State of Louisiana v. Jeremy Lance Morrow

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-413

STATE OF LOUISIANA

VERSUS

JEREMY LANCE MORROW

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 349,165
HONORABLE LOWELL C. HAZEL, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
CHIEF JUDGE

**********

Court composed of Elizabeth A. Pickett, Jonathan W. Perry, and Ledricka J.
Thierry, Judges.

AFFIRMED.

Franz Borghardt
Borghardt Law Firm
301 St. Ferdinand Street
Baton Rouge, La 70802
(225) 831-1465
COUNSEL FOR DEFENDANT- APPELLANT:
Jeremy Lance Morrow

Jacob Longman
Kathryn Jakuback Burke
F. Richard Sprinkle
Longman Jakuback, APLC
830 Main Street
Baton Rouge, LA 70802
(225) 383-3644
COUNSEL FOR DEFENDANT- APPELLANT:
Jeremy Lance Morrow

Jeff Landry
Attorney General
J. Taylor Gray
M. Joseph LeBeau
Assistant Attorneys General
PO Box 94005
Baton Rouge, LA 70804
(225) 326-6200
COUNSEL FOR APPELLEE:
State of Louisiana

PICKETT, Judge.

PROCEEDINGS BELOW

On December 15, 2020, the defendant, Jeremy Lance Morrow, was charged

by bill of indictment with one count of malfeasance in offense, in violation of

La.R.S. 14:134. Specifically, the defendant was charged with “committing a

battery against the person of another while acting in his official capacity as a

Rapides Parish Sheriff’s Deputy[.]” The defendant orally waived his right to a jury

trial in open court on May 17, 2021.

A bench trial took place on October 26, and October 29, 2021. The trial

court took the matter under review and on November 29, 2021, issued an eleven-

page ruling captioned “Written Reasons.” Therein, the trial court found the

defendant guilty as charged of malfeasance in office. On February 24, 2022, the

trial court sentenced the defendant to two years at hard labor with the sentence

fully suspended and placed him on two-years of unsupervised probation.

Additionally, the trial court ordered the defendant to pay a fine of $500 as well as

court costs with a stipulation that he serve forty-five days in jail in the case of

default.

The defendant’s motion for appeal was granted on March 3, 2022. On

March 17, 2022, the defendant filed a motion to reconsider sentence, asking the

trial court to give him a deferred sentence under La.Code Crim.P. art. 893. The

defendant’s appeal was lodged with this court under docket number 22-324 on

May 17, 2022. On May 19, 2022, this court remanded the appeal to trial court for

disposition of the defendant’s motion to reconsider sentence. On June 1, 2022, the

trial court denied the defendant’s motion to reconsider without prejudice, leaving

open the possibility of refiling should the defendant successfully complete his

probation. The defendant’s appeal was relodged with this court under docket

number 22-413 on June 27, 2022.

The defendant now appeals his conviction, contending the state failed to

prove the intent element of malfeasance in office

FACTS

On March 12, 2019, the defendant was working as a Rapides Parish

Sheriff’s Deputy employed as a correctional officer at the Rapides Parish

Detention Center I. While other officers searched a pair of cells for a suspected

shank, the defendant and another officer were in the hallway watching over the

inhabitants of the two cells. Amongst them was Damien Francisco. While in the

hallway, Mr. Francisco, who was handcuffed at the time, stepped away from the

wall multiple times while speaking with the defendant and the other officer. The

defendant shoved Mr. Francisco into the wall and, when Mr. Francisco stepped

back from the wall again, the defendant executed a “take-down,” slamming Mr.

Francisco into the floor.

Trial began with the state calling Lieutenant Benson Thompson of the

Rapides Parish Detention Center I. Lieutenant Thompson testified that on March

12, 2019, the warden alerted the lieutenants to the possibility of a shank in dorm

512, which initiated a search of two of the cells. According to Lieutenant

Thompson, they removed the inmates from the two cells, secured them in the

hallway, and searched the cells for the possible shank.

