State Of Louisiana v. Dayvon Bentley

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2024 KA 0257

STATE OF LOUISIANA

VERSUS

DAYVON BENTLEY

Judgment Rendered: NOV 13 2024

On Appeal from the
19th Judicial District Court
Parish of East Baton Rouge, State of Louisiana
Trial Court No. 21- 00248

The Honorable William Jorden, Judge Presiding

Hillar C. Moore, III Attorneys for Appellee,
District Attorney State of Louisiana
Jessica Fogan
Assistant District Attorney
Baton Rouge, Louisiana

Prentice L. White Attorney for Defendant -Appellant,
Louisiana Appellate Project Dayvon Bentley
Baton Rouge, Louisiana

BEFORE: WOLFE, MILLER, AND GREENE, JJ.

WOLFE, J.

The defendant, Dayvon Bentley, was charged by grand jury indictment with

second degree murder, a violation of La. R. S. 14: 30. 1, and pled not guilty.' After a

jury trial, he was found guilty as charged. The trial court denied the defendant' s

motion for new trial or, alternatively, post -verdict judgment of acquittal, and

sentenced the defendant to life imprisonment at hard labor without the benefit of

probation, parole, or suspension of sentence. The defendant now appeals, assigning

error to the sufficiency of the evidence. For the following reasons, we affirm the

conviction and sentence.

STATEMENT OF FACTS

On September 16, 2020, officers with the Baton Rouge Police Department'

BRPD) responded to a shooting at 2944 Joyce Drive, after several 911 callers

reported the incident. When the police arrived, three children, Damien, Breonta, and

Devonta Sims, ran towards them saying their mother, Brenda Mullens, had been

shot.' The children identified the shooter as the defendant, their mother' s former

boyfriend, known to them as " Juice Bentley."

According to the children, the defendant called Mullens about twenty minutes

before arriving at the house. Once he arrived, Mullens told Damien, the eldest child

in the home, to get a gun, opened the wooden front door, but kept the metal screen

door closed. She talked to the defendant briefly, then closed the door. Seconds later,

multiple gunshots were fired through the front door, and Mullens fell to floor.

Damien called the police, went outside, returned gunfire, and then went back inside.

The defendant' s first name is interchangeably spelled " Dayvon" and " Davyon" throughout the
record.
In this opinion, we use Dayvon, the spelling consistent with the defendant' s counseled
appeal brief.

2 Damien testified that his full name is Damien Sims, Jr.; he was nineteen years old at the time of
the trial and sixteen years old when the offense occurred. Twins Breonta and Devonta were
thirteen years old at the time of the trial and eleven years old at the time of the offense. The
children will be referenced herein by their first names in order to distinguish them, as they share
the same last name.

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After being interviewed at the scene, the children were taken to the police station

where they positively identified the defendant in separate photographic lineups.

Mullens was transported to the hospital and died from multiple gunshots wounds to

her arm and chest. Detectives obtained an arrest warrant for the defendant, who was

eventually arrested for the second degree murder of Mullens.

SUFFICIENCY OF THE EVIDENCE

In his sole assignment of error, the defendant argues the evidence was

insufficient to support the conviction of second degree murder. He claims the State

failed to adequately prove the identity of the shooter. Alternatively, he argues the

evidence supported a verdict of manslaughter.3

A conviction based on insufficient evidence cannot stand, as it violates due

process. See U.S. Const. amend. XIV, La. Const. art. I, § 2. The standard of review

for sufficiency of the evidence to support a conviction is whether, viewing the

evidence in the light most favorable to the prosecution, a rational trier of fact could

conclude the State proved the essential elements of the crime and the defendant' s

identity as the perpetrator of that crime beyond a reasonable doubt. See La. Code

