NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
KA 17-383
STATE OF LOUISIANA
VERSUS
GREGORY HAMPTON
**********
APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, NO. CR-2016-0029 HONORABLE JOEL GERARD DAVIS, DISTRICT JUDGE
CANDYCE G. PERRET JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.
AMENDED, AND AS AMENDED, AFFIRMED. Annette Fuller Roach Louisiana Appellate Project P. O. Box 1747 Lake Charles, LA 70602-1747 (337) 436-2900 COUNSEL FOR DEFENDANT APPELLANT: Gregory Hampton
Herbert Todd Nesom District Attorney, 33rd JDC Joe Green Assistant District Attorney, 33rd Judicial District Court Steven Sumbler Assistant District Attorney, 33rd Judicial District Court P. O. Box 839 Oberlin, LA 70655 (337) 639-2641 COUNSEL FOR PLAINTIFF APPELLEE: State of Louisiana PERRET, Judge.
Defendant Gregory Hampton was convicted of aggravated second degree
battery, in violation of La.R.S. 14:34.7, and second degree kidnapping, in violation
of La.R.S. 14:44.1(A)(2). For the charge of aggravated second degree battery,
Defendant was sentenced to ten years at hard labor, the first year to be served
without benefit of parole, probation, or suspension of sentence. For the charge of
second degree kidnapping, the trial court sentenced Defendant to twenty-five years
at hard labor, the first two years to be served without benefit of parole, probation,
or suspension of sentence. The sentences will run concurrently with credit for time
served.
Defendant seeks review of his convictions by this court alleging insufficient
evidence and double jeopardy. Defendant also contends the sentence for
aggravated second degree battery with one year to be served without benefit of
parole, probation, or suspension of sentence was improper. For the reasons that
follow, we affirm Defendant‟s conviction, but modify his sentence for aggravated
second degree battery to remove the requirement that one year be served without
benefit of parole, probation, or suspension of sentence.
ISSUES FOR REVIEW
This court must decide:
1. whether the evidence introduced at trial, when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) standard, was insufficient to prove, beyond a reasonable doubt, that Gregory Hampton committed aggravated second degree battery and second degree kidnapping of Caroline Strahan;
2. whether Gregory Hampton‟s convictions for both second degree kidnapping and aggravated second degree battery are in violation of the Fifth Amendment‟s prohibition against double jeopardy; and
3. whether the trial court committed error by ordering one year of the aggravated second degree battery sentence to be served without benefit of probation, parole, or suspension of sentence.
FACTS AND PROCEDURAL HISTORY
Defendant was charged with the November 6, 2015 aggravated second
degree battery and second degree kidnapping of Caroline Strahan. The State
presented the details of the crimes to the jury through Ms. Strahan‟s testimony, as
well as various witnesses including an eyewitness, the detectives involved in the
investigation, and Ms. Strahan‟s medical examiners.
On November 6, 2015, Ms. Strahan was at her cousin‟s house visiting when
Defendant came to the house.1 Ms. Strahan testified Defendant was returning her
phone. Ms. Strahan further testified that she got into Defendant‟s truck to retrieve
her phone, leaving one leg out of the door when Defendant sped off and the truck
door slammed shut.
On the contrary, Defendant testified that Ms. Strahan contacted him asking
for a ride from her cousin‟s house, and that Defendant drove Ms. Strahan to a
location where she purchased crack.
Aside from the differing testimonies regarding how Ms. Strahan came to be
in the vehicle, both the Defendant and the victim testified that while in the car,
Defendant began hitting Ms. Strahan, first with his hands, then with a cane.
Defendant admitted to hitting Ms. Strahan with the cane while in the vehicle. Ms.
1 Previously that day, Ms. Strahan sought a restraining order against Defendant, but the order was not served on Defendant before this incident.
2 Strahan further testified Defendant hit her with a pistol. Defendant denies he had a
gun.
Ms. Strahan testified they stopped at a graveyard, where she got out of the
truck. Defendant continued to hit her, and at some point, hit her with a pistol
again. Ms. Strahan got back in the truck because she felt she “had no choice but to
get back in” because “he just kept hitting [her] and [she] just didn‟t have a choice.”
