### STATE OF LOUISIANA COURT OF APPEAL 

# 7- C41 FIRST CIRCUIT

2023 CA 0224 STATE OF LOUISIANA

VERSUS TERRELL J. BUTLER

JUDGMENT RENDERED: 

### SEP 15 2023
Appealed from The Nineteenth Judicial District Court Parish of East Baton Rouge • State ofLouisiana Docket Number 02- 17- 0632 • Section S 

### The Honorable Tiffany Foxworth-Roberts, Presiding Judge

Hillar C. Moore, III COUNSEL FOR APPELLANT 

### DistrictAttorney PLAINTIFF— State of Louisiana Dylan C. Alge Assistant DistrictAttorney Baton Rouge, Louisiana
Connor K. Junkin Baton Rouge, Louisiana

Ashley M. Caruso Mary G. Erlingson Baton Rouge, Louisiana COUNSEL FOR APPELLEE PLAINTIFr—The Department of Public Safety and Corrections, Public Safety Services, Office of State Police
COUNSEL FOR APPELLEE THIRD -PARTY PLAINTIFF— The East Baton Rouge Parish Sheriff' s Office J. Rodney Messina COUNSEL FOR APPLLLEF Janna Messina Kiefer DEFENDANT— Terrell J. Butler Baton Rouge, Louisiana

BEFORE: WELCH, HOLDRIDGE, AND WOLFE, JJ.WELCH, J. The State of Louisiana appeals the trial court' s judgment that granted the 

### expungement ofTerrell J. Butler's record ofarrest and conviction, specifically, the expungement of a conviction of aggravated assault with a motor vehicle upon a 

### peace officer. For the reasons that follow, we affirm in part, and reverse in part.

BACKGROUND AND PROCECURAL HISTORY 

### On July 1, 2015, an arrest warrant issued for Mr. Butler, for the alleged 

## commission ofthe following crimes: aggravated assault with a motor vehicle upon a peace officer, a violation of La. R.S. 14: 37.6; aggravated flight from an officer, a violation of La. R.S. 14: 108. 1( C); 

## aggravated obstruction of a highway of commerce, a violation ofLa. K.S. 14: 96; reckless operation ofa vehicle, a violation 

### ofLa. R.S. 14:99; speeding in a construction zone, a violation ofLa. R.S. 32:57(H); disobeying an officer's signs/signals, a violation of La. R.S. 32: 56( B); failure to 

### signal a turn, a violation ofLa. R.S. 32: 104; disobeying a red signal, a violation of 

### La. R.S. 32:232; improper passing on the right, a violation of La. R.S. 32:74(B); 

### intentional littering, a violation of La. R.S. 30:2531; and driving under suspension, 

### a violation ofLa. R.S. 32:415. These crimes arose out ofincidents occurring on June 29, 2015. Pursuant to the arrest warrant, Mr. Butler was arrested on December 15, 2016. 

### On February 22, 2017, the State ofLouisiana filed a bill ofinformation charging Mr. Butler with Count 1 -- aggravated assault with a motor vehicle upon a peace officer, 

### a violation of La. R.S. 14:37.6,1 and Count 2— aggravated flight from an officer, a

1 Louisiana Revised Statutes 14: 37.6 provides, in }pertinent part: A. Aggravated assault with a motor vehicle upon a peace officer is an assault 

### committed with a motorvehicle upon a peace officer acting in the course and scope of his duties. C. Whoever commits the crime of aggravated assault with a motor vehicle upon a peace officer shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not less than one year nor more than ten years, or both.

2violation of La. R.S. 14: 108. 1( C). Z 

### In exchange for Mr. Butler' s plea of guilty on

Count 1, the State agreed to dismiss the charge on Count 2. On July 31, 2017, after 

### accepting Mr.Butler' s guilty plea for aggravated assault with a motor vehicle upon a peace officer, the trial court deferred Mr. Butler' s sentence on Count 1 and placed him on one year of active supervised probation in accordance with La. C.Cr.P. art. 

## 893.3 The State noted on the record that it did not objectto Mr.Butler receiving a deferred sentence under La. C.Cr.P. art. 893. 

