State of Louisiana v. Laurie Elkins Richard

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-523

STATE OF LOUISIANA

VERSUS

LAURIE ELKINS RICHARD

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2020-CR-223066-A
HONORABLE KERRY L. SPRUILL, DISTRICT JUDGE

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GARY J. ORTEGO
JUDGE

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Court composed of Van H. Kyzar, Charles G. Fitzgerald, and Gary J. Ortego, Judges.

CONVICTION REVERSED; JUDGMENT OF ACQUITTAL
ENTERED; SENTENCE VACATED.

KYZAR, J., concurs and assigns reasons.

Hon. Charles A. Riddle, III
District Attorney
Jonathan T. Gaspard
Assistant District Attorney
Twelfth Judicial District
P. O. Box 546
Marksville, LA 71351
(318) 240-7329
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Paula C. Marx
Louisiana Appellate Project
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Laurie Elkins Richard

ORTEGO, Judge.

In this criminal matter, Defendant appeals her conviction, and sentence, for

failure to seek assistance, death related, in violation of La.R.S. 14:502.

PROCEDURAL HISTORY

On September17, 2020, an Avoyelles Parish Grand Jury indicted Defendant,

Laurie Elkins Richard, for failure to seek assistance, in violation of La.R.S. 14:502.

On February 7, 2023, a jury trial commenced, and after presentation of evidence, a

six-person jury unanimously found Defendant guilty as charged. On March 21,

2023, the trial court sentenced Defendant to four years imprisonment at hard labor,

in the custody of the Department of Corrections, with credit for time served from the

date of her arrest. Now, Defendant appeals, asserting three assignments of error.

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 there are

no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE

In her first assignment of error, Defendant asserts that the evidence produced

at trial was insufficient to support a guilty verdict of failure to seek assistance, death

related. Before addressing the merits of Defendant’s arguments, we will provide the

applicable law.

Standard of Review

The analysis for insufficient-evidence claims is well settled:

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, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (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 credibility of the witnesses, and therefore, the
appellate court should not second guess the credibility determinations
of the triers of fact beyond the sufficiency evaluations under the
Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d
559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order
for this Court to affirm a conviction, however, the record must reflect
that the state has satisfied its burden of proving the elements of the
crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

It is the factfinder’s role to weigh the respective credibility of the witnesses,

and the reviewing court will not second-guess the credibility determinations of the

factfinder beyond the sufficiency evaluations under the Jackson standard of review.

State v. Richardson, 425 So.2d 1228 (La.1983).

In reviewing Defendant’s claim, we must determine whether, viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781(1979); State v. Rosiere, 488 So.2d 965 (La.1986).

Defendant was convicted of failure to seek assistance, death related, in

violation of Louisiana Revised Statutes 14:502 (A)(1), which in pertinent part, states

(emphasis added):

Any person at the scene of an emergency who knows that another
person has suffered serious bodily injury shall, to the extent that the
person can do so without danger or peril to self or others, give
reasonable assistance to the injured person. Reasonable assistance
includes immediately seeking or reporting the need for medical
assistance from an appropriate authority.

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Louisiana Revised Statutes 14:2(C) defines serious bodily injury as injury that

“involves unconsciousness; extreme physical pain; protracted and obvious

disfigurement; protracted loss or impairment of the function of a bodily member,

organ, or mental faculty; or a substantial risk of death.”

SUFFICIENCY OF EVIDENCE

As Defendant raises the sufficiency of the evidence as an assignment of error,

we will review and provide a summary of the evidence adduced at trial.

Trial Evidence

The first witness to testify at trial was Officer Derek Ward, a patrolman for

the Tunica Biloxi Tribal Police. On October 30, 2019, Officer Ward received a call

from the Avoyelles Emergency Center, requesting medical assistance for an

unresponsive person, possibly under the influence of heroin, at cabin 216. Whenever

Officer Ward arrived, he saw Defendant on the passenger side of a two-door car

holding the arm of another female, later identified as Samantha Bernard. According

to Officer Ward’s testimony, Ms. Bernard was face down “in a kneeling position[]”

on the passenger seat. Ms. Bernard was unresponsive and did not appear to be

breathing, so Officer Ward checked for a pulse. Due to his inability to find a pulse,

Officer Ward removed Ms. Bernard from the vehicle and engaged in life-saving

measures by completing chest compressions and administering Narcan, a medication

used to reverse the effects of an opioid overdose. Officer Ward requested the

assistance of Acadian Ambulance; however, Ms. Bernard was pronounced dead

shortly after arriving at the emergency room.

After leaving the emergency room, Officer Ward returned to the police

department, wherein he and Detective Smith interviewed Defendant and Ms. Amy

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Adams. Officer Ward then recited from his investigation report:

. . . Ms. Richard was interviewed at the Tunica Biloxi Tribal Police
headquarters by Detective Scott Smith and [myself]. During the
interview Ms. Richard stated that she woke up around eleven or twelve
o’clock that day previously at Cabin 216 and noticed that Samantha was
not there. She added that after failed attempts to contact Samantha she
called Amy Adams to search for Samantha’s car. Ms. Richard stated
that Ms. Adams located Samantha in the parking lot of Harvest Foods.
Ms. Richard continued with her statement by saying that Ms. Adams
left Harvest Food and picked her, being Laurie Richard, picked her up
at [C]abin 216.

