State of Louisiana v. Gregory Hampton

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 17-383

STATE OF LOUISIANA

VERSUS

GREGORY HAMPTON

**********

APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. CR-2016-0029
HONORABLE JOEL GERARD DAVIS, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and
Candyce G. Perret, Judges.

AMENDED, AND AS AMENDED, AFFIRMED.

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT APPELLANT:
Gregory Hampton

Herbert Todd Nesom
District Attorney, 33rd JDC
Joe Green
Assistant District Attorney, 33rd Judicial District Court
Steven Sumbler
Assistant District Attorney, 33rd Judicial District Court
P. O. Box 839
Oberlin, LA 70655
(337) 639-2641
COUNSEL FOR PLAINTIFF APPELLEE:
State of Louisiana

PERRET, Judge.

Defendant Gregory Hampton was convicted of aggravated second degree

battery, in violation of La.R.S. 14:34.7, and second degree kidnapping, in violation

of La.R.S. 14:44.1(A)(2). For the charge of aggravated second degree battery,

Defendant was sentenced to ten years at hard labor, the first year to be served

without benefit of parole, probation, or suspension of sentence. For the charge of

second degree kidnapping, the trial court sentenced Defendant to twenty-five years

at hard labor, the first two years to be served without benefit of parole, probation,

or suspension of sentence. The sentences will run concurrently with credit for time

served.

Defendant seeks review of his convictions by this court alleging insufficient

evidence and double jeopardy. Defendant also contends the sentence for

aggravated second degree battery with one year to be served without benefit of

parole, probation, or suspension of sentence was improper. For the reasons that

follow, we affirm Defendant‟s conviction, but modify his sentence for aggravated

second degree battery to remove the requirement that one year be served without

benefit of parole, probation, or suspension of sentence.

ISSUES FOR REVIEW

This court must decide:

1. whether the evidence introduced at trial, when viewed
under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781 (1979) standard, was insufficient to prove,
beyond a reasonable doubt, that Gregory Hampton
committed aggravated second degree battery and
second degree kidnapping of Caroline Strahan;

2. whether Gregory Hampton‟s convictions for both
second degree kidnapping and aggravated second
degree battery are in violation of the Fifth

Amendment‟s prohibition against double jeopardy;
and

3. whether the trial court committed error by ordering
one year of the aggravated second degree battery
sentence to be served without benefit of probation,
parole, or suspension of sentence.

FACTS AND PROCEDURAL HISTORY

Defendant was charged with the November 6, 2015 aggravated second

degree battery and second degree kidnapping of Caroline Strahan. The State

presented the details of the crimes to the jury through Ms. Strahan‟s testimony, as

well as various witnesses including an eyewitness, the detectives involved in the

investigation, and Ms. Strahan‟s medical examiners.

On November 6, 2015, Ms. Strahan was at her cousin‟s house visiting when

Defendant came to the house.1 Ms. Strahan testified Defendant was returning her

phone. Ms. Strahan further testified that she got into Defendant‟s truck to retrieve

her phone, leaving one leg out of the door when Defendant sped off and the truck

door slammed shut.

On the contrary, Defendant testified that Ms. Strahan contacted him asking

for a ride from her cousin‟s house, and that Defendant drove Ms. Strahan to a

location where she purchased crack.

Aside from the differing testimonies regarding how Ms. Strahan came to be

in the vehicle, both the Defendant and the victim testified that while in the car,

Defendant began hitting Ms. Strahan, first with his hands, then with a cane.

Defendant admitted to hitting Ms. Strahan with the cane while in the vehicle. Ms.

1
Previously that day, Ms. Strahan sought a restraining order against Defendant, but the
order was not served on Defendant before this incident.

2

Strahan further testified Defendant hit her with a pistol. Defendant denies he had a

gun.

Ms. Strahan testified they stopped at a graveyard, where she got out of the

truck. Defendant continued to hit her, and at some point, hit her with a pistol

again. Ms. Strahan got back in the truck because she felt she “had no choice but to

get back in” because “he just kept hitting [her] and [she] just didn‟t have a choice.”