Crim. P. art. 821( B); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789,

61 L.Ed.2d 560 ( 1979); State v. Currie, 2020- 0467 ( La. App. 1 st Cir. 2/ 22/ 21), 321

So. 3d 978, 982. When the identity of the perpetrator is at issue, the State is required

to negate any reasonable probability of misidentification. A positive identification

by only one witness is sufficient to support a conviction. State v. Bessie, 2021- 1117

3 The defendant also states in his brief it was " reasonable for [ him] to be prepared to protect
himself ' on the night in question and " more probable" that he acted in self-defense. However, he
fails to otherwise address the issue or state the applicable law and relevant jurisprudence.
Therefore, considering the defendant' s failure to present any argument in support of his claim of
self-defense or brief the matter, the issue is deemed abandoned and this court need not consider it.
Uniform Rules of Louisiana Courts of Appeal, Rule 2- 12. 4( B)( 4). Further, the defendant did not
raise self-defense at trial, nor was the jury instructed on self-defense. Finally, based on our review
of the evidence, the jury could have rationally concluded the defendant was the aggressor, and
thus, was precluded from claiming self-defense in this case. See La. R.S. 14: 21; State v. Morris,
2009- 0422 ( La. App. 1st Cir. 9/ 11/ 09), 22 So. 3d 1002, 101.0.

1J

La. App. 1st Cir. 4/ 8/ 22), 342 So. 3d 17, 23, writ denied, 2022- 00846 ( La. 9/ 20/ 22),

346 So. 3d 802.

When a conviction is based on both direct and circumstantial evidence, the

reviewing court must resolve any conflict in the direct evidence by viewing that

evidence in the light most favorable to the prosecution. When the direct evidence is

thus viewed, the facts established by the direct evidence and the facts reasonably

inferred from the circumstantial evidence must be sufficient for a rational juror to

conclude beyond a reasonable doubt that the defendant was guilty of every essential

element of the crime. Currie, 321 So. 3d at 982. When analyzing circumstantial

evidence, La. R.S. 15: 438 provides that the factfinder must be satisfied that the

overall evidence excludes every reasonable hypothesis of innocence. When a case

involves circumstantial evidence and the jury reasonably rejects the hypothesis of

innocence presented by the defense, that hypothesis falls, and the defendant is guilty

unless there is another hypothesis which raises a reasonable doubt. State v.

Southall, 2022- 0746 ( La. App. 1st Cir. 6/ 2/ 23), 369 So. 3d 925, 930, writ denied,

2023- 00875 ( La. 2/ 6/ 24), 378 So. 3d 750.

Second degree murder is defined, in pertinent part, as the killing of a human

being when the offender has a specific intent to kill or to inflict great bodily harm.
La. R.S. 14: 30. 1( A)( 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). 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. Specific

intent to kill may be inferred from a defendant' s act of pointing a gun and firing at a
person.
State v. Livous, 2018- 0016 ( La. App. 1st Cir. 9/ 24/ 18), 259 So. 3d 1036,

1040, writ denied, 2018- 1788 ( La. 4/ 15/ 19), 267 So. 3d 1130. Specific intent is an

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ultimate legal conclusion to be resolved by the factfinder. Southall, 369 So. 3d at

930.

Manslaughter is defined, in pertinent part, as a homicide that would either be

first or second degree murder, but the offense is committed in sudden passion or heat

of blood immediately caused by provocation sufficient to deprive an average person

of his self-control and cool reflection. La. R.S. 14: 31( A)( 1). The existence of

sudden passion" and " heat of blood" are not elements of the offense but rather, are

factors in the nature of mitigating circumstances that may reduce the grade of

homicide. State v. Mellion, 2021- 1116 ( La. App. 1st Cir. 4/ 8/ 22), 342 So. 3d 41,

45, writ denied, 2022- 00732 ( La. 6/ 22/ 22), 339 So. 3d 1186, cert. denied, _ U.S.

