State of Louisiana v. Tarik D. Njoku

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-13

STATE OF LOUISIANA

VERSUS

TARIK D. NJOKU

**********

APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-2017-931
HONORABLE MARTHA A. O’NEAL, DISTRICT JUDGE

**********

CHARLES G. FITZGERALD
JUDGE

**********

Court composed of Sylvia R. Cooks, Chief Judge, Jonathan W. Perry and Charles G.
Fitzgerald, Judges.

AGGRAVATED BATTERY CONVICTION AND SENTENCE AFFIRMED.
CRIMINAL CONSPIRACY TO COMMIT AGGRAVATED BATTERY
CONVICTION SET ASIDE.

Bruce G. Whittaker
Louisiana Appellate Project
1215 Prytania Street, Suite 332
New Orleans, Louisiana 70130
(504) 554-8674
Counsel for Defendant/Appellant:
Tarik D. Njoku

James R. Lestage
District Attorney, Thirty-Sixth Judicial District
Wayne Bush
Assistant District Attorney
Post Office Box 99
DeRidder, Louisiana 70634
(337) 463-5578
Counsel for Appellee:
State of Louisiana

FITZGERALD, Judge.

In this appeal, Tarik D. Njoku (“Defendant”) appeals his convictions and

sentences for aggravated battery and criminal conspiracy to commit aggravated

battery.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

Just after midnight on September 4, 2017, a group of teenaged males from

Leesville, Louisiana, traveled to DeRidder, Louisiana, to meet a similar group for a

fight. Shots rang out, and two members of the DeRidder group were injured from

the gunfire. Several witnesses put Defendant, of Leesville, at the scene of the crime.

One witness saw Defendant point a gun and shoot toward the DeRidder group.

Another saw Defendant making motions as if he were shooting a gun, but this

witness did not actually see a gun in Defendant’s hand.

By Bill of Information filed on October 31, 2017, Defendant was charged with

attempted first degree murder, in violation of La.R.S. 14:27 and 14:30(A)(3), and

with criminal conspiracy to commit first degree murder, in violation of La.R.S. 14:26

and 14:30. At his arraignment, Defendant entered pleas of not guilty. A two-day

jury trial was held in March 2019. By unanimous vote, the jury convicted Defendant

of aggravated battery, in violation of La.R.S. 14:34, which is a lesser included

responsive offense to the charge of attempted first degree murder; the jury also

convicted Defendant of criminal conspiracy to commit aggravated battery, in

violation of La.R.S. 14:26 and 14:34.

On September 16, 2019, the trial court sentenced Defendant to ten years at

hard labor on each count and imposed a fine of $1,500 on the aggravated battery

count. The trial court ordered the sentences to run concurrently. Thereafter, on

September 17, 2019, Defendant filed a motion to reconsider his sentences, which the

trial court denied on September 18, 2019.

Defendant seeks review of his convictions by this court alleging insufficiency

of the evidence and excessiveness of his sentences. For the reasons that follow, we

affirm Defendant’s conviction and sentence for aggravated battery; however,

Defendant’s conviction for criminal conspiracy to commit aggravated battery is set

aside.

ISSUES FOR REVIEW

This court must decide:

1. Whether the evidence introduced at trial, when viewed under the
standard given in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781
(1979), is sufficient to prove beyond a reasonable doubt that Defendant
is guilty of aggravated battery;

2. Whether the evidence introduced at trial, when viewed under the
standard given in Jackson v. Virginia, is sufficient to prove beyond a
reasonable doubt that Defendant is guilty of criminal conspiracy to
commit aggravated battery; and

3. Whether the ten-year sentence and $1,500 fine imposed by the trial
court for Defendant’s aggravated battery conviction is excessive under
the standard given in State v. Barling, 00-1241, 01-1591 (La.App. 3 Cir.
1/31/01), 779 So.2d 1035, writ denied, 01-838 (La. 2/1/02), 808 So.2d
331.1

LAW AND ANALYSIS

When a defendant raises issues on appeal 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.

Defendant also seeks review of the excessiveness of the conspiracy sentence,
1

but such a review is unnecessary based on our decision to set aside the conspiracy
conviction.
2

Standard of Review

Defendant asserts the evidence at trial was insufficient to prove beyond a

reasonable doubt that he committed either aggravated battery or criminal conspiracy

to commit aggravated battery.

A sufficiency of the evidence claim is reviewed on appeal under the standard

set forth by Jackson v. Virginia, 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.” Id. at 319. “This standard, now legislatively embodied in La.C.Cr.P. art.

821, does not provide the appellate court with a vehicle to substitute its own

appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p.

6 (La. 2/22/06), 922 So.2d 517, 521. The appellate court’s function is not to assess

the credibility of witnesses or to reweigh the evidence. State v. Smith, 94-3116 (La.

10/16/95), 661 So.2d 442.

