29 Va. App. at 250, 511 S.E.2d 429.
Here, the gravamen of an offense under Code § 18.2-308.1:4 is not
possession, but it is the purchase or transportation of a firearm while
the protective order is in effect because the purpose of the statute is to
protect each principal.

In support of his argument that the possession is the gravamen of
an offense under Code § 18.2-308.1:4, the appellant relies on cases
interpreting 18 U.S.C. § 922(g). See United States v. Borer, 394 F.3d
569, amended by 412 F.3d 987 (8th Cir. 2005); United States v. Baker,
197 F.3d 211 (6th Cir. 1999); Dunford, 148 F.3d 385; United States v.
Ocampo, 919 F. Supp. 2d 898 (E.D. Mich. 2013). The federal
subsection prohibits, in pertinent part, “any person” within the listed
categories from “possess[ing] . . . any firearm or ammunition.” 18
U.S.C. § 922(g). The categories include people who are subject to
protective orders, convicted felons, fugitives from justice, “unlawful
user[s] of or addicted to any controlled substance,” people who have
been committed to a mental institution, aliens unlawfully in the United
States, and those who have been convicted of domestic violence. 18
U.S.C. § 922(g)(1)-(5), (8)-(9). While the United States Congress
chose to prohibit these categories of individuals from having access to
firearms by grouping them together in a subsection as a single
“possession” offense, the Virginia legislature enacted separate statutes
to restrict access, possession, and transportation of firearms for certain
groups. This distinction signifies the Virginia General Assembly’s
conclusion that the different groups of individuals under restrictions are
dissimilar and subject to different limitations as well as penalties. As a
result of this contrast between the federal and state law, the federal
cases interpreting 18 U.S.C. § 922(g) are inapposite to application of
Code § 18.2-308.1:4.

23

The appellant also relies on the principle that if the statutory
language at issue can be read to impart two reasonable and
contradictory interpretations, a court should construe the statute in the
accused’s favor. See McGinnis v. Commonwealth, 296 Va. 489, 504,
821 S.E.2d 700 (2018). However, this rule, known as the “ ‘rule of
lenity,’ ” “does not permit a[n appellant] to benefit from an
unreasonably restrictive interpretation of the statute.” Id. (quoting
Blake v. Commonwealth, 288 Va. 375, 386, 764 S.E.2d 105 (2014)).
In other words, the general principle cannot apply to subvert the
legislature’s intent when such intent is ascertainable from the statute
based on its language, purpose, or gravamen. See Turner v.
Commonwealth, 295 Va. 104, 109, 809 S.E.2d 679, cert. denied, –––
U.S. ––––, 139 S. Ct. 123, 202 L.Ed.2d 77 (2018); Spratley v.
Commonwealth, 69 Va. App. 314, 320, 818 S.E.2d 823 (2018).
Accordingly, the legislature’s intent to provide for multiple units of
prosecution under Code § 18.2-308.1:4 based on multiple protective
orders in place to safeguard different principals outweighs application
of the rule of lenity.

Turning to the facts of this case, while the appellant was subject
to five different protective orders protecting five different principals, he
transported a firearm. This action constituted five different violations
of Code § 18.2-308.1:4(A). This conclusion comports with the purpose
of the statute to further safeguard the principal whom each of the orders
was entered to protect. It is also consistent with the gravamen of the
offense, the purchase or transportation of a firearm by a person subject
to a protective order while the protective order is in effect.

For these reasons, the appellant’s single act of transporting a
firearm logically resulted in separate and distinct charges based on the
five protective orders entered to protect five different principals. The
five convictions and sentences did not violate the appellant’s
constitutional protection against double jeopardy. Consequently, we
affirm the convictions and sentences for transportation of a firearm by
a person subject to a protective order.

Id. at 506–09 (alterations in original) (footnotes omitted).

The present case is distinguishable from Groffel since the protective orders in

the present case were issued in favor of the same individual. Nonetheless, the

analysis used by the court in Groffel offers guidance in this case. Additionally, the

analysis used by Groffel is very similar to the analysis used by the Louisiana

Supreme Court in State v. Fussell, 06-2595 (La. 1/16/08), 974 So.2d 1223, to

24

determine whether the possession of multiple pornographic images should be treated

as a single offense.

