State of Louisiana v. Anthony Dewayne Cyriak

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-591

STATE OF LOUISIANA

VERSUS

ANTHONY DEWAYNE CYRIAK

**********

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 289,576 HONORABLE THOMAS M. YEAGER, DISTRICT JUDGE

**********

MARC T. AMY JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy and Billy Howard Ezell, Judges.

AFFIRMED.

James C. Downs District Attorney 701 Murray Street Alexandria, LA 71301 (318) 473-6650 COUNSEL FOR APPELLEE: State of Louisiana

Mark O. Foster Louisiana Appellate Project Post Office Box 2057 Natchitoches, LA 71457 (318) 572-5693 COUNSEL FOR DEFENDANT/APPELLANT: Anthony Dewayne Cyriak

Anthony Dewayne Cyriak Winnfield Correctional Center Post Office Box 1260 Winnfield, LA 71483 AMY, Judge.

The defendant was convicted of aggravated battery and sentenced to twenty

years imprisonment at hard labor. The defendant appeals, challenging the evidence

used to convict him and questioning his sentence as excessive. For the following

reasons, we affirm.

Factual and Procedural Background

The events at issue in this case occurred on the evening of September 3, 2007,

and into the early morning hours of September 4, 2007, in Rapides Parish. According

to Michael Dwayne Johnson’s trial testimony, he met up with a friend to buy some

drugs from Anthony Dewayne Cyriak. Mr. Johnson alleges that, after buying the

drugs, his friend convinced him to let Mr. Cyriak borrow his car for a couple of hours.

Mr. Johnson related that, after waiting with his friend for a long period of time, he

decided to go walking to look for Mr. Cyriak and retrieve his vehicle. He testified

that he saw the vehicle, empty, stopped at a stop sign, and he got into the passenger

seat and waited for Mr. Cyriak. Mr. Johnson alleged that Mr. Cyriak got into the

vehicle, pulled out a gun, and started demanding money from him. Mr. Johnson

stated as follows:

Well, he pulled a gun on me, so I told him, well, we can like ride around until we, until the bank [sic] open and I will try to go and get some money, but I knew I didn’t have no money in no bank, you know. I just knew if I go to the bank I could call the police on him - - tell the people to call the police on him.

Mr. Johnson testified that the two men went to the bank, however it was closed. Mr.

Johnson related that, at this point, Mr. Cyriak let him drive the car, and the two men

ended up on Old Boyce Road in Alexandria, Louisiana. While on Old Boyce Road,

it is alleged that the two men began struggling over the gun, Mr. Cyriak shot Mr.

Johnson several times, and Mr. Johnson came to rest on the side of the road. Ms. Kimberly Howell testified that, in the early morning hours of September

4, 2007, she heard gunshots outside of her home on Old Boyce Road. She related

that, as she reversed her car out of the driveway, she saw Mr. Johnson walking down

the middle of Old Boyce Road. After realizing that Mr. Johnson needed medical

assistance, she called 911 and Mr. Johnson was transported to the local hospital. At

the hospital, Mr. Johnson was treated for gunshot injuries to his leg and was later

released.

On January 29, 2008, Mr. Cyriak was charged by bill of information with

attempted second degree murder, a violation of La.R.S. 14:27 and 14:30.1; second

degree kidnapping, a violation of La.R.S. 14:44.1; and unauthorized use of a motor

vehicle having a value in excess of one thousand dollars, a violation of La.R.S. 14:68.

The defendant pled not guilty to the three charges.

After trial, on August 12, 2009, the jury found the defendant guilty of the

responsive verdict of aggravated battery and found the defendant not guilty on the

second degree kidnapping and unauthorized use of a motor vehicle charges.

On August 18, 2009, the defendant was charged by bill of information as a

habitual offender. On October 16, 2009, the defendant was adjudicated as a second

felony offender.1 He was subsequently sentenced to serve twenty years imprisonment

at hard labor.

The defendant appeals, asserting two assignments of error. In a counsel-filed

brief, the defendant asserts that the trial court violated his constitutional right to a jury

trial when it used the two offenses on which the jury found him not guilty as

1 In the habitual offender trial transcript, it reads that the defendant pled guilty to being a habitual offender, however, the transcript also indicates that the trial court took evidence on that matter. We note, that the court minutes state on August 21, 2009, the defendant pled not guilty.

2 aggravating factors when imposing the maximum sentence, resulting in an excessive

sentence. In a pro-se brief, the defendant contends that there was insufficient

evidence to convict him of aggravated battery.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find that there

are no errors patent.

Pro-Se Assignment of Error

In his pro-se assignment of error, the defendant contends that there was

insufficient evidence to support his aggravated battery conviction.

