State of Louisiana v. John D. Pastorick

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-244

STATE OF LOUISIANA

VERSUS

JOHN D. PASTORICK

**********

APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 17-K-2730-A
HONORABLE GREGORY JAMES DOUCET, DISTRICT JUDGE

**********

D. KENT SAVOIE
JUDGE

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Court composed of Shannon J. Gremillion, D. Kent Savoie, and Sharon Darville
Wilson, Judges.

AFFIRMED.

Peggy J. Sullivan
LA Appellate Project
P. O. Box 1481
Monroe, LA 71201-1481
(318) 855-6038
COUNSEL FOR DEFENDANT/APPELLANT:
John D. Pastorick

Chad Patrick Pitre
District Attorney 27th JDC
Kathleen E. Ryan
Assistant District Attorney
P.O. Drawer 1968
Opelousas, LA 70571
(337) 948-0551
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

SAVOIE, Judge.

Defendant, John D. Pastorick, appeals his conviction of attempted

manslaughter and corresponding sentence. For the following reasons, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

Just after 2:00 a.m. on or about May 29, 2017, Defendant shot seventeen-

year-old K.W., who was spending the night with Defendant’s sixteen-year-old

granddaughter, E.C., at Defendant’s home. 1 K.W. suffered from extensive blood

loss and internal damage to one of his lungs.

On May 4, 2018, Defendant was charged by bill of information with

attempted second degree murder, in violation of La.R.S. 14:27 and 14:30.1. The

matter proceeded to trial on February 16, 2022, and Defendant was found guilty of

attempted manslaughter, in violation of La.R.S. 14:27 and 14:31. On March 3,

2022, the trial court sentenced Defendant to ten years at hard labor with seven

years suspended. On March 7, 2022, the sentence was amended to include the term

of probation, and Defendant was placed on three years supervised probation.

Defendant filed a motion for appeal on March 15, 2022.

ERRORS PATENT

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 note that the

trial court imposed an illegally lenient sentence by partially suspending

Defendant’s sentence for attempted manslaughter and placing him on probation. At

the time Defendant committed the offense, La.Code Crim.P. art. 893(A) prohibited

the suspension of a sentence for an offense designated as a crime of violence.

1
Initials are being used pursuant to La.R.S. 46:1844(W), since, at the time of the offence,
the victim was a minor.

La.Code Crim.P. art. 893(A) (2017 version). See also, State v. Weldon, 13-285

(La.App. 3 Cir. 10/23/13), 161 So.3d 18. However, because the State has not raised

the issue of Defendant’s illegally lenient sentence, we will not vacate or otherwise

correct Defendant’s sentence on appeal. See, State v. Charles, 20-498 (La.App. 3

Cir. 5/5/21), 318 So.3d 356. See also, State v. Brown, 19-771 (La. 10/14/20), 302

So.3d 1109.

ASSIGNMENT OF ERROR:

Defendant submits as his sole assignment of error that his “actions fell

within the exceptions for justification; and his conviction of attempted

manslaughter was not supported by the evidence in this matter.” Before discussing

Defendant’s specific arguments, we note the following testimony from trial.

The State called Michael Darbonne to testify at trial. Darbonne was

previously a detective with the St. Landry Parish Sheriff’s Office and was the

primary investigator of the incident at issue. He testified that in the early morning

hours of May 29, 2017, he was dispatched to Shelton Manual Road in response to a

report that a male subject had shot another male subject inside of the home.

Darbonne stated that upon arriving to the home, he was informed that the victim,

K.W., and K.W.’s girlfriend, E.C., had been transported to the hospital. Darbonne

described K.W. as a young black male. K.W. was seventeen years old at the time.

E.C. is Defendant’s granddaughter who was sixteen years old at the time.

Darbonne stated that when he arrived at the scene, those present included

Defendant, as well as Desiree Spell, who is Defendant’s daughter and E.C.’s

mother, Desiree’s husband, Desiree’s youngest daughter, and several patrol

officers.

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Darbonne explained that during his investigation, he learned that E.C. and

her younger sister were living in Defendant’s home at the time, while Mr. and Mrs.

