State Of Louisiana VS Antwoene Irving

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST GIRCLTIT NO 2013 KA 0535 STATE OF LOUISIANA VERSUS ANTWOENE IRVING Judgment k Rendered v N 1 20 3 x On Appeal from the 20th Judicial District Court In and for the Parish of East Feliciana G i State of Louisiana C Trial Court 11345 No Honorable George H Ware Jr Judge Presiding x Samuel C Aquilla D Attorney Stewart B Hughes Assistant District Attorney St Francisville L Atturneys for Appellee District State of Louisiana James P Manasseh Attorneys for Defendant Appellant Antwoene Irving Andre Belanger Baton Rouge LA x BEFORE KUHIv HIGGINBOTIIAM AND THERIOT J7 I HIGGINBOTHAM J The defendant Antwoene Iz was charged by grand jury indictment with second degree murder a violation of La R 14 He pled not guilty and S 30 1 following a jury trial was found guilty as charged The defendant filed a motion for post judgment of acquittal which as denied verdict The defendant was sentenced to life imprisonment at hard labor without benefit of parole probation ar suspension of sentence The defendant now appeals designating three assignments of errar We affirm the conviction and sentence FACTS After dating far a brief period the defendant and Kiewanna Sopsher began living together in Kiewanna trailer on Central Avenue in Roseland Tangipahoa s Parish s Kiewanna young son and daughter also lived with them According to several relatives of Kiewanna who testified at trial the defendant began physically abusing Kiewanna On different occasions Kiewanna had an injured lip marks and scratches on her bumps on her head and bruises on her neck A short time later to get away from the defendant Kiewanna moved out of the trailer and into the home of her sister who lived about one mile from Kiewanna half On the evening of April 5 2011 Kiewanna drove her eleven son old year Dareale to the trailer they had lived in so that Dareale could get a belt for school When Dareale got to the door of the trailer he saw the defendant standing near s Kiewanna vehicle a Buick Rendezvous talking to her Moments later Dareale heard his mother scream and saw the defendant inside the vehicle choking Kiewanna accusing her of having been with another man Dareale tried to get the defendant off of his mother but the defendant kicked Dareale to the ground The defendant then jumped in the driver seat and drove the Buick away with s Kiewanna in the front passenger seat turned onto Washington Avenue Less than one mile away the defendant As he drove Kiewanna was somehow ejected 2 from the vehicle After hittzng th roaciway sY may also have been run over by e the rear wheel of the vehicle The defendarit stop picked up Kiewanna who ed was not breathing and plac her on the backseat tloorboard d He then drove around for about three hours inclading as far north as McComb Mississippi After talking on a cell phone to s people k knz the defendant turned himself me ew in to the poliee Th Buick with Ibody still in it was found on La s iewanna Hwy 67 in East Feliciana Parish Dr Susan Garcia the pathoiogist who performed the autopsy on Kiewanna testified that the cause of death was a hinge fracture to the skull Dr Garcia explained that Kiewanna had a fracture line across the base of her skuil which usually causes severe debilitating injury to that part of the brain stem that is crucial to functioning and often results in instantaneous death The defendant was interviewed by the polic In a recorded statement the e defendant said that Kiewanna asked him to go for a ride The defendant denied trying to choke Kiewanna or that Dareale tried to stop him admitted that during their relationship he had The defendant choked Kiewanna once The defendant claimed that while he was driving Kiewaxma sumehow fell from the vehicle because she apparenily thought the defendant was going to beat her up After she hit the ground the defendant stated that he felt the back tire run over a bump He then stopped the vehicle picked u Kiewanna placed her in ihe vehicle and drove around Th defendant dzd not tesr at trial fy LAW AND NALYSIS In three related assignments of error ihe defendant argues respectively 1 the trial court erred in failing to instruct the jury the State had to prove the victim died from a direct act of the defendant 2 the trial court erred in denying the motion for post judgment of acquittal regarding the felony murder rule verdict 3 i which required proofof a direcf acY of offezider as a prerequisite of iurder and the 3 the evidence was insuf to suppurt the second degree murdex conviction fcient The defendant suggests that all of the assignments of error address one issue the proof of necessarv support for a second degree murder conviction under the felony murder rule A convictian based ou insufficient evidence cannot stand as it violates Due Process See U Const amend XIV La Const S art I 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 2789 S Ct 61 L560 1979 See La Code Crim P art 821 State v Ordodi 2006 2d Ed B 0207 La 11 946 So 654 660 State v 523 So 1305 1308 06 29 2d Mussall 2d 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 hen W analyzing circumstantial evidence La R 15 S 438 provides that the factfinder must be satisfied the overall ecideuce excludes every reasonable hypothesis of innocence See State Patorno Z001 La App 2585 lst Cir 6822 So 141 144 02 21 2d Three criminal statutes are at issue in this appeal Th first statute relates to second degree murder in La R 14 S 30 1and provides in pertinent part A Second degree murder is the killing of a human being 1 When the