In reviewing the sufficiency of the evidence to support a conviction, a

reviewing court is controlled by the standard enunciated by the United States

Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781(1979). State v.

Tate, 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct.

1604 (2004). Under the Jackson standard, the reviewing court must determine

whether the evidence, when viewed in a light most favorable to the prosecution, was

sufficient to convince a rational trier of fact that all of the elements of the crime had

been proved beyond a reasonable doubt. Id.

Aggravated battery is defined in La.R.S. 14:34 as “a battery committed with a

dangerous weapon.” Battery is defined, in part, as “the intentional use of force or

violence upon the person of another[.]” La.R.S. 14:33.

The defendant contends that there are several problems with the evidence in

this case which support a finding of insufficient evidence to support his conviction.

3 First, the defendant asserts that there was no direct or physical evidence linking him

to the instant crime. He contends that the State relied only on the testimony of Mr.

Johnson, an alleged drug addict who admitted to being on drugs at the time of the

instant crime and on pain medication during his statement to police. He also asserts

that he was identified by Mr. Johnson only after a highly suggestive police “lineup.”

Lastly, the defendant asserts that in his testimony, Mr. Johnson stated that during the

struggle for the gun, he bit the perpetrator. The defendant notes, however, that no one

testified that the defendant suffered from bite marks after the alleged crime took

place.

The record reveals that Mr. Johnson testified that he used drugs between 9:00

p.m. and 10:00 p.m. on the night preceding the early morning shooting. He further

related that he only felt the effects of the drugs for about fifteen minutes and did not

feel the effects when he had the altercation with the defendant. Mr. Johnson also

testified that at the time he gave his statement to police he was taking “pain

treatment.” He did not explain what was meant by the term “pain treatment.”

However, the jury was fully aware of Mr. Johnson’s drug use and chose to credit his

testimony, specifically that the defendant shot Mr. Johnson several times in the leg.

“The credibility of the witness is a matter of weight of the evidence, not sufficiency,

and determination of the credibility is left to the trier-of-fact’s sound discretion and

will not be re-weighed on appeal.” State v. Jeter, 09-1004, p. 3 (La.App. 3 Cir.

4/7/10), 33 So.3d 1041, 1043-44. As such, despite the defendant’s assertions calling

into question Mr. Johnson’s credibility, it is clear that the jury chose to believe Mr.

Johnson’s testimony and that determination will not be second-guessed on appeal by

this court.

4 Further, while the defendant complains about a suggestive photographic

lineup, he did not file a motion to suppress and no objection was lodged in the record

regarding Mr. Johnson’s identification of the defendant. Thus, the issue of the

alleged suggestive nature of the lineup is not properly before this court on review.

State v. Boyance, 05-1068 (La.App. 3 Cir. 3/1/06), 924 So.2d 437, writ denied, 06-

1285 (La. 11/22/06), 942 So.2d 553.

This assignment of error lacks merit.

Excessive Sentence

In his next assignment of error, the defendant contends that the trial court

violated his constitutional right to a jury when it used the two offenses for which the

jury found him not guilty as aggravating factors when imposing the maximum

sentence, resulting in an excessive sentence.

In State v. Fontenot, 09-1044, pp. 4-6 (La.App. 3 Cir. 5/12/10), 38 So.3d 1122,

1125-26, a panel of this court stated:

The Eighth Amendment to the United States Constitution and La. Const. art. 1, § 20 prohibit the imposition of cruel or excessive punishment, and the law is well settled with regard to what constitutes cruel or excessive punishment. An excessive sentence is a penalty that is so grossly disproportionate to the severity of the crime that it shocks our sense of justice or it makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). Additionally, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, the reviewing court should not deem as excessive a sentence imposed within statutory limits. State v. Howard, 414 So.2d 1210 (La.1982); State v. Pyke, 95- 919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. Still, a sentence that falls within the statutory limits may be excessive under the particular circumstances of a given case. State v. Sepulvado, 367 So.2d 762 (La.1979). Additionally, “[m]aximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02- 490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for the reviewing court to consider is not whether another sentence would be more appropriate, but rather whether the trial

5 court abused its broad discretion in sentencing a defendant. 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).

Louisiana Code of Criminal Procedure Article 894.1(A) provides that the trial court should impose an imprisonment sentence if any of the following are established by the record:

(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime.

(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution.

(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.

Additionally, the trial court must “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” La.Code Crim.P. art. 894.1(C). However, in complying with this article, the trial court “need not articulate every circumstance or read through a checklist of items.” State v. Anderson, 95-1688, p. 4 (La.App. 3 Cir. 5/8/96), 677 So.2d 480, 483.

