State v. Smith

907 So. 2d 192, 2005 WL 1522712
Louisiana Court of Appeal·Decided June 29, 2005·No. 39,698-KA·Published·Cited by 32 cases

Opinion

907 So.2d 192 (2005)

STATE of Louisiana, Appellee
v.
Kenneth SMITH, Appellant.

No. 39,698-KA.

Court of Appeal of Louisiana, Second Circuit.

June 29, 2005.

*193 Jack Wright, Jr., Monroe, for Appellant.

William R. Coenen, Jr., District Attorney, Johnny R. Boothe, Assistant District Attorney, for Appellee.

Before WILLIAMS, STEWART and PEATROSS, JJ.

WILLIAMS, J.

The defendant, Kenneth Smith, was charged by bill of information with aggravated battery for intentionally spraying Charles Yates with chemicals from a crop duster plane, a violation of LSA-R.S. 14:34.[1] After a bench trial, the defendant was found guilty as charged. The defendant filed a motion for new trial, which was denied by the trial court. Subsequently, the defendant was sentenced to serve five years at hard labor. The sentence was suspended and the defendant was placed on supervised probation for *194 five years. As a special condition of his probation, the defendant was ordered to pay a $2,500 fine and costs, and not to have any contact with the victim or the victim's wife. The defendant now appeals. For the following reasons, we affirm the defendant's conviction and sentence.

FACTS

On September 6, 2001, the defendant, an aerial applicator, was defoliating the cotton field adjacent to the Yates' property using the chemicals Dropp, DEF and Accelerate. The victim, Charles Yates, testified that he and his wife were visiting friends about "a half a mile away" from their house when he heard the airplane. He stated that they decided to return home to move their vehicles "to make sure they didn't get poison on them." He described the defendant's flight path as a "squeeze pattern" which started on the outside of the field and worked toward the center. Yates testified that the defendant had completed the east and west sides of the field and was working on the inside portion when he and his wife arrived home.

Yates testified that his wife warned him the defendant would "get him" immediately before the defendant flew directly above him and sprayed him. Yates testified that he could see the defendant's face at the time of the offense. Yates believed that the defendant intentionally sprayed him because the defendant dipped over a nearby power line, sprayed Yates and then pulled up over his home. Mrs. Yates testified that her husband was "directly sprayed." She stated that she "could just see all the stuff dripping down on [Yates] and he began to cough and spit." She further stated that the spray looked like "a heavy mist" and that it moved with the wind.

The defense argued at trial that if the chemicals made contact with Yates, then it was as a result of drift. The defendant testified that he did not intentionally spray Yates. He said that he used a drift retardant while defoliating the field. He stated that when applying defoliants, he flies low to the ground. At first, he testified that the wind had been blowing "out of the southwest at very little" speed. Later, he testified that he "had no way of knowing which way the wind was blowing on the north end of [the] field" where Yates had been. He testified that he returned to the field days after the incident and saw that "there was a green strip" in the cotton field adjacent to the Yates' property. However, he could not explain how the strip would not have been defoliated if drift had occurred. Instead, he agreed that "nothing drifted on the property."

Yates testified that immediately after the spraying his skin began stinging, he had a headache and he became nauseous. Mrs. Yates stated that "it was hard for him to breathe" and "he began to get very disoriented." Yates went to the Franklin Medical Center, but he could not recall how he got there or what happened. Although he was released the same day, he returned with nausea and a headache two days later. Michelle Lackovic, an employee of the Louisiana Department of Health and Hospitals, Office of Public Health, testified that common symptoms of exposure to Dropp, DEF and Accelerate include nausea, headache, dizziness and skin irritation. She stated that a "very large dose" could kill a person.

Yates filed a complaint with Jay Godfrey, an inspector of the Louisiana Department of Agriculture and Forestry. Godfrey took samples from the Yates' home, a stationary airplane and surrounding plants. He instructed Mrs. Yates to gather samples from the shirt Yates had been wearing and the vehicles. The samples taken by Godfrey and Mrs. Yates tested *195 positive for Dropp and DEF. Godfrey concluded in his report that because of the close proximity between the cotton field and the Yates' property, "a drift occurred from the application" made by the defendant. However, he later testified that based on the samples, he could not differentiate between a direct application and a drift.

At trial, the state offered evidence of a possible other crime for which the defendant was never charged or prosecuted. Yates testified that one night between midnight and 3:00 a.m. in July 2001, he saw the defendant at the airport where Yates stored his plane. The next day Yates had to make an emergency landing after the plane began shaking. Yates and Eric Young, an aircraft mechanic, repaired the plane and found material that "looked like sugar," "felt like sugar" and "tasted like sugar" in the sump screen in the bottom of the engine. Yates testified that to be in the sump screen, the sugar must have been "put in the engine oil receptacle where you put the oil in the engine."

Two witnesses testified that they had heard the defendant threaten Yates in the past. Floyd Waller testified that the defendant told him in 2000 "that any time he seen [sic] [Yates] in the air that he was going to try his best to take him down." Ronnie Cassels, Jr. testified that he heard the defendant make the same threat against Yates. Waller stated that he had heard those types of comments from the defendant on multiple occasions and that the defendant once asked him to sabotage the fuel cells in the wings of Yates' plane. According to Cassels, the defendant stated that he "would like to get somebody to do something to [Yates'] plane ... to mess with it." Waller had a prior conviction for attempted distribution of marijuana, and Cassels was previously convicted of "stealing," second degree battery and simple burglary.

The defendant waived his right to a jury trial. The parties entered into a joint stipulation that if called to testify, Dr. Robert Beine, a state chemist, and Amy Hernandez, an analyst, would state that the samples taken by Godfrey showed the presence of components found in DEF and Dropp. They also stipulated that, if called to testify, Scott McKee, general manager of A & L Analytical Laboratories, Inc., would state that a component of DEF was found on Yates' shirt. However, they further stipulated all three would testify that "[f]urther analysis would be required to provide a quantitative result and no such analysis was performed."

The defense called Dr. John Yager, a plant pathologist, who attempted to testify with regard to quantitative results that he calculated from data in the state report and to opine that the results indicated that there was no direct application. The state objected to his testimony based on the joint stipulation, arguing that the state lab results required further testing for quantitative analysis and that such testing had not been performed. The trial court sustained the objection, stating that based on the stipulation, Dr. Yager's testimony was inadmissible because the parties agreed that m

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