State v. Accardo

466 So. 2d 549
CourtLouisiana Court of Appeal
DecidedMarch 11, 1985
Docket84-KA-353
StatusPublished
Cited by49 cases

This text of 466 So. 2d 549 (State v. Accardo) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Accardo, 466 So. 2d 549 (La. Ct. App. 1985).

Opinion

466 So.2d 549 (1985)

STATE of Louisiana
v.
Nicholas A. ACCARDO.

No. 84-KA-353.

Court of Appeal of Louisiana, Fifth Circuit.

March 11, 1985.
Writ Denied May 24, 1985.

*550 Sidney D. Torres, III, Chalmette, for defendant-appellant.

John M. Mamoulides, Dist. Atty., Dorothy A. Pendergast, Asst. Dist. Atty., Gretna, for plaintiff-appellee.

Before BOWES, GAUDIN and DUFRESNE, JJ.

DUFRESNE, Judge.

The defendant, Nicholas A. Accardo, was charged by Bill of Information with aggravated battery in violation of R.S. 14:34. He entered a plea of not guilty, waived his right to trial by jury, was tried by the district judge and was found guilty of second degree battery. After a pre-sentence investigation and hearing, the defendant was sentenced to one year in the parish prison, which was suspended, and he was placed on 3 years active probation with the following special conditions: (1) serve 6 months in parish prison, (2) upon release, to continue to receive psychiatric treatment, and (3) pay costs in the amount of $127.50. This appeal followed.

FACTS

The defendant stipulated that the testimony taken at the preliminary examination would be the same testimony taken at trial and the matter was submitted.

The victim, Rhonda DiCarlo, testified that on July 21, 1983, she and three girl friends took a cab to Spinnaker's Lounge on West End Boulevard. The defendant approached DiCarlo and bought her a drink and danced and talked for several hours. As DiCarlo got ready to leave with her friends, the defendant asked to bring her home. After some hesitation, DiCarlo agreed. The defendant, however, drove to a spot near the Causeway and made sexual advances upon DiCarlo. While resisting the defendant's advances, DiCarlo was struck in the head, but remained conscious. The defendant began crying when he saw the swelling caused by his blow to DiCarlo's head. She then asked for some ice. *551 He drove DiCarlo to a Tastee Donut Shop, but was unable to buy ice. However, he found a cold can of beer in an ice chest which was in his car. The beer can was applied to her head and the swelling receded.

DiCarlo then tricked the defendant into driving her to a friend's house, under the guise that it was her apartment. She managed to get into the house, locking the defendant out. He began banging on the door and ringing the doorbell, despite being told to leave by DiCarlo's friend. The police were called and they arrived to find the defendant still on the scene. He was arrested and taken to Jefferson Parish Lockup.

SUFFICIENCY OF EVIDENCE

The defendant contends that the district court's verdict of guilty of second degree battery is based on insufficient evidence to convict since there was no proof sufficient to place the alleged victim's injuries within the statutory definition of serious bodily injury.

In State v. Wright, 445 So.2d 1198, 1201 (La.1984), the Supreme Court set forth the following standard for use by appellate courts when reviewing evidence:

The constitutional standard for testing the sufficiency of evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt. Where circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 mandates that: "Assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence."
The court has recognized that R.S. 15:438 is not a purely separate test from the Jackson standard to be applied instead of a sufficiency of the evidence test whenever circumstantial evidence forms the basis for the conviction. State v. Austin, 399 So.2d 158 (La.1981). Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. Due process requires no greater burden. R.S. 15:438 provides an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. Exclusion of every reasonable hypothesis of innocence is therefore a component of the more comprehensive reasonable doubt standard, where circumstantial evidence is used to convict.

In the instant case, the defendant was found guilty of second degree battery, which is defined in R.S. 14:34.1 as follows:

Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.
For purposes of this article, 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.

The essential elements of second degree battery, which must be proven beyond a reasonable doubt, are: (1) The intentional infliction by the defendant, (2) of "serious bodily injury" upon the victim.

Because second degree battery requires the intentional use of force or violence upon the person of another committed without consent of the victim when the offender intentionally inflicts serious bodily injury, second-degree battery is a crime requiring specific intent. State v. Fuller, 414 So.2d 306 (La.1982); State v. Daigle, 439 So.2d 595 (La.App. 1st Cir.1983).

Specific intent is defined as the state of mind which exists when the circumstances *552 indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La.R.S. 14:10(1). Although intent is a question of fact, it need not be proven as a fact; intent may be inferred from the circumstances of the transaction. La.R.S. 15:445; State v. Fuller, supra.

In Fuller, the defendant, a thirty-year old male defendant punched the nineteen year old male victim in the face, causing the victim's eyesight to be permanently impaired. In finding that the defendant possessed the specific intent to do serious bodily harm, the court stated "[w]hen a much stronger man hits a younger, smaller man, the fact finder could rationally conclude that the offender intended to cause, at a minimum, unconsciousness and/or extreme physical pain." Fuller, supra at 310. See also State v. Daigle, supra, where the specific intent to cause serious bodily harm was inferred from the fact that the defendant punched his wife in the face, knocking her to the ground, and continued striking the victim with her purse.

In the instant case, the twenty-one year old male defendant struck the seventeen year old female victim in the head, either with his fist or a blackjack. In light of the above jurisprudence, we find that the defendant possessed the specific intent to cause serious bodily injury when he struck the victim; thus, the state has proven the first element of the crime of second degree battery beyond a reasonable doubt.

The second element which must be proven by the state is that the victim actually suffered "serious bodily injury", because R.S.

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Bluebook (online)
466 So. 2d 549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-accardo-lactapp-1985.