### On January 30, 2018, Mr. Butler satisfactorily terminated his probation, and the trial court dismissed the prosecution against him pursuant to La. C. Cr.P. art. 893. On June 17, 2021, Mr. Butler filed a motion for expungement. Mr. Butler 

### alleged entitlementto expunge his record ofarrests that did not result in convictions, 

### forthe following arrests: ( 1) aggravated flight from an officer, aviolation ofLa. R.S. 14: 108. 1( C); ( 

### 2) reckless operation of a vehicle, a violation of La. R.S. 14: 99; and 3) 

## intentional littering, a violation of La. R.S. 30:2531, Mr. Butler also alleged 

### entitlement to expunge his record of conviction of aggravated assault with a motor vehicle upon a peace officer, a violation of La. R.S. 14:37.6. 

### The State objected and opposed Mr. Butler' s motion for expungement. The State argued that La. C. Cr.P. art. 978(B)( 1) does not permit the expungement of a 

### record ofarrest and conviction ofa felony offense that is defined or enumerated as
a " crime of violence" 

### by La. R.S. 14:2(B). 

### Acknowledging that Mr. Butler' s 

### conviction for aggravated assault with a motor vehicle upon a peace officer "is not


### 2 Louisiana Revised Statutes 14: 148.1{ Q provides: Aggravated flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop or of an operator to bring a watercraft to a stop, under 

### circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver or operator has committed an offense. 

### The signal shall be given by an emergency light and a siren on avehicle marked as a police vehicle or marked police watercraft. 

### 3 Pursuant to La. C.Cr.P. art. 893, the sentencing judge is authorized to suspend either the imposition or execution ofsentence when placing the defendant on probation.
3enumerated as a crime ofviolence" under La. R.S. 14:2(B), the State contended that

Mr. Butler' s conviction " 

### clearly meets the definition of a crime ofviolence under La. RS.] 14: 2( B)." 

### The trial courtheld a hearing on Mr.Butler's motion forexpungement. Atthe hearing, the trial court stated that the list ofenumerated crimes ofviolence found in 

### La. R.S. 14:2(B) was not an exclusive list but an illustrative list, whereby the crime of aggravated assault with a motor vehicle upon a peace officer "could be deemed"
a " crime of violence" under the statute. ( Emphasis added). The trial court ruled, however: When the defendant entered into a plea agreement,



## the State did not object to the sentence being deferred[,] and it was for purposes of the plea agreement which is 

## what the Court would deem is one of the underlying reasons and/or causes for the defendant to accept the offer 

### ofthe State and plead guilty to this -- to this offense. 

## So forthose reasons, the Court is going to grantthe expungement, and we note the State' s objection. 

### On November 16, 2022, the trial court granted an order of expungement of 

### Mr.Butler's arrestand conviction record in accordancewith itsoral ruling.The State

now appeals. 4 LAW AND DISCUSSION 

### The State argues that the trial court committed legal error when it ruled that 

### the State " had an affirmative dutyto note forthe record atthe time ofconviction that Mr.Butler's felony conviction constituted a crime ofviolence." The State contends 

### that it had no duty to state on the record that Mr. Butler's arrest and conviction for aggravated assault with a motor vehicle upon a peace officer constituted a crime of



### 4 The State filed a petition for appeal on November 18, 2022. The trial court signed an order of appeal on November 21, 2022, notice ofwhich was transmitted by the clerk ofcourt to the parties on December 7, 2022. In accordance with La. C.C. P. arts. 2127 and 2128, the appellant, the State, designated portions ofthe record to constitute the record on appeal. See Uniform Rules, Courts of Appeal, Rules 2- 1 to 2- 1. 17; Bezet v. Original Libr. Joe' s, Inc., 

### 2001- 1586 ( La. App. Pt Cir. 6121102), 835 So.2d 472, 475.
4violence. The State argues that under La. C. Cr.P. art. 890.3 " all crimes of violence



### remain such unless the District Attorney affirmatively elects to declare the conviction as not constituting a crime ofviolence." Louisiana Code of Criminal Procedure article 978 provides, in pertinent part: B. No expungement shall be granted nor shall a person be permitted to file a motion to expunge the record of arrest 

## and conviction of a felony offense if the person was convicted of the commission or attempted commission of 

### any ofthe following offenses: 1) 

### A crime ofviolence as defined by or enumerated in R.S. 14:2(B)... . Emphasis added). Louisiana Revised Statutes 14:2(B) provides, in pertinent part: In this Code, " crime of violence" means an offense that 

### has, as an element, the use, attempted use, or threatened 

## use of physical force against the person or property of another,andthat, by its very nature, involves a substantial 

## risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon. Louisiana Revised Statutes 14:2(B) also includes an illustrative list of over 