A reviewing court must afford great deference to a jury’s decision to accept

or reject the testimony. State v. Allen, 36,180 (La. App. 2 Cir. 9/18/02), 828 So.2d

622, writs denied, 02-2595 (La. 3/28/03), 840 So.2d 566, and 02-2997 (La. 6/27/03),

847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404 (2004). “Where there

is conflicting testimony about factual matters, the resolution of which depends upon

a determination of the credibility of the witnesses, the matter is one of the weight of

the evidence, not its sufficiency.” Id. at 626.

Summary of the Trial Testimony

Corporal Tracy Crouch, of the DeRidder Police Department, testified that just

after midnight on September 4, 2017, he responded to a call of a shooting at a

basketball court in a small park located between Pinetree Lane and Hillcrest Street

in DeRidder. He was the first officer to arrive on the scene. Upon his arrival, he
3

“could see a large group of black males running south on Hillcrest Street to the area

of Wisteria Street.” He followed the group and then exited his vehicle, telling them

to stop. His body camera and dashboard camera recorded the events, and the video

recordings were introduced into evidence and shown to the jury.

The video from Corporal Crouch’s dashboard camera showed the group of

young men in the street when he stopped his vehicle. Some individuals ran off upon

his arrival. However, those that remained told Corporal Crouch that they were

walking through a field near the basketball court when two trucks passed them.

When the trucks circled around a second time, an occupant of one of the trucks yelled

something, followed by gunshots. The trucks immediately left the area.

One witness in Corporal Crouch’s body-camera recording said he heard at

least five shots. While he felt certain that the shooter was a black male, the witness

said he had never seen the shooter or the trucks before. The witness did not think

the people in the trucks were from DeRidder.

Tyler Thompkins (“Tyler”), who was injured during the shooting, could be

seen in the body-camera recording bleeding from a gunshot wound to his right

shoulder. The other gunshot victim, Cameron Cross (“Cameron”), had been driven

to a local hospital before Corporal Crouch’s arrival at the scene.

Corporal Crouch testified that he “recognized a couple of faces” in the group

as being from DeRidder. He initially believed the incident was a drive-by shooting,

but after questioning the witnesses further, Corporal Crouch explained that “it kind

of came to light that . . . the subjects exited the vehicles.” Based on his interviews

at the scene, Corporal Crouch believed that the gunshots had been fired by a group

of individuals from Leesville, Louisiana.

Sergeant Darrin Hall, a detective with the DeRidder Police Department,

testified at trial that he also investigated the September 4, 2017 shooting incident.
4

As part of his investigation, he took drone footage of the crime scene, and this video

recording was played for the jury. The video depicted cones that were placed on the

ground to mark points of interest or physical evidence. For instance, one cone

represented the approximate location where Cameron “was shot and went down.”

Other cones identified where shell casings were located. There was even a cone that

marked what Sergeant Hall believed “was the shooters [sic] route into the park.”

Sergeant Hall concluded from his investigation that the DeRidder group had

gathered “[e]ither to witness a fight or participate in a fight.” He learned that young

man named Nakylan Blake (“Nakylan”) from DeRidder organized or agreed to fight

Jaron Williams (“LJ”) from Leesville.

Angelic Romero (“Angelic”) was a high school student who lived near

Leesville at the time of the incident in question. After the September 4, 2017

shooting incident, Angelic contacted Crime Stoppers and reported “[t]hat there were

accouple [sic] boys that were talking about going and shooting in DeRidder. They

were talking about going to fight, but they were talking about bringing a gun.”

Angelic said they planned to fight “[s]ome of the DeRidder boys – and they were

arguing and didn’t get along.” Angelic identified Jushaun Flammings (“Juju”), LJ,

and Samuel Miller (“Sam”) as the young men she overheard talking. Angelic

testified that she overheard the conversation on September 3, 2017, which was the

day before the shooting, while she was sitting outside of the home of her friend

Momma K.

Angelic did not recognize Defendant at trial. In fact, she had never met

Defendant prior to trial. On cross-examination, Angelic confirmed that Defendant

was not present at Momma K’s on September 3, 2017. She explained that she called

Crime Stoppers because she believed it was the right thing to do. She had not

received any type of reward from Crime Stoppers at the time of trial.
5

Lieutenant James Halbert, also with the DeRidder Police Department, testified

that he was the lead detective in the case and had interviewed approximately twenty-

seven people, most of whom were teenagers. Lieutenant Halbert stated that he

believed the incident began as a fight between LJ and Nakylan over an alleged

burglary of Nakylan’s home. Apparently, Nakylan thought that LJ committed the

burglary so the two agreed to meet to “fight it out.” Lieutenant Halbert stated that

Nakylan was in the DeRidder group, and LJ was in the Leesville group.

Lieutenant Halbert testified that when he first arrived at the crime scene, he

spoke to Christopher Heath (“Christopher”), who provided “an overview of what

happened[,] where the shots were fired and where everybody was kind of semi-

positioned on the basketball court.” Christopher was with the DeRidder group, and

he conveyed to Lieutenant Halbert that “shots were fired and everyone started

running” before the fight began. Lieutenant Halbert testified that Christopher

overheard someone say they were from New Orleans just before hearing a gun being

cocked and then gunshots. According to Lieutenant Halbert, LJ was from New

Orleans. Lieutenant Halbert also testified that there was no evidence that anyone

from the DeRidder group had a gun or any other type of weapon at the time of the

incident.

