Judgment rendered June 30, 2021. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,975-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
JOHN WALKER Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 355071
Honorable Katherine Clark Dorroh, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas Lee Harville
JAMES EDWARD STEWART, SR. Counsel for Appellee District Attorney
JASON WAYNE WALTMAN TRINICIA S. LEONARD Assistant District Attorneys
Before COX, STEPHENS, and ROBINSON, JJ.
STEPHENS, J., dissents with written reasons. ROBINSON, J.
After waiving his right to a jury trial, John Walker was convicted as
charged of second degree battery in violation of La. R.S. 14:34.1. Walker
was sentenced to five years at hard labor, which was suspended, and placed
on three years of probation. He was also ordered to pay court costs and a
$50.00 fee to the public defender’s office; he would be sentenced to 30 days
in jail for failing to pay.
Walker has appealed his conviction. We affirm his conviction.
However, because his sentence is illegally lenient, we vacate his sentence
and remand the matter to the trial court for resentencing.
FACTS
Walker was charged by bill of information with second degree battery
in violation of La. R.S. 14:34.1. More specifically, he was charged with one
count of committing a battery and intentionally inflicting serious bodily
injury on Terrence Morris without his consent.
A bench trial was held on July 23, 2020. Morris was the first witness
called by the State. He testified that on July 20, 2017, he had been hanging
out since that morning at the home of Keith Felton (“Keith”) on Merwin
Street in Shreveport. Morris’s home, on Emery Street, was directly behind
Keith’s home. A trail ran from one block to the other next to their homes.
Morris recalled that at around 9:00 or 10:00 that evening, Walker
arrived and started talking to Keith. After their conversation was finished,
Morris began talking to Walker about helping him obtain a job. Morris
thought Walker was becoming frustrated by their discussion about his
employment prospects. According to Morris, Walker jokingly demonstrated
what he would do if they ever fought. Morris described himself as very intoxicated on July 20. He estimated
that he drank more than five 24-ounce beers that day. Morris was weaving
back and forth because of his state, which he thought Walker noticed. When
Morris asked Walker for some of his beer, Walker gave him $2 to buy his
own at a nearby store. They had a few more words and then Morris left for
the store. It was then around 10:00 according to Morris.
As Morris began walking down the street to the store, he looked back
to see Walker remove his shirt and change his shoes while standing next to
his vehicle. Morris testified that after he had walked past five houses to
reach near the end of the block, Walker came after him and began hitting
him. Morris estimated that he was hit 40 times, including to the face. The
fight, which occurred entirely in the street, was stopped by Keith. Morris
insisted that he did not hit Walker and was unable to stop him. Morris also
claimed he blacked out during the fight. Morris sustained a fractured jaw on
both sides. He was taken by ambulance to the hospital. A metal brace was
inserted before he underwent day surgery in August. He still has cramps and
trouble sleeping because of his injuries.
On cross-examination, Morris testified that he left immediately after
the fight was over and returned to his home. His brother Vincent and some
of Vincent’s acquaintances were on the porch. Morris claimed that he did
not say anything to Vincent but went directly inside to check himself in a
mirror. After Vincent inquired about the cause of his injuries, Vincent left
for Keith’s home. Morris denied that he went home to get his brother.
Morris followed his brother to Keith’s home, but maintained that he did so
to make sure Vincent did not do anything crazy. He denied that he returned
to fight Walker again. Morris claimed that although Walker may have 2 thought Vincent went there to jump him, his brother actually went there to
talk to Walker. Morris testified that although Walker pushed his brother
down twice, he did nothing when they got there or to help his brother.
Morris claimed that he did not see a second fight and was involved in only
one fight with Walker. Morris denied ever hitting Walker, claiming that he
was too intoxicated to fight. Morris also denied ever biting Walker.
Morris could not recall during cross-examination what Walker said
just before the fight. However, on redirect, Morris testified that Walker said,
“Bitch, I’ll kill you” before he threw the first punch. Morris also testified
that when he thought Walker was becoming too aggressive during their
conversation, he may have said something “out of line” about a prior
incident when Walker backed down from fighting someone else. Morris
believed Walker was set off by his comment.