Defendant and Ms. Strahan continued to Green Oak Road. At this point,
Ms. Strahan decided to jump out of the moving truck. Defendant stopped and
tried, unsuccessfully, to get Ms. Strahan back into the truck. Ms. Strahan believes
she lost consciousness at some point. Around this time, Kyle Touchet, a passerby,
saw Defendant hitting Ms. Strahan on the side of the road. Mr. Touchet decided to
stop and intervene. Ms. Strahan recalls Mr. Touchet arriving and telling Defendant
to leave her alone, but then she passed out immediately after. Mr. Touchet
punched Defendant in the head and returned to his vehicle to copy Defendant‟s
license plate.2 Mr. Touchet watched Defendant make one last attempt to drag Ms.
Strahan back into his truck. However, when Defendant caught a glimpse of police
lights, he took off, leaving Ms. Strahan behind.
Ms. Strahan was taken to the emergency room and treated for a
subarachnoid hemorrhage, and nose and rib fractures. The responding paramedic
recalled Ms. Strahan‟s head was bleeding, and her nose was deformed with
swelling. The paramedic “suspected a possible loss of consciousness” because of
her low Glasgow Coma Score. Ms. Strahan also had road rash on both legs. Her
treating physician, Dr. Celeste Lujan, testified to Ms. Strahan‟s injuries. Dr. Lujan
2 Mr. Touchet‟s daughter was with him in his vehicle. Mr. Touchet moved his car so his daughter could see Defendant‟s license plate and copy it down.
3 specifically noted the victim “had a lot of swelling to her head, to her face . . .” and
“[a] lot of swelling, no lacerations or anything like that” on her head.”
Meanwhile, after fleeing the scene, Defendant contacted his niece, Eva
Horne. Ms. Horne testified at trial. Defendant told Ms. Horne he beat Ms. Strahan
and needed a ride. Defendant was eventually dropped off at Paul Lavan‟s motel
room. Mr. Lavan also testified at trial. Defendant told Mr. Lavan he beat Ms.
Strahan in his truck and that he had a pistol. Defendant told Mr. Lavan he had left
Ms. Strahan for dead after she jumped from the truck. Mr. Lavan drove Defendant
to his truck, which Defendant had left in a parking lot. Defendant was eventually
apprehended running between Speedway Motors and an American Inn.
Defendant‟s truck was found, identified by its license plate, with blood inside the
cab. A cane and bat were found inside Defendant‟s truck. No gun was retrieved
from the Defendant, his truck, or his residence.
The jury found Defendant guilty as charged.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the
court for errors patent on the face of the record. After reviewing the record, we
find there is one error patent, which was also asserted by Appellant on appeal. The
trial court sentenced Appellant to ten years at hard labor, the first year to be served
without benefit of parole, probation, or suspension of sentence for aggravated
second degree battery. However, La.R.S. 14:34.7(C) does not permit the trial court
to require the first year of this sentence be served without benefit of parole,
probation, or suspension of sentence.
At the time Defendant committed this offense, La.R.S. 14:34.7(C) (emphasis
added) provided the following sentence:
4 Whoever commits the crime of aggravated second degree battery shall be fined not more than ten thousand dollars or imprisoned, with or without hard labor, for not more than fifteen years, or both. At least one year of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence if the offender knew or should have known that the victim is an active member of the United States Armed Forces or is a disabled veteran and the aggravated second degree battery was committed because of that status.
There was no evidence that Ms. Strahan was an active service member or disabled
veteran, or that Defendant committed the battery because of that status.
The trial court, therefore, erred in this provision of Defendant‟s sentence.
Accordingly, the trial court‟s sentencing should be modified. “An appellate court
may correct an illegal sentence pursuant to La.Code Crim.P. art. 882.” State v.