Lieutenant Halbert next explained that Sam and LJ were the first suspects to

be arrested. Approximately nine or ten days after the shooting, Defendant and Juju

turned themselves in to the Baton Rouge Police Department. Lieutenant Halbert

noted that Defendant was living in the Leesville area at the time of the shooting.

Larry Williams (“Larry”) was the last suspect arrested. He turned himself in to the

Leesville Police Department.

Lieutenant Halbert then testified about Andrew Walters (“Drew”). Drew

came to the sheriff’s office two weeks after the incident. During this original
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interview, Drew claimed he did not know LJ, Juju, Sam, Larry, or Defendant. Drew

explained that he randomly met these five people while he was in Sugartown,

Louisiana, and they asked him for a ride to DeRidder.

Drew’s story changed during his second interview. This time Drew stated that

he drove a blue Chevrolet pickup truck from Leesville to Sugartown with LJ, Juju,

Sam, Larry, and Defendant riding as his passengers. According to Drew, they went

to Sugartown to watch a fight that never happened. Thereafter, Drew and his five

passengers drove to DeRidder. Drew said that he never left his truck while in

DeRidder, and that he was not an eyewitness to the shooting. According to

Lieutenant Halbert, Drew explained that “[w]hen the shooting started, they jumped

in the cars and left.” Drew acknowledged in his second interview that he saw one

person with a gun; namely, Larry, who was riding in the passenger seat of Drew’s

pickup truck as they left the scene. According to Drew, Larry jumped into the truck

and said “[g]et me out of here.”

Lieutenant Halbert noted that eight 22-caliber shell casings were found at the

scene. He explained that the casings came from “a semi-automatic weapon, because

the shell casings were ejected onto the ground.” According to Lieutenant Halbert,

most members of the DeRidder group were standing on the basketball court when

the shots began. The ultimate location of the shell casings evidenced that at least

one shooter advanced toward the basketball court as members of the DeRidder group

hid behind nearby bushes or fled by running west along the edge of a tree line toward

Hillcrest Street. Lieutenant Halbert testified that he found four shell casings on the

night of the incident, and he found two more the following morning. Lieutenant

Craig Richard also found two casings in the same vicinity. Lieutenant Halbert stated

that all eight shell casings appeared to be from the same manufacturer. He then

confirmed that no gun was ever recovered.
7

Lieutenant Halbert identified Defendant at trial. He agreed that Defendant

had “grown quite a bit” since his arrest. Commenting about Defendant’s hair at the

time of the incident, Lieutenant Halbert said it was in “a twist” and shorter than it

appeared at trial. When asked about Defendant’s height, Lieutenant Halbert—who

is five feet ten inches tall—stated that Defendant was “my height or a little taller” at

the time of his arrest. During cross-examination, the trial court granted defense

counsel’s request to have Lieutenant Halbert and Defendant stand next to each other

in front of the jury. The police report in evidence reflects Defendant’s height as six

feet at the time of his arrest.

Lieutenant Halbert testified that he believed Defendant and Larry were the

shooters. Lieutenant Halbert also believed that Larry’s gun “malfunctioned and it

did not work properly when he went to fire,” but Defendant’s gun did fire. The shell

casings recovered from the scene were identified by Lieutenant Halbert and entered

in evidence during his testimony. He noted that one of the shell casings was dented

and had “mushroomed,” which could have resulted from being fired from a dirty,

damaged, or poorly manufactured gun. When asked whether he could tell from the

casings if “they were fired from the same gun,” Lieutenant Halbert remarked that he

was “not an expert on that.” He stated that no ballistics, fingerprint, or DNA testing

was performed on the shell casings.

Lieutenant Halbert testified that he interviewed Tyler’s brother, Isaiah

Thompkins (“Isaiah”), at the hospital. Tyler was one of the gunshot victims. When

shown an Instagram photograph of LJ, Juju, and Sam, Isaiah told Lieutenant Halbert

that all three had guns that night. Isaiah said that “Juju . . . was the shooter because

of his hair, noting that Juju stood out from everybody else because he had blond

highlights in his hair.” Later in his statement, Isaiah said Larry and Defendant were

also shooting at the DeRidder group.
8

Lieutenant Halbert also interviewed Cameron, who was the other gunshot

victim. Cameron was left paralyzed as a result of his injuries. When asked whether

he knew who was present on the night of the shooting, Cameron stated that he

recognized Sam, Juju, LJ, Larry, and Defendant. Cameron knew about the fight, and

“[h]e went to be back up because he was one of the largest kids in the group, so he

wanted to go be the tough big guy in the group. To be intimidating.”

