FOR IMMEDIATE NEWS RELEASE                                            NEWS RELEASE #017


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 15th day of March, 2017, are as follows:



BY WEIMER, J.:


2015-K-1949      STATE OF LOUISIANA v. ANDRE J. DAVIS (Parish of Orleans)

                  That portion of the appellate court's opinion ruling that the elements
                  of domestic abuse battery involving strangulation were unproven at
                  trial is hereby reversed. Noting that the defendant did not seek
                  a writ to challenge the appellate court's opinion, we leave undisturbed
                  the remainder of the opinion relating to other matters, including
                  that portion finding that the district court failed to impose mandatory
                  conditions on the defendant's probation for domestic abuse battery.
                  This matter is remanded to the district court for further proceedings
                  consistent with this opinion.
                  REVERSED AND REMANDED.
03/15/17

                    SUPREME COURT OF LOUISIANA


                                   NO. 2015-K-1949

                              STATE OF LOUISIANA

                                        VERSUS

                                  ANDRE J. DAVIS

                 ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                      FOURTH CIRCUIT, PARISH OF ORLEANS


WEIMER, Justice.

      We granted a writ to determine whether the appellate court erroneously

applied the domestic abuse battery statute, La. R.S. 14:35.3. The appellate court

determined there was insufficient evidence to support the defendant=s conviction

under the statutory provision requiring that an offender and victim be past or present

members of the same household. As interpreted by the appellate court, La. R.S.

14:35.3 requires the state to show the offender and victim engaged in a relationship

comparable to the civil law concept of Aopen concubinage.@

      We find that the appellate court=s requirement that the state prove Aopen

concubinage@ between the victim and offender is not grounded in the statute.

Moreover, the appellate court=s requirement of proof of Aopen concubinage@ thwarts

the broader inquiry into the circumstances of the relationship intended by the

legislature. For reasons that follow, we reverse the ruling of the appellate court and

reinstate the trial court=s ruling that the totality of evidence was sufficient to find the
victim and offender were part of the same household and, therefore, was sufficient

to support the conviction.

              FACTUAL AND PROCEDURAL BACKGROUND

      The defendant was charged by bill of information with one count of domestic

abuse battery involving strangulation, in violation of La. R.S. 14:35.3.          The

defendant pleaded not guilty, and the case proceeded to a bench trial.

      At trial, the state presented the testimony of Eugenia Leonard, who testified

that on January 18, 2012, she was in an apartment she rented, and was caring for her

six-week-old daughter. Also present in the apartment that day was the defendant,

who is the father of Ms. Leonard=s daughter. The defendant was partially clothed

and reclining in the bedroom when Ms. Leonard approached him and asked him to

watch the child while Ms. Leonard took a shower.

      According to Ms. Leonard, the defendant refused to help, so she told him to

leave the apartment. The defendant got out of bed and dressed. As the defendant

left the bedroom and walked down the hallway, he pushed Ms. Leonard against the

wall. Ms. Leonard was holding the child in her arms, and ran into the hallway

bathroom. The defendant followed, grabbed Ms. Leonard by the neck and began

choking her until she closed her eyes and fell to the floor, still holding her baby in

her arms. When she opened her eyes, the defendant was standing in the bathroom

doorway, but left the apartment soon afterwards.

      Ms. Leonard explained that she and defendant had been involved in an

intimate relationship for three or four years and had been to counseling to try to find

a way to raise their daughter together. She stated that the defendant was a student
at a local university at the time and had moved out of his dormitory to stay with her.

However, when the defendant refused to help take care of their daughter, she told

him to leave because he did not pay any of the bills or contribute to the household.

         The defendant took the stand and testified that at the time of the incident he

did not want to have an intimate relationship with Ms. Leonard, but he did want to

be present for his daughter. He stated that he was seeing other women at the time

and Ms. Leonard was aware of this. The defendant claimed that when he tried to

leave the bedroom, Ms. Leonard blocked him and pushed him back with her left arm

as they argued about caring for the child. As he walked past her they continued to

argue. Ms. Leonard then entered the bathroom while screaming at him. As he

tried to enter the bathroom, Ms. Leonard pushed him and fell backwards onto the

floor.

