Opinion
No. KA 07 01404.
May 7, 2008.
APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 05-K-0463-B HONORABLE ELLIS J. DAIGLE, DISTRICT JUDGE.
Earl B. Taylor District Attorney 27th Judicial District Court P. O. Drawer 1968 Opelousas, LA 70571-1968 (337) 948-0551 Counsel for Plaintiff: State of Louisiana.
William Jarred Franklin Louisiana Appellate Project 3001 Old Minden Road Bossier City, LA 71112 (318) 746-7467 Counsel for Defendant: Samuel Lee.
Court composed of John D. Saunders, Glenn B. Gremillion, and Elizabeth A. Pickett, Judges.
Samuel Lee was charged with aggravated second degree battery, a violation of La.R.S. 14:34.7. A jury trial commenced on June 27, 2007, resulting in the Defendant being found guilty as charged. Defendant was sentenced on August 10, 2007, to eight years at hard labor, with credit for time served. Defendant made an oral motion to reconsider the sentence, which was denied by the trial court.
Defendant has perfected a timely appeal. In brief, he raises three assignments of error: (1) that the evidence was insufficient to sustain the verdict of aggravated second degree battery; (2) that the trial court erred when it denied his motion for a mistrial; and (3) that the sentence imposed was excessive under the circumstances of the case.
For the following reasons, we affirm Defendant's conviction and sentence.
FACTS:
On January 29, 2005, the victim, William King, went to Rita's Lounge in Opelousas, Louisiana. While at the lounge, he and Defendant got into an argument. Just prior to the closing of the bar, Defendant cut the victim several times with a sharp instrument, inflicting severe wounds on his chest, arm, and back.
ASSIGNMENT OF ERROR NUMBER 1:
For his first assignment of error, Defendant argues that the State failed to prove beyond a reasonable doubt that he had the specific intent to inflict serious bodily injury on the victim. Defendant argues that he was intoxicated to such a degree that he was incapable of forming the requisite intent to inflict injury with a dangerous weapon.
Louisiana Revised Statutes 14:34.7 defines aggravated second degree battery as follows:
A. (1) Aggravated second degree battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury.
(2) For purposes of this Section, "serious bodily injury" means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
In order to convict, the State must prove all the elements of the crime charged. In reviewing the sufficiency of the evidence, this court applies the standard established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La. 1983); State v. Duncan, 420 So.2d 1105 (La. 1982); State v. Moody, 393 So.2d 1212 (La. 1981). The role of the factfinder is to weigh the respective credibility of each witness. Therefore, the appellate court should not second guess the credibility determinations of the factfinder beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (La. 1983), citing State v. Richardson, 425 So.2d 1228.
State v. Miller, 98-1873, p. 5 (La.App. 3 Cir. 10/13/99), 746 So.2d 118, 120, writ denied, 99-3259 (La. 5/5/00), 761 So.2d 541.
Louisiana Revised Statute 14: 15 states, in pertinent part, the following:
The fact of an intoxicated or drugged condition of the offender at the time of the commission of the crime is immaterial, except as follows:
. . . .
(2) Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.
A conviction under La.R.S. 14:34.7 requires a finding of specific intent. State v. P.M., 00-1613 (La.App. 3 Cir. 5/2/01), 786 So.2d 857. Louisiana Revised Statutes 14:10 defines specific criminal intent as "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." Accordingly, the State need not prove a specific criminal intent as fact as it may be inferred from the circumstances of the case and actions of the accused.
The victim testified that late on the night of January 29, 2005, he went to Rita's Lounge. When he entered the lounge, he saw that Defendant was there. The victim's brother-in-law used to go out with Defendant's sister. The victim testified that "[p]rior to cutting me, he used to see me and every time he had seen me-we're all adults here, he told me, 'I didn't kill your f_______ brother-in-law.'"
The victim told Defendant '"Okay, if you didn't do it, leave me alone.' And that was it." The victim stated he had no further words with Defendant. However, later, when he went to the bar to order a few beers, he noticed Defendant at the bar about five feet away from him. The victim ordered the beer and walked to the other end of the bar to wait for the bartender to bring him the beers. As he was standing there, something attracted his attention behind him. He started to turn around and he suddenly felt something wet on his back. He then noticed blood on his hand. When he turned fully around, Defendant cut him across the chest with a sharp instrument. When Defendant tried to cut him again, the victim punched Defendant straight in the face and knocked him out.
