State v. Johnson

187 So. 3d 35, 2015 La.App. 4 Cir. 0679, 2016 La. App. LEXIS 182, 2016 WL 454059
CourtLouisiana Court of Appeal
DecidedFebruary 3, 2016
DocketNo. 2015-KA-0679
StatusPublished
Cited by1 cases

This text of 187 So. 3d 35 (State v. Johnson) 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. Johnson, 187 So. 3d 35, 2015 La.App. 4 Cir. 0679, 2016 La. App. LEXIS 182, 2016 WL 454059 (La. Ct. App. 2016).

Opinion

PAUL A. BONIN, Judge.

| (The jury found Keith Johnson guilty of the second degree battery of his girlfriend, Sonya Herbert, and of possession of cocaine. He appeals his convictions and assigns two errors.

Conceding that he battered his girlfriend, he first argues that the evidence is nonetheless insufficient to establish all the essential elements of second degree battery. We have reviewed this assignment of error under the well-known Jackson v. Virginia standard and find that, viewing the evidence in the light most favorable to the prosecution, any rational fact-finder could be convinced beyond a reasonable that every essential element of the crime charged was proved.

Next he argues that the trial judge should have granted a mistrial because of the prosecutor’s comments during rebuttal closing argument. The three comments, characterized by Mr. Johnson as improper and unsubstantiated by the evidence, all related to the possession of cocaine count. We find, however, that the trial judge did [37]*37not abuse her discretion in denying his motion for mistrial. '' >

^Accordingly, we affirm Mr. Johnson’s convictions and sentences.1 We explain our conclusions in more detail below.

I

The defense asserts that the prosecution failed to prove that Mr. Johnson had the* specific intent to cause serious injury, to Ms. Herbert. We, of course, review ⅛ facts in the light most favorable to, the prosecution when reviewing a conviction for sufficiency of evidence. See. Jackson, v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). ¿ ... ,. •

A

Sonya Herbert, the defendant’s girlfriend, had gone to the store to buy beer and cigarettes. When she returned, to the home she shared with Mr. Johnson, she found him smoking crack cocaine, wifh his “podnah.” She berated Mr. Johnson for his behavior. He then began beating her and caused her to fall to the floor. At that point, according to the uncontradicted testimony of Ms. Herbert, he began kicking her and continued to do so for about twenty-five minutes. He was wearing' steel-toed boots at the time. Ms. Herbert tried to stand up and being unable to do so, she told Mr. Johnson he had broken her* ankle; to which' he rejoined “You’re lucky that I didn’t bréak your [ass].” :

|sShe managed to call 9-1-1. The police and emergency medical technicians arrived and observed bruising on Ms. Herbert’s head. Her ankle was also broken in two places. These injuries were also observed and treated at the Ochsner Baptist emergency room. She was still experiencing pain from her ankle injuries at the time of the trial.

As we understand Mr. Johnson’s argument, Ms. Herbert’s injuries are not as serious as one would expect if her testimony about Mr.-Johnson’s unrelenting kicking occurred as she described it. And, in support of this view of the evidence, he argües that the fractures of her ankle were more consistent with her simply having fallen to the floor and not as a result of any kicking. The problem with the defendant’s view of the evidence is not that it is not plausible; but rather it does not establish that the prosecution’s view, which is favored, is implausible. See State v. Armstead, 14-0036, p. 12 (La.App. 4 Cir. 1/28/15), 159 So.3d 502, 512 (citing State v. Mussall, 523 So.2d 1305, 1311 (La.1988)).

B

Battery, for our purposes here, is defined as “the intentional use of force or violence upon the person of another.” La. R.S. 14:33. Second degree battery, the offense for which Mr. Johnson was convicted, “is a battery when the offender intentionally inflicts serious bodily injury”. La. R.S. 14:34.1 A (emphasis added). And “ ‘[s]erious bodily injury" means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, 14or protracted loss or [38]*38impairment of the function of a bodily member, or mental faculty, or a substantial risk of death.” La. R.S. 14:34.1 B(3) (emphasis added).

Thus, the prosecution was required to prove beyond a reasonable doubt each of the following essential elements of the offense: (1) that Mr. Johnson specifically intended (2) to inflict serious bodily injury to Ms. Herbert. See La. R.S, 14:34.1 A; State v. Welch, 615 So.2d 300, 302 (La. 1993) (citing State v. Fuller, 414 So.2d 306 (La.1982)).2 Specific intent is defined -as the “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). . Specific intent may be inferred from the circumstances surrounding the , offense and the actions of the defendant, see State v. Bishop, 01-2548, p. 4 (La.1/14/03), 835 So.2d 434, 437, and “can be formed in an instant.” State v. Rivers, 14-0511, p. 6 (La.App. 4 Cir. 2/25/15), 160 So.3d 1108, 1111 (citation omitted).

The testimony reflects that Mr, Johnson physically threw, Ms. Herbert Onto the floor and kicked her repeatedly fo,r 25 minutes while wearing steel-toed boots. Upon their arrival at the scene, two police officers- testified that they observed Ms. Herbert limping in pain, with an extremely swollen ankle and visible bruising. Ms. Herbert’s treating physician testified that the victim had broken her ankle in two places and sustained bruising to her head. Ms. Herbert testified that she was informed she would probably require surgery and stated she had to use crutches for jBsix to eight weeks following the incident. At trial, she made clear that she did not fall on her own, but rather was pushed to the floor by defendant. Ms. Herbert also testified she continued to experience pain in her ankle, more- than a year after the incident.

Mr. Johnson argues that Ms. Herbert’s injuries were more consistent with a fall than with being kicked while on the ground, but at trial he did not present evidence to contradict’ the prosecution’s account, and the jury evidently did not credit his theory. See Armstead, 14-0036, p. 13, 159 So.3d at 513. Further, although he ' points out that Ms. Herbert’s version of events' was uncorroborated, it is well-established that, absent internal contradiction, the testimony of a single witness, if believed by the fact finder, is sufficient to support a conviction. See State v. Marshall, 04-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369 (citing State v. Legrand, 864 So.2d 89, 94 (La.2003)). And because Ms. Herbert’s testimony was not implausible or clearly contrary to the evidence, we will not overturn the jury’s presumed acceptance of it. See Armstead, 14-0036, p. 12, 159 So.3d at 512 (citing Mussall, 523 So.2d at 1311).

We therefore find that, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could infer from the extent of Ms. Herbert’s injuries-and the defendant’s conduct that Mr. Johnson had the specific intent to cause Ms. Herbert serious bodily injury beyond a reasonable doubt. See generally Fuller, 414 Sp.2d at 310 (“When a. much stronger man hits a younger, smaller man, . the fact finder could rationally conclude that the offender intended to cause, | ^at a minimum, unconsciousness and/or extreme physical pain.”). Accordingly, the evi[39]*39dence is sufficient to sustain a conviction of second degree battery.

II

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Bluebook (online)
187 So. 3d 35, 2015 La.App. 4 Cir. 0679, 2016 La. App. LEXIS 182, 2016 WL 454059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-johnson-lactapp-2016.