Defendant and Ms. Strahan continued to Green Oak Road. At this point,

Ms. Strahan decided to jump out of the moving truck. Defendant stopped and

tried, unsuccessfully, to get Ms. Strahan back into the truck. Ms. Strahan believes

she lost consciousness at some point. Around this time, Kyle Touchet, a passerby,

saw Defendant hitting Ms. Strahan on the side of the road. Mr. Touchet decided to

stop and intervene. Ms. Strahan recalls Mr. Touchet arriving and telling Defendant

to leave her alone, but then she passed out immediately after. Mr. Touchet

punched Defendant in the head and returned to his vehicle to copy Defendant‟s

license plate.2 Mr. Touchet watched Defendant make one last attempt to drag Ms.

Strahan back into his truck. However, when Defendant caught a glimpse of police

lights, he took off, leaving Ms. Strahan behind.

Ms. Strahan was taken to the emergency room and treated for a

subarachnoid hemorrhage, and nose and rib fractures. The responding paramedic

recalled Ms. Strahan‟s head was bleeding, and her nose was deformed with

swelling. The paramedic “suspected a possible loss of consciousness” because of

her low Glasgow Coma Score. Ms. Strahan also had road rash on both legs. Her

treating physician, Dr. Celeste Lujan, testified to Ms. Strahan‟s injuries. Dr. Lujan

2
Mr. Touchet‟s daughter was with him in his vehicle. Mr. Touchet moved his car so his
daughter could see Defendant‟s license plate and copy it down.

3

specifically noted the victim “had a lot of swelling to her head, to her face . . .” and

“[a] lot of swelling, no lacerations or anything like that” on her head.”

Meanwhile, after fleeing the scene, Defendant contacted his niece, Eva

Horne. Ms. Horne testified at trial. Defendant told Ms. Horne he beat Ms. Strahan

and needed a ride. Defendant was eventually dropped off at Paul Lavan‟s motel

room. Mr. Lavan also testified at trial. Defendant told Mr. Lavan he beat Ms.

Strahan in his truck and that he had a pistol. Defendant told Mr. Lavan he had left

Ms. Strahan for dead after she jumped from the truck. Mr. Lavan drove Defendant

to his truck, which Defendant had left in a parking lot. Defendant was eventually

apprehended running between Speedway Motors and an American Inn.

Defendant‟s truck was found, identified by its license plate, with blood inside the

cab. A cane and bat were found inside Defendant‟s truck. No gun was retrieved

from the Defendant, his truck, or his residence.

The jury found Defendant guilty as charged.

ERRORS PATENT

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

court for errors patent on the face of the record. After reviewing the record, we

find there is one error patent, which was also asserted by Appellant on appeal. The

trial court sentenced Appellant to ten years at hard labor, the first year to be served

without benefit of parole, probation, or suspension of sentence for aggravated

second degree battery. However, La.R.S. 14:34.7(C) does not permit the trial court

to require the first year of this sentence be served without benefit of parole,

probation, or suspension of sentence.

At the time Defendant committed this offense, La.R.S. 14:34.7(C) (emphasis

added) provided the following sentence:

4

Whoever commits the crime of aggravated second degree
battery shall be fined not more than ten thousand dollars
or imprisoned, with or without hard labor, for not more
than fifteen years, or both. At least one year of the
sentence imposed shall be served without benefit of
parole, probation, or suspension of sentence if the
offender knew or should have known that the victim is an
active member of the United States Armed Forces or is a
disabled veteran and the aggravated second degree
battery was committed because of that status.

There was no evidence that Ms. Strahan was an active service member or disabled

veteran, or that Defendant committed the battery because of that status.

The trial court, therefore, erred in this provision of Defendant‟s sentence.

Accordingly, the trial court‟s sentencing should be modified. “An appellate court

may correct an illegal sentence pursuant to La.Code Crim.P. art. 882.” State v.

Soileau, 13-772, p. 2 (La.App. 3 Cir. 2/12/14), 153 So.3d 1008, 1010, writ denied,

14-0452 (La. 9/26/14), 149 So.3d 261. Because correcting Defendant‟s sentence in

this case does not require sentencing discretion, we will correct it on appeal. Id.;

see also State v. Jacobs, 08-702 (La.App. 3 Cir. 2/4/09), 2 So.3d 1289.

