                           Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                           NEWS RELEASE #040


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 7th day of September, 2018, are as follows:



BY JOHNSON, C.J.:


2016-KA-0559        STATE OF LOUISIANA v. BRIAN DOUGLAS HORN (Parish of Desoto)

                    This is a direct appeal under La. Const. art. V, § 5(D) by
                    defendant, Brian Douglas Horn. On April 12, 2010, defendant was
                    indicted by a grand jury in DeSoto Parish for the first-degree
                    murder of 12-year-old Justin Bloxom. Following the close of
                    evidence at trial, a jury unanimously found defendant guilty as
                    charged and, at the conclusion of the penalty phase of the trial,
                    recommended a sentence of death. The district court sentenced
                    defendant to death in accordance with that recommendation. In his
                    appeal to this court, defendant raises seventy assignments of
                    error. Finding merit in defendant’s assignment of error asserting
                    a violation of his Sixth Amendment right to counsel, we vacate
                    defendant’s conviction and sentence and remand this matter to the
                    district court for a new trial.

                    DEFENDANT’S CONVICTION AND SENTENCE ARE VACATED; REMANDED TO THE
                    DISTRICT COURT FOR A NEW TRIAL.

                    Retired Judge Burrell Carter assigned as Justice ad hoc, sitting
                    for Crichton, J., recused.

                    WEIMER, J., additionally concurs and assigns reasons.
                    GUIDRY, J., additionally concurs for the reasons assigned by
                    J. Weimer.
                    CRICHTON, J., recused.
09/07/18



                           SUPREME COURT OF LOUISIANA

                                       No. 2016-KA-0559

                                   STATE OF LOUISIANA

                                             VERSUS

                                  BRIAN DOUGLAS HORN

                          ON APPEAL
         FROM THE FORTY-SECOND JUDICIAL DISTRICT COURT
                   FOR THE PARISH OF DESOTO


JOHNSON, Chief Justice1

        This is a direct appeal under La. Const. art. V, § 5(D) by defendant, Brian

Douglas Horn. On April 12, 2010, defendant was indicted by a grand jury in DeSoto

Parish for the first-degree murder of 12-year-old Justin Bloxom. Following the close

of evidence at trial, a jury unanimously found defendant guilty as charged and, at the

conclusion of the penalty phase of the trial, recommended a sentence of death. The

district court sentenced defendant to death in accordance with that recommendation.

In his appeal to this court, defendant raises seventy assignments of error. Finding

merit in defendant’s assignment of error asserting a violation of his Sixth

Amendment right to counsel, we vacate defendant’s conviction and sentence and

remand this matter to the district court for a new trial.

                        FACTS AND PROCEDURAL HISTORY

        On March 29, 2010, 12-year-old Justin Bloxom was staying overnight at a

friend’s house in Stonewall, Louisiana, and texting with a person he believed to be


   1
       Retired Judge Burrell Carter assigned as Justice ad hoc, sitting for Crichton, J., recused.
                                                 1
a 14-year-old girl. The “girl” urged Justin to sneak out of the house so that the two

could meet for a sexual encounter, and texted that she would send a taxi to get him.

In reality Justin was texting defendant, Brian Horn. Shortly after three o’clock in the

morning of March 30, 2010, Justin left his friend’s house and climbed into

defendant’s taxi. Defendant leased and drove a green Action Taxi, Cab M-28. The

last text message sent by Justin on March 30, 2010 at 3:13 a.m. stated “Cab died.”

That message was received by defendant’s cell phone.

      Later that morning, Justin’s friend reported him missing. Sheriff’s deputies

arrived at the friend’s home and learned from neighbors that a green Action Taxi

Cab was seen in the neighborhood the night before. Additionally, another officer

informed the investigating deputies that he had noticed a green Action Taxi cab

parked on the side of the road on US Highway 171 in the very early hours of the

morning and had stopped to give aid. The driver of the taxi, later identified by the

officer as Brian Horn, advised the officer that he had run out of gas and lost his key,

and someone from the taxi company was bringing him another key. Several other

witnesses confirmed seeing the taxi on the side of the road in the early morning hours

and recalled speaking to defendant, who informed them that he had run out of gas

and lost his keys. Investigating officers subsequently searched the wooded area on

the side of Highway 171 where defendant’s taxi had been stopped and found Justin’s

body in a shallow pool of water 30-40 yards from the highway. The key to

defendant’s taxi was later found by metal detector in the same general area.