Spell were living in a camper on the property. Darbonne also learned that

Defendant was staying with his girlfriend in Mamou at the time, but he would

sometimes go to his house to retrieve his belongings. After Darbonne interviewed

Mr. and Mrs. Spell and Defendant, Defendant was taken to the sheriff’s office.

According to Darbonne, K.W. was shot in E.C.’s bedroom in Defendant’s

house, and a revolver had been placed on the kitchen table before the deputies

arrived on the scene. Darbonne explained that he processed the scene, collected

the firearm, and swabbed what he believed was K.W.’s blood and a handprint

inside the bedroom. Darbonne stated that there was a “fair amount of blood inside

the bedroom.”

Darbonne testified that he spoke with Defendant at the sheriff’s office and

informed him of his Miranda rights. According to Darbonne, Defendant stated

that he wanted to talk to police. Defendant told him that an argument had taken

place at his girlfriend’s house, so he left her house and returned to his house at

around 2:00 a.m.; however, Defendant did not have his keys, so he knocked on the

window of E.C.’s bedroom. Defendant admitted he had a firearm in his hand when

he knocked on E.C.’s window. E.C. then let him into the house.

Darbonne testified that, according to Defendant, after E.C. let him inside the

house, he and E.C. had an argument about dirty dishes that were in the sink. He

said that E.C. then went back to her bedroom, and Defendant began throwing

dishes in the trashcan. Defendant told Darbonne that he then started walking

towards his bedroom with the firearm in his hand, but he heard a scuffle in E.C.’s

room. Defendant told Darbonne that he then asked E.C. to open the door, E.C. told

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him to wait, and Defendant told E.C. he was going to kick down the door if she did

not open it. Defendant then told Darbonne that when E.C. opened the door, he

looked around and saw a naked male in the room. Defendant told Darbonne that

he was not sure who the male was, so he raised his gun and fired a shot because he

noticed movement. Darbonne testified that Defendant admitted he shot K.W. in

the upper chest.

According to Darbonne, he asked Defendant if he thought E.C. was in

distress at the time, and Defendant said he did not know. Darbonne said, “I asked

him . . . basically to show that [K.W.] was some type of threat, which he couldn’t

provide.” Darbonne further stated, “[Defendant] said it was just a small room[,]

and he noticed a movement[,] and it was basically a quick reaction but he did

identify that [K.W.] was a naked black male[,] and he couldn’t at any point

determine that there was any weapon in [K.W.]’s hand.”

Darbonne also testified that he asked Defendant about the relationship

between K.W. and E.C. Defendant told him that he had not met K.W. before but

that he was aware that E.C. had dated black and males and females before.

According to Darbonne, Defendant admitted to being bothered by his

granddaughter’s relationships.

Darbonne testified that following the incident, he also went to the hospital to

speak to K.W. and E.C., who both confirmed some of the information he obtained

from Defendant. Darbonne said that E.C. told him that Defendant had walked in

and shot her boyfriend. E.C. also told Darbonne that she called 911 twice and

reported that her boyfriend, K.W., had been shot.

Darbonne testified that he reviewed the recordings of the 911 calls and could

hear E.C. tell Defendant that K.W. was not an intruder, but rather her boyfriend.

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Darbonne further explained that “[Defendant] can be heard saying, ‘Didn’t I tell

you that would happen,’ and E.C. said something to the nature of, ‘No, you said

you would shoot him. I didn’t think you would actually do’ or ‘You said you

would kill him.’”

The State introduced and played the recordings of the two 911 calls. In the

recording of the first call, E.C. is heard calling for an ambulance because her

“grandfather just shot somebody,” and she provided her address. Commotion can

be heard in the background, as well as what sounds like groans coming from the

victim. E.C. is heard saying, “Wait, hold on, do I just put pressure on it; it’s

bleeding?” E.C. then reaffirmed the address, and at this point the call ends.

In the recording of the second call, E.C. can be heard asking if someone was

coming. She further stated, “Me and my boyfriend were here sleeping[,] and my

momma knew[,] and my grandpa walked in and shot my boyfriend in the chest.”