offender has a specific intent to kill or to inflict great bodily harm or 2 When the offender is engaged in the perpetration or attempted perpetration of aggravated burglary or second degree kidnapping bodily harm even though he has no intent to kill or to inflict great The second criminal statute relates to second degree kidnappin found at La R S 4 1and pravides in pertinent pare 44 14 A Second degree kidnapping s Yhe aing of any of the acts listed in Subsection B wherein the ti is ictirri 2 tTsed to facilitate the commission af a zetony or the flaght after an attexnpx tv coznmit or the ccr oi a felony r3ission a 3 Physically injured c seaually abused r B For purposes of this Section kidnapping is 1 The forcible seizing ar carrying of any person from one place to d another or 2 The enticing or persuading of any person to go from one place ta another or 3 The imprisoning ar forcible secreting of any person Louisiana Revised Statute 14e60 is the third cri statuta at issue regarding inal aggravated burglary and providing in pertinent part Aggravated burglary is the unauthorized entering of any inhabited dwelling or of any structure water craft or movable where a person is present with thF intent to commiY a felony ur any theft therein if the offender 3 Commits a battery upon any person while in such place or in entering orleaving such place Specific intent is an issue under the second degre murder statute S ecific intent is that state of mind that exists when the circumstances indicate that the offender actively desired the preseribed crimznal consequences ta follow his act or failure to act La R 1 Such state of mind can be formed in an instant S 4 10 SYate v Cousan 94 503 La 11 684 So 382 390 Specific intent need 96 25 2d not b proven as a fact but may be inferred from the circlzznstances of the transaction and the acrions of th defendant Staite v Graham 420 So 1126 2d 1127 La 1982 The existence of specific intent is an ultimate legal conclusion I to I 5 be resolved by the trier of fact State v McCue 484 So 889 892 La App lst 2d 1986 Cir The defendant does not contest the pertinent facts in this case namely that he took control of Kiewanna vehicle he arove around with her in the passenger s seat and at 5 point during the drive Kiewann fell or was ejected out of the me moving vehicle and died as a result of the injuries she sustained Confined to a single legal issue the defendant argues that the State failed to establish that his actions constituted the direct act of killing Kiewanna Relying on a recent Louisiana Supreme Court decision State v Small 2011 La 10 100 2796 12 16 So3d 797 the defendant contends that the State inability to establish that he s pushed Kiewanna out of the car precludes the State from proving an essential element of the crime According to the defendant the prosecution stbeory that Kiewanna threw herself from the moving vehicle to avoid being beaten by the defendant is simply the articulation of the proximate cause standard The defendant notes in his brief that with regard to the felony murder rule the court in Small rejected tkie proximate cause test and adopted the agency test which requires the State to prove the offender performed the direct act of killing Id 100 So3d at 807 The defendant further argues that the Supreme Court s pronouncement in Small was a refinement fthe felony murder rule In Small 100 So at 799 the defendant left her six and seven 3d 804 year old children alone in their apartment while she went to a friend shome to drink A fire broke out in the apartment the six succumbed to smoke inhalation old year I and died a few days later Indicted for second degree murder the prosecution argued the defendant was guilty of second degree felony murder having committed the underlying felony of cruelt to juveniles defined in La R 14 as the y S 93 intentional ar criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby unjustifiable 6 pain or suffering is caused to said child he 1 defendant was found guilty as charged and the appellate court affirmed h convictioix r However the Supreme Caurt reversed the conviction for second degree murder in Small 100 So3d at Oi finding that the offense of cruelty to 10 juveniles under these circumstances entailed conduct that involved criminal negligence for lack of supervision Tl tlhere was no direct ax of k instead us t illing the act was a negative act The Supreme Court further noted that second degree murder was a of violence and that cruelty to juveniles and second degree crime cruelty to juveniles were the only crimes included in the felony murder rule list s of enumerated felonies that could be committed by an act of neglect Id 100 So3d at 809 All of the other crimes involve physical force or the substantial risk of the use of physical force While neglect could be interpreted to include lack of supervision to use the cruelty to auveniles statutes to extend second degree felony murder into the realm of lack of supervision removed the use of any physical force ar the substantial risk of physical force that these crimes of violence entailed Id 100 So3d at 810 The court added that while the instant matter was distinguishable from some of its prior decisions in that there was no third party involved causing the death those cases still required that the offender perform the direct act of killing and accordingly xhe Supreme Court saw no necessity that a third party commit an act of killing in order to apply the agency doctrine The defendant reliance on and interpretation of Small are misplaced s Rather than having refined any