143 S. Ct. 319, 214 L.Ed.2d 141 ( 2022). A defendant who claims provocation

as a means of reducing murder to manslaughter has the burden of establishing the

mitigating factors of sudden passion or heat of blood by a preponderance of the

evidence.
State v. Anthony, 2023- 0117 ( La. App. I st Cir. 11/ 3/ 23), 378 So. 3d 766,

774, writ denied, 2024- 00027 ( La. 5/ 21/ 24), 385 So. 3d 242.

Provocation and time for cooling are questions for the jury to be determined

under the standard of the average or ordinary person, one with ordinary self-control.

Anthony, 378 So. 3d at 771. Provocation shall not reduce a homicide to

manslaughter if the jury finds that the offender' s blood had actually cooled, or that

an average person' s blood would have cooled, at the time the offense was committed.

Mellion, 342 So. 3d at 45. If a man unreasonably permits his impulse and passion to

obscure his judgment, he will be fully responsible for the consequences of his act.

Anthony, 378 So. 3d at 771.

At trial, the State presented testimony to show the defendant had a history of
domestic disputes. Specifically, the State introduced evidence of prior domestic

disturbances in 2019 and 2020, including a prior unrelated shooting incident that

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occurred on July 12, 2020. In the 2020 shooting incident, the complainant called

911 after the defendant kicked down her door and fired gunshots into her apartment.

In the instant shooting, all three children who were present during the shooting

at the home were interviewed first at the scene and again at the police station, and

each of them testified at trial. The police interviews of the children on the scene

were recorded on the body cameras of the responding officers, Officer Halie

Alexander and Sergeant Derek Moore. The subsequent interviews at the police

station, during which each child identified the defendant from photographic lineups,

were also recorded and introduced at trial. During the interviews, each of the

children made statements consistent with their trial testimony and unequivocally

stated " Juice Bentley" ( the defendant) shot their mother.

Damien testified the defendant and his mother dated for about two or three

months, but broke up before the shooting. He stated the defendant would always

accuse his mother of cheating on him, although they were no longer together, and

she was not dating anyone. When the defendant showed up at the house on the night

in question, Damien heard him at the door but did not see his face. In addition to

hearing the defendant' s voice, Damien heard his mother say the defendant' s name

while speaking to him at the front door. Mullens told Damien to grab his brother' s

AK -47 rifle.4 She kept the screen door closed and did not allow the defendant to

enter the apartment,
as she briefly conversed with him in the doorway. The

defendant told Mullens he just wanted to talk and to let him in. Mullens told the

defendant she did not want to talk to him and then closed the front door. Seconds

after Mullens closed the front door, the children heard gunshots and saw Mullens

fall to the floor.

4 The eldest brother, Naquillas, left the residence before this incident to go to the bowling alley.

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Although it was around ten or eleven o' clock at night, Breonta and Devonta

testified the porch light was on when the defendant arrived and the shooting

occurred. Breonta said she was standing in the kitchen doorway when she heard her

mother tell Damien to get a gun, saw her mother close the front door, and then heard

gunshots. She saw half of the defendant' s face when her mother opened the front

door and talked to him through the closed screen door. She testified, "[ the

defendant] started shooting through the door and then [ her mother] fell to the

ground."
Devonta, who was sitting on the living room couch, similarly testified he

was able to see the defendant' s face as his mother talked to him through the closed

screen door, and testified the defendant was alone outside. Devonta further said he

saw what he believed to be a gun on the defendant' s side. Devonta testified he saw

his mother close the front door, adding, "[ 1] ike two seconds later [the defendant] shot

through the door." He stated his mother then fell near the fish tank. Damien,

Breonta, and Devonta all testified they were one hundred percent certain of their

identification of the defendant as the person who shot their mother.

Further, all three of the children denied Damien fired the rifle while inside the

house. Damien specifically testified he first called the police after the defendant

fired into the house and his mother fell. He then went outside and fired his gun in

the front and backyard, and then reentered the house. He testified that after police

arrived, he told them he fired his rifle in the backyard but did not inform them he

also fired his gun in the front yard because he was scared.

