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State v. Zeitoun

Court of Appeals of Louisiana, Fourth Circuit

November 8, 2017


         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 520-742, SECTION "E" Honorable Keva M. Landrum-Johnson, Judge



          Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro Tempore

          Joy Cossich Lobrano, Judge

         Appellant Ardulrauman Zeitoun ("Defendant") seeks review of his conviction for stalking a person for whose benefit a protective order has been issued and his sentence of four years at hard labor in the custody of the Louisiana Department of Corrections. For the reasons that follow, we affirm Defendant's conviction and sentence.

         The victim, K.Z.[1], met Defendant in 1994. They were married that same year, and had four children together. After a March 2011 incident where Defendant was arrested for beating her, K.Z. eventually decided to divorce Defendant. Upon telling Defendant of her decision, Defendant said to K.Z., "[d]rop this [explicative] or I'll finish your life." K.Z. continued with the divorce, and the divorce was finalized on February 8, 2012.

         As part of the property settlement after the divorce, K.Z. became responsible for managing the former couple's rental properties and was awarded ten percent of the rental income. The upkeep on the properties was a time-consuming responsibility, so K.Z. was frequently present at one of the properties. The property settlement also allowed Defendant to live in the property that had been the primary residence during the marriage (the "Residence") on the condition that he paid the mortgage and the utility bills. Defendant failed to do so, and he vacated the Residence. Eventually, K.Z. moved into the Residence.

         Various incidents occurred after Defendant moved out of the Residence. First, a July 25, 2012 incident resulted in Defendant being charged with attempted first degree murder. See La. R.S. 14:(27)30.[2] K.Z. testified that she and Defendant had a closing at a law office that they were scheduled to attend at different times. After completing her business, K.Z. left the law office and proceeded to her car. As she attempted to pull out of the parking space, Defendant pulled his van up beside her vehicle, which prevented her from leaving or opening her door. Defendant exited the van with a tire iron and began striking K.Z.'s vehicle and her windshield, causing it to break. K.Z. managed to slide over to the passenger side, unlock the door, and run down the street. Defendant chased after her and struck her with a tire iron. She fell to the ground, and Defendant dropped the tire iron. His hands now free, Defendant grabbed K.Z. by the head and began beating her in the head and back. Then, Defendant started to strangle her. K.Z. stated that he tried to break her neck, and that Defendant intended to kill her. A bystander was able to get Defendant off of her in time. K.Z. was certain that she would have died had someone not intervened. She was suffocating.

         The second incident took place on April 30, 2014, when Defendant violated a protective order. On October 2, 2012, a protective order (the "Order") was entered by a judge in Civil District Court. The terms of the Order barred Defendant from coming within 100 yards of K.Z. or contacting her by any means. The Order also required that Defendant stay at least 100 yards away from the rental properties managed by K.Z.[3] Despite the Order, Defendant returned to the rental properties managed by K.Z. On April 30, 2014, Defendant drove by one of the rental properties in a white cargo van while K.Z. was there with her daughter, N.Z. N.Z. was watering the front lawn when Defendant drove past and waved at her once, slowly. Officer Samuel Jennings ("Officer Jennings") responded to the incident. After hearing K.Z. and N.Z.'s statements, and learning of the Order, he prepared an arrest warrant for Defendant.[4] Defendant was arrested for violation of protective orders. See La. R.S. 14:79.

         Less than a month later, on May 16, 2014, a third incident occurred between K.Z. and Defendant. K.Z. was at another one of the rental properties doing some painting with her children. After Defendant's release from custody she began carrying a handgun, for which she has a permit. However, while she was painting, she put the gun down. At one point she had to go out to her vehicle to retrieve something. The white cargo van Defendant had previously driven by the Residence in was parked in front of the property, ten or fifteen feet away. As she exited the gate, she looked up and saw Defendant's van blocking her in, as it had been before, on the day of the tire iron attack. Defendant was in the van. K.Z. immediately thought he was going to attack her again. She reached for her gun only to realize she had left it inside. K.Z. panicked, started screaming, and ran back inside. Her children came outside, and Defendant drove off slowly. K.Z. contacted the police, and Defendant was ultimately arrested for violation of protective orders. See La. R.S. 14:79. On June 25, 2014, as a condition of reducing Defendant's post-indictment bond, Defendant was again prohibited from contacting K.Z. or going to the Residence.