After reviewing his written narrative, Lieutenant Thompson testified he was

the one who handcuffed Mr. Francisco and passed him to Deputy Fuller to bring

him into the hall where the other residents of cells six and seven were being held.

Lieutenant Thompson testified that during his interaction with Mr. Francisco, the

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inmate did not threaten him, reach for any kind of weapon, or attack him

physically. Lieutenant Thompson acknowledged he did not see the incident

between the defendant and Mr. Francisco.

On cross-examination, Lieutenant Thompson testified a shank is “a knife or

something to make puncture wounds.” He noted a shank search is not a common

occurrence and guards tend to be more on guard during such a search. Lieutenant

Thompson testified the other inmates were immediately compliant with commands

when informed a shank search was occurring, noting only Mr. Francisco was

uncooperative. He testified Mr. Francisco’s initial reaction was to state “fuck you,

suck my dick.” Lieutenant Thompson testified they then had to physically force

Mr. Francisco against the wall so that he could be handcuffed. According to

Lieutenant Thompson, Mr. Francisco then began cursing the deputy that was

supposed to be escorting him into the hallway, so Lieutenant Thompson physically

removed Mr. Francisco from the cell area. Lieutenant Thompson testified that he

had never seen another deputy take an already handcuffed prisoner and slam or

throw them face down onto the floor. He also clarified that Mr. Francisco’s

“noncompliance” was simply refusing to do what he was told; at no point did he

attempt to attack anyone.

The state then called Lieutenant Christina Taylor of the Rapides Parish

Sheriff’s Office’s Internal Affairs Division. Lieutenant Taylor testified she was

assigned to investigate the instant offense on March 12, 2019. The state then

introduced State’s Exhibit 4, a DVD containing video from multiple cameras at the

detention center around the time of the altercation between the defendant and Mr.

Francisco. According to Lieutenant Taylor, she met with Mr. Francisco a week

after the incident, noting no one had taken photographs of his injuries prior to that

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point. Lieutenant Taylor testified she took photographs of Mr. Francisco’s

wounds, noting his lip appeared to be infected where a tooth had cut it, both lips

were cut, and he had a chipped tooth. Lieutenant Taylor also stated that at the time

of the incident, it was departmental policy within the Rapides Parish Sheriff’s

Office that officers were required to wear body cameras when working in DC I and

that they were required to have said cameras on whenever they interacted with

inmates. None of the deputies had their body cameras recording during this

incident. Lieutenant Taylor stated she turned the matter over to the Criminal

Investigations Division (CID), which ended her involvement in the case. She also

noted that the Rapides Parish Sheriff’s Office’s policies and procedures manual

states the following regarding use of force by deputies: “Deputies shall not use

more force in any situation than reasonably necessary under the circumstances.”

On cross-examination, Lieutenant Taylor, who viewed the video of the

incident, testified she did not see the defendant try to break Mr. Francisco’s fall,

saying she saw Mr. Francisco “came off the wall a little bit, and then quick[l]y he

was slammed to the – to the floor by Deputy Morrow.” She confirmed that she did

not observe Mr. Francisco make any aggressive or threatening movements toward

the defendant in the video.

The state’s next witness was Sergeant Anthony Peterson, a twenty-one-year

veteran of the Rapides Parish Sheriff’s Office. Sergeant Peterson testified that on

March 12, 2019, he was a deputy working at DC I and was assigned to search the

second to last cell during the shank-search. Sergeant Peterson stated they removed

Mr. Francisco’s cellmate, Cashman Cage, without incident. Mr. Francisco,

however, did not want to be handcuffed, so he retreated to the back of the cell to

avoid being cuffed. Sergeant Peterson did not recall if Mr. Francisco was cussing,

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just that it took a while to get him handcuffed. He testified Mr. Francisco did not

physically threaten or attempt to fight the officers and that he eventually turned

around and let the officers handcuff him. He confirmed no contraband was found

in Mr. Francisco’s cell.

