State of Louisiana v. Michael Wayne Wilson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1541

STATE OF LOUISIANA

VERSUS

MICHAEL WAYNE WILSON

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT,
PARISH OF CALCASIEU, NO. 6455-01,
HONORABLE ROBERT WYATT, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett, Judges.

CONVICTIONS AFFIRMED. SENTENCES AFFIRMED IN PART AND
VACATED IN PART AND REMANDED WITH INSTRUCTIONS.

Carla S. Sigler
Assistant District Attorney
Fourteenth Judicial District
Post Office Box 3206
Lake Charles, LA 70602
(337) 437-3400
COUNSEL FOR:
State of Louisiana

Carey J. Ellis, III
Louisiana Appellate Project
Post Office Box 719
Rayville, LA 71269
(318) 728-2043
COUNSEL FOR DEFENDANT/APPELLANT:
Michael Wayne Wilson

PETERS, J.

The defendant, Michael Wayne Wilson, appeals his convictions for armed

robbery, a violation of La.R.S. 14:64, and second degree battery, a violation of

La.R.S. 14:34.1, and appeals the sentences imposed. For the following reasons, we

affirm the convictions and the sentence imposed for the second degree battery

conviction. We vacate the enhancement sentence imposed for the armed robbery

conviction and remand this matter to the trial court with instructions.

The State of Louisiana (state) originally charged the defendant by bill of

information with one count of armed robbery and one count of aggravated battery, a

violation of La.R.S. 14:34. At trial, the jury found the defendant guilty of armed

robbery and second degree battery, a verdict responsive to a charge of aggravated

battery. La.Code Crim.P. art. 814(A)(14). At the sentencing hearing, the trial court

sentenced the defendant to serve ten years at hard labor on the armed robbery

conviction and added an additional five years to that sentence based on the enhanced

penalty provisions of La.R.S. 14:64.3. The trial court ordered that the additional five

years be served without benefit of parole, probation, or suspension of sentence and

ordered that it be served consecutively with the ten-year sentence. With regard to the

second degree battery conviction, the trial court ordered that the defendant serve two

years at hard labor and ordered that this sentence run concurrently with the other

sentences. The defendant timely perfected this appeal, asserting two assignments of

error.

Assignment of Error Number One

In his first assignment of error, the defendant asserts that the evidence failed

to establish his guilt beyond a reasonable doubt. In asserting this assignment of error,

the defendant does not assert that the offenses did not occur. Rather, he argues that

the evidence failed to establish beyond a reasonable doubt that he was the person who

committed the offenses. Additionally, he argues that the evidence presented by the

state failed to establish beyond a reasonable doubt all the elements of second degree

battery.

When the issue of sufficiency of evidence is raised on appeal, the critical

inquiry of the reviewing court is whether, after 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559

(La.1983).

The evidence establishes that in the early morning hours of January 19, 2001,

John Edward Scott, Jr., exited Festival City, a Calcasieu Parish nightclub and, while

waiting for a friend to pick him up, was physically attacked and robbed of numerous

personal belongings. Joseph Lastrapes, a former Calcasieu Parish Sheriff’s Deputy,

testified that at approximately 3:30 a.m., he responded to a call from Festival City.

When he arrived on the scene, he observed Mr. Scott dressed only in a T-shirt, boxer

shorts, and white socks, with a watch on his arm. According to Deputy Lastrapes,

Mr. Scott was bleeding from the face and had significant blood on both his face and

chest. In response to his questions, Mr. Scott informed Deputy Lastrapes that he had

been robbed by three men. Concerning the particulars of the robbery, the deputy

testified:

He told me that he was at Festival City to go and have a few
drinks - - or a drink - - and he said he was waiting on some friends, and
a vehicle drove in the parking lot and he said he thought that it was
friends - - the friends that he was waiting on. He went to approach and
stated that he observed that is [sic] was not, at which time the - - then
two of the three occupants then exited the vehicle. And that’s when they

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got in a fight. He said he started to defend hisself [sic] and one of the
subjects pulled out a weapon and struck him across the left side of the
face.

