State Of Louisiana VS Dean Preston Bergeron, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT @ 2009 KA 1397 ye u p bJ r cJ STATE OF LOUISIANA VERSUS DEAN PRESTON BERGERON JR Judgment Rendered December On Appeal 23 2009 from the 32nd Judicial District Court In and For the Parish of Terrebonne Trial Court No 452 277 Honorable Randall L Bethancourt Joseph L Judge Presiding Counsel for Waitz Jr District Attorney Ellen Daigle Doskey Assistant District Attorney Appellee State of Louisiana Houma LA Counsel for Defendant Appellant Bertha M Hillman Louisiana Appellate Project Dean Preston Bergeron Jr Thibodaux LA BEFORE WHIPPLE HUGHES AND WELCH JJ HUGHES J The defendant Dean Preston bill of information with violation of LSA R S trial he jury sentenced to was one Bergeron of count 14 27 and 14 found guilty twelve years 1 30 and pled not He suspension of sentence to present sufficient evidence of his specific intent onto and a the State allowing five foot For the screen to He following reasons a was the State failed kill and that the trial to of the victim project images a parole probation appeals contending that now murder Following guilty hard labor without benefit of at amended unanimous verdict or court erred in charged by was attempted second degree charged by as Jr we s injuries affirm the conviction sentence FACTS On February Mardi Gras parade 7 2005 the victim Scott Lawrence Melancon attended in Houma Louisiana with his brother and father the parade the victim walked Destrie Hebert who over to some of to fight fight The victim had with Hebert The victim did not calmed Hebert Approximately through the crowd again and asked stated shit someone say Bergeron a ear with before a ten to return to was caught to never seen and Hebert minutes later the victim friend of Hebert steak knife and s ran have fun at Mardi G fight suddenly away shirt and was walking grabbed him fight The victim pushed Hebert off and Hebert and calmed him down H ey you want to walking friend Jansen Simon s as s at Hebert before his brother and father Hebert him if he wanted to Im drinking Im trying Simon As he appeared to be intoxicated grabbed the victim asked him if he wanted back his friends While a mother f cut the er victim The victim had ras The victim then heard Thereafter defendant on the throat face and never seen The victim denied that he told Hebert that he had 2 I don t need this the defendant some iron for Hebert attack s or He also denied that he ass that he had The victim throat which owned ever treated was his face which included of one a carrying gun at the time of the a gun Chabert Medical Center at his neck muscles exposed Additionally part a was required gash exposing of the victim s The wound ears was required 16 in half and cut his The wound 14 sutures his skull to to sutures 4 required sutures Tonya Lynn Cunningham She parade Hebert s saw friends was five feet from the incident only Hebert argue with the victim pulled him away but he came The victim told Hebert that he the victim and did fight After Hebert not want to defendant approached the victim and s was Cunningham never saw to started only there to friends pulled it looked like s more stuff a good time him away again the have the defendant face the Cunningham back and victim Immediately thereafter the victim the According at was slapped covered in blood any weapons and did not hear anyone mention any weapons Destrie Hebert testified like a father figure to victim after the victim was at trial The defendant He claimed that he had him bumped into him at the parade extremely intoxicated but remembered after the altercation it looked like someone was waving incident he told the white male at to the police that was an parade stand up good friend and altercation with the Hebert claimed that he approximately ten minutes somebody in front of him got slapped that he or that He conceded that at the time of the parade thought that the defendant was slapping a the parade Jansen Michael Simon also testified at trial Hebert At the his Simon helped Hebert stand up because he by himself According to was was his too intoxicated Simon the victim walked up 3 good friend to Hebert to at parade and told him that he would kick his the Simon claimed that he ass grabbed Hebert to prevent him from fighting the victim because Simon claimed that he told the victim probation he would have not that the arrived police confrontation between Hebert and the victim returned f left he stated A l1 right I got to iron for your some Simon conceded that his 2005 made no police told him to write was standing wanted victim to The with him fight state down to at the police spoke some to alleged trial at leave and ass as the victim Simon claimed that the police was on February so in a She playing iron for your the defendant pocket police were talking Simon was s girlfriend and at She did not hear the way ass the parade following the incident about However he had Neither the defendant victim made a threat recovered from the 9 threat but claimed that the When asked about the incident the defendant claimed that he did what the slapping She heard Hebert ask the victim if he parade but thought he did that he had s go break your only what he had seen May Carr also