When questioned regarding the registered owner of the vehicle operated by

Ms. Bernard, Officer Ward stated he could not recall, and he did not have that

information in his report. Thereafter, Officer Ward continued to recite from his

investigation report, stating:

. . . Ms. Amy left Harvest Foods and picked Laurie Richard up at Cabin
216 and the two of them together in Amy’s car returned to Harvest
Foods. Upon arrival at Harvest Foods, Ms. Richard stated that [she]
noticed Samantha in a familiar state due to previous incidents. Ms.
Richard described the state as being high on heroine [sic]; Ms. Richard
stated that due to previous incidents she drove Samantha back to Cabin
216 to allow her “to sleep it off”. Ms. Richard added that she left
Samantha in the car and would check on her frequently. Shortly before
calling 911 Ms. Richard stated that she went out to check on Samantha
and noticed that she was not breathing, prompting the 911 call.

Officer Ward’s review of the surveillance footage obtained in his investigation

determined that the vehicle, occupied by Ms. Bernard and Defendant, returned to the

cabin at “13:47:09” or “1:47 pm.” No other details were documented until

Defendant called 911 at 8:46 pm, requesting medical assistance for Ms. Bernard,

almost seven hours later.

The State presented surveillance footage of Harvest Foods parking lot. While

viewing the footage, Officer Ward identified the Mitsubishi vehicle occupied by Ms.

Bernard and identified the Chrysler vehicle driven by Ms. Adams. Thereafter,

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Officer Ward noted for the court when Ms. Adams and Defendant arrived in the

parking lot to move Ms. Bernard.

Following the footage of Harvest Foods, the State presented the bodycam

footage of Officer Jeansonne, one of the officers who arrived on scene at the cabin.

Officer Ward stated the Chrysler and Mitsubishi vehicles shown on the bodycam

footage were the same vehicles seen at the Harvest Foods parking lot. Officer Ward

also identified Ms. Bernard, the individual lying on the ground, Defendant, the

individual wearing the LSU shirt, and Ms. Adams, the individual wearing black.

After the presentation of the video evidence, Officer Ward discussed

Defendant’s reasoning for waiting seven hours to call for medical assistance. Officer

Ward explained, Defendant wanted Ms. Bernard “to sleep it off[.]” Officer Ward

stated Defendant “frequently” checked on Ms. Bernard; however, Defendant never

defined her version of frequently. According to Officer Ward, he obtained an arrest

warrant based on Defendant’s interview, the video footage, and the time frame of

the incident.

The State’s next witness was Amy Dauzat Adams, Ms. Bernard’s long-time

best friend. Ms. Adams explained Ms. Bernard introduced her to Defendant, and

Ms. Bernard and Defendant were partners. Ms. Adams stated although she had

knowledge of Ms. Bernard’s drug usage, she never witnessed Ms. Bernard engage

in any type of drug activity.

Ms. Adams explained she knew Ms. Bernard was in town because the cabin

Ms. Bernard and Defendant stayed in was in her name. Ms. Adams received free

rooms every month, so she would allow Ms. Bernard to stay in the rooms while Ms.

Bernard was in town visiting family, and Ms. Bernard typically stayed two nights

during the week.

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On the morning of the incident, Ms. Bernard stopped by Ms. Adams’s job

while on her way to purchase a beverage at the convenience store. At the time, Ms.

Adams was working at the Casino Golf Cabins, a hotel near the Paragon Casino.

Ms. Adams testified Ms. Bernard stayed for about five minutes and during their

conversation, Ms. Bernard told Ms. Adams she intended to stay another night in the

cabin.

Ms. Adams testified she got off around noon on the day of the incident and

called Ms. Bernard, but Ms. Bernard did not answer. Ms. Adams stated she drove

by the casino area to find Ms. Bernard; however, she did not see Ms. Bernard’s car.

Ms. Adams then called Defendant, but Defendant did not answer. In the meantime,

Ms. Adams went to Wal-Mart to pick up a few items, and while on her way home,

she received a call from Defendant. Ms. Adams questioned Defendant regarding

Ms. Bernard’s whereabouts, and Defendant stated she did not know of Ms. Bernard’s

location. Ms. Adams testified that while on her way home and on the phone with

Defendant, she approached the red light by Harvest Foods, turned her head, and saw

Defendant’s car in the parking lot. Ms. Adams then provided the following

testimony:

A. And when I just so happened to look by Harvest Foods and I’m
like Laurie your car is at Harvest Foods. So she said go see. I went over
there by Harvest Foods, pulled on the side of the car. And I asked
Laurie, I said Laurie that can’t be her, did she dye her hair purple. She
said yes she dyed her hair purple. So I drove by the car, on the side of
the car. And I mean you could tell she was on some type of drug. Well
I don’t ...

Q. Where was she at that time.

A. Sitting in [sic] the driver’s side of the car.

Q. Was she awake?

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A. I mean ... to me ... put it like this she was sitting up, she was
moaning and everything, because I hit on the glass and you could tell
she was moaning. I mean she was alive.

Q. I understand ...

A. I mean she was moaning and stuff, you know what I’m saying.
Because I was hollering her name and stuff.

Q. You were hollering her name?

A. And hitting on the glass, yes.

Q. O.K.

A. To tell her to wake up?

Q. Did she respond with any kind of verbal, oral communication?

A. No she was just like moaning like, [ ], [ ]. And I’m thinking trying
to wake up [sic], I was thinking.

Q. Were her eyes closed, open or what?

A. I mean they was [sic] like halfway you know. I don’t know how
to explain it. I mean like literally you know what I mean, not all the
way open.