Detective Joshua Brogan of the BRPD Homicide Division conducted the

investigation at the scene and testified at trial. Detective Brogan testified the front

door appeared as though multiple projectiles passed through it from outside to inside.

Detective Brogan confirmed the evidence indicated bullets were fired into the home

from outside, further stating there was " no evidence to prove that the shot, any shot
came from inside." Specifically, he testified the projectiles recovered from inside

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the home appeared to be of a small pistol caliber, specifically a nine -millimeter

caliber. He further observed wood splinters in the living room, consistent with shots

being fired from the outside of the residence to the interior. Finally, no spent shell

casings were found inside of the residence.

Corporal Chanta Beard, Corporal Julius Raymond, and Corporal Andrew

DeSalvo of the BRPD Crime Scene Investigations Division responded to the scene

and took photographs of bullet holes in the wooden front door and the metal screen

door. Corporal Beard identified photographs showing the damage caused by bullets

striking the metal door, the front door, a vase, a mirror frame, the wall, and the mail

box. The officers also photographed and collected bullet fragments, projectiles, and

casings. While projectiles and fragments were recovered inside of the residence,

five nine -millimeter shell casings were recovered from the grass in the front yard,

and two 7. 62 by 39 -millimeter shell casings were recovered from the backyard.

Consistent with Detective Brogan, Corporal Raymond testified no casings

were found inside the home, only outside. Corporal Raymond and Corporal DeSalvo

further confirmed that AK -47 rifles release shell casings when fired. Corporal

DeSalvo testified AK -47 firearms are typically chambered for 7. 62 by 39 -millimeter

casings, but it is not uncommon to see one chambered in other rifle calibers and in

pistol calibers such as 9 millimeters chamberings.

Dr. Ann Van Vo, a forensic pathologist, performed the autopsy in this case.
Dr. Vo testified Mullens' wounds were caused by one bullet which entered the

outside of her right arm, exited the inside of her right arm, reentered through the

right side of her chest, went through her liver, right lung, and heart, and exited the

left side of her chest. Dr. Vo further testified that before entering Mullens body, the
bullet traveled through another object such as heavy clothing or a door. Dr. Vo

concluded it was more likely Mullens was shot with a handgun, as opposed to a rifle,

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as a rifle would have likely caused more severe damage to a larger area of her torso.

However, no bullets or fragments were recovered during the autopsy.

The defendant did not testify at the trial. On appeal, the defendant contends

the State failed to prove his identity as the shooter who killed Mullens, suggesting

Damien may have fired his weapon inside. We find the record does not support the

defendant' s arguments.

We note initially the defendant had. a history of domestic abuse. Three

eyewitnesses to the instant shooting testified at trial and consistently stated the

defendant repeatedly called Mullens before showing up at the residence alone, armed

with a gun. The evidence at the scene showed Mullens was shot from outside of the

home. Damien testified he only fired his rifle outside, after his mother was shot by

the defendant. His testimony was corroborated by Breonta and Devonta. Police

testimony indicated AK -47 rifles ejected casings when fired and no casings were

found inside the home, only outside. The projectiles and fragments found inside and

the casings found outside were consistent with a small pistol being fired into the

home, and a rifle being fired outside. The witnesses positively identified the

defendant as the only person who fired a gun into the home, as Mullens was

immediately struck by gunfire and fell to the floor. Further, the autopsy was

consistent with Mullens being shot with a pistol, not a large rifle. Accordingly, a

rational juror could have concluded the State successfully negated any reasonable

probability of misidentification in this case.

Further, there was no evidence the defendant was provoked in any manner.

