State v. Etienne

649 So. 2d 1230, 1995 WL 38281
CourtLouisiana Court of Appeal
DecidedFebruary 1, 1995
DocketCR 94-910
StatusPublished
Cited by5 cases

This text of 649 So. 2d 1230 (State v. Etienne) 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. Etienne, 649 So. 2d 1230, 1995 WL 38281 (La. Ct. App. 1995).

Opinion

649 So.2d 1230 (1995)

STATE of Louisiana, Plaintiff-Appellee,
v.
Marvin ETIENNE, Defendant-Appellant.

No. CR 94-910.

Court of Appeal of Louisiana, Third Circuit.

February 1, 1995.

*1231 John Phillip Haney, St. Martinville, for State of Louisiana.

Ken John Dohre, New Orleans, for Marvin Etienne.

Marvin Etienne, pro se.

Before LABORDE, YELVERTON, and COOKS, JJ.

YELVERTON, Judge.

Marvin Etienne was convicted of aggravated battery, in violation of La.R.S. 14:34, and illegal use of a weapon, in violation of La.R.S. 14:94. The defendant appealed the convictions based on three assignments of error. We affirm.

At about 11 p.m., November 16, 1991, Curtis Harper and a young woman, Tetra Johnson, who was apparently the defendant's girlfriend, were in a car together. The defendant and his friend, Ashley Thomas, saw the *1232 pair in the car and followed them to a house where the car stopped. The defendant and Thomas parked behind Curtis Harper's car. Harper and Ms. Johnson were inside the car, when the defendant approached and tapped on the passenger-side window with a gun. The defendant yelled for Ms. Johnson to get out of the car.

When Ms. Johnson opened the passenger door, the defendant pulled her out of the automobile. When Harper attempted to intervene, the defendant and his friend Thomas hit Harper and beat and kicked him into semiconsciousness. Nearby police heard what sounded like gunshots in the vicinity of the crime, and those who reported the crime reported hearing gunshots. Ms. Johnson then left with the defendant and Thomas. The defendant dropped Thomas off in the vicinity. Within a few minutes of the incident, Harper entered the house, bleeding from his forehead.

The authorities were alerted. Police stopped the defendant after a high-speed chase, arrested him and seized a nine-millimeter (9mm) pistol that was in the car. Ms. Johnson was also in the vehicle when police stopped it.

ASSIGNMENT OF ERROR NO. 1:

The defendant alleges that the evidence introduced in the trial below was insufficient to support his convictions on the aggravated battery and illegal use of weapons charges.

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, at 563 (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 determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, supra, citing State v. Richardson, 425 So.2d 1228 (La.1983).

In order for the State to obtain a conviction, it must prove the elements of the crime beyond a reasonable doubt.

Aggravated battery is a battery committed with a dangerous weapon. La. R.S. 14:34. One of the definitions of battery is the intentional use of force or violence upon the person of another.

The illegal use of weapons statute, La.R.S. 14:94, can be violated when there is the intentional or criminally negligent discharging of any firearm where it was foreseeable that it might result in death or great bodily harm to a human being.

To prove the defendant guilty of aggravated battery, the State had to prove that he intentionally used a dangerous weapon to commit force or violence upon Harper. The illegal use of a weapon charge, in the circumstances of this case, required proof that the defendant intentionally or in a criminally negligent manner discharged a firearm in a manner wherein it was foreseeable that it might result in death or great bodily injury to Harper. Thus, each crime has an act element and an intent element that must be proven to convict the defendant.

As to the act element of the crimes, the State adduced testimony that the defendant had a gun in his hand when he approached and tapped the window of Harper's car. Tonya Ledet was inside the house when the incident occurred. She heard loud noises, including the defendant's voice. Looking through a window, she saw Harper and Tetra Johnson sitting inside the car, with the defendant tapping on the passenger-side window with a gun. Another occupant of the house, Chris Parish, pulled Ms. Ledet away from the window, and she did not see what happened afterwards. However, she could hear the voices of those outside, including Tetra Johnson saying, "Don't hit him, don't hit him." Ms. Ledet then heard shots.

Also, Ashley Thomas testified the defendant hit and kicked the victim, although he *1233 claimed the defendant was unarmed at the time. The examining physician testified the victim had injuries consistent with blows from a gun, although he acknowledged the injuries could have been caused by other hard objects. Some witnesses, including a police officer, said they heard gunshots in the area at the time of the battery, and other officers testified they responded to a call regarding gunshots in the area. Police testified that area residents told them a shooting had occurred at the crime scene. When the defendant was stopped by authorities, an unloaded gun was in plain view on the back seat. A partially-loaded clip was also recovered.

The evidence is clear that a battery occurred and the defendant had a weapon immediately before the battery and had it in his car shortly after the battery. The attending physician testified that Harper's injuries were consistent with a pistol-whipping. Also introduced into evidence was testimony concerning the victim's excited utterance that he was battered with a weapon. Under the Jackson standard, there was sufficient evidence for a rational jury to conclude beyond a reasonable doubt that the defendant committed a battery upon Harper, using a gun.

The evidence regarding the alleged discharge of the gun was likewise proved by sufficient evidence. Although the record is lacking direct evidence that the defendant fired a gun during the commission of the battery, there is circumstantial evidence that he did so. Circumstantial evidence may be used to support a conviction if it excludes every reasonable hypothesis of innocence. La.R.S. 15:438.

Incorporating this rule under the Jackson standard, an appellate court must determine whether viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact would have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded. State v. Honeycutt, 438 So.2d 1303 (La.App. 3rd Cir.), writ denied, 443 So.2d 585 (La.1983); State v. Morris, 414 So.2d 320 (La.1982).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). See also State v. Chism, 436 So.2d 464 (La.1983).

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Cite This Page — Counsel Stack

Bluebook (online)
649 So. 2d 1230, 1995 WL 38281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-etienne-lactapp-1995.