Opinion
NO. 19-K-90
03-20-2019
STATE OF LOUISIANA v. WAYNE TERRIO
Susan Buchholz First Deputy Clerk IN RE STATE OF LOUISIANA APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE SCOTT U. SCHLEGEL, DIVISION "D", NUMBER 17-4949 Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg
WRIT GRANTED
In this writ application, the State challenges the trial court's ruling that stalking is a specific intent crime. The State argues that while stalking was a specific intent crime under earlier versions of the stalking statute, La. R.S. 14:40.2, changes in the law have now made stalking a general intent crime as reflected in both the plain language of the statute and in the legislative history. It notes that while this Court, in an earlier writ disposition in this case on a different (though related) issue suggested that stalking is a specific intent crime, that issue was not then before this Court. After review, finding merit in the State's argument, we grant this writ application and reverse the trial court's ruling.
On August 2, 2017, the State filed a bill of information charging defendant, Wayne Terrio, with stalking, in violation of La. R.S. 14:40.2. In the prior writ disposition referenced by the State, this Court was asked by defendant to address, in pertinent part: 1) whether the trial court erred when it stated that the crime of stalking is a general intent crime, and 2) whether the trial court erred when it ruled as a matter of law that the defendant could not use evidence of his wife's alcoholism to show his intent and as a defense to his stalking charge. State v. Terrio, 18-K-529 (La. App. 5 Cir. 12/17/18) (unpublished writ disposition).
As to his first assignment of error, this Court ruled that there was never any ruling made by the trial court as to whether stalking was or was not a general intent crime, and that defense counsel failed to object to any alleged misstatement made by the trial court or file a notice of intent on the issue; thus, this Court declined to address the assignment. This Court also denied defendant's writ application with respect to his second assignment, finding the trial court did not err in excluding the "reverse 404B" evidence sought to be introduced by defendant at trial. In making its ruling, this Court recited the law as it pertained to stalking, noting, in dicta, that stalking is a specific intent crime, citing State v. Ryan, 07-504 (La. App. 3 Cir. 11/7/07), 969 So.2d 1268. Defendant filed a writ application with the Louisiana Supreme Court, which was subsequently denied. State v. Terrio, 18-2103 (La. 2/11/19), ___So.3d___, 2019 WL 669030.
On January 8, 2019, the State filed a motion to rule that stalking is a general intent crime and for the first time provided the court with a video of the May 31, 2001 House Criminal Justice Committee hearing on Senate Bill 196 of 2001, which became Act No. 1141 of 2001, in support of its proposition that the intent of the bill was to eliminate the requirement of specific intent and change stalking to a general intent crime. Defendant opposed the State's motion, contending that stalking is a specific intent crime, relying on this Court's prior writ disposition in this case and citing Ryan, supra, and State v. Saucier, 11-246 (La. App. 3 Cir. 11/9/11), 81 So.3d 691, writ denied, 12-0227 (La. 6/22/12), 91 So.3d 966.
Hearings on the State's motion were held on February 4, 2019, and February 20, 2019. At the hearings, the State argued that the committee hearing on the proposed bill to amend the stalking statute in 2001 evidenced the intent of the legislature to eliminate specific intent from the definition of the crime. In response, the defense argued that the trial court was bound by this Court's prior writ disposition issued in this case, arguing that this Court indicated stalking is a specific intent crime. The trial court in turn commented that while bound by this Court's rulings, it could find nowhere in the prior writ disposition where this Court ruled on the issue of whether stalking is or is not a specific intent crime. The trial judge further noted that he believed the State's argument had merit. Nevertheless, at the conclusion of the hearing on February 20, 2019, the trial court ruled that stalking is a specific intent crime, relying on the language of this Court's prior writ disposition. The State seeks review of this ruling.