         Less than two weeks later, on August 6, 2014, a fourth incident occurred when Defendant contacted K.Z. by phone. K.Z. captured a screenshot of the call, and recorded part of the conversation.[5] During the call, Defendant attempted to set up a meeting with K.Z., despite the Order, regarding transferring some property. K.Z. insisted that Defendant contact her attorney to perfect any transactions stating, "[y]ou have to meet with my attorney, not me." K.Z. then contacted her attorney and the prosecutor to report Defendant's phone call. Despite K.Z.'s attempts to keep Defendant from contacting her, at 6:24 a.m. the next morning, Defendant called her again. She did not answer.[6]

         In September and October of 2014, three more incidents occurred between K.Z. and Defendant. At this time, K.Z.'s children, including N.Z., and their roommates were living at the Residence. On September 16, 2014, K.Z. received a call from N.Z., who informed her that Defendant was at the Residence. N.Z. had been sleeping when she heard the dog barking in the backyard. She looked out the window and saw Defendant walking in the yard with a ladder, attempting to ward the dog off. N.Z. got one of her roommates to escort her out of the house and the two drove away. K.Z. panicked and called 911. Defendant was subsequently arrested for violation of protective orders. See La. R.S. 14:79. Following Defendant's arrest, the district court again admonished Defendant that he was to have absolutely no contact with K.Z. or with the children.

         Less than a week later, on September 22, 2014, K.Z. received another phone call from N.Z. telling her that Defendant was at the Residence. Once again, N.Z. heard the dog barking. Then, when she neared the main room of the house where her roommates were located, she heard Defendant's voice. When he saw her, he stated, "You come here." At that point, N.Z. ran to a neighbor's house and called the police. K.Z. also contacted the police, [7] and Defendant was subsequently arrested for violation of protective orders. See La. R.S. 14:79.[8] The district court once again explicitly ordered Defendant to have no further contact with K.Z. or her children. Despite this order, Defendant called K.Z. just twelve days later, on October 4, 2014. K.Z. felt that this call was an attempt by Defendant to let her know that that he was still there, and that he was not going anywhere.

         All of these incidents affected the rental business. A tenant who used to live at one of K.Z.'s rental properties near the Residence testified that she moved out in April of 2014 because she was afraid that something might happen at the rental property when she was at home, or when her children were there alone after school. K.Z. advised the tenant to Google her prior to moving into the property. At first, the tenant thought that it would be safe because Defendant was in jail. However, Defendant's behavior upon his release altered her opinion.

         During one incident, Defendant released two goats into the tenant's backyard. Later, on January 26, 2014, Defendant randomly cut down a tree in the tenant's front yard. The tenant also spotted Defendant hiding out in the apartment next door, one of the rental properties Defendant was prohibited from accessing by the Order. She found it strange that Defendant was in the apartment despite the fact that it had no electrical service.

         The tenant was forced to call the police four or five times during the time she resided at the rental property. Officer Charles Augustus ("Officer Augustus") interviewed the tenant after one of the times that she saw Defendant in the apartment next door. After his interview with the tenant, Officer Augustus prepared a warrant for Defendant's arrest. Another warrant for Defendant's arrest was generated as a result of the tree-felling incident.[9]

         On June 23, 2014, Defendant was indicted for felony stalking in violation of a protective order between January 26, 2014 and May 16, 2014. The indictment also alleged that Defendant placed the victim in reasonable fear of death or bodily injury, in violation of La. R.S. 14:40.2(B)(2)(a). Defendant was arraigned on June 25, 2014, and entered a plea of not guilty. The bill of indictment was eventually amended to extend the period of alleged stalking to January 26, 2014 through October 4, 2014.

         On December 16, 2014, the State filed a notice of intent pursuant to Louisiana Code of Evidence article 404(B) to introduce evidence of Defendant's prior bad acts. Defendant filed his opposition to the State's notice on March 13, 2015. A contradictory hearing was held on March 26, 2015. The district court granted in part and denied in part the State's motion, but agreed to reconsider its ruling after post-hearing briefing. On May 5, 2015, the district court denied the State's motion for reconsideration, and affirmed its original ruling. The State sought supervisory review of the district court's ruling. This Court granted the writ and reversed the district court's ruling as to, among other things, the admissibility of the tire iron attack. State v. Zeitoun, unpub., 2015-0580 (La.App. 4 Cir. 6/1/15), writ denied, 2015-1285 (La. 9/25/15), 178 So.3d 571.

         On June 6, 2016, Defendant proceeded to trial. After a one-day bench trial, the district court found Defendant guilty as charged. On October 21, 2016, Defendant filed a motion for new trial. He then filed amended motions for new trial on November 2 and 15, 2016. The district court denied the motion for new trial on November 21, 2016. That same day, the district court sentenced Defendant to serve four years in the Louisiana Department of Corrections, finding that the elements necessary to trigger the sentencing enhancement for placing the victim, for whom a protective order had been issued, in reasonable fear of death or bodily injury had been proven beyond a reasonable doubt. Defendant objected to the sentence, but did not file a motion to reconsider sentence.

         This appeal timely follows.

         Errors ...

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