In Fussell, the Louisiana Supreme Court concluded that the legislative intent

in enacting La.R.S. 14:81.1 was to permit separate convictions on separate counts

“for each child, in each sexual performance in which that child is victimized, that is

captured in any photographs, films, videotapes, or other visual reproductions that a

defendant intentionally possesses.” Id. at 1235. The defendant was indicted for

“nineteen counts of intentional possession of pornography involving juveniles, in

violation of La.R.S. 14:81.1(A)(3).” Id. at 1225. Seventeen of those counts “were

for corresponding computer-printed pages, each page containing one or more

images, that were found in a closet at Defendant’s mother’s home,” where he lived.

Id. The other two counts “were also for corresponding computer-printed pages, each

page containing one or more images, that were found in Defendant’s truck at the

time of his arrest.” Id. Defendant was convicted of sixteen of the nineteen counts,

each with their own sentences to run consecutively. The third circuit reduced the

possession of pornography convictions to one conviction.

Although the court in Fussell chose not to use the term “unit of prosecution,”

it acknowledged the inquiry that the term identifies:

At the outset, we note that the conflicting First and Third Circuit
Courts of Appeal decisions that prompted our present inquiry, as well
as the briefs filed on behalf of the State and Defendant, describe our
task as one to determine the proper “unit of prosecution” under La. R.S.
14:81.1(A)(3). The term “unit of prosecution,” however, does not
appear in our Criminal Code and is not commonly used in the State of
Louisiana. Rather, the term emerged within federal jurisprudence as
shorthand for the determination necessary for deciding whether a
defendant’s conduct “gives rise to multiple convictions or punishments
...” under an applicable statute. United States v. Reedy, 304 F.3d 358,
365 (5th Cir.2002); see also Bell v. United States, 349 U.S. 81, 75 S.Ct.
620, 99 L.Ed. 905 (1955) (addressing the “recurring problem” of
determining “ ‘[w]hat Congress ha[d] made the allowable unit of

25

prosecution [ ]’ under a statute which does not explicitly give the
answer” (citation omitted)). While “unit of prosecution” is not
commonly used within this state’s jurisprudence, the inquiry that the
term identifies—determining how many counts a defendant can be
charged with under a criminal statute—is often necessary. See, e.g.,
State v. Joles, 492 So.2d 490 (La.1986), cert. denied, 479 U.S. 1056,
107 S.Ct. 933, 93 L.Ed.2d 984 (1987) (“At issue in this case is the
legality of imposing separate sentences on defendant after convictions
of twenty counts (charged separately in a single bill of information) of
violating La. R.S. 14:67 by twenty separate acts of theft . . . .”(emphasis
added)). Accordingly, to maintain consistency within our
jurisprudence, this Court will forego use of the term “unit of
prosecution” within this opinion and, instead, focus our discussion on
“counts” and “convictions.”

Id. at 1227 (alterations in original).

The court in Fussell stated that the issue before it was whether a “defendant

can be charged with multiple counts of possessing multiple images of child

pornography or, rather, whether the defendant should be charged with only one count

for a single act of possession of multiple images of child pornography.” Id. at 1228.

Similar to the court in Groffel, the court in Fussell recognized: “‘the paramount

consideration in statutory interpretation is ascertainment of the legislative intent and

the reason or reasons which prompted the legislature to enact the law.’” Id. at

1231(citations omitted).

The starting point, the court in Fussell acknowledged, “is the language of the

statute itself.” Id. at 1231 (citation omitted). The court further stated:

In this case, we acknowledge that La. R.S. 14:81.1(A)(3), when
read alone rather than in its full statutory context, is not a model of
statutory clarity. Read in isolation, it is conceivable that one analyzing
the language of this particular statutory provision could determine that
La. R.S. 14:81.1(A)(3) is susceptible to more than one meaning. As
such, by focusing on the legislature’s use of the plural form for the
provision’s list of contraband items, La. R.S. 14:81.1(A)(3) could, as
the Third Circuit posited in the instant matter, permit only one count,
regardless of the number of pornographic images possessed.
Conversely, a reading focused on the word “any,” similar to that of the
First Circuit in [State v.] Kujawa, [05-470 (La.App. 1 Cir. 2/22/06), 929
So.2d 99, writ denied, 06-669 (La. 10/6/06), 938 So.2d 65] could lead

26

a reader to believe that the provision is aimed at prohibiting the
intentional possession of every single image of child pornography and
that the legislature’s use of the plural form for the list of contraband
items was merely a matter of grammatical style.