Corporal Vincent Webb from the Shreveport Police Department went
to Morris’s home that night to investigate a call about a battery. He took
photos of Morris. Corporal Webb described Morris’s condition as “pretty
bad.” His jaw looked broken and his eye was in bad shape as well. No
injuries were observed on Morris’s hands.
Detective Logan McDonald was assigned to the violent crimes unit
with the Shreveport Police Department. He interviewed Morris on August 9,
2017. Detective McDonald testified that Morris told him that he thought
that he and Walker were joking until he walked away and Walker followed
him and attacked him. Morris did not tell the detective that he tried to hit
back at Walker. The detective did not recall Morris mentioning that he
blacked out during the fight. Morris also never mentioned his brother to
Detective McDonald. Morris’s face was still extremely swollen, he could 3 barely talk, and appeared to be in pain. His jaw was also wired partially
shut. An arrest warrant was obtained after Morris identified Walker in a
photo lineup. Detective McDonald did not get a statement from Walker
following his arrest because he was busy working on other cases and did not
have a chance to get to the jail before Walker went through jail clearance.
Detective McDonald interviewed only Morris about the incident.
Morris could not name any witnesses and no witnesses came forward.
According to Detective McDonald, if a witness had called the Shreveport
Police Department, he would have received a message from the person who
took the call. He would have returned the call, set up an interview, and
obtained a recorded statement.
After the State presented its evidence, Walker testified. His then-
fiancée and current wife is Britisheandrea Eason-Walker (“Eason”). Walker
worked for himself maintaining lawns and cutting down trees. Walker
testified that he went to Keith’s house around 7:00 as it was just getting
dark. He spent time at Keith’s house every day because Keith sold barbecue
and people would hang out in his yard.
Walker recalled that Morris was sitting on the porch when he started
talking to Keith and a neighbor. Walker had a 40-ounce bottle of beer with
him. Morris walked up and asked for some of his beer. After Morris
reached for his beer and then asked for some money, Walker gave him $2 so
he could get his own beer and would stop harassing Walker. Morris then
turned around and walked out of the yard. In the meantime, Eason went to
their truck to roll a blunt. After Walker resumed his conversation with
Keith, Eason called to Walker and told him to see what Morris wanted with
him. He turned his attention to Morris, who was beckoning him to come 4 down the street. Walker thought Morris needed additional money, so he met
him halfway down the street. Walker testified that Morris told him, “Say,
man, you been wanting to try me?,” and hit him in the mouth. Walker
claimed this punch chipped his teeth.
Walker insisted that Morris hit him first. Walker explained that he
tried to catch Morris, who was steadily throwing punches and hit Walker
twice. Keith came down the street and urged Walker to stop fighting.
Walker told Morris to go home and then walked back to Keith’s home.
Walker stated that Morris followed him all the way to Keith’s yard and said
he was going home to get a gun. Morris then left along the trail next to
Keith’s home. Walker denied that he ever changed his clothes as described
by Morris.
Walker testified that about four minutes after he returned to Keith’s
yard, he heard a commotion as Morris, Morris’s brother (“Dee”), another
guy, and a female came up the trail. When Dee asked who had hit his
brother, Walker told him, “Dee, man, don’t walk up on me. Your brother hit
me first. Go talk to your brother.” Walker recalled that he pushed Dee to
the ground because Dee continued to “walk up” on him. When Dee got off
the ground and charged him, Walker pushed him two or three times. After
the last push, Morris came around the corner of the house and hit Walker in
the mouth, so they started fighting again. Walker explained that he was
fighting Morris and Dee at the same time. When he knocked Morris to the
ground with a solid punch, Morris grabbed his right leg and bit it. Morris
continued to bite him until he struck Morris once. Morris released his bite,
and at that point, Keith stepped in and told everyone to get out of his yard.
5 Walker drove home after the fight. He testified that he had no idea of
the severity of Morris’s injury. Walker thought he was done with the matter
until a friend saw on the television news that he had an outstanding warrant.
