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State v. Cuza

Court of Appeals of Louisiana, Fifth Circuit

November 28, 2018



          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr., Terry M. Boudreaux, Darren A. Allemand



          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and John J. Molaison, Jr.


         Defendant, Antonio Cuza, appeals his conviction and sentence for aggravated battery. For the reasons that follow, we affirm defendant's conviction and sentence.


         On July 8, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with aggravated battery, in violation of La. R.S. 14:34. At his arraignment, defendant pled not guilty. The matter proceeded to trial before a six-person jury on October 17, 2017.[1] After considering the evidence presented, the jury, on October 18, 2017, found defendant guilty as charged.

         On November 8, 2017, defendant filed a motion for new trial, arguing that the verdict was contrary to the law and evidence presented at his trial, and a motion for post-verdict judgment of acquittal, requesting the court to set aside the verdict or enter a verdict of a lesser included offense. On November 9, 2017, the trial judge heard and denied these two motions and thereafter sentenced defendant to ten years imprisonment at hard labor with credit for time served.[2]

         Defendant now appeals. His appointed appellate counsel has filed a brief challenging the sufficiency of the evidence used to convict defendant of aggravated battery. In addition, defendant has filed a pro se brief, in which he alleges that the evidence was insufficient to support his conviction and that the trial court erred in denying the defense request to conduct recross examination of one of the State's witnesses. For the reasons that follow, we find no merit to these arguments.


         On March 15, 2015, Abraham Ezekiel Montenegro-Sanchez allowed an upstairs neighbor access to his apartment and yard for a child's birthday party. When Mr. Montenegro arrived home from work that day at about 5:00 p.m., he joined in the party and began to drink with the other guests. It is undisputed that during the party, an altercation occurred between Mr. Montenegro and defendant, which resulted in the stabbing of Mr. Montenegro. However, Mr. Montenegro and defendant presented different versions of events as to the circumstances leading up to the stabbing.

         According to Mr. Montenegro, at one point during the party, he observed defendant pulling Elba Monroy Mojica's hair and hitting her body with his fist.[3]Upon seeing this, Mr. Montenegro and his roommate, Joseluis Castellon, went over and grabbed defendant so he would let her go. Defendant told them to let him go and cursed at them. They released him, and defendant said that he would see them soon. Mr. Montenegro went inside his apartment with some friends and continued drinking, and approximately ten minutes later, defendant returned and was holding two knives. Mr. Montenegro grabbed a plastic bar stool to try to defend himself, but defendant was able to stab Mr. Montenegro on the left side of his back. This version of events was corroborated at trial by Mr. Montenegro's roommate, Mr. Castellon.

         The defense, however, presented a different scenario through the testimony of Ms. Mojica, defendant's wife, and Osmel Arencibia-Hernandez, a guest at the party. According to these witnesses, Ms. Mojica and defendant left the party and went to their upstairs apartment for a little while. When she came back down alone, Mr. Montenegro tried to kiss her. Ms. Mojica told Mr. Montenegro "no" and pushed him away; however, he persisted in his attempt. Defendant then proceeded down the stairs, saw what was happening, and told Mr. Montenegro to stop bothering her. During this exchange, Mr. Montenegro hit defendant, and a struggle ensued. Two of Mr. Montenegro's friends joined in the fight, threw defendant on the ground, and kicked him. As this was going on, Mr. Montenegro momentarily left, then returned with a knife, and swung it at defendant, resulting in a cut to defendant's hand. According to Mr. Hernandez, the two men continued to struggle over the knife, falling to the ground at the base of the stairs, and both were covered in blood.

         Hugo Galvez, an occupant of the apartment complex who was present at the time of the stabbing, called 9-1-1 and then waited in the parking lot for the police to arrive. When Deputy Richard Wilson of the Jefferson Parish Sheriff's Office arrived, Mr. Galvez relayed that his friend had been stabbed and identified defendant as the perpetrator. Deputy Wilson thereafter detained defendant, who had an open and bleeding cut on his hand. Both defendant and Mr. Montenegro were transported to the hospital for treatment of their injuries.


         On appeal, defendant challenges the sufficiency of the evidence used to convict him of aggravated battery. Defendant contends that the evidence presented at trial established that he acted in self-defense, and he further questions the credibility determinations made by the jury.

         In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Havies, 16-635 (La.App. 5 Cir. 3/15/17), 215 So.3d 457, 462.

         The directive that the evidence be viewed in the light most favorable to the prosecution requires the reviewing court to defer to the actual trier of fact's rational credibility calls, evidence weighing, and inference drawing. This deference to the fact-finder does not permit a reviewing court to decide whether it believes a witness or whether the conviction is contrary to the weight of the evidence. State v. Caffrey, 08-717 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La. 2/5/10), 27 So.3d 297. As a result, under the Jackson standard, a review of a criminal conviction record for sufficiency of the evidence does not require the reviewing court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, but whether, upon review of the whole record, any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

         In making this determination, a reviewing court will not re-evaluate the credibility of witnesses or re-weigh the evidence. State v. Caffrey, supra. Indeed, the resolution of conflicting testimony rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La. 11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Thus, in the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon, 07-915 (La.App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied, 08-987 (La. 1/30/09), 999 So.2d 745.

         In the present case, defendant was convicted of aggravated battery, in violation of La. R.S. 14:34. To support a conviction of aggravated battery, the State must prove: 1) the defendant intentionally used force or violence against the victim; 2) the force or violence was inflicted with a dangerous weapon; and 3) the dangerous weapon was used in a manner likely to cause death or great bodily harm. State v. Havies, 215 So.3d at 462. Defendant does not challenge these essential statutory elements, nor does he contest his identification as the perpetrator. Rather, defendant asserts that he established by a preponderance of the evidence that the battery committed upon Mr. Montenegro was in self-defense, and his conviction of aggravated battery should be set aside. He suggests that the force he employed was necessary and reasonable as Mr. Montenegro attempted to slash his face with a knife.

         The fact that an offender's conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. La. R.S. 14:18. The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense. La. R.S. 14:19(A). The aggressor or the person who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:21.

         This Court has repeatedly held that when self-defense or the defense of another is claimed by the defendant in a non-homicide case, the defendant has the burden of proof by a preponderance of the evidence that his actions were in self-defense or in defense of others. State v. Howard, 15-473 (La.App. 5 Cir. 12/9/15), 182 So.3d 360, 363; State v. Baham, 14-653 (La.App. 5 Cir. 3/11/15), 169 So.3d 558, 567, writ denied, 15-740 (La. 3/24/16), 190 So.3d ...

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