WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT,
PARISH OF ORLEANS
Nguyen was abducted from his home during the night on April
23, 2013. His hands were bound behind and his back, he was
shot twice, and he was left to die in an area off Old
Gentilly Highway. He was still alive when he was found by
James Mushatt, who called 911. Mr. Mushatt reported seeing a
Nissan Titan truck speeding away and said the victim told him
that his wife was responsible for the crime. The victim died
at the scene shortly after.
surveillance captured a Nissan Titan truck as it pulled into
the victim's driveway on the night of the murder and then
drove off in the direction in which the victim was later
found. During the investigation, a detective learned that
Irene Booker owned a Nissan Titan truck, which she would loan
out in exchange for narcotics. According to Ms. Booker, she
loaned her truck to defendant on the afternoon of the murder.
When defendant failed to return the truck to her at the time
promised, she called him and he assured her, "We'll
be there shortly." Someone other than defendant then
returned the truck to her well after midnight and gave her
$200. Ms. Booker later learned that her truck's license
plate was missing. She obtained a temporary license plate
with an expiration date of June 24, 2013.
was indicted with conspiracy to commit second degree murder,
solicitation to commit second degree murder, second degree
murder, and obstruction of justice. At trial, the State
presented evidence that defendant and the victim's wife
began an intimate relationship immediately after the murder.
The State also presented evidence that the two had asked
Joseph Hoang to kill the victim for them. The victim's
wife denied conspiring to kill her husband but suggested
defendant killed the victim over money owed for drugs. The
victim's wife did not report his disappearance nor did
she report it when defendant told her on the morning after
the murder that he had "finished Lien . . . everything
is done." Although a detective believed, based on the
dust found around where the victim's missing security
system had sat, that the security system was removed very
recently, the victim's wife claimed the system had not
functioned for some time and had been removed earlier.
jury found defendant guilty as charged of obstruction but was
unable to reach a verdict on the remaining charges. Defendant
was sentenced to life imprisonment without parole eligibility
as a third-felony habitual offender. The court of appeal
reversed because it found the evidence insufficient to
support the conviction. State v. Hoang, 16-0479
(La.App. 4 Cir. 2/21/16), 207 So.3d 473. The majority found
the jury could only speculate from the State's
circumstantial evidence that defendant removed the license
plate from Ms. Booker's truck and removed the security
system from the victim's home. See Hoang,
16-0479, pp. 4- 5, 207 So.3d at 476 ("While the
circumstantial evidence presented at trial established that
these two events may have occurred, no reasonable juror could
have determined that Defendant was the person responsible for
either the removal of the license plate or the security
system based on the scant circumstantial evidence presented
by the State."). According to the majority, the State,
at best, proved only that defendant borrowed the Nissan Titan
truck from Ms. Booker the afternoon of the murder.
Hoang, 16-0479, p. 6, 207 So.3d at 466. Thus,
"[w]hile the State was able to connect Defendant and Ms.
Nguyen to the victim, the State failed to connect him to
either [the removal of the license plate or the removal of
the surveillance system]." Hoang, 16-0479, p.
7, 207 So.3d at 477.
Lobrano dissented because she found the evidence sufficient
to prove defendant acted as a principal to the crime of
obstruction. In addition to finding the State presented
sufficient evidence that defendant was a principal to the
removal of the license plate and the surveillance system,
Judge Lobrano agreed with the State's contention that the
jury could also have rationally concluded defendant was a
principal to the disposal of the murder weapon and return of
the truck after it was used to abduct and murder the victim,
which acts also constitute obstruction. Thus, where the
majority viewed the circumstantial evidence as only providing
grist for the jury to speculate as to defendant's guilt,
the dissent found it provided the jury a sufficient basis to
reject the "extraordinary coincidence" of
defendant's hypothesis of innocence. See Hoang,
16-0479, pp. 9-10, 207 So.3d at 484-485 (Lobrano, J.,
were instructed that they could find defendant guilty of
obstruction if they found he engaged in two specific acts
In order to convict the defendant of obstruction of justice,
you must find, first, that the defendant knew or had good
reason to believe that his act may affect an actual,
potential, present, past, future criminal proceeding, and
two, that the defendant tampered with evidence by
disconnecting a video surveillance system and removing a
license plate from a vehicle, and three, that the
defendant had a specific intent to distort the results of any
actual, potential, present, past, future criminal proceeding
or investigation, and four, that the evidence was reasonably
likely to be relevant to an actual, potential, present, past,
future criminal investigation or proceeding.
