Judgment rendered April 22, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,357-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
ERIC DOMINIC NABORS Appellant
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 13-F3242
Honorable Larry D. Jefferson, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas Lee Harville
ERIC DOMINIC NABORS Pro Se
ROBERT S. TEW Counsel for Appellee District Attorney
ROBERT N. ANDERSON GEARY S. AYCOCK Assistant District Attorneys
Before PITMAN, GARRETT, and STONE, JJ. PITMAN, J.
Defendant Eric Dominic Nabors was convicted of the crime of second
degree murder, a violation of La. R.S. 14:30.1, and was sentenced to life in
prison without parole. He now appeals his sentence as constitutionally
excessive. For the following reasons, Defendant’s conviction and sentence
are affirmed.
FACTS
Defendant was charged with the murder of a two-year-old child,
Jemarion Jackson, who was in Defendant’s care on the day that he died.
Defendant and the child’s mother took him to the hospital where he
presented with severe injuries, was not breathing and had a body
temperature of 86 degrees. The doctors at the hospital attempted to revive
the child for 30 minutes before declaring him dead.
A unanimous jury found Defendant guilty of second degree murder.
The trial court granted Defendant’s motion for post-verdict judgment of
acquittal and modified the jury’s verdict finding him guilty of the responsive
verdict of negligent homicide. Defendant was sentenced to serve five years
at hard labor. The state appealed and this court reversed, vacated the
sentence, reinstated the verdict of guilty of second degree murder and
remanded for sentencing. State v. Nabors, 52,163 (La. App. 2 Cir. 7/19/18),
251 So. 3d 1214, writ denied, 18-1477 (La. 9/21/18), 252 So. 3d 496.
In Nabors, supra, the issue of sufficiency of the evidence was
addressed, and this court found the evidence presented at trial supported
Defendant’s conviction since it was clear he had sole charge of the child on
the night he died, and that while in his care, the child received non-self-
inflicted injuries that killed him. The severity of the child’s injuries alone, a lacerated liver and mesentery, brain swelling and fractured ribs to his back,
suggest they were inflicted, at the very least, through cruelty to a juvenile,
which is sufficient to support a conviction of second degree murder, and
there is no need for this court to review the disturbing underlying facts of
Defendant’s conviction a second time.
Following remand, the trial court then granted Defendant’s motion for
new trial and set the trial for April 22, 2019. The state sought supervisory
review and this court granted the writ, reversed and remanded for
sentencing. The supreme court denied writs. State v. Nabors, 19-0567 (La.
5/28/19), 274 So. 3d 560. On remand, the trial court sentenced Defendant to
the mandatory term of life imprisonment, without benefits, on the conviction
of second degree murder. No motion to reconsider sentence was filed.
DISCUSSION
Defendant’s sole assignment of error challenges his mandatory life
sentence as constitutionally excessive. His argument focuses on the trial
court’s reasoning in granting the motion for post-verdict judgment of
acquittal and motion for new trial in arguing that the life sentence fails to
contemplate reasonable rehabilitation and punishment. Specifically, he
points to the trial court’s opinion that there was no evidence that he
committed a “direct act of cruelty” or inflicted actual physical injury on the
child. The trial court stated that it could not determine exactly when or how
the injuries occurred, nor could it say that the state had proven specific
intent. Defendant contends that the mandatory sentence is excessive
because his case rested on circumstantial rather than direct evidence.
The state, in an exceptionally brief and poignant response, submits
that Defendant is attempting to litigate sufficiency of the evidence a third 2 time by couching it in terms of excessive sentence. Correctly noting that
this court found that the trial court’s reevaluation of the evidence in this case
was grossly erroneous, the state simply argues that the mandatory sentence
in this matter is not shocking to the conscience of society.
Where no motion to reconsider sentence is filed, the defendant is
relegated to a claim of constitutional excessiveness. State v. Mims,
619 So. 2d 1059 (La. 1993); State v. Pittman, 52,027 (La. App. 2 Cir.
4/11/18), 248 So. 3d 573.
Whether a sentence is constitutionally excessive is determined by
considering whether the sentence is grossly out of proportion to the
seriousness of the offense or nothing more than a purposeless infliction of
pain and suffering. La. Const. art. I, § 20; State v. Dorthey, 623 So. 2d 1276
(La. 1993); State v. Lindsey, 50,324 (La. App. 2 Cir. 2/24/16), 189 So. 3d
1104. 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. Id.