Q. Like she was on drugs?

A. Oh yeah, I knew that yeah.

....

Q. So you went to the casino cabins, 216?

A. Ye[s].

Q. Picked [Defendant] up?

A. Yes.

Q. In your vehicle?

A. Yes.

....

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Q. All right. Then what was next?

A. I mean was just doing the same thing, you know Laurie knew
what she was doing, so we figured and put her back in the cabin she
was going to wake up. We moved her, I went on the passenger side...

Q. I want you to tell me exactly how ya’ll [sic] moved her.

A. O.K.

Q. From the driver’s side to the ...

A. She was standing on the driver’s side when she was pressing her
chest already; I was on the passenger watching what she was doing.
When she said we need ... she decided let’s move her to get her back
for her to wake up.

Q. O.K.

A. I was already on the passenger side. She helped me, I grabbed
her leg. I mean she ... I mean she was moaning and groaning like she
wasn’t dead weight, she could still help u[s] move her. You know what
I mean because she was already a heavy person at that time. I mean we
moved her to the other side.

Q. So you grabbed her legs?

A. Yeah grabbed one of her legs, you hear what I’m saying, and we
put her on the passenger side.

Q. Was she sitting when ya’ll [sic] finished?

A. Oh yes.

Q. So she was sitting, was she slumped over or...

A. No.

Q. So she was sitting upright?

A. Yeah.

....

Q. All right. So her legs were in the passenger side on the floor?

A. Um hum.

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Q. And she was leaned back against the seat?

A. Yes.

Q. Did she communicate with you?

A. No.

Q. Were you concerned?

A. I don’t even know ... I can’t say because I’ve never been around
her like that when she doing this.

Q. So you’ve never seen her like that?

A. No.

Q. Did you ever think that you ought to bring [sic] her to the
hospital?

A. At some points I do. But I mean she was always waking up from
everything when she done this. I just thought this too she’s going to
wake up. I mean she been doing this for so many years I mean, It’s like
she’s ...

Q. You knew she was doing drugs?

A. Since I knew her seventeen years ago.

Q. O.K. Who drove Laurie’s car with Samantha in it back to the
cabin?

A. Laurie.

Q. You say [sic] her drive off?

A. Yes.

Q. Where did you go from there?

A. Back to my house on Preston Street.

Afterwards, Ms. Adams testified she periodically called and texted Defendant

to check on Ms. Bernard. According to her, Defendant stated she continuously

checked on Ms. Bernard and even placed a rag on Ms. Bernard’s face. Ms. Adams

stated that around nine o’clock, Defendant notified her that Ms. Bernard “[did not]

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look good,” prompting Ms. Adams to drive over to the cabin. Upon arrival at the

cabin, Ms. Adams stated, “Laurie was on the passenger side” and “it just didn’t look

right,” so she told Defendant to call 911; however, she hurried up and grabbed the

phone from Defendant and started talking to the 911 operator. Ms. Adams testified

she stayed at the cabin until the police and ambulance arrived and eventually went

to the police station to give a statement.

On cross-examination, Ms. Adams stated Ms. Bernard told her she engaged

in drug activity and that Ms. Bernard was recently “doing heavier stuff.” According

to Ms. Adams, Ms. Bernard engaged in drug activity “a lot” and that “it was a

routine” for Ms. Bernard, as her life was consumed by drugs.

Dr. James Lynn Bordelon, an expert in the field of general medicine and

investigation of deaths, testified that at the time of Ms. Bernard’s death one of the

assistant coroners managed the investigation. Dr. Bordelon testified Ms. Bernard’s

body was transferred for an autopsy at the Louisiana Forensic Center due to “the

unusual circumstances surrounding her death.” Dr. Bordelon stated Ms. Bernard’s

autopsy revealed she had no significant physical injuries attributable to her death;

however, her toxicology report revealed she tested positive for numerous

pharmacological agents that lead to or contributed to her death. According to Dr.

Bordelon, Ms. Bernard ingested several different compounds that led to the

depression or suppression of her breathing, which resulted in her cardiac arrest. In

other words, Ms. Bernard died of a drug overdose.

Dr. Bordelon then discussed Narcan and its effects. Dr. Bordelon stated that

Narcan immediately reverses the side effects of narcotics in the body. In the field,

Narcan is administered through the nasal cavity, and at the hospitals, Narcan is

administered through an IV for a more rapid response. Dr. Bordelon stated that

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Narcan saves millions of lives and that the time of the administration is a critical

element as to the overall effect of Narcan on the body. Having narcotics in the body

without the administration of Narcan can eventually lead to either cardiac arrest or

a “vegetable” state due to the lack of blood supply to the brain. According to Dr.

Bordelon, an earlier administration of Narcan would have saved Ms. Bernard’s life.

On cross-examination, Dr. Bordelon stated that someone may not experience

serious side effects of heroin that would make the administration of Narcan

necessary. However, in Ms. Bernard’s case, “she had other narcotics that accelerated

the effects of the heroin[e]” in her system. According to Dr. Bordelon, heroin is an

“opioid medication” that “slows down everything in the body,” creating a

“neurological high.” Heroin slows down one’s breathing, heart rate, and

gastrointestinal system and causes “pinpoint pupils.” Dr. Bordelon stated a chronic

user of heroin normally passes out or sleeps after ingesting the drug, and depending

on the metabolism of the individual, a heroin user can sleep for a long period of time.

