Judgment rendered January 15, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,235-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
DUSTIN CHARLES Appellant ESCHENBACH
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 355,800
Honorable Katherine C. Dorroh, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Peggy J. Sullivan
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
NANCY F. BERGER-SCHNEIDER JASON W. WALTMAN RICHARD S. FEINBERG Assistant District Attorneys
Before PITMAN, GARRETT, and McCALLUM, JJ. PITMAN, J.
Defendant Dustin Charles Eschenbach was found guilty as charged of
aggravated battery and attempted second degree murder. He was sentenced
to 8 years at hard labor for the aggravated battery conviction and 25 years at
hard labor, without benefit of probation, parole or suspension of sentence for
the attempted second degree murder conviction. He now challenges the
constitutionality of his sentences on appeal. For the following reasons, we
affirm his convictions and sentences.
FACTS
On February 16, 2018, Kimberly Michelle Wright and her boyfriend,
Luther Allen Meshell, were stabbed multiple times by Defendant, who is
Wright’s adult son. Defendant was arrested and charged by bill of
information with committing aggravated battery against Meshell, in
violation of La. R.S. 14:34, and attempted second degree murder against
Wright, in violation of La. R.S. 14:30.1 and 14:27. He pled not guilty. On
March 11, 2019, a 12-person jury trial commenced with the following
testimony and evidence.
Wright and Meshell testified that they lived together in Caddo Parish
with Wright’s mother and Defendant. Around 5:00 p.m. on February 16,
2018, as they were leaving the home to have dinner, Defendant said to
Wright, “Tonight’s your night.” Wright found his comment to be
threatening, but dismissed it as Defendant “talking crazy.” When asked if
she thought something was going to happen later, she answered, “Not
nothing like what happened.” She testified that she and her son argued a lot
and he had anger issues, but they had never had any physical confrontations. When Wright and Meshell returned home around 7:00 p.m., all the
interior lights were on, the window blinds were raised and Defendant was
standing in the kitchen. No words were exchanged as Meshell proceeded to
the bedroom and Wright turned around to lock the front door. As she turned
around, Defendant stabbed her in the neck with a steak knife. She screamed
for help as he continued stabbing her in the head, upper arm and chest.
Meshell returned and fought to get Defendant off of her. At some point in
the struggle, Wright’s finger was nearly severed by the steak knife and the
knife handle was broken off. Once Meshell was able to free Wright from
her son’s attack, she ran to the bathroom, where she called 911 and then
applied towels to the spray of arterial blood coming from her neck. The
recording of Wright’s 911 call was played for the jury.
Meshell and Defendant continued to struggle. Defendant stabbed at
Meshell’s head, upper shoulder and arm, and Meshell struck blows to
Defendant’s face and body. Only when Meshell threatened to gouge out his
eye did Defendant stop and run out of the house. Meshell called 911 and
grabbed a flashlight to help responders find the home in the dark.
Meshell testified that he, Wright and Defendant had been living
together without any major conflicts or physical fights for one to two years;
and while Defendant and Wright argued over “typical stuff,” he had never
been concerned that Defendant would be violent. He stated he had no idea
what caused Defendant’s behavior.
Wright testified that although Defendant appeared angry all the time
and displayed hate for her, they had never had any physical altercations, and
she did not have any expectation that Defendant would attack her. She
stated that Defendant did not say anything before or during his attack on her. 2 Meshell was treated at the scene for stab wounds to his arms and
shoulder and cuts to his head. Wright’s wounds were more serious and
included an almost two-inch deep cut to her neck, a badly cut jugular vein, a
collapsed lung and an almost severed finger.
Captain Adam Hall, a paramedic with Caddo Parish Fire District
Number Four, testified that upon responding to the 911 call, he found
Wright barely conscious and bleeding uncontrollably from her neck. He
stated that the amount of blood at the scene was horrific and that in 22 years,
he had never seen so much blood. He estimated that Wright had lost almost
two liters of blood when he arrived. He testified that the bright, red blood
spurting everywhere indicated that Wright had a very serious neck wound,
and he believed she was on the verge of dying as he struggled to control the
bleeding and get her to the hospital.