Sergeant Peterson testified that by the time he got into the hallway, Mr.

Francisco was calm, on the ground, still handcuffed, and bloodied. On cross-

examination, Sergeant Peterson noted Mr. Francisco was in a lock-down block

where they typically kept younger inmates. Sergeant Peterson did not recall if Mr.

Francisco exited the cell willingly or if Sergeant Thompson pushed him out of the

cell. He noted that while Mr. Francisco was verbally noncompliant, he was never

physically noncompliant, never jerked away from the officers or tried to attack

them.

The state’s next witness was Deputy Jeffrey Kurtz of the Rapides Parish

Sheriff’s Office. Deputy Kurtz testified he believed other officers had already

cuffed the inmates and began moving them into the hallway when he arrived at the

cellblock that was being searched. He testified he was in the hallway with the

defendant during the search, although he stated he could not remember the name of

the inmate he brought into the hallway. He did recall there being four inmates in

the hallway with him and the defendant, and he recalled Damien Francisco being

the last inmate brought into the hall. Deputy Kurtz described Mr. Francisco as

“irate” and “unpredictable” but did not recall any specifics of what Mr. Francisco

said beyond acknowledging he was screaming and cussing.

According to Deputy Kurtz, if any threat had been made to his or the

defendant’s safety, he would have documented it in his report. There was,

however, no indication Mr. Francisco made a verbal threat or attempted to strike

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either deputy. Although Deputy Kurtz stated he has been physical with an inmate

before, he could not recall ever throwing an inmate to the ground when their hands

were cuffed behind their back.

On cross-examination, Deputy Kurtz testified the cell block that was being

searched was on the “maximum security side of DC I.” Deputy Kurtz testified he

was unaware at the time if any of the inmates had been searched prior to being

brought into the hallway. Deputy Kurtz testified that although his attention was

split between the defendant and Mr. Francisco and the other three inmates, he

heard Mr. Francisco tell the defendant repeatedly that he did not have to listen to

him. Deputy Kurtz also testified Mr. Francisco kept getting his left shoulder off

the wall and turning toward himself and the defendant. Deputy Kurtz stated they

were allowed to perform a takedown on someone who is handcuffed but also

acknowledged deputies are taught to use “reasonable force.”

The state then called Lieutenant Nicholas York of the Rapides Parish

Sheriff’s Office. Lieutenant York testified that he was not involved in the removal

of Damien Francisco and Cashman Cage from their cell during the shank search as

he was in the other cell. Lieutenant York stated he searched cell seven before

being informed something had happened in the hallway. He noted Mr. Francisco

was on the ground with blood around his mouth, still shackled with his hands

behind his back. Lieutenant York testified he immediately called for medical

personnel to attend to Mr. Francisco.

According to Lieutenant York, the nurse was unable to help Mr. Francisco in

the hallway, so Lieutenant York and the defendant assisted Mr. Francisco to the

medical office. Lieutenant York stated he was unaware of any other officers giving

medical treatment or assistance to Mr. Francisco at the scene.

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The state then called Deputy Justin Fuller of the Rapides Parish Sheriff’s

Office. Although Deputy Fuller testified that Mr. Francisco resisted being moved

into the dorm and jerked away from him, he testified he did not recall Mr.

Francisco threatening or attempting to attack any of the officers. He did not recall

any contraband being found as a result of the shank search.

The state then called Damien Francisco. He testified his hands were cuffed

behind his back and Lieutenant Thompson pulled him into the hall before he was

pushed to where the defendant was. Mr. Francisco stated the defendant told him to

get against the wall, he complied, then the defendant continued telling him to get

against the wall. He stated the defendant shoved his face into the wall before

slamming him into the ground. He testified he never gave the defendant

permission to slam him.