For clarification purposes, on re-direct, Dr. Bordelon stated that the medical term

“unconscious” and the street term “passing out” were “synonymous with one

another.”

Ms. Kiara Ford, the 911 dispatcher who received the call for assistance,

testified she conducted an incident report after receiving the call, which the State

presented as Exhibit 3. According to the report, the call for assistance was initiated

at “20:41” or “8:41 pm.” The State then introduced the 911 call into evidence and

played it for the jury. In Ms. Ford’s opinion, more than one person spoke on the

phone throughout the call. Ms. Ford explained she contacted Tribal Police and

Acadian Ambulance due to the nature of the call she received.

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Dr. Christopher Tape, an expert in forensic pathology, was called to testify.

Before Dr. Tape testified as to Ms. Bernard’s autopsy findings, the State introduced

Dr. Tape’s autopsy report into evidence, which included the cause and manner of

death, as well as an anatomic summary, diagram, and toxicology screen. Dr. Tape

testified at around noon on October 31, 2019, he performed Ms. Bernard’s autopsy.

Ms. Bernard’s toxicology tested positive for numerous specimens, including a

heroine metabolite. Dr. Tape testified heroin disappears relatively quickly in the

body and generally goes undetected ten to fifteen minutes after ingestion. Ms.

Bernard’s toxicology also revealed she had morphine, “a heroin metabolite[;]”

methamphetamine, “a type of speed[]” or “an upper[;]” nortriptyline, “an anti-

depressant[;]” oxycodone, an “opioid, pain pill[;]” oxymorphone, “a metabolite of

oxycodone[;]” hydrocodone, an “opioid pain pill[;]” and dihydrocodone, “a

metabolite of hydrocodone.” Dr. Tape ultimately concluded that Ms. Bernard’s

cause of death was “poly-drug toxicity with contributions of hypertensive

atherosclerotic cardiovascular disease and obesity [,]” or plainly stated, an accidental

overdose.

After discussing Ms. Bernard’s toxicology results, Dr. Tape explained the

history of opioid use as well as the purpose and effect of Narcan. Dr. Tape testified

“opioids bind to the natural receptor[s]” in the body and “blocks pain signals[,]” so

that the “brain doesn’t perceive [the] pain.” Dr. Tape explained that Narcan binds

to the receptors as well but “doesn’t turn off the pain signal.” So, consequently,

when Narcan and opioids are in the body, they compete for the binding site.

However, opioids “usually last longer than the Narcan” and “bind stronger[,]” so, a

person under the influence of opioids must be frequently administered Narcan to

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reverse the effects of the opioids. Then Dr. Tape testified as to the effectiveness of

Narcan in Ms. Bernard’s situation.

On cross-examination, Dr. Bordelon testified that it was not unusual for heroin

users to sleep or have “the nod[.]” Dr. Bordelon noted, however, that when a heroin

user is in that state, it is important for the person to get help breathing, so he or she

may not have brain damage or go into cardiac arrest. Additionally, Dr. Bordelon

stated Narcan may not be able to reverse brain damage if it is administered too late.

Lastly, Defendant waived her Fifth Amendment right of self-incrimination

and took the stand in her own defense. According to Defendant, she and Ms. Bernard

started dating in 2018, and about a year into their relationship, Ms. Bernard admitted

to using drugs. Defendant stated she never did drugs and only tolerated Ms.

Bernard’s drug use because she loved Ms. Bernard. As an effort to help Ms.

Bernard’s addiction and be closer to Defendant’s children, Defendant suggested they

move to Eunice. However, Defendant stated she and Ms. Bernard would visit

Marksville once or twice a month and stay in one of Ms. Adams’ free cabins.

Regarding the purpose of their last visit, Defendant explained she and Ms.

Bernard traveled to Marksville so that Ms. Bernard could be seen by her physician

as she had not been feeling well. Defendant stated the night prior to the incident,

she and Ms. Bernard ate, watched tv, and played with Ms. Bernard’s dog, then

Defendant went to bed before Ms. Bernard, at around ten o’clock.

Regarding the morning of the incident, Defendant testified:

A. I woke up Amy was calling to look for her. And the next morning
she still wasn’t feeling right so she was going to go see the doctor’s
daughter, she was going to go see her because she said she still wasn’t
feeling good. And she was going to go rent the cabin for one more night.
So when Amy called I thought ... I said I thought she was with you. I
said she’s not here, I said I just woke up, I said I don’t ... so Amy went
looking for her after she got off of work.

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Q. And what time did you wake up, do you remember?

A. It was around like around lunch time I think.

Q. O.K. And you don’t know when she left or?

A. No.

Q. Because you were sleeping?

A. Yes.

Q. O.K. How many vehicles did ya’ll [sic] have at the cabin?

A. Just one.

Q. And what kind of vehicle was that?

A. A Mitsubishi Eclipse.

Q. Do you know if she told you she was leaving or anything like
that?

A. She just told me she was going to go see Sarah the doctor’s
daughter. Because she said she wasn’t feeling right from the flu shot.

