OF CERTIORARI TO THE COURT OF APPEAL THIRD CIRCUIT, PARISH OF
case presents the question of whether the court of appeal
erred in applying Louisiana's jurisprudential "same
evidence" test to find that defendant's conviction
for attempted felony carnal knowledge of a juvenile, La.R.S.
14:27 and 14:80, must be set aside in light of his conviction
for malfeasance in office, La.R.S. 14:134, because it
violates the prohibition against double jeopardy. Finding
that no double jeopardy violation occurred, we reinstate
defendant's conviction and sentence for attempted felony
carnal knowledge of a juvenile. Furthermore, we find no
significant difference between U.S. Const. Amend. V and La.
Const. art. I, § 15 supporting the notion that
Louisiana's constitution affords greater protection
against double jeopardy than the federal constitution or
requires this state's courts to apply two distinct
tests-one federal and one state-to analyze double jeopardy
claims. Therefore, 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
and can dispense with Louisiana's separate "same
State charged defendant, a former Oakdale police officer,
with felony carnal knowledge of a juvenile, malfeasance in
office, and obstruction of justice. The charges arose from an
incident involving 15-year-old B.W. On May 23, 2014,
B.W.'s uncle, Thomas Buxton, became concerned when he saw
a police unit parked in front of his sister's Allen
Parish residence, where he knew his niece was home
alone. Mr. Buxton entered the home and found a
police gun belt and radio on the living room floor. In
B.W.'s bedroom, he found defendant alone with B.W. She
was in bed under the covers, and defendant was hiding behind
the bedroom door with his shirt untucked and his belt undone.
first told investigators that defendant went to the residence
to force Hesikiah Hayward, her former boyfriend and
defendant's cousin, to leave. She claimed Mr. Hayward
fled when defendant began searching the home. She later
recanted that account and stated that defendant concocted the
story about Mr. Hayward. She also admitted that, before her
uncle interrupted them, she had performed oral sex on
defendant and was about to engage in sexual intercourse with
told investigators he went to the residence to compel Mr.
Hayward to leave and found his cousin hiding in a closet. He
claimed he did not inform the dispatcher of his location
because he did not want Mr. Hayward to get in trouble. He
denied any sexual misconduct with B.W.
Hayward told investigators he was not in the residence at the
time of the incident, but had received text messages from
B.W., asking him to say he was there when defendant arrived.
Text messages on Mr. Hayward's phone confirmed this
account. Defendant had instructed B.W. to delete
the relevant text messages on her cell phone.
Allen Parish jury found defendant guilty of attempted felony
carnal knowledge of a juvenile, malfeasance in office, and
obstruction of justice. The trial court sentenced him to four
years imprisonment at hard labor (with all but one year
suspended) on each conviction and ran the sentences
court of appeal affirmed in part, vacated in part, and
remanded for establishment of a payment plan for costs and
fees. State v. Frank, 15-0893 (La.App. 3 Cir.
5/25/16), 192 So.3d 888. The majority vacated defendant's
conviction for attempted felony carnal knowledge of a
juvenile because it found that punishing defendant for that
conviction and the malfeasance in office conviction violated
double jeopardy, pursuant to this state's "same
evidence" test. Frank, 15-0893, pp. 4-8, 192
So.3d at 891-93. In reaching that conclusion, the majority
relied on, inter alia, the state's comment
during closing argument that "[a]nd lastly we've
proven beyond a reasonable doubt the third element of
Malfeasance in Office through the testimony of [B.W.] saying
that she performed oral sex on the defendant while he was on
duty." Frank, 15-0893, p. 7, 192 So.3d at 893.
Blockburger, there is no obstacle to convicting
defendant of, and punishing him for, both attempted felony
carnal knowledge and malfeasance in office. As noted by Judge
Saunders in his dissent:
The two crimes in question, malfeasance and attempted carnal
knowledge, do not, according to their definitions, appear to
be the same offense. Attempted carnal knowledge occurs when a
person, age seventeen or older, attempts to have sexual
intercourse, with consent, with a person who is thirteen
years of age or older but less than seventeen years of age,
when the victim is not the spouse of the offender and when
the difference between the age of the victim and the age of
the offender is four years or greater.
La.R.S. 14:80; La.R.S. 14:27. It is sufficient that oral sex
occurred. La.R.S. 14:80. Malfeasance in office is committed
when a public officer intentionally refuses or fails to
perform his lawfully required duty or intentionally performs
his lawfully required duty in an unlawful way.
On their face, it is clear that there are several elements
for attempted carnal knowledge that are not required to
convict for malfeasance and vice versa. For example, for
malfeasance in office, the State must show that Defendant was
a public officer. No such showing is necessary for attempted
carnal knowledge. Likewise, for attempted carnal knowledge,
Defendant's age is a relevant fact that the State must
establish, no such showing is necessary for a malfeasance in
office prosecution. Thus, each offense requires proof which
the other does not, and this case fails the
Frank, 15-0893, pp. 1-2, 192 So.3d at 896.
present case arises, however, because Louisiana has also
applied a "same evidence" test in addition to the
Blockburger test. The impact of the "same
evidence" test on this state's double jeopardy
jurisprudence has not gone without criticism. Judge Drew in
particular succinctly illuminated the problem with this
Three out of every four states settle Fifth Amendment claims
of double jeopardy by simply applying the precepts of
Blockburger v. United States, 284 U.S. 299, 52 S.Ct.
180, 76 L.Ed. 306 (1932), wherein a defendant can be
convicted of two offenses arising out of the same criminal
incident if each crime ...