         The defendant denied that he choked Ms. Leonard or put his hands on her

neck. He further denied pushing Ms. Leonard and claimed he would never do

anything to hurt her when she had his daughter in her arms. Defendant also disputed

Ms. Leonard=s testimony concerning their living arrangements. He claimed that at

the time of the incident he had returned to living in a university dorm room. The

defendant also testified that while he was not ordered to do so, he provided child

support in the form of a Wal-Mart money card.

         The district court found defendant guilty of domestic abuse battery involving

strangulation and sentenced him to two years imprisonment at hard labor, suspended,

and two years active probation.

         When the appellate court vacated the defendant=s conviction for domestic

abuse battery, the court found there was insufficient evidence to support the

conviction. According to the appellate court, the state failed to prove that defendant

                                            3
and Ms. Leonard were household members as required under La. R.S. 14:35.3. The

appellate court noted that domestic abuse battery is defined as Athe intentional use

of force or violence committed by one household member upon the person of another

household member.@ La. R.S. 14:35.3. At the time this crime was committed in

2012, household member was defined as Aany person of the opposite sex presently

living in the same residence or living in the same residence within five years of the

occurrence of the domestic abuse battery with the defendant as a spouse, whether

married or not.@ La. R.S. 14:35.3(B)(2).1

       The appellate court analogized the statutory definition of Ahousehold member@

to the civil law concept of Aopen concubinage,@ which the court in Petty v. Petty,

560 So.2d 629 (La.App. 4 Cir. 1990), noted has been historically defined as Aa

relationship of sexual content in which man and woman live together as husband and

wife in a state of affairs approximating marriage,@ although they are not legally

married. Petty, 560 So.2d at 631 (quoting Thomas v. Thomas, 440 So.2d 879, 881

(La.App. 2 Cir. 1983)).          Applying that definition of Aopen concubinage,@ the

appellate court concluded that to prove defendant and the victim were living as

unmarried Aspouses,@ the state must prove:

       [S]ome of the indices of a marriage: for example, both parties had
       substantially all of their clothing at the same abode, both parties were
       receiving regular mail at the same address, both parties acted like they
       were actually married or held themselves out to the world as a married
       couple, et cetera.

State v. Davis, 15-0456, pp. 18-19 (La.App. 4 Cir. 9/23/15), 176 So.3d 580, 592.



1
   In 2015, the legislature amended the definition of household member to remove the phrase Aor
living in the same residence within five years of the occurrence of the domestic abuse battery@ and
replaced it with broader language stating that a household member is Aany person of the opposite
sex presently or formerly living in the same residence with the offender.@ (Emphasis added.)
2015 La. Acts 440, ' 1.


                                                4
       The appellate court acknowledged there was an intimate relationship between

the defendant and victim; however, the court found that the defendant was not living

with the victim at the time of the incident. Applying its Aopen concubinage@

standard, the appellate court further found no evidence that the victim and defendant

had lived together as spouses. The court noted that there was no evidence that

defendant kept personal items in the apartment, or had kept them there at any point

in the relationship. The court further noted that the defendant did not contribute to

household expenses. In the appellate court=s view, Athe evidence at trial does not

establish beyond a reasonable doubt that the victims [sic] were living in open

concubinage.@ Davis, 15-0456 at 18; 176 So.3d at 592.2

                                          DISCUSSION

       The state contends the appellate court erred by vacating the defendant=s

domestic abuse battery conviction. According to the state, the appellate court

misapplied the Jackson v. Virginia 3 standard for evaluating the sufficiency of the

trial evidence and substituted its judgment for that of the trier of fact. The state

argues that, based on the evidence adduced at trial, a rational trier of fact could have

found that the defendant was a Ahousehold member@ as defined by La. R.S.