Q. O.K.

A. And for her to go rent the cabin again.

Q. So what happens next with Samantha?

A. The next thing Amy called me again, she had rode around after
work, she found her at Harvest Foods. And so Amy came to get me and
we went back to Harvest Foods and she was snoring and sleeping like
whenever she would do that. And so we brought her back to the cabin
and I just kept checking on her and kept checking on her. I’d go sit in
the car and just sit with and wait. I thought she was going to sleep it off
(TEARING UP).

Q. So that whole time you’d go check on her, sometimes you’d sit
in the car, you said, right?

A. Yes, sir.

Q. When did you first notice that she wasn’t breathing?

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A. When I was calling 911, I panicked, she was snoring the whole
time I went and check[ed] on her back and forth, back and forth. Went
sat in the car for awhile, back and forth. And then when I walked out
that last time she wasn’t snoring so I started panicking and I’d freeze, I
freaked out and I was trying to see because I didn’t know she wasn’t
breathing, I didn’t know ... I didn’t know. I didn’t know she passed
away. I just kept ... her face was warm, she was warm, you know.

Q. What position was she in at that time?

A. Well she was in the car and she was on her side. So when I was
going back and forth I just kept her on her side like that so that if she
would throw up or anything, just in case, she wouldn’t choke or
anything like that. Because I was in and out, in and out going back and
forth.

Q. So she was on the seat though?

A. Yes

Q. Sitting in the seat just on her side ...

A. Sideways like so that she would be like this and not back or
anything like that.

Q. O.K.

Defendant further testified that on previous occasions, Ms. Bernard would

sleep between five and six hours after consuming drugs, so she believed that this

time would be no different. Defendant confirmed Ms. Adams’ testimony that Ms.

Adams periodically called and texted Defendant to check on Ms. Bernard.

On cross-examination, Defendant testified that she had previously left Ms.

Bernard in the vehicle while Ms. Bernard was under the influence of drugs.

Defendant stated the reason she did not remove Ms. Bernard from the vehicle on the

previous occasion was because she was not physically strong enough, as Defendant

weighed 120 pounds, and Ms. Bernard weighed 280 pounds. However, Defendant

stated she would check on Ms. Bernard while she slept in the car, as in the instant

case.

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Defendant testified and elaborated on the other previous occasions when Ms.

Bernard would be under the influence of drugs, including a time they traveled from

Marksville to Basile, stating Ms. Bernard engaged in drug activity about a month

prior to her death, and every time Ms. Bernard would use drugs, she would “slur”

her words and then eventually pass out.

After discussing the prior instances related to Ms. Bernard’s drug use and

binges, Defendant testified that on the day of the incident the weather was nice so

she had the car windows rolled down for Ms. Bernard and would frequently check

on Ms. Bernard. Defendant stated that the last time she checked on Ms. Bernard

she noticed a difference and a distinct change in Ms. Bernard’s lip color, so she

attempted to find Ms. Bernard’s pulse but was unsuccessful due to her lack of

medical training, and then Defendant called Ms. Adams and 911 for assistance.

DISCUSSION AND ANALYSIS

Firstly, we note that there is no jurisprudence as to the sufficiency of the

evidence for failure to seek assistance, as La.R.S. Article 14:502 is a relatively new

statute that was enacted on August 1, 2018.

Arguments Presented in Brief

In her brief, Defendant argues the evidence presented at trial was insufficient

to prove beyond a reasonable doubt that, prior to seeking assistance, she knew that

Ms. Bernard had suffered serious bodily injury. To support her argument, Defendant

contends she closely monitored Ms. Bernard’s condition and sought help when she

believed medical assistance was now necessary, as she had no knowledge of what

type of drugs Ms. Bernard had ingested, she has no medical training, and she was

not a drug user. Additionally, Defendant argues that based on her testimony she did

not know that Ms. Bernard had suffered serious bodily injury, along with the medical

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evidence adduced at trial showing that it was typical for a heroin user to “sleep off”

the drugs and allow the body to detoxify itself, that the State failed to prove, beyond

a reasonable doubt, that she was guilty of failure to seek assistance, death related,

and prays for this court to vacate her conviction.

On the other hand, the State contends any rational trier of fact could have

found the essential elements of failure to seek assistance proven beyond a reasonable

doubt. According to the State, an emergency arose when Ms. Bernard was found

unconscious, prompting the need for medical assistance, and that Defendant knew

Ms. Bernard was unconscious due to drug abuse. Accordingly, the State asserts all

elements of the crime were proven beyond a reasonable doubt.

To support a conviction for failure to seek assistance, death related, under

La.R.S. 14:502, the State was required to prove that Defendant: (1) was at the scene

of emergency, (2) knew that Ms. Bernard suffered serious bodily injury, (3) failed

to give Ms. Bernard reasonable assistance, and (4) the serious bodily injury resulted

in Ms. Bernard’s death.

As noted above, the State bears the burden of proving, beyond a reasonable

doubt, evidence sufficient to show that Defendant possessed sufficient knowledge

that Ms. Bernard was suffering “great bodily injury” and that Defendant had

intentionally failed to seek medical treatment for Ms. Bernard.