The victim identified pictures of his injuries taken about three days after the incident. The pictures were admitted into evidence and shown to the jury. He was cut twice across the back, the other was approximately twelve inches long and one cut was approximately six inches long. He was cut once on the arm, a cut of about four inches, and he was cut from his shoulder, across his chest, all the way down to his belly button.
Leslie Thomas was at the lounge the night of the incident. He testified that he knew both the victim and Defendant. He stated that he saw Defendant and victim arguing. He stated that after the victim turned his back on Defendant, he saw Defendant cut the victim several times. He saw the victim then punch Defendant. Later, he pointed Defendant out to the police when he saw him attempt to leave with some friends.
Kenneth Minor was the bartender and bouncer that night at Rita's Lounge. He stated that he knew both men from their attendance at the lounge. He testified that he did not see Defendant and the victim argue, however, he did see Defendant cut the victim and the victim punch Defendant.
Charles Bocard went to the lounge that night with Defendant. He testified that the victim and Defendant were outside the bar. He said that the victim was harassing Defendant and hit him first. He did not know what happened after that because he went back into the lounge. He said he never gave the police a statement regarding the events of that evening.
Defendant testified that he was forty-four at the time of the incident and was disabled with a prosthetic leg. He had a wife and two kids. He stated he and his friend, Charles Bocard, arrived at the bar about nine-thirty or ten in the evening. He saw the victim there and told him he had nothing to do with his brother-in-law's death. He stated that at about closing time, as he was leaving the lounge, the victim waylaid him and punched him in the face. The next thing he knew he was "in the police car sleeping."
Defendant testified that he did not remember cutting the victim. He said he had "[f]ive or six beers and I drank a little bit of Wild Turkey with Charles and them." While he testified he had no problems with the victim, he stated that he had heard the victim was going to beat him and his brother up for killing his brother-in-law. He stated the brother-in-law had died about a month before the incident.
Defendant argues that the above testimony failed to prove that he had the specific intent to inflict serious bodily injury to the victim. He argues he was too intoxicated to form the specific intent. When an accused raises the defense of intoxication, he must prove the intoxication by a preponderance of the evidence. If he meets his burden of proof, then the State must show beyond a reasonable doubt that the requisite intent was present. State v. Legrand, 02-1462 (La. 12/3/03), 864 So.2d 89 cert. denied, 544 U.S. 947, 1255 S.Ct. 1692 (2005); State v. Patterson, 99-994 (La.App. 5 Cir. 1/25/00), 752 So.2d 280, writ denied, 00-753 (La. 2/9/01), 785 So.2d 26. We find that Defendant failed to meet his burden of proof at trial.
In brief, Defendant argues that "he had consumed five to six beers, as well as a quantity of Wild Turkey whiskey." However, at trial, Defendant testified he drank five to six beers and a "little bit of Wild Turkey." This was the extent of the testimony regarding how much alcohol Defendant drank. There was no testimony otherwise as to how much he had consumed, nor was there any testimony regarding his behavior which would have indicated intoxication to the degree that negated the element of specific intent, such as slurring his words or stumbling.
Furthermore there were several inconsistencies in Defendant's testimony. He testified that after the victim punched him, he remembered nothing more until he was taken out of the police car. However, he also testified that after he was punched, his friend "pulled me off the door. If it wouldn't have been for that door for me to prop on it, I'd had hit the slab." Furthermore, after first testifying he remembered nothing after the punch until he woke up in the police car, he testified that "[l]ike I said, when I noticed again, I was in the cop car. I had got in my car to get ready to come home. Big Cleve done pulled up to my-knocked on my door and told me to get out because I was under arrest for cutting William King." Given these statements, it is clear that Defendant had a memory of the events. His act of inflicting several long and deep cuts indicated an intent to cause serious bodily injury to the victim. Therefore, the State met its burden of proving beyond a reasonable doubt that Defendant committed aggravated second degree battery. Thus, there is no merit to this assignment.
ASSIGNMENT OF ERROR NUMBER 2:
For his second assignment of error, Defendant asserts the trial court did not comply with the mandate of La. Code Crim.P. art. 771 and admonish the jury after the witness made an impermissible comment that referred to another crime allegedly committed by Defendant. He argues that the comment prejudiced him at the onset of the trial in the jury's mind. Although the trial court agreed, according to Defendant the trial court said it would admonish the jury, but did not do so. Defendant states in brief that "[t]he record is void of any such admonishment."