Paul Fairly (“Paul”) testified that he was part of the DeRidder group,

consisting of approximately ten to twelve guys who had walked to the park for a fist

fight with some “Leesville guys.” Paul stated that he was “[i]n the grass, by the trees”

when he saw “[t]rucks. One was white and one was like, black.” According to Paul,

the vehicles stopped “on the street right behind the basketball court. And they [some

of the Leesville guys] walked into the grass.” The fight never took place because

“[t]he dudes from Leesville” pulled out guns. Paul saw “a dude with dreads pull a

gun out. Cocked it – he cocked it and then we ran.” Paul did not see anyone else

with a gun because he ran away. He heard “[a] lot” of shots fired. He assumed the

first shot was fired into the air. He testified that he was unable to describe the person

who shot into the air, noting “it was black outside, I couldn’t see nothing.”

Paul admitted that he had initially told detectives that the shooter was “a

muscular guy, a little shorter than Detective Halbert,” and that the shooter’s hair was

in a “dread like twist,” explaining that “[d]reads are like real long and twist[s] are

not as long.” Paul acknowledged that he did not know any of the guys from Leesville

prior to the shooting, and he did not recognize Defendant at trial. Paul then noted

that the shooter “had hair just like” Defendant had at trial.

Trebreyun Jackson (“Trebreyun”), of DeRidder, testified that he heard about

the planned fight between Nakylan and LJ, and thought it was because “somebody

stole something from somebody.” He went that night “[t]o help, if they need it.”
9

According to Trebreyun, a fist fight between Nakylan and LJ did begin, but gunshots

were fired fifteen to twenty seconds later. Trebreyun testified that he recognized LJ,

Juju, and Sam with the Leesville group. Trebreyun stated that two other guys from

Leesville were also there; however, they “had their hoods on and they just started

yelling and they raised up and started shooting.”

Trebreyun identified Defendant at trial as one of those wearing a hood and

having a gun. Trebreyun testified that Defendant “was the tallest one out of everyone

out there, he had his hood on. And it was just like not too long, somebody started

screaming, like just yelling, and like he just came – popped up in one motion.”

Defendant “had his hands in his hoody pocket and he just popped up, like threw his

hands out and that’s when bullets started firing.” Then the DeRidder group “just

started backing up.” Trebreyun stated that he did not know Cameron had been shot

“until somebody just started screaming.” When asked what he heard when he saw

the motion of Defendant’s hands, Trebreyun responded: “[T]hat’s when we started

backing up. And then somebody said, ‘that’s not what we came for’ and they was

[sic] like ‘huh, huh.’ And they just started shooting. But I know that it was more

than one gun.”

Trebreyun testified that he jumped over a fence and ran to a house at the corner

of the basketball court to get away from the gunfire. When the shooting stopped,

Trebreyun returned to the court to look for Cameron. He found Cameron lying in

the grass. Cameron’s brother and his brother’s girlfriend had already arrived, and

Trebreyun helped them put Cameron into their car so they could drive him to the

hospital.

On cross-examination, Trebreyun acknowledged that when he was originally

shown the Instagram photograph of LJ, Juju, and Sam, he said he only knew Sam.

Trebreyun did not remember stating in his first interview that he did not actually see
10

anyone with a gun. He then reiterated for the jury that he saw Defendant with “his

head down with his hood on with his hands in his pockets, he then popped up and

then after that bullets started popping.” Trebreyun did not remember saying

anything about Defendant when he gave his original statement, but he noted that he

was not shown a picture of Defendant at that time. Trebreyun insisted at trial that

Defendant was there; he was the “[t]allest one out there with a hoody on.” He

admitted that he could not see Defendant’s hair because it was covered by the hoody.

Trebreyun clarified that he did not see anyone with a gun, “just motions” like those

he had previously described.

Cameron testified that he lived two blocks away from where the shooting

occurred. He was at his house with Trebreyun when they heard about the fight, and

they walked together to the park to watch. Cameron stated that such fights were

fairly common, and that he and his friends would go to “stand around” and observe

what was happening. Cameron was at the park “ten to thirty minutes” before the

Leesville group arrived. The DeRidder group was starting to leave the park because

they thought the Leesville group was not going to show up. Cameron testified he

was standing “right on the edge of the court . . . in the far corner.” He then explained:

“We was [sic] walking away and we heard cars and stuff coming down the street, so

they come [sic] back around and speed [sic] fast and came around the corner. They

went they brought out their hand guns, they came around.”

Cameron was standing about ten to fifteen feet in front of Larry, whom he had

heard of but had never met prior to that night. According to Cameron, someone

“threw a punch, but it never landed.” Then, the Leesville group “just started yelling

and everybody got riled up.” Cameron described what they said as “[j]ust cuss words

and just yelling, really. Just anger towards us, really.” Cameron then saw Larry

“rack” a gun, i.e., cock it back, and shoot it into the air. He “turned around and ran,”
11

hearing gunshots as he did so. After running about thirty feet, Cameron stated that

he “fell and slid on [his] stomach. He explained, “[m]y stomach had like a burning

sensation and I couldn’t feel my legs, it felt like I was falling into the ground.” He

could still hear gunshots while on the ground. Cameron told his friends to get his

brother, Juwan Johnson, who was not at the fight. Mr. Johnson and his girlfriend

took Cameron to the hospital. Once there, Cameron learned that he had been shot

from behind in his back and in his right leg.