Deputies Chris Stafford, Matthew Henry and Mark McLaughlin, of
the Caddo Parish Sheriff’s Department, also responded to the crime scene.
All three officers testified that Defendant had blood all over him, but that the
amount was inconsistent with his visible wounds. Dep. Stafford testified
that as they drove the street attempting to find the address, Wright’s
boyfriend ran in front of his patrol car and told him that Defendant had run
down the street and that he was wearing dark clothing. Soon thereafter, the
dispatcher called over the radio and advised that Defendant was calling 911
claiming that he had been “jumped.” The dispatcher directed Dep. Stafford
to a house across the street and two doors down from the scene of the
incident where he found Defendant sitting on the front porch. He read
Defendant his Miranda rights, noticed that his speech was slurred, searched
3 him for a weapon and placed him in the back of the patrol car. He then
transported Defendant to the sheriff’s substation.
Deputy Henry was with Dep. Stafford the night of the incident. He
stated that Dep. Stafford was unable to find a weapon on Defendant’s
person, even though Defendant told them he had a box cutter. He searched
the area between the house where the incident took place and where
Defendant was located, but failed to find a weapon. He set up crime scene
tape and started a log, noting everyone who entered and exited the crime
scene. He testified that he entered the home where the incident took place
and that the hallway leading from the living room where the stabbing
occurred to the bathroom where Wright was found was covered in more
blood than he had ever seen in his life. Blood covered everything along the
floor and walls.
Corp. McLaughlin testified that he was the third sheriff’s unit to arrive
at the scene. He met Meshell on the porch and noticed that he had cuts and
puncture wounds to his head, his left shoulder and left arm. As the
paramedics brought Wright out of the house, he saw that she was covered in
blood and appeared unconscious. He stated that while he was there, crime
scene investigator Officer Ti’a Moore-King and Detective Keith Fox arrived
at the scene.
Deputy Kevin Calhoun testified that while he and Defendant were at
the sheriff’s substation in an interview room, Defendant informed him that
he had a box cutter in one of his jacket pockets and asked him to remove it.
He removed a box cutter from Defendant’s jacket pocket and turned it in to
the crime scene investigator.
4 Ofc. Ti’a Moore-King of the Caddo Parish Sheriff’s Office testified
that there were blood splatters outside the home in the driveway, on a car
and leading up to the porch on the stairs. She entered the home and
recovered a bloody broken knife handle by the front door and a bloody
broken knife blade in the hallway. She stated that her numerous crime scene
photographs show that the hallway and bathroom were saturated with blood.
She also presented photographs of the lacerations and stab wounds that
Meshell sustained to his head, left shoulder and left arm. Post-surgery
photographs of Wright’s injuries were introduced and included pictures of
the trauma to her almost-severed finger and her head.
Detective Keith Fox of the Caddo Parish Sheriff’s Office testified
about his interviews with Defendant, Wright and Meshell concerning the
events that night.
The state rested. After discussion with Defendant regarding his rights
to testify and remain silent, he exercised his constitutional right to remain
silent. The defense called no witnesses and rested.
In closing, the state argued that Defendant was guilty as charged on
both counts of aggravated battery and attempted second degree murder
because he repeatedly stabbed Wright and Meshell with the knife. It stated
that Defendant demonstrated specific intent to kill his mother by stabbing
her in the neck and head multiple times, causing her life-threatening injuries.
The defense argued that a responsive verdict for attempted
manslaughter would be more appropriate than attempted second degree
murder because Defendant clearly acted in anger or passion. Additionally, it
argued that because the knife blade was broken off during the attack, it was
not clear that Meshell was actually stabbed with the knife blade or just the 5 knife handle; and, therefore, there was no evidence beyond a reasonable
doubt that the offense against Meshell would count as “aggravated.” In
rebuttal, the state argued that attempted manslaughter was inappropriate
because there was no evidence of sudden passion or heat of blood caused by
a provocation sufficient to deprive an average person of self-control or cool
reflection. Instead, Defendant waited over two hours for Wright and
Meshell to return home from dinner before attacking them.