Walker claimed that the next morning he called the detective’s office but
was told there was not a case against him.
Walker admitted on cross-examination that he was convicted of
aggravated assault in 2000, illegal possession of stolen things in 2003,
simple battery in 2005, flight in a vehicle in 2008, and resisting a police
officer with force or violence in 2010. Walker denied Morris embarrassed
him when Morris mentioned the time that Walker had backed down. Walker
also denied that he followed Morris out of the yard, but claimed that Morris
beckoned him to the street with hand motions. He had no medical records to
corroborate that his teeth had been chipped. Walker also testified that his
wife called the police multiple times after his face was shown on the
television news.
Britisheandrea Eason-Walker (“Eason”) estimated that they arrived at
Keith’s house early in the evening. She testified that as she and Walker
went up to the porch to greet everyone there, Morris approached Walker and
tried to grab his beer. Walker pushed Morris’s arm back, told Morris not to
do that, and said he would get Morris a beer if he needed one. Morris stayed
on the porch for a little while, then got up and tried to grab Walker’s beer a
second time. Walker pushed Morris back and said he would give him $2 to
buy a beer. After Walker gave $2 to Morris, he also gave Morris an extra
dollar to make sure that he had enough to purchase a beer. Morris walked
away but then turned around. When Eason went to Walker’s truck to put her
food away, she heard Morris calling Walker out of the yard. Morris said, 6 “Hey, man, come here.” She told Walker to talk to Morris and then to come
right back. She then watched Walker leave to see what Morris wanted. The
last thing she saw was Walker and Morris talking as they walked down the
street. By the time she returned to the porch, she learned that Walker and
Morris were fighting. She could only see figures in the dark moving. They
stopped fighting and walked back to the yard when Keith told them to stop.
She heard Walker and Morris continue to exchange words. She did not
know who threw the first punch.
She recalled that after they returned to Keith’s yard, Morris left down
an alley. She thought Morris looked fine and only had a couple of bruises
from the fight. Around 5-10 minutes later, Morris’s brother, a cousin, and a
female arrived. The brother wanted to know who fought with Morris, but
then calmed down when he learned it was Walker. As the brother tried to
talk with Walker, Morris appeared and acted as if he had a weapon. The
second fight started when Morris “ran up” on Walker. Eason claimed that
Morris started the second fight even though she could not see who threw the
first punch. As Morris and Walker fought again, the brother and Keith
stopped the fight. Eason witnessed Morris bite Walker on the right ankle
when he was knocked to the ground after Walker hit him once. She testified
that the bite did not leave a mark that she could see afterward. Following
this second fight, Morris’s brother helped him home and Keith told everyone
to leave. She never saw Walker change clothes while at Keith’s house.
Eason testified that she called the Shreveport Police Department three
times after learning the police were looking for Walker. She was told there
was no record of a charge or a report with his name. She has never spoken
7 to a detective or an investigator from the District Attorney’s Office. Eason
acknowledged that Morris was really drunk that evening.
Keith Felton (“Keith”) testified there were always gatherings at his
home, including on the date of the incident. He did not know when Walker
arrived that day. He saw Walker give a dollar to Morris. Walker gave
another dollar to Morris after Keith told Walker that a beer could not be
purchased for a dollar. He heard Walker and Morris say something,
although he did not know what was said, then they both walked off the
porch. Keith recalled seeing them walk away while talking. He did not
know who started the fight. Keith testified that Walker and Morris fought
down his street, and he told them to stop. He was unable to discern if either
one of them was injured because it was nighttime.
Keith recalled that Morris returned after the first fight with his brother
and another male. Keith testified that the brother was “running up” on
Walker, who kept pushing the brother off of him. He further testified that
“both of them did run up on him, but he kept just pushing his brother off of
him[.]” Keith told them to stop and to get out of his yard. They eventually
stopped and left. Keith told the court that the police came that night and
asked him what had happened. Keith did not know anything about Morris
biting Walker.