It is within the legislature’s prerogative to determine the length of the
sentence imposed for the crimes classified as felonies, and the courts are
charged with applying these punishments unless they are found to be
unconstitutional. State v. Barrett, 51,921 (La. App. 2 Cir. 4/11/18),
247 So. 3d 164, writ denied, 18-0744 (La. 2/18/19), 265 So. 3d 770.
Accordingly, the decision to assess mandatory life sentences is also within
the prerogative of the legislature. Id.
Downward departure from a mandatory minimum sentence may occur
in rare circumstances if the defendant rebuts the presumption of
constitutionality by showing clear and convincing evidence that he is 3 exceptional, namely, that he is a victim of the legislature’s failure to assign
sentences that are meaningfully tailored to the gravity of the offense, the
culpability of the offender and the circumstances of the case. State v.
Chandler, 41,063 (La. App. 2 Cir. 9/8/06), 939 So. 2d 574, writ denied,
06-2554 (La. 5/11/07), 955 So. 2d 1277, citing Dorthey, supra, and State v.
Johnson, 97-1906 (La. 3/4/98), 709 So. 2d 672. The “rare circumstances” in
which a mandated sentence can be altered are even less likely in the case of
a life sentence chosen by the legislature for a single crime, such as
aggravated rape or second degree murder. State v. Chandler, supra. In such
crimes, unlike the mandatory minimum sentence under the habitual offender
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Judgment rendered April 22, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,357-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
ERIC DOMINIC NABORS Appellant
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 13-F3242
Honorable Larry D. Jefferson, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas Lee Harville
ERIC DOMINIC NABORS Pro Se
ROBERT S. TEW Counsel for Appellee District Attorney
ROBERT N. ANDERSON GEARY S. AYCOCK Assistant District Attorneys
Before PITMAN, GARRETT, and STONE, JJ. PITMAN, J.
Defendant Eric Dominic Nabors was convicted of the crime of second
degree murder, a violation of La. R.S. 14:30.1, and was sentenced to life in
prison without parole. He now appeals his sentence as constitutionally
excessive. For the following reasons, Defendant’s conviction and sentence
are affirmed.
FACTS
Defendant was charged with the murder of a two-year-old child,
Jemarion Jackson, who was in Defendant’s care on the day that he died.
Defendant and the child’s mother took him to the hospital where he
presented with severe injuries, was not breathing and had a body
temperature of 86 degrees. The doctors at the hospital attempted to revive
the child for 30 minutes before declaring him dead.
A unanimous jury found Defendant guilty of second degree murder.
The trial court granted Defendant’s motion for post-verdict judgment of
acquittal and modified the jury’s verdict finding him guilty of the responsive
verdict of negligent homicide. Defendant was sentenced to serve five years
at hard labor. The state appealed and this court reversed, vacated the
sentence, reinstated the verdict of guilty of second degree murder and
remanded for sentencing. State v. Nabors, 52,163 (La. App. 2 Cir. 7/19/18),
251 So. 3d 1214, writ denied, 18-1477 (La. 9/21/18), 252 So. 3d 496.
In Nabors, supra, the issue of sufficiency of the evidence was
addressed, and this court found the evidence presented at trial supported
Defendant’s conviction since it was clear he had sole charge of the child on
the night he died, and that while in his care, the child received non-self-
inflicted injuries that killed him. The severity of the child’s injuries alone, a lacerated liver and mesentery, brain swelling and fractured ribs to his back,
suggest they were inflicted, at the very least, through cruelty to a juvenile,
which is sufficient to support a conviction of second degree murder, and
there is no need for this court to review the disturbing underlying facts of
Defendant’s conviction a second time.
Following remand, the trial court then granted Defendant’s motion for
new trial and set the trial for April 22, 2019. The state sought supervisory
review and this court granted the writ, reversed and remanded for
sentencing. The supreme court denied writs. State v. Nabors, 19-0567 (La.
5/28/19), 274 So. 3d 560. On remand, the trial court sentenced Defendant to
the mandatory term of life imprisonment, without benefits, on the conviction
of second degree murder. No motion to reconsider sentence was filed.