      Defendant’s brother, Kevin Horn, learned defendant was a person of interest

in Justin’s murder later that day. He accompanied defendant to Action Taxi, where

defendant returned the taxi after cleaning it out. Kevin then drove defendant to the

police station. Kevin gave police officers consent to search his vehicle, which

                                          2
resulted in the seizure of evidence, including an AT&T SIM card belonging to

defendant.

      On April 12, 2010, defendant was indicted by a grand jury in DeSoto Parish

for first-degree murder. In its Bill of Particulars, the state outlined its intent to prove

defendant committed first-degree murder pursuant to La. R.S. 14:30(A)(1) while

engaged in the perpetration or attempted perpetration of aggravated kidnapping or

second degree kidnapping. Specifically, that statutory provision defines first-degree

murder as the killing of a human being:

       (1) When the offender has specific intent to kill or to inflict great
       bodily harm and is engaged in the perpetration or attempted
       perpetration of aggravated kidnapping, second degree kidnapping,
       aggravated escape, aggravated arson, aggravated or first degree rape,
       forcible or second degree rape, aggravated burglary, armed robbery,
       assault by drive-by shooting, first degree robbery, second degree
       robbery, simple robbery, terrorism, cruelty to juveniles, or second
       degree cruelty to juveniles.
(Emphasis added). La. R.S. 14:44 addresses the crime of “aggravated kidnapping,”

and provides, in relevant part:

       Aggravated kidnapping is defined as “the doing of any of the following
       acts with the intent thereby to force the victim, or some other person, to
       give up anything of apparent present or prospective value, or to grant
       any advantage or immunity, in order to secure a release of the person
       under the offender’s actual or apparent control:

       (1) The forcible seizing and carrying of any person from one place to
       another; or

       (2) The enticing or persuading of any person to go from one place to
       another; or

       (3) The imprisoning or forcible secreting of any person.

Likewise, La. R.S. 14:44.1 provides for second-degree kidnapping:

       A. Second degree kidnapping is the doing of any of the acts listed in
       Subsection B wherein the victim is:

       (3) Physically injured or sexually abused;

                                            3
      B. For purposes of this Section, kidnapping is:

      (1) The forcible seizing and carrying of any person from one place to
      another; or
      (2) The enticing or persuading of any person to go from one place
      to another; or

      (3) The imprisoning or forcible secreting of any person.

(Emphasis added).

      At trial, the state presented evidence of defendant’s guilt including: forensic

evidence of the SIM card revealing explicit text messages sent from defendant’s cell

phone to Justin’s cell phone; evidence of a latent fingerprint from the taxi that

matched Justin; and autopsy results showing Justin died of suffocation, with possible

strangulation. The coroner, Dr. James Traylor, testified Justin died from being

smothered, and opined that the perpetrator smothered Justin while on Justin’s back.

Dr. Traylor identified several areas of “petechiae” or ruptured blood vessels in

Justin’s eyes and on his face and forehead, which would have required the

perpetrator to apply pressure to some part of the body to prevent the drainage of

blood to the heart. Dr. Traylor identified an abraded contusion on the inside of

Justin’s mouth consistent with the perpetrator compressing his lips and mouth

against his braces. Dr. Traylor also described numerous abrasions on Justin’s body

and testified they were anti-mortem wounds. In sum, the state presented photos and

testimony from Dr. Traylor that (1) Justin exhibited injuries on his neck, face, hands,

back shoulder, and torso; (2) the injuries occurred before death; and (3) the injuries

were not solely attributable to smothering. The state also presented testimony from

defendant’s wife and another adult woman regarding their sexual relations with

defendant, with the state eliciting testimony that defendant sometimes choked them

during consensual sex. Defendant’s wife testified they were “swingers” and


                                          4
sometimes engaged in sexual relations with other adult men and women. The other

woman testified defendant suggested that a “younger” man join them in sexual

activities.

       During the trial, defense counsel conceded defendant killed Justin. However,

defense counsel argued that the jury could not find defendant guilty of first-degree

murder because the state failed to prove defendant had specific intent to kill and

failed to prove defendant was engaged in an aggravated kidnapping or a second-

degree kidnapping when Justin died. The defense rested in the culpability phase of

the trial without calling any witnesses.