Soileau, 13-772, p. 2 (La.App. 3 Cir. 2/12/14), 153 So.3d 1008, 1010, writ denied,
14-0452 (La. 9/26/14), 149 So.3d 261. Because correcting Defendant‟s sentence in
this case does not require sentencing discretion, we will correct it on appeal. Id.;
see also State v. Jacobs, 08-702 (La.App. 3 Cir. 2/4/09), 2 So.3d 1289.
Defendant‟s sentence, as it pertains to requiring one year of Defendant‟s
aggravated second degree battery sentence be served without benefit of parole,
probation, or suspension, is hereby set aside.
LAW AND DISCUSSION
When a defendant raises issues on appeal both as to the sufficiency of the
evidence and as to one or more trial errors, the reviewing court must first resolve
the sufficiency issue. State v. Hearold, 603 So.2d 731 (La.1992). Therefore, we
will first address Defendant‟s sufficiency arguments.
5 Sufficiency of Evidence
Defendant asserts the evidence at trial was insufficient to prove that he
committed aggravated second degree battery and second degree kidnapping of Ms.
Strahan beyond a reasonable doubt.
An insufficient evidence claim is reviewed on appeal under the standard set
forth by Jackson, 443 U.S. 307. “[T]he relevant question 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 beyond a reasonable doubt.”
State v. Ellis, 179 So.3d at 588 (quoting Jackson, 443 U.S. at 319).
It is the fact finder‟s responsibility to weigh the witnesses‟ credibility. Thus,
other than insuring the sufficiency evaluation standard of Jackson, “the appellate
court should not second-guess the credibility determination of the trier of fact,” but
defer to the credibility and evidentiary determinations of the jury. State v.
Lambert, 97-64, p. 5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 727.
When applying the Jackson standard, the Louisiana Supreme Court “has
found that „[w]hen a case involves circumstantial evidence, and the jury reasonably
rejects the hypothesis of innocence presented by [defendant], that hypothesis falls,
and the defendant is guilty unless there is another hypothesis which raises a
reasonable doubt.‟” Ellis, 179 So.3d at 588 (quoting State v. Captville, 448 So.2d
676, 680 (La.1984)).
Aggravated Second Degree Battery
Defendant challenges the sufficiency of evidence presented to convict him
of aggravated second degree battery. First, a battery is “the intentional use of force
or violence upon the person of another . . . .” La.R.S. 14:33. Second, the
6 requirements to be convicted of aggravated second degree battery applicable in this
case are:
A. Aggravated second degree battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury.
B. For purposes of this Section, the following words shall have the following meanings:
....
(3) “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.
La.R.S. 14:34.7.
Defendant admits he intentionally used force or violence upon Ms. Strahan
using a cane: “The only thing that I had was a cane and that‟s what I was hitting
her with. I hit her with that cane . . . . If I would have found a pipe or anything, I
probably would have killed the girl.” Defendant stated he hit Ms. Strahan “[o]n
the face, the head, everywhere . . . .”
Additionally, Ms. Strahan testified Defendant hit her with a pistol.
Testimony from Mr. Lavan, whom Defendant spoke to before Defendant was
apprehended, corroborated Ms. Strahan‟s testimony that Defendant was in
possession of a gun at the time of the offense. Defendant, therefore, admitted to
aggravated battery, i.e. a battery committed with a dangerous weapon in violation
of La.R.S. 14:34.
In order to increase the crime to the second degree, Defendant must have
caused “serious bodily injury,” defined as “unconsciousness, extreme physical pain
or protracted and obvious disfigurement, or protracted loss or impairment of the
7 function of a bodily member, organ, or mental faculty, or a substantial risk of
death.” La.R.S. 14:34.7(A) and (B)(3).
Defendant only challenges whether the State presented sufficient evidence to
satisfy the “substantial bodily injury” element of this offense. Defendant asserts
there was insufficient evidence presented to prove, beyond a reasonable doubt, that
Ms. Strahan‟s subarachnoid hemorrhage and/or loss of consciousness was caused
by Defendant and not by Ms. Strahan jumping from a moving vehicle.
In this incident, the State offered testimony that Ms. Strahan suffered a
subarachnoid hemorrhage. Defendant admitted he continuously hit Ms. Strahan
with a cane in the head. Ms. Strahan‟s diagnosis included an inter-cranial
hemorrhage. Ms. Strahan‟s treating physicians, Dr. Marshall Naquin and Dr.