On cross-examination, Keith was asked if he observed Walker walk
after Morris. He replied, “No, I seen them walking down the street. They
was talking and walking.” However, he answered in the affirmative when
he was later asked if he testified that Walker started walking down the street
shortly after Morris left Keith’s house. He stated they were walking together
8 down the street. He did not know how many beers were consumed by
Morris, but he did not consider Morris to be “falling down sloppy drunk.”
Lena Felton (“Lena”) is the wife of Keith Felton. She saw Morris put
his hand in Walker’s face. Walker’s reaction was to say, “Go on on me. Go
on on with that.” Morris uttered a few curse words at Walker, left the yard,
and started walking down the street. However, he stopped walking, turned
around, and began gesturing for Walker to meet him in the street. Lena
testified that she could not see the fight. She recalled that after Walker
returned to her yard, Morris came back through the alley “with the same
stuff.” He was accompanied by his brother, a cousin, and a female. Walker
left the yard and they “got into it” again, but all she could see was her
husband trying to stop them. Lena admitted that she only heard Morris run
his mouth and never saw him punch Walker.
Robert Montgomery has known Morris for four or five years. He was
familiar with Morris’s general character because Morris had gotten into a
couple of fights with his friend. Montgomery testified that although Morris
was not regarded as a bully, he was known around the neighborhood to be a
little hostile at times.
After the defense rested, Morris was called as a rebuttal witness. He
denied having a gun with him or hitting Walker in any way, even in a joking
manner. He also denied beckoning Walker to come out to the street to fight
him. He claimed he did nothing that would have indicated to Walker that he
wanted to fight him. Morris testified that he was in no condition to fight
because his intoxication level was a “10” on a scale of 1-10.
Medical records introduced into evidence showed that Morris was
diagnosed at University Hospital-Shreveport on July 20 with a fracture of 9 the right mandible, a fracture of the left mandible, and alcohol abuse with
intoxication. He had been transported to the hospital by EMS. He
underwent jaw surgery on August 3.
Walker was convicted as charged of second degree battery. Walker’s
motions for post-verdict judgment of acquittal and new trial were denied.
He was sentenced on September 2, 2020. The court noted that the offense
was a crime of violence, but wanted the minutes to reflect that Walker would
be sentenced as if second degree battery were not a crime of violence, upon
recommendation by the State. Walker was therefore subsequently sentenced
to five years at hard labor, with the sentence suspended. Walker was placed
on three years of supervised probation. Walker was also ordered to pay
court costs and $50.00 to the public defender’s office. He was advised by
the court that if he failed to pay, he would be ordered to serve 30 days in jail.
The trial court explained that the above sentence was imposed because both
the victim and Walker had been drinking, but also noted that Morris’s
injuries were significant.
Walker filed an untimely motion for appeal that was granted by the
trial court. His counsel argues on appeal that Morris was not a credible
witness because he failed to disclose that a second altercation occurred,
which raised reasonable doubt as to his version of the events. Moreover, his
counsel notes that the State failed to call Morris’s brother and the others
involved in the second incident as witnesses. Thus, his counsel argues that
had the complete story been told, it would hardly prove the specific intent
necessary to convict Walker of this crime. His counsel further argues that
Morris’s story was self-serving and that Walker was forced to defend
himself from attacks by both Morris and his brother. 10 The State counters that testimony from witnesses coupled with
Morris’s medical records proved that Morris sustained significant injuries
and that Walker intended to cause those injuries when he pursued Morris
down the street.
DISCUSSION
The standard of appellate review for a sufficiency of the evidence
claim 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 proven beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v.
Tate, 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905, 124
S. Ct. 1604, 158 L. Ed. 2d 248 (2004). This standard, now legislatively
embodied in La. C. Cr. P. art. 821, does not provide the appellate court with
a vehicle to substitute its own appreciation of the evidence for that of the
fact finder. State v. Pigford, 05-0477 (La. 2/22/06), 922 So. 2d 517; State v.
Dotie, 43,819 (La. App. 2 Cir. 1/14/09), 1 So. 3d 833, writ denied, 09-0310
(La. 11/06/09), 21 So. 3d 297.
