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
L. Montgomery, District Attorney Matthew Caplan, Assistant
District Attorney Covington, Louisiana Attorneys for
Plaintiff/ Appellee, State of Louisiana.
"Q" John Baton Rouge, Louisiana Attorney for
Defendant/ Appellant, Cornelius Tyrone Kirsh.
BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
defendant, Cornelius T. Kirsh, was convicted of attempted
aggravated obstruction of a highway (count one) and
aggravated flight from an officer (count two). 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. 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.
AND PROCEDURAL HISTORY
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.
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.
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.
of the Evidence
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.
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.
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.
Aggravated Obstruction of ...