Lujan, testified a subarachnoid hemorrhage can be a substantial risk of death for
the injured person. Dr. Lujan testified the Ms. Strahan‟s injuries, mostly on the left
side, could have been from being beaten inside the car or from falling. Because the
subarachnoid hemorrhage was a possible life-threatening condition, Ms. Strahan
was transferred to Lafayette General Hospital.
Dr. Naquin and Dr. Michael Horaist treated Ms. Strahan at Lafayette
General Hospital. Dr. Naquin testified Ms. Strahan‟s injuries were consistent with
the trauma she described—being hit in the head with a gun or possibly a cane. Dr.
Horaist further testified Ms. Strahan‟s head injury was consistent with falling from
a moving vehicle or being hit with a pistol. Dr. Naquin confirmed Dr. Lujan‟s
testimony—a subarachnoid hemorrhage can be a substantial risk of death.
Louisiana Revised Statutes 14:34.7(B)(3) also defines “serious bodily
injury” as a loss of consciousness. Ms. Strahan testified she lost consciousness on
Green Oak Road. The responding paramedic recalled Ms. Strahan crying and
8 making incoherent sounds. Her head was bleeding and nose deformed with
swelling. The paramedic “suspected a possible loss of consciousness” because of
her low Glasgow Coma Score. Both Dr. Naquin and Dr. Horaist agreed it was
possible Ms. Strahan lost consciousness prior to arrival at the emergency room.
Finally, “serious bodily injury” also includes “extreme physical pain or
protracted and obvious disfigurement.” La.R.S. 14:34.7. All those who rendered
medical aid to Ms. Strahan testified she complained of a severe headache and
facial pain, and noticed her nose and face were deformed from swelling. The
responding paramedic testified Ms. Strahan was crying when he arrived, in pain all
over, specifically her head, and her nose was bleeding and swelling. He recounted:
Starting with the head she had pain, swelling to the left cheek, tongue and top lip, bleeding from the tongue and nose, swelling and a smashed deformity to the nose. Pain to the neck, tender. Also, pain to the chest, tender to both sides around the rib area. Then on to the abdomen, she had pain, it was tender to palpation. Pelvis was tender, and she had noted pain.
The paramedic only noted road rash on her legs and feet. Based on her injuries and
pulse he suspected Ms. Strahan could have been in shock. Dr. Lujan recalled Ms.
Strahan labeled her pain ten out of ten. Ms. Strahan‟s nose was also deformed,
smashed, and fractured. Ms. Strahan‟s care providers testified her injuries were
consistent with being hit in the head with a gun or possibly a cane.
Considering the evidence introduced at trial and when viewing the evidence
in the light most favorable to the State, we find the evidence was sufficient for a
rational factfinder to find that the element of “serious bodily injury” was proven
beyond a reasonable doubt.
9 Second Degree Kidnapping Louisiana Revised Statutes 14:44.1 enumerates the requirements for second
degree kidnapping. Those pertinent parts are:
A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(3) Physically injured or sexually abused; [or]
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is: (1) The forcible seizing and carrying of any person from one place to another; or (2) The enticing or persuading of any person to go from one place to another; or (3) The imprisoning or forcible secreting of any person.
La.R.S. 14:44.1.
Defendant argues the State did not prove he moved Ms. Strahan from one
place to another. While we disagree, actual movement from one place to another is
not a required element of the offense. State v. Woodberry, 14-476 (La.App. 4 Cir.
6/3/15), 171 So.3d 1082, writ denied, 15-1245 (La. 6/17/16), 192 So.3d 770. The
State need only prove Ms. Strahan was imprisoned or secreted and physically
injured. Id. The statute does not require that the imprisonment exist for any
minimum period of time. Id. Instead, the State only had to prove one act
mentioned in Subsection (B) combined with any one act in Subsection (A).
