State of Louisiana v. Paul Jacoby Broussard

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1012

STATE OF LOUISIANA

VERSUS

PAUL JACOBY BROUSSARD

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 121791
HONORABLE PATRICK MICHOT, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and J.
David Painter, Judges.

VACATED, RENDERED, AND REMANDED.

Mark O. Foster
Louisiana Appellate Project
P.O. Box 2057
Natchitoches, LA 71457
Counsel for Defendant-Appellant:
Paul Jacoby Broussard

Michael Harson
District Attorney
Keith Stutes
Assistant District Attorney
P.O. Box 3306
Lafayette, LA 70502
Counsel for Appellee:
State of Louisiana

PAINTER, Judge.

Defendant, Paul Jacoby Broussard, appeals his conviction for second degree

battery. For the reasons set forth herein, we overturn the conviction for second

degree battery, render judgment finding Defendant guilty of simple battery, and

remand for resentencing.

FACTS AND PROCEDURAL HISTORY

Defendant was convicted of committing a second degree battery upon his

girlfriend, Alydia Menard.

Defendant was charged by bill of information filed on October 7, 2008, with

second degree battery, in violation of La.R.S. 14:34.1. On October 10, 2008,

Defendant entered a plea of not guilty. Defendant waived his right to trial by jury on

January 22, 2009, proceeded to trial before the bench, and was found guilty as

charged. On May 21, 2009, Defendant was sentenced to serve five years at hard labor

and ordered to pay a fine of $2,000. A Motion to Reconsider Sentence was filed on

May 26, 2009, and denied on May 28, 2009.

A Motion for Appeal and Designation of Record was filed on June 11, 2009.

The motion was subsequently granted. Defendant is now before this court asserting

two assignments of error. Therein, he contends the evidence was insufficient to

support his conviction.

DISCUSSION

Errors Patent

1

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find that there

are no errors patent.

Sufficiency of the Evidence

In his first assignment of error, Defendant contends the evidence was

insufficient to support any conviction for battery. In his second assignment of error,

Defendant contends the evidence was insufficient to support a conviction for second

degree battery.

Louisiana Revised Statutes 14:34.1 provides that:

Second degree battery is a battery committed without the
consent of the victim when the offender intentionally
inflicts serious bodily injury.

For purposes of this article, serious bodily injury means
bodily injury which involves unconsciousness, extreme
physical pain or protracted and obvious disfigurement, or
protracted loss or impairment of the function of a bodily
member, organ, or mental faculty, or a substantial risk of
death.

Whoever commits the crime of second degree battery shall
be fined not more than two thousand dollars or imprisoned,
with or without hard labor, for not more than five years, or
both.

(Emphasis added).

The Louisiana Supreme Court has held that the phrase “extreme physical pain”

as used in the statute is not unconstitutionally vague since it “describes a condition

which most people of common intelligence can understand.” State v. Thompson, 399

So.2d 1161, 1168 (La.1981).

When considering a claim of insufficient evidence, a reviewing
court must determine 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 beyond a reasonable doubt.

2

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979); State v. Smith, 600 So.2d 1319 (La.1992). It is not the function
of an appellate court to assess credibility or re-weigh the evidence.
State v. Rosiere, 488 So.2d 965 (La.1986).

According to Jackson v. Virginia, supra, the State has the burden
of proving each element of the crime beyond a reasonable doubt. As
stated above, the State must prove that: 1) the defendant committed a
battery;3 2) without the victim’s consent; and 3) the victim suffered
serious bodily injury.
__________________
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LSA-R.S. 14:33 provides that a battery is the intentional use of force of
violence upon the person of another.

State v. Helou, 02-2302, pp. 4-5 (La. 10/23/03), 857 So.2d 1024, 1027-28.

Chassidy Menard, Alydia Menard’s sister, testified that she called Defendant’s

phone on August 10, 2008, and he answered. Chassidy heard Alydia in the

background saying, “Stop, Jacoby.” Defendant then stated that Alydia could not

speak to her and that he had “just beat the fuck out of her.” Defendant then hung up.

Chassidy subsequently went looking for Alydia at the homes of Baby Menard

and Defendant’s brother. After being told that Alydia was not at either place,

Chassidy called the police. Chassidy later saw Alydia at the hospital. Photographs

of Alydia’s injuries were introduced into evidence at trial.

Chassidy testified that she had seen Alydia the previous night and that Alydia

was fine at that time. She further stated that she spoke to Alydia the following

morning and did not detect anything in her voice that would suggest she had trouble

talking because her face was swollen or her lips were bruised. She next saw Alydia

that afternoon at the hospital. Between the date of the incident and trial, Alydia told

Chassidy that Defendant did not cause her injuries.

