Opinion
2011 KA 1340
11-02-2012
STATE OF LOUISIANA v. JORDY NEIL
Joseph L. Waitz, Jr. District Attorney Houma, Louisiana by Ellen Daigle Doskey Assistant District Attorney Counsel for Appellee State of Louisiana Bertha M. Hillman Thibodaux, Louisiana Counsel for Defendant/Appellant Jordy Neil
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Thirty-Second Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
Docket No. 558,232
Honorable David W. Arceneaux, Judge Presiding
Joseph L. Waitz, Jr.
District Attorney
Houma, Louisiana
by
Ellen Daigle Doskey
Assistant District Attorney
Counsel for Appellee
State of Louisiana
Bertha M. Hillman
Thibodaux, Louisiana
Counsel for Defendant/Appellant
Jordy Neil
BEFORE: WHIPPLE, McCLENDON, AND HIGGINBOTHAM, JJ.
McCLENDON, J.
Defendant, Jordy Neil, was charged by bill of information with second degree battery, a violation of LSA-R.S. 14:34.1. He entered a plea of not guilty. Defendant waived his right to a jury trial and, following a bench trial, was found guilty as charged. Defendant filed a motion for post verdict judgment of acquittal, which was denied. Defendant was sentenced to four years imprisonment at hard labor, and he filed a motion to reconsider sentence, which was denied. Defendant now appeals, designating two assignments of error. We affirm the conviction and sentence.
FACTS
On the evening of November 14, 2009, Scott Thibodeaux was at the Comfort Zone Sports Bar on La. Highway 182 in Houma watching an LSI) football game. Scott rode to the bar with his friend Ashley Lyons, the sole bartender at the bar that night. At about 11:30 p.m., Scott was struck by the nineteen-year-old defendant and fell unconscious to the floor. Several witnesses testified at trial with varying accounts of the circumstances surrounding the incident.
Scott testified that he was sitting at the bar. Ashley gave him two dollars to play the jukebox. While at the jukebox, a commotion erupted across the bar from Scott, entailing loud voices, arguing, and pushing. Feeling the situation would get out of hand, Scott called the sheriff's department. Scott then went back to his barstool and sat down. His next memory was getting up off the floor, feeling confused with pain in his jaw. Scott was knocked unconscious, but had no recollection of who hit him. When he regained consciousness, he remembered seeing defendant and another man running out of the bar. Scott did not know who defendant was, and he had not had an argument or confrontation with anyone in the bar. Scott then went outside and waited with Ashiey in her truck for the police to arrive. Scott was struck on the right side of his face, and his right jaw was broken in three places. Also, a tooth was knocked loose. He had to have his jaw wired shut for about seven weeks and underwent surgery wherein two titanium plates were inserted into the lower portion of his jaw. He still has no feeling in the front part of his chin. For treatment of his injuries, Scott incurred over $25,000 in medical expenses.
Ashley Lyons testified that she gave Scott some money from her tip jar to play music. While Scott was at the jukebox, Brad Boudreaux, a customer, accused Ashley of stealing money and unleashed a profanity-laced tirade against her. Wendy Boudreaux (no relation to Brad), the owner of the bar, asked Ashley to empty her pockets, which she did. Ashley became aggravated and threw a beer on the bar. Wendy climbed on top of the bar and wanted to fight Ashley. According to Ashley, "Everybody got mad." Other customers calmed Wendy down and got her off the bar. Out of the corner of her eye, Ashley saw Brad near Scott and then saw Scott go down. As Scott was getting up, Ashley saw defendant, who she knew, hit Scott in his face. Scott went down again. Ashley told Scott to meet her out back, and she grabbed her possessions and left the bar. She and Scott then waited in her truck for the police. Ashley was not positive that Brad hit Scott, but she was certain that defendant hit Scott once. Ashley testified she did not see Scott do anything to defendant before defendant hit him, and she did not see Scott get into an argument with defendant or Brad or anyone else in the bar.
Wendy Boudreaux testified that defendant was her daughter's boyfriend. When Brad accused Ashley of stealing money, Ashley told Wendy about it. Wendy told Brad that it was her bar and for him to mind his business. Wendy was then planning to leave the bar and was going to have defendant and her daughter drive her home. Before she left, Wendy saw Scott by the jukebox having an argument with someone. Wendy sent defendant to stop the fight. Wendy did not see anyone throw strikes or anyone get hit. She was taken home and sent defendant and her daughter back to the bar to close it down.