E.C. continued, “He said he thought he was a burglar, but he was in my room and

its 2 o’clock in the morning. And he shot him in the chest.” As E.C. is saying this,

a muffled background voice that sounded like “burglar” can be heard. E.C. can

also be heard in the second recording saying that her boyfriend’s chest was hurting

and that he could not breathe. She stated that her grandpa was standing in the door

and still had the gun in his hand.

At this point in the second call, the sheriff’s office was alerted, and E.C.

stated that her boyfriend had been shot by her grandfather. E.C. said her boyfriend

was bleeding everywhere, and it would not stop. Groans of pain coming from the

victim can be heard in the background. E.C. again stated that her grandfather was

standing in the doorway. Defendant’s voice is then heard, and he said something

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along the lines of a burglar being in his house. E.C. replied, “He’s not a burglar[,]

and you didn’t have to shoot him. I shoulda got in front of that gun.”

After a muffled exchange and what sounded like Defendant saying, “Didn’t

I tell you what would happen,” E.C. is heard saying, “No, you said you was gonna

shoot him[,] and I didn’t think you were crazy enough to come in here and shoot

somebody. You don’t do that. That is crazy. You trying to go to jail? He wasn’t

doing nothing wrong. He’s not a burglar.” E.C. further identified Defendant as

John Pastorick.

Darbonne also testified that during his investigation, he spoke to various

witnesses, obtained a statement from Desiree, reviewed the recordings of the 911

calls, and reviewed statements from E.C. stating that Defendant had made racist

comments in the past. He explained that after his investigation, he signed an

affidavit of probable cause for an arrest for attempted second degree murder.

On cross-examination, Darbonne testified that, according to Defendant, E.C.

had dated both black males and females in the past. Darbonne stated he was not

aware of Defendant ever shooting or harming any of E.C.’s former dating partners.

On re-direct examination, Darbonne testified that Defendant told him that he

disapproved of his granddaughter dating black men.

The State also called Desiree Spell to testify at trial. She testified that at the

time of the incident, she was living in a camper in the yard of her parents’ house,

but that she and her husband would cook, bathe, and eat in the house. She

explained that E.C. and a younger daughter lived in the house. Desiree testified

that Defendant would sometimes stay at his girlfriends’ house, he would come and

go from the house, and they never knew when he would be there. She also stated

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that Defendant would occasionally come in during the early morning hours when

everyone was asleep.

Desiree also testified that she and her girls knew E.C. was dating K.W., she

knew who he was, and that he was a “black boy.” She also said that E.C. had

dated black boys before. Desiree said that on the night of the incident, K.W. had

prepared dinner for them. She explained that this was not the first time K.W. had

been to the house and that he would occasionally spend the night in the house with

E.C. Desiree said that E.C. and K.W. had been dating for about three months prior

to the incident.

Desiree also testified that she knew E.C. had dated other black boys before;

however, she did not bring any other boys home. She also said that Defendant

knew that E.C. was dating someone. When asked if Defendant approved of his

granddaughter dating black boys, Desiree said, “No, I guess not.” Desiree said she

never heard Defendant say the “N” word, but her kids told her Defendant said it.

When asked if Defendant said racist things in front of her, Desiree said, “Yeah,

sometimes.” Desiree said that Defendant did not always make racist comments

because he had friends who are black.

On cross-examination, Desiree testified that she did not like the person who

Defendant was dating and that she was upset with Defendant for disappearing. She

testified that Defendant was not a bad father and would get her the things that she

wanted. However, according to Desiree, she and Defendant did not talk much.

The State also called E.C. to testify at trial. She testified that, as of the date

of trial, she and K.W. had been dating for five years, were living together, and had

children together.

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E.C. also testified that on the date of the incident, she was sixteen years old,

K.W. was seventeen years old, and they had been dating for about two months.

She said that at that time, she had her own room in Defendant’s home, lived in the

home with her sister, and that her mother and “Rusty” lived in a camper in the

backyard. E.C. also explained that Defendant was not staying in the home, but

rather he would leave for nights, or even weeks, at a time.