Mr. Scott identified the man who struck him with the weapon as an individual he

knew only as Michael Wayne. He indicated to Deputy Lastrapes that he did not know

the man’s last name. When Mr. Scott rejected any additional medical attention,

Deputy Lastrapes transported him to the Sheriff’s office to meet with the investigator

assigned to the case.

Calcasieu Parish Sheriff’s Detective Steve Rathjen took over the investigation

when Mr. Scott arrived at the Sheriff’s office on the morning of January 19, 2001.

He observed that Mr. Scott was attired just as described by Deputy Lastrapes and

further observed that Mr. Scott had a wound on the left side of his face. Detective

Rathjen then took a statement from Mr. Scott and had him participate in an attempt

to identify the man he had described as Michael Wayne through a photographic

lineup. According to the detective, Mr. Scott selected the defendant from the

photographic lineup, identifying him as one of the men who attacked him. This

occurred at approximately 6:35 a.m. on the same morning as the incident.

Mr. Scott testified that a friend dropped him off at Festival City on January 18,

2001, shortly before midnight. After consuming a few drinks, he went outside of the

nightclub to use the pay telephone to call his friend to come and pick him up. As he

waited outside the nightclub for his friend, a vehicle pulled into the parking lot, and

three men dressed in black and wearing hooded sweatshirts exited the vehicle and

approached him. Mr. Scott testified that the men told him that they wanted his

“belongings” and that the defendant told him to “Give it up b_ _ _ _.” He took a

swing at one of the men, and, as he tried to retreat by walking away, the men attacked

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him. According to Mr. Scott, the defendant produced a pistol, which he [Mr. Scott]

described as a 9 mm, and struck him on the left temple. Mr. Scott was dazed or

knocked out from the blow, and the three men began removing his clothing. Mr.

Scott testified that they took his pants, jacket, shirt, shoes, a chain with a medallion,

his wallet containing $50.00 to $60.00, and a Washington Marion class ring.

Of the three men, Mr. Scott could identify only one, the defendant. He testified

that he saw the defendant’s face during the attack and recognized his voice.

According to Mr. Scott, he had no personal relationship with the defendant but knew

him from the past and knew his brother, Donald. Not only did Mr. Scott identify the

defendant from the photographic lineup, but he also pointed him out twice at trial as

being one of the men who attacked him.

The defendant testified at trial. In doing so, he denied having attacked and

robbed Mr. Scott on January 19, 2001. He further testified that, while he knew Mr.

Scott vaguely, he had not spoken to him since he was in the eighth grade.

As a general matter, when the key issue is the defendant’s identity
as the perpetrator, rather than whether the crime was committed, the
state is required to negate any reasonable probability of
misidentification. State v. Smith, 430 So.2d 31, 45 (La.1983); State v.
Brady, 414 So.2d 364, 365 (La.1982); State v. Long, 408 So.2d 1221,
1227 (La.1982). However, positive identification by only one witness
is sufficient to support a conviction. See State v. Mussall, 523 So.2d
1305, 1311 (La.1988) (generally, one witness’s positive identification
is sufficient to support the conviction); State v. Ford, 28,724 (La.App.2d
Cir.10/30/96), 682 So.2d 847, 849-50, writ denied, 99-0210
(La.5/14/99), 745 So.2d 12.

State v. Neal, 00-0674, p. 11 (La. 6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S.
940, 122 S.Ct 1323 (2002) .

As is the case in all criminal prosecutions, identity is only one of the elements

to be established beyond a reasonable doubt. With regard to the offense of armed

robbery, La.R.S. 14:64 defines it as “the taking of anything of value belonging to

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another from the person of another or that is in the immediate control of another, by

use of force or intimidation, while armed with a dangerous weapon.” Therefore, after

viewing the evidence in the light most favorable to the prosecution in the matter now

before us, we conclude that a rational trier of fact could have concluded that the

defendant was one of the persons who took things of value from Mr. Scott in the early

morning hours of January 19, 2001, and did so by the use of force while armed with

a dangerous weapon, to wit, a pistol. Therefore, we find no merit in the defendant’s

argument that the state failed to establish his identity beyond a reasonable doubt.

