Opinion
2023 KA 0783
12-29-2023
STATE OF LOUISIANA v. ROBERT JOHN MORRISON
Bertha M. Hillman Covington, Louisiana Counsel for Defendant/Appellant Robert John Morrison Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana Counsel for Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION
Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Case No. 3258-F-2020 The Honorable William H. Burris, Judge Presiding
Bertha M. Hillman Covington, Louisiana Counsel for Defendant/Appellant Robert John Morrison
Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana Counsel for Appellee State of Louisiana
BEFORE: THERIOT, PENZATO, AND GREENE, JJ.
THERIOT, J.
The defendant, Robert John Morrison, was charged by bill of information with aggravated assault with a firearm, a violation of La. R.S. 14:37.4, and pled not guilty. After a jury trial, the defendant was found guilty as charged. The trial court denied the defendant's motion for new trial and motion for post-verdict judgment of acquittal. The trial court sentenced the defendant to ten years imprisonment at hard labor, suspended eight years of the sentence, and placed the defendant on three years of supervised probation with conditions, including payment of a fine of $1,000 and additional costs. The defendant now appeals, assigning error to the sufficiency of the evidence. For the following reasons, we affirm the conviction and sentence.
STATEMENT OF FACTS
On May 3, 2020, at the Park and Ride in Lacombe, Louisiana, after a game of pickleball, the defendant and Alexis Andrews, the victim, had a disagreement and a verbal altercation ensued on the court. The confrontation continued as they walked to the parking lot. The defendant went to his vehicle and retrieved a handgun, pulled back the slide to chamber a live round, brandished the weapon, and followed Andrews as Andrews backed away toward his own vehicle. The defendant then put the gun on the ground, picked up a two-by-four or large piece of wood, and threatened to hit Andrews with the piece of wood if Andrews reached for the gun on the ground. Andrews opened his car door, entered his car, and drove away from the scene. Andrews later went to the police and reported the incident.
Detective Katie Ragan, the assigned investigator, interviewed Andrews and other eyewitnesses who participated in the pickleball game on the day of the incident. She and other officers followed a lead to a tennis court in Slidell, Louisiana, where they located the defendant, took a statement from him, and then placed him under arrest. At the point of the arrest, the officers retrieved the defendant's carrying bag, from which they located and seized a loaded gun confirmed by the defendant as the one he used in the instant incident.
SUFFICIENCY OF THE EVIDENCE
In the sole assignment of error, the defendant argues that the evidence is insufficient to support an aggravated assault conviction, as he proved at trial by a preponderance of the evidence that he acted in self-defense.
A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const, amend. XIV, La. Const, art. I, § 2. The standard of review for sufficiency of the evidence to support a conviction, is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. See La. Code Crim. P. art. 821(B); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mellion, 20211116 (La.App. 1st Cir. 4/8/22), 342 So.3d 41, 45, writ denied, 2022-00732 (La. 6/22/22), 339 So.3d 1186, cert, denied, __ U.S.__, 143 S.Ct. 319, 214 L.Ed.2d 141 (2022).
The rule as to circumstantial evidence is that "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438. This is not a separate test for evaluating the evidence; rather, all of the evidence, both direct and circumstantial, must be sufficient under Jackson to convince a rational juror the defendant is guilty beyond a reasonable doubt. State v. Cabellero, 2022-0441 (La.App. 1st Cir. 11/4/22), 356 So.3d 389, 394, writ denied, 2022-01777 (La. 4/25/23), 359 So.3d 982.
Aggravated assault with a firearm is an assault committed with a firearm. La. R.S. 14:37.4(A). An 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. A battery is, in part, the intentional use of force or violence upon the person of another. La. R.S. 14:33. The elements of assault are: (1) the intent-to-scare mental element (general intent); (2) conduct by the defendant of the sort to arouse a reasonable apprehension of bodily harm; and (3) the resulting apprehension on the part of the victim. State v. Major, 2019-0621 (La.App. 1st Cir. 11/15/19), 290 So.3d 1205, 1210, writ denied, 2020-00286 (La. 7/31/20), 300 So.3d 398. General intent exists when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10. To establish the general criminal intent for an aggravated assault, the act of pointing a weapon at another person and threatening bodily harm is sufficient to establish the element of intent. Major , 290 So.3d at 1210. Circumstantial evidence of a victim's state of mind can be used to prove the element of reasonable apprehension. State v. Gardner, 2016-0192 (La.App. 1st Cir. 9/19/16), 204 So.3d 265, 268.