14:35.3(B)(2). Central to the state=s argument is that the appellate court equated

Ahousehold member@ with the civil law concept of Aopen concubinage,@ but Aopen

concubinage@ is an outdated concept and is not grounded in the statute.




2
   The appellate court was not unanimous in its reasoning. One judge in the three-judge panel
did not ascribe to the opinion, but instead indicated Athat on the facts of this case, the State failed
to prove beyond a reasonable doubt that the defendant was a >household member= within the
meaning of La. R.S. 14:35.3.@ Davis, 15-0456 at 1, 176 So.3d at 600 (Landrieu, J., concurring).
3
   Jackson v. Virginia, 443 U.S. 307 (1979).           The sufficiency of evidence standard from
Jackson is discussed later in this opinion.


                                                  5
          For his part, the defendant also points to the element of the crime requiring an

offender to be a Ahousehold member.@ La. R.S. 14:35.3(B)(2). While not directly

arguing in favor of the appellate court=s Aopen concubinage@ interpretation of the

statute, the defendant nevertheless argues the appellate court reached the correct

result. Emphasizing the statute=s use of the phrase Aliving in the same residence,@

the defendant points to repeated instances in the trial record where the victim and

the defendant each testified that the defendant had been Astaying in@ the victim=s

residence. In essence, the defendant argues Astaying in@ is different from Aliving in@

the residence, and evidence of Astaying in@ the victim=s residence is insufficient to

meet the requirement that the offender has attained the status of Ahousehold member@

under La. R.S. 14:35.3(B)(2).

          Although the state and defendant take different approaches, common to both

litigants is that their arguments hinge on the definition of Ahousehold member@ in

La. R.S. 14:35.3(B)(2). We turn, therefore, to the issue of how the term Ahousehold

member@ should be construed.

          We begin, as we must, with the language of the statute itself. See La. R.S.
      4
1:3         When this crime was committed in 2012, household member was

statutorily-defined, in pertinent part, as Aany person of the opposite sex presently

living in the same residence or living in the same residence within five years of the

occurrence of the domestic abuse battery with the defendant as a spouse, whether

married or not.@ La. R.S. 14:35.3(B)(2).




4
  AWords and phrases shall be read with their context and shall be construed according to the
common and approved usage of the language. Technical words and phrases, and such others as
may have acquired a peculiar and appropriate meaning in the law, shall be construed and
understood according to such peculiar and appropriate meaning.@


                                              6
       Before reaching the meaning of these words, we observe that the definition

contains two clauses separated by the word Aor.@ Because the word Aor@ is normally

disjunctive, 5 each clause potentially offers a separate definition of Ahousehold

member.@ It may be possible to construe Ahousehold members@ as either Aany

person of the opposite sex presently living in the same residence@ (relying solely on

the first clause) or, alternatively, as Aany person of the opposite sex ... living in the

same residence within five years of the occurrence of the domestic abuse battery

with the defendant as a spouse, whether married or not@ (relying solely on the second

clause). That is, if the state relied solely on the first clause, the argument could be

made that the first clause does not require proof of the victim Aliving Y with the

defendant as a spouse, whether married or not,@ because the language just quoted

comes after the word Aor.@ Therefore, if the defendant and the victim were living

together at the time of the domestic abuse battery and the provision is interpreted in

that manner, it may not, in fact, matter whether they were doing so as Aspouses,

whether married or not@ at the time. However, the state has conceded that it is

relying on the second clause, which requires proof of the victim Aliving Y with the

defendant as a spouse, whether married or not.@ La. R.S. 14:35.3(B)(2). Focus,

then, is placed on the meaning of the second clause.

       Pursuant to the legislature=s interpretive directions, the first step in our

analysis is to determine if Aliving Y with the defendant as a spouse, whether married

or not@ in La. R.S. 14:35.3(B)(2) refers to a technical term under the law. If La.