       A unanimous jury found defendant guilty of first-degree murder and

determined defendant should be sentenced to death. The matter is now before this

court on defendant’s direct appeal under La. Const. art. V, § 5(D).

                                   DISCUSSION

              Sixth Amendment Violation (Assignment of Error #43)

       Defendant argues his Sixth Amendment right to counsel was violated when

his attorneys conceded his guilt over his explicit objection. We find this assignment

of error has merit, and requires us to vacate defendant’s conviction and sentence.

       The Sixth Amendment guarantees the accused in a criminal proceeding the

right to have “the Assistance of Counsel for his defence.” U.S. Const. amend. VI. It

“does not provide merely that a defense shall be made for the accused; it grants to

the accused personally the right to make his defense.” Faretta v. California, 422

U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed. 2d 562 (1975). “The right to defend is

given directly to the accused; for it is he who suffers the consequences if the defense

fails.” 422 U.S. at 819-20 (footnote omitted). Implicit in this right is the accused’s

authority “to make certain fundamental decisions regarding the case, as to whether

                                           5
to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.”

Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed. 2d 987 (1983).

However, certain other decisions, such as decisions relative to trial management

belong to counsel:

      As to many decisions pertaining to the conduct of the trial, the
      defendant is deemed bound by the acts of his lawyer-agent and is
      considered to have notice of all facts, notice of which can be charged
      upon the attorney. Thus, decisions by counsel are generally given effect
      as to what arguments to pursue, what evidentiary objections to raise,
      and what agreements to conclude regarding the admission of evidence.
      Absent a demonstration of ineffectiveness, counsel’s word on such
      matters is the last.

New York v. Hill, 528 U.S. 110, 115, 120 S.Ct. 659, 664, 145 L.Ed. 2d 560 (2000)

(internal quotations and citations removed).

      The issue of whether the decision to admit guilt as part of the defense objective

belongs to counsel or to the accused was recently addressed by the United States

Supreme Court in McCoy v. Louisiana, -- U.S. --, 138 S. Ct. 1500 (2018). In McCoy,

defense counsel, over defendant’s objections, told the jury that defendant was guilty

of the triple murder of his family members, but sought leniency in the penalty phase

due to defendant’s serious mental and emotional issues. McCoy testified in his own

defense maintaining his innocence by asserting an implausible alibi defense. 138

S.Ct. at 1506-07. The jury found defendant guilty of three counts of first-degree

murder and sentenced defendant to death. Id. at 1507. This court affirmed the

convictions and sentence. State v. McCoy, 14-1449 (La. 10/19/16), 218 So. 3d 535,

cert. granted in part, 138 S.Ct. 53, 198 L.Ed. 2d 781 (2017), and rev’d and

remanded, 138 S.Ct. 1500 (2018). In reversing this court’s ruling, the Supreme Court

considered whether it is unconstitutional to allow defense counsel to concede guilt

over the defendant’s unambiguous objection:


                                          6
       We hold that a defendant has the right to insist that counsel refrain from
       admitting guilt, even when counsel’s experienced-based view is that
       confessing guilt offers the defendant the best chance to avoid the death
       penalty. Guaranteeing a defendant the right “to have the Assistance of
       Counsel for his defence,” the Sixth Amendment so demands. With
       individual liberty—and, in capital cases, life—at stake, it is the
       defendant’s prerogative, not counsel’s, to decide on the objective of his
       defense: to admit guilt in the hope of gaining mercy at the sentencing
       stage, or to maintain his innocence, leaving it to the State to prove his
       guilt beyond a reasonable doubt.

Id. at 1505. The Court reasoned that “just as a defendant may steadfastly refuse to

plead guilty in the face of overwhelming evidence against her, or reject the assistance

of legal counsel despite the defendant’s own inexperience and lack of professional

qualifications, so may she insist on maintaining her innocence at the guilt phase of

a capital trial.” 138 S.Ct. at 1508.

       In this case, Mr. Horn argues his Sixth Amendment right to counsel was

violated when his attorney conceded his guilt over his explicit objection. The record

demonstrates that defendant’s attorney admitted that defendant killed Justin and also

suggested to the jury that the evidence supported a finding that he molested, or

attempted to molest Justin. Counsel specifically told the jury he was not asking them

to find defendant “not guilty,” and further stated that the facts fit second-degree

murder or manslaughter. The record further demonstrates that Mr. Horn disagreed

with his counsel’s decision to concede guilt as part of the defense strategy and that

defendant made the district court aware of the disagreement both before and during

the trial.