Defendant‟s sentence, as it pertains to requiring one year of Defendant‟s

aggravated second degree battery sentence be served without benefit of parole,

probation, or suspension, is hereby set aside.

LAW AND DISCUSSION

When a defendant raises issues on appeal both as to the sufficiency of the

evidence and as to one or more trial errors, the reviewing court must first resolve

the sufficiency issue. State v. Hearold, 603 So.2d 731 (La.1992). Therefore, we

will first address Defendant‟s sufficiency arguments.

5

Sufficiency of Evidence

Defendant asserts the evidence at trial was insufficient to prove that he

committed aggravated second degree battery and second degree kidnapping of Ms.

Strahan beyond a reasonable doubt.

An insufficient evidence claim is reviewed on appeal under the standard set

forth by Jackson, 443 U.S. 307. “[T]he relevant question 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 beyond a reasonable doubt.”

State v. Ellis, 179 So.3d at 588 (quoting Jackson, 443 U.S. at 319).

It is the fact finder‟s responsibility to weigh the witnesses‟ credibility. Thus,

other than insuring the sufficiency evaluation standard of Jackson, “the appellate

court should not second-guess the credibility determination of the trier of fact,” but

defer to the credibility and evidentiary determinations of the jury. State v.

Lambert, 97-64, p. 5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 727.

When applying the Jackson standard, the Louisiana Supreme Court “has

found that „[w]hen a case involves circumstantial evidence, and the jury reasonably

rejects the hypothesis of innocence presented by [defendant], that hypothesis falls,

and the defendant is guilty unless there is another hypothesis which raises a

reasonable doubt.‟” Ellis, 179 So.3d at 588 (quoting State v. Captville, 448 So.2d

676, 680 (La.1984)).

Aggravated Second Degree Battery

Defendant challenges the sufficiency of evidence presented to convict him

of aggravated second degree battery. First, a battery is “the intentional use of force

or violence upon the person of another . . . .” La.R.S. 14:33. Second, the

6

requirements to be convicted of aggravated second degree battery applicable in this

case are:

A. Aggravated second degree battery is a battery
committed with a dangerous weapon when the offender
intentionally inflicts serious bodily injury.

B. For purposes of this Section, the following
words shall have the following meanings:

....

(3) “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.

La.R.S. 14:34.7.

Defendant admits he intentionally used force or violence upon Ms. Strahan

using a cane: “The only thing that I had was a cane and that‟s what I was hitting

her with. I hit her with that cane . . . . If I would have found a pipe or anything, I

probably would have killed the girl.” Defendant stated he hit Ms. Strahan “[o]n

the face, the head, everywhere . . . .”

Additionally, Ms. Strahan testified Defendant hit her with a pistol.

Testimony from Mr. Lavan, whom Defendant spoke to before Defendant was

apprehended, corroborated Ms. Strahan‟s testimony that Defendant was in

possession of a gun at the time of the offense. Defendant, therefore, admitted to

aggravated battery, i.e. a battery committed with a dangerous weapon in violation

of La.R.S. 14:34.

In order to increase the crime to the second degree, Defendant must have

caused “serious bodily injury,” defined as “unconsciousness, extreme physical pain

or protracted and obvious disfigurement, or protracted loss or impairment of the

7

function of a bodily member, organ, or mental faculty, or a substantial risk of

death.” La.R.S. 14:34.7(A) and (B)(3).

Defendant only challenges whether the State presented sufficient evidence to

satisfy the “substantial bodily injury” element of this offense. Defendant asserts

there was insufficient evidence presented to prove, beyond a reasonable doubt, that

Ms. Strahan‟s subarachnoid hemorrhage and/or loss of consciousness was caused

by Defendant and not by Ms. Strahan jumping from a moving vehicle.

In this incident, the State offered testimony that Ms. Strahan suffered a

subarachnoid hemorrhage. Defendant admitted he continuously hit Ms. Strahan

with a cane in the head. Ms. Strahan‟s diagnosis included an inter-cranial

hemorrhage. Ms. Strahan‟s treating physicians, Dr. Marshall Naquin and Dr.