R.S. 14:35.3(B)(2) refers to a technical term, then that portion of the statute Ashall




5
  AUnless it is otherwise clearly indicated by the context, whenever the term >or= is used in the
Revised Statutes, it is used in the disjunctive and does not mean >and/or.=@ La. R.S. 1:9.


                                               7
be construed and understood according to such peculiar and appropriate meaning@

as the technical term to which it refers. La. R.S. 1:3.

       AMarried@ and Aspouse@ are technical terms, and there are very specific formal

requirements for a marriage to exist.6 If the defendant and victim had indeed been

married, it seems beyond debate that the relationship element of La. R.S.

14:35.3(B)(2) would be met, as long as the evidence showed that the victim had been

Aliving in the same residence within five years of the occurrence of the domestic

abuse battery with the defendant as a spouse.@

       However, the legislature indicated that the relationship element is satisfied

Awhether married or not.@            (Emphasis added.)           La. R.S. 14:35.3(B)(2).           In

searching for intent, we are bound to give meaning to every word the legislature has

used. See La. R.S. 1:47. Accordingly, from the words Awhether married or not,@

we find that the legislature intended the relationship element in La. R.S.

14:35.3(B)(2) to be satisfied without evidence showing every specific formal

requirement of a marriage. That is, the legislature intended both marriage, and

something akin to but short of marriage.

       The appellate court=s ruling that Aopen concubinage@ was intended by the

phrase Awhether married or not@ is not supported by La. R.S. 14:35.3(B)(2) or by the

meaning of Aconcubinage.@ The term Aconcubinage@ itself is a technical term, but

is archaic, as it no longer appears in the Civil Code. Cf. Kathryn Venturatos Lorio,

Roman Sources and Constitutional Mandates: The Alpha and Omega of Louisiana




6
   See La. C.C. art. 86 (AThe relationship [of marriage] and the contract are subject to special rules
prescribed by law.@).
7
   AWhen the wording of a Section is clear and free of ambiguity, the letter of it shall not be
disregarded under the pretext of pursuing its spirit.@


                                                  8
Laws on Concubinage and Natural Children, 56 La. L. Rev. 317, 331 (1995) (AFew

remnants remain of the laws of concubinage and illegitimate children in Louisiana.

The restriction on donations to concubines is no longer a part of Louisiana law.@).

Moreover, when concubinage was a significant concept, concubinage was defined

in opposition to marriage, not consistent with marriage. See id. 56 La. L. Rev. at

323 (AIn Louisiana, [concubinage] is not necessarily a monogamous relationship. Y

[I]t was possible for a man to have a legal wife in one residence and a concubine in

another.@) (Footnote omitted.)

      As observed earlier, by employing the phrase Awhether married or not@ in La.

R.S. 14:35.3(B)(2), the legislature intended both marriage and something akin to but

short of marriage. It was error, therefore, for the appellate court to rely on the

technical concept, concubinage, which is unrelated to the concept of marriage and,

indeed, is defined in opposition to marriage. See La. R.S. 1:3. Moreover, in Petty,

560 So.2d at 631, on which the appellate court relied, the court indicated: Aalthough

living together is important to a finding of concubinage, it is not absolutely

essential.@ In contrast, under La. R.S. 14:35.3(B)(2), living together during any

point within five years of the offense is required. This difference between the

technical meaning of concubinage (in which living together is not required) and La.

R.S. 14:35.3(B)(2) (in which living together is required) further highlights the

appellate court=s error in relying on concubinage to interpret La. R.S. 14:35.3(B)(2).

      Because the legislature has chosen not to rely on a technical term, it was

appropriate for the factfinder at trial to draw on ordinary experience to determine

whether the household relationship element of the offense had been met. See State




                                          9
v. Stowe, 93-2020 (La. 4/11/94), 635 So.2d 168, 170-72. 8 In turn, an appellate

court=s proper role is:

       When reviewing the sufficiency of the evidence to support a conviction,
       Louisiana appellate courts are 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); State v. Sylvia, 01-1406, p. 2
       (La.4/9/03), 845 So.2d 358, 361; State v. Captville, 448 So.2d 676,
       678 (La. 1984). Therefore, the 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 have been proved beyond a reasonable doubt. Sylvia,
       01-1406 at p. 2-3, 845 So.2d at 361; Captville, 448 So.2d at 678.