When the language of a criminal statute is susceptible to more
than one meaning, the statute “should be so interpreted as to be in
harmony with, preserve, and effectuate the manifest intent of the
legislature, and an interpretation should be avoided which would
operate to defeat the purpose and object of the statute.” State v.
Williams, 03-3514, p. 2 (La.12/13/04), 893 So.2d 7, 21; see also State
v. Brown, 03-2788, p. 6 (La.7/6/04), 879 So.2d 1276, 1280, reh’g
denied, 9/3/04; State v. Broussard, 213 La. 338, 34 So.2d 883, 884
(1948). In targeting their analyses so exclusively on the language of
La. R.S. 14:81.1(A)(3), however, the courts of appeal below have
focused too narrowly on this provision specifically and have done so at
the expense of its full statutory context. As we noted above, “it is a
well-recognized and long-established rule of statutory construction that
a statute should be interpreted as a whole to effect the legislative intent
and should be construed in such way as to reconcile, if possible,
apparent inconsistencies or ambiguities so that each part is given
effect.” State ex rel. A.M., 98-2752, p. 2 (La.7/2/99), 739 So.2d 188,
190 (emphasis added). Accordingly, we now look to the language of
La. R.S. 14:81.1 in its entirety to guide our interpretation of the proper
application of La. R.S. 14:81.1(A)(3).

Id. at 1232.

The pertinent language referred to by Fussell read as follows: “The

intentional possession, sale, distribution, or possession with intent to sell or

distribute of any photographs, films, videotapes, or other visual reproductions of

any sexual performance involving a child under the age of seventeen.” Id. at 1227.

Upon review, the supreme court found that “the language of La. R.S. 14:81.1(A)

reveals that each of its proscribed offenses is tethered to the visual reproduction of

any sexual performance involving a child under the age of seventeen[.]” Id. at 1233.

The court continued:

Indeed, without a sexual performance involving a child, none of these
offenses could be committed. Inversely, each of these offenses is
committed if just one child is involved in one single sexual
performance. Thus, read in this context, the language of La. R.S.
14:81.1(A) indicates that each of its prohibitions—La. R.S.

27

14:81.1(A)(3) included—revolves around a legislative goal to protect
any single child from being sexually exploited through the visual
reproduction of any single sexual performance involving that child.

Id.

The supreme court also examined other provisions along with La.R.S. 14:81.1

and determined that the legislature was motivated by a “‘protectionist’ goal when

drafting its child pornography prohibitions.” Id. at 1233.

Accordingly, the court held:

Thus, in the instant matter, we hold that the language of La. R.S.
14:81.1(A)(3) evidences a legislative intent to allow a separate
conviction on a separate count for each child, in each sexual
performance in which that child is victimized, that is captured in any
photographs, films, videotapes, or other visual reproductions that a
defendant intentionally possesses.

Id. at 1235.

In the present case, the pertinent language in the statute at issue now reads as

follows:

(3) Violation of protective orders shall also include the willful
disobedience of the following:

(a) An order issued by any state, federal, parish, city, or
municipal court judge, magistrate judge, commissioner or justice of the
peace that a criminal defendant stay away from a specific person or
persons as a condition of that defendant’s release on bond.

La.R.S. 14:79(A)(3)(a).

As the court discussed in Fussell with respect to the pornography statute, the

legislature’s use of the plural form of “protective orders” could be interpreted as

permitting the charging of one count only, regardless of the number of protective

orders in place. Conversely, a reading focused on the words “[a]n order issued by

any state” could lead a reader to believe that the provision is aimed at prohibiting

28

the violation of every protective order in place. Thus, as in Fussell, the language of

La.R.S. 14:79 is susceptible to more than one meaning.

