APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 516-961, SECTION " H" . Honorable Camille Buras, Judge.
Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Chief of Appeals, Assistant District Attorney, Christopher J. Ponoroff, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE/ STATE OF LOUISIANA.
Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.
(Court composed of Judge
Max N. Tobias, Jr., Judge Edwin A. Lombard, Judge Madeleine M. Landrieu).
LANDRIEU, J., CONCURS IN THE RESULT.
Edwin A. Lombard,
[2014-0954 La.App. 4 Cir. 1] The defendant, Grayling E. Jackson, appeals, arguing that the evidence is insufficient to support his conviction for aggravated battery, a violation of La. Rev. Stat. 14:34. After review of the record in light of the applicable law and arguments of the parties, the defendant's conviction is affirmed.
Relevant Procedural History
The defendant was initially charged by bill of information with armed robbery with a firearm, attempted second degree murder, and felon in possession of a firearm. On February 18, 2014, the State amended the bill of information to charge the defendant with aggravated battery rather than attempted second degree murder. On February 20, 2013, after a three-day trial, the defendant was convicted only on the aggravated battery charge. The State charged him as a multiple offender and, after pleading guilty to being a second offender, the defendant was sentenced on June 5, 2014, to serve fifteen years at hard labor with credit for time served.
Battery is statutorily defined as " the intentional use of force or violence upon the person of another," La. Rev. Stat. 14:33, and " [a]ggravated battery is a [2014-0954 La.App. 4 Cir. 2] battery committed with a dangerous weapon." La. Rev. Stat. 14:34. Because aggravated battery is a crime of general intent, " the State need only prove the offender must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act." State v. Wix, 2002-1493,
p. 9 (La.App. 4 Cir. 1/15/03), 838 So.2d 41, 47. Thus, " [u]nder general principles of accessorial liability 'all parties [to a crime] are guilty for deviations from the common plan which are the foreseeable consequences of carrying out the plan.... Acting in concert, each man then became responsible not only for his own acts but for the acts of the other.'" Wix, 2002-1493, p. 9, 838 So.2d at 48 (citations omitted); see also La. Rev. Stat. 14:24 ( " All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission or directly or indirectly counsel or procure another to commit the crime, are principals." ). In reviewing a defendant's conviction as a principal, a reviewing court looks to evidence of actions preceding a given offense, during the offense, and after the offense. State v. Quac Tran, 08-1103, p. 9 (La.App. 4 Cir. 8/13/09), 18 So.3d 165, 170.
Standard of Review
In Louisiana, we review sufficiency of the evidence to support a conviction utilizing the Jackson v. Virginia standard wherein an appellate court must determine whether, viewed 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. State v. Captville, 448 So.2d 676, 678 (La. 1984) (citations omitted). Under this standard, a reviewing court may " impinge on the actual fact finder's discretion 'only to the extent necessary to guarantee the fundamental protection of due process of law.'" State v. Marshall, 04-3139, p. 5 (La. 11/29/06), [2014-0954 La.App. 4 Cir. 3] 943 So.2d 362, 367 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Thus, the Jackson standard " neither permits a reviewing court to second guess the rational credibility determinations of the fact finder at trial . . . nor requires a reviewing court to consider the rationality of the thought processes employed by a particular fact finder in reaching a verdict." Marshall, supra. Accordingly, the " focus of the inquiry . . . necessarily remains on 'not whether this jury should have found the evidence sufficient but whether any jury could have done so.'" Marshall, 04-3139, p. 6, 943 So.2d at 367 (citations omitted; emphasis in original).
It is undisputed that that the charges against the defendant in this matter arise out of an attempted drug transaction that took place on June 20, 2013, at the victim's residence in the Audubon Pointe apartments in Algiers. It is also undisputed that the victim, Keithan Tolliver, was a marijuana dealer. The following evidence was adduced at trial.
Colleen English, the property manager of Audubon Pointe of Algiers, testified that on June 20, 2013, she was pulling out of the leasing office onto the main drive of the property when a dark silver Dodge sedan almost hit her vehicle. Ms. English attempted to follow it to get the license plate, but was unable to catch up with the Dodge because it was moving at a high rate of speed. Ms. English saw a man on the side of the road in red shorts and a white tank jump out of the way when the Dodge attempted to hit him. She observed a man in the backseat of the Dodge with mid-length dreadlocks, wearing a black hat and a yellow shirt, hanging out the rear driver's side window. According to Ms. English, the man with red shorts was very frantic after the incident and trying to leave in a white 1980s sedan. When asked, he denied knowing the man who tried to hit him with the car. [2014-0954 La.App. 4 Cir. 4] Ms. English called the police and, upon their arrival, discerned that man with the red
shorts (Mr. Tolliver) leased the apartment at 4121 Maple Leaf. Ms. English identified photographs of the victim's apartment and testified that the photographs accurately portrayed the apartment as it existed on June 20, 2013. She noted that that the pictures show blood on the door frame of the apartment, on the doorknob, on the couch in the living room, in the hallway near the breaker box and under the thermostat, and on the corner wall near the entrance to the kitchen.
On cross-examination, Ms. English conceded she did not hear shots fired, but that she explained that her radio was on and she was talking on the phone with a friend at the time of the incident.
Latanya Doubout testified that in June of 2013, she lived at 4121 Maple Leaf Drive with her two children and boyfriend, Mr. Tolliver, a marijuana dealer. On the day of the incident, Ms. Doubout was upstairs with her two children when Mr. Tolliver went downstairs to meet a man known as " Brian," subsequently identified by Ms. Doubout in open court as the defendant. She heard three people conversing downstairs, including Mr. Tolliver and the defendant. Ms. Doubout testified that she heard the defendant say " Get down on the floor. N**** get down on the floor" and then heard someone being hit with a gun or being pistol whipped. Upon hearing what was apparently a physical altercation, Ms. Doubout moved her children into the bathroom and closed the door, but returned to the door of the bedroom to listen. She then overheard the defendant tell Mr. Tolliver to walk to the door, followed by sounds of the back gate being kicked open. After determining that no one was present, Ms. Doubout went downstairs and walked outside. Mr. Tolliver was standing in the middle of the street but, as she watched, he backed to the side of the street to avoid the approaching gray Dodge Charger. [2014-0954 La.App. 4 Cir. 5] According to Ms. Doubout, the Dodge Charger slowed down and the defendant fired shots out of the rear window, hitting Mr. Tolliver. She estimated that she heard five or six gunshots. Ms. Doubout was unable to identify the driver of the Dodge Charger or the other passengers. After the incident, Ms. Doubout checked on her children and Mr. Tolliver was taken to the hospital.
On cross-examination, Ms. Doubout testified that she had known the defendant for a couple of months and had seen him at the apartment three to four times. She conceded that she did not speak with the defendant frequently and was only in his company once or twice as he primarily dealt with Mr. Tolliver. She insisted, however, that that she saw the defendant hanging out of the car's rear passenger window and shooting at Mr. Tolliver.
On redirect, Ms. Doubout conceded that things were hectic and happening fast when she ran outside. She did not remember describing the man who shot at Mr. Tolliver to the police as wearing a yellow shirt. Ms. Doubout testified that she heard the defendant's voice when he previously came to the apartment and, accordingly, on the day of the incident she ...