State v. Gaubert, 179 So. 3d 982

Background

In April 2013 Jennifer Gaubert (an attorney) reported to NOPD that taxi driver Hervey Farrell extorted her and filmed her without consent during an April 6, 2012 cab encounter. She alleged Farrell emailed her lawyer a video and demanded $1,000 to make the video and criminal charges "go away."
Officer Alfred Moran prepared a report and obtained arrest warrants for Farrell (video voyeurism and extortion); Farrell was arrested in August 2013 and jailed ~30 hours.
The State charged Gaubert with false swearing (initially a felony charge under La. R.S. 14:126.1/14:126.2); she elected a bench trial. After trial, the court convicted her of the lesser misdemeanor of criminal mischief (La. R.S. 14:59) for giving a false report and sentenced her to suspended jail/probation and costs.
On appeal Gaubert challenged (1) insufficiency of the evidence to sustain the criminal-mischief conviction (i.e., that her extortion report was false was not proven beyond a reasonable doubt) and (2) that testimony from her attorney, Brigid Collins, violated the attorney–client privilege and statutory subpoena procedures.
The trial court credited prosecution witnesses (Officer Moran, Collins, Farrell) over Gaubert and found no evidence of a $1,000 extortion demand or documentary proof (email/video) — the $50–60k communications were civil settlement demands; the $1,000 figure rested solely on Gaubert’s testimony.
The appellate court affirmed: (a) criminal mischief is a general intent offense and the evidence, viewed in the light most favorable to the State, supported that Gaubert knowingly made a false report; (b) no violation of attorney–client privilege occurred (defense waived procedural objections; Collins did not disclose privileged communications on the record). An appellate jurisdiction issue was addressed and resolved in favor of review because Gaubert had originally been charged with a felony triable by jury.

Issues

Issue	Plaintiff's Argument (Gaubert)	Defendant's Argument (State)	Held
Sufficiency of evidence for criminal mischief (false report)	Gaubert contends she reasonably believed an extortion threat existed (implied threat via video sent to her counsel and settlement demands), so report was not false.	The only evidence of a $1,000 extortion demand or any threatening communication was Gaubert's testimony; other witnesses showed communications were civil settlement demands and no extortion email or proof existed.	Affirmed conviction: evidence supported that the extortion report was false beyond a reasonable doubt; criminal mischief is a general intent crime.
Mental state required for criminal mischief under La. R.S. 14:59(5)	Gaubert argued statute requires specific intent (implied from her brief).	State argued La. R.S. 14:59(5) is a general intent offense; proof of the deliberately made act suffices.	Court held subsection (5) is a general intent crime; general intent can be inferred from voluntary commission of the act.
Attorney–client privilege and subpoena procedure (La. C.E. arts. 506–507)	Collins's testimony invaded privileged communications and the State failed to follow article 507's pre-subpoena contradictory hearing requirements.	Defense waived procedural protections by not timely objecting; Collins's testimony did not reveal confidential communications and the trial court limited questioning to non-privileged matters.	Held no reversible error: procedural objection waived; privilege not waived on merits; Collins did not disclose privileged matters on the record.
Appellate jurisdiction over misdemeanor conviction when charged with felony	Gaubert implied lack of right to appeal from misdemeanor.	State (and concurrence) argued appellate courts have jurisdiction because defendant was charged with a felony triable by jury; hence appeal permitted despite misdemeanor conviction.	Held appellate jurisdiction proper: charged felony made the case "triable by jury," so appeal to appellate court permitted.

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for reviewing sufficiency of the evidence under due process)
State v. Pigford, 922 So.2d 517 (La. 2006) (articulating Louisiana standard for sufficiency review in criminal cases)
State v. Captville, 448 So.2d 676 (La. 1984) (appellate review must view evidence in light most favorable to prosecution)
State ex rel. Johnson v. Maggio, 449 So.2d 547 (La. App. 1st Cir. 1984) (criminal mischief by false report is a general intent crime)
State v. Frosch, 787 So.2d 336 (La. App. 4th Cir. 2001) (criminal mischief by tampering is a specific intent crime)
State v. Robertson, 364 So.2d 915 (La. 1978) (defining "report or complaint" requirement for criminal mischief convictions)