from the 17th Judicial District Court in and for
the Parish of Lafourche, Louisiana Trial Court No. 512286
Honorable John E. LeBlanc, Judge.
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.
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. For the following reasons, we affirm the
convictions and sentences.
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.
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.
OF THE EVIDENCE
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.
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
Second Degree Battery and Two Counts of Aggravated
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).
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.
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.
"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).
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.
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
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.
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).
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).
Criminal Damage to Property
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.
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,