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State v. Mollerberg

Court of Appeals of Louisiana, First Circuit

September 24, 2018

STATE OF LOUISIANA
v.
ERIK MOLLERBERG

          On Appeal from the 23rd Judicial District Court In and for the Parish of Ascension State of Louisiana Trial Court No. 35, 706 Honorable Thomas J. Kliebert, Jr., Judge Presiding

          Ricky L. Babin District Attorney Donaldsonville, LA Attorneys for Appellee, State of Louisiana

          Donald D. Candell Lindsey D. Manda Philip N. Maples Assistant District Attorneys Gonzales, LA Jarrett P. Ambeau Eric E. Vincent, Jr. Baton Rouge, LA Attorneys for Defendant-Appellant, Erik Mollerberg

          BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.

          HIGGINBOTHAM, J.

         The defendant, Erik Mollerberg, was charged by bill of information with one count of simple criminal damage to property, a violation of La. R.S. 14:56; and one count of aggravated assault with a firearm, a violation of La. R.S. 14:37.4. He pled not guilty to the charges and waived his right to a jury trial. Following a bench trial, he was adjudicated guilty on both counts. The defendant filed a motion for new trial, which was denied. On each count, the defendant was sentenced to one-and-one-half years imprisonment at hard labor. The sentences were ordered to run concurrently. The trial court permitted the sentencing to be served via home incarceration, supervised and monitored through the Department of Corrections. The defendant was also ordered to make restitution to the victim in the amount of $1, 500, and to pay court costs and supervision fees. The defendant now appeals, designating four assignments of error concerning his conviction for aggravated assault with a firearm. The defendant does not contest the simple criminal damage to property conviction.

         FACTS

         On May 8, 2016, Mother's Day, college student Calob Leindecker was driving home from college to his parents' house in Prairieville, Louisiana. Calob turned off of Old Jefferson Highway onto Oakland Drive, the street at the front of his parents' neighborhood. The first house to Calob's right was the defendant's house. Calob decided that he wanted an energy drink, so he turned into the defendant's side driveway and immediately turned his car around the other way to head to a gas station. There was an automatic sliding iron gate across the length of the defendant's driveway. As Calob was backing out of the driveway, the defendant's young son ran to the gate with his arms spread and was apparently telling Calob to leave.

         As Calob drove toward the stop sign at the front of the neighborhood, he saw the defendant in his yard, following him and making gestures. Calob could tell the defendant was upset, so he backed up his car and stopped near the defendant's side driveway. He rolled down his window to talk to the defendant to find out what was wrong, but the defendant went inside. According to Calob, the defendant's wife, Shannon, who was near the back of the house by the swimming pool, began yelling and cursing at Calob. Since Calob was unable to speak to anyone, he drove on to the gas station. As Calob drove away, the defendant ran down the length of his driveway with an AR-15 rifle and then walked with the rifle back toward the house.

         About five minutes later, the defendant's stepdaughter returned home and parked her vehicle on the side driveway so as to block the gate; she opened the iron gate and left it open. As three of the defendant's young children stood in the driveway near the gate, the defendant walked back onto the driveway, looking in the direction of where Calob had driven. Several seconds later, Calob returned from the gas station to head toward his parents' house. As Calob passed the defendant's house, the defendant walked down his driveway toward the street while loading the AR-15 rifle. The magazine fell out of the rifle, and the defendant picked it up and inserted it back into the rifle. At the same time, he flagged down Calob, and Calob stopped. The defendant walked from his driveway onto the street toward Calob's vehicle. The defendant was very upset with Calob. After a few seconds, Calob began to drive off, and the defendant jabbed the muzzle of his rifle into the passenger side door of Calob's vehicle, at which time, Calob hit his brakes. The defendant approached the passenger side window and pointed his AR-15 rifle at Calob. Calob then sped away. When Calob arrived at his parents' house and told them what happened, his mother called the police. The defendant was arrested. The entire incident was captured on the defendant's surveillance cameras outside of his house. There was no audio on the surveillance tapes.

         The defendant's wife, Shannon, testified at trial that the family was celebrating Mother's Day by their pool, when Calob pulled into the driveway. According to Shannon, her son walked toward Calob and asked him to "please" not use their driveway. Her son then told his parents that Calob would not leave, and that is when the defendant walked out to tell Calob to leave. Calob pulled out, drove off, then put his car in reverse and came back. It was at this point that Shannon and Calob exchanged words. According to Shannon, Calob was yelling something about her "kids should not be going out there and telling him to leave." Shannon told Calob that he was trespassing and asked him to please leave or she would call the police. The defendant then came out with the gun. Shannon testified that she was scared and her children were very scared.

         The defendant testified at trial that he had a simple burglary conviction in 2003, but he had been pardoned for that crime. According to the defendant, his son went to tell Calob to leave when he pulled in the driveway, and his son returned to inform him that Calob would not leave. The defendant walked through his breezeway toward Calob and yelled at him that he needed to go. Calob rolled down his window and said, "I don't have to go anywhere." The defendant went back inside, while Calob backed up his car and exchanged words with his wife, Shannon. The defendant then came outside with his AR-15 rifle and, according to the defendant, once Calob saw the rifle, he took off. Later, when Calob drove back down the street, the defendant took his rifle and went out to the street. According to the defendant, Calob stopped directly in front of him, began screaming at him, and stated that he was about to pull over so they could settle the matter with a fistfight. The defendant testified that when Calob started to pull over, the defendant took "the barrel end of the gun and nailed [Calob's] car with it, and [Calob] takes off, and that was it." According to the defendant, all of his family was scared, and it all happened fast. The defendant stated, "I've never dealt with someone so irrational to where a child and a woman and a husband, and then a husband with a rifle has asked you to leave and they still will not leave."

         An estimator with Owens Collision and Service testified at trial that he looked at the damage to Calob's car door. The estimate for repairing the door was $1, 658.88.

         ASSIGNMENT OF ERROR NO. 1

         In his first assignment of error, the defendant argues that the trial court erred in denying his motion for new trial, in that the trial court refused to consider newly discovered evidence that would have clearly shown Calob was the aggressor in the incident. In his brief, the defendant avers that, after he was arrested, Calob and his mother made social media postings for the purpose of "tarnishing" the defendant's reputation. According to the defendant, they posted several negative comments about the defendant's and his wife's businesses, "incorrect statements regarding [their] criminal history," and "unfavorable statements regarding" their ...


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