### forty " enumerated offenses and attempts to commit any ofthem" that are classified
as " crimes of violence." See La. R.S. 14: 2( B)( 1)-( 60). Arrests 

### Pursuant to La. C.Cr.P. art. 978, Mr. Butler is entitled to the expungement of 

### his record ofarrest forthe following arrests: ( 1) aggravated flight from an officer, a violation of La. R.S. 14: 108. 1( C); ( 2) reckless operation ofa vehicle, a violation of La. R.S. 14: 99; and ( 3) 

### intentional littering, a violation of La. R.S. 30:2531. Although Mr. Butler' s arrest for aggravated flight from an officer, a violation of La. R.S. 14: 108. 1( C), 

### is an enumerated crime ofviolence under La. R.S. 14:2(B)(39), 

## Mr. Butler was never convicted ofaggravated flight from an officer. Accordingly, under La. C. Cr.P. art. 978, he is entitled to the expungement ofthose arrests.

5Conviction At no time since Mr. Butler' s commission ofthe offense ofaggravated assault with a motor vehicle upon a peace officer on June 29, 2015, and the date he was 

### sentenced on July 31, 2017, has La. R.S. 14:2(B) been amended to list aggravated
assault with a motor vehicle upon a peace officer as an enumerated " crime of
violence." The statute has listed aggravated assault upon a peace officer with a 

### firearm as a " crime ofviolence" and currently lists aggravated assault upon a peace
officer as a " crime of violence." La. R.S. 14:2( B)(32) ( 2015 version); La. R.S. 14: 2( B)(32) ( 2017 version). 

## Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery." La. R.S. 14:36. Battery is defined, in pertinent part, as " 

### the intentional use of force or violence upon the
person of another." La. R.S. 14:33. " 

### Aggravated assault is an assault committed with a dangerous weapon." La. R.S. 14:37(A).Louisiana Revised Statutes 14: 37.6 defines aggravated assault with a motor vehicle upon a peace officer as " an assault 

### committed with a motorvehicle upon a peace officer acting in the course and scope ofhis duties." 

### The proper interpretation of a statute is a question of law. State v. Green, 

### 2020-0066 (La. App. 1St Cir. 12130120), 318 So.3d 146, 149. Questions of law are 

### reviewed de novo, with the judgment rendered on the record, without deference to the legal conclusions ofthe tribunals below. Green, 318 So.3d at 149. Based on the 

### above statutory definitions, we agree with both the State and the trial court that the list of enumerated " crimes ofviolence" contained in La. R.S. 14:2(B) is illustrative, 

### and not exclusive. We further agree with both the State and the trial court that Mr. Butler' s conviction of aggravated assault with a motor vehicle upon a peace officer falls within the definition ofa " crime ofviolence" under La. R.S. 14:2(B) because it

0

### is an offense that has, as an element, the use, attempted use, or threatened use of

physical force against the person of another. While Mr.Butler received a deferred sentence forhis conviction ofaggravated assault with a motor vehicle upon a peace officer under La. C. Cr.P, art. 893, which 

## was dismissed upon his satisfactory completion of the terms of his probation, pursuant to La. C. Cr.P. art. 978(B)( 1), he is not eligible, however, for an expungement of his record for the conviction of aggravated assault with a motor vehicle upon a peace officer because that offense is a " crime ofviolence" under La. R.S. 14: 2( B). 

### Accordingly,we must reversethe portion ofthetrial court's November 16, 2022 order of expungement of arrest/conviction for aggravated assault with a motor vehicle upon a peace officer, a violation of La, R.S. 14:37. 6. DECREE We affirm the portion of the trial court' s November 16, 2022 order of 

### expungement ofarrest/conviction for Terrell J. Butler' s arrests that did not result in convictions: ( 1) aggravated flight from an officer, a violation of La. R.S. 14: 108. 1( C); ( 

### 2) reckless operation of a vehicle, a violation of La. R.S. 14: 99; and 

### 3) intentional littering,a violation ofLa. R.S. 30:2531. We reverse the portion of the trial court' s November 16, 2022 order of expungement of arrest/conviction for Terrell J. Butler' s conviction of aggravated assault with a motor vehicle upon a peace officer, a violation of La. R.S. 14: 37. 6. 

## We assess appellate court costs, in the amount of $ 460.00, equally between the appellant, the State of Louisiana, and the appellee, Terrell J. Butler. AFFIRMED IN PART; REVERSED IN PART,

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