In determining the legislature’s intent, we conclude that the intent was to

punish the violation of each and every protective order, which is evidenced by the

following provisions. Louisiana Code of Criminal Procedure Article 320(L)

provides:

Under no circumstances shall any court deny the issuance of a
protective order pursuant to any provision of this Article on the ground
that a protective order has already been issued under any other
provision of law. Any protective order issued pursuant to this Article
shall remain in effect for the time that the criminal case is pending until
sentencing unless the person protected by the protective order moves
the court to dissolve the protective order as to that person and the court
grants the motion to dissolve the protective order as to that person.

Additionally, La.R.S. 46:2131 evidences the legislature’s intent to protect victims of

domestic abuse:

The purpose of this Part is to recognize and address the complex
legal and social problems created by domestic violence. The legislature
finds that existing laws which regulate the dissolution of marriage do
not adequately address problems of protecting and assisting the victims
of domestic abuse. The legislature further finds that previous societal
attitudes have been reflected in the policies and practices of law
enforcement agencies and prosecutors which have resulted in different
treatment of crimes occurring between family members, household
members, or dating partners and those occurring between strangers. It
is the intent of the legislature to provide a civil remedy for domestic
violence which will afford the victim immediate and easily accessible
protection. Furthermore, it is the intent of the legislature that the
official response of law enforcement agencies to cases of domestic
violence shall stress the enforcement of laws to protect the victim and
shall communicate the attitude that violent behavior is not excused or
tolerated.

Although the above statute refers to a civil remedy for domestic violence,

rather than the criminal provision at issue in this case, the legislature’s intent to

protect victims of domestic violence is clear. In a concurring opinion, a judge from

29

the first circuit court of appeal stated the following regarding the legislature’s

concern for victims of domestic violence:

In 2014 and 2015, the Louisiana Legislature recognized that domestic
violence is a major problem in Louisiana. By 2014 La. Acts 2014, No.
663, the legislature created the Domestic Violence Prevention
Commission. In creating the commission, “[t]he Legislature of
Louisiana recognize[d] that domestic violence inflicts physical,
emotional, and financial injury on its victim and exists in every segment
of our population. Approximately [32.9%] of women and [28.1%] of
men in the United States have experienced physical violence by an
intimate partner in their lifetime . . .” and “Louisiana leads the nation
in domestic homicides and has done so since 1997 . . .” Pursuant to
these legislative recognitions, in 2014, the legislature by 2014 La. Acts,
No. 316 amended La. C.C. 103, effective August 1, 2014, by adding
La. C.C. 103(4) to provide grounds for an immediate divorce when
“[t]he other spouse has physically or sexually abused the spouse
seeking a divorce or a child of one of the spouses, regardless of whether
the other spouse was prosecuted.” Notably, Mr. Ennis could have filed
for an immediate divorce based upon Mrs. Ennis’s criminal acts. In
addition, he could have also obtained a domestic violence protective
order against Mrs. Ennis since her conduct constituted “[d]omestic
abuse,” which is defined in La. R.S. 46:2132(3) as including, but not
being limited to “physical or sexual abuse and any offense against the
person, physical or non-physical, as defined in the Criminal Code of
Louisiana except negligent injury and defamation, by one family
member, household member, or dating partner against another.”

Ennis v. Ennis, 16-423, pp. 4–5 (La.App. 1 Cir. 5/8/17) (Welch, J., concurring)

(unpublished opinion).

Finally, the second circuit stated the following regarding the legislature’s

intent to give broad protection to all victims of violence:

This action by the legislature, in amending and expanding the
definition of conduct prohibited by La. R.S. 14:79(A)(1)(a), shows that
when a stay-away order is made a condition of bail in cases of domestic
abuse or dating violence, the trial court is to enter an Abuse Prevention
Order and to transmit it to the Louisiana Protective Order Registry.
However, the legislature also provided that the willful disobedience of
a condition of bail that the defendant stay away from a person or
persons will also result in a violation of La. R.S. 14:79(A)(3)(a) without
the entry of an Abuse Prevention Order and without reference to
domestic abuse or dating violence. The statutory scheme shows that
the legislature, through the fair import of the words of the statute,
intended to give broad protection to all victims of violence. The words

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of the statute are clear and free from ambiguity and we will apply them
as written.

