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State v. Marsh

Court of Appeals of Louisiana, Fourth Circuit

November 8, 2017

STATE OF LOUISIANA
v.
JERMENY MARSH

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 521-652, SECTION "L" Honorable Franz Zibilich, Judge, CONVICTION AND SENTENCE VACATED; REMANDED.

          Leon Cannizzaro District Attorney J. Taylor Gray Assistant District Attorney DISTRICT ATTORNEY'S OFFICE ORLEANS PARISH COUNSEL FOR APPELLEE, STATE OF LOUISIANA

          Christopher A. Aberle LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT, JERMENY MARSH

          Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew Woods, Judge Terrel J. Broussard, Pro Tempore

          Judge Terrel J. Broussard, Pro Tempore

          Defendant, Jermeny Marsh ("Defendant"), was charged by bill of information with battery of a correctional facility employee while under the jurisdiction and legal custody of the "Youth Study Center." On February 5, 2015, Defendant elected a bench trial. The district court rendered a verdict of guilty of attempted battery of a correctional facility employee and imposed a sentence of ninety days in the parish jail, with credit for time served, to run consecutively with any other sentences.

         Defendant timely filed an out-of-time appeal which was granted.[1] On appeal, Defendant assigns two errors: (1) his conviction of attempted battery of a correctional facility employee is not a valid offense under Louisiana law; and (2) the State presented insufficient evidence to support the charged offense.

         As set forth in the reasons below, we vacate Defendant's conviction and sentence and remand the matter to the district court for further proceedings.

          FACTS AND PROCEDURAL HISTORY:

         Defendant was charged with battery of a correctional facility employee, a violation of La.R.S. 14:34.5 which provides in pertinent part:

A. (1) Battery of a correctional facility employee is a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a correctional facility employee acting in the performance of his duty.
(2) For purposes of this Section, "correctional facility employee" means any employee of any jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility.
* * *
B. (1) Whoever commits the crime of battery of a correctional facility employee shall be fined not more than five hundred dollars and imprisoned not less than fifteen days nor more than six months without benefit of suspension of sentence.
(2) If at the time of the commission of the offense the offender is under the jurisdiction and legal custody of the Department of Public Safety and Corrections, or is being detained in any jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility, the offender shall be fined not more than one thousand dollars and imprisoned with or without hard labor without benefit of parole, probation, or suspension of sentence for not less than one year nor more than five years. Such sentence shall be consecutive to any other sentence imposed for violation of the provisions of any state criminal law. [2]

         At the trial, only one witness testified. Officer Brittany Jackson ("Officer Jackson") of the New Orleans Police Department testified that Defendant was detained at the "Youth Study Center" ("the facility"). Officer Jackson recalled she was summoned to the facility on August 9, 2014, around 5:52 p.m. to investigate a complaint by Officer Robert Canon ("Officer Canon") who worked at the facility.[3]Officer Jackson explained that Officer Canon alleged he was investigating an altercation at the detention center when Defendant approached him. Officer Canon told Defendant to get back. Defendant belligerently retorted he ran the place and pushed Officer Canon. Defendant was arrested the same day by Officer Jackson for the charge of simple battery of a correctional facility employee.

         At the conclusion of the bench trial, Defendant's attorney requested the district court find Defendant guilty of the lesser included offense, the misdemeanor. The district court questioned whether the attorney was referring to an attempt charge. Defendant's attorney responded, "Just like an attempt. [sic] Or [sic] the evidence can be legally sufficient to submit to the jury the charge of second-degree murder, and the jury could come back with manslaughter, even though the evidence is legally sufficient." The State reurged the charge was battery of a correction officer in a facility (La.R.S. 14:34.5). The district court found Defendant guilty "as charged." Defendant waived sentencing delays. The district court noted, on the record, that Defendant had been in jail since August 9, and sentenced Defendant to ninety days, credit for time served. The State, citing section (B)(2) of La.R.S. 14:34.5, argued that the sentence was illegally lenient, and Defendant's attorney urged the lesser included offense made more sense. The district court stated, "[D]ue to the additional deliberations, [it] finds the defendant guilty of attempt [14:]34.5, " and it imposed a sentence of ...


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