The due process standard does not require the reviewing court to determine whether it believes the witnesses or whether it believes the evidence establishes guilt beyond a reasonable doubt. State v. Mire, 2014-2295 (La. 1/27/16), 269 So.3d 698, 703 (per curiam). Rather, appellate review is limited to determining whether the facts established by the direct evidence and inferred from the circumstances established by that evidence are sufficient for any rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Gardner , 204 So.3d at 267.
Of a group of five individuals who played pickleball on the day in question, four testified at trial, including the defendant, Andrews, Crystal Gleason, and Ross Mestayer. Mestayer testified that prior to the confrontation, the defendant told him he no longer wanted to partner with Andrews during the games. While Mestayer indicated that he was unaware of the reason for the rift between the two, he noted that Andrews and the defendant were "butting heads" at times because Andrews wanted to be in control of the group, and the defendant wanted to have input. Gleason indicated that the defendant and Andrews were very competitive and noted that Andrews would taunt the players during the games. As to the game immediately preceding the incident at issue, Mestayer testified that the defendant told him that he was going to try to hit Andrews with the "wiffle ball" during the game.
The ball used to play pickleball, a wiffle ball, was described at trial as a small plastic ball with holes in it, similar to those used in beginners' baseball, that weighed approximately two ounces.
Mestayer noted that after the game ended, Andrews stuck his chest out, corralled and nudged or pushed the defendant, and told the defendant to leave. Gleason described the altercation as "verbal," but noted that the defendant and Andrews looked as if they were going to fight at that point. Mestayer and Gleason testified that the defendant told Andrews, "I got something for you." The defendant exited the court and went to the parked vehicles and retrieved a gun. The defendant then approached Andrews and started screaming at him and pointing and shaking the gun at him, as Andrews backed away towards his vehicle. Gleason specifically noted that the defendant was pointing the gun at Andrews at "shoulder height." Mestayer and Gleason testified that as Andrews started picking up his belongings, the defendant then put the gun down on the sidewalk in front of him, picked up a piece of wood, and enticed Andrews to grab the gun, exclaiming he would beat him to death if he reached for it. Andrews continued to pick up his belongings, entered his vehicle, and left.
There was trial testimony that Andrews was younger and heavier than the defendant.
Andrews testified that prior to the day in question, he and the defendant had an "odd" exchange in which the defendant "made a big-to-do" about no longer wanting to be Andrews's friend or to play pickleball with Andrews anymore. Andrews denied that he would pick on people during the games, stating that he and a few other players would use "friendly, athletic banter" including comments such as "I got you that time." He testified that, on the day of the incident and as they played on opposing teams, the defendant consistently "smashed [balls] at [him] very hard . . . with a very deliberate attempt to hit [him]" during the game. Andrews testified that the defendant was able to hit him with some of the balls and that it hurt.
Andrews testified that he felt antagonized, aggravated, and frustrated, and that after the game, he confronted the defendant. He testified that as they "worked [their] way closer to each other[,]" the defendant told Andrews not to follow him to his truck. Suddenly, the defendant went to his truck, retrieved the gun, and pointed the gun at Andrews. According to Andrews, the defendant then said, You re not such a big man now, are you?" The defendant cocked the gun and told Andrews that it was loaded. As Andrews reached for his car door, the defendant told him "nobody is going anywhere[,]" while still pointing the gun at him. Andrews testified that the defendant ultimately put the gun on the ground, grabbed a "big" piece of wood, which Andrews described as a four-by-four, and said, "I'm going to put this gun down. And when you come and reach for it, I'm going to beat you in the head with it." At that point, Andrews again reached for the car door, got in his car, and left.
There was conflicting testimony as to whether the bag in which the gun was located was inside of the defendant's truck or in the back of the truck on the tailgate.
Andrews testified that he was terrified by the incident. He noted that he immediately called a friend who was a police officer, who told him to file an official complaint. Andrews testified that he was initially afraid to report the incident, as he feared the defendant would retaliate if not immediately arrested, but that he ultimately made a complaint two or three days later.
