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Editor's note: Revised Opinion 7/26/00; Original Opinion Released July 6, 2000 SUPREME COURT OF LOUISIANA No. 99-KA-0606 STATE OF LOUISIANA VERSUS MITCHELL SMITH On Appeal from the Criminal District Court for the Parish of Orleans, Honorable Patrick G. Quinlan, Judge c/w No. 99-KA-2015 STATE OF LOUISIANA VERSUS LISA M. GARRETT On Appeal from the Criminal District Court, for the Parish of Orleans, Honorable Frank A. Marullo, Jr. Judge c/w NO. 99-KA-2019 STATE OF LOUISIANA VERSUS MELANIE VARNADO On Appeal from the Criminal District Court, for the Parish of Orleans, Honorable Arthur L. Hunter, Judge NO. 99-KA-2094 STATE OF LOUISIANA VERSUS KELLY A. BARON On Appeal from the Criminal District Court, for the Parish of Orleans, Honorable Calvin Johnson, Judge TRAYLOR, Justice* FACTS/PROCEDURAL HISTORY On September 24, 1995, the alleged victim and Mitchell Smith began talking while consuming
*

Knoll, J. not on panel. Rule IV, Part 2, Section 3.

alcohol at Brewski's Lounge in Chalmette. After at least one cocktail together, Mr. Smith asked her to accompany him to another bar, and the two left and went to Gabby's, a bar in New Orleans East. While at Gabby's, the alleged victim felt sick, apparently from consuming alcohol while taking epilepsy medicine. Although she testified that she told Mr. Smith she wanted to go home, Mr. Smith convinced her to go to a motel with him to "rest." She claimed she hesitantly agreed after insisting that nothing was going to happen between them. Mr. Smith testified that he asked her to "fool around" and she agreed. He also testified that they kissed in his car. The accuser testified that, after arriving at Jack's Motel on Chef Menteur Highway, she passed out on the bed, but awoke to find Mr. Smith undressing her. There was conflicting testimony as to exactly what occurred at the motel. Mr. Smith testified that oral sex occurred, but that consensual oral sex was the extent of the sexual activity. His accuser claimed that she cried rape, but was unable to move, and was forced to have vaginal and anal intercourse. After, she became ill, Mr. Smith helped her to his car and drove her home. On September 25, 1995, the alleged victim contacted the New Orleans Police Department sex crimes unit and reported that she had been sexually assaulted the previous day. She then showed a detective various locations where she had been with Smith, then known to her only as "Mitch." The State of Louisiana charged defendant, Mitchell Smith, by bill of information with one count of aggravated crime against nature, a violation of La. Rev. Stat. 14:89.1. In a separate bill of information, the State charged Smith with simple rape, a violation of La. Rev. Stat. 14:43. After a bench trial, the court found Smith not guilty of simple rape, but guilty of the lesser offense of simple crime against nature under La. Rev. Stat. 14:89. Smith filed a Motion in Arrest of Judgment, alleging that La. Rev. Stat. 14:89 is unconstitutionally vague and overbroad, and denies him his right to privacy and fair treatment in relation to others. The trial court denied the motion, and sentenced Smith to three years in the Department of Corrections, suspended, and two years probation. Mr. Smith appealed to the Fourth Circuit Court of Appeal, asserting the same challenges made in his Motion for Arrest of Judgment. The Court of Appeal reversed Smith's conviction, finding that La. Rev. Stat. 14:89(A)(1) was unconstitutional on its face as an infringement upon the right to privacy expressly guaranteed by Article I,

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Louisiana Law