Cameron identified Defendant at trial. Cameron testified that he knew LJ,

Sam, and Defendant because he had played basketball with them in the past.

Cameron confirmed that all three of them were present in the park that night. He

recalled that Defendant was “the tallest person that was out there.” Cameron

acknowledged that Defendant looked different in court than he did that night.

On cross-examination, Cameron said he hid behind the bushes with six other

people when the two trucks circled the park. He testified, “It was because they had

their lights off and stuff and I thought they was [sic] gonna [sic] shoot at us.” His

fear subsided when the trucks stopped. He recalled that Defendant was wearing a

black shirt or hoody that night.

On redirect, Cameron stated that no one from the DeRidder group had a gun,

and no one from the Leesville group was shot. Cameron believed more than one

gun was fired because he “heard different sounds of the guns.” He added that he

“had two different size bullets and two different size holes. I had a [.]380 in my

back and a different size in my leg.”

At trial, Tyler’s brother, Isaiah, testified that he walked to the park because he

and “the rest of the DeRidder group” were “supposed to be fighting.” Isaiah

confirmed seeing LJ and Juju from the Leesville group. Isaiah recalled that a fist

fight broke out shortly before “someone yelled, ‘he got [sic] a gun[.]’” Isaiah turned
12

and ran. According to Isaiah, Tyler was running close behind him, trying to push

him out of the way to safety. Tyler was then hit with a bullet in his shoulder. Isaiah

recalled “a lot” of shots being fired, explaining that “the first shot had went [sic] in

the air, like the second shot it came towards us.” The other gunshot victim, Cameron,

was Isaiah’s cousin.

On cross-examination, Isaiah remembered telling Lieutenant Halbert and

Detective Hall that he may have seen guns. Isaiah testified that “either Snoop

[Defendant] or Larry” had the guns.” Isaiah recalled telling the officers it was

Defendant because “[t]hat’s what everybody was saying, so that’s what I had told

them.” Isaiah did not remember telling the officers that Sam, LJ, and Juju all had

guns that night. He also did not remember telling the officers that Juju was the

shooter based on his hair; Isaiah testified that Juju had dreadlocks at the time of the

incident. Isaiah ultimately testified that he did not see anyone with a gun; he “just

heard the gunshot.” Isaiah admitted that he did not know Defendant. When asked

if Defendant was at the park, Isaiah responded, “I don’t know, I wasn’t really – I

don’t really know if he was there or not.”

Sam, a resident of Leesville, admitted at trial that he was involved in the

shooting and that he had been charged as a co-defendant. He testified about his

original statement given to Lieutenant Halbert prior to his arrest. Sam acknowledged

that he was not completely truthful at that time because he felt the officers “were just

pressuring me to say what they wanted to hear” and he knew that he was facing a

charge of attempted second degree murder and conspiracy to commit second degree

attempted murder.

Sam testified that he gave a second police statement on the Monday or

Tuesday before trial. He said that he decided to give a second statement because he

had “been sitting in jail for almost two years. One of my co-defendants’ [sic] that
13

I’m dear friends got falsely convicted and Cameron and Tyler ain’t [sic] really

deserve what happened. Because they didn’t have nothing [sic] to do with that.”

Sam testified that he arrived at the park in Drew’s truck with Larry, LJ, Juju,

and Defendant/Snoop. He identified Defendant in open court. Sam testified that

before going to DeRidder, he and his friends stopped in Sugartown to watch a fight,

but it never materialized. They left and headed to DeRidder. When asked to describe

what they did upon arriving in DeRidder, Sam testified as follows:

Umm, hopped out the truck. Everybody in the first truck already went
over there, the vehicle I was riding with already went over to the little
park area. Then the second truck – they was [sic], some guy came out
his house talking about we needed to leave before he called the police.
So, I went over there to tell the rest of the guys what happened, when
we got there.

Sam explained that he went toward the basketball court “to tell the rest of the

people what was going on[.]” He was about ten to fifteen feet from the court when

he saw LJ, Larry, Juju, and Defendant standing on the concrete. He confirmed that

he knew Defendant; they were in fact schoolmates.

Sam testified that he saw LJ “in the middle of a fight with Nakylan, and then

umm – people started coming out of the woods and Juju ran up – and then I heard a

rack [from a gun] slide back.” Sam then saw Defendant “with something silver in

his hand, but at the time I didn’t realize what it was. And then after that I heard the

first gun shot and I seen [sic] the flame and then I ran.” According to Sam,

Defendant held the gun straight out as he shot toward the DeRidder group. Sam ran

back toward Drew’s truck and jumped into the truck bed as he heard “[a]bout nine

or ten” gunshots. Defendant joined him in the truck bed shortly thereafter. Sam

testified that Defendant did not appear to have the gun with him at that time. The

two sat in the bed of the truck in silence as it sped away from the park. During the

drive back to Leesville, Drew pulled over so Sam and Defendant could climb inside

14

the passenger compartment of the truck. No one talked about the shooting during

the drive home. Sam reflected that “it was quiet. You know, processing everything

of what happened, I guess.”

