State Of Louisiana VS Troy Ray Herman
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 KA 1967 STATE OF LOUISIANA VERSUS TROY RAY HERMAN Judgment Rendered SEP 2 12012 On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No 11 09 0649 Honorable Richard Anderson Judge Presiding Hillar Moore Counsel for Appellee District Attorney State of Louisiana and Allison Miller Rutzen Assistant District Attorney Baton Rouge Louisiana Frank Sloan Mandeville Louisiana Counsel for DefendantAppellant Troy Ray Herman BEFORE WHIPPLE McCLENDON AND HIGGINBOTHAM JJ McCLENDON I Defendant Troy Ray Herman was charged by bill of information with simple kidnapping a violation of LSAR 14 count 1 and second degree S 45 battery a violation of LSA R 14 count 2 S 34 1 He entered a plea of not guilty and following a jury trial was found guilty of the responsive offense of attempted simple kidnapping See LSA R 14 For the second degree S 27D 3 battery count he was found guilty as charged Defendant filed a motion for post verdict judgment of acquittal which was denied For the attempted simple kidnapping conviction defendant was sentenced to two years imprisonment at For the second degree battery conviction defendant was sentenced hard labor to five years imprisonment at hard labor concurrently The sentences were ordered to run The State filed a multiple offender bill of information Upon his stipulation defendant was adjudicated a second felony habitual offender The trial court vacated the previously imposed five year sentence and resentenced defendant to ten years imprisonment at hard labor without benefit of probation parole or suspension of sentence The tenyear sentence was ordered to run concurrently with the twoyear sentence for the attempted simple kidnapping conviction Defendant now appeals designating two assignments of error We affirm the convictions and habitual offender adjudication we affirm the sentence on the attempted simple kidnapping conviction we amend the tenyear habitual offender sentence and affirm as amended FACTS Kacey Chaney was in a relationship with defendant On October 11 2009 Kacey and defendant began arguing Kacey left her house on Melrose Boulevard in Baton Rouge and walked to Florida Boulevard Defendant called Kacey on her cell phone apologized and picked her up in his truck As they neared their house defendant sped into the driveway and pulled Kacey out of the truck struck her in the face He Kacey ran to a neighbor house but the neighbor s refused to open the door As Kacey was leaving the house defendant caught up to her grabbed her hair and punched her knocking her to the ground As she J i lay on the ground defendant repeatedly struck her in the head and the face He also began kicking her in the back of the head and stamping on her arm He then dragged her several feet down the asphalt street He punched her a few more times in the head and face then left Kacey ran to the house of another neighbor Claudea Beeson and asked for help Claudea called 911 An ambulance transported Kacey to Baton Rouge General Hospital where she was treated for her injuries Later that same day after being released from the hospital Kacey went to her friend Bonnie house s Sometime after 10 p that evening defendant 00 m drove to Bonnie house with his cousin Tremaine Harris s While Tremaine waited in the truck defendant walked inside Bonnie house and grabbed and s slapped Kacey Kacey went to the ground to protect herself As she lay on the ground defendant kicked her She then got up defendant pushed her toward the door and he told her to get in the truck Kacey was afraid to get in the truck but did so anyway because she feared defendant would beat her more if she refused Kacey sat in the truck between defendant and Tremaine Around the time defendant was at Bonnie house a 911 call from s s Bonnie address went out but the caller hung up s Bonnie house shortly thereafter Police officers arrived at One of the officers parked his vehicle behind s defendant truck to prevent him from leaving Officer Steven Woodring with the Baton Rouge Police Department spoke with Kacey and the other officers Upon determining what had transpired defendant and Tremaine were taken to the police station and Officer Woodring took Kacey back to Bonnie shouse ASSIGNMENT OF ERROR NO 1 In his first assignment of error defendant argues that the evidence was insufficient to support the second degree battery conviction Specifically defendant contends that Kacey did not suffer serious bodily injury Defendant does not contest his conviction for attempted simple kidnapping A conviction based on insufficient evidence cannot stand as it violates Due Process See U Const amend XIV LSA Const art I S K3 2 The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not 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 beyond a reasonable doubt Jackson v Virginia 443 U 307 319 