On March 13, 2019, the jury returned a unanimous verdict of guilty as
charged on both counts. On March 20, 2019, Defendant appeared before the
trial court on his motion for post-verdict judgment of acquittal and for
sentencing. It denied his motion for post-judgment verdict of acquittal,
finding that all essential elements of both offenses were proven beyond a
reasonable doubt. The defense waived sentencing delays, and the trial court
proceeded with sentencing.
Defendant made a statement that he knew what he did was wrong, but
that he did it for a reason — out of fear. Defendant then said, “Please, don’t
mess me up. Give me another chance at life.”
The trial court stated the factual basis for the convictions — that
Defendant stabbed his mother, cutting a major blood vessel in her neck, and
he stabbed Meshell, who was trying to help Wright. It advised Defendant of
the potential sentencing ranges for both convictions and of the time delays to
seek an appeal and post-conviction relief.
After reviewing the sentencing guidelines set forth in La. C. Cr. P.
art. 894.1, the trial court found the following aggravating factors were
applicable in this matter. Defendant used actual violence and a dangerous
weapon in a brutal attack against the victims. His conduct manifested 6 deliberate cruelty to the victims and resulted in significant permanent injury
and economic loss. It further found that Defendant’s attack on his mother in
this “family violence situation” also constituted an aggravating factor,
stating that the offenses were tragic, horrific, shocking and inconceivable.
In mitigation, the trial court noted that Defendant was young and had
no history of criminal activity.
For the conviction of aggravated battery, the trial court sentenced
Defendant to serve 8 years at hard labor. For the conviction of attempted
second degree murder, it sentenced him to serve 25 years at hard labor,
without benefit of probation, parole or suspension of sentence. He was also
sentenced to pay court costs and a $250 fine to the indigent defender’s
board. The sentences were ordered to run concurrently. Additionally, it
recommended Defendant for any available treatment and counseling for
these convictions, which it designated as crimes of violence.
On March 22, 2019, Defendant filed a motion to reconsider sentence
on grounds that the sentences imposed were constitutionally excessive and
that the reasons given by the trial court were inadequate to support the
severity of the sentences imposed. He also asserted that the trial court did
not consider that he acted under strong provocation with substantial grounds
to excuse or justify his criminal conduct and that he did not contemplate that
his criminal conduct would cause serious harm. He also complained that the
trial court did not consider that his conduct was unlikely to recur and he was
likely to respond to probation. He contended that both sentences were
excessive and that a lesser sentence would better serve the ends of justice.
The trial court denied Defendant’s motion on March 26, 2019, finding
that it lacked merit. It noted that it had specifically addressed the 7 aggravating and mitigating circumstances regarding Defendant’s conduct
and that for both convictions, the sentence imposed was less than the
maximum. Defendant’s motion for appeal, filed March 25, 2019, was
granted.
DISCUSSION
Defendant asserts that the trial court erred by imposing
constitutionally excessive sentences, failing to articulate an adequate basis
for his sentences and denying his motion to reconsider sentence.
Specifically, Defendant contends that because he has no prior criminal
history, the record does not support the trial court’s conclusion that there
was an undue risk that he would commit another crime if sentenced to
probation or a suspended sentence. He also contends that because he was a
19-year-old first offender, the record does not support the trial court’s
conclusion that he needed corrective treatment by incarceration.
Defendant argues that the aggravating circumstances listed by the trial
court would be present in every crime of this nature, which he believes
renders the “aggravating circumstances” as not aggravating. Furthermore,
he complains that the trial court did not ask him what he meant when he said
that he committed the crimes for a reason — out of fear. Additionally, he
asserts that the trial court failed to order a presentence investigation report
and failed to garner any information about his history, mental health or
family situation. Absent this information, he contends that the trial court
could not particularize the sentences to him and the circumstances of his
offenses.