       On February 13, 2013, during the pre-trial stage of the case, defendant filed a

pro se “Motion for Evidentiary Hearing on the Defendant’s Claims of Ineffective

Assistance of Counsel with Incorporated Memorandum of Law” wherein defendant

asserted that his defense had been refused by his attorneys. During a pre-trial hearing


                                           7
on February 20, 2013, defense counsel and the court discussed defendant’s motion

and counsel’s refusal to use the defense requested by defendant, but the court refused

to get involved in the dispute and dismissed the motion:

      Counsel: I have one question for you. Perhaps you’re not the right
      person. Perhaps I need to ask somebody in Baton Rouge. I read his pro
      se motion and it was denied. One of the things he said in there is that I
      didn’t want to use his defense in the guilt phase. I did not want to use
      the defense he wants to use in the guilt phase. Now, am I supposed to
      do what I think is best as an attorney for my client or am I supposed to
      be a puppet and do exactly what he wants me to do on these appointed
      cases? ***

      Court: [] The allegations in the motions with regard to you are things
      that no court can rule on. I cannot get in the middle of the attorney/client
      privilege, communication, non-communication, is it enough, is it not
      enough. The only thing that I can judge, as I understand, are
      Washington versus Strickland and the progeny is the performance at
      trial and the results as compared to the amorphous standard out there of
      the criminal defense counsel in capital cases. That’s all. And that
      motion did not even come close to approaching that. *** I think that is
      going to be something you and Mr. Gorley are going to have to sit down
      with the bosses and make the tactical decision and the case, right or
      wrong, is contingent upon that. And some, either this court or another
      reviewing court will have to make that decision whether that was the
      right or wrong decision. I can’t, you know, I can’t stop it.

   During his closing argument, defense counsel specifically stated to the jury:

   • “We have never contested any of that, none of it. The only thing that
     we have contested is the intent, the specific intent. The judge will
     instruct you that specific intent is an element of the crime of first-degree
     murder. I’m not going to ask you to like Brian Horn because what he
     did was awful. It was awful. Sending those text messages is
     unforgivable. That’s not what he’s charged with. He’s charged with
     first-degree murder, a crime for which he could get the death penalty.
     They have to prove specific intent. They didn’t prove it, and I’ll get to
     that in a minute.”

   • “Nobody knows what happened. Nobody knows what happened out on
     171 when the cab – when they ran out of gas. We know that Brian Horn
     killed Justin Bloxom.”

   • “I’m not asking you to let him walk the streets. I’m not asking you to
     find him ‘not guilty.’”



                                           8
   • “Look, I’m not asking you to let him go. I’m not asking you to let him
     go. I never once stood up here and said ‘Find him not guilty.’ I’m asking
     you to find him not guilty of first-degree murder I mean, I think the
     facts fit manslaughter, but if you don’t want to accept that because for
     whatever reason, you can convict him of second-degree murder.”

   • “Okay, I know y’all are tired of hearing me. We contested nothing in
     this case. We admitted everything except that they couldn’t prove it was
     a first-degree murder, and they haven’t proved it.”

   • Defense counsel argued again to the jury that he was not asking them
     to find defendant “not guilty,” but asking them to find defendant not
     guilty of first-degree murder.

   • Defense counsel read the definitions of indecent behavior with a
     juvenile and molestation to the jury.

   • Defense counsel suggested a scenario to the jury wherein Justin realized
     there was no girl involved, resulting in a struggle; counsel suggested an
     alternative wherein defendant could have tried to molest Justin,
     resulting in struggle.

      Following closing arguments, defendant objected to his counsel’s concession

of guilt, filing “Defendant’s Pro Se Formal Written Objections of Trial Errors &

Ineffective Assistance of Counsel and Motion for Relief Therefrom.” Defendant

objected to counsel’s closing arguments conceding guilt to any of the lesser included

offenses when he specifically instructed counsel not to do so. Defendant stated he

instructed counsel only to make an argument of accidental killing via the negligent

homicide statute. Defendant further objected to counsel’s closing argument wherein

he suggested defendant was guilty of indecent behavior with a juvenile and/or child

molestation. The district court denied defendant’s objections without a hearing.