99 S 2781 S Ct P Cr 2789 61 L 560 1979 See LSAC art 8216 State v Ordodi 06 2d Ed 0207 p 10 La 11 946 So 654 660 State v Mussall 523 So 06 29 2d 2d 1305 1308 09 La 1988 The Jackson standard of review incorporated in Article 821 is an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence LSAR 15 provides that in order to convict the fact finder must S 438 be satisfied that the overall evidence excludes every reasonable hypothesis of innocence See State v Patorno 01 2585 pp 45 La 1 Cir 6 App 02 21 822 So 141 144 2d Louisiana Revised Statutes 14 provides in pertinent part 1 34 A Second degree battery is a battery when the offender intentionally inflicts serious bodily injury B For purposes of this Section serious bodily injury means bodily injury which involves unconsciousness extreme physical pain or protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member organ or mental faculty or a substantial risk of death In order to prove a second degree battery the State must prove the defendant 1 committed a battery upon another 2 without his consent and 3 intentionally inflicted serious bodily injury State v Young 001437 p 9 La 11 800 So 847 852 Second degree battery is a crime requiring 01 28 2d specific criminal intent State v Fuller 414 So 306 310 La 1982 2d Specific intent is that 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 LSAR 14 Such state of mind can be formed in S 10 1 an instant State v Cousan 942503 p 13 La 11 684 So 382 96 25 2d 390 Specific intent need not be proven as a fact but may be inferred from the circumstances of the transaction and the actions of defendant GI State v Graham 420 So 1126 1127 La 1982 The existence of specific intent is an 2d ultimate legal conclusion to be resolved by the trier of fact State v McCue 484 So 889 892 La 1 Cir 1986 2d App Defendant admits in his brief that he inflicted corporal punishment on Kacey succeeded in badly frightening her and his behavior created a great deal of juror sympathy for Kacey Nevertheless according to defendant he did not intend nor did he cause serious bodily injury to Kacey Defendant suggests Kacey suffered no serious bodily injury because her medical records indicate she neither asked for nor received a prescription for pain medication no acute distress was noted on her discharge from the hospital and according to her testimony the pain in her face lasted a couple of months and it was hard to chew food In Fuller 414 So at 310 where the supreme court addressed the 2d intent element of second degree battery the defendant hit the victim with one blow sufficient to knock him over a pool table In finding a rational trier of fact could certainly have found the defendant possessed the intent to do serious bodily harm the supreme court opined that 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 andor extreme physical pain While the victim in Fuller suffered a single blow to the face Kacey suffered several closedfist strikes to her face as well as blows and kicks to her In one of the 911 calls made while head while she was on the ground defendant was attacking Kacey the eyewitness described that she had seen defendant beating this lady real real bad She further informed the 911 operator that she saw him beating her from one end to the other and that we were just concerned cause he was kicking her and beating her real bad Accordingly any fact finder could rationally conclude that defendant intended to cause Kasey at a minimum extreme physical pain See State v Robertson 1 As noted under LSAR 14 serious bodily injury means bodily injury which involves S 34 16 among other things extreme physical pain 0 98883 p 6 La 3 Cir 12 723 So 500 504 writ denied 990658 App 98 9 2d La 6 745 So 1187 99 25 2d Regarding the extent of her injuries Kacey testified that defendant punched her in the face after pulling her out of the truck but the door was locked She ran to a house As she turned to leave defendant came from behind the house and grabbed her Defendant grabbed her hair and punched her She fell to the ground head Defendant punched her and kicked her in the back of the He stamped on her wrist He then dragged her ten to fifteen feet down the asphalt street Defendant struck Kacey a few more times before he left Kacey testified that following this beating her eyes were swollen and she could not really talk Her face was swollen and her jaws felt like they were wired She could not move her wrist and thought it was broken She was in a lot of pain from a bruised shoulder She had knots on her head After the incident it was difficult for her to chew food She stated she drank a lot of fluids for about a week The pain in her face lasted a couple of months Claudea Beeson whose house Kacey ran inside crying for help testified at trial that Kacey would not use one of her arms arm to her body with her other arm Kacey was holding her injured Deputy Woodring