State v. Fowler

940 So. 2d 124, 2006 WL 2741657
CourtLouisiana Court of Appeal
DecidedSeptember 27, 2006
Docket41,443-KA
StatusPublished

This text of 940 So. 2d 124 (State v. Fowler) 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. Fowler, 940 So. 2d 124, 2006 WL 2741657 (La. Ct. App. 2006).

Opinion

940 So.2d 124 (2006)

STATE of Louisiana, Appellee,
v.
Frank FOWLER, Appellant.

No. 41,443-KA.

Court of Appeal of Louisiana, Second Circuit.

September 27, 2006.

*126 Edward K. Bauman, Lake Charles, for Appellant.

Frank Fowler, Pro Se.

Paul J. Carmouche, District Attorney, Geya D. Williams, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.

Before WILLIAMS, CARAWAY and DREW, JJ.

WILLIAMS, Judge.

The defendant, Frank Fowler, was charged by bill of information with battery of a correctional facility employee, a violation of LSA-R.S. 14:34.5. After a jury trial, the defendant was found guilty as charged. The district court imposed a sentence of five years at hard labor to run consecutively with any other sentence to be served. Defendant appeals his conviction. We affirm.

FACTS

On November 13, 2003, the defendant was an inmate at Forcht Wade Correctional Center and he had been assigned to a work crew that was cleaning the grounds of the facility. After making vulgar comments to a female corrections officer who had ordered him to return to work, defendant was handcuffed and taken to Lieutenant Randall Wilkinson so he could be placed in administrative segregation for violating inmate disciplinary rules. As Lt. Wilkinson and another officer were escorting defendant to the lobby of the administrative segregation cell block, he became loud, combative and noncompliant. When defendant refused to walk up the stairs to his cell, each officer grabbed an arm of defendant, who kicked a desk and knocked over a chair. The officers then carried him up the stairs and into the cell. Because defendant had his legs tucked underneath him, the officers placed him on the floor and as they did so, defendant rolled onto his back. As the other officer left the cell, Lt. Wilkinson was still bending over defendant, holding him in place. Once he let go, the defendant kicked Lt. Wilkinson in the chest with his left foot.

Wilkinson stepped outside the cell and contacted his supervisors. When they arrived, defendant continued to refuse their instructions to strip down and pass all items outside of the cell so the officers could check for contraband. Assistant Warden Anthony Batson and other officers tried to verbally calm defendant. Because of his continued noncompliance, the officers sprayed him with chemical deterrents. When this did not work, a tactical team entered the cell to restrain defendant and check for contraband.

Subsequently, Asst. Warden Batson referred the matter to the Caddo Parish District Attorney for prosecution. After a jury trial, defendant was convicted of felony *127 battery of a correctional facility employee. Defendant agreed to a five-year sentence at hard labor, to run consecutively to any sentence he was serving, in exchange for an agreement that the state would not file a multiple offender bill of information.

DISCUSSION

The defendant contends the evidence presented was insufficient to support the conviction of battery of a correctional facility employee. The defendant argues that the state failed to prove that he possessed the specific intent required for a battery. Defendant concedes that he may have kicked Wilkinson in the chest, but that his "uncontrollable anger" was much like a sudden passion or heat of blood that deprived him of the necessary reflection and coolness of mind to form the specific intent to commit the battery. Defendant further argues in the alternative that his conviction should be reduced to the general intent crime of simple battery and his case remanded for a new sentence.

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). This standard, now legislatively embodied in LSA-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. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165. The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/05/99), 737 So.2d 747.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, the matter is one of the weight, not the sufficiency, of the evidence. State v. Allen, 36,180 (La.App. 2d Cir.09/18/02), 828 So.2d 622, writ denied, 02-2595 (La.03/28/03), 840 So.2d 566, 02-2997 (La.06/27/03), 847 So.2d 1255, cert. denied, Allen v. Louisiana, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508, writ denied, XXXX-XXXX (La.11/14/03), 858 So.2d 422.

Further, the Jackson standard does not provide a defendant with a means of arguing alternative and inconsistent defenses in different forums, raising one defense before the jury and when that fails, a second defense presupposing a different set of facts in an appellate court conducting a sufficiency review under Jackson and LSA-C.Cr.P. art. 821(E). State v. Juluke, 98-0341 (La.01/08/99), 725 So.2d 1291.

Defendant testified at trial that he did not know whether he kicked Lt. Wilkinson, but that he may have unintentionally kicked Wilkinson when he rolled over after being dropped on the ground. Defendant testified that he resisted being taken to administrative segregation because he thought his placement there was unfair; however, he did not testify about an uncontrollable anger that would have deprived him of the ability to form specific intent. The argument that defendant lacked specific intent to commit the battery because *128 of his uncontrollable anger is inconsistent with his trial defense argument that any such kick was an accident. Because defendant raises this alternative argument presupposing different facts for the first time on appeal, it is not a proper argument for this court to consider in performing its sufficiency review under Jackson and Article 821(E).

Even so, defendant's alternative argument on appeal is without merit. In State v. Elliot, 00-2637 (La.App. 1st Cir.06/22/01), 809 So.2d 203, the court addressed the argument that the evidence was insufficient to support a conviction for battery of a correctional facility employee because the offender's "rage and uncontrollable anger" deprived him of the ability to form specific intent. The court rejected the argument that the sudden passion or heat of blood language contained in the manslaughter statute was applicable to the case because the offense involved was not a homicide. State v. Elliot, 809 So.2d at 205. Sudden passion or heat of blood is not a justification for criminal actions under LSA-R.S. 14:18, or for the use of force in defense in a non-homicide under LSA-R.S. 14:19.

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Strickler v. Greene
527 U.S. 263 (Supreme Court, 1999)
State v. Allen
828 So. 2d 622 (Louisiana Court of Appeal, 2002)
State v. Smith
661 So. 2d 442 (Supreme Court of Louisiana, 1995)
State v. Robertson
680 So. 2d 1165 (Supreme Court of Louisiana, 1996)
State v. Cooks
833 So. 2d 1034 (Louisiana Court of Appeal, 2002)
State v. Williams
800 So. 2d 790 (Supreme Court of Louisiana, 2001)
State v. Juluke
725 So. 2d 1291 (Supreme Court of Louisiana, 1999)
State v. Strickland
398 So. 2d 1062 (Supreme Court of Louisiana, 1981)
State v. Garrick
870 So. 2d 990 (Supreme Court of Louisiana, 2004)
State v. Owens
719 So. 2d 610 (Louisiana Court of Appeal, 1998)
State v. Fuller
414 So. 2d 306 (Supreme Court of Louisiana, 1982)
State v. Elliot
809 So. 2d 203 (Louisiana Court of Appeal, 2001)
State v. Gilliam
827 So. 2d 508 (Louisiana Court of Appeal, 2002)
State v. Norwood
396 So. 2d 1307 (Supreme Court of Louisiana, 1981)
Allen v. Louisiana
540 U.S. 1185 (Supreme Court, 2004)

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Bluebook (online)
940 So. 2d 124, 2006 WL 2741657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fowler-lactapp-2006.