The trier of fact makes credibility determinations and may accept or
reject the testimony of any witness. State v. Casey, 99-0023 (La. 1/26/00),
775 So. 2d 1022, cert. denied, 531 U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d
62 (2000). The appellate court does not assess credibility or reweigh the
evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442; State v.
Green, 49,741 (La. App. 2 Cir. 4/15/15), 164 So. 3d 331. A reviewing court
affords great deference to the trier of fact’s decision to accept or reject the
testimony of a witness in whole or in part. State v. Jackson, 53,497 (La.
App. 2 Cir. 5/20/20), 296 So. 3d 1156; State v. Broadway, 53,105 (La. App. 11 2 Cir. 1/15/20), 288 So. 3d 903, writ denied, 20-00372 (La. 7/24/20), 299
So. 3d 78.
Where there is conflicting testimony about factual matters, the
resolution of which depends upon a determination of the credibility of the
witnesses, the matter is one of the weight of the evidence, not its sufficiency.
State v. Green, supra; State v. Glover, 47,311 (La. App. 2 Cir. 10/10/12),
106 So. 3d 129, writ denied, 12-2667 (La. 5/24/13), 116 So. 3d 659. In the
absence of internal contradiction or irreconcilable conflict with physical
evidence, one witness’s testimony, if believed by the trier of fact, is
sufficient support for a requisite factual conclusion. State v. Robinson,
50,643 (La. App. 2 Cir. 6/22/16), 197 So. 3d 717, writ denied, 16-1479 (La.
5/19/17), 221 So. 3d 78; State v. Gullette, 43,032 (La. App. 2 Cir. 2/13/08),
975 So. 2d 753. Such testimony alone is sufficient even where the State
does not introduce medical, scientific, or physical evidence. State v.
Larkins, 51,540 (La. App. 2 Cir. 9/27/17), 243 So. 3d 1220, writ denied, 17-
1900 (La. 9/28/18), 253 So. 3d 154. The trier of fact is charged to make a
credibility determination and may, within the bounds of rationality, accept or
reject the testimony of any witness; the reviewing court may impinge on the
fact finder’s discretion only to the extent necessary to guarantee the
fundamental due process of law. State v. Casey, 99-0023 (La. 1/26/00), 775
So. 2d 1022, cert. denied, 531 U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d 62
(2000).
Battery is the intentional use of force or violence upon the person of
another. La. R.S. 14:33. Second degree battery is a battery when the
offender intentionally inflicts serious bodily injury. La. R.S. 14:34.1.
Serious bodily injury is bodily injury which involves unconsciousness; 12 extreme physical pain; protracted and obvious disfigurement; protracted loss
or impairment of the function of a bodily member, organ, or mental faculty;
or a substantial risk of death. La. R.S. 14:2(C).
Second degree battery is a specific intent crime; therefore, the
evidence must show that the defendant intended to inflict serious bodily
injury. State v. Fuller, 414 So. 2d 306 (La. 1982); State v. Jackson, 51,575
(La. App. 2 Cir. 9/27/17), 244 So. 3d 764. Specific intent is that state of
mind that exists when the circumstances indicate the offender actively
desired the prescribed criminal consequences to follow his act or failure to
act. La. R.S. 14:10(1). Specific intent may be inferred from the
circumstances surrounding the offense and the conduct of the defendant.
State v. Broadway, supra; State v. Jackson, supra. The determination of
whether the requisite intent is present in a criminal case is for the trier of
fact, and a review of this determination is to be guided by the standards of
Jackson v. Virginia.
To convict a person of second degree battery, the State must prove the
following elements beyond a reasonable doubt: (1) the commission of a
battery; (2) the battery resulted in serious bodily injury; and (3) specific
intent. State v. Jackson, supra. The State met its burden in this case.
Battery is the intentional use of force or violence upon the person of
another. La. R.S. 14:33. There is no dispute that at least one fight occurred
where Walker punched Morris. The evidence established that Morris
sustained a fractured jaw on both sides, was required to temporarily wear a
metal brace in his mouth, underwent surgery to repair his jaw, and still
suffers effects from his injury.