In brief, the defendant argues as follows:

if a jury finds a defendant not guilty of specific crimes, can a trial court, in sentencing the defendant on another crime, make a specific finding in opposition to the jury’s finding of not guilty, as a basis for enhancing the defendant’s sentence. This is exactly what the trial court did to Mr. Cyriak. To justify the maximum sentence, it specifically found Mr. Cyriak committed the crimes for which he was acquitted.

In determining what sentence to impose, the trial court first found several

aggravating factors, as follows:

As a aggravating factor, I’m going to find that [the defendant’s] conduct during the commission of the defense [sic] manifested delivered [sic] cruelty to the victim. The facts in this case was [sic] that the defendant, Mr. Cyriak, shot the victim in his leg with a firearm which caused the defendant [sic] to lose quite a bit of blood and to become unconscious on Old Boyce Road and basically, his life was saved by the lady that stopped and called an ambulance for him, uh, got him some medical care.

6 Further, the trial court found aggravating the fact that the defendant, in the

commission of the offense, used threats of or actual violence, used a dangerous

weapon, a firearm, and endangered human life. Further, the trial court took notice of

the defendant’s criminal history ranging from the age of eight to the present.2

Additionally, at sentencing, the State informed the trial court that, at the time

of this offense, the defendant was on parole from an earlier offense. The trial court

stated that it found no mitigating factors. Further, the trial court noted information

relating to the defendant’s personal history: his birth date, that he was unmarried, that

he had two children, and was not employed.

After reviewing the defendant’s criminal history and finding several

aggravating factors, the trial court stated:

I find that his . . . behavior with the victim in this matter . . . was cruel, it was dangerous, and there was absolutely no reason for any of that behavior. I believe that Mr. Cyriak kidnapped [the victim], transported him somewhere for him to receive money from an ATM and then after that, shot Mr. Johnson in the leg, which caused a very serious injury.

Based upon Mr. Cyriak’s record, and the aggravating factors that are stated for the record, and the mitigating factors that are stated for the

2 At the sentencing hearing, the trial court reviewed the defendant’s juvenile record and found the following arrests: 1) 1996, at the age of eight, for criminal mischief; 2) July 11, 2002, for criminal damage; 3) July 2002, for theft; 4) August 2, 2002, at the age of thirteen, for nine counts of criminal damage; 5) January 19, 2003, for improper or switched license plate; 6) January 20, 2003, for violation of a city ordinance; 7) March 10, 2003, for two counts of simple battery; 8) March 24, 2003, for aggravated battery; 9) July 8, 2003, for simple criminal damage to property; 10) June 23, 2004, for failing to leave a premise after being forbidden and three other charges; and 11) March 13, 2005, for three counts of aggravated assault for shooting into a residence.

The trial court discussed the defendant’s adult record as follows: 1) arrested in 2006 for resisting an officer and felony possession of CDS IV; 2) arrested on January 21, 2006, for “disturbing the peace, fighting, remaining on the premises”; 3) charged on April 24, 2006, for obstruction of justice; 4) arrested on April 24, 2006, for resisting an officer, trespassing, and possession of marijuana and was convicted; 5) arrested on July 12, 2006, for possession with intent to distribute CDS II and was convicted on March 11, 2009; and 6) arrested on August 25, 2006, for unauthorized use of a motor vehicle.

7 record, I will order that he serve that 20 years at hard labor with the Department of Corrections as a second felony offender.

We find after a review of the record, that the trial court thoroughly reviewed

the defendant’s criminal history, the defendant’s background, and the nature of the

offense at issue before imposing the present sentence. We find that the defendant’s

assertion that the trial court considered its aquittal of the kidnapping charge “too

remote [a possibility] to justify setting aside a sentence otherwise fully supported by

the record.” State v. Myles, 94-217, p. 3 (La. 6/3/94), 638 So.2d 218, 219.

The defendant was convicted of aggravated battery and adjudicated a second

felony offender. The applicable sentencing range is five to twenty years. La.R.S.

14:34; La.R.S. 15:529.1. The defendant was sentenced to serve twenty years at hard

labor, the maximum sentence. In the instant case, in sentencing the defendant, the

trial court thoroughly considered the defendant’s background and nature of the

offense. The defendant shot Mr. Johnson in the leg, causing him to lose a substantial

amount of blood and become unconscious on the side of the road. The defendant also

had an extensive arrest record, including a prior felony conviction for possession with

intent to distribute a schedule two controlled dangerous substance. The trial court

also considered that the defendant’s probation for that prior offense was revoked and,

when he was later paroled, he committed the current offense after being out of prison

for less than four months.

We find that based upon the defendant’s criminal history, the nature of the

offense, the defendant’s sentence is not excessive.

This assignment of error lacks merit.

8 DECREE

For the foregoing reasons, the defendant’s conviction and sentence are

affirmed.

AFFIRMED.