      In this court, defendant asserts the Supreme Court’s decision in McCoy is

dispositive and requires a reversal of his conviction. By contrast, the state suggests

McCoy is not controlling in this case because defendant did not claim outright

innocence and instructed his attorneys to make an argument for accidental killing

under the negligent homicide statute. After review of the record and considering the
                                          9
Court’s decision in McCoy, we reject the state’s argument and decline to restrict

application of the holding in McCoy solely to those cases where a defendant

maintains his absolute innocence to any crime. McCoy is broadly written and focuses

on a defendant’s autonomy to choose the objective of his defense. Although Mr.

McCoy’s objective was to pursue a defense of innocence by presenting an alibi

defense, Mr. Horn’s objective was to assert a defense of innocence to the crime

charged and the lesser-included offenses, i.e. asserting his innocence to any degree

of murder. Mr. Horn was charged with first-degree murder. The only verdicts the

jury was permitted to enter were “guilty,” “guilty of second degree murder,” “guilty

of manslaughter,” or “not guilty.” See La. C.C.P. art. 814. The jury would not have

been permitted to enter a plea relative to negligent homicide. The fact that defendant

instructed his attorney to admit guilt to this different crime as part of his defense

objective did not give defense counsel the authority to admit guilt to the crime

charged or the lesser-included crimes, and does not cause us to disregard the holding

of McCoy. While defense counsel may use his professional judgment to develop

defense theories and trial strategies based on his assessment of the evidence, he

cannot usurp the fundamental choices provided directly to a criminal defendant

under the Constitution. As explained by the Court in McCoy, “these are not strategic

choices about how best to achieve a client’s objectives; they are choices about what

the client’s objectives in fact are.” 138 S.Ct. at 1508.

      Thus, based on the Supreme Court’s ruling in McCoy, there is no question that

a criminal defendant’s decision whether to concede guilt implicates fundamental

constitutional rights and the right to exercise that decision is protected under the

Sixth Amendment. Moreover, a violation of this Sixth Amendment right is a



                                           10
structural error and not subject to harmless error review. As the Court explained in

McCoy:

       Because a client’s autonomy, not counsel’s competence, is in issue, we
       do not apply our ineffective-assistance-of-counsel jurisprudence to
       McCoy’s claim. To gain redress for attorney error, a defendant
       ordinarily must show prejudice. Here, however, the violation of
       McCoy’s protected autonomy right was complete when the court
       allowed counsel to usurp control of an issue within McCoy’s sole
       prerogative.

       Violation of a defendant’s Sixth Amendment-secured autonomy ranks
       as error of the kind our decisions have called “structural;” when present,
       such an error is not subject to harmless-error review. Structural error
       affects the framework within which the trial proceeds, as distinguished
       from a lapse or flaw that is simply an error in the trial process itself. An
       error may be ranked structural, we have explained, if the right at issue
       is not designed to protect the defendant from erroneous conviction but
       instead protects some other interest, such as the fundamental legal
       principle that a defendant must be allowed to make his own choices
       about the proper way to protect his own liberty. An error might also
       count as structural when its effects are too hard to measure, as is true of
       the right to counsel of choice, or where the error will inevitably signal
       fundamental unfairness, as we have said of a judge’s failure to tell the
       jury that it may not convict unless it finds the defendant’s guilt beyond
       a reasonable doubt.

       Under at least the first two rationales, counsel’s admission of a client’s
       guilt over the client’s express objection is error structural in kind. Such
       an admission blocks the defendant’s right to make the fundamental
       choices about his own defense. And the effects of the admission would
       be immeasurable, because a jury would almost certainly be swayed by
       a lawyer’s concession of his client’s guilt. McCoy must therefore be
       accorded a new trial without any need first to show prejudice.

138 S.Ct. at 1510-11 (internal quotations and citations removed). 2 As in McCoy, we

find Mr. Horn’s counsel explicitly conceded guilt over his client’s objections, thus

violating Mr. Horn’s Sixth Amendment rights. Given this violation, we have no




2
 In light of the Supreme Court’s decision in McCoy, this court recently vacated Mr. McCoy’s
convictions and sentences, and remanded the matter to the district court for further proceedings
consistent with McCoy v. Louisiana. State v. McCoy, 14-1449 (La. 8/31/18), -- So. 3d --.

