Judge Daniel L. Dysart.

An opinion in this case was originally rendered on July 6, 2016.1 The State sought rehearing as it had not been served with a copy of the defendant's pro se brief, which raised an issue not raised by the defendant's appellate counsel. The State argues that it did not have an opportunity to address the issue of whether simple kidnapping is a responsive verdict to the charge of second degree kidnapping, and that the original opinion is in direct conflict with this Court's prior opinion in State v. Vargas-Alcerreca, 12-1070 (La.App. 4 Cir. 10/2/13), 126 So.3d 569. This Court granted the State's application for rehearing, and sat en banc to decide if its previous ruling should be overruled.2

After again hearing argument from the parties, the Court finds that its previous decision in Vargas-Alcerreca should not be overruled. Accordingly, for the following reasons, we vacate the previously rendered opinion, affirm the defendant's convictions on all counts, grant the State's writ application, reverse the trial court's ruling as to habitual offender status, vacate the previous sentences, and remand this matter to the trial court for sentencing in accordance with this opinion.

DISCUSSION:

In the original opinion, this Court found that the trial court's jury instruction listing simple kidnapping as a responsive verdict to a charge of second degree kidnapping was error patent, and reversed the defendant's five simple kidnapping convictions. Price, 15-0364, p. 6, ___ So.3d at ___, citing State v. Graham, 14-1801, p. 5 (La. 10/14/15), 180 So.3d 271, 275. The Court also relied on State v. Jones, 13-1118, p. 6 (La.App. 4 Cir. 1/30/14), 156 So.3d 126, for the position that "[a] non-responsive verdict is a patent error which does not require a contemporaneous objection."

We begin our analysis with the relevant provisions of the Louisiana Code of Criminal Procedure. Article 814 A sets out responsive verdicts that are legislatively authorized, but second degree kidnapping is not one of those enumerated. Article 815 provides that the responsive verdicts in all cases not provided for in Article 814 are guilty; guilty of a lesser and included grade of the offense charged; and, not guilty.

In Price, the trial court instructed the jury that the responsive verdicts to the charge of second degree kidnapping were guilty, guilty of an attempted second degree kidnapping, guilty of simple kidnapping, guilty of attempted simple kidnapping, and not guilty. The record does not reflect that defense counsel objected to the trial court's inclusion of simple kidnapping (or attempted simple kidnapping) as a responsive verdict to the five charges of second decree kidnapping. The jury returned the lesser verdict of simple kidnapping on all five counts.

In the prior opinion, five possible scenarios were noted in which evidence sufficient to support a conviction for second degree kidnapping would necessarily support a conviction for simple kidnapping, all of which involved the offender forcibly seizing and carrying the victim from one place to another. See La. R.S. 14:44.1 B(1) and A (1)-(5), and La. R.S. 14:45 A(1). However, in ten other scenarios, evidence sufficient to support a conviction for second degree kidnapping would not support a conviction for simple kidnapping. See La. R.S. 14:44.1 B(2) and (3) and A(1)-(5). Price, 15-0364, p. 5, ___ So.3d at ___.

The Court relied on the recent decision of the Louisiana Supreme Court, State v. Graham, supra, to reach the conclusion that simple kidnapping was not a responsive verdict. Graham defined lesser and included offenses as "those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged" and found that "if any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive." Price, 15-0364, p. 4, citing Graham, 14-1801, p. 5, 180 So.3d at 275.

However, in direct conflict with Price is this court's ruling in Vargas-Alcerreca, wherein it was stated plainly and without elaboration that simple kidnapping is an authorized responsive verdict to second degree kidnapping. 12-1070, pp. 21-22, 126 So.3d at 582.

Our review of the jurisprudence reveals that the Louisiana Supreme Court and other appellate courts have reached, at least implicitly, the same conclusion finding no error in including simple kidnapping as authorized on the verdict form. In Vargas-Alcerreca, supra, this Court cited State v. Porter, 93-1106, pp. 3-4 (La. 7/5/94), 639 So.2d 1137, 1140, in support of the proposition that simple kidnapping is a responsive verdict to second degree kidnapping. We now note additionally that although Porter did not address the issue specifically, it tacitly endorsed that conclusion when considering the defendant's assigned error pertaining to his forcible rape conviction by noting that the appellate court had correctly decided assignments of error pertaining to the defendant's other conviction, for simple kidnapping — a verdict returned by the jury to the charged offense of second degree kidnapping. 93-1106, pp. 3-4; 639 So.2d at 1140.3 In State v. Tapps, 02-0547 (La.App. 5 Cir. 10/29/02), 832 So.2d 995, the Fifth Circuit affirmed a conviction of simple kidnapping returned by the jury as a responsive verdict in a case in which the defendant had been charged with second degree kidnapping.