State argued in this court, consistent with the views of the
dissenting judge below, that the jury, after reading the jury
charges as a whole, could have found defendant guilty based
on his commission of other acts beside removing the license
plate or surveillance system-such as by disposing of the
murder weapon or by returning the truck after it was used to
commit the crime. We need not reach that issue, however,
because we find the evidence sufficient, under the due
process standard of Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to prove defendant
was a principal to the removal of the license plate, which
was one of the means by which the jury was instructed
defendant could commit obstruction.
however, we note that the jury was incorrectly instructed
that they could find defendant guilty of obstruction if they
found he disconnected the video surveillance system
and removed the license plate (i.e. he committed two
acts) when all the law requires is that he commit a single
act. The State did not object to the use of the conjunction
"and" in the jury charge. Regardless, the United
States Supreme Court has held that "when a jury
instruction sets forth all the elements of the charged crime
but incorrectly adds one more element, a sufficiency
challenge should be assessed against the elements of the
charged crime, not against the erroneously heightened command
in the jury instruction." Musacchio v. United
States, 577 U.S. ___, ___, 136 S.Ct. 709, 715, 193
L.Ed.2d 639 (2016). The jury in Musacchio was
erroneously instructed using the conjunction "and"
when describing two ways in which the charged crime (a
violation of 18 U.S.C. § 1030(a)(2)(C)) could be
committed, similar to how the jury was instructed here, and
the Government failed to object, as the State failed here.
See Musacchio, 577 U.S. at ___, 136 S.Ct. at 714
("By using the conjunction 'and' when referring
to both ways of violating § 1030(a)(2)(C), the
instruction required the Government to prove an additional
element. Yet the Government did not object to this error in
the instructions."). Nonetheless, the United States
Supreme Court found, for purposes of reviewing the
sufficiency of the evidence, it did not matter that the
prosecution acquiesced to incorrectly instructing the jury it
must find an additional element that the prosecution had
failed to prove:
A reviewing court's limited determination on sufficiency
review thus does not rest on how the jury was instructed.
When a jury finds guilt after being instructed on all
elements of the charged crime plus one more element, the jury
has made all the findings that due process requires. If a
jury instruction requires the jury to find guilt on the
elements of the charged crime, a defendant will have had a
"meaningful opportunity to defend" against the
charge. [Jackson v. Virginia], at 314, 99 S.Ct.
2781. And if the jury instruction requires the jury to find
those elements "beyond a reasonable doubt," the
defendant has been accorded the procedure that this Court has
required to protect the presumption of innocence.
Id., at 314-315, 99 S.Ct. 2781. The Government's
failure to introduce evidence of an additional element does
not implicate the principles that sufficiency review
protects. All that a defendant is entitled to on a
sufficiency challenge is for the court to make a
"legal" determination whether the evidence was
strong enough to reach a jury at all. Id., at 319,
99 S.Ct. 2781. The Government's failure to object to the
heightened jury instruction thus does not affect the
court's review for sufficiency of the evidence.
Musacchio, 577 U.S. at ___, 136 S.Ct. at 715. Thus,
under Musacchio, the district court's error here
in using the conjunction "and" when instructing the
jury of two ways in which the crime could be committed-i.e.
by disconnecting the surveillance system and removing the
license plate-does not alter this court's determination
that the evidence is sufficient based solely on the
State's proof of one of those two means-i.e.
defendant's role as a principal in the removal of the
crime of obstruction of justice is defined in R.S. 14:130.1
in part as follows:
A. The crime of obstruction of justice is any of the
following when committed with the knowledge that such act
has, reasonably may, or will affect an actual or potential
present, past, or future criminal proceeding as described in
(1) Tampering with evidence with the specific intent of
distorting the results of any criminal investigation or
proceeding which may reasonably prove relevant to a criminal
investigation or proceeding. Tampering with evidence shall
include the intentional alteration, movement, removal, or
addition of any object or substance either:
(a)At the location of any incident which the perpetrator
knows or has good reason to believe will be the subject of
any investigation by state, local, or United States law
enforcement officers; or
(b)At the location of storage, transfer, or place of review
of any such evidence.
addition, the law of principals provides:
All persons concerned in the commission of a crime, whether
present or absent, and whether they directly commit the act
constituting the offense, aid and abet in its commission, or
directly or indirectly counsel or procure another to commit
the crime, are principals.
reviewing the sufficiency of the evidence to support a
conviction, an appellate court in Louisiana is controlled by
the standard enunciated by the United States Supreme Court in
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979) . . . . [T]he appellate court must
determine that the evidence, viewed in the light most
favorable to the prosecution, was sufficient to convince a
rational trier of fact that all of the elements of the crime
had been proved beyond a reasonable doubt." State v.
Captville, 448 So.2d 676, 678 (La. 1984). Where a
conviction is based on circumstantial evidence, as is the
case here, the evidence "must exclude every reasonable
hypothesis of innocence." La. R.S. 15:438.
addition, the Jackson standard of review does not
allow a jury to speculate on the probabilities of guilt where
rational jurors would necessarily entertain a reasonable
doubt. State v. Mussall, 522 So.2d 1305, 1311 (La.
