Appeal from the 19th Judicial District Court,
Parish of East Baton Rouge, State of Louisiana Trial Court
No. 09-12-0844 The Honorable Louis R. Daniel, Judge Presiding
C. Moore III District Attorney Allison Miller Rutzen
Assistant District Attorney Baton Rouge, Louisiana Attorneys
for the State of Louisiana
Prentice L. White Baton Rouge, Louisiana Attorney for
Defendant/Appellant, Devon Terrell Livous
BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.
defendant, Devon Terrell Livous, appeals his conviction for
second degree murder and life sentence at hard labor without
benefit of probation, parole, or suspension of sentence. We
25, 2012, at approximately 3:45 p.m., the defendant shot and
killed his fiancee, Raolatu Alowonle, in front of her
eight-year-old son, J.B. At trial, J.B. testified the defendant
broke into his mother's apartment and
"ambushed" them when they returned home. He
explained the defendant pointed one of the victim's guns
at her and ordered her to retrieve a second. After the
defendant was armed with the two guns he made the victim and
J.B. sit on the couch as he ranted and threw things. The
victim and J.B. managed to escape the apartment and ran down
the street as the defendant shot at them. J.B. testified he
witnessed the defendant shoot his mother from across the
sidewalk. The defendant then drove away. The victim died of
multiple gunshot wounds to her back.
J.B. identified the defendant in a photo lineup, the
defendant was arrested and admitted shooting the victim with
her gun as she ran away from him. The defendant claimed,
however, the victim pulled the gun and pointed it in his face
before he took it from her.
OF THE EVIDENCE
defendant was convicted of second degree murder. On appeal,
he concedes he shot the victim, but argues the trial court
erred in accepting the jury's verdict when the facts
clearly supported a conviction for the lesser offense of
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 (per curiam); see
also La. Code Crim. Pro. art. 82IB; 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,
_____________, ____________(per curiam)
(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. Gardner, 16-0192 (La.App. 1 Cir. 9/19/16),
204 So.3d 265, 267. The weight given evidence is not subject
to appellate review; therefore, an appellate court will not
reweigh evidence to overturn a factfinder's determination
of guilt. State v. Kirsh, 17-0231 (La.App. 1 Cir.
11/1/17), 234 So.3d 941, 946.
crime of second degree murder, in pertinent part, is the
killing of a human being when the offender has a specific
intent to kill or inflict great bodily harm. La. R.S.
14:30.1A(1). Specific criminal intent is "that state of
mind which 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 formed in an instant.
State v. Mickelson, 12-2539 (La. 9/3/14), 149 So.3d
178, 183. Because it is a state of mind, specific intent need
not be proven as a fact, but may be inferred from
circumstances surrounding the offense and the defendant's
actions. Mickelson, 149 So.3d at 182. For example,
specific intent to kill may be inferred from a