In the second prong of this assignment of error, the defendant asserts that the

state failed to prove all elements of the offense of second degree battery.

Specifically, the defendant asserts that the state failed to offer any evidence of

extreme physical pain, loss of consciousness, disfigurement, or permanent disability.

That portion of La.R.S. 14:33 applicable to the matter now before us provides

that a “[b]attery is the intentional use of force or violence upon the person of

another.” Second degree battery is defined in La.R.S. 14:34.1 as “a battery

committed without the consent of the victim when the offender intentionally inflicts

serious bodily injury.” The statute further defines “serious bodily injury” as “bodily

injury which involves unconsciousness, extreme physical pain or protracted and

obvious disfigurement, or protracted loss or impairment of the functions of a bodily

member, organ, or mental faculty, or a substantial risk of death.”

In making his argument, the defendant ignores the fact that he was first charged

with aggravated battery and convicted of a verdict responsive to that charge. This

court, in State v. Charles, 00-1611, p. 5 (La.App. 3 Cir. 5/9/01), 787 So.2d 516, 519,

writ denied, 01-1554 (La. 4/19/02), 813 So.2d 420, noted that “[i]n State ex rel.

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Elaire v. Blackburn, 424 So.2d 246 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct.

2432, 77 L.Ed.2d 1318 (1983), the court held that compromise verdicts are

permissible, so long as the evidence supports either the verdict given or the original

charge.” Therefore, this court need not decide whether the evidence supports the

verdict of second degree battery if we find that the evidence adduced at trial supports

the offense of aggravated battery.

An “[a]ggravated battery is a battery committed with a dangerous weapon.”

La.R.S. 14:34.

To convict a defendant of aggravated battery, the prosecution must
prove that the defendant intentionally used force or violence upon the
victim, that the force or violence was inflicted with a dangerous weapon
and that the dangerous weapon was an instrumentality used in a manner
likely to cause death or great bodily harm.

State v. Freeman, 01-997, p. 3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 581.

Mr. Scott testified that the defendant struck him in the temple with a pistol,

knocking him to the ground and causing him to be dazed or unconscious. Both

Deputy Lastrapes and Detective Rathjen testified concerning Mr. Scott’s bloody

condition on the early morning hours of January 19, 2001. Although the state

introduced no medical records to establish the degree of damage inflicted on Mr.

Scott, we find that the evidence is sufficient to support the original charge of

aggravated battery. See State v. Gordon, 00-1013, 01-0734 (La.App. 5 Cir.

11/27/01), 803 So.2d 131, writs denied, 02-0362 (La. 12/19/02), 833 So.2d 336, 02-

0209 (La. 2/14/03), 836 So.2d 134. Therefore, we find that this argument has no

merit.

Assignment of Error Number Two

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In this assignment of error, the defendant asserts that the trial court imposed

an excessive sentence upon him when it sentenced him for the armed robbery.1

Before considering this assignment of error, we have reviewed the record for errors

“discoverable by a mere inspection of the pleadings and proceedings and without

inspection of the evidence,” as required by La.Code Crim.P. art. 920(2), and have

discovered two such errors that affect the sentences imposed. Therefore, we will

consider these errors patent before considering the defendant’s assignment of error.

While the comments made by the trial court, the state, and defense counsel at

the sentencing hearing indicate confusion concerning the exact authority for the

enhancement of the armed robbery sentence, it is clear from the record that the trial

court enhanced the defendant’s armed robbery sentence by five years. We note that

the authority for any enhancement, if available, lies in either La.Code Crim.P. art.

893.3 or La.R.S. 14:64.3. At the sentencing hearing, the state initially argued that the

defendant should be sentenced under the provisions of La.Code Crim.P. art. 893.1.

Then, as the hearing progressed, the state suggested that La.R.S. 14:64.3 applied to

the armed robbery conviction. For the following reasons, we find that neither

referenced provision nor La.Code Crim.P. art. 893.3 is applicable to the defendant’s

sentencing proceedings.