E.C. testified that, on the date of the incident, she was with K.W. at

Defendant’s house during the day, then they went to K.W.’s house for a while, and

then they returned to Defendant’s house to spend the night.

E.C. explained that she and K.W. would go back and forth between

households because K.W.’s parents and E.C.’s mother knew they were dating. She

said that her mother knew K.W. and that K.W. would cook and bring them food to

the camper. She said “[h]e was always there, like he was always around. She used

to go pick him up[,] and we’d go . . . back to my house.” E.C. said she and K.W.

would stay in the same bedroom, and she was pregnant with her first child during

the time of the incident.

E.C. testified that she did not know if Defendant knew she was dating K.W.

but that Defendant did know she had dated black men before while E.C. was living

in the house; however, only one other guy had gone to her house before.

E.C. testified that on the night of the incident, they had cooked at the house

and then went to bed around eleven or twelve o’clock at night. She said that her

younger sister was the only other person in the house. She testified that around

two o’clock in the morning, she heard someone knocking on her window and

realized it was her grandfather when he shined a flashlight into the room and said

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to open the door. E.C. said Defendant had a gun in his hand and was wearing his

motorcycle club t-shirt when she opened the door.

According to E.C., once she opened the door, Defendant went into the

kitchen. She denied having an argument with Defendant over dirty dishes. She

said there was no argument or words between them, other than she told Defendant

she was going back to her room to go to sleep.

E.C. testified that she later heard Defendant beating on her bedroom door

and telling her to open it before he beat it down. She said she responded by telling

him she did not have any clothes on, as neither she nor K.W. were dressed at the

time. She stated, “[I] told him I didn’t have clothes on so I told him I wasn’t going

to open it all the way . . . as soon as I unlocked it . . . that’s whenever the door

opened[,] and as soon as he flicked the light on there was no words, no nothing.”

E.C. continued, “No arguments, no who is this, no what’s going on, nothing. He

just raised the gun and shot.”

She further explained that as Defendant pushed himself into the room, and

K.W. was standing between the closet and the bed, she was not concerned about

K.W. being in the room since E.C.’s mother knew he was there. “I knew my

stepdad knew he was there . . . [I]t had never been an issue[,] and this has been

going on for at least two months so . . . I didn’t think, ‘Oh, yeah, he’s going to

come home in the middle of the night[,] and something’s going to happen.’”

E.C. further testified that K.W. was not trying to hide or jump out of the

window; rather, he was just standing there naked. E.C. said Defendant’s gun was

already loaded, and “[h]e literally just raised his hand and shot. . . . He had it in his

hand. He lifted it and shot. There was [sic] no words.”

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E.C. testified that she never told Defendant she was in distress. “[T]here

was no ruckus. There was no noise. I wasn’t screaming for help. . . . [T]here was

no sign that anything would have been going on.” E.C. testified that she did not

see K.W. make any movements towards Defendant nor did K.W. pick up anything.

E.C. stated that K.W. was just standing there, and no words were exchanged.

E.C. said after Defendant shot K.W., Defendant “looked at me and he said,

‘What did I tell you was ever going to happen if I caught you dating a N----R,” and

he said like the word-word, like E-R. He didn’t . . . that’s how he said it.”

E.C. said that while Defendant had never warned her in this way before,

Defendant had made racial remarks since she was little. E.C. said he would say

racist things such as, “I used to have a friend who would come sleep at my

house[,] . . . and she’s a mixed girl . . . and he would always ask me why is this

black girl in my house[,] and it’s just stuff like that ever since growing up.” E.C.

testified that she would consider Defendant a racist towards black people.

E.C. testified that following the shooting, she tried to help K.W. and called

the police, but Defendant walked away to place the gun on the kitchen table and

then returned and stood in the doorway and watched. She said, “He watched . . .

he waited until the ambulance came and everything. Never tried to leave. He just

stood there watching us.” E.C. testified that Defendant never tried to assist with

the phone call or help K.W., but rather he just stood in the doorway. She also said

that once the ambulance arrived, Defendant just stood in the dining room watching,

but he did not say anything. She further explained that she was in shock following

the shooting, so she did not remember everything that was said between her and

Defendant.