Nicole Meyer, Wendy's daughter and defendant's girlfriend, testified that she and defendant were getting ready to take Wendy home when a big commotion developed in the bar. Wendy told defendant to find out what was going on and handle the business. Defendant approached the riled-up crowd in the corner. Scott was near the jukebox. Nicole saw Scott grab defendant and then defendant hit Scott. Nicole tried to clear the bar out. She and defendant took Wendy home. When they returned to the bar, the police were there. Nicole stated that in the past defendant had helped out removing people from the bar.
Ferrell Gillespie, a customer at the bar, testified that Brad had accused Ashley of stealing money and was being very vulgar and calling Ashley ugly names. Ferrell tried to intervene to stop Brad's verbal assault. Ferrell stated he (Ferrell) had been drinking heavily that night, but thought he approached Scott and told him about Brad accusing Ashley. As Ferrell was talking to some other people, he saw Brad punch Scott, who was standing by the jukebox. Scott went down. When Scott started to get up, defendant hit Scott. Scott went down. According to Ferrell, "it was total chaos." Ferrell testified that he did not see Scott make any aggressive move toward defendant.
Defendant testified that he was aware that Brad had accused Ashley of taking money, but he "really wasn't bothered with it." As defendant was leaving to take Wendy home, something was happening in the back of the barroom. Wendy sent defendant to find out what was going on. Defendant approached a big crowd, made his way through the crowd, and saw Scott. Scott looked at defendant and grabbed defendant's shirt. Defendant did not know what to expect, so he hit Scott. Defendant testified that he thought Scott was threatening him. Defendant did not run out of the bar, but left to bring Wendy home. When he returned to the bar with Nicole, the police were there. After speaking to an officer, defendant was arrested. Defendant testified that he was not aware that someone else had hit Scott before he did when he (defendant) told the officer that he took full responsibility for hitting Scott. Defendant testified that he had helped out at the bar in a security-related capacity for Mardi Gras.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, defendant argues that the evidence was insufficient to support the second degree battery conviction. Specifically, defendant contends that the State did not prove that he had the specific intent to inflict serious bodily injury. Defendant does not dispute that Scott suffered serious bodily injury.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; LSA-Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See LSA-C.Cr.P. art. 821B; State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussail, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that, in order to convict, the fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 01-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 144.
Louisiana Revised Stautes 14:34.1 provides, in pertinent part:
A. Second degree battery is a battery when the offender intentionally inflicts serious bodily injury[.]
B. For purposes of this Section, "serious bodily injury" means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
Battery is the intentional use of force or violence upon the person of another. LSA-R.S. 14:33.
In order to prove a second degree battery, the State must prove the defendant: (1) committed a battery upon another, (2) without his consent, and (3) intentionally inflicted serious bodily injury. State v. Young, 00-1437 (La. 11/28/01), 800 So.2d 847, 852. Second degree battery is a crime requiring specific criminal intent. State v. Fuller, 414 So.2d 306, 310 (La. 1982). Specific 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. LSA-R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Cousan, 94-2503 (La. 11/25/96), 684 So.2d 382, 390. Specific intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126, 1127 (La. 1982). The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. McCue, 484 So.2d 889, 892 (La.App. 1 Cir. 1986).
In his brief, defendant points out, through his own trial testimony, that when he approached Scott, "he was looking at me ... and he grabbed me on my shirt. I didn't know what to expect. I didn't have no clue whatsoever. I was drunk. So I hit him, and that's why I told the police I take full responsibility for what I did, for my actions." These facts, according to defendant, establish that he did not have the specific intent to inflict serious bodily injury on Scott.
The testimony at trial established that on the night of the incident, a commotion developed involving several people and some arguing. Wendy, the bar owner, sent defendant over to "stop the fight." In the past, Wendy had occasionally asked defendant to help out at the bar as a bouncer. Officer Jason Peliegrin, with the Terrebonne Parish Sheriffs Office, was the officer on the scene who spoke to defendant and subsequently arrested him. Officer Peliegrin testified that defendant told him that Scott was acting up, so he approached Scott to escort him out of the bar. Scott became aggressive, so defendant punched Scott in the face. Defendant similarly testified that he was going to get Scott to leave the bar. However, instead of taking Scott out the bar, it appears defendant, who had experience bouncing, approached Scott and knocked him out with one punch.
