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State v. Kitchen

Court of Appeals of Louisiana, First Circuit

September 15, 2017

STATE OF LOUISIANA
v.
DAREN Q. KITCHEN

         Appealed from the 17th Judicial District Court in and for the Parish of Lafourche, Louisiana Trial Court No. 512286 Honorable John E. LeBlanc, Judge.

          RICKY L. BABIN DISTRICT ATIORNEY LARRY W. BUQUO! DONALD D. CANDELL ASSISTANT DISTRICT ATIORNEYS 23Ro JUDICIAL DISTRICT COURT GONZALES, LA. ATIORNEYS FOR ST ATE OF LOUISIANA.

          ANTHONY P. LEWIS THIBODAUX, LA, ATIORNEY FOR DEFENDANT-APPELLANT DAREN Q. KITCHEN.

          BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.

          PETTIGREW, J.

         Defendant, Daren Q. Kitchen, was charged by bill of information with aggravated second degree battery, a violation of La. R.S. 14:34.7 (count 1); aggravated criminal damage to property, a violation of La. R.S. 14:55 (count 2); and two counts of aggravated battery, violations of La. R.S. 14:34 (counts 3 & 4). He pled not guilty and, following a jury trial, was found guilty as charged on all counts. He filed motions for new trial and post-verdict judgment of acquittal, which the trial court denied. Thereafter, the trial court sentenced defendant to ten years at hard labor on each count, all to run consecutively. Defendant now appeals, alleging several assignments of error and requesting a patent error review.[1] For the following reasons, we affirm the convictions and sentences.

         FACTS

         On the evening of July 2, 2012, Jennifer Morvant and Kenneth Gravois were talking in the driveway of Morvant's home in Lafourche Parish when a black pickup truck drove by her home. Defendant, Morvant's ex-boyfriend, was a passenger in the truck at this point. As the truck drove past Morvant's home, defendant yelled, "Oh, hell no, " from the passenger's-side window. Fearful of defendant, Morvant entered Gravois's truck and instructed him to drive away from the area.

         Gravois drove his truck down La. Hwy. 304 in the direction of Thibodaux. As Gravois neared a church in Chackbay, the black pickup truck that drove by Morvant's home pulled beside Gravois's vehicle. Defendant was now driving the truck, and the truck's owner, Purnell Cage, was riding in the truck's passenger's seat. Defendant began to motion for Gravois to stop his truck, but Gravois continued to drive away, ultimately turning onto La. Hwy. 20. Gravois drove his truck at a high rate of speed to attempt to evade defendant, but defendant caught up and began to ram Gravois's vehicle with Cage's truck. As the front bumper of Cage's truck and the rear bumper of Gravois's vehicle impacted, defendant accelerated, causing both vehicles to gain speed. Defendant then pulled into the oncoming lane of traffic and rammed the left side of Gravois's vehicle. As defendant drove beside him, Gravois slowed his vehicle, and defendant cut back into the proper lane of travel. As defendant did so, he clipped the front bumper of Gravois's vehicle, causing both vehicles to spin off the roadway. Gravois's vehicle ended up in the yard of a home in an adjacent subdivision. He eventually drove his vehicle to a nearby park, where he waited for police assistance. The vehicle driven by defendant ended up in a ditch located off the side of the roadway. Cage suffered severe injuries and was transported to the hospital for treatment.

         SUFFICIENCY OF THE EVIDENCE

         Defendant contends that the trial court erred in denying his motion for post-verdict judgment of acquittal because the evidence presented at trial was insufficient to support his convictions. A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider whether, after 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. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207, p. 10 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-1309 (La. 1988). The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585, p. 5 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 144.

         When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601, p. 3 (La.App. 1 Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732.

         Aggravated Second Degree Battery and Two Counts of Aggravated Battery

         In pertinent part, battery is the intentional use of force or violence upon the person of another. See La. R.S. 14:33. Aggravated second degree battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury. La. R.S. l4:34.7(A). "Serious bodily injury" means bodily injury that 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. La. R.S. l4:34.7(B)(3).

