State v. Fox

184 So. 3d 886, 15 La.App. 3 Cir. 692, 2016 La. App. LEXIS 178, 2016 WL 430300
Louisiana Court of Appeal·Decided February 3, 2016·No. No. 15-692·Published·Cited by 3 cases

Opinion

AMY, Judge.

liThe defendant was charged with second degree murder in connection with the death of Mychel Cleaver. A jury found the defendant guilty of manslaughter, and the trial court sentenced the defendant to forty years at hard labor with credit for time served. The defendant appeals. For the following reasons, we affirm, with instructions.

Factual and Procedural Background

The body of the victim, Mychel Cleaver,1 was discovered in a ditch outside Lake Charles, Louisiana in January of 2012. Dwane Edward Fox, Mychel’s “on-again, off-again” boyfriend and the defendant herein, was identified as a suspect. Thereafter, the defendant claimed that Mychel had attacked him. The defendant admitted that he knocked Mychel to the floor, choked her when she was not moving, and thereafter disposed of her' body and belongings. The State charged the defendant with second degree murder, a violation of La.R.S. 14:30.1. A jury subsequently found the defendant guilty of the responsive verdict of manslaughter, a violation of La.R.S. 14:31. The trial court sentenced the defendant to forty years at hard labor with credit for time served.

The defendant appeals, asserting as error that:

I. The State failed to prove beyond a reasonable doubt that the killing was not justified to prevent either great bodily harm or death to Appellant, Dwane Fox.
II. The evidence introduced at the trial of this case, when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)[,] standard, was insufficient to prove beyond a reasonable doubt the specific intent element of either manslaughter or the original charge of second degree murder.
[889] III. The trial court failed to consider the applicable factors set forth in La.Code Crim. P. art. 894.1, and considered factors not supported by the record.
IV. The maximum sentence of forty years at . hard labor imposed upon Dwane Fox is excessive and is a violation of the Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all criminal appeals are-reviewed for errors patent. An error patent is one “that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La.Code Crim.P. art. 920(2). Our review of the record reveals one such error. Namely, the transcript of the sentencing hearing does not indicate that the trial court advised the defendant of the prescriptive period for post-conviction relief as required by La.Code Crim.P. art. 930.8. Accordingly, we direct the trial court to advise the defendant of the provisions .of Article 930.8 by sending appropriate written notice to him within ten days of the date of the rendition of this opinion and to file written proof in the record that the defendant received the notice. See State v. Malbrough, 11-1241 (La.App. 3 Cir. 6/20/12), 94 So.3d 933.

Sufficiency of the Evidence

The defendant’s first two assignments of error concern the sufficiency of the evidence. Specifically, the defendant contends that the State failed to disprove his assertion of self-defense and that the State failed to establish that the defendant possessed the necessary intent to kill required for second degree murder or manslaughter. When a defendant raises multiple assignments of error including sufficiency of the evidence, the reviewing court should first address the sufficiency laof the evidence. State v. Hearold, 603 So.2d 731 (La.1992). In State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86, the supreme court reiterated the standard of review for sufficiency of the evidence claims on appeal, stating:

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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988). A determination of the weight of evidence is a question of fact, resting, solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate court to assess credibility or re-weigh the evidence. Id.

Although initially charged with second degree murder, the defendant was convicted of the lesser charge of manslaughter. As relevant herein, manslaughter is defined in La.R.S. 14:31(A) as:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-[890] control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
(2) A homicide committed, without any intent to cause death or great bodily harm..

Second degree murder is defined, in'pertinent part, as “the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm[.]” La.R.S. 14:30.1(A).

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State v. Fox, 184 So. 3d 886, 15 La.App. 3 Cir. 692, 2016 La. App. LEXIS 178, 2016 WL 430300 (La. Ct. App. 2016).

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