1988) (citing 2 C. Wright, Federal Practice &
Procedure, Criminal 2d, § 467). The requirement
that jurors reasonably reject the hypothesis of innocence
advanced by the defendant in a case of circumstantial
evidence presupposes that a rational rejection of that
hypothesis is based on the evidence presented, not mere
speculation. See State v. Schwander, 345 So.2d 1173,
1175 (La. 1978).
from all of the evidence presented, a jury could reasonably
infer (without speculating) that defendant removed the
truck's license plate or directed someone else to do so
because the truck was going to be used in a murder or had
just been used in a murder. Thus, the majority of the panel
of court below erred in finding that "circumstantial
evidence connecting Defendant to the removal of the license
plate was nonexistent." Hoang, 16-0479, p. 6,
207 So.3d at 476. Defendant argued one could not even
conclude the truck he borrowed from Ms. Booker was the one
used in the abduction and murder of the victim. However,
despite discrepancies in whether the truck, viewed at night,
was perceived as silver, grey, or dark grey, Ms. Booker
reviewed the surveillance video and identified her truck,
which was just that day borrowed by defendant, as the one
shown in it being used to abduct the victim. While defendant
argued that the person who returned the truck was not
defendant, defendant assured Ms. Booker that "we"
would return the truck, and indeed the truck was returned.
While there was equivocal evidence as to when the temporary
tag was issued-with Ms. Booker first testifying it was issued
on April 24 but then stating it might have been issued in
May-a rational juror could conclude, viewing the evidence in
the light most favorable to the prosecution, that defendant
either removed the license plate or directed the removal of
the license plate with the specific intent to distort any
investigation into the abduction and murder of the victim.
See generally State v. Mussall, 523 So.2d 1305, 1310
(La. 1988) ("If rational triers of fact could
disagree as to the interpretation of the evidence, the
rational trier's view of all of the evidence
most favorable to the prosecution must be adopted. Thus,
irrational decisions to convict will be overturned,
rational decisions to convict will be upheld, and
the actual fact finder's discretion will be impinged upon
only to the extent necessary to guarantee the fundamental
protection of due process of law.") (emphasis in
original). To accept defendant's hypothesis of innocence,
that the license plate went coincidentally missing at some
point after the murder, would indeed be to accept an
"extraordinary coincidence" when viewed in the
context of the entirety of the State's case, as noted by
the dissent in the court below. See Hoang, 16-0479,
p. 10-11, 207 So.3d at 484-485 (Lobrano, J., dissenting).
Accordingly, we reverse the court of appeal's decision
and reinstate defendant's conviction and sentence for
obstruction of justice.
JOHNSON, Chief Justice, dissents and assigns reasons.
case there is absolutely no rational interpretation of the
circumstantial evidence by which a jury could convict this
defendant of obstruction of justice. Thus, I find the
appellate court correctly overturned defendant's
reinstating the conviction, the majority of this court finds
that, based on the evidence presented, "a jury could
reasonably infer that defendant removed the
truck's license plate or directed someone else to do so
because the truck was going to be used in a murder or had
just been used in a murder." (Emphasis added). My review
of the record does not support this conclusion. The minimal
evidence presented by the state proved, at best, that
defendant borrowed the Nissan Titan truck from Ms. Booker the
afternoon April 23, 2013, the vehicle was returned to Ms.
Booker after midnight by a different unknown individual, and
that at some point later in time, Ms. Booker realized the
vehicle's license plate was missing. There is not a
scintilla of evidence proving defendant removed the license
plate or ordered it removed.
state's evidence connecting defendant to the Nissan Titan
truck consisted solely of the testimony of Ms. Irene Booker.
Ms. Booker, an admitted cocaine addict, testified that she
routinely lent out the vehicle to people in the neighborhood
in exchange for drugs. Interestingly, although Ms. Booker
claimed to specifically remember that she lent defendant the
vehicle on the afternoon of April 23, 2013, she could not
specify any other particular dates she lent out the vehicle
to anyone else in 2013. It is noteworthy that detectives
talked to Ms. Booker months later, on August 7, 2013, and
showed her surveillance video of the victim's home taken
on April 23, 2013, after which she stated she lent defendant
her vehicle on that date and identified the Titan truck in
the video as her vehicle. It is obvious to me that Ms. Booker
did not have an actual independent recollection of lending
her vehicle to this defendant on that date. Additionally, Ms.
Booker's testimony regarding the missing license plate
was inconsistent and confusing.
to defendant's connection to the vehicle and the missing
license plate, Ms. Booker testified:
State: All right. Now, on the day of this incident,
did you receive a phone call from Mr. Hoang, Khoi Hoang?
Ms. Booker: Well actually in person he asked me
could he borrow my truck to go pick up dog kennels ...