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On cross-examination, E.C. testified that she was not actively trying to hide

the fact that K.W. was in the house. She admitted she did not tell Defendant that

K.W. was there, but she “didn’t think he was coming to the house to shoot

anybody who was in the house.” She explained that Defendant never asked her

why K.W. was in her room or told her he thought K.W. was a burglar.

As to what Defendant said to her after the incident, E.C. testified, “He said,

‘What did I tell you would happen?’ he’s never actually told me, ‘Oh, if I catch

you dating a black person, I’m going to shoot them and kill them.’ No, he never

actually said that to me.” E.C. stated that Defendant had made racist remarks prior

to the night of incident, but he has “never physically looked at me and said, ‘If I

ever catch you dating one, I’m going to shoot them.’” She explained that

Defendant had been racist before even when her grandmother was living, but

“there was nothing he could do because it was my grandmother’s house.”

The State also called K.W. to testify at trial. His testimony was similar to

E.C.’s concerning the events that took place the night of the incident. He also

confirmed that he had stayed overnight in the house before and that E.C.’s mom,

stepfather, and sister knew that he and E.C. were dating.

K.W. said that on the night of the incident, he was sleeping when Defendant

knocked on E.C.’s window, and Defendant woke them up when he asked E.C. to

unlock the door. K.W. said that he then heard Defendant say to open the door and

that he was determined to come into the room even though E.C. said she was not

dressed. According to K.W., he stayed in bed until the door opened, and then he

got up because Defendant was coming into the room. He explained, “I didn’t have

a plan. I wasn’t going to just be laying there when he came in there and let him

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jump on top of me so I stood up. When I stood up[,] and I looked at him, he shot

me.”

K.W. testified he did not make any gestures towards Defendant, and he froze

when he saw the gun. K.W. said he was completely naked at the time, he did not

have anything in his hands, and he did not say anything to Defendant, but

Defendant just pulled the trigger. He stated that approximately five seconds passed

from the time Defendant came into the room until the time Defendant shot him.

K.W. said he has never spoken to Defendant and had never met him prior to the

incident.

The defense called John Roark Pastorick, Defendant’s son, to testify at trial.

He testified that he has never known Defendant to be a racist and would not

describe him as such.

John further testified that Defendant is protective over his grandchildren. He

explained that Desiree is his half-sister, and that after his stepmother passed away,

he visited the house less frequently. John said that E.C. and her sister were living

with Defendant in the house because Desiree was deemed an unfit mother. He

further indicated that Desiree did not like Defendant dating again, did not like

Defendant bringing women into her mother’s house, and that Desiree wanted to

control the house. John testified that Defendant would tell the grandchildren to get

up and clean because Defendant was the only provider after their grandmother

passed away, “so he’d work and come back and the kids wouldn’t do anything.”

John further testified that Defendant was a quiet person who would

sometimes raise his voice, but he was not known to lay a hand on his family.

On appeal, Defendant argues that the State failed to meet the burden set

forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979), as his conduct

12

was a justifiable defense of persons as contemplated by La.R.S. 14:18 and 14:19.

Louisiana Revised Statutes 14:18 provides in part, “The fact that an offender’s

conduct is justifiable, although otherwise criminal, shall constitute a defense to

prosecution for any crime based on that conduct.” Under La.R.S. 14:18(7), the

defense of justification can be claimed “[w]hen the offender’s conduct is in

defense of persons or of property under any of the circumstances described in

Articles 19 through 22.”

Louisiana Revised Statutes 14:19 provides in pertinent part:

A. (1) The use of force or violence upon the person of another is
justifiable under either of the following circumstances:

(a) When committed for the purpose of preventing a forcible
offense against the person or a forcible offense or trespass
against property in a person’s lawful possession, provided that
the force or violence used must be reasonable and apparently
necessary to prevent such offense.

(b)(i) When committed by a person lawfully inside a dwelling,
a place of business, or a motor vehicle as defined in R.S.
32:1(40) when the conflict began, against a person who is
attempting to make an unlawful entry into the dwelling, place
of business, or motor vehicle, or who has made an unlawful
entry into the dwelling, place of business, or motor vehicle, and
the person using the force or violence reasonably believes that
the use of force or violence is necessary to prevent the entry or
to compel the intruder to leave the dwelling, place of business,
or motor vehicle.