State v. Johnson, 03-1228, p. 4 (La. 4/14/04), 870 So.2d 995, 998.

       The following evidence, germane to the relationship between the defendant

and Ms. Leonard, was adduced at trial. The defendant and Ms. Leonard began a

sexually intimate relationship in 2009. The two met at a local university that both

were attending. Because the defendant did not have a car but Ms. Leonard did, she

often provided the defendant transportation to the university. According to Ms.

Leonard, at some point, the defendant moved out of the university dormitory to stay

with her.

       By the time of the incident on January 18, 2012, Ms. Leonard had given birth

to the defendant=s child, who was then about six weeks old. Ms. Leonard and the

defendant attended counseling, which was focused on raising their daughter.




8
   In Stowe, the defendant challenged the sufficiency of evidence in a second degree battery case,
contending the state had failed to prove the victim suffered the element of Aextreme physical pain.@
Stowe, 635 So.2d at 170 (citing La. R.S. 14:34.1). This court noted it had determined in an earlier
case that A>extreme physical pain= Y >describes a condition which most people of common
intelligence can understand.=@ Stowe, 635 So.2d at 171 (quoting State v. Thompson, 399 So.2d
1161, 1168 (La. 1981)). Consistent with the determination that Aextreme physical pain@ was
subject to common understanding, this court then found the evidence describing the victim=s
experience of being hit in the face, along with photographs of the victim and testimony of an
eyewitness, sufficiently established the element of Aextreme physical pain@ to support the battery
conviction. See Stowe, 635 So.2d at 171-72.


                                                10
       The day of the incident, Ms. Leonard and the defendant were in the apartment

Ms. Leonard rented. Ms. Leonard asked the defendant to help by watching the child

while Ms. Leonard took a shower.              The defendant was partially clothed and

reclining in the bedroom. The defendant refused to watch the child, and Ms.

Leonard told him to leave. She explained: AI felt like, if he didn=t want to help me

and he wasn=t working and he didn=t help me out with the baby and I paid all the bills

in the house, then just go. If you are not going to contribute to the household, then

leave.@ The defendant did not promptly leave and, instead, engaged in the violent

encounter for which he stands convicted.9

       After enduring the violent encounter with the defendant in the bathroom,

according to Ms. Leonard, she called the defendant=s parents. She explained: AI

thought Y if I told somebodyBif I told his parents, then he would leave.@ According

to the defendant, it was he who called his parents after the incident. By the time of

trial, Ms. Leonard and her child had moved in with the defendant=s family.

       Viewed in the light most favorable to the prosecution as required by the

Jackson standard, the evidentiary record reasonably supports the conclusion that

Ms. Leonard had been Aliving in the same residence within five years of the

occurrence of the domestic abuse battery with the defendant as a spouse, whether

married or not.@ La. R.S. 14:35.3(B)(2). The evidence shows an ongoing intimate

relationship for at least three years and that Ms. Leonard and the defendant had a

child together. While the defendant denied Ms. Leonard=s claim that he was staying

in the apartment at the time of the offense, viewed most favorably to the prosecution,


9
   The defendant does not challenge the appellate court=s finding that he committed a simple
battery upon Ms. Leonard. The dispute in the present case is confined to whether the household
relationship element was met to support the conviction for domestic abuse battery, a more weighty
offense than simple battery.


                                               11
the evidence supports Ms. Leonard=s claim. Ms. Leonard testified to an expectation

that the defendant would contribute to their common household, and the defendant

testified that he was intent on contributing to their child=s welfare, in terms of both

parenting activities and finances. Immediately prior to the battery incident, the

defendant was partially clothed and reclining in the bedroom, which demonstrates

he was very familiar with and comfortable within the household. Furthermore, the

argument between Ms. Leonard and the defendant just prior to the battery incident

was premised on Ms. Leonard=s view that the defendant was not meeting his

obligations to the household. With both Ms. Leonard and the defendant claiming

to have called the defendant=s parents about the incident, it is reasonable to infer that

both recognized their relationship was akin to a marriage in that both Ms. Leonard

and the defendant were part of a larger family.