law in Smalt as suggested by the defendant the Supreme Court reaffirmed that the felony murder rule has been consistently interpreted the same for over fifty years in this State that is from the 1959 decision of State v Garner 23 La 563 115 So 855 1959 up to the Small 2d decision in 2012 the felony murder rule has required that a direct act of a defendant cause the death of the victim 7 In Small 100 So at 807 the 3d 08 Supreme Court noted that in 200Q it reaffirmed Garner requirement of a direct s act of killing in State v Myers 99 La 4 760 So 310 315 and 849 I 00 11 2d the court itself concluded that the agency test as se forth in Garner is still the law in Louisiana and that the phpsical eierrzent of the defendant act r conduct in s causin the death must srill b provem The agency test adopted in I ouzsiana rec that a act of the uires direct defendant or his accomplice commit the act of killing and that the proximate cause test rejected by our Supreme Court holds the defendant responsible for all deaths that foreseeably result from the acts of defendant and co Small 100 So3d felons at 807 However in reviewing some of its prior jurisprudence the Supreme 09 Court in Small 100 So at 81 made clear that regarding causation it is not 3d essential that the act of the defendant should have been the sole cause of the death it is sufficient that the act hastened the termination of life or contributed mediately or immediately to the death in a degree sufficient to be a clearly contributing cause See State v Mathews 450 So 644 646 La 1984 The Supreme Court 2d further note that in previous decisionso it had found the State could establish causation by shavving the defendarlt cc was a factor in s nduct substantial bringing about the forbidden result or that tYze defendant acts were a clearly s contriburing cause of death Small 1b0 Soe3d at 812 In the instant natter the defendant stateci that Iiiewa jump na dor fe11 from the vehicle and similarly the theory ofihe defense was that Kiewanna voluntarily ejected herself from the vehicle Detective Don MeKey with the East Feliciana Parish Sherff Office testified the defendant tcjld him that when Kiewanna was s hanging on the vehicle he grabbed her trying to keep her from jumping The s prosecution theory was thai Kiewanna leapt from the moving vehicle to get away from Yhe defendant When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense that 8 hypothesis falls and the defeaxdas7t is guilty nless there is another hypothesis which raises a reasor aoubt State v Moten 51 So 55 61 La App lst able 0 2d Cir writ denied 514 So 126 La 1987 Wk asked in his second interview 2d en with the police why he thougkrt sh trz to get out of the car the defendant stated d that Kiewanna lcziew that he wa goi to beut ex up or some ng hing Several witriesses testified at trial that the defendant physically abused Kiewanna on several occasions leaving marks and scratches on her including on her neck A short time before she was killed Kiewanna had broken up with the defendant left her own trailer atid moved in with her sister to get away from the defendant On the night she was killed the defendant had attacked choked and kidnapped Kiewanna and apparently refused to let her out of her vehicle as he drove away Thus the jury verdict reflected the reasonable conclusion that based s on the physical evidence and the eyewitness testimony Kiewanna aumped from the vehicle because she was in fear of receiving great bodily harm from the defendant or even of being killed See Moten S 10 S at 61 On appeal the reviewing 2d court does not determine whether an pussible hypothesis suggested by a Yher defendant could afford an exculpaYory explanation of the events State v Mitchell 99 La 10 772 So 78 83 see State v Juluke 98 3342 00 17 2d 0341 La 1725 So 1291 12y3 per curiam 99 8 2d The defendant contention that the State failed to prove the direct act of s killing because Kiewanna elected to eject nerself from the car is baseless Kiewanna ejected herself from the vehzcle on her own volition to escape direct acts of violence upon her person by the def See Small 100 So at 812 ndant 3d Kiewanna was killed while the defendant was engaged in the perpetration of the second degree kidnapping of her or while he was engaged in an aggravated burglary As such the defendant conduct was a substantial factor in bringing s about kiewanna death See State v George 39 La App 2d Cir 7 s 772 OS 1 9 908 So 79 84 the defendaiit second de felony coni was 2d 85 s ree murder affirmed where ghe victim who hacj b forcad znw a car trunk after the attempted n foreible rape by the defendant jwnpeci out cif the mo ear and died from her ing injuries See also State v Hano 095 La App lst Cir 6i9 938 So 2090 6 l 2d 181 191 writ denied 2Q La 26 948 o 164 State v 93 1713 16 07 2d Davies 35 I App 2d C 4I5 813 So luti2 126 writ denied 2002 783 a i 0j 2d 1564 La 519 843 So 389 03 2d In his statements to the police the defendarnf said that Kiewanna invited him to take a ride and that the next thing he knew while he was driving her vehicle she just fell out of the vehicle The defendant explained that before she fell out of the vehicle she was hanging on the door frame facing the defendant with her legs hanging outside of the vehicle Then some point she let go Had the defendant at been invited into the vehicle or had not entered it against Kiewanna will then the s State could not have established the underlying felony of aggravated burglary or second degree kidnapping However testir a physical evidence suggest the ony nd defendant was not