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State v. Deubler

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2017

STATE OF LOUISIANA
v.
KEVIN DEUBLER

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 14-2802, DIVISION "H" HONORABLE GLENN B. ANSARDI, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux, Anne M. Wallis, Molly Massey.

          COUNSEL FOR DEFENDANT/APPELLANT, KEVIN DEUBLER Mary Constance Hanes DEFENDANT/APPELLANT, KEVIN DEUBLER In Proper Person.

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson

          FREDERICKA HOMBERG WICKER, JUDGE

         Defendant appeals his conviction for cruelty to the infirmed in violation of La. R.S. 14:93.3, and his enhanced twenty-year sentence as a multiple offender under La. R.S. 15:529.1. For the following reasons, we affirm defendant's conviction and his sentence, as amended, to remove the restriction on parole eligibility.

         STATEMENT OF THE CASE

         On July 3, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant, Kevin Deubler, with cruelty to the infirmed in violation of La. R.S. 14:93.3.[1] On July 8, 2014, defendant was arraigned and entered a plea of not guilty. On September 2, 2015, the State filed a Motion to Perpetuate Victim/Witness for Preservation of Testimony for Trial. The trial court considered the State's motion and held a preliminary examination on December 17, 2015, at which the alleged victim and an investigating officer testified.[2]Defendant waived his right to a jury trial and, on November 28, 2016, the trial judge found defendant guilty as charged.[3]

         On January 3, 2017, defendant filed a Motion for New Trial, which the trial judge denied. On March 7, 2017, after defendant waived sentencing delays, the trial judge sentenced defendant to seven years at hard labor without any restrictions. The State filed a multiple offender bill against defendant and, on April 4, 2017, the trial judge found defendant to be a third felony offender pursuant to La. R.S. 15:529.1. The trial court vacated defendant's original sentence and sentenced defendant to twenty years in the Department of Corrections without benefit of probation, parole, or suspension of sentence.[4] This timely appeal follows.

         FACTUAL BACKGROUND

         Officer Eric Meyers[5] with the Harahan Police Department testified that, on May 21, 2014, he was on duty at the Harahan police station when Ms. Deubler walked in to report an incident involving her son. Ms. Deubler provided two recorded statements to Officer Meyers. In her statements, Ms. Deubler provided that on the morning of May 21, 2014, her son, defendant, came home from the store after he had consumed alcoholic beverages and "started roughing [her] up." Ms. Deubler reported that defendant hit her with a little baseball bat and that she tried to get away from him, but he kept following her around the house. She also reported that defendant grabbed her shirt, tore the buttons off, and tried to choke her with her shirt collar, to the point that she was briefly unable to breathe. She also reported that he showed her a "nice little knife" and its blade, which he threatened to use on her that night.[6]

         Officer Meyers recalled that at the time Ms. Deubler came in to the police station, she seemed frightened and feared for her safety. He further recalled that Ms. Deubler was "covered" in bruises, some of which appeared older and in the process of healing while others appeared fresh. Officer Meyers recalled that the bruises were consistent with Ms. Deubler's account of the events. Investigating officers took photographs of Ms. Deubler's injuries, which were introduced into evidence and reflect bruising and injuries consistent with Ms. Deubler's statements to Officer Meyers. After Ms. Deubler provided her statements, Officer Meyers obtained her permission to enter her home to arrest defendant.

         When Officer Meyers and Jefferson Parish deputies arrived to the house, they attempted to enter by unlocking the front door but felt resistance. Eventually, the officers discovered that defendant had duct taped the door's locking mechanism from the inside.[7] Once they realized this, they applied force to the duct tape to gain entrance to the house and arrested defendant.[8] Defendant did not make any statements at the time of his arrest.

         Rebecca Deist, a paramedic with the East Jefferson "EMS, " was called on May 21, 2014, to assess Ms. Deubler's physical condition at the Harahan Police Department. Ms. Deist testified that Ms. Deubler refused medical treatment and refused to be transported to the hospital. Ms. Deist created a "run report" of her assessment, wherein she documented Ms. Deubler's sustained injuries.

