State v. Diaz

612 So. 2d 1019, 1993 WL 7919
CourtLouisiana Court of Appeal
DecidedJanuary 20, 1993
Docket24458-KA
StatusPublished
Cited by14 cases

This text of 612 So. 2d 1019 (State v. Diaz) 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. Diaz, 612 So. 2d 1019, 1993 WL 7919 (La. Ct. App. 1993).

Opinion

612 So.2d 1019 (1993)

STATE of Louisiana, Appellee,
v.
Paul DIAZ, Appellant.

No. 24458-KA.

Court of Appeal of Louisiana, Second Circuit.

January 20, 1993.

*1020 Arbour & Aycock by Geary S. Aycock, West Monroe, for defendant-appellant.

Richard Ieyoub, Atty. Gen., Robert W. Levy, Dist. Atty., John L. Sheehan, Asst. Dist. Atty., for appellee.

Before MARVIN, NORRIS and LINDSAY, JJ.

NORRIS, Judge.

The defendant, Paul Diaz, appeals his conviction for second degree battery. La. R.S. 14:34.1. Following a bench trial, Diaz was sentenced to serve five years at hard labor and to pay court costs. In default of paying costs, Diaz would serve an additional 60 days concurrent with the sentence. Upon payment of costs, the sentence would be suspended and Diaz placed on five years supervised probation subject to specified conditions, including: one year imprisonment in the parish jail, 90 eight-hour days of community service, full restitution to the victim including civil damages,[1] payment of fines and various other costs totaling over $1,500, and participation in a substance abuse program. For the following reasons, we affirm the defendant's conviction and sentence.

FACTS

During the early morning hours of January 26, 1991, a group of Louisiana Tech University athletes stormed the Kappa Sigma *1021 Fraternity House located just blocks from the university campus in Ruston. Once the athletes had entered the house, a large fight broke out during which the victim, John Bullock, suffered a broken jaw. The fight stemmed from an incident that occurred earlier in the evening at Muther's Bar where a Louisiana Tech baseball player got into a fight with several members of the fraternity. Word of the fight reached the athletic dorm where Diaz lived even though he was not a school athlete at the time. Diaz and several of the athletes, who had been drinking, decided to go to the fraternity house to retaliate. About two dozen people from the athletic dorm descended on the fraternity house, as Diaz described, to "get the Kappa Sigs." (R. p. 272). He later testified that he merely went to watch. (R. p. 276). Several of the athletes armed themselves with golf clubs and "thundersticks," a scaled-down version of the baseball bat.

The victim, Bullock, was a fraternity member who was present at the house when the athletes attacked. He had not been involved in the incident at Muther's Bar. When he heard the commotion coming from the fraternity's chapter room, he walked from his bedroom to see what was happening. When he reached the foyer leading into the chapter room, he saw the room in chaos with approximately 50 people fighting and rolling around on the floor. At that point, a black male, whom Bullock described as left-handed, struck him on the right side of his jaw. (R. pp. 136, 138). Although Bullock did not actually see a weapon in the black male's hand, he testified that based on the severity of the blow he believed a weapon was used. (R. p. 137-38).

Bullock experienced extreme pain and bleeding from the interior of his mouth. He was taken to the emergency room at Lincoln General Hospital. Shortly thereafter, he was driven to St. Francis Hospital in Monroe where it was determined that he had suffered a double fracture of the jaw. Due to the severe displacement of the fractures, Dr. Richard Willis, an oral and maxillofacial surgeon, performed immediate surgery. The fractured bone was wired together and had to remain immobilized for seven weeks, making it difficult for Bullock to speak during that time and necessitating a restricted diet of liquids. Bullock described his pain as "excruciating." (R. p. 145).

Bullock positively identified Diaz from a photographic lineup as the assailant. By bill of information, Diaz was charged with aggravated battery. After Diaz agreed to waive his right to jury trial, the charge was reduced to second degree battery.

At trial, Bullock identified defendant without "a shadow of a doubt." (R. p. 139). Moreover, defendant confirmed at trial that he was left-handed just as Bullock had previously described. (R. p. 275). He also admitted that he had gone to the fraternity house and had hit someone, although he denied that Bullock was the person he hit. He further denied using a weapon. Upon cross-examination, he admitted that he had initially lied to Tech officials when he denied involvement in the fight; he further admitted that he had indeed hit someone in the face as hard as he could. (R. pp. 279, 285).

Following the bench trial, Diaz was found guilty of second degree battery. On December 13, 1991, he filed a motion for new trial and a motion for acquittal. Both motions were denied. On March 11, 1992, Diaz was sentenced to serve five years at hard labor, suspended upon the fulfillment of specified conditions. Diaz subsequently filed a written objection to the severity of sentence on March 16, 1992.

Diaz appeals, arguing several assignments of error.

SUFFICIENCY OF EVIDENCE

In defendant's first assignment of error, he contends that the trial court erred in finding him guilty of second degree battery. In his second assignment, he argues that the trial court erred in denying his motion for acquittal. Both assignments urge that the evidence presented by the prosecution was insufficient to support the conviction for second degree battery. These arguments are without merit.

*1022 In reviewing the sufficiency of evidence to support a conviction, the reviewing court must examine the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La.1984); State v. Bellamy, 599 So.2d 326 (La.App.2d Cir.), writ denied 605 So.2d 1089 (1992).

La.C.Cr.P. art. 821 provides that a post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilt. This too raises the question of legal sufficiency. State v. Combs, 600 So.2d 751 (La.App.2d Cir.1992). Hence, both assignments of error question the legal sufficiency of the prosecutor's evidence and may be treated simultaneously.

La.R.S. 14:34.1 defines second degree battery as:

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 substantial risk of death.

The crime of second degree battery requires a showing of specific intent. State v. Fuller, 414 So.2d 306 (La.1982). Specific intent is defined as that state of mind which exists when the circumstances 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; instead, it may be inferred from the circumstances of the transaction. Fuller, supra.

Defendant is between 6' and 6'1" tall. He testified that at the time of the fight he weighed between 238 and 240 pounds and was on a weight training regimen.

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Bluebook (online)
612 So. 2d 1019, 1993 WL 7919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-diaz-lactapp-1993.