A fact finder could reasonably infer from these facts that defendant sought to inflict serious bodily injury on Scott (or, at the least, to knock him unconscious), given that he struck Scott so hard that he broke his jaw in three places. There is no requirement that a victim be hit multiple times to satisfy the elements of second degree battery. As the second circuit opined in State v. Diaz, 612 So.2d 1019, 1022 (La.App. 2 Cir. 1993), after the defendant made much of the fact that he had only struck the victim once:
The supreme court has firmly rejected the notion that the second degree battery statute envisions an offender who mercilessly beats a fallen victim. . . . The statute clearly states that the intended harm is "serious bodily injury" and defines this to involve, among other things, unconsciousness, extreme physical pain or protracted and obvious disfigurement. Under the circumstances of this case, when Diaz struck Bullock as hard as he could, he intended to cause serious bodily injury as contemplated by the statute, (citation omitted).Under the jurisprudence, a rational trier of fact in the instant matter could have inferred from the extent of Scott's injuries that defendant specifically intended to cause, at a minimum, unconsciousness or extreme physical pain. See State v. Landry, 03-1671 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 123639; State v Johnson, 602 So.2d 310, 311-12 (La.App. 1 Cir. 1992). In finding defendant guilty, it is clear the trial court believed that defendant's actions, both before and after striking Scott, established that he sought to inflict serious bodily injury on Scott. In particular, the trial court stated:
I don't know if Brad Boudreaux hit Mr. Thibodeaux once or if Mr. Neil hit Mr. Thibodeaux twice. But I know . . . that Mr. Neil hit Mr. Thibodeaux at least once and that he hit him in the face. Because I believe Ashley Lyons has accurately reported what she saw.
. . . .
My impression is based on the testimony I've heard here today is that Mr. Neil and others associated with that bar fancied Mr. Neil as some sort of a bouncer as if that would justify the use of force against a customer in that bar, Mr. Thibodeaux.
I have nothing that I heard that I believe would have justified Mr. Neil hitting Mr. Thibodeaux in the face. By Mr. Neil's own testimony he went over to address whatever situation had developed and apparently with the idea he was going to eject Mr. Thibodeaux from the bar. But he never did that. He went over, punched him in the face, and left him there for whatever it was
worth. That seems to me to be the actions of someone who just enjoyed punching people in the face.
I find beyond a reasonable doubt that Mr. Neil committed a second degree battery on Mr. Thibodeaux, and I find him guilty of that charge.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261 (La.App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La.App. 1 Cir. 1985). In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 03-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).
After a thorough review of the record, we find that the evidence supports the trial court's finding of guilt. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that defendant was guilty of second degree battery. See State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, defendant argues that his sentence is excessive. As such, the trial court erred in denying the motion to reconsider sentence.
The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La.App. 1 Cir. 5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La.App. 1 Cir. 1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of LSA-C.Cr.P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 02-2231 (La.App. 1 Cir. 5/9/03), 849 So.2d 566, 569.
The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The trial court should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).
In the instant matter, defendant faced a maximum sentence of five years imprisonment at hard labor. See LSA-R.S. 14:34.1G. Defendant argues in his brief that the trial court failed to give adequate consideration to the mitigating factors of his youth, his lack of prior felony convictions, and the fact that he admitted he hit Scott. It is clear in its reasons for the sentence that the trial court thoroughly considered LSA-C.Cr.P. art. 894.1, including defendant's criminal history, in arriving at an appropriate sentence:
THE COURT: The Court has considered the criteria of Louisiana Code of Criminal Procedure article 894.1 before imposing sentence in this case. The Court notes that the statute under which Mr. Neil was convicted calls for a sentence which consists of a fine of not more than $2,000 or a jail sentence of not more than five years, or both.
The evidence in this case revealed at trial indicated that the victim in this case, Mr. Thibodeaux, by all accounts was peacefully enjoying an LSU, I think baseball game, but it was definitely an LSU game or the highlights of an LSU game on television at a local bar. And was struck in the face by Mr. Neil for the reasons which to this day are not apparent.
As a result of the striking of Mr. Thibodeaux in this case, which the Court found beyond a reasonable doubt was done by Mr. Jordy Neil, Mr. Thibodeaux's jaw was fractured in two places resulting in his jaw being reduced to three pieces for which he underwent extensive medical treatment, including the wiring of his jaw shut, the placement of metal plates in his jaw, and medical expenses which apparently exceeded $25,000.
