Opinion
No. 09-910.
February 3, 2010. NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE THIRTEENTH JUDICIAL DISTRICT COURT PARISH OF EVANGELINE, NO. 74902F HONORABLE THOMAS F. FUSELIER, DISTRICT JUDGE.
James Edward Beal, Louisiana Appellate Project, Jonesboro, LA, Counsel for Defendant/Appellant: Christopher Charles.
Trent S. Brignac, District Attorney 13th JDC, Julhelene E. Jackson, ADA, Ville Platte, LA, Counsel for Appellee: State of Louisiana.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JAMES T. GENOVESE, Judges.
A bill of information was filed on October 26, 2007, charging Defendant, Christopher Charles, with two counts of attempted second degree murder, violations of La.R.S. 14:30.1 and 14:27. Trial commenced on January 26, 2009, and on January 29, 2009, the jury returned a verdict of guilty as charged. Defendant filed a "Motion for New Trial" and a "Motion for Post Verdict Judgment of Acquittal" on February 11, 2009. These two motions were denied on April 16, 2009. After waiving all time delays, Defendant was then sentenced to two forty-year terms of imprisonment at hard labor without the benefit of parole, probation, or suspension of sentences, to be served consecutively.
Defendant has timely perfected an appeal wherein he asserts only one assignment of error, alleging that the evidence was insufficient to sustain the verdicts of attempted second degree murder beyond a reasonable doubt. For the following reasons, we find that there is no merit to Defendant's claim. Accordingly, this court affirms the convictions.
FACTS :
Early in the morning of August 18, 2007, Robert Fontenot, his brother, Douglas, Douglas's girlfriend, Brenda Willis, and a next door neighbor, Jerome Adams, were visiting in Robert Fontenot's front yard. Defendant arrived with McArthur Griffin. Defendant and Douglas, who were friends, immediately began to argue and then fight because Defendant sexually harassed Brenda Willis. After several blows were exchanged, Defendant walked to his car, got a hand gun, shot Douglas Fontenot in the back, and then shot Robert Fontenot as he was attempting to run away. Both victims survived the gunshot wounds.
ASSIGNMENT OF ERROR :
For his sole assignment of error, Defendant asserts that the evidence was insufficient to prove that he had the requisite specific intent to murder the victims in order to be convicted of attempted second degree murder. We find no merit in Defendant's assertion.
Second degree murder is the killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm. La.R.S. 14:30.1(A)(1). Although the complete crime of second degree murder can be proved by showing either specific intent to kill or to inflict great bodily harm, the state must prove that the defendant had the specific intent to kill in order to support a conviction for attempted second degree murder. State v. Bouie, 00-2934 (La.5/14/02), 817 So.2d 48, fn. 2, citing State v. Huizar, 414 So.2d 741 (La. 1982), State v. Strother, 362 So.2d 508 (La. 1978); State v. Carter, 34,677 (La.App. 2d Cir. 5/9/01), 787 So.2d 509, writ denied, 01-1707 (La.5/3/02), 815 So.2d 93. In State v. Mitchell, 39,202 (La.App. 2d Cir. 12/15/04), 889 So.2d 1257, writ denied, 05-0132 (La.4/29/05), 901 So.2d 1063, this court stated that the specific intent to kill could be inferred from the circumstances, such as discharging a firearm aimed at a person within close range:
Specific intent is the 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); State v. Ellis, 28,282 (La.App. 2d Cir. 06/26/96), 677 So.2d 617, writ denied, 96-1991 (La.02/21/97), 688 So.2d 521. As a state of mind, specific intent need not be proved as a fact; it may be inferred from the circumstances and the actions of the defendant. State v. Kahey, 436 So.2d 475 (La. 1983); State v. Murray, 36,137 (La.App. 2d Cir. 08/29/02), 827 So.2d 488, writ denied, 02-2634 (La.09), 852 So.2d 1020; State v. Ellis, supra. The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Murray, supra; State v. Johnson, 27,522 (La.App. 2d Cir. 12/06/95), 665 So.2d 1237. The determination of whether the requisite intent is present is a question for the trier of fact. State v. Huizar, 414 So.2d 741 (La. 1982).
State v. Taylor, 42,627, pp. 15-16 (La.App. 2 Cir. 10/24/07), 968 So.2d 1135, 1145-46, writ denied, 08-424 (La. 11/10/08), 996 So.2d 1063.
At trial, Robert Fontenot testified that earlier in the morning hours of the shooting, he was outside his house talking with McArthur Griffin and Jerome Adams, when Defendant drove up and parked. For unexplained reasons, Defendant walked over to Jerome Adams and smacked him alongside the head with a hand gun. When Fontenot asked what was the matter, Defendant pointed the gun at him, but then fired into the air. McArthur Griffin intervened, grabbed Defendant, and said, "[C]ome on man let's take a ride." The two men then left in Defendant's car. Shortly thereafter, Douglas Fontenot and his girlfriend, Brenda Willis, arrived looking for ice. Robert Fontenot testified that he got the couple ice and sat outside talking to them when Defendant and McArthur came back. Defendant walked over to Ms. Willis and touched her inappropriately. Defendant and Douglas Fontenot began arguing, then fighting. Robert Fontenot stated that at one point Defendant stumbled backwards, and he caught him, put him upright, and told him to let it go. He stated that Defendant then walked toward his car. He thought the matter was over and walked toward his house when he heard a bang. "I turn around and look[,] and I see the gun pointed at me. He tell me, 'you to [sic]. That's your brother,' and shot me in my back."