Provocation testimony is an issue of credibility. Mere words or gestures will not

reduce a homicide from murder to manslaughter.- Mellion, 342 So. 3d at 47; see also

State v. Charles, 2000- 1611 ( La. App. 3rd Cir. 5/ 9/ 01), 787 So. 2d 516, 519, writ

denied, 2001- 1554 ( La. 4/ 19/ 02), 813 So.2d 420 ( an argument alone will not be

sufficient provocation to reduce a murder charge to manslaughter); State v. Landry,

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2019- 0486 ( La. App. 1st Cir. 2/ 21/ 20), 297 So. 3d 8, 13- 14, 18. Inconsistent with

sudden passion or heat of blood, a rational juror could have concluded that the

defendant armed himself with a gun and traveled to the residence to confront and

kill Mullens.

Under the facts and circumstances presented in this case, we cannot say that

the jury was irrational in determining the defendant had the specific intent to kill

Mullens and in finding the defendant failed to prove the existence of mitigating

factors by a preponderance of the evidence. See State v. Ordodi, 2006- 0207 ( La.

11/ 29/ 06), 946 So. 2d 654, 662. An appellate court errs by substituting its

appreciation of the evidence and credibility of witnesses for that of the factfinder

and thereby overturning a verdict on the basis of an exculpatory hypothesis presented

to, and rationally rejected by, the jury. See State v. Calloway, 2007- 2306 ( La.

1/ 21/ 09), 1 So. 3d 417, 418 ( per curiam). Viewing the evidence in the light most

favorable to the prosecution, we find any rational trier of fact could have found the

evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable

hypothesis of innocence, all of the elements of second degree murder and the

defendant' s identity as the perpetrator of the offense. Accordingly, the sole

assignment of error lacks merit.

On appeal, this court routinely reviews the record for error patent. Pursuant

to La. Code Crim. P. art. 920( 2), in conducting a patent error review, this court shall

consider "[
a] n error that is discoverable by a mere inspection of the pleadings and

proceedings and without inspection of the evidence."

Herein, the sentencing transcript shows that after the trial court imposed the

sentence herein, it advised the defendant that he had " two years for postconviction

relief."
However, a defendant generally has two years " after the judgment of

conviction and sentence has become final" to seek post -conviction relief. La. Code

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Crim. P. art. 930. 8( A). Thus, the trial court failed to properly advise the defendant

of the prescriptive period for seeking post -conviction relief.5

Nonetheless, the trial court' s failure to properly advise the defendant has no

bearing on the sentence and is not grounds to reverse the sentence or remand for

resentencing. State v. LeBoeuf, 2006- 0153 ( La. App. 1st Cir. 9/ 15/ 06), 943 So. 2d

1134, 1142- 43, writ denied, 2006- 2621 ( La. 8/ 15/ 07), 961 So.2d 1158. Accordingly,

this error is not reversible. Out of an abundance of caution and in the interest of

judicial economy, we advise the defendant La. Code Crim. P. art. 930.8 generally

provides that no application for post -conviction relief, including applications which

seek an out -of t-ime appeal, shall be considered if it is filed more than two years after

the judgment of conviction and sentence have become final under the provisions of

La. Code Crim. P. arts. 914 or 922. Id. at 1143.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of the

defendant, Dayvon Bentley. We further give notice to the defendant of the

limitations period for seeking post -conviction relief.

CONVICTION AND SENTENCE AFFIRMED.

5 The minutes indicate the defendant was properly advised regarding the two-year prescriptive
period running from the " finality of the judgment of conviction and sentence." However, the
sentencing transcript reveals the defendant was improperly advised, as detailed above. It is well
settled that in the event of a discrepancy between the transcript and the minutes, the transcript
prevails.
See State v. Lynch, 441 So. 2d 732, 734 ( La. 1983); see also State v. Johnson, 2020-
0679 ( La. App. 1st Cir. 4/28/ 21), 2021 WL 1662420, * 6 n.4 ( unpublished), writ denied, 2021-
00802 ( La. 10/ 5/ 21), 325 So. 3d 381.

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