10 Ms. Strahan admitted she entered Defendant‟s truck voluntarily to retrieve
her phone. However, Ms. Strahan testified she did not anticipate Defendant would
drive away with her in the vehicle. According to the trial testimony, after driving
away, Defendant began hitting Ms. Strahan with his hands, a cane, and a gun. Ms.
Strahan entered Defendant‟s truck a second time at the graveyard. After getting
out of the truck, Defendant continued to beat Ms. Strahan and she believed
Defendant had a gun. Ms. Strahan returned to the vehicle because she felt she had
no choice. After driving some distance to Green Oak Road, Ms. Strahan leapt
from Defendant‟s moving vehicle to escape.
Viewing the evidence in the light most favorable to the prosecution, we
affirm the conviction for second degree kidnapping. Ms. Strahan testified she did
not voluntarily leave with Defendant. Ms. Strahan‟s testimony is supported by her
decision to jump from a moving vehicle in order to escape Defendant.
Additionally, Ms. Strahan suffered physical injuries from the kidnapping.
Accordingly, we find there was sufficient evidence to prove that Defendant
committed aggravated second degree battery and second degree kidnapping and we
now address Defendant‟s second argument.
Double Jeopardy
Defendant also contends that his convictions for aggravated second degree
battery and second degree kidnapping violated his protection against double
jeopardy. According to Defendant, the evidence admitted at trial suggests he was
subjected to multiple punishments for the same course of conduct.
It is unconstitutional to place a person twice in jeopardy of life or limb for
the same offense. State v. Steele, 387 So.2d 1175 (La.1980). “The guarantee
against double jeopardy provides three central constitutional protections” one of
11 which is “protection against multiple punishments for the same offense.” State v.
Brown, 42,188, 42,189, 42,190, p. 38 (La.App. 2 Cir. 9/26/07), 966 So.2d 727,
755. We must determine whether a single or multiple offenses were involved.
The Louisiana Supreme Court has very recently announced that Louisiana
courts “are bound only to apply the standard established by the U.S. Supreme
Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180 (1932) to protect
against double jeopardy[.]” State v. Frank, 16-1160 (La. 10/18/17), -- So.3d --.
Under the Blockburger test, “there is no double jeopardy . . . where each provision
requires proof of an additional distinct element that the other does not.” State v.
Cooley, 11-959, p. 12 (La.App. 3 Cir. 4/4/12), 87 So.3d 285, 295, writ denied, 12-
1008 (La. 10/26/12), 99 So.3d 640. In other words, “a defendant can be convicted
of two offenses arising out of the same criminal incident if each crime contains an
element not found in the other.” Frank, -- So.3d --, (citing State v. Balentine, 47,
858, p. 2 (La.App. 2 Cir. 7/10/13), 119 So.3d 979, 985 (Drew, J., dissenting)).
Applying the Blockburger test to the facts of this case, both offenses for
which Defendant was convicted require proof of an element not included in the
other. Defendant, here, was convicted of aggravated second degree battery, which
includes the intent to inflict serious bodily injury, and second degree kidnapping,
which includes the imprisoning or forcible secreting of a person. La.R.S. 14:34.7
and 14:44.1. Clearly, each of these crimes contains an element not included in the
other, and the element unique to each crime requires proof of facts which the other
crime does not.
Accordingly, convictions for aggravated second degree battery and second
degree kidnapping do not constitute double jeopardy under Blockburger. We find
this assignment of error lacks merit.
12 CONCLUSION
For the foregoing reasons, we find the evidence was sufficient to find
Gregory Hampton guilty of aggravated second degree battery and second degree
kidnapping. The convictions do not constitute double jeopardy under the facts of
this case, and that assignment is without merit. However, the sentence of
aggravated second degree battery does not provide one year be served without
benefit of parole, probation, or suspension under the facts of this case. Therefore,
we modify Defendant Gregory Hampton‟s sentence as it pertains to the aggravated
second degree battery to remove the requirement that one year be served without
benefit of parole, probation, or suspension.
AMENDED, AND AS AMENDED, AFFIRMED. THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. RULE 2-16.3, UNIFORM RULES—COURTS OF APPEAL.