Defendant claims that under the facts and circumstances of this case, he

proved by a preponderance of the evidence that his actions were justified.

Specifically, he argues that his actions in shooting an unknown person who was

standing naked in his sixteen-year-old granddaughter’s room at two o’clock in the

morning were justified and that, while E.C.’s testimony paints him as a racist who

shot her boyfriend because he was black, her testimony fails to account for

Defendants’ belief that the man was a danger to his two minor granddaughters

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living in the home. Defendant also notes that no witnesses testified that Defendant

knew who E.C. was dating, what race he was, or that he knew E.C.’s mother was

allowing her sixteen-year old’s boyfriend to sleep in the house with her.

In response, the State argues on appeal that the legal justifications relied

upon by Defendant are inapplicable. The State argues that there was no evidence

indicating that K.W. entered the residence unlawfully or forcibly, or evidence that

Defendant knew or had reason to believe K.W. had unlawfully or forcibly entered

the residence.

The State notes that in a case that does not involve a homicide, the issue of

self-defense requires a two-part inquiry: (1) an objective inquiry into whether the

force used was reasonable under the circumstances, and (2) a subjective inquiry

into whether the force was apparently necessary. State v. Ross, 18-453 (La.App. 3

Cir. 3/13/19), 269 So.3d 1052, writ denied, 19-581 (La. 1/22/20), 291 So.3d 1041.

The State also contends that the burden of proof is on the defense to prove self-

defense justification by a preponderance of the evidence since the act did not result

in death. Id.

The State argues it presented ample evidence that Defendant intentionally

shot K.W. and that Defendant’s actions were not reasonable or subjectively

necessary. The State notes that K.W. was not armed with a weapon and made no

threatening gestures and that E.C. showed no signs of fear or distress to indicate

K.W. was a threat. The State argues Defendant should have inquired as to who

K.W. was, but Defendant did not do so because he knew that K.W. was his

granddaughter’s invited guest and that was the reason Defendant shot him.

As to Defendant’s stated belief that K.W. was an intruder, the State

questions why, upon realizing the “mistake,” Defendant did not render aid, call for

14

an ambulance, or apologize. Rather, the State argues, Defendant “did none of

these things because this was no mistake.” According to the State, the jury heard,

and properly rejected Defendant’s justification argument, and the State asks this

court not to disturb the jury’s determination.

The general analysis for insufficiency of the evidence claims is well-

established:

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, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (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, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however,
the record must reflect that the state has satisfied its burden of proving
the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Defendant was charged with attempted second degree murder, in violation of

La.R.S. 14:27 and 14:30.1. The jury returned a responsive verdict of attempted

manslaughter. Manslaughter is defined as a homicide that would be first or second

degree murder, but the offense is committed in sudden passion or heat of blood

immediately caused by provocation sufficient to deprive an average person of his

self-control and cool reflection. La. R.S. 14:31. While specific intent to kill is not

necessary for a conviction of manslaughter, specific intent to kill is required for a

conviction of attempted manslaughter. To support a conviction for attempted

manslaughter, the State must prove that the defendant specifically intended to kill

15

the victim and committed an overt act in furtherance of that goal. State v. Glover,

47,311 (La.App. 2 Cir.10/10/12), 106 So.3d 129, writ denied, 12-2667 (La.

5/24/13), 116 So.3d 659.

Specific intent is that state of mind which exists when the circumstances

indicate the offender actively desired the prescribed criminal consequences to

follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be inferred

from the circumstances surrounding the offense and the conduct of the defendant.

State v. Reed, 45,237 (La.App. 2 Cir. 5/26/10), 37 So.3d 1116.

Any person who, having a specific intent to commit a crime,
does or omits an act for the purpose of and tending directly toward the
accomplishing of his object is guilty of an attempt to commit the
offense intended; and it shall be immaterial whether, under the
circumstances, he would have actually accomplished his purpose.

La. R.S. 14:27(A).