Prior to trial, the state filed a pleading wherein it gave “notice of it’s [sic] intent

to invoke the provisions of Article 893.1 as to any sentence imposed in this case.”

We first recognize that La.Code Crim.P. art. 893.1 is not the enhanced sentencing

provision to which the state intended to refer, but merely provides in part that “[i]f the

district attorney intends to move for imposition of sentence under the provisions of

1
The defendant failed to allege that the sentence for second degree battery is excessive or to
exert any argument with regard to that sentence.

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Article 893.3, he shall file a motion” to that effect.2 (Emphasis added.) Once the

district attorney files such a motion, the trial court is required, pursuant to La.Code

Crim.P. art. 893.2, to determine whether a firearm was used in the commission of the

felony or felonies involved. Then, and only then, do the enhancement provisions of

La.Code Crim.P. art. 893.3 become applicable.

The state gave notice of its intent to file the appropriate motion to invoke the

enhancement penalty provisions (although in doing so, the state referred to the wrong

provision of the Code of Criminal Procedure), but the state never filed such a motion.

Louisiana Code Criminal Procedure Article 893.1 provides that the district attorney

“shall” file such a motion. A notice of intent to do something in the future does not

equate to doing the act. Therefore, we find that the enhancement provisions of

La.Code Crim.P. art. 893.3 may not be applied to the defendant in this matter.

At the sentencing hearing, the state made reference to La.R.S. 14:64.3 for the

first time, asserting that the defendant’s sentence for armed robbery should be

enhanced pursuant to that statute which, at the time of the offense, provided:

When the dangerous weapon used in the commission of the crime
of armed robbery is a firearm, the offender shall be imprisoned for an
additional period of five years without benefit of parole, probation, or
suspension of sentence. The additional penalty imposed pursuant to this
Section shall be served consecutively to the sentence imposed under the
provisions of R.S. 14:64.

This court has held that to invoke the provisions of La.R.S. 14:64.3, the statute must

be charged in the bill of information. State v. Daniels, 03-1621 (La.App. 3 Cir.

5/12/04), 873 So.2d 822, writ denied, 04-1802 (La. 11/24/04), 888 So.2d 227. Since

the enhancement provision of La.R.S. 14:64.3 was not charged in the bill of

2
We note that prior to the amendment of La.Code Crim.P. art. 893.1 by 1988 La. Acts. No.
319, § 1, the Article did provide for sentencing enhancement. In fact, that same Act added La.Code
Crim.P. arts. 893.2 and 893.3 to the Louisiana Code of Criminal Procedure.

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information filed in the present case, the trial court was not authorized to sentence the

defendant pursuant to its provisions.

Because we find that the trial court erred in enhancing the defendant’s

sentence, we vacate the enhancement sentence. After reaching that conclusion, we

need not consider the defendant’s second assignment of error as it relates only to the

enhancement portion of the sentence.

In conclusion, we find it necessary to vacate the enhancement portion of the

defendant’s sentence for the offense of armed robbery. Additionally, we find as an

error patent that the trial court failed to inform the defendant, pursuant to La.Code

Crim.P. art. 930.8, of the two-year prescriptive period for filing for post-conviction

relief. Therefore, we remand the matter to the trial court with instructions to comply

with this requirement.

DISPOSITION

For the foregoing reasons, we affirm the convictions in all respects and affirm

the sentence imposed for armed robbery. We vacate the sentence imposed under

La.R.S. 14:64.3, but affirm the remaining sentence imposed for the armed robbery

conviction. We order the trial court to inform the defendant, Michael Wayne Wilson,

of the two-year prescriptive period provided for in La.Code Crim.P. art. 930.8 by

sending him the appropriate written notice or verbally informing him of said

prescriptive period within ten days of the rendition of this opinion. If the trial court

chooses to inform the defendant by written notice, it shall file in the record of the

proceedings written proof that the defendant received the notice.

CONVICTIONS AFFIRMED. SENTENCES AFFIRMED IN
PART AND VACATED IN PART AND REMANDED WITH
INSTRUCTIONS.

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