In opposition, the state argues that Defendant was ineligible for a
suspended sentence and that the record shows that the trial court sufficiently 8 addressed both aggravating and mitigating factors concerning his conduct
before imposing the sentences. It contends that although Defendant was
young and had no prior criminal history, the sentences imposed were not
excessive because his conduct was deliberately cruel and vicious. It also
pointed out that the trial court sentenced Defendant to less than the
maximum penalty on each count and ordered that the sentences be served
concurrently. Additionally, it noted that Defendant admitted that he knew
his actions were wrong, but gave no apology and showed no remorse.
Battery is the intentional use of force or violence upon the person of
another. La. R.S. 14:33. When committed with a dangerous weapon, the
offense is deemed an aggravated battery. La. R.S. 14:34(A). Whoever
commits an aggravated battery shall be fined not more than $5,000,
imprisoned with or without hard labor for not more than 10 years, or both.
La. R.S. 14:34(B).
Second degree murder includes the killing of a human being when the
offender has a specific intent to kill. La. R.S. 14:30.1(A)(1). Whoever
commits the crime of second degree murder shall be punished by life
imprisonment at hard labor without benefit of parole, probation or
suspension of sentence. La. R.S. 14:30.1(B).
Any person who, having a specific intent to commit a crime, does or
omits an act for the purpose of and tending directly toward the
accomplishing of his object is guilty of an attempt to commit the offense
intended; and it shall be immaterial whether, under the circumstances, he
would have actually accomplished his purpose. La. R.S. 14:27(A). An
attempt to commit second degree murder is punishable by imprisonment at
hard labor for not less than 10, nor more than 50 years, without benefit of 9 parole, probation or suspension of sentence. La. R.S. 14:27(D)(1)(a); La.
R.S. 14:30.1.
“Crime of violence” means an offense that has, as an element, the use,
attempted use or threatened use of physical force against the person or
property of another, and that, by its very nature, involves a substantial risk
that physical force against the person or property of another may be used in
the course of committing the offense or an offense that involves the
possession or use of a dangerous weapon. La. R.S. 14:2(B). Defendant’s
two offenses, attempted second degree murder and aggravated battery, are
included in the list of enumerated offenses and attempts that La.
R.S. 14:2(B) deems as “crimes of violence.” As a matter of law, a
conviction for attempted second degree murder shall always be designated
as a crime of violence. La. C. Cr. P. art. 890.3(C). Absent a
recommendation by the district attorney to the contrary, a conviction for
aggravated battery shall also be designated as a crime of violence. La. C.
Cr. P. art. 890.3(B).
La. C. Cr. P. art. 893 provides for a suspended sentence and probation
in certain situations and where allowed by law. A person convicted of
attempted second degree murder is not eligible for a suspended sentence,
which is restricted by La. R.S. 14:30.1 and 14:27. A person convicted of
aggravated battery, with its maximum sentence of 10 years, may be eligible
for a suspended sentence, if the offense was not committed against a family
or household member, as defined by La. R.S. 14:35.3. That statute, which
defines and prohibits domestic abuse battery, provides that “family member”
means spouses, former spouses, parents, children, stepparents, stepchildren,
foster parents and foster children, while “household member” means any 10 person presently or formerly living in the same residence with the offender
and who is involved or has been involved in a sexual or intimate relationship
with the offender, or any child presently or formerly living in the same
residence with the offender, or any child of the offender regardless of where
the child resides.
A trial court is not required to render a suspended sentence or
probation on a first felony conviction and may consider whatever factors and
evidence it deems important to a determination of the best interest of the
public and the defendant. State v. Hollins, 50,069 (La. App. 2 Cir. 8/12/15),
174 So. 3d 710.
An excessive sentence claim is reviewed by examining whether the
trial court adequately considered the guidelines established in La. C. Cr. P.
art. 894.1, and whether the sentence is constitutionally excessive. State v.