The foregoing cases illustrate that simple kidnapping is a valid responsive verdict to a charge of second degree kidnapping, This would also be consistent with the spirit of the long-standing rule set out by the Louisiana Supreme Court in State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La. 1982), which held that "[A]t least when the defendant fails to interpose a timely objection to a legislatively responsive verdict, this court will not reverse the conviction if the jury returns such a verdict, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged." (Emphasis supplied). Elaire, 424 So.2d at 252; see also State v. Taylor, 14-0432, p. 12-13 (La. 3/17/15), 166 So.3d 988, 996. ("In any event, unauthorized entry of a place of business is a statutorily-provided responsive verdict to a charge of simple burglary, La. C.Cr.P. Art. 814(A)(42) and the evidence presented at trial was sufficient to have supported a verdict for the charged offense of simple burglary. The evidence was therefore sufficient to support a verdict for the lesser offense and statutory responsive verdict as to which the defense had no objection."); State v. Black, 09-1664, p. 14 (La. App. 4 Cir. 6/17/10), 41 So.3d 1243, 1251 ("In the present matter, the record on appeal shows no objection to any of the potential responsive verdicts for aggravated battery, as listed in La. C.Cr.P. Art. 814(14). Accordingly, this Court need only consider if the evidence was sufficient to support a conviction of the greater offense, aggravated battery."); State in the Interest of A.V., 94-0042 (La.App. 4 Cir. 5/26/94), 637 So.2d 1243, 1246 ("Because the defendant in this case did not move to exclude the responsive verdict of attempted simple rape from consideration by the trial court, we hold he cannot complain now of insufficient evidence to support it. His conviction can be affirmed if the evidence is sufficient to support the crime charged.").

In its application for rehearing, the State also argues convincingly that the result reached in Price "presents a troubling logical dissonance — i.e., that the most basic form of kidnapping known to our law is somehow not a responsive verdict to a more serious form of kidnapping." That argument is further supported by the inclusion of both second degree and simple kidnapping as legislatively authorized responsive verdicts to aggravated kidnapping. See La. C.Cr.P. Art. 814 (18); see also 17 La. Civ. L. Treatise, Criminal Jury Instructions § 10:68 (3d ed.) (Second degree kidnapping — Imprisoning or forcible secreting (R.S. 14:44.1(B)(3)) ("Since the offense is governed by the general responsive verdict provision of La. C.Cr.P. Art. 815, attempted second degree kidnapping is responsive. Simple kidnapping and attempted kidnapping are also lesser included offenses."). The "at least" language in Elaire also suggests that the Supreme Court contemplated situations such as the instant one in which it might uphold a responsive verdict not specifically authorized by the legislature (and not necessarily a lesser included offense in all circumstances) when the defendant does not object.

In finding that Graham does not apply to the present case, we discuss Graham in greater detail. The sole issue in Graham was whether molestation of a juvenile was a lesser and included grade of the offense of the former crime of aggravated incest.4 The trial court permitted the State to add molestation of a juvenile as a responsive verdict to the charged offense of aggravated incest, after both the State and the defense had rested their cases, and over the objection of the defendant. The trial court instructed the jury accordingly, and the jury returned a verdict of guilty of molestation of a juvenile. The court of appeal affirmed the defendant's conviction and sentence. The Louisiana Supreme Court reversed, stating:

Graham, 14-1801, pp. 5-6; 180 So.3d at 275 (emphasis supplied). The narrowest reading of Graham thus supports this Court's holding in Price.

However, Graham was a distinctive case, which the Supreme Court described as "present[ing] a myriad of problems," and does not appear controlling in this context as it involved a unique set of circumstances and presented an unusual procedural posture. In Graham the State charged the defendant with aggravated incest, but at the conclusion of its case and after the defense had rested, the State became aware that it had failed to present evidence of affinity, a required element of the crime. The court then granted, over defense objection, the State's request to add molestation of a juvenile as a responsive verdict to the charged offense. The Supreme Court found that under no circumstances could molestation of a juvenile qualify as a lesser included offense of aggravated incest because the former crime requires the act be accomplished "by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile" elements not required to sustain an incest conviction. The Supreme Court also found it significant that the proposed responsive verdict of molestation carried the exact same range of penalties as the charged crime. Compare La. R.S. 14:81.2 D(1) (Molestation of a juvenile when the victim is under the age of 13) (25 to 99 years imprisonment at hard labor with at least 25 years to be served without benefit of parole) with La. R.S. 14:78.1 D(2) (Aggravated incest when victim is under the age of thirteen and offender is at least seventeen) (25 to 99 years imprisonment at hard labor with at least 25 to be served without benefit of parole). The Court in Graham found the evidence constitutionally insufficient to prove the nonresponsive offense of molestation of a juvenile — which it found was an independent reason warranting the vacating of the defendant's conviction. Graham, 14-1801, p. 9, 180 So.3d at 277. The Court further found, given the State's failure to prove an essential element of the charged crime of aggravated incest, that "the jury implicitly acquitted defendant of that charge by returning a verdict of guilty of molestation of a juvenile," and such "implicit acquittal" was a bar to any subsequent prosecution of the defendant for aggravated incest. Given the scenario described above, the Graham court concluded that the proceedings had been rendered "fundamentally unfair."5

