State v. Young

769 So. 2d 6, 99 La.App. 1 Cir. 1309, 2000 La. App. LEXIS 874, 2000 WL 489515
Louisiana Court of Appeal·Decided April 17, 2000·No. No. 99 KA 1309·Published·Cited by 2 cases

Opinions

J¿FOIL, J.

Defendant, Earl Blake Young, was charged by bill of information with at[7]*7tempted armed robbery, a violation of La. R.S. 14:27 and La. R.S. 14:64 (Count 1), and with attempted second degree murder, a violation of La. R.S. 14:27 and La. R.S. 14:30.1. (Count 2). He pled not guilty. After a preliminary examination, the trial court found no probable cause on Count 1 and probable cause on Count 2. The state amended the bill of information to charge defendant with attempted simple robbery, a violation of La. R.S. 14:27 and La. R.S. 14:65 (Count 1), and with second degree battery, a violation of La. R.S. 14:34.1 (Count 2).1 After a trial, the jury found defendant guilty as charged. Defendant filed motions for new trial and post-verdict judgment of acquittal, which were denied. The trial court sentenced defendant to three and one-half years at hard labor for the attempted simple robbery conviction and to five years at hard labor for the second degree battery conviction. The sentences were ordered to run consecutively. Thereafter, the state filed a bill of information charging defendant as a fourth felony habitual offender. After a hearing, the trial court took the matter under advisement. Subsequently, the trial court adjudicated defendant as a third felony habitual offender. The court sentenced defendant to life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence.2

FACTS

At approximately 6:50 p.m. on August 14, 1995, New Roads Police Department Detective John R. Jarreau was called to investigate a crime at Hambrick’s Grocery. He arrived at about 7:10 p.m. and saw the victim, Mr. Fred Hambrick, receiving emergency treatment. The victim’s throat was red, there was |3a small amount of blood coming from his eye, and he was twisting his head from side to side. Inside the store, he saw several objects that appeared to have been pulled or knocked down from the shelves behind the cash register and counter. As a result of his investigation, the detective arrested defendant. When the detective asked defendant what happened, he said that he and Mr. Hambrick had gotten into a fight. On cross-examination, the detective stated that the store’s cash register was closed when he arrived inside the building.

Dr. Christopher Ritter, who was qualified as an expert in internal medicine, was the emergency room physician who treated the victim. During the treatment, the victim was excited, agitated and in mild distress. The victim told the' doctor that the attacker attempted to choke him. The victim had a bloody nose and tenderness in the thyroid area below the larynx (the bone in the lower throat area). Dr. Ritter testified that the injuries were consistent with difficulty in talking because of the proximity to the vocal cords and the area where the air is moved in and out of the lungs. The doctor further testified that although the victim’s injuries did not result in a substantial risk of death, choking could have.

The doctor admitted that the hospital records indicate the victim’s condition was good and that he was released after treatment in the emergency room. Mr. Hambrick was conscious and not in any extreme physical pain. He had neither protracted or obvious disfigurement, protracted loss or impairment of a function of a bodily member or organ, nor substantial risk of death when he treated him. However, the doctor admitted that complaints of continued difficulty or [8]*8symptoms of frequent coughing and clearing the throat would be a manifestation of impairment of a bodily function which would not have been seen shortly after the incident. Additionally, the doctor admitted that a person who was choked to the Upoint of substantial risk of death and who lost consciousness could be treated at a hospital and discharged; there was not a lot of treatment for that type of injury.

Because the victim died before the trial from a condition unrelated to the attack, the transcript of the victim’s testimony at the November 1995 preliminary examination hearing was introduced during the trial. This transcript revealed that Mr. Hambrick owned a gas station and grocery store in New Roads. He had one cash register and a long counter near the entrance of the store. In the late afternoon of August 14, 1995, the victim was on the cash register side of the counter doing bookkeeping. While his back was slightly turned, defendant jumped on top of the counter and dove on top of him. Defendant grabbed the victim by the neck and stated, “I got you. I got you.” The men fell into a corner and the seventy-two year old victim was able to free himself using a technique he learned in the army. During the struggle, the victim recognized defendant and wanted to know the reason for the attack. The men knocked over glass jars behind the counter and continued to fight until the victim was able to knock defendant outside the store’s door. Defendant jumped the fence and fled. The victim was certain about his identification of defendant as the perpetrator. When asked if defendant demanded money or anything, the victim replied that he believed defendant did not make this demand because he was too busy choking him. He explained that when he kept calling defendant by name and asked the reason for the attack, defendant only dug his fingers deeper into his throat. The victim also stated that he continued to have problems with his throat.

Mr. Robert Theodore testified that he lives one street from the victim’s grocery store. On the day of the incident, he recognized defendant by name and saw him walking fast behind his house. Mr. Theodore asked defendant what he was doing there and he replied that “he had a fight on the corner with some | ¡¿youngster.” Mr. Theodore was leaving in his car and defendant asked for a ride to his home.

Ella Hambrick, the victim’s wife, testified that she and her daughter were in her home near the grocery store. Around 6:30 p.m., a young woman ran to her house and told her to go to the store. Mrs. Ham-brick immediately ran to the store and saw her husband, out of breath, hardly able to talk and sitting on a chair. He complained that his throat burned, hurt and was irritated, and stated that he was choked “so terribly he could hardly breathe.” The victim also stated that he believed he was going to die. When he returned home from the hospital, the victim was in bed for about a week and his wife applied towels and ointment to his throat. She recalled that the victim’s voice was hoarse and that he had trouble talking and did not eat much. Although the hoarseness subsided some, it never stopped entirely.

Defendant did not present any evidence.

SUFFICIENCY OF THE EVIDENCE

In his sole assignment of error, defendant argues that the evidence was insufficient to support his convictions. Specifically, he contends that there was insufficient evidence of the element of specific intent to take anything of value required for the attempted simple robbery conviction. He also argues that the state did not prove the specific intent to cause serious bodily injury to the victim which was a necessary element for the second degree battery conviction.

The state counters that the facts support a finding that defendant attempted to choke the victim “to the point of unconsciousness or even death, so that he could rob [the victim].” It further argues that [9]

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State v. Young, 769 So. 2d 6, 99 La.App. 1 Cir. 1309, 2000 La. App. LEXIS 874, 2000 WL 489515 (La. Ct. App. 2000).

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