State v. Kumar, 46,056, pp. 8–9 (La.App. 2 Cir. 3/2/11), 58 So.3d 544, 551.

Considering the legislature’s intent to protect victims of domestic violence

and its allowance in La.Code Crim.P. art. 320(L) for multiple protective orders to be

in effect at the same time, we conclude that the legislature intended for a single act

to constitute a violation of each protective order in effect. Thus, Defendant’s three

convictions for violating a protective order in the present case do not constitute a

violation of double jeopardy.

Accordingly, this assignment of error lacks merit.

COUNSEL-FILED ASSIGNMENT OF ERROR NUMBER 2:

Defendant contends that two of the protective orders, which he is charged with

violating, were not in effect on March 22, 2022, the date on which he made the

prohibited phone call. According to Defendant, the protective orders issued on

August 2, 2021, and September 27, 2021, were issued as conditions of bail and were

dismissed when bail was revoked on March 22, 2022. On that date, the trial court

set a bond for the new charge of domestic abuse battery by strangulation and a bond

for Defendant’s violation of a previous protective order. The trial court again

ordered Defendant to have no contact with Sabrina Johnson and issued a new

protective order.

In response, the State contends that “[t]he trial court certainly did not dismiss

and replace the previous protective orders . . . because to do so . . . would have been

a direct violation of Art. 320(L).” As discussed in Assignment of Error Number 1,

La.Code Crim.P. art. 320(L) mandates protective orders to remain in effect while the

case is pending, until sentencing. Although Defendant acknowledges Article

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320(L), Defendant contends that the “statute is not suggesting that the same relief

can be recognized in multiple orders so that a single act can be punished beyond the

statutory provisions.” Defendant further argues:

There is no provision for the same two parties dealing with 3
protective orders which are enjoining the same conduct. The court
issued one order, three different times to push the deadline for
protection beyond the year. There is no authority for imposing three
sentences on one prohibited act, and in creating a new order at the
March hearing[,] the trial court was tacitly acknowledging that her
revocation of the bail meant the connected protection orders were
mooted. That was the reason for another order in March of 2022.

The trial court stated the following at the March 22, 2022 bond reduction

hearing:

Additionally, the Court takes note that through each of the
previous bond orders you have been ordered to have no contact with
Sabrina Johnson. Additionally, there was a protective order in effect.
Irregardless [sic] of whatever statements or affidavits that were filed
with the District Attorney’s Office . . .

....

. . . my orders are still valid orders, as long as these charges are pending.

Considering La.Code Crim.P. art. 320(L) and the above statement by the trial

court, Defendant fails to prove that the August 2, 2021 and September 27, 2021

protective orders were not in effect at the time of the prohibited phone call.

Accordingly, this assignment lacks merit.

COUNSEL-FILED ASSIGNMENT OF ERROR NUMBER 4:

Defendant contends that the mandatory twenty-year sentence under La.R.S.

15:529.1 was excessive. This assignment of error is pretermitted by our recognition

of an error patent in Defendant’s sentence. As a result of the error patent, the

habitual offender sentence is indeterminate and must be vacated.

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PRO SE ASSIGNMENT OF ERROR NUMBER 1:

Defendant claims that the trial court improperly permitted evidence, i.e., the

recorded phone call, previously deemed inadmissible to be introduced at trial. More

specifically, Defendant alleges that the Louisiana Electronic Surveillance Act

(La.R.S. 15:1310) was not complied with when the phone call was recorded in this

case. Defendant further claims that the State committed malfeasance in office by

instituting prosecution based upon the inadmissible recording of the phone call.

Citing the Louisiana Rules of Professional Conduct, Defendant asserts that “a

prosecutor shall refrain from prosecuting a charge that is not supported by probable

cause.”

