State v. Cheley

237 So. 3d 58
Louisiana Court of Appeal·Decided January 4, 2018·No. 17–538 consolidated with 17–696·Published·Cited by 4 cases

Opinion

GREMILLION, Judge.

Defendant, Curtis Cheley, appeals his conviction for aggravated second degree battery and his sentence therefore and, in a consolidated appeal, his adjudication as a third felony offender. For the reasons that follow, we affirm his conviction, vacate his sentence, and remand for proceedings consistent with this opinion.

FACTS AND PROCEDURAL POSTURE

On June 28, 2016, Sergeant Jerol Morrow of the Leesville Police Department was dispatched by a 9-1-1 operator to an incident involving Defendant. Sergeant Morrow knew Defendant and where he was living, so the sergeant proceeded to that location. On arrival, Sergeant Morrow witnessed Defendant on the ground struggling with a woman. Defendant was seen striking the woman and yelling at her, "Where's my kids? Where's my kids?" Sergeant Morrow, a trailing officer, and Deputy Paul Davis of the Vernon Parish Sheriff's Office, attempted to restrain Defendant. Sergeant Morrow was forced to administer pepper spray to effect the arrest of Defendant.

The woman Defendant battered was unresponsive to Sergeant Morrow's attempts to speak to her. Her face was very swollen, and her mouth was bloodied. She was identified as Ms. Mary Pittmon. Ms. Pittmon had been staying at Defendant's aunt's house, where Defendant also was residing.

Defendant and Ms. Pittmon were alone in the house on the morning of June 28, 2016. Ms. Pittmon was seated on the couch. Defendant was talking with someone on his phone, and stated, "I'm gonna take her out." Ms. Pittmon had no idea to whom Defendant was referring until he grabbed a red pipe, tucked it under his arm, and strode toward her with evident intent to strike her. Defendant struck Ms. Pittmon twice with the pipe, once on the head and once on her arm. Ms. Pittmon attempted to stand up, but slipped. Defendant then began to choke Ms. Pittmon with the pipe. He then lifted Ms. Pittmon and moved her toward the front door. Outside, Defendant pushed Ms. Pittmon to the ground on her stomach and began to punch her with his fists. Defendant was angrily asking Ms. Pittmon why she did not "feed his kids," whom Ms. Pittmon had never met. The beating continued until Sergeant Morrow intervened.

As a result of the beating, Ms. Pittmon sustained a broken tooth, mouth lacerations, and several bruises. She was transported to Byrd Memorial Hospital in Leesville, then to LSU Medical Center in Shreveport. This hospital move was necessitated by tachycardia Ms. Pittmon was experiencing following the battering.

*61On September 6, 2016, the State filed a bill of information charging Defendant with aggravated second degree battery, a violation of La.R.S. 14:34.7. The parties selected a six-member jury on January 17, 2017. The jury began hearing evidence on the same date. Proceedings continued on the following day, and the jury found Defendant guilty as charged.1

On January 31, 2017, the State filed a bill of information charging Defendant as a third habitual offender, pursuant to La.R.S. 15:529.1. The trial court heard the matter on the same date and adjudicated Defendant as charged.2 On March 14, the court sentenced Defendant to twenty-two-and-one-half years at hard labor. In imposing this sentence, though, the trial court stated that the sentence was imposed without regard to habitual offender enhancement. Defendant now seeks review by this court.

ANALYSIS AND DISCUSSION

Errors patent

We review all appeals for errors patent, pursuant to La.Code Crim.P. art.920. We find none in this case.

Sufficiency of the evidence

Defendant's first assignment of error contends that the evidence adduced at trial was not sufficient to support his conviction of aggravated second degree battery. This assignment of error lacks merit.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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, rehearing denied , 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979) ; State ex rel. Graffagnino v. King , 436 So.2d 559 (La.1983) ; State v. Duncan , 420 So.2d 1105 (La.1982) ; State v. Moody , 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino , 436 So.2d 559 (citing State v. Richardson , 425 So.2d 1228 (La.1983) ). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson , 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

The elements of aggravated second degree battery are set forth in La.R.S. 14:34.7, which states in pertinent part:

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.

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State v. Cheley, 237 So. 3d 58 (La. Ct. App. 2018).

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