State of Louisiana v. Clarence Walker Nelson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 07-701

STATE OF LOUISIANA

VERSUS

CLARENCE WALKER NELSON

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C9236-1
HONORABLE ERIC ROGER HARRINGTON, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and Billy Howard Ezell, Judges.

AFFIRMED.

Van Hardin Kyzar
District Attorney, Tenth Judicial District Court
P. O. Box 838
Natchitoches, LA 71458-0838
(318) 357-2214
Counsel for Plaintiff/Appellee:
State of Louisiana

Mark Owen Foster
P.O. Box 2057
Natchitoches, LA 71457-2057
318-572-5693
Counsel for Defendant/Appellant:
Clarence Walker Nelson

Clarence Walker Nelson
Louisiana State Penitentiary
Hickory #2
Angola, LA 70712

EZELL, JUDGE.

The Defendant, Clarence Walker Nelson, was found guilty of aggravated

battery, in violation of La.R.S. 14:34. On November 28, 2006, he was sentenced to

serve ten years at hard labor. On December 11, 2006, the State filed a habitual

offender bill in accordance with La.R.S. 15:529.1. Thereafter, on January 26, 2007,

the Defendant was adjudicated as a third-time habitual offender and sentenced to life

in prison without benefit of parole, probation, or suspension of sentence. The

Defendant filed his notice of appeal on February 7, 2007, which was granted by the

trial court on February 12, 2007. The Defendant is now before this court seeking

review of his conviction and adjudication, alleging the following assignments of

errors:

1) The evidence was insufficient to support the aggravated battery
conviction.

2) The evidence was insufficient to support the habitual offender
adjudication.

Based on the analysis to follow, the Defendant’s adjudication as a habitual

offender is affirmed. We also hold that the aggravated battery conviction is not

before this court, due to the untimely filing of this appeal.

PROCEDURAL HISTORY

The court begins by noting the Defendant’s original conviction and sentence

for aggravated battery was docketed as C9236 in the trial court. The bill of

information charging Defendant with being a habitual offender was filed in the trial

court under docket number C9236-1. The pro se motion for appeal listed only docket

number C9236-1, but states Defendant seeks to appeal “his conviction and sentence,

in the above-captioned case, to the Third Circuit Court of Appeal.”

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We note on June 25, 2007, appellate counsel filed a “Motion to Suspend

Briefing and to Supplement the Record,” seeking supplementation of the record with

all minutes, pleadings, transcripts, and evidence relating to Defendant’s conviction

and sentence for aggravated battery. Despite the fact that the motion for appeal listed

only the docket number of the habitual offender proceedings, the motion for

supplementation on June 27, 2007.

This court finds the habitual offender proceedings (C9236-1) to be the only

matter before this court, as the docket number for those proceedings was the only

docket number listed on the motion for appeal.1

ANALYSIS

The sufficiency of the evidence will be addressed in this analysis. In State v.

Touchet, 04-1027, pp. 1-2 (La.App. 3 Cir. 3/9/05), 897 So.2d 900, 902, this court

stated:

With regard to sufficiency of the evidence, this court set forth as follows
in State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d
724, 726-27:

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, 61 L.Ed.2d 560 (1979); State ex rel.
Graffagnino v. King, 436 So.2d 559 (La.1983); State v.
Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393
So.2d 1212 (La.1981). It is the role of the fact finder to
weigh the respective credibility of the witnesses.

1
In State v. Felix, 05-637, (La.App. 3 Cir. 12/30/05) 918 So.2d 577, writ denied
06-1137 (La. 11/22/06), 942 So.2d 548, this court issued an order denying the
defendant’s request for supplementation of the record with the transcript of the
habitual offender proceedings because the habitual offender proceedings were filed
under a different docket number than the underlying conviction and the motion for
appeal was filed in the docket number of the underlying conviction. Thus no appeal
had been filed in the docket number of the habitual offender proceedings. The docket
numbers involved in Felix were not similar to each other.

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Therefore, the appellate court should not second-guess the
credibility determination of the trier of fact beyond the
sufficiency evaluations under the Jackson standard of
review. See King, 436 So.2d 559, citing State v.
Richardson, 425 So.2d 1228 (La.1983).

In order for the State to obtain a conviction, it must prove the
elements of the crime beyond a reasonable doubt. In order for this court
to affirm a conviction, the record must reflect that the State has satisfied
this burden of proving the elements of the crime beyond a reasonable
doubt. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d
1367.

Aggravated Battery Conviction

After a jury trial on September 20, 2006, the Defendant was convicted of

aggravated battery, in violation of La.R.S. 14:34, which states in pertinent part,

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

defined in La.R.S. 14:33 as “the intentional use of force or violence upon the person

of another; . . . .” Thus, the State had to prove: one, that the Defendant committed

the offense of battery; and two, said battery was committed with a dangerous weapon.

The court finds that there was sufficient evidence presented at trial to find the

Defendant guilty of the offense of aggravated battery.

At trial, the following facts were adduced. Debra Williams, the victim, testified

that she and the Defendant had lived together for several days, and on the day in

question, she told the Defendant that she wanted him and his friends to leave her

home. She then proceeded to put his belongings outside. Ms. Williams testified that

in response to her comments and actions the Defendant “[r]an in the house and

stabbed me in my arm.” She went on to testify that, while she did not know what type

of knife the Defendant had, he did have a knife.

