STATE OF LOUISIANA v. DUSTIN MCDOWELL (2024)

Writ application granted; relief denied. See per curiam.

03/05/24

SUPREME COURT OF LOUISIANA

No. 2023-K-00508

STATE OF LOUISIANA

VS.

DUSTIN M. MCDOWELL

On Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of LaSalle

PER CURIAM:

Writ granted; relief denied. Defendant was charged with one count of domestic abuse battery with child endangerment in violation of R.S. 14:35.3, and was convicted of attempted domestic abuse battery with child endangerment, which was included in the jury instructions and verdict form as a responsive verdict upon agreement by each party.¹ Defendant filed a motion for new trial, motion to vacate conviction, and motion in arrest of judgment, arguing that the legislature has not authorized attempted domestic abuse battery with child endangerment as a responsive verdict to domestic abuse battery with child endangerment. The trial court denied the motions, and the court of appeal affirmed defendant's convictions and sentences. State v. McDowell, 2022-692 (La. App. 3 Cir. 3/8/23), 358 So.3d 277.

Defendant applied to this court to review the court of appeal's ruling. After careful review, we find that the court of appeal correctly applied State v. Trackling, 2004-3222 (La. 1/19/06), 921 So.2d 79, to determine that attempted domestic abuse battery with child endangerment is a cognizable offense and a responsive verdict to the charge of domestic abuse battery with child endangerment. In Trackling, this court held that attempted sexual battery is a cognizable offense and thus a responsive verdict to sexual battery. Several of this court's observations regarding sexual battery in Trackling are equally applicable to domestic abuse battery with child endangerment. As is the case with sexual battery, domestic abuse battery with child endangerment lacks a companion crime prohibiting domestic abuse assault with child endangerment. Because there is no statute prohibiting domestic abuse assault with child endangerment, there is no logical or legal impediment to a conviction of attempted domestic abuse battery with child endangerment. Trackling, 2004-3222, p. 10, 921 So.2d at 84–85. For these reasons, and for the reasons set forth more fully in the court of appeal's decision, we grant the application but deny relief.

WRIT GRANTED; RELIEF DENIED

“All crimes in Louisiana are statutory. There can be no crime which is not defined and denounced by statute.” State v. Trackling, 04-3222, p. 11 (La. 1/19/06), 921 So.2d 79, 85. Louisiana Code of Criminal Procedure Article 814 does not provide responsive verdicts for domestic abuse battery with child endangerment. Louisiana Code of Criminal Procedure Article 815 provides that responsive verdicts for crimes not provided in Article 814 are as follows: (1) guilty, (2) guilty of a lesser and included grade of the offense, or (3) not guilty. I find attempted domestic abuse battery with child endangerment is not a cognizable offense, and it is not responsive to the charge. The crime at issue is a battery; an attempted battery is an assault. The remaining elements of domestic abuse with child endangerment do not involve criminal behavior, but identify a specific type of offender and victim, and the presence of a child. Accordingly, I would grant Defendant's writ application and reverse the lower courts’ decisions.

FOOTNOTES

1.   The responsive verdicts listed on the verdict form in this matter were: (1) guilty, (2) guilty of attempted domestic abuse battery with child endangerment, (3) guilty of domestic abuse battery, (4) guilty of simple battery, (5) guilty of simple assault, and (6) not guilty.

Hughes, J., dissents. Genovese, J., would grant the writ and the relief requested and assigns reasons. Griffin, J., dissents.