Price presents none of the fundamental unfairness issues present in Graham. The State did not alter its theory of the case. The factual background contained in the original opinion sets forth that the defendant, along with his counterparts, planned and executed a robbery at the home of the victim, Troy Leslie. Seven victims were present at the residence, and while the defendant sequestered five of the victims at gunpoint in the garage, an accomplice killed Leslie and shot his girlfriend in the eye as they lie in bed. Thereafter, two of the five victims held at bay by the defendant in the garage were killed by the defendant's cohorts.

Based on these facts, unlike Graham, the evidence here was clearly sufficient to convict defendant of all five counts of the charged offense of second degree kidnapping — he imprisoned the five victims in the garage while armed with a gun.

Louisiana Revised Statute 14:44 provides, in part:

Simple kidnapping is described in part as: "The intentional and forcible seizing and carrying of any person from one place to another without his consent." La. R.S. 14:45 A(1).

As simple kidnapping can be a lesser included offense to second degree kidnapping, we conclude that simple kidnapping is a responsive verdict; and therefore a contemporaneous objection to the jury instruction is required. See La. C.Cr.P. Art. 841 (providing that "[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence"). To hold differently would allow the defense to acquiesce to an otherwise logical jury instruction containing a lesser included offense, and later be allowed to set aside a compromise verdict as non-responsive.

Accordingly, we conclude that although the present case does not involve a legislatively authorized responsive verdict, it nonetheless provides a verdict which is defined as a crime by the legislature (simple kidnapping), which is responsive to the charge of second degree kidnapping. The defense did not raise a timely objection to the inclusion of simple kidnapping in the jury charges, and thereby benefitted by the jury returning a verdict with a lesser penalty than the crime charged. As the evidence supports the charged crime of second degree kidnapping, we find no basis for reversing the convictions for simple kidnapping.

Lastly, the defendant argues that there was insufficient evidence to convict on all seven charges. We have previously determined that the evidence was sufficient to convict on the five charges of second degree kidnapping. We also find that the facts support the convictions on the two counts of negligent homicide.

Negligent homicide is defined as the "killing of a human being by criminal negligence." La. R.S. 14:32 A. "Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances." La. R.S. 14:12.

The factual scenario described above fully supports a finding of sufficient evidence to convict the defendant of negligent homicide.

WRIT NO. 2015-K-0082:

Consolidated with this appeal is an application for supervisory writ filed by the State seeking review of the trial court's ruling that the defendant was not a second-felony habitual offender. As we find error in that ruling, we grant the State's writ and reverse the ruling of the trial court.

Following the trial, the State filed a bill of information charging the defendant as a second-felony habitual offender. The bill was based on two prior convictions resulting from guilty pleas entered on May 8, 2009, as to one count of illegal use of a weapon, a violation of La. R.S. 14:94, and one count of possession of a firearm with an obliterated serial number, a violation of La. R.S. 14:95.7.

The burden of proof in habitual offender proceedings is set forth in State v. White, 13-1525 (La. 11/8/13), 130 So.3d 298:

White, 13-1525, p. 2, 130 So.3d at 300.

The State must prove not only the prior felony conviction, but also must prove beyond a reasonable doubt that the defendant is the same person who committed the prior felony. State v. Brown, 11-1656, p. 2 (La. 2/10/12), 82 So.3d 1232, 1234; State v. Golden, 13-0012, p. 2 (La.App. 4 Cir. 10/30/13), 126 So.3d 829, 832.

In this case, the State presented as evidence the testimony of the NOPD officer who fingerprinted the defendant in court the day of the multiple bill hearing. The officer identified a certified packet of information that contained, among other things, an arrest register reflecting a date of arrest as 1/22/09 and a booking date of 1/23/09. The police officer matched the fingerprints taken of the defendant that day in court to a fingerprint card he brought with him to court that day for "identifying purposes." He also matched identifying information as to the person listed on the arrest register to identifying information for the person named on the fingerprint card brought with him to court that day. He testified that the names, social security numbers, dates of birth, state identification number and the charges themselves, were the same on both documents. The certified pack offered into evidence contained a 3/23/09 Orleans Parish bill of information charging Jubbard Price with one count of illegal use of a weapon, and one count of possession of "an unregistered firearm." The pack also contained a waiver of constitutional rights and plea of guilty form dated May 8, 2009, in Case # 484-534, reflecting a plea of guilty to both charges, signed by Jubbard Price. A minute entry from the same date mirrors the information on the guilty plea form. A docket master entry on that date contains the same information.