testified at trial that when he stopped defendant and Kacey in defendant struck after Kacey had received treatment at the hospital he observed that she had a cast on her arm and two black eyes s Kacey medical records from Baton Rouge General Hospital were submitted into evidence at trial The Clinician History section stated beat up by boyfriend left lower arm swollen splinted by ems kicked in face o c jaw pain and difficulty closing mouth abrasions to left knee and right elbow bruise to left eye The medical records indicated that while Kacey did not have any broken bones she had a sprained right wrist The trier of fact is free to accept or reject in whole or in part the testimony of any witness The trier of fact determination of the weight to be s given evidence is not subject to appellate review 1 An appellate court will not reweigh the evidence to overturn a fact finder determination of guilt State v s Taylor 972261 pp 5 La 1 Cir 9 721 So 929 932 Further 6 App 98 25 2d we are constitutionally precluded from acting as a thirteenth juror in assessing what weight to give evidence in criminal cases See State v Mitchell 993342 p 8 La 10 772 So 78 83 00 17 2d The jury guilty verdict indicates that after considering the credibility of s the witnesses and weighing the evidence it accepted the testimony of Kacey Officer Woodring and Claudea Beeson regarding the extent of Kacey injuries s and the pain she suffered In the absence of internal contradiction or irreconcilable conflict with the physical evidence one witness testimony if s believed by the trier of fact is sufficient to support a factual conclusion State v Higgins 03 1980 p 6 La 4 898 So 1219 1226 cert denied 546 05 1 2d S U 883 126 S 182 163 L 187 2005 Ct 2d Ed Further the testimony of the victim alone is sufficient to prove the elements of the offense State v Orgeron 512 So 467 469 La 1 Cir 1987 writ denied 519 So 113 2d App 2d La 1988 A rational interpretation of the evidence adduced is that defendant in repeatedly punching and kicking Kacey in the face head and arm intended to cause her extreme physical pain and that Kacey in fact suffered extreme physical pain due to simultaneous multiple injuries she suffered including to her jaw face shoulder and wrist See State v Odom 03 1772 pp 67 La 1 App Cir 4 878 So 582 58788 writ denied 041105 La 10 883 04 2 2d 04 8 2d So 1026 State v Accardo 466 So 549 551 53 La 5 Cir writ 2d App denied 468 So 1204 La 1985 2d After a thorough review of the record we find that the evidence supports the jury verdict We are convinced that viewing the evidence in the light most s favorable to the State any rational trier of fact could have found beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that defendant was guilty of second degree battery Calloway 072306 La 1 1 So 417 per curiam 09 21 3d This assignment of error is without merit 7 See State v ASSIGNMENT OF ERROR NO Z In his second assignment of error defendant argues that his tenyear sentence as a habitual offender is excessive Specifically defendant contends his sentence is illegally excessive because it was imposed without the benefit of parole Defendant is correct Following defendant adjudication as a second felony habitual offender s the trial court vacated the original fiveyear sentence for the second degree battery conviction and resentenced defendant to ten years imprisonment at hard labor without benefit of probation parole or suspension of sentence pursuant Both the minute to LSAR 15 prior to the 2010 amendments S 529 a 1 1A entry and the criminal commitment order also indicate defendant tenyear s sentence is without the benefit of parole Neither LSA R 15 S 529 a 1 1A nor LSAR 14 the penalty provision for second degree battery contains S 34 1C a restriction on parole Thus the denial of parole eligibility on defendant sten year sentence is unlawful See State ex rel Calvin v State 03 0870 La 04 2 4 869 So 866 Accordingly we amend defendant sentence to delete 2d s that portion providing that the sentence be served without benefit of parole Resentencing is not required Because the trial court sentenced defendant to the maximum possible period of imprisonment it is not necessary for us to remand for resentencing after removing the parole prohibition 882A See LSA C art P Cr However we remand the case and order the district court to amend the commitment order and the minute entry of the sentencing accordingly State v Benedict 607 So 817 823 La 1 Cir 1992 2d App See See also State v Miller 962040 p 3 La 1 Cir 11 703 So 698 700 01 writ App 97 7 2d denied 98 0039 La 5 719 So 459 98 15 2d CONVICTIONS AND HABITUAL OFFENDER ADJUDICATION SENTENCE ON ATTEMPTED SIMPLE KIDNAPPING AFFIRMED CONVICTION AFFIRMED HABITUAL OFFENDER SENTENCE AMENDED BY REMOVING PAROLE RESTRICTION AND AFFIRMED AS AMENDED REMANDED WITH ORDER 1
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