State v. Zihlavsky

764 So. 2d 250, 2000 WL 792427
CourtLouisiana Court of Appeal
DecidedJune 21, 2000
Docket33,467-KA
StatusPublished
Cited by2 cases

This text of 764 So. 2d 250 (State v. Zihlavsky) 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. Zihlavsky, 764 So. 2d 250, 2000 WL 792427 (La. Ct. App. 2000).

Opinion

764 So.2d 250 (2000)

STATE of Louisiana, Appellee,
v.
Michael ZIHLAVSKY, Appellant.

No. 33,467-KA.

Court of Appeal of Louisiana, Second Circuit.

June 21, 2000.

*252 Peggy J. Sullivan, Louisiana Appellate Project, Counsel for Appellant.

Richard Ieyoub, Attorney General, Counsel for Appellee.

Before GASKINS, CARAWAY and PEATROSS, JJ.

GASKINS, J.

Following a jury trial, the defendant, Michael Zihlavsky, was convicted as charged of aggravated kidnapping, a violation of La. R.S. 14:44. The trial court sentenced the defendant to the mandatory term of life imprisonment, without benefit of parole, probation or suspension of sentence. The defendant's conviction and sentence are affirmed.

FACTS

On March 1, 1998, the defendant enticed a seven-year-old girl into his car under the guise that he knew where her lost cat was and would take her to it. Once the victim was in the defendant's car, he locked the doors and refused to allow her to get out of the car. The defendant then took the victim to a secluded wooded area and threatened to kill her or members of her family unless she did as he ordered. The defendant removed the victim's clothes and his boxer shorts. He inserted his finger in the child's vagina, causing a tear in her hymen. The defendant ordered the victim to perform oral sex on him to the point of ejaculation. He forced the victim to swallow his ejaculate, stating that if she spit it out he would make her lick "every drop of it" off of his car seat. He also put a lubricant on her finger and ordered her to insert it into his anus. During the commission of these acts, the defendant was armed with a knife which he held to the victim's neck.

After achieving his sexual gratification, the defendant took the victim to a restaurant near her house. Before releasing her from his car, the defendant told the child to tell her parents that she had become lost while looking for her cat. He threatened to kill her and her family if she told anyone about what he had done; in furtherance of this, he claimed to have a police scanner which would allow him to ascertain if the police were notified. The defendant gave the victim 35 cents to use a pay phone inside the restaurant to call her parents.

When the victim entered the restaurant, crying and disoriented, restaurant workers came to her assistance. The police and the child's family were notified of the incident, and she was transported to a hospital for a medical examination.

*253 The police swiftly developed the defendant as a suspect. Among other things, the victim was able to describe a tattoo on the defendant's arm and several identifying features about his vehicle, including the shape of cracks in its windshield. The victim picked the defendant out of a photo line-up, and he was arrested within days of the kidnapping. It was discovered that the defendant, who had shoulder-length hair at the time of the offense, had tried to change his appearance almost immediately afterwards by cutting his hair. DNA analysis of a fecal stain found on the jeans worn by the victim at the time of the assault conclusively matched it to the defendant.

At trial, defense counsel admitted during opening statement that the defendant was the perpetrator of this offense and stated that the facts of this "horrible" crime would not be disputed. However, the defense asserted that, even accepting all the facts presented by the state, the defendant could only be convicted of the lesser included offense of second degree kidnapping.

A unanimous jury convicted the defendant as charged of aggravated kidnapping. The defendant filed a motion for post verdict judgment of acquittal and/or modification of verdict. The trial court denied the motion and imposed the mandatory sentence of life imprisonment without benefit of parole, probation or suspension of sentence.

The defendant appealed, asserting five assignments of error which present three basic issues for our consideration.

SUFFICIENCY OF EVIDENCE

Three of the defendant's assignments of error attack the sufficiency of the evidence and assert improper jury instruction. Specifically, the defendant argues that the state did not prove an essential element of the offense of aggravated kidnapping, i.e., forcing the victim, or some other person, to give up anything of value in order to secure her release.

Aggravated kidnapping is defined in La. R.S. 14:44, in pertinent part, as follows:

Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender's actual or apparent control:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

Second degree kidnapping is defined in La. R.S. 14:44.1, in pertinent part, as follows:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(1) Used as a shield or hostage;
(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
(3) Physically injured or sexually abused;
(4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5); or
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another; or
*254 (2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency of 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. State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333; State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992).

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.

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Related

State v. Thomas
902 So. 2d 1166 (Louisiana Court of Appeal, 2005)
State v. Will
860 So. 2d 140 (Louisiana Court of Appeal, 2003)

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Bluebook (online)
764 So. 2d 250, 2000 WL 792427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-zihlavsky-lactapp-2000.