Here, the evidence is clear that as to this tragic incident Defendant neither

participated in Ms. Bertrand’s drug use/binge, nor did she provide Ms. Bertrand with

any of the “cocktail” of assorted drugs Ms. Bertrand ingested. Additionally, the

testimony of Defendant, as confirmed by Ms. Adams’s testimony, shows that in the

past it was both their experiences that when Ms. Bertrand used drugs, whether she

was in her vehicle, at friend’s home, or in her own bed, that she would simply “sleep

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it off” and fully recover. In addition, Dr. Tape testified that it was not unusual for a

heroin user to “sleep off” the drugs, as in the case of Ms. Bernard. Further, the

investigation of the tribal police department, as the death occurred on a reservation,

revealed nothing contradicting Defendant and Ms. Adams’s testimony. Thus, the

undisputed evidence shows that Defendant did not possess sufficient knowledge as

to how much or what types of drugs Ms. Bertrand had ingested prior to Defendant

and Ms. Adams finding her in her car.

Next, and as to whether Ms. Bertrand suffered an alleged “great bodily

injury,” the State argues that the evidence shows that Ms. Bertrand was unconscious

and, thus, prompting the need for immediate medical assistance. We disagree.

The issue as to whether Ms. Bertrand was unconscious or merely “sleeping it

off” again goes directly to the facts of the case and the State’s burden of proof,

beyond a reasonable doubt, of each element of this crime, including providing

sufficient evidence of Ms. Bertrand’s “great bodily injury.”

The State argues that Ms. Bertrand was “unconscious” and thus provided

proof that an “emergency arose” prompting a need for medical assistance. However,

a review of the evidence in this case does not bear this out. Both Defendant and Ms.

Adams, the only two witnesses as to Ms. Bertrand’s condition, testified and

confirmed that when they arrived Ms. Bertrand was in her car and she was conscious,

breathing and even snoring, and most importantly, without any obvious signs of

serious physical injury. Specifically, the evidence shows Ms. Bertrand was not

experiencing convulsions, foaming at the mouth, bleeding, blue lips, or displaying

any other physical signs or symptoms that would cause a rational person to suspect

a serious medical emergency was occurring. Further, Defendant and Ms. Adams

testified that when Ms. Bertrand was moved back to the cabin that she again was

18

still conscious, snoring and “sleeping it off,” as Ms. Bertrand normally had during

her past drug use.

Additionally, and as previously stated, because Defendant did not have any

knowledge of the type(s) of drugs consumed by Ms. Bertrand, it was impossible for

Defendant, or Ms. Adams, to know how those drugs would react with Ms. Bertrand’s

body as to this particular “binge.” However, whenever Defendant realized that Ms.

Bertrand’s body and breathing had changed and did indicate acute physical distress,

Defendant notified emergency personnel.

While acknowledging that these cases are to be reviewed pursuant to the

unique facts of each individual matter, because this statute was recently enacted, a

general discussion of its application is helpful in determining how it should be

interpreted. Consider this hypothetical: a group of friends are leaving a wedding

and when they get to the parking lot they observe a man sprawled next to his vehicle.

Someone recognizes the man and explains he has a history of drug use and alcohol

abuse. He seems to be unconscious, but as the group approaches, the man is

breathing, mumbling, and snoring, but without any obvious signs of injury or dire

distress. Specifically, the man at this time is not foaming at the mouth, convulsing,

bleeding, blue lips, or displaying any other physical symptoms that would cause a

rational person to suspect a serious medical emergency was occurring. The group,

having no knowledge of the man’s activities or the events of this evening, do not call

911 for assistance or take the man to the nearest hospital. However, not wanting to

just leave him on the sidewalk, they place the man into his vehicle for him to “sleep

it off.” Unfortunately, the man dies of a drug overdose that same evening in his

vehicle. Under the State’s argument, these well-intentioned guests would be guilty

of failure to provide assistance and prosecuted for violation of La.R.S. 14:502.

19

The result of this interpretation would completely undermine the purpose of

the statute, which is encouraging persons to provide assistance in service of saving

more lives. Instead, it disincentivizes people from offering help and assistance, even

when a person has suffered great bodily injury or is in obvious stress.

This interpretation of the application of this statute also ignores the realities

of substance abuse in every-day life, i.e., the problems and burdens that are placed

upon families, friends, spouses, acquaintances, law enforcement, innocent

bystanders, and the public in general. Furthermore, it imposes criminal liability on

individuals when these persons have no independent knowledge, did not participate

in the victim’s alleged drug use, and the victim has no obvious signs of acute

physical injury, as in the present case. The interpretation advocated by the State and

trial court would impose a burden on bystanders, family members, and the general

public to make an instant medical decision, without sufficient information or

knowledge, and if wrong, face possible criminal prosecution for failure to provide

assistance, thus, in our view leading to absurd consequences not anticipated by the

legislature and this statute.

After a thorough review of the record, we find the evidence adduced at trial

was insufficient to show Defendant’s actual knowledge as to the victim having

suffered serious bodily injury, and that Defendant knew Ms. Bertrand ingested

sufficient drug(s) that would result in her death by drug overdose on this particular

date and thus insufficient to support Defendant’s conviction.

Therefore, and in viewing the evidence in the light most favorable to the

prosecution, we find that no rational trier of fact could have found Defendant guilty

beyond a reasonable doubt of failure to seek assistance in violation of La.R.S.

14:502.

20

ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE:

In her remaining assignments of error, Defendant contends the near-maximum

sentence received is unconstitutionally excessive, and the trial court failed to impose

a sentence reasonably tailored to her considering the facts and circumstances of this

case. Based on our finding that the evidence presented does not support Defendant’s

conviction, we pretermit these assignments of error.1

DECREE

The evidence adduced by the State was insufficient to sustain Defendant’s

conviction for failure to seek assistance, death related, in violation of La.R.S. 14:502.