invited into the vehicle and Kiewanna had no intention of riding around with him Kiewanna had broken up with the defendant and moved out of her own trailer to get away f hi rom n On xhe night the defendant got into her vehicle Kiewanna had only made a c ride over to the trailer with her son uick Dareale so that he could get a belt far school Kiewanna was wearing pajama bottoms and apparently wore no shoes when she drove to the trailer actions strongly indicative of her intending a very tirief trip from her sister house and s back Dareale testified that before he went into the trailer to get his belt he saw the deferidant choking Kiewanna while he had her pushed back into the front passenger seat Dareale intervened and tried to get the defendant off of his mother but the defendant kicked him knocking him out of the vehicle before taking off with Kiewanna still in the vehicle Kiewanna jumped out of her vehicle only 10 10 of a mile from where the defendant abducted her Detective Mike Moore with the Tangipahoa Parish Sheriff Office iestified thai he drove the 4i 10 of a mile s distance from where Kiewanna was abductec to where Kiew blood was s anna found on the roadway the spoti where she allegedly jumped from the vehicle According tu T Moore that drive took only seconds The autopsy revealed etective that Kiewanna had linear abrasions on the rig and left sides af tier neck In her left eye she had petechiae burst blood vessels usually caused by strangulation Dr Garcia testified that her neck injuries were not caused from hitting the road but were consistent with being choked The jury heard the testimony and viewed the evidence presented to it at trial and found the defendant guilty as chargede Moten 510 2d So at 62 61 In the The defendant did not testify See 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 2003 La 4 898 Sa2d 1219 1226 cert denied 546 U 1980 OS 1 S 883 126 S 182 163 L 187 2005 Moreover the trier of fact is free to Ct 2d Ed accept or reject in whole or in part the testimony of any witness T trier of he s fact determination of the weighi to be given e is not subject to appellate idence review An appellate court will not reweigTn the evidence to overturn a factfinder s detennination of guilt State v Taylor 97 La App lst Cir 9 721 2261 98 25 2d So 929 932 We are constitutionally precluded from acting as a thirteenth juror in assessing what weight to give evidence in criminal cases See Mitchell 772 So at 83 2d The fact that fhe record contains evidence which confliets with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient State v Quinn 479 So 592 596 La App lst Cir 1985j 2d Whether the jury believed the defendant pushed Kiewanna out of the vehicle or 11 that she jumped from the vehicle cannot be ascertained from the guilty verdict Regardless under either scenario the defenciant would be gtzilty uf second degree murder because to have pushed her would hai e indicated a specific intent to kill or to inflict great bodily hann and if she jumped it w to avoid Eurther abuse at the as hands of the defendant while he was engaged in the perpetration of an aggravated burglary or econd degree kidnapping We note as well the defendant actions of leaving the scene where s Kiewanna was injured and probably deceased taking the body with him and driving around for hours are actions that are inconsistent with a theory of innocence Flight following an offense reasonably raises the inference of a guilty mind State v Captville 448 So 676 680 n La 1984 see State v Fuller 2d 4 418 So 591 593 La 1982 flight and attempt to avoid apprehension indicate 2d consciousness of guilt and therefore are circnmstances from which a juror may infer guilt After a thorough review of the record we find that the evidence supports the s jury unanimous verdict We are convinced tihat vi th evidence in the light wing e most favorable to the State any rafrorial trier of fact could have found beyond a reasonable doubt and to the ekclusion of the hypothesis of innocznce suggested by the defense at trial that the defendant was gui of the second degree murder of lty Kiewanna Sopsher See State v Calloway 2007 La 1 I So 417 2306 09j 21 3d 418 per curiam Acco the trial court did not err in denying the postverdict rdingly judgment of acquittal The defendant also argues the trial court erred in refusing to include the s defendant request for the jury charge that Kiewanna died as a direct act of the defendant Specifically during trial ciefense counsel smotion for jury instructions requested the following language be provided to the jury The State of Louisiana must prove that the physical element of Antwoene Irving act or conduct in s 12 causing the death may only be shuwn by proof that h performed the direct act of killing Finding that the charge wou or confuse the jury the trial court d ly denied the motion provided the enumerated We find no error in the trial court ruling The trial court s fizll definition pf second dc murder less the gre felonies in its juiy charges irrelevant Ihis statutory deiin ad tion quately covered the applicable law or as h Crial coun pointed out at tlle notion over hearing and as discussed above to include such language about the direct act of killing would lead the jury to coriclude that the defendant had to actually touch push shoot grab stab batter or whatever to be guilty under the felony murder statute but the jurisprudence does not support that contention Accordingly these assignments of error are without merit CONVICTION AND SENTENCE AFFIRMED 13

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