         Christine Butler testified at trial that she is Ms. Deubler's daughter and defendant's sister. Ms. Butler testified that her mother is eighty-six years old and suffers from dementia. She explained that Ms. Deubler was diagnosed with dementia approximately one year after the incident involving defendant and that, although she takes prescription medication, the condition continued to worsen.

         Ms. Butler confirmed that, in 2014, defendant resided with their mother in Harahan. She received a phone call from her uncle on the morning of May 22, 2014, which caused her to bring her mother to Ochsner emergency room that morning. She further testified that the photographs introduced into evidence accurately depicted the visible bruising to Ms. Deubler's body and that she had never seen any similar bruising on her mother's body prior to May 22, 2014. At trial, Ms. Butler identified a letter dated July 31, 2014, written in defendant's handwriting, which was mailed to Ms. Deubler at her home address. The letter, introduced into evidence at trial, contains apologies and asks for Ms. Deubler's forgiveness, stating that she was never the "intended target of [his] angers."[9]

         Ms. Deubler testified at trial that she was eighty-six years old, her date of birth was December 20, 1929, and she had three children, Al Deubler, Christine Butler, and defendant. When asked about her memory, she said it was "shot, " and it was "not there" for her. She stated clearly that her memory had "gotten worse" and that she could not make sense of many of the questions asked. Ms. Deubler stated she could not recall exactly why she was in court but that she knew she was there because of something to do with her son, defendant. When shown the photographs introduced into evidence of her injuries, Ms. Deubler identified the photographs of herself. She testified that, although she does bruise easily, the photographs were taken when she was "getting beat up." When asked who "beat her up, " she replied her son, defendant, beat her up. She could not remember where she was when she sustained her injuries, but she "guess[ed]" it was at home. She recalled that she went to the police after she was beaten but could not remember what she told them.

         Ms. Deubler admitted that she could not recall her prior testimony or what she told doctors at Ochsner emergency room, but indicated that she most likely told the truth to her treating doctors because she does not lie often.[10] When she listened to her recorded statements to Officer Meyers, she testified that she did not recall giving the statements but responded that she "of course" would have provided the truth to investigating police officers. Ms. Deubler, in her testimony, could not recall how she got her injuries, including whether defendant threatened her with a knife or a bat. However, when asked directly who caused her injuries, she consistently responded that her son, defendant, caused the injuries.

         Felicia Sullivan, Ms. Deubler's next door neighbor, testified at trial that defendant resided next door with Ms. Deubler "off and on" from late 2012 through May 2014. She testified that she overheard defendant screaming obscenities at Ms. Deubler "almost nightly" from her backyard. Ms. Sullivan testified that, on one Saturday night in April 2014, she stepped outside of her home to record the screaming because it was so loud. The State introduced into evidence two video and audio recordings, during which one can hear a male screaming loudly and calling someone a "bitch."[11] Ms. Sullivan testified that for a period of time between January 2014 and May 2014, she and other neighbors discussed the screaming coming from Ms. Deubler's residence almost nightly.[12]

         DISCUSSION

         In his pro se assignments of error as well as his first counseled assignment of error, defendant challenges the sufficiency of the evidence presented against him at trial.[13] First, defendant claims there is no evidence to prove that his mother was competent at the time she reported the incident, pointing to Ms. Deubler's inconsistent testimony and lack of memory concerning the alleged offense. Second, defendant argues that the State failed to prove that Ms. Deubler sustained the statutorily required injuries, contending that the "simple bruising" Ms. Deubler sustained does not reach the level of "unjustifiable pain or suffering" required under La. R.S. 14:93.3.

         The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. State v. Bone, 12-34 (La.App. 5 Cir. 09/11/12), 107 So.3d 49, 58, writ denied, 12-2229 (4/1/13), 110 So.3d 574, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. King, 06-554 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied, 07-0371 (La. 5/4/07), 956 So.2d 600.

         An appellate court's primary function is not to redetermine the defendant's guilt or innocence in accordance with its appreciation of the facts and credibility of the witnesses. Rather, our function is to review the evidence in the light most favorable to the prosecution and determine whether there is sufficient evidence to support the jury's conclusion. State v. Banford, 94-883 (La.App. 5 Cir. 3/15/95), 653 So.2d 671, 677. Evidence may be direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. ...


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