                                              11
choice but to vacate the conviction and sentence and remand this matter to the district

court for a new trial.3

                                       CONCLUSION

       Given the express holding of the Supreme Court in McCoy, we find

defendant’s assignment of error asserting a Sixth Amendment violation has merit. A

criminal defendant’s express refusal to concede guilt is safeguarded by core

constitutional protections. While conceding guilt in the hope of avoiding a death

sentence may be a reasonable strategic decision in some cases, the decision to do so

belongs to the defendant. Defense counsel’s decision to concede Mr. Horn was guilty

of second-degree murder or manslaughter over Mr. Horn’s objections resulted in a

structural error requiring this court to vacate defendant’s conviction and sentence.

                                           DECREE

       DEFENDANT’S CONVICTION AND SENTENCE ARE VACATED;

REMANDED TO THE DISTRICT COURT FOR A NEW TRIAL.




3
  Ordinarily we would first analyze the sufficiency of the evidence because lack of sufficient
evidence to sustain the conviction would entitle a defendant to an acquittal under Hudson v.
Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed. 2d 30 (1981). See State v. Maxie, 93-2158 (La.
4/10/95), 653 So. 2d 526, 531. However, we find the particular structural error in this case—
counsel’s concession of guilt over defendant’s objection—is inextricably intertwined with an
analysis of the sufficiency of the evidence. Thus, it is impossible for us to scrutinize the
fundamentally unfair trial in this case to determine if there is sufficient evidence to support the
conviction.

                                                12
  09/07/18




                  SUPREME COURT OF LOUISIANA


                               NO. 2016-KA-0559

                            STATE OF LOUISIANA

                                     VERSUS

                           BRIAN DOUGLAS HORN

               FROM THE FORTY-SECOND JUDICIAL DISTRICT COURT
                         FOR THE PARISH OF DESOTO



WEIMER, J., additionally concurring.

      While I agree with the majority’s conclusion that, pursuant to McCoy v.

Louisiana, ___ U.S. ___, 138 S.Ct. 1500 (2018), defendant’s conviction and sentence

must be reversed for violation of defendant’s Sixth Amendment right to counsel, I

write separately to address an issue that is pretermitted by the majority, but that

nonetheless is highly relevant to defendant’s trial on remand. That issue is the

sufficiency of the evidence presented to prove every element of the crime of first

degree murder beyond a reasonable doubt.

      It is a necessary and fundamental first step in any analysis of a conviction in

which sufficiency is assigned as error, to address the sufficiency argument directly

and as an initial matter, because the lack of sufficient evidence to sustain the

conviction would entitle the defendant to an acquittal under Hudson v. Louisiana,

450 U.S. 40 (1981). Indeed, for precisely that reason, it has been the long-standing

practice of this court to address the sufficiency argument, even when the defendant’s

conviction and sentence must be reversed on other grounds. See, State v. Crawford,

14-2153, p. 19 (La. 11/16/16); State v. Mickelson, 12-2539, p. 5 (La. 9/3/14), 149

So.3d 178, 182; State v. Maxie, 93-2158 (La. 4/10/95), 653 So. 2d 526, 531. The

sufficiency argument is especially relevant in this case because defendant’s argument
that the State failed to prove that the killing occurred when the defendant was

engaged in the perpetration or attempted perpetration of aggravated kidnapping or

second degree kidnapping, if meritorious, would mean that, on remand, the crime

could not be prosecuted as a first degree murder. Therefore, consistent with

well-settled law and procedure, I offer the following analysis of defendant’s

arguments on appeal regarding the sufficiency of the State’s evidence to convict him

of the crime of first degree murder.

           Sufficiency of the Evidence (Assignments of Error #8-11)

      In order to affirm a conviction, an appellate court must determine that the

evidence, viewed in the light most favorable to the prosecution, was sufficient for a

rational finder of fact to conclude that every element of the crime was proved beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316 (1979); Maxie, 653

So.2d at 532. Importantly, the Jackson standard does not permit this court to

substitute its own appreciation of the facts for that of the factfinder. State v.

Robertson, 96-1048 (La. 10/4/96), 680 So. 2d 1165, 1166. It is not the province of

the reviewing court to assess the credibility of witnesses or reweigh evidence. State

v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442, 443. As explained by this court

in 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.
      [Footnote omitted.]