The defense objected to the writ application speculating that the trial court based its finding that the State had not met its burden of proof on the fact that the State failed to introduce the arrest register or any other documentation for the current case to match the identifying information produced from the prior felony convictions.

The defense also suggests that the trial court ruled against the State as the fingerprint card brought to the hearing by the NOPD officer was an uncertified printed document, and the officer testified that he was not the officer who previously fingerprinted the defendant, nor was he a custodian of the fingerprint card.

This Court has expressly held that "fingerprints are not absolutely required" to prove that a defendant charged as a habitual offender is the same person previously convicted. State v. Watkins, 13-1248, p. 38 (La.App. 4 Cir. 8/6/14), 146 So.3d 294, 317, citing White, supra; State v. Galle, 11-0930, p. 22, (La.App. 4 Cir. 2/13/13), 107 So.3d 916, 930, citing State v. Westbrook, 392 So.2d 1043 (La. 1980)(finding in a second offense DUI case that a driver's license number, sex, race, and birth date all identified the prior offender as the defendant, and thus that the State proved the defendant's identity as the same person previously convicted).

In the present case, even excluding the fingerprint evidence, we find there is sufficient evidence to prove beyond a reasonable doubt that the defendant is the same person previously convicted. There is evidence that both the previous offender and Jubbard Price are black men; the date of birth is the same in the docket master for the present case, and in the bill of information and other documents contained in the certified pack. Further, although defense counsel speculates that the trial court found the use of a "generated" fingerprint card to be problematic, especially in light of the officer testifying that he was not the custodian of the card, we note that the defense counsel stipulated that the officer was an expert in the taking, examining and identification of latent fingerprints.

Thus, for the above reasons, we grant the State's writ, reverse the ruling of the trial court finding that the State did not prove that Jubbard Price was a second-felony habitual offender, vacate the previous sentences, and remand for sentencing in accordance with this opinion.

CONCLUSION:

For the reasons set forth above, on rehearing en banc, we vacate the previous opinion, and affirm the defendant's convictions on all counts. We further grant the State's writ application, reverse the trial court's ruling as to habitual offender status, vacate the previous sentences, and remand this matter to the trial court for sentencing in accordance with this opinion.

APPEAL AFFIRMED; WRIT GRANTED, JUDGMENT REVERSED; SENTENCES VACATED; REMANDED FOR SENTENCING

LOBRANO, J., CONCURS IN THE RESULT OF THE MAJORITY OPINION

BAGNERIS, J., DISSENTS

JENKINS, J., DISSENTS WITH REASONS

BARTHOLOMEW-WOODS, J., CONCURRING IN PART, DISSENTING IN PART WITH REASONS

BAGNERIS, J. DISSENTS.

I dissent for the reasons assigned by Judge Jenkins.

JENKINS, J., DISSENTS WITH REASONS.

In light of the longstanding legal principles governing responsive verdicts, I find that Vargas-Alcerreca is an incorrect statement of the law with respect to the responsiveness of a verdict of simple kidnapping to a charge of second degree kidnapping. I respectfully dissent from the majority's opinion, and would reverse Defendant's convictions on five counts of simple kidnapping. Additionally, because the jury's non-responsive verdict was an implied acquittal on the charges of second degree kidnapping, I would remand, and order the trial court to enter a post-verdict judgment of acquittal on those charges. With respect to Defendant's convictions on counts 7 and 8 (negligent homicide), I would affirm the consecutive sentences for a term of five years imprisonment at hard labor, and the fines of $5,000.00 per count. Finally, I would grant the State's writ application, vacate the trial court's judgment that Defendant was not a second-felony offender, and remand the matter to give the State the opportunity to re-file or amend the multiple bill of information to exclude the five counts of simple kidnapping (counts 1-5).

State v. Graham: The Law of Lesser and Included Offenses

I begin with the well-established law governing lesser and included offenses. The Louisiana Supreme Court's test for determining the responsiveness of a verdict for a lesser and included offense involves a comparison of the statutory elements of the offenses in question, and has been expressed as follows:

State v. Johnson, 01-0006, p. 4 (La. 5/31/02), 823 So.2d 917, 921 (emphasis added); State v. Graham, 14-1801, pp. 5-6 (La. 10/14/15), 180 So.3d 271, 275.

For decades, the Supreme Court has also expressed the "essential elements" test as whether the definition of the greater offense "necessarily includes" all the elements of the lesser offense. State v. Simmons, 422 So.2d 138, 142 (La. 1982); State v. Robertson, 06-1537, p. 7 (La. 1/16/08), 988 So.2d 166, 171; State v. Booker, 385 So.2d 1186, 1190 (La. 1980).1 See also State v. Jackson, 04-2863, p. 12 (La. 11/29/05), 916 So.2d 1015, 1022 n.12 (lesser and included offense is "necessarily required in every case" of greater offense"). Thus, "[i]f the greater offense could be committed without commission of the lesser offense, then a verdict for the lesser offense cannot be responsive." State v. Mosley, 485 So.2d 658, 660 (La.App. 4 Cir. 1986); State v. Maxwell, 11-0564, p. 30 (La.App. 4 Cir. 12/21/11), 83 So.3d 113, 131.