In support of his argument, Defendant contends that the trial court ruled the

phone call inadmissible and attaches an October 24, 2022 Order by the trial court to

his brief. In the Order, the trial court ruled the “subject recorded telephone calls are

INADMISSIBLE unless the State can establish any applicable exceptions to the

Electronic Surveillance Act[.]” However, the trial court subsequently granted the

State’s Motion in Limine for Admission of Defendant’s Recorded Phone Calls and

Incorporated Memorandum. Both the phone call and a transcript of the call were

introduced at trial.

While the State points out Defendant’s misstatement regarding the trial

court’s ruling and also addresses the merits of the admissibility of the recorded

phone call, we find that Defendant does not sufficiently brief the merits of this issue.

Uniform Rules—Courts of Appeal Rule 2–12.4. Defendant fails to specify how the

State failed to comply with La.R.S. 15:1310. Furthermore, any arguments made in

the trial court are not in the record before this court. When the phone call and a

transcript of the call were introduced at trial, defense counsel objected “for the

33

reasons previously ruled on by this Court[.]” It is not clear to what previous

objection/argument defense counsel was referring. The minutes of jury selection

state the following:

Mr. Bokenfohr advised the Court that [i]t previously ruled on the pre-
trial hearings in this matter. Mr. Bokenfohr advised the Court that
during the hearings of some of the motion[s] he noted his objection to
the Court’s rulings[,] and he would like the Court to note his objections
again to the recording while the Jury was not present.

In the trial court’s ruling granting the State’s motion in limine, the trial court referred

to “reasons assigned on the State’s Motion in Limine heard before this Honorable

Court on November 10, 2022.” There is no minute entry and/or transcript for that

date included in the record.

In light of Defendant’s failure to refer to such minute entry/transcript and in

light of Defendant’s failure to specify any reason why the requirements of La.R.S.

15:1310 were not met, we find that this assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 2:

In this assignment of error, Defendant claims that his protection against

double jeopardy was violated by being convicted and sentenced twice for the same

charge in the same docket number (32155-A). Defendant asserts that he was

“convicted and sentenced upon 10-27-2022, six months parish jail time same charge

violation of protective order and convicted and sentenced upon 12/15/2022, two

years hard labor same charge violation of protective order, count No. [] 3. Of the re-

filed second amended Bill of Information trial docket number #32761-A.”

This pro se double jeopardy claim is different than the attorney-filed double

jeopardy claim. As previously discussed, the attorney-filed double jeopardy claim

alleges that the use of one phone call to convict Defendant of three different

violations of protective orders was a violation of double jeopardy. The pro se double

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jeopardy claim, on the other hand, argues that Defendant was convicted and

sentenced twice for the same offense he pled to or was convicted of in lower court

docket number 32155-A.

Count three of the bill of information in this case states that on or about March

22, 2022, Defendant did:

COMMIT THE OFFENSE OF VIOLATION OF A PROTECTIVE
ORDER ISSUED ON 03/22/22 UNDER DOCKET NUMBER
C32155A FOR THE PROTECTION OF THE PERSON S.J. BY
CONTACTING THE PROTECTED PERSON S.J[.], SECOND
OFFENSE, IN VIOLATION OF R.S. 14:79(B)(2), HAVING
PREVIOUSLY BEEN CONVICTED OF VIOLATION OF A
PROTECTIVE ORDER IN THE TENTH JUDICIAL DISTRICT
COURT ON OCTOBER 27, 2022, A FELONY.

The stipulation entered into by the parties regarding Defendant’s prior

conviction reads as follows:

The State and the defendant stipulate to the following facts as
being true:

The defendant, Ron Cleon Johnson, date of birth December 2,
1969, was convicted of Violation of a Protective Order, Louisiana
Revised Statutes 14:79, in Natchitoches Parish Criminal Docket No.
C32155A on October 27, 2022. On that same date he was sentenced to
serve six (6) months in the Parish Prison and fined $500.00.

It is evident from the above that Defendant was convicted twice for violation

of a protective order in docket number 32155A. What is not evident, however, is

the factual basis for the October 27, 2022 conviction for violation of a protective

order. As previously mentioned, the stipulation does not indicate which protective

order Defendant was convicted of violating, and it does not set forth the date that the

violation occurred.

