302 So.3d 131
La. Ct. App.2020Background
- Defendant Alan J. Boner, Jr. was charged for events on March 4, 2017: domestic abuse aggravated assault with child endangerment (La. R.S. 14:37.7), aggravated assault with a firearm (La. R.S. 14:37.4), plus related battery counts; an older (2015) second-degree battery charge was also in the bill of information.
- Surveillance video showed Defendant slap Victim three times, retrieve a .357 magnum from a drawer, place it in plain view, then later put it back; children (ages 8, 9, and an infant) were present in the home.
- Victim made on-scene statements on police body-camera that Defendant threatened her with the .357; jail calls also contained admissions and threats by Defendant and discussions about getting him released.
- Defendant absconded during trial, the trial proceeded in his absence, and the jury convicted him of all charged offenses; the aggravated-assault-with-a-firearm verdict was 11–1 (nonunanimous).
- On appeal, Defendant challenged (1) sufficiency of the evidence for the firearm assault and the domestic-aggravated-assault with child endangerment, (2) denial of a continuance due to late disclosure of recordings, and (3) constitutionality of the 11–1 jury verdict.
- The appellate court affirmed the domestic-aggravated-assault-with-child-endangerment conviction, vacated the aggravated-assault-with-a-firearm conviction under Ramos, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated assault with a firearm and for domestic abuse aggravated assault with child endangerment | Evidence sufficient: surveillance video of slaps and firearm retrieval, Victim’s on-scene statements that Defendant threatened her with a .357, and jail calls showing threats and admissions | Insufficient: no proof Defendant used the firearm to place Victim in reasonable apprehension of a battery or otherwise threatened her with it | Domestic-assault-with-child-endangerment: affirmed (evidence sufficient). Aggravated-assault-with-firearm sufficiency rendered moot after conviction vacated under Ramos |
| Denial of continuance (late disclosure of jail calls, surveillance, body-cam) | No prejudice: defense had opportunity to review and cross-examine witnesses and used that opportunity | Late turnover prejudiced defense’s preparation and warranted continuance or new trial | Denial not an abuse of discretion; no prejudice shown; claim denied |
| Constitutionality of nonunanimous (11–1) jury verdict for aggravated assault with a firearm | State defended conviction pre-Ramos | Nonunanimous felony verdict violates the Sixth Amendment under Ramos | Merits: conviction vacated and remanded pursuant to Ramos |
Key Cases Cited
- Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (held state felony jury verdicts must be unanimous under Sixth Amendment)
- Jackson v. Virginia, 443 U.S. 307 (1979) (defines sufficiency-of-the-evidence standard for criminal convictions)
- State v. Mussall, 523 So.2d 1305 (La. 1988) (appellate review must consider the whole record and defer to the factfinder on credibility)
- State v. Brown, 234 So.3d 978 (La. App. 4th Cir. 2017) (recited elements of assault and general-intent standard applicable to threats causing reasonable apprehension)