testified Heidi statement to mention of the victim hold to the first up the defendant then intervened and it looked like the defendant the victim going broke Im going Simon claimed that he told the victim ingjaw was Simon claimed that the victim Hebert after the police left and stated to and was on touch Hebert and that about Hebert because Simon to worry Simon claimed him not to Hebert nor involving a a not know steak knife in his rear any of his friends made any claim that the gun prior to the incident and no guns were scene Approximately three days after the incident the police questioned the defendant about the incident again The defendant claimed that verbal altercation the victim told Hebert that he had reached under his shirt The defendant claimed that he 4 some during a iron for him and thought the victim was pulling out approximately victim in an to and gun a he so five times to meant steak knife a When asked if he had protect Hebert the cut the defendant stated that he wanted the victim aggressive manner know that he the victim with sliced business SUFFICIENCY OF THE EVIDENCE In failed assignment of error number to establish that he victim and the offense possessed was no more the than The standard of review for conviction is whether 1 the defendant argues that the evidence requisite specific intent of the evidence sufficiency viewing the evidence in the light essential elements of the crime and the defendant s beyond of that crime be must states in prove order State 486 So 2d 485 to the a every fact to be convict identity 2 99 0802 writs denied 2d So 773 conviction is based reviewing court must resolve that evidence in the light most on 732 proved La La guilty the we test also which to 730 So 2d 1157 15 438 any conflict in the direct evidence favorable to the prosecution beyond a 5 When the direct must and the be sufficient reasonable doubt that the defendant of every essential element of the crime 730 So 2d at 487 by viewing by the direct evidence rational conclude proved both direct and circumstantial evidence for to the 2 19 99 748 RS reasonably inferred from the circumstantial evidence juror to of innocence is App 1st Cir 10 29 99 a the perpetrator as hypothesis facts was favorable that the evidence tends quoting LSA evidence is thus viewed the facts established a uphold conducting this review every reasonable Wright 98 0601 p v 2000 0895 La 1117 00 When In reasonable doubt assuming part excluded most to mindful of Louisiana s circumstantial evidence expressly m a kill the aggravated battery any rational trier of fact could conclude that the State prosecution to Wright 98 0601 at p 3 being when the Second degree murder is the killing of a human has 14 30 1 A does intent specific a or omits would have allows for a of his a inflict great a object is guilty of specific intent an the statute for the conviction based second state on completed to commit tending directly attempt to a crime toward the commit the offense he under the circumstances R S 14 27 A crime of second specific intent to kill or to degree murder inflict great bodily degree murder requires specific intent to kill Specific of mind that exists when the circumstances indicate that the actively desired the prescribed criminal failure LSA R S bodily harm actually accomplished his purpose LSA attempted intent is the or to for the purpose of and act an Although act or and it shall be immaterial whether intended offender kill Any person who having 1 accomplishing harm to offender to act LSA R S 14 consequences to follow his Specific intent need 1 10 not be proven as fact but may be inferred from the circumstances and actions of the accused The trier of fact determines whether the case State v requisite intent is present in a criminal Brown 2003 1076 pp 9 10 La App So 2d 775 781 82 writ denied 2004 0269 La 6 4 04 In reviewing the review the evidence in correctness a light of such most determine if the evidence is sufficient the defendant s guilt beyond a convince reasonable doubt a offense In the absence of internal contradiction physical evidence one sufficient support for a witness s requisite testimony the to a as or court should prosecution and must reasonable trier of fact of element of the to every irreconcilable conflict with if believed factual conclusion 868 876 So 2d 76 determination the favorable to 1st Cir 12 31 03 by the trier of fact is Brown 2003 1076 at p 10 868 So 2d at 782 The defendant claims that the evidence is sufficient battery offense as opposed to the offense of aggravated 6 to support only battery Battery a is the intentional of force 14 34 LSA R S substance or or a battery committed with instrumentality because of its an to decide for purposes of dangerous a LSA R S 14 2 3 use is a factual conviction of intent Instead the injury See State requisite trier of fact favorable thorough review of the a viewing to the evidence to defendant s identity verdict rendered as we are presented in this assess to the credibility of witnesses whole or in giving that testimony or elements of the offense reweigh v The the will a s not fact or reject in Lofton 96 1429 p 5 701 So 2d 1331 Further in reviewing the evidence was court accept 10 17 97 determination a victim alone is sufficient The trier