Larry was dropped off first at his residence in Pickering, Louisiana. The next

stop was Momma K’s house in Westwood. Once there, Sam called his mother and

asked her to come get him. According to Sam, his mother encouraged him to go to

the police. He explained that he “wasn’t really feeling that, so – but she talked me

into it. But the next morning when I woke up I was wanted for these charges. So, I

was like I’m not going up there.” Sam had just turned eighteen years old, and he

was a senior in high school when the incident occurred.

On the first day of trial, Sam—who was a co-defendant—pleaded guilty to

obstruction of justice. He was given a suspended sentence of ten years with felony

probation. Sam had been incarcerated for 624 days at the time of his plea agreement.

One condition of Sam’s plea was that he would testify against Defendant. Sam

acknowledged that getting the plea deal was one of the reasons why he decided to

give a second police statement. When asked by the prosecution how anyone could

now believe him, Sam responded: “If you look at the evidence and you look at what

I’m telling you, it’s all going to line up. If you lie, the lie will change every time. If

you tell you truth [sic], it will never change.” Sam then explained that he approached

the prosecuting attorneys about making a second statement because he thought what

happened to Cameron and Tyler was unfair.

On cross-examination, Sam testified that he had not discussed any plan at

Momma K’s house the night before the shooting. After identifying Defendant in

open court, Sam commented that Defendant looked different at trial than he did at

the time of the shooting. Sam viewed a photograph of Defendant taken at the time

of his arrest and confirmed that it accurately reflected how Defendant’s hair looked
15

on the night of the shooting. The photograph was introduced in evidence; it shows

Defendant without dreadlocks.

When asked on cross-examination about the night of the shooting, Sam stated

that he went to DeRidder to “assist in a fight.” He explained that about “eight, ten”

of the DeRidder group came out of the bushes as “the dude and LJ started fighting[.]”

Two or three of the DeRidder group were already on the basketball court. Sam added

that because those in the second truck from Leesville had not yet arrived, only five

or six of the Leesville group were there on the court, leaving them outnumbered

about two to one.

Sam testified that he believed Defendant became scared when he saw the

DeRidder group “coming out of the tree line.” In fact, Sam believed the main reason

why Defendant shot his gun was because he was scared. Sam confirmed that he, too,

was scared, and that he ran after hearing gunshots. Although Defendant was the

only person that Sam saw with a gun that night, he explained he later learned that

Larry also had gun, but Larry’s gun did not have “a firing pin or clip or nothing like

that.” When asked whether he disagreed with “other witnesses [who] have testified

that Larry Williams shot a gun into the air prior to the rest of the shooting,” Sam

answered that he did disagree with these witnesses because he “didn’t hear any shots,

just the racking of a gun.”

Aggravated Battery—Sufficiency of the Evidence

Defendant challenges the sufficiency of evidence presented to convict him of

aggravated battery.

A “battery” is defined as “the intentional use of force or violence upon the

person of another. . . .” La.R.S. 14:33. More particularly, an “aggravated battery” is

defined as “a battery committed with a dangerous weapon.” La.R.S. 14:34. “All

persons concerned in the commission of a crime, whether present or absent, and
16

whether they directly commit the act constituting the offense, aid and abet in its

commission, or directly or indirectly counsel or procure another to commit the crime,

are principals.” La.R.S. 14:24.

The Louisiana Supreme Court in State v. Neal, 00-674, p. 12 (La. 6/29/01),

796 So.2d 649, 659, cert. denied, 535 U.S. 940, 122 S.Ct. 1323 (2002) (citation

omitted), explained that “the defendant’s mere presence at the scene is not enough

to ‘concern’ him in the crime. Only those persons who knowingly participate in the

planning or execution of a crime may be said to be ‘concerned’ in its commission,

thus making them liable as principals.”

Thus, for this court to affirm Defendant’s aggravated battery conviction, we

must determine whether, in viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have concluded beyond a reasonable

doubt that Defendant intentionally used force or violence upon the person of another

using a dangerous weapon or that he was a principal to these acts by being concerned

in, aiding or abetting in, or counseling or procuring another to commit them.

As addressed previously, Trebreyun, who was part of the DeRidder group,

identified Defendant at trial as one of those wearing a hood and having a gun.

Trebreyun testified that Defendant “had his hands in his hoody pocket and he just

popped up, like threw his hands out and that’s when bullets started firing.”

Additionally, Sam, who was part of the Leesville group, testified that he and

Defendant were in high school together; that he and Defendant rode in the same

vehicle to DeRidder on the night in question; and that he saw Defendant hold a gun

out straight out and shoot at the DeRidder group.