As noted, the defendant also testified at trial. The defendant indicated that his friendship with Andrews changed over time because Andrews was "constantly badgering people" and would try to start confrontations. The defendant stated that two or three days prior to the incident, Andrews verbally attacked him and humiliated him by telling him he was acting like "a little bi***" after a game. The defendant became angry, told Andrews he no longer wanted to be his friend, and told the other players that he no longer wanted to be Andrews's teammate. He admitted to being angry with Andrews and picking on him on the day in question for "breaking up [their] friendship" but denied hitting him with the ball intentionally, stating he was only trying to "make a good shot."
The defendant testified that after they finished the last game, someone in the group suggested they play another game. When the defendant refused to play on the same team as Andrews, the altercation began. According to the defendant, Andrews kept demanding that he play with him and repeatedly stepped in front of him as he tried to step away. The defendant further stated that Andrews walked up on him, purportedly trying to force the defendant to push him away to entice a physical altercation. The defendant noted that he was shorter and smaller than Andrews and did not want to fight him. The defendant testified that he felt threatened and fearful of Andrews, as Andrews ultimately told the defendant to leave. The defendant testified that at that point, he told Andrews, "I got something for you." He noted that Andrews followed him to his truck, asking, "What you got? The defendant testified that he had a cell phone in the truck and his pistol in a bag on the back of the truck. He further testified that he decided to grab the pistol instead of the cell phone because he was "fed up" and believed the cell phone would not prevent Andrews from being aggressive and from further assaulting him.
The defendant testified that he pulled the pistol out of the bag and that Andrews raised his hands up after seeing the pistol. The defendant denied pointing the pistol at Andrews but stated it may have been "pointed in his direction." The defendant described the gun as "a single action . . . spring loaded" pistol, noting that pulling the slide cocks the pistol, with the need to only "slightly pull [the] trigger." The defendant noted he followed Andrews with the gun pointed at the ground, and Andrews threw his hands up and started walking back to his car. The defendant testified that based on prior verbal attacks he did not believe that Andrews was going to leave him alone. Thus, he testified that he then picked up a nearby two-by-four board, threw it on the ground, sat the pistol on the ground, stood halfway between the board and pistol, and told Andrews, "[P]ick that pistol up . . . and I'll pick that board up. And then, I'll come beat you with that pistol. And I'll take my pistol, and I'll shoot you." The defendant claimed his actions were necessary to settle things. He noted that he wanted Andrews to understand that he was capable of hurting him if he wanted to. The defendant stated that he was afraid of Andrews and "turned the tables on him." The defendant further admitted that his actions, grabbing the pistol and loading a round in the chamber, would scare a reasonable person.
The defendant testified that he had two levels of anger, one that he called "the devil" and another that he called "God." He noted that during their altercation prior to the instant incident, Andrews saw his second to highest level of anger ("the devil"). As he further noted, on the day in question, Andrews met "God" and was subjected to "judgment day." He added, "I put him in his place."
On appeal, the defendant argues that Andrews was the aggressor and that his aggressive behavior escalated to physical abuse. He argues the force used was necessary and reasonable under the circumstances. He claims witnesses testified that Andrews committed an assault and battery against him and taunted him, as he was walking toward his truck after the pickleball game. He argues that he retrieved his gun in an attempt to protect himself from Andrews's "increasingly aggressive behavior."
Pursuant to La. R.S. 14:19(A)(1)(a), in pertinent part, the use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense. A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:21. In a non-homicide situation, a claim of self-defense requires a dual inquiry: first, an objective inquiry into whether the force used was reasonable under the circumstances, and, second, a subjective inquiry into whether the force used was apparently necessary. State v. Mollerberg, 2018-0256 (La.App. 1st Cir. 9/24/18), 260 So.3d 599, 605.
We find that there is nothing in the record to suggest that Andrews committed any act that would justify the force used by the defendant. The altercation was primarily described at trial as verbal in nature until the defendant brandished both a gun and a large piece of wood. The defendant admittedly attempted to escalate a verbal exchange into a physical one. The defendant admittedly wanted to put Andrews in his place and make him understand that he could hurt him. By the defendant's own admission, his intent was not to protect himself, but to intimidate Andrews. Thus, the jury could have rationally concluded that the force used by the defendant was neither reasonable nor necessary to prevent an attack. Further, the jury could have rationally concluded that the defendant, acting in an outburst of anger, was the aggressor and, as such, was not entitled to claim self-defense. Thus, we find that any rational trier of fact could have concluded beyond a reasonable doubt that the defendant did not act in self-defense.