The Defendant also testified at trial that he and Ms. Williams did have some

words about him leaving; however, at the time he left, he testified that she was in

good health. On cross-examination, the following exchange took place:

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Q[State]: All right, and you left, and uh . . . all of a sudden she’s got
blood all over the house, and uh . . . a big gash in her arm, and she’s out
there with a towel sitting in the street?

A[Defendant]: Yes, sir.

Q[State]: And you didn’t have nothing to do with it?

A[Defendant]: No, sir, if I’d had something to do with, I’d had blood on
me, if they got it all over the house, it would be impossible.

Q[State]: You had an hour . . . there was an hour, after it happened,
before they found you?

The Defendant notes in his brief that other than the testimonies of himself, Ms.

Williams, and the responding officers, no other evidence was offered.

Notwithstanding the fact that the State only chose to put on testimonial evidence, the

jury had the opportunity to hear testimony and make credibility determinations for

each witness. The State provided sufficient evidence such that a jury could have

concluded beyond a reasonable doubt that the Defendant intentionally inflicted

wounds upon Ms. Williams, with a knife, so as to be found guilty of the offense of

aggravated battery. Accordingly, the Defendant’s assignment of error alleging

insufficiency of evidence for his aggravated battery conviction is without merit. The

court feels it is necessary to review the conviction for sufficiency of evidence to

substantiate the habitual offender charge in this case. It is not reviewing it as an

appeal of the conviction.

Habitual Offender Adjudication

On November 28, 2006, the Defendant was sentenced to ten years at hard labor

for his aggravated battery conviction. Thereafter, on December 11, 2006, the State

filed a habitual offender bill in accordance with La.R.S. 15:529.1. Then, on January

26, 2007, the Defendant was adjudicated as a habitual offender and sentenced to life

in prison. In his brief to this court, the Defendant alleges that there was insufficient

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evidence to adjudicate him as a habitual offender because the State failed to provide

any fingerprint evidence, and because the State’s witness, one of the District

Attorneys’ investigators, presented evidence of the predicated offenses, without

personal knowledge and was not the custodian of the records to which he testified.2

As discussed below, the Defendant is precluded from seeking review of his

adjudication as a habitual offender as the issue was not preserved for review.

Louisiana Code of Criminal Procedure Article 841, Section A states, in

pertinent part; “[a]n irregularity or error cannot be availed of after verdict unless it

was objected to at the time of occurrence.” The court’s review of the habitual

offender proceedings reveals that the Defendant failed to object to any of the

evidence offered that resulted in his conviction. In fact, after the State presented

certified minutes of each predicate offense, the trial court queried Defense counsel

if he had any objection, to which defense counsel replied, “[n]o objection, Your

Honor” each time. Because the Defendant failed to object to any of the evidence

presented at the habitual offender proceedings, and because he failed to make any

generalized objection after being adjudicated a habitual offender, he is precluded

from raising this issue one appeal. See State v. Johnson, 01-0842 (La.App. 5 Cir.

2/13/02), 812 So.2d 106, where the court held the failure of a defendant to object to

an issue at his habitual offender trial precluded him from raising the issue on appeal.

See also La.R.S. 15:529.1(D)(1)(a), which states:

If, at any time, either after conviction or sentence, it shall appear
that a person convicted of a felony has previously been convicted of a
felony under the laws of this state or adjudicated a delinquent under
Title VIII of the Louisiana Children’s Code for the commission of a
felony-grade violation of either the Louisiana Controlled Dangerous
Substances Law involving the manufacture, distribution, or possession
with intent to distribute a controlled dangerous substance or a crime of

2
The evidence of the predicate offense presented at the habitual offender
proceedings were certified court minutes of the Defendant’s previous convictions.

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violence as listed in Paragraph (2) of Subsection A of this Section, or
has been convicted under the laws of any other state, or of the United
States, or of any foreign government or country, of a crime, which, if
committed in this state would be a felony, the district attorney of the
parish in which subsequent conviction was had may file an information
accusing the person of a previous conviction or adjudication of
delinquency. Whereupon the court in which the subsequent conviction
was had shall cause the person, whether confined in prison or otherwise,
to be brought before it and shall inform him of the allegation contained
in the information and of his right to be tried as to the truth thereof
according to law and shall require the offender to say whether the
allegations are true. If he denies the allegation of the information or
refuses to answer or remains silent, his plea or the fact of his silence
shall be entered on the record and he shall be given fifteen days to file
particular objections to the information, as provided in Subparagraph
(b). The judge shall fix a day to inquire whether the offender has been
convicted of a prior felony or felonies, or adjudicated a delinquent for
an offense or offenses specified above as set forth in the information.

Accordingly, the court finds the Defendant is precluded from seeking review

of the sufficiency of evidence with respect to the Defendant’s habitual offender

adjudication.

CONCLUSION

The Defendant’s conviction for aggravated battery is not before this court in

light of State v. Felix, 918 So2d 577. The adjudication as a habitual offender is

affirmed.

AFFIRMED.

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