      To obtain a conviction for first-degree murder under the State’s theory of this

case, the State had to prove beyond a reasonable doubt that defendant had a specific

intent to kill or inflict great bodily harm on the victim while engaged in the

                                          2
perpetration or attempted perpetration of aggravated kidnapping or second degree

kidnapping. See La. R.S. 14:30(A)(1). Defendant argues the State failed to present

sufficient evidence at trial that he had either specific intent to kill or was engaged in

an aggravated kidnapping or second degree kidnapping at the time of the homicide.

      Specific intent may be inferred when the circumstances indicate that the

offender actively desired the prescribed criminal consequences of his act. La. R.S.

14:10(1). Because it is a state of mind, specific intent need not be proved as a fact,

but may be inferred from the circumstances and the defendant’s actions. Mickelson,

12-2539 at 6, 149 So.3d at 182-183; State v. Broaden, 99-2124, p.18 (La. 2/21/01),

780 So.2d 349, 362.

      In this case, the State presented a forensic analysis of the cause of the victim’s

death, which was asphyxiation due to smothering. The coroner, Dr. James Traylor,

testified for the State that the perpetrator had to obstruct the victim’s mouth and apply

pressure for 90 seconds in order to kill him. Dr. Traylor opined that death from

smothering does not often happen accidentally and, ordinarily, does not happen to a

healthy 12-year-old boy. Viewing this evidence in the light most favorable to the

prosecution, a rational trier of fact could have determined that the defendant had the

specific intent to kill or inflict great bodily harm on the victim.

Aggravated Kidnapping

      Louisiana R.S. 14:44 provides:

      Aggravated kidnapping is the doing of any of the following acts with the
      intent thereby to force the victim, or some other person, to give up
      anything of apparent present or prospective value, or to grant any
      advantage or immunity, in order to secure a release of the person under
      the offender’s actual or apparent control:

      (1) The forcible seizing and carrying of any person from one place to
      another; or


                                            3
       (2) The enticing or persuading of any person to go from one place to
       another; or

       (3) The imprisoning or forcible secreting of any person.

       Defendant argues that the State lacked sufficient evidence to convict him of

aggravated kidnapping, noting that the offense requires the perpetrator to kidnap the

victim with the intent to “force the victim, or some other person, to give up anything

of apparent present or prospective value, or to grant any advantage or immunity, in

order to secure a release of the person under the offender’s actual or apparent

control.” Defendant argues there is a complete absence of evidence that he had any

intent, or engaged in any communications or actions, to attain anything of value in

return for the release of the victim. Defendant points to the State’s argument that “no

matter what happened to [the victim], whether a sexual act occurred or not, he was

not going to live,” which defendant contends undermines any possibility defendant

intended to secure something for his victim’s release. Defendant also points to the

State’s closing argument wherein it instructed the jury to ignore aggravated

kidnapping as an aggravating circumstance in favor of second degree kidnapping.1

       A review of the record reveals that the State did indeed fail to prove beyond a

reasonable doubt that defendant committed aggravated kidnapping. In fact, in brief

to this court, the State conceded “that there would not be sufficient evidence in the

record to support a first degree murder charge with aggravated kidnapping.” Thus,

by the State’s admission, this statutory aggravating circumstance was not proved.

Nevertheless, “this Court has held on many occasions that the failure of one or more

statutory aggravating circumstances does not invalidate others, properly found, unless



1
  The prosecutor argued: “Ladies and gentlemen, let me make this even easier for you when you do
your punch list. Go to second degree kidnapping, remember, it’s an either/or …. Save yourself
some time, go to second degree kidnapping.”

                                               4
introduction of evidence in support of the invalid circumstance interjects an arbitrary

factor into the proceedings.” State v. Manning, 03-1982 (La. 10/19/04), 885 So. 2d

1044, 1102. There is no evidence to support a conclusion that the evidence offered

in support of the aggravated kidnapping charge, which the State argued the jury need

not even consider, injected an arbitrary factor into the proceedings. Therefore, it is

necessary to examine whether another aggravating circumstance, specifically second

degree kidnapping, was proved.

