State of Louisiana v. J.L.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-1031

STATE OF LOUISIANA

VERSUS

J. L.

GENOVESE, J., concurring in part, and dissenting in part.

I concur with the majority in affirming the Defendant’s convictions on the

charges of aggravated incest and contributing to the delinquency of a juvenile. I

likewise concur with the majority in amending the sentence to reflect that diminution

eligibility is denied and remanding the matter to the trial court to note said

amendment in the minutes of court.

However, I dissent from the majority decision affirming Defendant’s

conviction on the charge of simple battery. In Defendant’s appeal, he claims

“insufficiency of the evidence.” On the charge of simple battery alone, I agree that

there was insufficient evidence to support a conviction for simple battery.

Louisiana Revised Statutes 14:35 defines simple battery as “a battery

committed without the consent of the victim.” Battery is defined in La.R.S. 14:33 as

“the intentional use of force or violence upon the person of another. . . .” The facts

in this case fail to prove, beyond a reasonable doubt, the intentional use of force or

violence upon the person of another to support a conviction for simple battery. The

majority fails to make the distinction between a sexual battery, which does not require

the use of force or violence, and a simple battery which does. I would reverse

Defendant’s conviction on the charge of simple battery.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-1031

STATE OF LOUISIANA

VERSUS

J. L.

GENOVESE, J., concurring in part, and dissenting in part.

I concur with the majority in affirming the Defendant’s convictions on the

charges of aggravated incest and contributing to the delinquency of a juvenile. I

likewise concur with the majority in amending the sentence to reflect that diminution

eligibility is denied and remanding the matter to the trial court to note said

amendment in the minutes of court.

However, I dissent from the majority decision affirming Defendant’s

conviction on the charge of simple battery. In Defendant’s appeal, he claims

“insufficiency of the evidence.” On the charge of simple battery alone, I agree that

there was insufficient evidence to support a conviction for simple battery.

Louisiana Revised Statutes 14:35 defines simple battery as “a battery

committed without the consent of the victim.” Battery is defined in La.R.S. 14:33 as

“the intentional use of force or violence upon the person of another. . . .” The facts

in this case fail to prove, beyond a reasonable doubt, the intentional use of force or

violence upon the person of another to support a conviction for simple battery. The

majority fails to make the distinction between a sexual battery, which does not require

the use of force or violence, and a simple battery which does. I would reverse

Defendant’s conviction on the charge of simple battery.