13 The evidence showed that Walker and Morris had engaged in a heated
conversation and Morris, in his intoxicated state, provoked Walker with his
words, but walked away. The evidence also showed that Walker approached
Morris after he left Keith’s home, presumably because he was upset with
something Morris said to him. Morris was already several houses up the
street at the time. While no one saw who threw the first punch, it is clear
that Walker inflicted significant injuries on Morris during their fight.
Walker testified that he suffered a bite and chipped teeth while fighting with
Morris, but no evidence corroborated his self-serving story. These facts
show that Walker specifically intended to cause serious bodily injury to
Morris and in fact caused significant injuries to Morris.
Walker’s counsel maintains that because Morris neglected to testify
during direct examination about confronting Walker after the first fight,
Morris did not tell the full story of what happened and there was at least
reasonable doubt as to whether Morris sustained his injuries during the
second fight. Walker argues that during this second fight he was forced to
defend himself against an attack by Morris and his brother, which included
Morris biting him.
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. Broadway, supra;
State v. Jackson, supra. The burden of proving self-defense in a non-
homicide case rests with the defendant to prove the defense by a
preponderance of the evidence. Id.
14 Morris maintained that although Walker pushed his brother down
twice, he did nothing to help his brother when he returned to Keith’s yard
after the fight with Walker in the street. Morris claimed that he did not see a
second fight and was involved in only one fight with Walker. The trial court
was in the best position to evaluate the credibility of the witnesses after
listening to the testimony and observing their demeanor. The court
obviously believed Morris’s version of events and rejected any testimony to
the contrary.
After viewing the evidence in the light most favorable to the
prosecution, we conclude that any rational trier of fact could have found the
essential elements of the crime of second degree battery proven beyond a
reasonable doubt. Accordingly, Walker’s assignment of error is without
merit.
ERROR PATENT
Error patent review of the appellate record reveals that Walker’s
sentence is illegally lenient in two respects. First, the trial court suspended
Walker’s sentence for a crime of violence. La. R.S. 14:2(B) lists second
degree battery as a crime of violence. Under La. C. Cr. P. art. 893, a court
shall not suspend the sentence of a conviction for an offense that is
designated in the court minutes as a crime of violence pursuant to La. C. Cr.
P. art. 890.3, except a first conviction for an offense with a maximum prison
sentence of ten years or less that was not committed against a family
member or household member as defined by La. R.S. 14:35.3, or dating
partner as defined by La. R.S. 46:2151. The period of probation shall be
specified and shall not be more than five years. Because this was not
Walker’s first felony conviction, this exception does not apply. 15 However, art. 890.3 provides that the District Attorney may make a
written recommendation to the court that the offense should not be
designated as a crime of violence only for the following purposes: (1) the
defendant’s eligibility for suspension or deferral of sentence pursuant to art.
893; and (2) the defendant’s eligibility for participation in a drug division
probation program pursuant to La. R.S. 13:5304.
This record is devoid of any written recommendation from the District
Attorney. However, the trial court indicated that the State was making the
recommendation, to which the State agreed. Nothing in the statute or case
law suggests that the court can make its own recommendation, which
appears to be the case here. Accordingly, the sentence is illegally lenient.
On remand for resentencing, the District Attorney may provide such written
recommendation.
Second, the trial court sentenced Walker to default time in the parish
jail in the event he failed to pay the fine or costs. An indigent defendant
cannot be subjected to default jail time in lieu of the payment of a fine, costs
or restitution. State v. Malmay, 52,824 (La. App. 2 Cir. 9/25/19), 280 So. 3d
947; State v. Lewis, 48,373 (La. App. 2 Cir. 9/25/13), 125 So. 3d 482. A
defendant’s indigent status in such a situation may be discerned from the
record. Id. Where a defendant is represented at trial by the Indigent
Defender’s Office, or on appeal by the Louisiana Appellate Project, this
Court has considered it error for a trial court to impose jail time for failure to
pay court costs. Id.