Second Degree Kidnapping

      Louisiana R.S. 14:44.1 provides in relevant part:

            A. Second degree kidnapping is the doing of any of the acts listed
      in Subsection B wherein the victim is:

             ....

             (3) Physically injured or sexually abused;

             ....

             B. For purposes of this Section, kidnapping is:

            (1) The forcible seizing and carrying of any person from one place
      to another; or

            (2) The enticing or persuading of any person to go from one place
      to another; or

             (3) The imprisoning or forcible secreting of any person.

             ....

      Relevant to the facts of this case, to establish the offense of second degree

kidnapping, the State had to prove defendant enticed or persuaded the victim to go

from one place to another and that the victim was physically injured or sexually

abused.




                                          5
       The record clearly supports, and defendant does not contest, a finding that

defendant “enticed or persuaded” the victim “to go from one place to another.” Text

messages between defendant and the victim establish defendant disguised his identity

and lured the victim from his friend’s house and into defendant’s taxi by pretending

to be a young girl who wanted a sexual encounter. Thus, the only issue to be resolved

is whether the State proved the victim was sexually abused or physically injured.

       Defendant argues that no rational trier of fact could have found beyond a

reasonable doubt that he sexually abused the victim. Although there was some

suggestion of sexual abuse by the State at trial, the State essentially abandoned the

sexual abuse theory in closing arguments.2 Additionally, the State does not argue in

brief to this court that the victim was sexually abused. Rather, the State asserts the

evidence was sufficient to prove the victim was “injured” during the kidnapping and,

thus, the evidence was sufficient to establish second degree kidnapping.

       The defendant argues that the State presented insufficient evidence that the

victim suffered injuries apart from those that resulted from the murder. However, a

review of the record, viewed in the light most favorable to the prosecution, reveals

that the State met its burden of demonstrating that defendant physically injured the

victim in the course of kidnapping him prior to his death. The coroner, Dr. Traylor,

testified that the victim died from being smothered and opined that the perpetrator

smothered the victim while on his back. Dr. Traylor identified several areas of

“petechiae” or ruptured blood vessels in the victim’s eyes and on his face and

forehead, which would have required the perpetrator to apply pressure to some part



2
  The prosecutor argued: “All this back and forth in the trial about DNA . . . whether he was sexually
abused or not, that’s great and all, but you can stop right there. Physically injured, no doubt, without
a doubt that he is physically injured as a result of Brian Horn enticing him or persuading or any
person to go from one place to another.”

                                                   6
of the body to prevent the drainage of blood to the heart. Dr. Traylor identified an

abraded contusion on the inside of the victim’s mouth consistent with the perpetrator

compressing his lips and mouth against his braces. Dr. Traylor also described

numerous abrasions on the victim’s body and testified they were anti-mortem

wounds. Defendant argued these abrasions were consistent with the victim’s body

being dragged from the road and over a barbed wire fence to the area where the body

was found. However, Dr. Traylor testified the wounds were not consistent in size

with barbed wire and were not consistent with the perpetrator dragging the victim’s

body in one direction post-mortem.

      In summary, the State presented photos and testimony from Dr. Traylor that (1)

the victim exhibited injuries on his neck, face, hands, back shoulder, and torso; (2)

the injuries occurred before death; and (3) the injuries were not solely attributable to

smothering. When viewed in the light most favorable to the State, the evidence is

sufficient for a rational trier to find beyond a reasonable doubt that some of the

injuries on the victim’s body resulted apart from the killing itself or its immediate

aftermath.

      Evaluating the evidence in the light most favorable to the prosecution, giving

deference to the jury’s obvious assessment of credibility and weighing of the

evidence, and without substituting my own appreciation of the facts for that of the

jury, it is apparent that the evidence was sufficient for the jury to find defendant

committed second degree kidnapping. Given that the evidence was sufficient for the

jury to find proof of guilt beyond a reasonable doubt under Jackson, defendant’s

assignments of error asserting insufficiency of evidence are without merit.




                                           7
 09/07/18




                 SUPREME COURT OF LOUISIANA


                             NO. 2016-KA-0559

                          STATE OF LOUISIANA

                                   VERSUS

                         BRIAN DOUGLAS HORN

              FROM THE FORTY-SECOND JUDICIAL DISTRICT COURT
                        FOR THE PARISH OF DESOTO



GUIDRY, J., additionally concurs for the reasons assigned by Justice Weimer.