In 2015, the Louisiana Supreme Court in State v. Graham confirmed that the pertinent (and longstanding) inquiry is as follows: "If any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser offense cannot be responsive." Graham, 14-1801, p. 5, 180 So.3d at 275 (citing Simmons, 422 So.2d at 142 (quoting State v. Poe, 214 La. 606, 38 So.2d 359, 363 (1948)). See also State v. Wilson, 12-1765, p. 28 (La.App. 4 Cir. 2/12/14), 138 So.3d 661, 680; State v. Ennis, 11-0976, p. 11 (La.App. 4 Cir. 7/5/12), 97 So.3d 575, 582; State v. Maxwell, 11-0564, p. 28 (La.App. 4 Cir. 12/21/11), 83 So.3d 113, 130; State v. Simmons, 01-0293, p. 4 (La. 5/14/02), 817 So.2d 16, 19; State v. Lynch, 97-2426 La.App. 4 Cir. 2/3/99, 729 So.2d 12, 13; State v. Dauzat, 392 So.2d 393, 395 n.2 (La. 1980).

At this point, I must emphasize that Graham is significant in this case solely because it sets forth the well-established rule of law that governs lesser and included offenses. Contrary to the majority and concurring opinions, it is irrelevant whether Graham is "factually distinguishable," "distinctive," or presents a "unique set of circumstances" and/or an "unusual procedural posture."

The offenses of second degree kidnapping and simple kidnapping certainly can have an element in common, i.e., both can involve the "forcible seizing and carrying of any person from one place to another." See La. R.S. 14:44.1(B)(1); La. R.S. 14:45(A)(1). The pertinent inquiry, however, does not end there. Graham dictates that courts examine whether "any reasonable state of facts can be imagined" (i.e., any "reasonable scenario") in which the greater offense of second degree kidnapping could be committed without perpetration of the lesser offense of simple kidnapping. Graham, 14-1801, p. 6, 180 So.3d at 275.

Reasonable Scenarios

As noted by the majority opinion, there are 15 ways a defendant can commit the offense of second degree kidnapping, each with separate elements. In five of those instances, a defendant can commit second degree kidnapping by "imprisoning" or "forcibl[y] secreting" any person when the victim is one of the types listed in La. R.S. 14:44.1(A). See La. R.S. 14:44.1(B)(3) and (A)(1)-(5).

The offense of simple kidnapping, however, does not include the element of "imprisoning" or "forcibl[y] secreting" a person. See La. R.S. 14:45(A). Because second degree kidnapping can be committed in "numerous ways," only some of which would also constitute simple kidnapping, the evidence sufficient to support a conviction of second degree kidnapping may not "necessarily support" a conviction of simple kidnapping. Graham, 14-1801, p. 6, 180 So.3d at 275. Thus, because the greater offense of second degree kidnapping "could possibly be committed without perpetration of the lesser offense," simple kidnapping "is not truly a lesser and included offense." Simmons, 422 So.2d at 143. I find, therefore, that Vargas-Alcerreca cannot stand.

Statutory Elements Test

I disagree with any contention that the inquiry regarding lesser and included offenses should be driven by reference to conduct proved at trial. As discussed above, the "lesser and included offense" test in Louisiana is whether the essential elements of the lesser offense are "necessarily included" in the elements of the greater offense charged. This test requires a comparison between offenses. Because offenses are statutorily defined, I find that this comparison is properly conducted only by reference to the statutory elements of the offenses in question, and not by reference to conduct proved at trial. See Schmuck v. United States, 489 U.S. 705, 720, 109 S.Ct. 1443, 1453, 103 L.Ed.2d 734 (1989) (adopting "statutory elements" test, which calls for an objective, textual comparison of criminal statutes, and "does not depend on inferences that may be drawn from evidence introduced at trial").2 See State v. Johnson, 01-0006, p. 4 (La. 5/31/02), 823 So.2d 917, 920-21 (citing the Schmuck statutory "elements" test). As stated in Schmuck, "the elements approach permits both sides to know in advance what jury instructions will be available and to plan their trial strategies accordingly." Id. Moreover, "the objective elements approach ... promotes judicial economy by providing a clearer rule of decision" and by permitting appellate courts to assess jury instructions "without reviewing the entire evidentiary record for nuances of inference." Schmuck, 489 U.S. at 720-21, 109 S.Ct. at 1453. Most importantly, I find that the objective elements test is compelled by the due process "right of the defendant to [have] notice of the charge brought against him." Schmuck, 489 U.S. at 718, 109 S.Ct. at 1451.