      Although the appellate court erroneously latched onto the archaic concept of

Aopen concubinage,@ the general approach of looking to the civil law was sound. It

is true that at trial, the factfinder could draw on ordinary experience to ascertain

whether the evidentiary record established a household arrangement that was similar

to marriage. See Stowe, 635 So.2d 168,170-72. However, to the extent any

further guidance was necessary, either at trial or on appeal, it would have been

appropriate to also consider the record in light of the civil law on marriage, while

bearing in mind that the legislature required only a relationship similar to marriage.

Here, providing resources for living, bringing a child into the world, and sharing

child rearing responsibilitiesBas Ms. Leonard and the defendant are depicted when

viewing the evidence in the light most favorable to the prosecutionBare also

described in the Civil Code as some of the incidents of marriage. See La. C.C. art.

98 (describing mutual duties of married persons, including Afidelity, support, and

                                           12
assistance@) and La. C.C. art. 99 (ASpouses mutually assume the moral and material

direction of the family, exercise parental authority, and assume the moral and

material obligations resulting therefrom.@).

       As a final point in our analysis, we return to the defendant=s argument that,

because both Ms. Leonard and the defendant described their relationship in terms of

Astaying with@ each other, the definition of Ahousehold@ contained in La. R.S.

14:35.3(B)(2) is unmet. The crux of the defendant=s argument is that La. R.S.

14:35.3(B)(2) defines household in terms of a couple Aliving in the same residence@

with each other, rather than Astaying with@ each other.10 This argument lacks merit.

There is no requirement that witnesses use the exact language in a statute for a court

to determine that the conditions in the statute have been met. The defendant does

not argue, and we do not find, that Aliving in the same residence@ is a technical term.

Pursuant to La. R.S. 1:3, in the absence of technical terminology, statutory A[w]ords

and phrases shall be read with their context and shall be construed according to the

common and approved usage of the language.@ Similarly, pursuant to La. R.S. 14:3,

Aall of [the] provisions [of the Criminal Code] shall be given a genuine construction,

according to the fair import of their words, taken in their usual sense, in connection

with the context, and with reference to the purpose of the provision.@ Following the

principles of La. R.S. 1:3 and La. R.S. 14:3, we have no difficulty in determining




10
     The defendant supports his grammatical argument with a dictionary definition, of uncertain
attribution, by which Astay@ means to Alive somewhere temporarily as a visitor or guest.@
However, noting the defendant testified that he was Astaying on campus@ in Aa dorm room at the
time@ of the incident, the defendant=s grammatical argument is self-defeating. [R 71] By the
defendant=s reasoning, he would have been a mere visitor or guest in his own dorm room.
Relatedly, even though Ms. Leonard testified the defendant had no dorm room at the time, but the
defendant testified he did, under the Jackson standard, we resolve their dispute in the light most
favorable to the prosecution, i.e., that the defendant had no dorm room at the time of the incident.


                                                13
that the witnesses= testimony that they were Astaying with@ each other is synonymous

with Aliving in the same residence@ under La. R.S. 14:35.3(B)(2).

                                     DECREE

      That portion of the appellate court=s opinion ruling that the elements of

domestic abuse battery involving strangulation were unproven at trial is hereby

reversed. Noting that the defendant did not seek a writ to challenge the appellate

court=s opinion, we leave undisturbed the remainder of the opinion relating to other

matters, including that portion finding that the district court failed to impose

mandatory conditions on the defendant=s probation for domestic abuse battery. This

matter is remanded to the district court for further proceedings consistent with this

opinion.

      REVERSED AND REMANDED.




                                         14