Louisiana law is unclear as to who has the burden of proving self-defense in a non-homicide case, and what the burden is. In previous cases, this Court has analyzed the evidence under both standards of review, that is whether the defendant proved self-defense by a preponderance of the evidence or whether the State proved beyond a reasonable doubt that the defendant did not act in self-defense. Similar to prior cases, herein we need not decide the issue of who has the self-defense burden because under either standard the evidence established the defendant did not act in self-defense. Mollerberg , 260 So.3d at 605-06.
An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Mollerberg , 260 So.3d at 608. The defendant armed himself with a gun over a verbal dispute and used it to scare Andrews in a manner that would, and did, arouse apprehension of bodily harm. While the defendant initially denied pointing the gun at Andrews, he then admitted the gun was pointed in Andrews's direction, and further admitted to threatening to beat and shoot Andrews. Additionally, all other eyewitnesses, including Andrews, Mestayer, and Gleason, unequivocally stated that the defendant pointed the gun directly at Andrews. Andrews was aware that the gun was loaded and cocked, and the defendant threatened to shoot him, resulting in Andrews's reasonable apprehension and fear. Viewing the evidence in the light most favorable to the prosecution, we find that based on the record before us, a rational trier of fact could have found that the State proved beyond a reasonable doubt all of the elements of aggravated assault with a firearm. Accordingly, the assignment of error lacks merit.
CONVICTION AND SENTENCE AFFIRMED.
GREENE, J., dissenting.
I respectfully dissent from the majority's affirmance of Mr. Morrison's conviction in this case. The record shows that, after being hit by a two-ounce plastic wiffleball during a recreational game of pickleball, Mr. Andrews erratically and unreasonably reacted by prohibiting Mr. Morrison from leaving the pickleball court, stepping in front of him as he tried to leave the court, corralling him, insisting that Mr. Morrison play with him, and aggressively taunting Mr. Morrison, eventually carrying that aggression into the parking lot. According to Mr. Morrison, Mr. Andrews badgered him by repeatedly asking him, "What you got?" and followed him to Mr. Morrison's vehicle after Mr. Morrison told him not to follow him.
Aggravated assault with a firearm requires that the victim be in reasonable apprehension of receiving a battery. See La. R.S. 14:36. What is telling in this case is that Mr. Andrews (who testified that a two-ounce pickleball hurt when he was hit with it during a recreational game of pickleball) did not immediately dial 911 or even call the sheriff's office or the police department. Instead, he called a personal friend who was a police officer and asked this friend what he should do. After his friend advised him to report the incident, Mr. Andrews apparently waited three days before doing so. What is also telling is that the other witnesses who had been involved in the game immediately preceding the incident did not call 911, and, according to at least one witness, continued to play pickleball with other players after the incident. Further, and also telling, is that Mr. Andrews did not immediately leave when he had ample opportunity to do so. Mr.
Andrews did not leave when Mr. Morrison put the firearm down and moved away from it. In fact, Mr. Morrison turned his back on Mr. Andrews after he put the gun down. If Mr. Andrews was in apprehension of receiving a battery, he would have immediately got in his vehicle and left. Instead, he remained there.
In short, Mr. Andrews was the bully. He was at least 12 years younger than the 68 year old Mr. Morrison and 50 to 60 pounds heavier. Mr. Andrews was the instigator on the pickleball court and after he unreasonably reacted to getting hit by the pickleball, he bullied Mr. Morrison. Our society does not favor bullies, and neither should our laws or a jury.
I think Mr. Morrison reasonably believed that Mr. Andrews was going to harm him and retrieved a gun from his vehicle only to protect himself from Mr. Andrews' increasingly erratic and aggressive behavior. Thus, I also think Mr. Morrison proved he acted in self-defense, and the State failed to prove beyond a reasonable doubt that he is guilty of aggravated assault with a firearm upon Mr. Andrews.