         Aggravated second degree battery, like second degree battery, is a specific intent offense. See State v. Daigle, 439 So.2d 595, 598 (La.App. 1 Cir. 1983). Specific intent is that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be proved by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. State v. Johnson, 461 So.2d 1273, 1277 (La.App. 1 Cir. 1984). Under the theory of transferred intent, if the State can prove that a defendant possessed the necessary intent to inflict serious bodily injury upon an intended victim, but accidentally caused the same to another victim instead, such intent is transferred to the actual victim. See State v. Druilhet, 97-1717, p. 4 (La.App. 1 Or. 6/29/98), 716 So.2d 422, 424.

         Aggravated battery is a battery committed with a dangerous weapon. La. R.S. l4:34(A). Aggravated battery requires proof of general intent, i.e., a showing that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2); see also State v. Howard, 94-0023, p. 3 (La. 6/3/94), 638 So.2d 216, 217 (per curiam). General intent may be proven by evidence that the defendant did the acts that have been declared criminal. Howard, 94-0023 at 3, 638 So.2d at 217.

         A "dangerous weapon" includes any instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm. See La. R.S. l4:2(A)(3). An automobile used in a manner calculated to produce or likely to produce death or great bodily harm has been found to be a dangerous weapon. See State v. Trahan, 416 So.2d 65, 68 (La. 1982).

         Defendant did not testify at trial. Defendant contends that the State failed to carry its burden of proving how the ultimate accident occurred or negating the possibility that the collisions were caused by Gravois's slowing his vehicle rather than defendant's alleged intentional ramming.

         Contrary to defendant's assertions, the uncontroverted testimonies from the three victims in this case indicate that defendant acted with specific intent in attempting to ram Gravois's vehicle off the road. The victims' testimonies reflect that defendant actively pursued Gravois's vehicle and rammed it several times from behind and the side. When the vehicles' bumpers became locked together, defendant accelerated his vehicle, despite driving on a two-lane highway at night. When Gravois attempted to slow his vehicle to evade defendant, defendant turned back into Gravois's lane of travel, clipped the front end of Gravois's vehicle, and ultimately caused both vehicles to leave the roadway. The resultant crash caused severe injuries to Cage, including broken ribs, a fractured sternum, a broken hip, several lacerations, and at least a partial loss of consciousness.

         Viewed in the light most favorable to the State, the evidence establishes that defendant utilized an automobile as a dangerous weapon and intentionally used force against Gravois and Morvant by ramming their vehicle. The facts surrounding the incident - including the violent acts of ramming, the high rate of speed, the narrow roadway, and the time of day - evince intent to inflict serious bodily injury upon Gravois and Morvant. This intent was transferred to Cage, who ultimately suffered both extreme physical pain and the protracted impairment of function of a bodily member, particularly his leg.

         When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). The jury's verdicts in this case reflected the reasonable conclusion that defendant utilized a dangerous weapon to inflict force or violence upon all three victims, including Cage, who suffered serious bodily injury. In finding defendant guilty, the jury rejected the theory that Gravois caused the accident by slowing down. See Moten, 510 So.2d at 61. In accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder, a court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law. State v. Mire, 2014-2295, p. 8 (La. 1/27/16), __So.3d__, __, 2016 WL 314814 (per curiam).

         After a thorough review of the record, we find that the evidence supports the jury's verdicts finding defendant guilty of aggravated second degree battery and two counts of aggravated battery. We are convinced that viewing the evidence in the light most favorable to the prosecution, and to the exclusion of every reasonable hypothesis of innocence, any rational trier of fact could have found beyond a reasonable doubt that defendant was guilty of these offenses. See State v. Calloway, 2007-2306, pp. 9-10 (La. 1/21/09), 1 So.3d 417, 422 (per curiam).

         Aggravated Criminal Damage to Property

         Aggravated criminal damage to property is the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion. La. R.S. 14:55(A). While the punishment for simple criminal damage to property is dependent upon the amount of damage to the property, no such requirement exists for aggravated criminal damage to property. See State v. Bates, 37, 282, p. 13 (La.App. 2 Cir. 10/16/03), 859 So.2d 841, 849, writ denied, 2004-0141 (La. 5/21/04), 874 So.2d 173.

         At trial, both Gravois and Cain Labat, a mechanic, testified to the nature and amount of damage done to Gravois's vehicle. Additionally, for the reasons stated above, the evidence was sufficient to demonstrate that defendant caused this damage and, in doing so, created a situation wherein it was foreseeable that human life was endangered. Therefore, the ...


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