Corporal Jason Airhart testified that he was dispatched to a residence on

August 10, 2008. He was brought inside the house and to the bedroom where

Defendant and Alydia were supposed to be located. The man accompanying Corporal

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Airhart tried to open the door, but it was locked. The man eventually pulled the

doorknob off and entered the room. Defendant got out of bed, and Officer Courtney

Smith entered the room to speak to Alydia, who was in bed. When Defendant

stepped out of the room, Corporal Airhart noticed what appeared to be dried blood

on his shirt.1 Defendant had no injuries to his body. However, Alydia had fresh cuts

and severe bruising to the face. Corporal Airhart further testified that he had “no idea

the extent of her injuries,” but that he thought she should receive medical treatment.

Corporal Airhart testified that it was difficult to understand Alydia because of her

injuries and that her speech was slurred. He was worried that she might have a

concussion or a brain injury.

The record reflects that Alydia gave Corporal Airhart several different stories

about what happened to her including one about fighting with some girls the previous

day. Corporal Airhart testified that Alydia never told him that Defendant hit her.

Alydia’s story kept changing, and she did not identify the person with whom she

claimed that she fought.

Sergeant Ricky Rees testified that he photographed Alydia at the scene and

transported her to the hospital. Alydia told Sergeant Rees several different stories

about what happened to her. She told him that she was asleep and woke up like that.

She also told him that she had been beaten by some unknown females on the street.

Alydia never implicated Defendant when speaking to Sergeant Rees. However, he

overheard a conversation at the hospital wherein she implicated Defendant.

Sergeant Rees stated that he could not leave Alydia unattended because of the

extent of the lumps on her head. He further testified that he was stunned by the

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1 Corporal Airhart did not know if the shirt had been tested and did not know
2 how long the substance had been on the shirt.

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difference in Alydia’s appearance on the date in question when compared with that

on her identification card, which was issued eighteen months earlier.

Officer Courtney Smith testified that when she encountered Alydia at the

residence, Alydia kept her face covered with a blanket. After Officer Smith asked

several times, Alydia revealed her face. Officer Smith testified that the bruises on

Alydia’s face were a lot darker than what was depicted in the photographs admitted

into evidence.

Alydia Menard testified that on August 10, 2008, she was dating Defendant.

On that date, she and Defendant laid down to take a nap, and one of them locked the

door. Police later arrived, waking her up.

Alydia indicated that she never told Sergeant Rees that she woke up with the

bruises. She testified that she told him she fought with several girls the night before

and did not know their names.

Alydia additionally testified that Defendant spoke to her sister but that Alydia

did not know it was her sister at the time Defendant received the call. She stated that

she did not say, “Stop it Paul. Don’t do that, Paul,” while Defendant was on the

phone. Additionally, she said that she did not remember Defendant saying that he

had beaten her.

Alydia further testified that Defendant did not cause the injuries depicted in the

photographs introduced by the State. She told police the same thing. She went to the

District Attorney’s Office in September of 2008, and requested that the charges

against Defendant be dismissed. She further testified that she and Defendant had

been together for three years, “and things he might have been guilty of in the past .

. . but he - - this incident was not him.”

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Upon questioning, Alydia admitted that her mouth and eyes were swollen, that

she had blue lumps on her forehead and that she needed, but did not want, to go to the

hospital.

Defendant asserts that the State did not exclude all reasonable possibilities that

someone other than him inflicted the injuries upon Alydia. He further asserts there

was no evidence, other than photographs, regarding the extent or severity of her

injuries. Defendant admits it is possible to obtain a battery conviction without the

victim’s testimony. However, he argues that the only evidence that could possibly

support the conviction is Chassidy’s testimony that she heard Alydia tell Defendant

to stop and his remarks that he had beaten her. Defendant submits that this evidence

is not sufficient to support his conviction because the State relied solely on

photographs to prove the extent of Alydia’s injuries.

Defendant asserts that in the event this court finds the evidence was sufficient

to prove he committed a battery upon Alydia, the evidence was not sufficient to prove

it was a second degree battery.