Lujan, testified a subarachnoid hemorrhage can be a substantial risk of death for

the injured person. Dr. Lujan testified the Ms. Strahan‟s injuries, mostly on the left

side, could have been from being beaten inside the car or from falling. Because the

subarachnoid hemorrhage was a possible life-threatening condition, Ms. Strahan

was transferred to Lafayette General Hospital.

Dr. Naquin and Dr. Michael Horaist treated Ms. Strahan at Lafayette

General Hospital. Dr. Naquin testified Ms. Strahan‟s injuries were consistent with

the trauma she described—being hit in the head with a gun or possibly a cane. Dr.

Horaist further testified Ms. Strahan‟s head injury was consistent with falling from

a moving vehicle or being hit with a pistol. Dr. Naquin confirmed Dr. Lujan‟s

testimony—a subarachnoid hemorrhage can be a substantial risk of death.

Louisiana Revised Statutes 14:34.7(B)(3) also defines “serious bodily

injury” as a loss of consciousness. Ms. Strahan testified she lost consciousness on

Green Oak Road. The responding paramedic recalled Ms. Strahan crying and

8

making incoherent sounds. Her head was bleeding and nose deformed with

swelling. The paramedic “suspected a possible loss of consciousness” because of

her low Glasgow Coma Score. Both Dr. Naquin and Dr. Horaist agreed it was

possible Ms. Strahan lost consciousness prior to arrival at the emergency room.

Finally, “serious bodily injury” also includes “extreme physical pain or

protracted and obvious disfigurement.” La.R.S. 14:34.7. All those who rendered

medical aid to Ms. Strahan testified she complained of a severe headache and

facial pain, and noticed her nose and face were deformed from swelling. The

responding paramedic testified Ms. Strahan was crying when he arrived, in pain all

over, specifically her head, and her nose was bleeding and swelling. He recounted:

Starting with the head she had pain, swelling to the
left cheek, tongue and top lip, bleeding from the tongue
and nose, swelling and a smashed deformity to the nose.
Pain to the neck, tender. Also, pain to the chest, tender to
both sides around the rib area. Then on to the abdomen,
she had pain, it was tender to palpation. Pelvis was
tender, and she had noted pain.

The paramedic only noted road rash on her legs and feet. Based on her injuries and

pulse he suspected Ms. Strahan could have been in shock. Dr. Lujan recalled Ms.

Strahan labeled her pain ten out of ten. Ms. Strahan‟s nose was also deformed,

smashed, and fractured. Ms. Strahan‟s care providers testified her injuries were

consistent with being hit in the head with a gun or possibly a cane.

Considering the evidence introduced at trial and when viewing the evidence

in the light most favorable to the State, we find the evidence was sufficient for a

rational factfinder to find that the element of “serious bodily injury” was proven

beyond a reasonable doubt.

9

Second Degree Kidnapping
Louisiana Revised Statutes 14:44.1 enumerates the requirements for second

degree kidnapping. Those pertinent parts are:

A. Second degree kidnapping is the doing of
any of the acts listed in Subsection B wherein the victim
is:

....

(3) Physically injured or sexually abused; [or]

....

(5) Imprisoned or kidnapped when the offender is
armed with a dangerous weapon or leads the victim to
reasonably believe he is armed with a dangerous weapon.

B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person
from one place to another; or
(2) The enticing or persuading of any person to go
from one place to another; or
(3) The imprisoning or forcible secreting of any
person.

La.R.S. 14:44.1.

Defendant argues the State did not prove he moved Ms. Strahan from one

place to another. While we disagree, actual movement from one place to another is

not a required element of the offense. State v. Woodberry, 14-476 (La.App. 4 Cir.

6/3/15), 171 So.3d 1082, writ denied, 15-1245 (La. 6/17/16), 192 So.3d 770. The

State need only prove Ms. Strahan was imprisoned or secreted and physically

injured. Id. The statute does not require that the imprisonment exist for any

minimum period of time. Id. Instead, the State only had to prove one act

mentioned in Subsection (B) combined with any one act in Subsection (A).