Double jeopardy prevents a person from being punished twice for the same

offense. Hampton, 259 So.3d 1125. Since no factual basis for the October 27, 2022

35

conviction is in the record before this court, it is not possible to determine whether

Defendant was, in fact, convicted twice for the same offense.

Accordingly, this assignment lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 3:

Defendant alleges that the trial court erred in allowing the perjured testimony

of the State’s witness, Detective Spillman. Defendant claims that Detective

Spillman lied at trial and conspired with the prosecutor and Detective Lewis.

Defendant cites the following portion of Detective Spillman’s trial testimony:

Q. Were you contacted by the Natchitoches Police Department
about Mr. Johnson’s phone calls?

A. Yes, it was by Detective Lewis.

Q. And what did Detective Lewis want?

A. He was looking for a specific phone call from I think it was
March 22, 2020 or 2022 . . . I . . . yeah.

....

Q. And did you provide Detective Lewis with those phone calls?

A. Yes.

Defendant asks this court to compare this testimony with the following

statement made by the trial court at the habitual offender hearing:

On March 23, 2022, Natchitoches Police Department [was]
contacted by personnel of the Natchitoches Parish Detention Center, in
reference to Mr. Johnson, who was then and there incarcerated,
contacting adjudicated victim, Sabrina Jackson (sic), who had an active
protective order against Mr. Johnson.

Defendant argues the following:

The appellant Ron Cleon Johnson argues specifically how would be
[sic] possible for the Detective Lewis to have had any knowledge of
any phone calls being made or called from the jail when Detective
Lewis is not an employee of the jail because the jail is operated by the
Natchitoches Parish Sheriff’s Department and Detective Lewis is

36

employed with the City of Natchitoches Police Department which is
two separate law enforcement agencies. So therefore, based upon this
argument the higher supervisory 3rd Circuit Court of Appeals can
clearly see upon the record as aforementioned that the prosecutor
Richardy Bray Williams, coached and/or coerced the witness while
under sworn oath on the witness stand at trial[,] and the witness[,]
Yancy Spillman, also perjured himself as to his testimony for the state
within connection to this case.

In its response, the State first asserts that it is a baseless allegation and should

be considered waived for lack of a contemporaneous objection. Out of an abundance

of caution, however, the State argues that Defendant’s claim implicates Napue v.

Illinois, 360 U.S. 264, 79 S.Ct. 1173 (1959). The State then asserts the following:

The Louisiana Supreme Court has detailed what a defendant must
establish in order to prove a Napue claim.

To prove a Napue claim, the accused must show that the
prosecutor acted in collusion with the witness to facilitate
false testimony. When a prosecutor allows a state witness
to give false testimony without correction, a conviction
gained as a result of that perjured testimony must be
reversed, if the witness’s testimony reasonably could have
affected the jury’s verdict, even though the testimony may
be relevant only to the credibility of the witness. Id. at
269, 79 S.Ct. 1173. Furthermore, fundamental fairness to
an accused, i.e., due process, is offended “when the State,
although not soliciting false evidence, allows it to go
uncorrected when it appears.” Id. When false testimony
has been given under such circumstances, the defendant is
entitled to a new trial unless there is no reasonable
likelihood that the alleged false testimony would have
affected the outcome of the trial. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).
Defendant’s argument is wholly unsubstantiated, as he
failed to provide any evidence in support of his allegation
and merely relies on his bare assertion. We accordingly
reject the contention based on this record and relegate
defendant to post-conviction relief if evidence in this
regard is subsequently obtained.[]

State v. Broadway, 96-2659 (La. 10/19/99) 753 So.2d 801, 814.

As seen in Broadway, Mr. Johnson makes the bare assertion that
Det. Spillman and Det. Lewis perjured themselves in how his
monitored and recorded phone call from the Detention Center to the

37

protected person, Sabrina Johnson, was obtained by Det. Lewis. Mr.
Johnson’s assertion is wholly unsubstantiated. Det. Lewis testified that
he obtained the phone call that Mr. Johnson made to the protected
person, Sabrina Johnson, from Det. Spillman. . . . Det. Spillman also
testified that Det. Lewis obtained Mr. Johnson’s phone calls from Det.
Spillman . . . .
Mr. Johnson’s baseless allegation of perjury rests solely on the
fact that the two law enforcement officers worked for different law
enforcement agencies. Mr. Johnson utterly fails to establish that the
facts testified to by both Dets. Spillman and Lewis are somehow false
or that the State somehow colluded with these witnesses to facilitate
false testimony.