Prior to 2001, stalking was defined under La. R.S. 14:40.2(A) as the "willful, malicious, and repeated following or harassing of another person with the intent to place that person in fear of death or bodily injury." It is uncontested by the State that under this version, stalking was considered a specific intent crime. However, effective August 15, 2001, La. R.S. 14:40.2 was amended by Act No. 1141 to delete the language requiring that the offender act "with the intent to place that person in fear of death or bodily injury," and provide that the willful, malicious, and repeated following or harassing of another person must "cause a reasonable person to feel alarmed or to suffer emotional distress."
A review of the 2001 House Criminal Justice Committee hearing on Senate Bill 196 of 2001, which became Act No. 1141 of 2001, supports a finding that the intent of the bill was to eliminate the requirement of specific intent and change stalking to a general intent crime. On the video, which was admitted at the hearing in the trial court, discussions were held regarding the intent of the bill during which it was stated that the purpose of the proposed changes was to shift the focus from the offender's intentions to the perceptions of the victim. Specifically, it was argued that it would be immaterial whether the offender intended to place the victim in fear of death or bodily injury through his following and/or harassing; rather, it would be pertinent whether the victim felt alarmed or suffered emotional distress by the defendant's actions. The proponent of the bill explained that prosecutors have encountered difficulty in prosecuting stalking cases because of the onerous task of establishing the offender's intent, which "can always be shielded." At the hearing, questions arose concerning the deletion of the "intent" element, to which clarification was made by the proponent of the bill that despite the amendment, the statute would still have "a general intent element," explaining that the purpose was not to negate intent but rather redefine it to general intent and add in the victim's perceptions.
Later, in 2005, La. R.S. 14:40.2 was again amended by Act No. 161 to remove the requirement that the offender's actions be "willful" and "malicious" and replace that language with "intentional." The State has suggested in its writ application that in this context, "intentional" does not refer to specific intent but rather only to general intent, citing La. R.S. 14:11, which provides that:
La. R.S. 14:10 provides that "[g]eneral criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act." While specific criminal intent "is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." --------
The definitions of some crimes require a specific criminal intent, while in others no intent is required. Some crimes consist merely of criminal negligence that produces criminal consequences. However, in the absence of qualifying provisions, the terms "intent" and "intentional" have reference to "general criminal intent."Pertinent to the instant offense, La. R.S. 14:40.2 now defines stalking as:
[T]he intentional and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress. Stalking shall include but not be limited to the intentional and repeated uninvited presence of the perpetrator at another person's home, workplace, school, or any place which would
cause a reasonable person to be alarmed, or to suffer emotional distress as a result of verbal, written, or behaviorally implied threats of death, bodily injury, sexual assault, kidnapping or any other statutory criminal act to himself or any member of his family or any person with whom he is acquainted.
The statute defines "harassing" as "the repeated pattern of verbal communications or nonverbal behavior without invitation which includes but is not limited to making telephone calls, transmitting electronic mail, sending messages via a third party, or sending letters or pictures." La. R.S. 14:40.2(C)(1).
Defendant asserts that after the 2001 amendments to La. R.S. 14:40.2, courts of this state have still found that stalking is a specific intent crime, citing Ryan, supra and Saucier, supra. However, in both Ryan and Saucier, we note that the Third Circuit relied on pre-2001 jurisprudence and did not discuss the 2001 amendments to the statute. Ryan, 969 So.2d at 1270-1273; Saucier, 81 So.3d at 695-697.
Accordingly, through the deletion of the phrase, "with the intent to place that person in fear of death or bodily injury," in combination with a review of the legislative hearing pertaining to the 2001 amendment, we find that stalking is a general intent crime that requires only that defendant have the general intent to repeatedly follow or harass the victim in a manner that would "cause a reasonable person to feel alarmed or to suffer emotional distress." Therefore, we grant the State's writ application, find that stalking pursuant to La. R.S. 14:40.2 is a general intent crime, and remand for further proceedings.
Gretna, Louisiana, this 20th day of March, 2019.
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