State of Louisiana v. Eric Dominic Nabors

Judgment rendered April 22, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 53,357-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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STATE OF LOUISIANA Appellee

versus

ERIC DOMINIC NABORS Appellant

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Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 13-F3242

Honorable Larry D. Jefferson, Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Douglas Lee Harville

ERIC DOMINIC NABORS Pro Se

ROBERT S. TEW Counsel for Appellee
District Attorney

ROBERT N. ANDERSON
GEARY S. AYCOCK
Assistant District Attorneys

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Before PITMAN, GARRETT, and STONE, JJ.

PITMAN, J.

Defendant Eric Dominic Nabors was convicted of the crime of second

degree murder, a violation of La. R.S. 14:30.1, and was sentenced to life in

prison without parole. He now appeals his sentence as constitutionally

excessive. For the following reasons, Defendant’s conviction and sentence

are affirmed.

FACTS

Defendant was charged with the murder of a two-year-old child,

Jemarion Jackson, who was in Defendant’s care on the day that he died.

Defendant and the child’s mother took him to the hospital where he

presented with severe injuries, was not breathing and had a body

temperature of 86 degrees. The doctors at the hospital attempted to revive

the child for 30 minutes before declaring him dead.

A unanimous jury found Defendant guilty of second degree murder.

The trial court granted Defendant’s motion for post-verdict judgment of

acquittal and modified the jury’s verdict finding him guilty of the responsive

verdict of negligent homicide. Defendant was sentenced to serve five years

at hard labor. The state appealed and this court reversed, vacated the

sentence, reinstated the verdict of guilty of second degree murder and

remanded for sentencing. State v. Nabors, 52,163 (La. App. 2 Cir. 7/19/18),

251 So. 3d 1214, writ denied, 18-1477 (La. 9/21/18), 252 So. 3d 496.

In Nabors, supra, the issue of sufficiency of the evidence was

addressed, and this court found the evidence presented at trial supported

Defendant’s conviction since it was clear he had sole charge of the child on

the night he died, and that while in his care, the child received non-self-

inflicted injuries that killed him. The severity of the child’s injuries alone, a

lacerated liver and mesentery, brain swelling and fractured ribs to his back,

suggest they were inflicted, at the very least, through cruelty to a juvenile,

which is sufficient to support a conviction of second degree murder, and

there is no need for this court to review the disturbing underlying facts of

Defendant’s conviction a second time.

Following remand, the trial court then granted Defendant’s motion for

new trial and set the trial for April 22, 2019. The state sought supervisory

review and this court granted the writ, reversed and remanded for

sentencing. The supreme court denied writs. State v. Nabors, 19-0567 (La.

5/28/19), 274 So. 3d 560. On remand, the trial court sentenced Defendant to

the mandatory term of life imprisonment, without benefits, on the conviction

of second degree murder. No motion to reconsider sentence was filed.

DISCUSSION

Defendant’s sole assignment of error challenges his mandatory life

sentence as constitutionally excessive. His argument focuses on the trial

court’s reasoning in granting the motion for post-verdict judgment of

acquittal and motion for new trial in arguing that the life sentence fails to

contemplate reasonable rehabilitation and punishment. Specifically, he

points to the trial court’s opinion that there was no evidence that he

committed a “direct act of cruelty” or inflicted actual physical injury on the

child. The trial court stated that it could not determine exactly when or how

the injuries occurred, nor could it say that the state had proven specific

intent. Defendant contends that the mandatory sentence is excessive

because his case rested on circumstantial rather than direct evidence.

The state, in an exceptionally brief and poignant response, submits

that Defendant is attempting to litigate sufficiency of the evidence a third
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time by couching it in terms of excessive sentence. Correctly noting that

this court found that the trial court’s reevaluation of the evidence in this case

was grossly erroneous, the state simply argues that the mandatory sentence

in this matter is not shocking to the conscience of society.

Where no motion to reconsider sentence is filed, the defendant is

relegated to a claim of constitutional excessiveness. State v. Mims,

619 So. 2d 1059 (La. 1993); State v. Pittman, 52,027 (La. App. 2 Cir.

4/11/18), 248 So. 3d 573.

Whether a sentence is constitutionally excessive is determined by

considering whether the sentence is grossly out of proportion to the

seriousness of the offense or nothing more than a purposeless infliction of

pain and suffering. La. Const. art. I, § 20; State v. Dorthey, 623 So. 2d 1276

(La. 1993); State v. Lindsey, 50,324 (La. App. 2 Cir. 2/24/16), 189 So. 3d

1104. A sentence is considered grossly disproportionate if, when the crime

and punishment are viewed in light of the harm done to society, it shocks the

sense of justice. Id.

It is within the legislature’s prerogative to determine the length of the

sentence imposed for the crimes classified as felonies, and the courts are

charged with applying these punishments unless they are found to be

unconstitutional. State v. Barrett, 51,921 (La. App. 2 Cir. 4/11/18),

247 So. 3d 164, writ denied, 18-0744 (La. 2/18/19), 265 So. 3d 770.

Accordingly, the decision to assess mandatory life sentences is also within

the prerogative of the legislature. Id.

Downward departure from a mandatory minimum sentence may occur

in rare circumstances if the defendant rebuts the presumption of

constitutionality by showing clear and convincing evidence that he is
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exceptional, namely, that he is a victim of the legislature’s failure to assign

sentences that are meaningfully tailored to the gravity of the offense, the

culpability of the offender and the circumstances of the case. State v.

Chandler, 41,063 (La. App. 2 Cir. 9/8/06), 939 So. 2d 574, writ denied,

06-2554 (La. 5/11/07), 955 So. 2d 1277, citing Dorthey, supra, and State v.

Johnson, 97-1906 (La. 3/4/98), 709 So. 2d 672. The “rare circumstances” in

which a mandated sentence can be altered are even less likely in the case of

a life sentence chosen by the legislature for a single crime, such as

aggravated rape or second degree murder. State v. Chandler, supra. In such

crimes, unlike the mandatory minimum sentence under the habitual offender

law, the “tailoring” of the sentence by the legislature was for life because the

culpability of offenders and the gravity of the offenses are so great. Id.

Likewise, where there is a mandatory sentence, there is no need for

the trial court to justify, under La. C. Cr. P. art. 894.1, a sentence that it is

legally required to impose. State v. Barrett, supra. It would be an exercise

in futility for the trial court to discuss the factors enumerated in that article

when the court has no discretion in sentencing the defendant. State v.

Robinson, 47,437 (La. App. 2 Cir. 11/14/12), 106 So. 3d 1028, writ denied,

12-2658 (La. 5/17/13), 117 So. 3d 918.

La. R.S. 14:30.1(B) mandates a life sentence for second degree

murder. The trial court was not required to particularize or tailor the

sentence to the defendant or to comply with La. C. Cr. P. art. 894.1. In

addition, it was Defendant’s burden to show, by clear and convincing

evidence, that he was the exceptional defendant for whom downward

departure from the mandatory minimum sentence was justified. Defendant

failed to articulate any reason why his circumstances justify a departure from
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the mandatory life sentence. The mandatory life sentence does not shock the

sense of justice for the brutal killing of this two-year-old child.

Accordingly, this assignment of error lacks merit.

CONCLUSION

For the forgoing reasons, the conviction and mandatory life sentence

of Defendant Eric Dominic Nabors are affirmed.

AFFIRMED.

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