Brenda Willis was dating Douglas Fontenot at the time of the shooting. She did not know any of the other people before she and Fontenot arrived at the house at approximately 3:00 a.m. She stated that she and Fontenot were sitting on his car after mixing themselves a drink and were talking to Robert Fontenot and Jerome Adams when Defendant pulled up in his car and parked across the street. She said that he came straight over to her and grabbed her between the legs. After she yelled at him and told him to stop, he continued to touch her. Douglas Fontenot reached over and pushed Defendant and told him to leave her alone. The two men began to slap at each other. But when Douglas Fontenot turned away, Defendant punched him with his fist. According to Willis, the two men then began to fight in earnest. Willis stated that they fought until Defendant stumbled backwards. She said she watched Defendant walk over to his car, grab something from under the car's seat, walk right up to Douglas Fontenot, and shoot him in the back. He then turned toward Robert Fontenot and said, "You too," and shot him in the back. Willis stated that when Defendant walked past her, he said, "I'm gonna let you live," and he left in his car.
The testimony of Douglas Fontenot, Jerome Adams, and McArthur Griffin corroborated the testimonies of Brenda Willis and Robert Fontenot. Douglas Fontenot testified that after the fight, as Defendant walked toward his car, he heard him say, "[Y]eah I got something for you." Fontenot recalled that he had told the police that Defendant told him that he was going to kill him. McArthur Griffin testified that after the earlier incident, he went with Defendant to see what had him so upset. He said that Defendant was crying. He said that after he and Defendant talked for a while, Defendant decided to apologize, so they went back to Robert Fontenot's house. Everything seemed all right, but then suddenly, "Doug hollered. I turned around. I seen [sic] him push [Defendant], and they started fighting." According to Griffin, the next thing he knew, Douglas Fontenot was on the ground bleeding. Griffin testified that he rushed to help Douglas. After Defendant fired shots at Robert Fontenot, he came back and stood over Douglas and messed with his gun. Griffin said he told Defendant, "[T]hat's enough. You done did [sic] enough," and Defendant left the scene.
These eyewitness testimonies were sufficient to establish that Defendant exhibited specific intent to murder the victims beyond a reasonable doubt. Defendant made statements indicating his intent. He "had something" for Douglas Fontenot, and he told Robert Fontenot he had something for him, too. Brenda Willis testified that he told her that he was going to let her live. Moreover, after Defendant recovered from the fight, he walked over to his car, and, instead of leaving the scene, he retrieved a gun, walked back and shot Douglas Fontenot at point blank range, then shot at Robert Fontenot while he was retreating. As noted above, the act of pointing a gun at the victim from close range is indicative of the intent to kill.
In brief, however, Defendant cites the statute on intoxication, which states in pertinent part:
The fact of an intoxicated or drugged condition or the offender at the time of the commission of the crime is immaterial, except as follows:
. . . .
(2) Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence required in a particular crime, this fact constitutes a defense to a prosecution for that crime.
Defendant argues that his "alcohol use, coupled with his mental condition, were such that no rational trier of fact could have concluded that he had the specific intent to kill his victims." We find this argument completely without merit.
In order to raise intoxication as a defense, the defendant must prove, by the preponderance of the evidence, that he was intoxicated. If the defendant does so, the burden of the proof shifts to the State to show that the specific intent was present. Whether intoxication is sufficient to negate specific intent is a quest for the trier of fact.
State v. Cepriano, 00-213, p. 7 (La.App. 5 Cir. 8/29/00), 767 So.2d 893, 898 (footnotes omitted).
It is clear that Defendant did not meet his burden of proof. While everyone agreed that there was alcohol available, and that they had drinks, there was insufficient evidence as to whether Defendant was intoxicated. Brenda Willis did testify that she and Douglas Fontenot had just fixed themselves a drink when Defendant arrived. However, as to Defendant, she stated, "[u]h. . .I don't know if everybody was drinking but I think he was drinking cause he seem [sic] to be kind of intoxicated." Further, McArthur Griffin testified that although he had a case of beer on ice in the back of his truck and that Robert Fontenot was drinking vodka, when asked if Defendant was drinking too, he stated, "[i]f he was, not around me. I mean, when he got there, he didn't drink with us. So if he was [drinking,] it was before he got there with us. I didn't see him drinking it." Moreover, Griffin testified that after the first incident, he and Defendant had left for approximately thirty to forty-five minutes before they returned to Fontenot's house. There was no testimony regarding Defendant's physical state, whether he slurred his words or had difficulty walking or driving. Finally, Sergeant Shawn Duplechin of the Ville Platte City Police testified that within a very short time after the shooting, he went to Defendant's home, arrested him, and took him to the police station where he was booked and interviewed. There was no testimony regarding whether Defendant acted intoxicated.
Accordingly, given the testimony above, we find no merit to this assignment of error. There was no evidence of Defendant drinking, much less being drunk. Therefore, we cannot say that the jury was in error in finding that Defendant failed to carry his burden of proof.
DISPOSITION :
Defendant's convictions are affirmed.
AFFIRMED.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules — Courts of Appeal.