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State v. Livous

Court of Appeals of Louisiana, First Circuit

September 24, 2018


          On 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

          Hillar 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


          CRAIN, J.

         The 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 affirm.


         On July 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.[1] 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.

         After 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.


         The 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 manslaughter.

         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 (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.

         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, _____________, ____________(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.

         The 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 ...

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