Mr. Francisco testified that he never threatened anyone during the search,

never attacked anyone, and that he had never been involved in an altercation with a

guard prior to the incident with the defendant. Mr. Francisco admitted to a 2010

second degree battery conviction, a 2013 simple robbery conviction, and

possession of contraband in a penal institution about six to eight months after the

incident with the defendant. He also stated he suffered an injury to his lip and that

his tooth was chipped. According to Mr. Francisco, the defendant kept yelling at

him to “get on the wall, get on the fucking wall” prior slamming him into the

ground, at which point the defendant began telling him to “stop resisting.”

Mr. Francisco insisted that none of the officers had to push him out of the

cell, that he left on his own after Sergeant Peterson told him they would not let

anyone do anything to him. He also claimed that when he pled guilty to possessing

a shank months after the incident with the defendant, he was lying because the item

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belonged to his cellmate, but he just wanted to get the charge out of the way. He

again asserted that he got against the wall when instructed to by the defendant, but

the defendant continued yelling at him then shoved his face into the wall when he

tried to point out that he was on the wall. Mr. Francisco then turned his head to

ask why the defendant shoved him into the wall when the defendant slammed him

into the ground. The state rested its case following Mr. Francisco’s testimony. The

defendant moved for an acquittal, which was denied by the trial court prior to the

case recessing.

The defendant began his case in chief by recalling Lieutenant Christina

Taylor. She confirmed that “each deputy is responsible for knowing that violation

of statutory law could result in either punishment through the department or

criminal responsibility.” Although she did not speak to the defendant directly,

Lieutenant Taylor testified she obtained the defendant’s written report related to

the incident in question with Mr. Francisco. Lieutenant Taylor noted the

defendant’s statement claimed he was familiar with Mr. Francisco from DC III,

however, Mr. Francisco was never housed in DC III. Lieutenant Taylor noted that

while officers are trained that there is always a potential for someone to be

dangerous, they are also taught to only use force based upon an imminent threat.

The defendant then took the stand on his own behalf. The defendant

testified that he has been a gun dealer for twenty-four years but noted that, in

addition to being released from the Rapides Parish Sheriff’s Office, the indictment

for malfeasance resulted in his license to sell firearms being suspended. While

stating he never attended the Rapides Correctional Academy training, he

acknowledged receiving a copy of the written policy and procedures. The

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defendant claimed that he knew someone named “Francisco” when he was

stationed at DC III which he thought was the same person, but he was mistaken.

The defendant testified that cell block 512 housed “younger offenders that

have either been arrested or convicted for violent crimes or serious crimes.”

However, he acknowledged he had no idea why Mr. Francisco was in jail at the

time. He claimed he said very little to Mr. Francisco beyond trying “to get him to

just comply and even de-escalate the situation.” The defendant contended Mr.

Francisco was noncompliant the entire time and was ignoring commands from

himself and Deputy Kurtz. He disagreed with Lieutenant Taylor’s characterization

that Mr. Francisco’s feet came off the ground when the defendant shoved him into

the wall. The video shows that when the defendant shoved Mr. Francisco into the

wall, it forced Mr. Francisco onto his toes with his heels coming off the ground.

According to the defendant, he took Mr. Francisco’s subsequent attempt to

turn his head as an “act of aggression” and took him down. He contends, however,

he attempted to break Mr. Francisco’s fall. The defendant denied having any intent

to injure Mr. Francisco. The defendant testified he has been attacked while

working in the jails four times, noting he was taken to Cabrini Hospital via

ambulance after one of the attacks.

The defendant testified he was initially stationed at DC III upon being hired

by the sheriff’s office, was transferred to assignment as a road deputy, then was

reassigned to DC III. He noted he spent about a year and a half on the road before

being reassigned to corrections in October of 2016. The defendant claimed he was

removed from the road because of “politics,” although he subsequently

acknowledged there were “discipline issues” involved. He also acknowledged that

he was transferred from DC III to DC I in 2018 following a disciplinary issue in

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which he was found to have called an inmate “the ‘N’ word,” although the

defendant contended it never happened. He also claimed the other two deputies

who gave statements they heard him use the derogatory term were lying.