Therefore, Defendant’s conviction is reversed, a judgment of acquittal is entered,

and her sentence is vacated.

CONVICTION REVERSED; JUDGMENT OF ACQUITTAL ENTERED;
SENTENCE VACATED.

1
In spite of these assignments of error being pretermitted, we note the probable merits of
Defendant’s argument that the sentence was excessive, as Defendant was sentenced to the near
maximum four years at hard labor in this case, in spite of the unique facts and circumstances of
this case, including the following mitigating factors: defendant’s age, medical and physical
condition, work history, and lack of any misdemeanor or felony arrests or convictions, along with
an extraordinary written note, signed by all six jurors, specifically requesting sentencing leniency
by the trial court.

21

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-523

STATE OF LOUISIANA

VERSUS

LAURIE ELKINS RICHARD

KYZAR, Judge, concurring with additional reasons.

I agree with the outcome of the decision of my colleagues but write separately

to make certain my opinion concerning the statute in question and its application to

the unfortunate facts of this case. A life is lost and that is a tragedy in the least. The

fact that the victim’s loved one is convicted as a result of the death for a non-

intentional reaction to the victim’s situation as might be called for by this particular

statute only enhances the tragedy of this senseless death.

Louisiana Revised Statute 14:502 is the crime for which Defendant was

convicted. The statute reads in full as follows:

A. (1) Any person at the scene of an emergency who knows that
another person has suffered serious bodily injury shall, to the extent that
the person can do so without danger or peril to self or others, give
reasonable assistance to the injured person. Reasonable assistance
includes immediately seeking or reporting the need for medical
assistance from an appropriate authority.

(2) Any person who engages in reckless behavior that results in
the serious bodily injury of any person shall, to the extent that the
person can do so without danger or peril to self or others, give
reasonable assistance to the person. Reasonable assistance includes
immediately seeking or reporting the need for medical assistance from
an appropriate authority.

B. For purposes of this Section:

(1) “Appropriate authority” includes:

(a) Any state or local law enforcement agency.

(b) A 911 Public Safety Answering Point as defined in Title 33
of the Louisiana Revised Statutes of 1950.

(c) Emergency medical personnel.

(2) “Reckless behavior” means an activity or behavior in which
a reasonable person knew or reasonably should have known that the
activity or behavior may result in injury to another, including but not
limited to excessive consumption of alcohol, binge drinking, drag
racing, consumption of any controlled dangerous substance, acts of
hazing, or other similar activity, including activity which is defined as
a criminal offense under this Title.

(3) Repealed by Acts 2019, No. 2, § 3.

C. (1) Except as provided in Paragraph (2) of this Subsection,
any person who violates the provisions of this Section shall be fined not
more than one thousand dollars, imprisoned with or without hard labor
for not more than one year, or both.

(2) If the serious bodily injury results in the death of the person,
any person who violates the provisions of this Section shall be fined not
more than two thousand dollars, imprisoned with or without hard labor
for not more than five years, or both.

Defendant was convicted of violating La.R.S. 14:502(A)(1). It is noted that

persons who come upon the “scene of an emergency” and who fail to render aid to

anyone experiencing “serious bodily injury” are treated the same as persons who

engage in reckless behavior with another and that other person experiences serious

bodily injury resulting from that reckless conduct, as per La.R.S. 14:502(A)(2).

Reviewing the testimony from the committee hearing on March 21, 2018, reveals

that the purpose of the bill was to attempt to save the lives of persons engaging in

the reckless drinking of alcohol and/or the use of dangerous drugs by penalizing

those who participated in the activity with the injured or deceased person and who

fail to contact 911 or seek help for fear of reprisal because they too were engaged in

the activity along with that person. The statute as enacted does far more than that

and is extremely broad. Indeed, in committee, there was an attempt to limit the

statute to those participating who fail to seek aid. Apparently, the final version of the

2

law did not do so. Under the present wording of the law, anyone walking down a

street in “Any Town” Louisiana, who sees someone passed out, obviously seriously

drunk or on drugs, and fails to call 911 can be found guilty and sentenced to prison

for up to five years if the situation is deemed to be an emergency, the victim is

deemed to suffer serious bodily injury, and the victim ultimately dies. There is

arguably “an emergency” and arguably “serious bodily injury” in the broad meaning

of those terms. This is far beyond the testimony of the author at the initial committee

hearing on the underlying bill as to the intent of the law. The law, under subpart (A)

leaves much unanswered for the average person who must conform his or her

conduct accordingly. What is an “emergency” or the “scene of an emergency?” The

law does not define such, nor does it state that a reasonable man standard applies to

determine what is an emergency. Indeed, in La.R.S. 14:502(B)(2) the legislature

applied a reasonable man standard to the definition of “reckless behavior,” yet it did

not do so with the phrase “scene of an emergency” or even what may or may not be

perceived as “serious bodily injury” in La.R.S. 14:502(A)(1). Thus, it must be

presumed that it is the perception of the defendant charged with the offense as to

whether the scene encountered was an emergency, or whether there was serious

bodily injury. Criminal statutes must be read in the narrowest fashion and must be

construed in the light most favorable to the defendant under principles of lenity. State

v. Carr, 99-2209 (La. 5/26/00), 761 So.2d 1271.

