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State v. Kirsh

Court of Appeals of Louisiana, First Circuit

November 1, 2017


         On Appeal from The 22nd Judicial District Court, Parish of St. Tammany, State of Louisiana Trial Court No. 555145 The Honorable Allison H. Penzato, Judge Presiding

          Warren L. Montgomery, District Attorney Matthew Caplan, Assistant District Attorney Covington, Louisiana Attorneys for Plaintiff/ Appellee, State of Louisiana.

          Peter "Q" John Baton Rouge, Louisiana Attorney for Defendant/ Appellant, Cornelius Tyrone Kirsh.


          CRAIN, J.

         The defendant, Cornelius T. Kirsh, was convicted of attempted aggravated obstruction of a highway (count one) and aggravated flight from an officer (count two).[1] He was adjudicated a second-felony habitual offender and sentenced to seven years at hard labor on count one and four years at hard labor, without probation or suspension of sentence, on count two. The state filed a second habitual offender bill of information for count two, and for that count the defendant was adjudicated a third-felony habitual offender.[2] The prior sentence for count two was vacated, and the defendant was sentenced to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant appeals alleging two counseled assignments of error and one pro se assignment of error. We affirm the convictions, habitual offender adjudication on count two, and sentences.


         On the afternoon of July 30, 2014, Slidell Police Officers Bradford Hoops and Donald Nunez, in separate vehicles, were dispatched to the area of U.S. Highway 190 (Gause Boulevard) and Walnut Street in response to a report of a suspicious vehicle, described as a white SUV, and a disturbance possibly involving a weapon. The officers approached Walnut Street from Cypress Street with their lights and sirens activated. Officer Hoops turned left onto Walnut Street traveling south, while Officer Nunez turned right onto Walnut Street, then left onto Beechwood Drive, and, at that point, also began traveling south. Beechwood Drive contains a curve and eventually intersects again with Walnut Street in the direction both officers were traveling. The speed limit in the area is twenty miles per hour.

         As Officer Hoops drove south on Walnut Street, he observed a white SUV traveling towards him in a northerly direction at an estimated speed of 50 miles per hour and accelerating. The SUV drove off the roadway to the right and then made a hard left turn onto Beechwood Drive, hitting a curb and driving in the opposing lane of travel. Officer Hoops turned right on Beechwood Drive behind the vehicle, which was still traveling well above the speed limit as it encountered and passed a group of children on the left side of Beechwood Drive.

         Officer Nunez, traveling south on Beechwood Drive, saw the white SUV coming towards him at a high rate of speed and in the wrong lane of travel. The SUV came to a stop, and as Officer Nunez positioned his patrol vehicle to block the SUV, a passenger fled the vehicle. Officer Nunez exited his patrol vehicle and held the two remaining occupants of the SUV at gunpoint. Officer Hoops arrived and briefly chased the fleeing individual before returning to assist Officer Nunez. Upon approaching the SUV, both officers detected an odor of gunpowder. The defendant was identified as the driver of the vehicle, and his juvenile brother was a passenger. The police did not recover a weapon and did not apprehend the individual who fled the scene.


         Sufficiency of the Evidence

         In his first counseled and only pro se assignment of error, the defendant contends the evidence is insufficient to support his convictions. In particular, he argues the state failed to prove he intentionally or negligently placed anyone's life in danger (attempted aggravated obstruction of a highway), intentionally refused to bring his car to a stop (aggravated flight from an officer), and committed any of the acts enumerated in the aggravated flight from an officer statute that endanger human life.

         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, an appellate court must determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt based on the entirety of the evidence, both admissible and inadmissible, viewed in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Oliphant, 13-2973 (La. 2/21/14), 133 So.3d 1255, 1258; see also La. Code Crim. Pro. art. 821B; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). When circumstantial evidence forms the basis of the conviction, the evidence "assuming every fact to be proved that the evidence tends to prove . . . must exclude every reasonable hypothesis of innocence." La. R.S. 15:438; Oliphant, 133 So.3d at 1258.

         The due process standard does not require the reviewing court to determine whether it believes the witnesses or whether it believes the evidence establishes guilt beyond a reasonable doubt. State v. Mire, 14-2295 (La. 1/27/16), ___So. 3d___, ___(2016WL314814). Rather, appellate review is limited to determining whether the facts established by the direct evidence and inferred from the circumstances established by that evidence are sufficient for any rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Alexander, 14-1619 (La.App. 1 Cir. 9/18/15), 182 So.3d 126, 129-30, writ denied, 15-1912 (La. 1/25/16), 185 So.3d 748. The weight given evidence is not subject to appellate review; therefore, evidence will not be reweighed by an appellate court to overturn a fact finder's determination of guilt. State v. Wilson, 15-1794 (La.App. 1 Cir. 4/26/17), 220 So.3d 35, 41.

         Attempted Aggravated Obstruction of ...

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