The Court has had available and has reviewed the victim impact information furnished by Mr. Thibodeaux in this case. The original impact information furnished by Mr. Thibodeaux was furnished within a month after the incident occurred, which by the way was I believe November 14th, 2009. Yes. Within that month of November Mr. Thibodeaux furnished minimal victim impacts information in which he indicated that he wanted the offender, Mr. Neil, prosecuted to the fullest extent of the law.
Subsequently, Mr. Thibodeaux prepared a written narrative which has been made available to the Court and which I understand was also made available to the defendant through [h]is attorney.
MR. LYONS [PROSECUTOR]: That's correct.
MR. CINNATER [DEFENSE COUNSEL]: Yes, sir.
THE COURT: In which Mr. Thibodaux eloquently summarized some of the suffering that he endured as a result of Mr. Neil breaking his jaw. He pointed out to the Court once again that two titanium plates were installed in his jaw permanently. That was done after his or about the -- or in connection with the injury, he also had wires and his jaw had to be shut, I think for seven weeks. He had trouble eating. He indicates that to this day when he eats crunchy foods, like potato chips and nuts, that there's a vibration in his jaw because of the plates and it numbs his jaw, it affects the feeling in his jaw.
And the Court notes that Mr. Thibodeaux is a young man in his twenties, who is apparently facing a lifetime of discomfort as a result of what Mr. Neil did to him.
His activities have been restricted. Apparently he was interested in continuing service in the U.S. Marine Corp[s], that was at an end as a result of this jaw injury. He lost weight. It affected him financially. According to Mr. Thibodeaux his bills fell behind and he was forced to sell some sentimental items of property in order to support his children during the time that he was without income caused by this accident.
In sum, Mr. Thibodeaux I think eloquently summarized some of the inconvenience and discomfort that he suffered which most people, I suspect, don't even think about or overlook when they hear that someone broke someone else's jaw.
The Court notes that Mr. Thibodeaux is here in court today, and we'll give Mr. Thibodeaux an opportunity to say anything else that he would like to say.
The Court also notes that based on the information furnished to the Court that Mr. Neil apparently had no prior felony conviction.
MR. LYONS: That's correct.
THE COURT: That this is the first time that he's been convicted of a felony offense. Although there were some misdemeanor incidents.
The Court is also advised that there has been no compensation of any kind paid to Mr. Thibodeaux to defray the expenses associated with his medical treatment, which according to Mr. Thibodeaux his out-of-pocket expense exceeds or is about $5,000.
Mr. Thibodeaux, is there anything that you would like to say before the Court passes sentence in this case?
MR. THIBODEAUX: No, sir.
THE COURT: Do you still feel the same way as you felt two weeks after this incident occurred?
MR. THIBODEAUX: Yes, sir.
THE COURT: All right. Mr. Neil, is there anything you want to say?
MR. NEIL: No, sir.
THE COURT: All right. As I indicated, the Court has adequately considered the criteria of Louisiana Code of Criminal Procedure article 894.1 before imposing sentence in this case. The Court has no reason to believe that the financial compensation will be forthcoming from Mr. Neil in this case. And if there is that'll strictly be a matter of civil proceedings.
This Court is not inclined to this case, because frankly I don't think there's much that Mr. Neil could do that's going to eliminate the discomfort that Mr. Thibodeaux is going to experience probably for the rest of his life.
Mr. Lyons, this is considered a crime of violence, isn't it?
MR. LYONS: Definitely.
THE COURT: All right. Which means that Mr. Neil will have to serve more of his sentence than one might ordinarily expect because it is a crime of violence. His sentence will be as far as actual time served probably more than someone convicted of a non-crime of violence.
All things considered, and after having carefully considering the criteria of Louisiana Code of Criminal Procedure article 894.1, keeping in mind the severe consequences endured by the victim in this case and at the same time keeping in mind that Mr. Neil has no prior felony conviction, it's the sentence of the Court that the defendant, Jordy Neil, serve four years at hard labor[.]
Considering the trial court's careful review of the circumstances, the nature of the crime, and the lifelong suffering the victim will have to endure because of the defendant's actions, we find no abuse of discretion by the trial court. Accordingly, the sentence imposed by the trial court is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive. The trial court did not err in denying the motion to reconsider sentence.
This assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.