of fact may State victim to overturn 691 So 2d 1365 s most the defendant This the evidence testimony of the part the testimony of any witness jury light jury accepted 1st Cir 3 27 97 that the rational hypothesis of against the App La a attempted second degree murder and the finder s determination of guilt The to prove the 878 proved beyond the defendant indicates that the discredit the witnesses to general criminal in the case testimony offered against the defendant while rejecting attempts the intent convinced that the perpetrator of that offense against nor the exclusion of every reasonable innocence all of the elements of Aggravated 883 So 2d 1026 could find that the evidence the State reasonable doubt and record likely 1st Cir 4 2 04 App So 2d 582 589 writ denied 2004 1105 La 10 8 04 After or question for the fact finder intent element is La other dangerousness aggravated battery Odom 2003 1772 p 8 v or liquid The battery requires neither the infliction of serious bodily harm inflict serious weapon which in the manner used is calculated great bodily harm of a includes any gas dangerous weapon instrumentality death produce A LSA R S violence upon the person of another or Aggravated battery is 14 33 to use 1368 writ denied 97 1124 we La cannot say irrational under the facts and circumstances 7 presented to them So 2d 654 662 acted with while See State It was specific to to steak knife a 946 conclude that the defendant kill the victim when he him with ing slic repeatedly irrational for the jury not intent Ordodi 2006 0207 p 14 La 1129 06 v the victim cut This throat s assignment of error is without merit GRUESOME PHOTOGRAPHS In assignment of error number 2 images projected them on the screen convict him of to at the defendant argues that the gruesome trial overwhelmed the jurors second attempted degree reason leading murder without any other evidence any fact shed Photographs which illustrate in the relevant or are case generally admissible prejudicial effect photographs to describe the person provided The trial photographic and lead them reason that their their probative to so as gruesome Brunet 95 0340 3 La 346 writ denied 96 1406 La 11 196 State using a s responded on a 5 injuries prejudicial presentation projector approximately victim the or 6 to and of testimony at to error are any gruesome effect of the will be found overwhelm the jurors screen The defense a right to see allowing the victim to 8 681 2d So of the victim argued large images outweighed 1st Cir 4 30 96 and their that more s objected to the injuries on an large images of the aggravated and the probative value the pictures and that identify 674 1258 trial the defense display photographs that the jury had screen p made his wounds appear effect of the prejudicial App So 2d 344 to issue convict the defendant without sufficient other State Prior or thing depicted allegedly No value evidence v or of if the appeal only evidence is place admission court s upon any fact probative value outweighs on will be overturned photographs clearly outweighs unless the light The State projecting them himself and point out his injuries avoided the alternative of making The State The that the disputed pointing severe projector made the victim that the injuries shown in out found that the court but photographs was were of the projection merely a matter The from to court approximately them than to The noted the objection of the defense to court the as a showing the day after the incident He identified the third injuries to He identified the fourth and to ear his head and image showing swelling as a alter the not image the at jury the the same projected images would appear smaller objection and the ruling photograph showing the injuries larger injury the images the victim allow the overruled the defense At trial the victim identified the first image see viewing were 40 feet away and thus the the attorneys of himself taken the to to seem more to photographs did parties also noted that the jurors injuries s proportion of convenience witness the attorneys and all interested time copies of the photographs numerous ear projected image photograph as a He identified the second to his neck and the projected image and the sutures to treat as photograph a the sutures to treat closer photograph of the injuries He identified the fifth image the lower part of his face and indicated that the as injury projected to showing was injuries his head an injury apparently a miss for my neck There the use of a was no error in the admission of the projector to display them to the jury clearly outweigh their challenged photographs The prejudicial effect of the high probative value photographs did photographs established the corpus delicti corroborated the victim not very or s The testimony concerning the wounds inflicted upon him by the defendant and illustrated the location and severity of those wounds issue of the defendant s intent in They were highly probative cutting the victim and were 9 not so on the gruesome as to overwhelm the jurors reason without sufficient other evidence and lead them This to convict the defendant assignment of error is without merit CONVICTION AND SENTENCE AFFIRMED 10
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