The State asserts that Defendant’s statement that he beat Alydia proves he

committed a battery upon her. The State contends that the trial court did not find the

hypothesis that Alydia was injured in a fight with several girls to be reasonable. The

State further asserts that Alydia’s statement, “Stop Jacoby,” provided proof that the

battery was committed without her consent. Further, Alydia suffered serious bodily

injury, which was proven by the bruising and contusions to her face and head as

depicted in the photographs admitted at trial. The State contends that those injuries

rendered her “despondent” to questioning, causing an inability to communicate

coherently with police and hospital personnel. We note that there is no evidence in

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the record regarding Alydia’s ability to communicate with hospital personnel. The

State then discusses Alydia’s injuries as follows:

The determination by the trial court that the victim suffered “serious
bodily injuries” was based, in part, upon circumstantial evidence. No
reasonable hypothesis is offered nor exist[s] in the record to suggest
that the victim, reasonably, did not suffer “extreme physical pain”. The
direct and circumstantial evidence regarding the injuries suffered by the
victim at the hand of the defendant was sufficient evidence to sustain
the decision of the trial court. It is respectfully submitted that the trier
of fact was reasonable in concluding that the violent blows to the face,
mouth, lips and eyes of the victim inflicted with such force as to cause
immediate and obvious disfigurement, loss of blood, and disorientation
and inability to speak clearly, was sufficient to be “extreme physical
pain” within the ordinary experience and common intelligence of the
trier of fact.

There is nothing in the record regarding “immediate” disfigurement or loss of

blood by Alydia. Sergeant Rees testified that she did not look like she did in her

identification dated eighteen months earlier, but he did not elaborate. Additionally,

there was suspected blood on Defendant’s shirt, but it was not tested. Further, Alydia

did not testify that there was any bleeding as a result of her injuries.

Although Alydia testified that Defendant did not inflict the injuries she

suffered, Chassidy testified that Defendant said that he beat Alydia, and Sergeant

Rees testified that he overheard Alydia implicate Defendant. Based on the verdict

rendered, the trial court apparently chose to believe that Defendant struck Alydia.

This court will not second-guess that credibility determination. Therefore, we find

that the State proved Defendant committed a battery upon Alydia.

The State was further required to prove that Defendant caused serious bodily

injury. Louisiana Revised Statutes 14:34.1 defines “serious bodily injury” as

involving: “unconsciousness, extreme physical pain or protracted and obvious

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disfigurement, or protracted loss or impairment of the function of a bodily member,

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

In the case at bar, there was no testimony that Alydia lost consciousness and

no evidence of disfigurement or permanent disability; protracted loss or impairment

of the function of a member, organ, or mental faculty; or a substantial risk of death.

Therefore, the State was required to prove that Alydia suffered extreme physical pain.

Alydia was not asked about her injuries and, although she sought medical

treatment, no medical evidence was submitted. Corporal Airhart testified that Alydia

had fresh cuts and severe bruising to the face. He had no idea of the extent of her

injuries but thought she should receive medical treatment. He also testified that it

was difficult to understand her because of the injuries. Sergeant Rees would not

leave Alydia unattended due to the lump on her head, and he was stunned at her

appearance when compared with that from eighteen months earlier. Further, Officer

Smith testified that the bruises on Alydia’s face were darker than those depicted in

the photographs admitted by the State.

Accordingly, we find that the State failed to prove Alydia suffered extreme

physical pain and, therefore, failed to prove that Defendant committed second degree

battery.

However, while the evidence was insufficient to uphold a conviction of second

degree battery, it is sufficient to support a conviction for simple battery. Under

La.Code Crim.P. art. 814(A)(15), simple battery is an authorized responsive verdict

to a charge of second degree battery. A battery is defined as “the intentional use of

force or violence upon the person of another.” La.R.S. 14:33. Louisiana Revised

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Statutes 14:35 defines simple battery as a “battery committed without the consent of

the victim.”

As in State v. Vidaurri, 05-742 (La.App. 3 Cir. 12/30/05), 919 So.2d 803, writ

denied, 06-573 (La. 10/27/06), 939 So.2d 1270, no evidence even remotely suggests

that Alydia consented to the attack. See also State v. Odom, 03-1772 (La.App. 1 Cir.

4/2/04), 878 So.2d 582, writ denied, 04-1105 (La. 10/8/04), 883 So.2d 1026.

Therefore, we vacate Defendant’s conviction for second degree battery, we render a

conviction for simple battery, a statutory responsive verdict pursuant to La.Code

Crim.P. art. 814(A)(15), and we remand the case for resentencing.

CONCLUSION

For these reasons, Defendant’s conviction for second degree battery is

overturned. Judgment is rendered finding Defendant guilty of simple battery. The

case is remanded to the trial court for resentencing.

VACATED, RENDERED, AND REMANDED.

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