The defendant testified he had never executed a takedown on a handcuffed

inmate, nor had he seen any other officers use such a takedown on a handcuffed

inmate. Again blaming his superiors at DC III, he acknowledged that he was

disciplined in relation to the 2014 incident wherein he claimed he was attacked for

the first time. The defendant claimed that, contrary to the testimony of every other

officer at trial, Mr. Francisco threatened the defendant prior to the defendant’s

slamming Mr. Francisco face-first into the ground. When asked if Mr. Francisco

ever attempted to strike him, he claimed he “prevented that.” The defendant again

claimed that Mr. Francisco’s act of turning his head towards him was a threat to his

safety. The defendant concluded cross-examination by again claiming that every

time he has gotten in trouble with the department it was political. With that, the

defense concluded its case.

On November 29, 2021, the trial court issued a written opinion in which it

found the defendant guilty of malfeasance in office. Therein, the trial court found

defendant “violated a lawfully required duty by performing it in an unlawful

manner.” The court found the defendant was “in control of the situation the entire

time,” and therefore used unreasonable force in slamming Mr. Francisco face-first

into the floor when no other officer perceived him to be a threat.

ASSIGNMENTS OF ERROR

The District Court committed manifest error when it:

1. Failed to analyze the intent element of malfeasance in office, and

2. Found Jeremy Morrow guilty beyond a reasonable [doubt] of
intentionally performing his lawful duty in an unlawful manner
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where [a] reasonable, possible hypotheses of innocence remain[ed]
present, and
3. Incorrectly extended the definition of battery to Jeremy Morrow’s
actions giving rise to this matter.

ERRORS PATENT

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

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

we find there are no errors patent.

DISCUSSION

The defendant asserts three errors made by the trial court, namely, that the

state failed to prove the necessary intent to convict the defendant of malfeasance in

office. The defendant explicitly contends the trial court erred in (1) failing to

analyze the intent element of the malfeasance statute, (2) finding him guilty of

intentionally performing his lawful duty in an unlawful manner without

considering a reasonable hypothesis of innocence, and (3) incorrectly extending the

definition of battery to include the defendant’s actions.

The analysis for insufficient-evidence claims is well settled:

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.
11

On March 12, 2019, La.R.S. 14:134 pertinently stated:

A. Malfeasance in office is committed when any public officer
or public employee shall:

(1) Intentionally refuse or fail to perform any duty lawfully
required of him, as such officer or employee; or

(2) Intentionally perform any such duty in an unlawful manner;
or

(3) Knowingly permit any other public officer or public
employee, under his authority, to intentionally refuse or fail to
perform any duty lawfully required of him, or to perform any such
duty in an unlawful manner.

The defendant contends the trial court could not have found him guilty

because there is no evidence that he intentionally performed his lawful duty in an

unlawful manner. The defendant contends the state must show specific intent to

perform his duty illegally.

Louisiana R.S. 14:134 does not criminalize all ethical violations
and/or general derelictions of duty. The object of the malfeasance
statute is to punish a breach of duty committed with the required
culpable state of mind. To this end, the statute expressly limits its
application to instances in which a public officer or employee
intentionally refuses or fails to perform or intentionally performs in
an unlawful manner, any affirmative duty imposed by law upon him
in his role as a public servant. The inclusion in the statute of a
criminally culpable state of mind makes it clear that it applies only
where the statutorily required mens rea is proven beyond a reasonable
doubt. Thus, mere inadvertence or negligence, or even criminal
negligence, will not support a violation of the malfeasance statute
because the statute specifies the act or failure to act must be
intentional.

State v. Petitto, 10-581, p. 13 (La. 3/15/11), 59 So.3d 1245, 1254.