Louisiana Code of Criminal Procedure Article 771, in pertinent part, provides:
In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
The alleged prejudicial remark was made by the victim, William King, as follows:
Q. Okay. Did you personally have any problems with him before that day?
A. Prior to him cutting me, he used to see me and every time he had seen me-we're all adults here, he told me, "I didn't kill your f______ brother-in-law." So I'd say
Q. Well, let me just stop you.
A. Okay.
Q. Did your brother-in-law die?
A. Yes.
Thereafter, Defendant objected and asked to approach the bench. Out of the hearing of the jury, Defendant argued to the trial court that the remark referred to other crimes evidence and was highly prejudicial to this jury and highly inflammatory. Following a long and sometimes inaudible argument, Defendant moved for a mistrial. The trial court denied the motion, but agreed that the jury should be admonished. The following discourse took place:
THE COURT: I'm going to deny your motion for mistrial. We're going to re-discuss this without the jury. I'm going to deny your motion for mistrial, however, I'll admonish the jury to disregard (inaudible).
(Whereupon, the following proceedings were held in the presence of the jury.)
THE COURT: The court will sustain the objection by the defendant and admonish the jury to disregard the last question and answer posed by the State and the answer of Mr. King. You may proceed.
Despite Defendant's assertion otherwise, it is clear that the trial court did admonish the jury on the record. Article 771 further states, however, that in such a case, the trial court "may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial."
It is not clear exactly what defense counsel objected to, the relating of the statement Defendant made to the victim at the lounge, or the State's redundant question, "Did your brother-in-law die?" Louisiana Code of Evidence Article 401 provides that relevant evidence "means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." However, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time." La. Code Evid. art. 403. Louisiana Code of Evidence Article 404(B)(1), in pertinent part, provides:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purpose, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
We find that the remark made by the witness did not constitute other crimes evidence. While the testimony regarding any involvement in the brother-in-law's death may have been prejudicial, the probative value of the comment outweighed the prejudicial effect, and the trial court did admonish the jury to disregard the remark.
Accordingly, the trial court did not err when it denied Defendant's motion for a mistrial.
ASSIGNMENT OF ERROR NUMBER 3:
For his final assignment of error, Defendant argues that the sentence of eight years at hard labor is constitutionally excessive under the facts and circumstances of the case.
As noted above, Defendant orally moved for reconsideration of the sentence at trial. However, he did not state specific ground for reconsideration. Louisiana Code of Criminal Procedure Article 881.1, in pertinent part, provides:
A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
. . . .
B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.
. . . .
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.
In this case, this court is relegated to a bare claim of excessiveness. See State v. Barling, 00-1241 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.
The penalty range for a violation of La.R.S. 14:34.7 is "not more than ten thousand dollars or imprisoned, with or without hard labor, for not more than fifteen years, or both." Defendant was sentenced to eight years at hard labor, a little more than one half of the amount of time he could have been sentenced to imprisonment.
In Barling, this court held that a sentence that does not exceed the maximum penalty may nonetheless be excessive:
La.Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La. 1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La. 6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
Id. at 1042-43.
At the sentencing hearing, the trial court heard from both Defendant and the victim. It noted for the record that he had taken into consideration the pre-sentence investigation report, the guidelines as set forth by La. Code Crim.P. art. 894.1, and the fact that Defendant was a first-time felony offender. The trial court noted that Defendant had "several brushes" with the law including charges of aggravated battery and aggravated assault. It noted that the victim suffered significant permanent injury and significant economic loss. It concluded that a lesser sentence would deprecate the seriousness of the crime. It specifically found there were no mitigating circumstances, and that "there was no remorse."
In brief, he argues that the trial court failed to consider as mitigating circumstance the fact that Defendant was forty-four years old, disabled, married, and the father of two children. This was his first felony conviction, and that the trial court placed too much emphasis on un-adjudicated offenses.
In State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379, the second circuit did not find Robinson's sentence of ten years at hard labor imposed on a conviction for aggravated second degree battery excessive considering even that she was a first-time felony offender and had a young child. The second circuit stated that "based upon this record and particularly in light of the defendant's demonstrated violent nature, the sentences imposed were not constitutionally excessive." Id. at 381.
In State v. P.M., 786 So.2d 857, this court did not find two concurrent sentences of twelve and one-half years excessive for a father who was convicted of aggravated battery for throwing hot grease at his minor children. The father had a history of arrests for assault and battery.
Considering the circumstances of the case, the extent of the victim's injuries, and the above discussed cases of similar terms of imprisonment under similar circumstances, we find that the sentence in this case is such that it does not shock this court's sense of justice. This assignment is without merit.
CONCLUSION:
Defendant's conviction and sentence is affirmed.
AFFIRMED.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules, Courts of Appeal.