State v. Porter

The majority opinion asserts that "the Louisiana Supreme Court and other appellate courts have reached, at least implicitly, the same conclusion" as Vargas-Alcerreca. The majority cites State v. Porter, 93-1106 (La. 7/5/94), 639 So.2d 1137 (which was cited in Vargas-Alcerreca), and which, according to the majority, "tacitly endorsed" the Vargas-Alcerreca court's holding that simple kidnapping is a valid responsive verdict to a charge of second degree kidnapping.

In Vargas-Alcerreca, the court relied on the statement in Porter that summarily "affirm[ed] the simple kidnapping conviction, concluding that the court of appeal correctly decided the assignments of error pertaining to that conviction." Vargas-Alcerreca, 12-1070, p. 21, 126 So.3d at 582 (citing Porter, 93-1106, pp. 3-4, 639 So.2d at 1140). However, as acknowledged in footnote 3 of the majority opinion, the Porter court "did not address the issue specifically [the responsiveness of a simple kidnapping conviction], but found the State presented sufficient evidence to support the simple kidnapping conviction." In Porter, the sole assignment of error relating to the simple kidnapping conviction was the sufficiency of the evidence. See State Porter, 615 So.2d 507, 513-14 (La. App. 3d Cir. 1993). The responsiveness of the verdict of simple kidnapping was never raised as an assignment of error; the court only addressed the trial court's exclusion of the legislatively authorized responsive verdicts of simple rape and attempted simple rape to a charge of aggravated rape under La. C.Cr.P. Art. 814. Porter, 93-1106, p. 5, 639 So.2d at 1140 n.6. Accordingly, I do not find that the Porter court "implicitly" reached the same conclusion as Vargas-Alcerreca.

Likewise, in the other case cited by the majority opinion, State v. Tapps, 02-0547 (La.App. 5 Cir. 10/29/02), 832 So.2d 995, the Fifth Circuit did not address the issue of whether simple kidnapping was a responsive verdict to the charged offense of second degree kidnapping, but instead limited its review to the sufficiency of the evidence.

In sum, neither Porter nor Tapps supports the Vargas-Alcerreca decision.

"Logical Dissonance"

The majority also concludes that a finding that simple kidnapping is not a responsive verdict to second degree kidnapping "presents a troubling logical dissonance" because the legislature has authorized both simple kidnapping and second degree kidnapping as responsive verdicts to aggravated kidnapping under La. C.Cr.P. Art. 814(18). I agree with this court in State v. King, 00-0618 (La.App. 4 Cir. 3/7/01), 782 So.2d 654, that, in enacting Article 814, "the legislature had an opportunity to ... enact a statute relative to a lesser included offense" of simple kidnapping, "and they chose not to include such an offense. Therefore, this Court will not read a lesser included offense into the statute." Id., 00-0618, p. 6, 782 So.2d at 659.

State ex rel. Elaire v. Blackburn

The majority states that its decision to uphold Vargas-Alcerreca is "consistent with the spirit of the long-standing rule set forth by the Louisiana Supreme Court in State ex rel. Elaire v. Blackburn." In Elaire, the court declared that "at least when the defendant fails to interpose a timely objection to a legislatively responsive verdict, this court will not reverse the conviction if the jury returns such a verdict, whether or not that verdict is sufficient to support the offense charged." State ex rel. Elaire v. Blackburn, 424 So.2d 246, 252 (La. 1982) (emphasis added). The majority opinion speculates, without any analysis, that the "`at least' language in Elaire ... suggests that the Supreme Court contemplated situations such as the instant one in which it might uphold a responsive verdict not specifically authorized by the legislature (and not necessarily a lesser included offense in all circumstances) when the defendant does not object."

In State v. Porter, supra, the Supreme Court discussed the scope and rationale of Elaire, which specifically addressed the sufficiency-of-the-evidence problem posed by the legislatively authorized verdicts listed in La. C.Cr.P. Art. 814:

Porter, 93-1106, pp. 5-6, 639 So.2d at 1141.

The Porter court continued:

Porter, 93-1106, p. 5, 639 So.2d at 1140-41.