Wing, 51,857 (La. App. 2 Cir. 2/28/18), 246 So. 3d 711; State v. Gardner,
46,688 (La. App. 2 Cir. 11/2/11), 77 So. 3d 1052. A review of the
sentencing guidelines does not require a listing of every aggravating or
mitigating circumstance. State v. Boehm, 51,229 (La. App. 2 Cir. 4/5/17),
217 So. 3d 596; State v. Cunningham, 46,664 (La. App. 2 Cir. 11/2/11),
77 So. 3d 477. When a defendant’s motion to reconsider sentence raises
only a claim that the sentence imposed was constitutionally excessive,
review of the sentence on appeal is restricted to that claim. La. C. Cr. P.
art. 881.1; State v. Williams, 51,667 (La. App. 2 Cir. 9/27/17), 245 So. 3d
131; State v. Turner, 50,221 (La. App. 2 Cir. 1/20/16), 186 So. 3d 720, writ
denied, 16-0283 (La. 2/10/17), 215 So. 3d 700.
A sentence violates La. Const. art. I, § 20, if it is grossly out of
proportion to the seriousness of the offense or nothing more than a 11 purposeless and needless infliction of pain and suffering. State v. Dorthey,
623 So. 2d 1276 (La. 1993); State v. Boehm, supra. A sentence is
considered grossly disproportionate if, when the crime and punishment are
viewed in light of the harm done to society, it shocks the sense of justice.
State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166; State v. Wing,
supra.
The court must state for the record the considerations taken into
account and the factual basis for the sentence imposed. La. C. Cr. P.
art. 894.1(C). The court must consider the defendant’s personal history, the
defendant’s criminal record, the seriousness of the offense and the likelihood
of rehabilitation. State v. Boehm, supra. There is no requirement that
specific matters be given any particular weight at sentencing. Id. All
convictions and all prior criminal activity may be considered as well as other
evidence normally excluded from the trial. State v. Platt, 43,708 (La. App.
2 Cir. 12/3/08), 998 So. 2d 864.
The trial court has wide discretion in imposing sentence within the
statutory limits, so absent a showing an abuse of that discretion, a sentence
will not be set aside as excessive. State v. Mandigo, 48,801 (La. App. 2 Cir.
2/26/14), 136 So. 3d 292, writ denied, 14-0630 (La. 10/24/14), 151 So. 3d
600. The reviewing court does not determine whether another sentence
would have been more appropriate, but whether the trial court abused its
discretion. State v. Boehm, supra.
Review of the record discloses no abuse of discretion regarding the
sentences imposed. After reviewing the factual basis for the convictions, the
trial court addressed the aggravating and mitigating circumstances. It
considered Defendant’s youth and lack of prior criminal activity, but also 12 considered the brutality of these unprovoked knife attacks on two unarmed
persons and the life-threatening harm and permanent injury that he caused
his mother.
No information regarding Defendant’s mental health or family history
was provided for the trial court’s consideration at sentencing. In his
statement to the trial court, Defendant acknowledged that he knew his
actions were wrong, yet he still demonstrated no remorse and made no
apology for his actions, only asking that the trial court “not mess him up”
and give him a second chance. Defendant’s only explanation was that he
acted intentionally, stating that he did it for a reason — “out of fear.”
Although Defendant had the opportunity to explain his position further, he
did not.
After considering the above circumstances, the trial court imposed a
sentence of 8 years out of 10 years for the aggravated battery of Meshell,
and a mid-range sentence of 25 years out of 50 years at hard labor for the
attempted second degree murder of his mother, Wright. In each case, the
sentence imposed was less than the maximum allowed, and the trial court
ordered that the sentences be served concurrently, specifically in
consideration of Defendant’s youth and first offender status. As noted
above, Defendant was not eligible for a suspended sentence for his
conviction of attempted second degree murder. It was within the trial
court’s discretion to determine whether a suspended sentence was in the best
interest of the public and Defendant, and it did not find that a suspended
sentence for Defendant’s conviction of aggravated battery upon Meshell was
warranted under the circumstances.
13 The trial court articulated a sufficient basis for both sentences. The
sentences imposed are tailored to the offender and the offenses, are not out
of proportion to the danger and life-threatening injuries caused and do not
shock the sense of justice. There is no showing that these sentences are
constitutionally excessive or that the trial court erred in denying Defendant’s
motion to reconsider sentence.
CONCLUSION
For the foregoing reasons, the convictions and sentences of Defendant
Dustin Charles Eschenbach are affirmed.
AFFIRMED.