APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 517-704, SECTION " F" . Honorable Robin D. Pittman, Judge.
Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Assistant District Attorney, Chief of Appeals, 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 Terri F. Love, Judge Daniel L. Dysart, Judge Rosemary Ledet). Judge Daniel L. Dysart.
Daniel L. Dysart,
[2014-0939 La.App. 4 Cir. 1] Ryan Miner appeals his conviction by an Orleans Parish jury of second degree battery, challenging the sufficiency of the evidence used to convict him and arguing that his constitutional right to judicial review has been violated. For the reasons that follow, we affirm Mr. Miner's conviction and sentence.
By bill of information dated October 1, 2013, defendant, Ryan Miner, was charged with battery with a dangerous weapon. The bill of information specified that the battery was committed with a " prison shank" and identifies the victim as A.J. Baker. Mr. Miner pled not guilty to the charge and, after several continuances, was tried before a six-member jury on May 6, 2014. Mr. Miner was unanimously found guilty of the offense of second degree battery, a violation of La. R.S. 14:34.1. Following a denial of Mr. Miner's motions for new trial and for post-verdict judgment of acquittal, the trial court sentenced Mr. Miner to serve five years at hard labor, with credit for time served,
which sentence was to run concurrently with any other sentences. The trial court also ordered Mr. Miner to pay court costs of $276.50. After the trial court denied Mr. Miner's motion to reconsider sentence, Mr. Miner timely filed this appeal.
[2014-0939 La.App. 4 Cir. 2] ERRORS PATENT
Our review of the record revealed one patent error which we address first. The bill of information charges Mr. Miner with " battery with a dangerous weapon, to wit: a prison shank," which is not a crime recognized by our law. It likewise states the date of the offense as August 2, 2013, when the record clearly indicates that the incident occurred on August 1, 2013. However, we hold that both of these discrepancies constitute harmless error.
As to the failure of the bill of information to properly charge Mr. Miner, we find no reversible error. We note that a defendant has a constitutional right to be advised of the charges against him, and an indictment must apprise a defendant " of the essential facts constituting the offense charged ... [and] shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated." La. C.Cr.P. art. 464. However, Article 464 further provides that " [e]rror in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice."
In State v. Phillips, 10-0582, (La.App. 4 Cir. 2/17/11), 61 So.3d 130, this Court considered whether a bill of information, defective in that it failed to cite the proper statute, warranted the reversal of a conviction. There, the defendant was charged with " theft of a wallet ... by use of force, intimidation, or by snatching." Id., 10-0582, p. 10, 61 So.3d at 137. This specific crime was also one not recognized by Louisiana law. Rather, the defendant should have been charged [2014-0939 La.App. 4 Cir. 3] with, and was convicted of, purse snatching, a violation of La. R.S. 14:65.1. We held that, although the bill of information did not " track the exact language of a statute or cite the statute, it [gave] fair notice of the crime of which the defendant was charged and ultimately convicted" and " complie[d] with La.C.Cr.P. article 464 in that it did not mislead defendant to his prejudice." Id. 10-0582, pp. 10-11, 61 So.3d at 137. See also, State v. Perkins, 12-0662, p. 3 (La.App. 4 Cir. 10/29/14), 155 So.3d 649, 2014 WL 7662476 (where a bill of information was " defective because it failed to charge a crime punishable by a valid statute ... there was no motion to quash the bill of information filed." ).
In the instant matter, we find that the bill of information sufficiently notified Mr. Miner of the crime for which he was charged and convicted. " Aggravated battery" is defined as " a battery committed with a dangerous weapon." La. R.S. 14:34(A). The bill of information charged Mr. Miner with " battery with a dangerous weapon," which is the very definition of " aggravated battery." Mr. Miner was ultimately convicted of second degree battery, a responsive verdict to the charge of aggravated battery pursuant to La. C.Cr.Pr. art. 814(A)(14). Accordingly, we find that Mr. Miner was not misled or prejudiced by this omission. We likewise note that Mr.
Miner did not file a bill of particulars or a motion to quash the bill of information, which waives any such error in the bill of information. See, e. g., State v. Stukes, 08-1217, p. 11 (La.App. 4 Cir. 9/9/09), 19 So.3d 1233, 1241 ( " the defendant's failure to file a motion to quash ... waived any [2014-0939 La.App. 4 Cir. 4] error from this omission.); State v. Allen, 01-2494, p. 1 (La. 6/21/02), 824 So.2d 344, 344 ( per curiam ) (" A defendant must raise a claim that the indictment does not provide ...