As stated by the Louisiana Supreme Court in State v. Higgins, 03-1980, p. 6

(La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182 (2005),

“[I]n the absence of internal contradiction or irreconcilable conflict with the physical
17

evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to

support a factual conclusion.”

Here, multiple witnesses identified Defendant at the scene of the shooting;

Trebreyun testified that he saw Defendant motion as if he were shooting toward the

DeRidder group; and Sam testified that he saw Defendant point a gun toward the

DeRidder group and open fire. Although Sam was also charged in this incident and

benefited from a plea bargain he made in exchange for his testimony, the jury was

made aware of that fact, Defense counsel cross-examined him regarding his

credibility, and the jury apparently believed his testimony about Defendant’s

involvement in the shooting.

As summarized by the Louisiana Supreme Court in State v. Neal, 796 So.2d

at 658-59 (citations omitted):

[T]he jurisprudence in Louisiana generally holds that an accomplice is
qualified to testify against a co-perpetrator even if the prosecution
offers him inducements to testify; such inducements would merely
affect the witness’s credibility. As the United States Fifth Circuit has
found, “a conviction may be based even on uncorroborated testimony
of an accomplice or of someone making a plea bargain with the
government, provided that the testimony is not incredible or otherwise
insubstantial on its face.” United States v. Osum, 943 F.2d 1394, 1405
(5th Cir.1991).

Based on the foregoing, we conclude that a rational trier of fact could have

found proof beyond a reasonable doubt that Defendant was guilty of the crime of

aggravated battery. It was the jury’s prerogative to assess the credibility of the

witnesses and to accept or reject their testimony. We will not second guess the jury’s

credibility determinations nor will we impinge on its role as factfinder. Accordingly,

Defendant’s aggravated battery conviction is affirmed.

18

Conspiracy to Commit Aggravated Battery—Sufficiency of the Evidence

Defendant also challenges the sufficiency of evidence presented to convict

him of criminal conspiracy to commit aggravated battery.

Louisiana Revised Statutes 14:26 provides, in pertinent part:

A. Criminal conspiracy is the agreement or combination of two
or more persons for the specific purpose of committing any crime;
provided that an agreement or combination to commit a crime shall not
amount to a criminal conspiracy unless, in addition to such agreement
or combination, one or more of such parties does an act in furtherance
of the object of the agreement or combination.

B. If the intended basic crime has been consummated, the
conspirators may be tried for either the conspiracy or the completed
offense, and a conviction for one shall not bar prosecution for the other.
According to State v. Guillory, 540 So.2d 1212, 1215 (La.App. 3 Cir. 1989)

(citations omitted), “An essential element of the crime of conspiracy is specific

intent. Specific intent is defined as the state of mind which exists when the

circumstances indicate that the offender actively desired the prescribed criminal

consequences to follow his act or failure to act.”

To affirm Defendant’s criminal conspiracy to commit aggravated battery

conviction, we must determine whether, in viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have concluded beyond

a reasonable doubt that Defendant and at least one other person agreed to commit

aggravated battery and that either of them acted in furtherance of that crime.

We conclude that the record is absent of any evidence to support Defendant’s

conviction for criminal conspiracy to commit aggravated battery. Not a single

witness testified that Defendant planned or conspired in advance to commit

aggravated battery on the DeRidder group. When reviewed under the Jackson

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standard, the evidence is woefully insufficient to convict Defendant of criminal

conspiracy to commit aggravated battery, and that conviction is set aside.2

Aggravated Battery—Excessiveness of Sentence

Defendant alleges that the sentence imposed for his aggravated battery

conviction is unconstitutionally harsh, excessive, and illegal, noting he had just

turned nineteen years old at the time of the shooting. The trial court sentenced

Defendant to the maximum term of ten years at hard labor and a fine of $1,500.

This court has previously discussed the standard for reviewing excessive

sentence claims:

[Louisiana Constitution Article] I, § 20 guarantees that, “[n]o law shall
subject any person to cruel or unusual punishment.” To constitute an
excessive sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. The trial court has wide discretion in
the imposition of sentence within the statutory limits and such sentence
shall not be set aside as excessive absent a manifest abuse of discretion.
The relevant question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might have been
more appropriate.

State v. Barling, 779 So.2d at 1042 (citations omitted).

As we explained in State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846

So.2d 786, 789 (citations omitted), writ denied, 03-562 (La. 5/30/03), 845 So.2d

1061:

In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, an appellate court
may consider several factors including the nature of the offense, the
circumstances of the offender, the legislative purpose behind the
punishment and a comparison of the sentences imposed for similar
crimes. While a comparison of sentences imposed for similar crimes
may provide some insight, “it is well settled that sentences must be
individualized to the particular offender and to the particular offense
2
We have doubts as to whether criminal conspiracy to commit aggravated battery is a
responsive verdict to count two, conspiracy to commit first degree murder. However, as we have
found that the evidence was insufficient to support that conviction, we pretermit discussion of this
issue.
20

committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).
Additionally, it is within the purview of the trial court to particularize
the sentence because the trial judge “remains in the best position to
assess the aggravating and mitigating circumstances presented by each
case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

Louisiana Code of Criminal Procedure Article 894.1 enumerates aggravating

and mitigating factors to be considered by the trial court in imposing sentence, and

requires that the trial court “shall state for the record the considerations taken into

account and the factual basis therefor in imposing sentence.” La.Code Crim.P. art.