DISCUSSION
Defendant’s sole assignment of error challenges his mandatory life
sentence as constitutionally excessive. His argument focuses on the trial
court’s reasoning in granting the motion for post-verdict judgment of
acquittal and motion for new trial in arguing that the life sentence fails to
contemplate reasonable rehabilitation and punishment. Specifically, he
points to the trial court’s opinion that there was no evidence that he
committed a “direct act of cruelty” or inflicted actual physical injury on the
child. The trial court stated that it could not determine exactly when or how
the injuries occurred, nor could it say that the state had proven specific
intent. Defendant contends that the mandatory sentence is excessive
because his case rested on circumstantial rather than direct evidence.
The state, in an exceptionally brief and poignant response, submits
that Defendant is attempting to litigate sufficiency of the evidence a third 2 time by couching it in terms of excessive sentence. Correctly noting that
this court found that the trial court’s reevaluation of the evidence in this case
was grossly erroneous, the state simply argues that the mandatory sentence
in this matter is not shocking to the conscience of society.
Where no motion to reconsider sentence is filed, the defendant is
relegated to a claim of constitutional excessiveness. State v. Mims,
619 So. 2d 1059 (La. 1993); State v. Pittman, 52,027 (La. App. 2 Cir.
4/11/18), 248 So. 3d 573.
Whether a sentence is constitutionally excessive is determined by
considering whether the sentence is grossly out of proportion to the
seriousness of the offense or nothing more than a purposeless infliction of
pain and suffering. La. Const. art. I, § 20; State v. Dorthey, 623 So. 2d 1276
(La. 1993); State v. Lindsey, 50,324 (La. App. 2 Cir. 2/24/16), 189 So. 3d
1104. 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. Id.
It is within the legislature’s prerogative to determine the length of the
sentence imposed for the crimes classified as felonies, and the courts are
charged with applying these punishments unless they are found to be
unconstitutional. State v. Barrett, 51,921 (La. App. 2 Cir. 4/11/18),
247 So. 3d 164, writ denied, 18-0744 (La. 2/18/19), 265 So. 3d 770.
Accordingly, the decision to assess mandatory life sentences is also within
the prerogative of the legislature. Id.
Downward departure from a mandatory minimum sentence may occur
in rare circumstances if the defendant rebuts the presumption of
constitutionality by showing clear and convincing evidence that he is 3 exceptional, namely, that he is a victim of the legislature’s failure to assign
sentences that are meaningfully tailored to the gravity of the offense, the
culpability of the offender and the circumstances of the case. State v.
Chandler, 41,063 (La. App. 2 Cir. 9/8/06), 939 So. 2d 574, writ denied,
06-2554 (La. 5/11/07), 955 So. 2d 1277, citing Dorthey, supra, and State v.
Johnson, 97-1906 (La. 3/4/98), 709 So. 2d 672. The “rare circumstances” in
which a mandated sentence can be altered are even less likely in the case of
a life sentence chosen by the legislature for a single crime, such as
aggravated rape or second degree murder. State v. Chandler, supra. In such
crimes, unlike the mandatory minimum sentence under the habitual offender
law, the “tailoring” of the sentence by the legislature was for life because the
culpability of offenders and the gravity of the offenses are so great. Id.
Likewise, where there is a mandatory sentence, there is no need for
the trial court to justify, under La. C. Cr. P. art. 894.1, a sentence that it is
legally required to impose. State v. Barrett, supra. It would be an exercise
in futility for the trial court to discuss the factors enumerated in that article
when the court has no discretion in sentencing the defendant. State v.
Robinson, 47,437 (La. App. 2 Cir. 11/14/12), 106 So. 3d 1028, writ denied,
12-2658 (La. 5/17/13), 117 So. 3d 918.
La. R.S. 14:30.1(B) mandates a life sentence for second degree
murder. The trial court was not required to particularize or tailor the
sentence to the defendant or to comply with La. C. Cr. P. art. 894.1. In
addition, it was Defendant’s burden to show, by clear and convincing
evidence, that he was the exceptional defendant for whom downward
departure from the mandatory minimum sentence was justified. Defendant
failed to articulate any reason why his circumstances justify a departure from 4 the mandatory life sentence. The mandatory life sentence does not shock the
sense of justice for the brutal killing of this two-year-old child.
Accordingly, this assignment of error lacks merit.
CONCLUSION
For the forgoing reasons, the conviction and mandatory life sentence
of Defendant Eric Dominic Nabors are affirmed.
AFFIRMED.