We agree. Defendant’s claim of perjury was not preserved for review and is

not substantiated by any evidence. Thus, this assignment lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 4:

Defendant asserts that the trial judge erred in failing to correct the minute clerk

when she misinformed the jurors that Defendant was previously convicted of a

felony offense instead of a misdemeanor offense. Defendant further asserts that the

second amended Bill of Information incorrectly refers to the previous conviction as

a felony.

The minute clerk informed the jurors of the following:

On or about March 22, 2022 did unlawfully commit Count 1, the
offense of Violation of Protective Order issued on 08/22/2021 under
Docket Number C31538A for the protection of the protected person,
SJ, by contacting the protected person, SJ., 2nd offense in violation of
Revised Statute 14:79, Subsection B, subsection 2, have [sic]
previously been convicted of Violation of a Protective Order in the 10th
Judicial District Court on October 27, 2022, a felony.

The minute clerk repeated this information as to counts two and three. In informing

the jurors of these charges, the minute clerk read verbatim from the charges in the

Second Amended Bill of Information.

38

However, we note that the concluding phrase “a felony” at the end of each

charge in the bill of information is a reference to the current charge, not the previous

misdemeanor offense. Thus, this assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 5:

Defendant claims that because he had a pending writ application regarding his

prior predicate offense, the trial court erred in failing to stop the trial proceedings to

determine the status of the writ application. In its response, the State asserts that the

trial court recessed the habitual offender proceeding to allow the State to investigate

the status of any pending writ application. According to the State, no writ

application was pending. Thus, the trial court did not abuse its discretion in denying

Defendant’s request to continue the habitual offender hearing.

At the beginning of the habitual offender hearing, Defendant notified the court

that he had filed a writ application with the third circuit regarding one of the

predicate offenses used against him in the habitual offender bill. The trial court

recessed the hearing to allow counsel to check on the status of any pending writ

applications. When they returned, the State informed the court that it had spoken

with “Kathy” at the third circuit court of appeal. According to “Kathy” the State

reported, there were no pending writ applications in the current docket number.

Although “Kathy” found that two writ applications had been filed in docket number

C32155A, both had been denied. The State further informed the trial court that

“Kathy” said there were currently no pending writs or appeals related to Defendant.

The trial court proceeded with the habitual offender hearing but was

interrupted by defense counsel. Defense counsel informed the trial court that

Defendant said that the writ was filed in docket number 157844, and the writ alleged

that there was no Boykin colloquy. Regardless of whether a writ was pending or not,

39

the trial court stated that the habitual offender hearing would proceed as Defendant

had adequate remedy on appeal. The trial court denied Defendant’s request for a

stay.

After conducting our own search of the records in this court, we found no writ

applications were pending at the time of the habitual offender hearing, March 8,

2023. Accordingly, this assignment of error lacks merit.3

DECREE:

Considering the above, Defendant’s convictions are affirmed. Defendant’s

habitual offender sentence, however, is vacated as indeterminate, and the case is

remanded for resentencing with instructions. The trial court is instructed to specify

which of the original sentences were vacated. For each sentence that was vacated,

the trial court is instructed to impose a separate sentence, specifying whether the

sentence is being enhanced pursuant to the habitual offender adjudication.

Furthermore, the trial court is instructed that at least fourteen days of the sentences

imposed upon Defendant, whether enhanced as a habitual offender or not, must be

served without benefit of parole as well as without benefit of probation or suspension

of sentence.

CONVICTIONS AFFIRMED; HABITUAL OFENDER SENTENCE
VACATED AND REMANDED FOR RESENTENCING WITH
INSTRUCTIONS.

3
Although not listed as a pro se assignment of error, Defendant sets out an issue number
“6,” questioning whether the habitual offender bill of information was valid. Since that issue was
not briefed, it is considered abandoned. Uniform Rules—Courts of Appeal Rule 2–12.4(B)(4).

40