10

Ms. Strahan admitted she entered Defendant‟s truck voluntarily to retrieve

her phone. However, Ms. Strahan testified she did not anticipate Defendant would

drive away with her in the vehicle. According to the trial testimony, after driving

away, Defendant began hitting Ms. Strahan with his hands, a cane, and a gun. Ms.

Strahan entered Defendant‟s truck a second time at the graveyard. After getting

out of the truck, Defendant continued to beat Ms. Strahan and she believed

Defendant had a gun. Ms. Strahan returned to the vehicle because she felt she had

no choice. After driving some distance to Green Oak Road, Ms. Strahan leapt

from Defendant‟s moving vehicle to escape.

Viewing the evidence in the light most favorable to the prosecution, we

affirm the conviction for second degree kidnapping. Ms. Strahan testified she did

not voluntarily leave with Defendant. Ms. Strahan‟s testimony is supported by her

decision to jump from a moving vehicle in order to escape Defendant.

Additionally, Ms. Strahan suffered physical injuries from the kidnapping.

Accordingly, we find there was sufficient evidence to prove that Defendant

committed aggravated second degree battery and second degree kidnapping and we

now address Defendant‟s second argument.

Double Jeopardy

Defendant also contends that his convictions for aggravated second degree

battery and second degree kidnapping violated his protection against double

jeopardy. According to Defendant, the evidence admitted at trial suggests he was

subjected to multiple punishments for the same course of conduct.

It is unconstitutional to place a person twice in jeopardy of life or limb for

the same offense. State v. Steele, 387 So.2d 1175 (La.1980). “The guarantee

against double jeopardy provides three central constitutional protections” one of

11

which is “protection against multiple punishments for the same offense.” State v.

Brown, 42,188, 42,189, 42,190, p. 38 (La.App. 2 Cir. 9/26/07), 966 So.2d 727,

755. We must determine whether a single or multiple offenses were involved.

The Louisiana Supreme Court has very recently announced that Louisiana

courts “are bound only to apply the standard established by the U.S. Supreme

Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180 (1932) to protect

against double jeopardy[.]” State v. Frank, 16-1160 (La. 10/18/17), -- So.3d --.

Under the Blockburger test, “there is no double jeopardy . . . where each provision

requires proof of an additional distinct element that the other does not.” State v.

Cooley, 11-959, p. 12 (La.App. 3 Cir. 4/4/12), 87 So.3d 285, 295, writ denied, 12-

1008 (La. 10/26/12), 99 So.3d 640. In other words, “a defendant can be convicted

of two offenses arising out of the same criminal incident if each crime contains an

element not found in the other.” Frank, -- So.3d --, (citing State v. Balentine, 47,

858, p. 2 (La.App. 2 Cir. 7/10/13), 119 So.3d 979, 985 (Drew, J., dissenting)).

Applying the Blockburger test to the facts of this case, both offenses for

which Defendant was convicted require proof of an element not included in the

other. Defendant, here, was convicted of aggravated second degree battery, which

includes the intent to inflict serious bodily injury, and second degree kidnapping,

which includes the imprisoning or forcible secreting of a person. La.R.S. 14:34.7

and 14:44.1. Clearly, each of these crimes contains an element not included in the

other, and the element unique to each crime requires proof of facts which the other

crime does not.

Accordingly, convictions for aggravated second degree battery and second

degree kidnapping do not constitute double jeopardy under Blockburger. We find

this assignment of error lacks merit.

12

CONCLUSION

For the foregoing reasons, we find the evidence was sufficient to find

Gregory Hampton guilty of aggravated second degree battery and second degree

kidnapping. The convictions do not constitute double jeopardy under the facts of

this case, and that assignment is without merit. However, the sentence of

aggravated second degree battery does not provide one year be served without

benefit of parole, probation, or suspension under the facts of this case. Therefore,

we modify Defendant Gregory Hampton‟s sentence as it pertains to the aggravated

second degree battery to remove the requirement that one year be served without

benefit of parole, probation, or suspension.

AMENDED, AND AS AMENDED, AFFIRMED. THIS OPINION IS
NOT DESIGNATED FOR PUBLICATION. RULE 2-16.3, UNIFORM
RULES—COURTS OF APPEAL.

13