In this matter, Walker’s indigent status has been shown by his
representation at trial by the Indigent Defender’s Office and his current
16 representation on appeal by the Louisiana Appellate Project. Therefore, the
imposition of default jail time was in error.
CONCLUSION
For the foregoing reasons, Walker’s conviction is affirmed. His
sentence is vacated and the matter is remanded to the trial court for
resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED;
REMANDED FOR RESENTENCING.
17 STEPHENS, J., dissenting.
I respectfully dissent from the majority’s opinion, finding that the
evidence, when viewed in the light most favorable to the prosecution, is
insufficient to support the trial court’s verdict of second degree battery.
Proving that Defendant had the specific intent to inflict serious bodily
injury was an integral part of the state’s case. The prosecution knew that
evidence of the second altercation between the two men, which necessarily
involved rebutting Defendant’s claim of self-defense, would make the intent
element more difficult to establish. Therefore, the state deliberately chose to
limit Morris’s testimony to the initial fight between the two men.
The very next questions asked by the state’s attorney following
Morris’s testimony about the initial fight skipped over important events that
occurred the night of the party at Keith Felton’s house, i.e., the fact that
Morris went home to get his brother and others, the second altercation, the
participation of Morris’s brother in the subsequent fight, and critically, the
time delay in seeking medical treatment for Morris. The state’s attorney
instead focused on the victim’s injuries—their severity, the treatment he
received for them, and the lingering effects he experiences to date. Taken
alone (since the state did not call as witnesses the additional people who
were with Morris when he returned to the Felton home after the first fight
prior to his seeking medical attention and treatment), the compelling and
self-serving testimony of the victim, Terrence Morris, during the state’s
direct examination could support the trial court’s finding that Defendant is
guilty of battery.
However, the defense, through its cross examination of Morris and the
direct examination of its witnesses, presented a more complete timeline of 1 the evening’s events, particularly regarding the two violent interactions
between Defendant and Morris. Mrs. Walker, Felton, and Defendant were
consistent in their testimony regarding the first encounter between the two
men, as well as the second altercation that occurred at a later time in a
different location and involved Defendant, the victim, and the victim’s
brother. While the trial court obviously discounted the Walkers’ testimony
as self-serving, there was no evidence to suggest that Felton was a biased
witness. Furthermore, there was no evidence to dispute that there were in
fact two separate and distinct incidents, not one ongoing fight between
Defendant and Morris. The first incident was instigated by Defendant, while
the second confrontation was initiated by Morris. While Defendant had no
valid claim of self-defense as to the first encounter, he was able to avail
himself of that defense in the second one. However, I find that the record is
devoid of any evidence whatsoever to establish that a second degree battery
occurred in the first encounter. Second degree battery requires serious
bodily injury. While a broken jaw is clearly serious bodily injury, the
evidence, i.e., the victim’s delay in seeking medical attention, and the nature
of the injuries he inflicted during the second altercation—a bite to
Defendant’s leg—something Morris could not have done had his jaw been
broken during the first fight, shows that his broken jaw occurred during the
second fight.
As noted in the majority opinion, a defendant in a non-homicide case
must prove self-defense by a preponderance. See, State v. Broadway, 53,105
(La. App. 2 Cir. 1/15/20), 288 So. 3d 903, writ denied, 20-00372 (La.
7/24/20), 299 So. 3d 78. However, at that time, the state must then prove
beyond a reasonable doubt that the defendant did not act in self-defense. 2 State v. Scales, 93-2003 (La. 5/22/95), 655 So. 2d 1326; State v. Updite,
38,423 (La. App. 2 Cir. 6/23/04), 877 So. 2d 216, writ denied, 2004-1866
(La. 11/24/04), 888 So. 2d 229.
I find that the state failed to rebut Defendant’s evidence of
self-defense and also fell short of establishing the requisite elements
required for a conviction of second degree battery. For these reasons I
would reverse Defendant’s conviction and sentence for second degree
battery, find him guilty of simple battery, and remand this case so he could
be sentenced for the crime of simple battery.