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Date: 05-25-2016

Case Style: STATE OF LOUISIANA Vs. LEROY A. LODGE

Case Number: 2015-KA-0538

Judge: Judge Dennis R. Bagneris, Sr., Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins

Court: COURT OF APPEAL, FOURTH CIRCUIT, STATE OF LOUISIANA

Plaintiff's Attorney: Leon A. Cannizzaro, Jr., District Attorney; J. Bryant Clark, Jr., Assistant District Attorney; Naomi Jones, Assistant District Attorney

Defendant's Attorney: Holli Herrle-Castillo

Description: Leroy A. Lodge has three prior appeals with this court stemming from his
original conviction in 1983 for forcible rape, a violation of La. R.S. 14:42.1, which
was affirmed in State v. Lodge, 447 So.2d 88 (La. App. 4th Cir. 1984). The most
recent opinion, State v. Lodge, 15-0539 (La. App. 4 Cir. 9/23/15), 176 So.3d 612,
was rendered while this appeal was pending.1 This opinion adopts the procedural
history, the statement of the case, and findings in State v. Lodge 15-0539.
The sole issue for this court‟s review today is defendant‟s assertion that the
trial court erred in denying his motion to quash. Defendant asserts that trying him
for both failure to register as a sex offender, a violation of La. R.S. 15:542 (as
charged in case no. 502-192), and failure to periodically renew said registration, a
violation of La. R.S. 15:542.1.1 (as charged in case no. 508-450), violates the
constitutional protections against double jeopardy found in both U.S. Const.
Amend. V and La. Const. Art. 1, §15.
DISCUSSION
Though it is noteworthy that the defendant‟s motion to quash in case no.
502-192 is not properly before this Court because it was not presented to the trial
court after remand,2 the issue of double jeopardy has been properly asserted.
The defendant‟s plea of guilty to the failure to register as a sex offender, La.
R.S. 15:542 pursuant to State v. Crosby, 338 So.2d 584 (La. 1976), does not
prohibit this Court from addressing double jeopardy. In Crosby, the Court
specified that even an unqualified guilty plea does not preclude review of
jurisdictional defects, which includes double jeopardy claims. 338 So.2d at 588,
see also State v. Roe, 13-1434, pp. 39-40 (La. App. 4 Cir. 10/8/14), 151 So.3d 838,
862 (though double jeopardy claim was not raised at trial, it was reviewable as an
error patent); State ex rel. Adams v. Butler, 558 So.2d 552 (La. 1990)(addressing
double jeopardy in post-conviction proceedings arising out of a guilty plea).
The Fifth Amendment to the U.S. Constitution and La. Const. Art. I, §15
guarantees that no person shall be placed twice in jeopardy for the same offense.
“This guarantee protects against a second prosecution for the same offense after
acquittal; a second prosecution for the same offense after conviction; and multiple
punishments for the same offense.” State v. Childs, 13-0948, p. 2 (La. App. 4 Cir.
1/15/14), 133 So.3d 104, 105, (citing State v. Smith, 95-0061, p. 3 (La. 7/2/96), 676
So.2d 1068, 1069.
La. C.Cr.P. art. 596 specifies:
Double jeopardy exists in a second trial only when the charge in that trial is:

(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.
Louisiana Courts use two tests to determine whether double jeopardy exists:
1) the Blockburger test established by Blockburger v, U.S., 284 U.S. 299, 52 S.Ct.
180 (1932), and 2) the “same evidence test”, established by State v. Steele, 387
So.2d 1175 (La. 1980). Childs, 13-0948, p. 2, 133 So.3d at 106. Under the
Blockburger test:
where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.
Blockburger, 284 U.S. at 304, 52 S.Ct. at 180.
Under the “same evidence test:”
If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial.
Steele, 387 So.2d at 1177.
The same evidence test “considers the actual physical and testimonial
evidence necessary to secure a conviction, and concerns itself with the „evidential
focus' of the facts adduced at trial in light of the verdict rendered, i.e., how the
evidence satisfies the prosecution's burden of proof.” State v. Williams, 07–0931,
p. 5 (La. 2/26/08), 978 So.2d 895, 897 (citing State v. Coody, 448 So.2d 100, 102
03 (La. 1984).

4
In this case, the defendant is subject to a complicated system of registration
and continued updating of information. He asserts that prosecuting him separately
for failing to update his registration and failing to update his address violates
double jeopardy. After a review of the applicable laws, we do not find that this
scheme violates double jeopardy. La. R.S. 15:542 specifies the requirements that
sex offenders must register and provide notification, as provided in subsequent
statutes. La. R.S. 15:542.1.1 requires periodic renewal of registration. La. R.S.
15:542.1.2 imposes an additional and separate duty on offenders to notify law
enforcement of address changes and other information. In this case, the defendant
was in violation of La. R.S. 15:42.1.1 when he failed to update his registration on
December 3, 2009. He was arrested for this violation on June 28, 2010.
Apparently, the defendant was released after this arrest, because a May 18, 2011
arrest warrant stated that an April 26, 2011 compliance check showed that he was
not living at his registered address. Thus, the defendant was charged with and pled
guilty to two separate crimes that were based upon different facts. In the first
charge, currently on appeal, the defendant failed to update his registration on
December 3, 2009. He was released, and an April 26, 2011 compliance check
revealed that the defendant was not living at his registered address, showing that he
had failed to inform the proper authorities that he had changed addresses. This
failure to inform of his change of address resulted in a second charge. Thus, the
defendant committed two separate offenses that are based on different facts that are
criminalized by two different statutes. These separate offenses occurred at two
different times that were over a year apart. The offenses the defendant pled guilty
to were based upon separate and distinct facts and circumstances, and prosecuting
him for these offenses does not violate double jeopardy under either the
Blockburger test or the “same evidence” test.

Outcome:

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