State v. Davis, 176 So. 3d 580

Background

Defendant Andre J. Davis was charged with domestic abuse battery involving strangulation (La. R.S. 14:35.3(L)) for an incident on Jan. 18, 2012; convicted at a bench trial and sentenced to two years at hard labor (suspended) with two years active probation.
Victim Eugenia Leonard testified Davis pushed her down a hallway while she was holding their six-week-old infant, put his hands around her neck, choked her, and pressed her head against a wall; she lost consciousness briefly and later sought a restraining order and pressed charges.
Davis admitted an altercation occurred but denied choking her, said prior physical incidents existed with Leonard as aggressor, and testified he was living in a dormitory at the time and had previously "stayed with" Leonard.
Trial evidence did not show Davis kept personal effects, received mail at Leonard’s residence, shared expenses, or otherwise established indices of living together "as a spouse" (open concubinage) within five years of the incident.
The court found insufficient evidence to prove the statutory element that Davis and Leonard were "household members" (i.e., living together as spouses or in open concubinage), set aside the strangulation/domestic-abuse-battery conviction, and entered judgment for the lesser included offense of simple battery; remanded for sentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency: was defendant a "household member" under La. R.S. 14:35.3?	State argued evidence of a multi-year romantic relationship and prior cohabitation supported that the parties were household members.	Davis argued evidence did not prove living together as spouses/open concubinage within the statute — lacking shared mail, clothing, expenses, or other indicia.	Held: Insufficient evidence to prove "household member"; conviction for domestic-abuse-strangulation set aside; guilty of simple battery.
Responsive verdicts / lesser-included offenses available?	State proceeded on the charged offense; prosecution treated lesser offenses as responsive.	Davis argued omission of acquittal motion at close of state’s case prejudiced him.	Held: Under La. C.Cr.P. art. 815, domestic abuse battery and simple battery are responsive/lesser-included offenses to strangulation charge; court may enter conviction on lesser included offense in a bench trial.
Ineffective assistance — failure to move for judgment of acquittal at close of state’s case (La. C.Cr.P. art. 778)?	Davis argued counsel should have moved for acquittal and not cross-examined the victim, preserving an acquittal on charged offense.	State/court: cross-examination was a tactical decision; Article 778 motion would not have resulted in conviction for simple battery; counsel’s strategy not deficient on record.	Held: No reversible ineffective assistance; counsel's conduct was trial strategy and the ultimate reclassification to simple battery moots the claim.
Ineffective assistance — failure to subpoena counselor witness?	Davis claimed a counselor could have rebutted victim testimony and was a necessary witness.	Defense did not show how counselor testimony would have changed the outcome or undermined conviction beyond mere speculation.	Held: Claim without merit; no reasonable probability outcome would differ; assignment denied.

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (Jackson standard for appellate sufficiency review)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part test for ineffective assistance of counsel)
State ex rel. Robinson v. State, 367 So.2d 360 (La. 1979) (distinction between judge-directed acquittal and jury verdicts on lesser-included offenses)
Mussall v. State, 523 So.2d 1305 (La. 1988) (appellate review limits on credibility and weight of evidence)
Petty v. Petty, 560 So.2d 629 (La. App. 4th Cir. 1990) (discussion and elements of open concubinage)
State v. Davenport, 147 So.3d 137 (La. 2014) (noting jury’s ability to convict on lesser included offense and comparison to directed verdict)