The Porter court then summarized the purpose of the Elaire rule cited by the majority opinion:

Porter, 93-1106, p. 8, 639 So.2d at 1142 (emphasis added).3

I find that the Elaire decision addressed a very specific problem associated with the sufficiency of the evidence in legislatively authorized responsive verdicts. I do not agree with the majority that the "spirit" of the Elaire decision requires its application to this case, which is not governed by La. C.Cr.P. Art. 814.4

Contemporaneous Objection Under La. C.Cr.P. Art. 841

It is well-established that a non-responsive verdict is "error patent on the face of the record and therefore reviewable on appeal despite absence of an objection during trial." State v. Turnbull, 377 So.2d 72, 75 (La. 1979); State v. Mayeux, 498 So.2d 701, 703 (La. 1986); State v. Campbell, 95-1409, p. 3 (La. 3/22/96), 670 So.2d 1212, 1213 (although defendants "acquiesced in the list of responsive verdicts given jurors by the trial judge," the jury's "return of the unresponsive verdicts ... constitutes an error patent on the face of the record"); State v. Hatcher, 02-0633, p. 5 (La.App. 4 Cir. 9/18/02), 828 So.2d 653, 656 ("[A] non-responsive verdict is a patent error and does not require a contemporaneous objection."); State v. Jones, 13-1118, p. 6 (La. App. 4 Cir. 1/30/14), 156 So.3d 126, 129 (same).

Despite this longstanding principle, the majority concludes that Defendant cannot challenge the responsive verdict because he did not make a contemporaneous objection when the trial court instructed the jury that simple kidnapping was a responsive verdict to the charged offense of second degree kidnapping, citing La. C.Cr.P. Art. 841 ("An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.").

If a trial court gives an erroneous jury instruction on responsive verdicts to which no objection was made, but the defendant is convicted as charged or convicted of a valid responsive verdict, then plainly there would be no reversible error. See State v. Foret, 479 So.2d 526, 527 (La. App. 1 Cir. 1985). That is not the case here. Defendant's conviction was based on a jury instruction that resulted in an invalid non-responsive verdict. Although the Supreme Court has held that "absent an objection, deficiencies in the responsive verdicts cannot be availed of upon appeal, in those cases the error existed only in the list of possible verdicts submitted to the jury and not in the actual verdict returned by the jury." State v. Thibodeaux, 380 So.2d 59, 61 (La. 1980) (emphasis added).

Thus, I disagree with the majority's conclusion that Defendant was required to make a contemporaneous objection in order to challenge the validity of the jury's verdict on appeal.

Double Jeopardy

In Graham, the Supreme Court held that "the jury's return of what it was instructed was a lesser responsive verdict" (even though it was not a valid responsive verdict), was an "implied acquittal" of the charged offense, "which ended the defendant's jeopardy and [was] a bar to a subsequent prosecution." Graham, 14-1801, p. 11, 180 So.3d at 278. Accordingly, the Graham court remanded the matter, and instructed the trial court to enter a post-verdict judgment of acquittal. Id.

Because this court is bound by Graham, I find that the jury's return of a verdict of simple kidnapping was an implied acquittal on the charges of second degree kidnapping, which ended Defendant's jeopardy and is a bar to a second trial on those charges. Accordingly, I would remand this matter, and instruct the trial court to enter a post-verdict judgment of acquittal of those charges.

BARTHOLOMEW-WOODS, J., CONCURRING IN PART, DISSENTING IN PART WITH REASONS.

I agree with the majority's reversal of the ruling that the State did not prove Defendant was a second-felony habitual offender. I further agree with the vacature of the sentences and remand for resentencing. However, as to the majority's opinion affirming Defendant's convictions for simple kidnapping, I respectfully dissent. In my view, the determination of whether simple kidnapping is a lesser included offense of second degree kidnapping necessarily requires an analysis of the facts on a case by case basis.

As noted by the original panel in State v. Price, 15-0364 (La.App. 4 Cir. 7/6/16), So.3d ___, 2016 WL 3612898, there are a number of ways — fifteen to be exact — by which a defendant can be found guilty of second degree kidnapping. The panel correctly noted that a defendant can be found guilty if he or she commits one of each act from subsections (A) and (B) of La. R.S. 14:44.1.

Here, the relevant evidence at trial showed as follows:

Id. at ___, at p. 2. The evidence also showed that Donald Johnson, not Defendant, forced two of the victims into the garage where Defendant held them at gunpoint. That evidence could have lead the jury to conclude that Defendant was indeed guilty of second degree kidnapping because the victims were imprisoned in the garage while Defendant was armed with a dangerous weapon or what the victims reasonably believed to be a dangerous weapon. La. R.S. 14:44.1(A)(5) and (B)(3). Instead, the jury came back with verdicts of guilty of simple kidnapping. Like second degree kidnapping, there are several ways one can commit simple kidnapping. Given the facts of this case, only subsection (A)(1) would apply, which provides that simple kidnapping is "[t]he intentional and forcible seizing and carrying of any person from one place to another without his consent."1

Since simple kidnapping is not a legislatively-provided responsive verdict under La. C.Cr.P. Art. 814, this Court must look to La. C.Cr.P. Art. 815 to determine whether simple kidnapping is indeed a responsive verdict to second degree kidnapping. As noted by the majority, with reference to State v. Graham, 14-1801, p. 5 (La. 10/14/15), 180 So.3d 271, 275, lesser included offenses are "those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged."