“The determination of whether the requisite intent is present in a criminal

case is for the trier of fact, and a review of this determination is to be guided by the

standards of Jackson v. Virginia[.]” State v. Linnear, 44,830, p. 6 (La.App 2

Cir.12/9/09), 26 So.3d 303, 306.

As stated above, specific intent to kill may be inferred from the

circumstances and Defendant’s conduct. Defendant does not contest the fact that

he fired a single shot from his revolver, which struck the victim in the chest region.

The jury heard from Defendant’s granddaughter as well as from K.W., and they

both testified that Defendant had a gun in his hand and fired very soon after

opening the bedroom door. The bullet struck K.W. in the chest, which caused

extensive blood loss and internal damage to one of his lungs.

This court has stated, “It is well-settled that the act of pointing a gun at a

person and firing the gun is an indication of the intent to kill that person.” State v.

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Thomas, 10-269, p. 7 (La.App. 3 Cir. 10/6/10), 48 So.3d 1210, 1215, writ denied,

10-2527 (La. 4/1/11), 60 So.3d 1248, cert. denied, 565 U.S. 859, 132 S.Ct. 196

(2011); see also State v. Wright, 19-456 (La.App. 3 Cir. 12/18/19), 286 So.3d 1176,

writ denied, 20-262 (La. 7/24/20), 299 So.3d 73. When viewing the evidence in

the light most favorable to the prosecution, a rational finder of fact could have

found Defendant had the specific intent to kill K.W.

Defendant argues that his intent to kill was justified under La.R.S. 14:18 and

14:19, because he was acting in self-defense and defense of his granddaughter in

believing K.W. was an intruder. Defendant argues that based on the facts of the

case, he satisfied his burden of proving self-defense and defense of others by a

preponderance of the evidence. As indicated in the State’s brief, this court

reaffirmed that “the burden of proving self-defense in a non-homicide case rests

with the defendant to prove the defense by a preponderance of the evidence.” Ross,

269 So.3d at 1074. This court additionally reaffirmed that “even when an

improper burden of proof may have been imposed on the defendant, courts have

been willing to uphold the conviction when the record supported a finding that the

defendant did not act in self-defense.” Id at 1074.

“In a non-homicide case, a claim of self-defense requires a dual inquiry: first,

an objective inquiry into whether the force used was reasonable under the

circumstances; and, second, a subjective inquiry into whether the force used was

apparently necessary.” Ross, 269 So.3d at 1073, quoting State v. Barron, 51,491, p.

13 (La.App. 2 Cir. 8/9/17), 243 So.3d 1178, 1185, writ denied, 17-1529 (La.

6/1/18), 243 So.3d 1063.

We find that the record in the instant case supports a finding that Defendant

did not act in self-defense or defense of others. The testimony and evidence from

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trial do not show that the force used was reasonable and apparently necessary to

prevent whatever offense Defendant perceived. Defendant claims he heard a

scuffle, noticed a handprint on the dresser and lose wires, and saw a naked stranger

in his granddaughter’s bedroom. Defendant claims he thought this naked stranger

was an intruder or a burglar who might cause harm.

However, Darbonne testified that during the interview with Defendant at the

station, Defendant failed to give any explanation of what was threatening about the

situation other than noticing movement. E.C. testified that K.W. was her boyfriend,

who had spent the night at the house on more than one occasion, that her mother

and stepfather knew K.W. was spending the night, that Defendant immediately

fired his gun once he entered E.C.’s bedroom, and that Defendant told E.C.

something like this would happen.

K.W. testified that he was spending the night with E.C., that he was

completely naked at the time of the shooting, that E.C.’s mother and stepfather

knew he was there, and that he did not say anything or make any threatening

motions toward Defendant.

The jury apparently found E.C. and K.W.’s testimony credible and

concluded that Defendant had the specific intent to kill K.W. We are unable to say

that the jury’s assessment was unreasonable or irrational, and we will not disturb

the jury’s credibility determinations. Accordingly, Defendant’s assignment of

error lacks merit.

DECREE

Defendant’s conviction and sentence are hereby affirmed.

AFFIRMED.

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