It is a well-established tenet of statutory construction that
criminal statutes are subject to strict construction under the rule of
lenity. State v. Carouthers, 618 So.2d 880, 882 (La.1993). Thus,
criminal statutes are given a narrow interpretation and any ambiguity
in the substantive provisions of a statute as written is resolved in favor
of the accused and against the State. State v. Becnel, 93-2536, p. 2
(La.5/31/96), 674 So.2d 959, 960; Chevalier v. L.H. Bossier, 95-2075,
p. 6 (La.7/2/96), 676 So.2d 1072, 1076 (citing State v. Piazza, 596
So.2d 817, 820 (La.1992)). The principle of lenity is premised on the
idea that a person should not be criminally punished unless the law
provides a fair warning of what conduct will be considered criminal.

3

State v. Piazza, 596 So.2d 817, 820 (La.1992) (citing 3 N. Singer,
Sutherland Statutory Construction § 59.04 (Sands 4 th ed.1986)). The
rule is based on principles of due process that no person should be
forced to guess as to whether his conduct is prohibited. Id. (citing Dunn
v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979)).

Id. at 1274.

On the other hand, if the provision setting forth that when coming on the

“scene of an emergency” where another is suffering “serious bodily injury,” is

unambiguous, the rule of lenity is inapplicable. State v. Turner, 18-780, p. 4 (La.

5/8/19), 283 So.3d 997 (per curiam).

“The general rule that ambiguity concerning the ambit of
criminal statutes should be resolved in favor of lenity applies when the
court is uncertain about the statute’s meaning and is ‘not to be used in
complete disregard of the purpose of the legislature.’ ” State v. Brown,
03-2788, pp. 5-6 (La. 7/6/04), 879 So.2d 1276, 1280 (quoting Perrin v.
United States, 444 U.S. 37, 49 n.13, 100 S.Ct. 311, 317, 62 L.Ed.2d 199
(1979)). A court should not “blindly incant the rule of lenity to ‘destroy
the spirit and force of the law which the legislature intended to and did
enact.’ ” Huddleston v. United States, 415 U.S. 814, 832, 94 S.Ct. 1262,
1272, 39 L.Ed.2d 782 (1974) (quoting American Tobacco Co. v.
Werckmeister, 207 U.S. 284, 293, 28 S.Ct. 72, 52 L.Ed. 208 (1907)). In
the present case, although defendant has articulated a narrower
construction, we find that the statute is unambiguous, and therefore the
rule of lenity does not apply.

Id. at 999–1000.

I believe the terms within the statute are ambiguous in that its application can

be so broadly read that it can or may apply to many situations where it was not

intended to so apply. Is the perception of the actor or non-actor or that of a reasonable

person used in interpreting the provisions? That question is unanswered. I might

define emergency differently than another. I might consider whether one is

experiencing serious bodily injury different from another, especially the term

“unconsciousness” as used in La.R.S. 14:2(C). Is a person that is “out of it” mentally

but has his or her eyes half open and is moaning, unconscious? One person might

4

think so, another not, depending on the personal background and history of both the

onlooker and the victim. Thus, the rule of lenity must be applied here.

In this case, Defendant did not perceive her initial encounter with the victim

to be an emergency. She had seen this pattern repeat itself over and over. The victim

was addicted to drugs. She routinely got high, passed out, slept it off, and woke up

to go on with her life. Defendant saw nothing different initially. During her

uncontested testimony, Defendant stated that the point at which she perceived an

emergency was occurring when she noticed a difference in the victim’s condition

and her lips had turned blue. She called Ms. Adams and then called 911 as required

by La.R.S. 14:502(A)(1).

Black’s Law Dictionary defines “emergency” as “[a] sudden and serious event

or an unforeseen change in circumstances that calls for immediate action to avert,

control, or remedy harm[]” or as “[a]n urgent need for relief or help.” Black’s Law

Dictionary (11th ed. 2019). HealthCare.gov, an official website of the United States

government, defines “emergency medical condition” as “[a]n illness, injury,

symptom or condition so serious that a reasonable person would seek care right away

to avoid severe harm.”1 As observed above, Defendant recognized a change in the

victim’s circumstances calling for immediate action when she noticed that her

condition had become serious. At that point, she began the seeking help, by first

calling Ms. Adams and then calling 911.

It is obvious that the jury applied a broad reading of the law, as would most

lay persons not being given further guidance, and as a result, it felt that it had no

alternative other than a guilty verdict. Given the wording of the statute, the jury can

hardly be faulted for doing so. An instruction that a narrow reading of the law is

1
https://www.healthcare.gov/glossary/emergency-medical-condition/#:~:text=An%20illness
%2C%20injury%2C%20symptom%20or,away%20to%20avoid%20severe%20harm.

5

required may indeed have made a difference in that outcome. It was not requested

or given. However, the law of statutory construction in the criminal law realm must

be applied. The jury obviously sensed the incongruencies present in the statute based

on its request for leniency in the note to the trial court accompanying the verdict.

Following the law, we must give a narrow interpretation of the statute, and in

doing so, we must look to the perception of Defendant at the time she encountered

the victim initially and throughout the remaining time she monitored her condition.

When she perceived an emergency, she contacted 911. The evidence was thus

insufficient under these facts to establish her guilt beyond a reasonable doubt.

6