Longstanding precedent has also held that "if any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive." State v. Poe, 214 La. 606, 620, 38 So.2d 359, 363 (1948). Thus, the original panel in Price concluded that simple kidnapping was not responsive to second degree kidnapping because "a reasonable state of facts can be imagined where the greater offense of second degree kidnapping is committed without perpetration of the lesser offense of simple kidnapping." Price, 15-0364, p. 5, ___ So.3d ___.

While I agree with the result of the original Price ruling, I do not agree that simple kidnapping is never a responsive verdict to second degree kidnapping. In some cases — those in which the victims are indeed seized and carried — a jury can return a verdict of guilty of simple kidnapping if the State fails to prove one of the additional elements of second degree kidnapping set forth in subsections (A)(1) through (A)(5).2 This necessarily requires analyzing the specific facts of each case.

The majority's opinion suggests that this Court's ruling in State v. Vargas-Alcerreca, 12-1070 (La.App. 4 Cir. 10/2/13), 126 So.3d 569, conflicts. However, a review of the facts of Vargas-Alcerreca shows that simple kidnapping was responsive as that case involved seizure and carrying:

Id. at 582 (emphasis added). The majority also cites to State v. Porter, 93-1106 (La. 7/5/94), 639 So.2d 1137. A review of the facts by the Third Circuit Court of Appeal also reveals that the facts of that case involved seizure and carrying:

State v. Porter, 615 So.2d 507, 514 (La. App. 3 Cir. 1993), writ granted, 629 So.2d 372 (La. 1993), and aff'd in part, rev'd in part, 93-1106 (La. 7/5/94), 639 So.2d 1137 (emphasis added). In affirming on appeal, the Louisiana Supreme Court noted that "[a]lthough she resisted and even tried to run away at one point, she was overtaken and forcibly restrained." Porter, 639 So.2d at 1139, 1144 (emphasis added).

Another case cited by the majority, involved seizure and carrying:

State v. Tapps, 02-0547, p. 3 (La.App. 5 Cir. 10/29/02), 832 So.2d 995, 998, writ denied, 02-2921 (La. 4/21/03), 841 So.2d 789 (emphasis added).

Looking to the facts of each case cited by the majority indicates, unlike in this case, that simple kidnapping was an appropriate responsive verdict in each. Though the State failed to prove the additional element required to secure a second degree kidnapping conviction, the juries could nonetheless return a verdict of simple kidnapping because the facts proved established the essential elements of simple kidnapping. The facts of the case before us present no evidence that Defendant seized and carried any of the victims.

Instead of looking to the facts of the cases relied upon, the majority equates this case to those involving legislatively-provided responsive verdicts in La. C.Cr.P. Art. 814. Indeed, jurisprudence of this state holds that when a defendant fails to object to a legislatively-provided responsive verdict, he or she cannot then turn around on appeal and challenge the conviction on a claim of insufficient evidence when the evidence could have supported the higher charged offense. See State ex rel. Elaire v. Blackburn, 424 So.2d 246, 252 (La. 1982). However, this is not a case governed by La. C.Cr.P. Art. 814, and the majority cites to no case specifically holding that such reasoning extends to cases governed by La. C.Cr.P. Art. 815. In Elaire, the Louisiana Supreme Court distinguished "between those responsive verdicts which are lesser and included grades of the charged offense and those responsive verdicts which are not lesser and included offenses but are nevertheless included in La.C.Cr.P. Art. 814." Elaire, 424 So.2d at 248-49. In my view, there should be a distinction made between verdicts specifically authorized by the legislature (though not necessarily truly lesser included offenses) and those requiring an analysis under La. C.Cr.P. Art. 815. In the La. C.Cr.P. Art. 814 context, while jurisprudence holds that a defendant cannot benefit from a compromise verdict and challenge sufficiency on appeal without having objected, I am not of the opinion that such reasoning should extend to the La. C.Cr.P. Art. 815 context, where the legislature has not specifically authorized the verdict and where the evidence does not establish each element of the lesser crime. Thus, I believe the original panel correctly recognized the verdict as non-responsive and subject to error patent review without need for a contemporaneous objection at trial.

For the foregoing reasons, I am also not convinced by the State's argument that the result reached in Price "presents a troubling logical dissonance." Simple kidnapping can be, in some circumstances, responsive to second degree kidnapping — it is simply not responsive here given the facts of the case. That simple kidnapping is a legislatively-provided responsive verdict to aggravated kidnapping is also not convincing. The legislature may designate responsive verdicts as it sees fit. The legislature either inadvertently drafted second degree kidnapping out of La. C.Cr.P. Art. 814 or intentionally excluded responsive verdicts for second degree kidnapping. In any event, it is up to the legislature to address the issue if it wishes.