894.1(C). “While the trial judge need not articulate every aggravating and mitigating

circumstance outlined in [La.Code Crim.P.] art. 894.1, the record must reflect that

he adequately considered these guidelines in particularizing the sentence to the

defendant.” State v. Smith, 433 So.2d 688, 698 (La.1983).

The Louisiana Supreme Court has instructed that “[m]aximum sentences are

appropriately imposed in cases involving the most serious violations of the described

offense, and for the worst kind of offender.” State v. Jones, 398 So.2d 1049, 1053

(La.1981). “The appellate court shall not set aside a sentence for excessiveness if

the record supports the sentence imposed.” La.Code Crim.P. art. 881.4(D).

In the instant case, Defendant was exposed to a sentence of up to ten years

and/or a fine of up to $5,000 for his conviction for aggravated battery. La.R.S. 14:34.

The trial court imposed the maximum possible term, albeit with a fine toward the

lower end of the sentencing range. In reviewing Defendant’s aggravated battery

sentence for excessiveness, we will first address sentences imposed in similar cases,

followed by a discussion as to the nature and seriousness of the particular offense

committed.

In State v. Tzuanos, 491 So.2d 826 (La.App. 3 Cir. 1986), the defendant

stabbed the husband of his sister-in-law multiple times, resulting in his near death.

Although the defendant had been charged with attempted second degree murder, the
21

jury returned a responsive verdict of aggravated battery. The trial court sentenced

the defendant, a first-time offender, to served ten years at hard labor, noting that it

would have sentenced him to a higher term had the law permitted. In justifying its

imposition of the maximum sentence, the trial court characterized the defendant’s

actions as “[a]bsolutely inexcusable[,] deplorable and horrible.” Id. at 827. This

court affirmed the sentence, observing that the trial court’s comments at the

sentencing hearing indicated it had properly considered the guidelines found in

La.Code Crim.P. art. 894.1. in tailoring the sentence to the crime.

In State v. Munoz, 575 So.2d 848 (La.App 5 Cir. 1991), the seventeen-year-

old defendant, unprovoked, punched the fourteen-year-old victim to the ground and

forcefully kicked him until he was unconscious, leaving him in a coma. The

defendant was charged with attempted second degree murder, but a jury found him

guilty of aggravated battery.

The trial judge described the attack as “brutal” and “vicious” and
remarked that although he respected the jury’s verdict, he was of the
opinion that the defendant possessed the intent to kill at the time of the
attack. The trial judge also noted, in response to counsel’s argument
that were the defendant to be placed on probation restitution payment
could be made, that nothing could compensate the victim or his family
for what had occurred.

Id. at 851. As such, the trial court sentenced the youthful, first-time offender to the

maximum sentence of ten years at hard labor. The fifth circuit affirmed the sentence,

noting that “[t]he trial judge’s extensive comments indicate that he carefully

considered the guidelines of C.Cr.P. article 894.1 in determining the appropriate

sentence,” and that “[n]othing in the record suggests that it was arbitrarily or hastily

imposed.” Id.

In the instant matter, the trial court stated during sentencing that it was

“familiar with all aspects of this case[,]” having presided over the five companion

cases that arose out of this incident. The trial court noted that Defendant began firing
22

his gun into the crowd of DeRidder teenagers before any punches were thrown

between the two young men who had agreed to a fight, thereby creating a risk of

harm or death to multiple individuals. The trial court further noted that the two

gunshot victims, Cameron and Tyler, were shot as they were running away from the

scene; Cameron is now paralyzed because of Defendant’s actions, and Tyler has a

bullet that remains lodged in his right shoulder. The trial court also considered the

“traumatic emotional sufferings” that those present “experienced as a result of the

gun shots and their friends being hit by bullets.”

Our review of the sentencing transcript reveals that the trial court considered

the factors found in La.Code Crim.P. art. 894.1 in particularizing the sentence now

in question. Indeed, it is hard to imagine a more serious violation of the crime of

aggravated battery. Jones, 398 So.2d 1049. Accordingly, we conclude that the trial

court did not abuse its wide discretion in sentencing Defendant to the maximum term

of ten years at hard labor and a fine of $1,500.

DECREE

Tarik D. Njoku’s conviction and sentence for count one, aggravated battery,

is affirmed. Tarik D. Njoku’s conviction for count two, conspiracy to commit

aggravated battery, is set aside.

AGGRAVATED BATTERY CONVICTION AND SENTENCE AFFIRMED.
CRIMINAL CONSPIRACY TO COMMIT AGGRAVATED BATTERY
CONVICTION SET ASIDE.

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