In State v. Ballard, 17-835 (La.App. 4 Cir. 3/21/18), 239 So.3d 400, the

fourth circuit reviewed a malfeasance in office conviction resulting from a reserve

officer kicking a suspect in the mouth during an arrest. The suspect was already

face-down on the ground with two officers handcuffing him when the defendant

ran up and kicked the suspect in the mouth. Although the defendant attempts to
12

dismiss Ballard as inapplicable due to the factual difference between kicking a

suspect on the ground with slamming an inmate face-first into the floor, the

Ballard court correctly sets forth the standard appellate courts should use in

reviewing a malfeasance in office case which arises out of a law enforcement

officer using unreasonable force. The Ballard court stated:

Reasonable force is allowed to make an arrest and detention,
and to overcome any resistance or threatened resistance of the person
being arrested or detained. Kyle v. City of New Orleans, 353 So.2d
969, 972 (La.1977); Estate of Francis v. City of Rayne, 07-359, p.6
(La.App. 3 Cir. 10/3/07), 966 So.2d 1105, 1110. The totality of the
circumstances must be considered when determining if the force used
is reasonable. Therefore, the trial court must evaluate the officer’s
actions comparing them to those of an ordinary, prudent and
reasonable man placed in the same position as the officer and with the
same knowledge as the officer. Kyle, 353 So.2d at 973.

239 So.3d at 405.

Mr. Francisco was an inmate and was therefore, by definition, being

detained. The trial court in Ballard, faced with a defendant who claimed his kick

was completely inadvertent and the result of his knee giving out and another

officer who testified the kick was intentional and unnecessary, found the defendant

intentionally used unreasonable force. The fourth circuit affirmed that

determination. The trial court in the instant case made the same determination,

namely, that the defendant used an unreasonable amount of force on Mr.

Francisco:

Defendant was a sheriff’s officer—a law enforcement officer—
charged with protecting and upholding the laws and constitutions of
the State of Louisiana and the United States of America. Citizens,
including inmates, look to these officers for protection and to maintain
order and stability. Based upon the evidence presented, Defendant
crossed the line between reasonable and unreasonable force. As noted
throughout the witnesses’ testimonies, force is to be used to gain
compliance. The court would agree, based on the initial behavior of
Francisco, some force should have been employed. And, clearly it
was, as Francisco was ultimately cuffed and removed to the hallway.
Thus, by the time he was on the hallway, Francisco was in a position
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where he was no longer in control—the deputies were. Simply put, the
force used by Defendant went above and beyond what was necessary
to maintain control. Defendant’s explanation is merely another
instance in a long list of him failing to take responsibility for his
actions.

The defendant contends his actions were reasonable and necessary;

therefore, the state failed to prove his intent to perform his duty unlawfully. In

Ballard, the defendant likewise contended that his claim he inadvertently kicked

the suspect meant the state could not prove intent. The court disagreed:

[c]onflicting statements as to factual matters is a question of weight of
the evidence, not sufficiency. State v. Jones, 537 So.2d 1244 (La.App.
4 Cir. 1989). Such a determination rests solely with the trier of fact
who may accept or reject, in whole or in part, the testimony of any
witness. Id. A trier of fact’s determination as to the credibility of a
witness is a question of fact entitled to great weight, and its
determination will not be disturbed unless it is clearly contrary to the
evidence. State v. Vessell, 450 So.2d 938 (La. 1984).

Ballard, 239 So.3d at 405-06 (quoting State v. Wells, 10-1338, p. 5 (La.App. 4 Cir.

3/30/11), 64 So.3d 303, 306).

Aside from the defendant and Deputy Kurtz, every officer who testified

stated they believed the force used by the defendant against Mr. Francisco was

unreasonable. While the defendant is correct that Deputy Kurtz was the only

officer in the hallway with him and Mr. Francisco and Deputy Kurtz testified he

did not believe the force was unreasonable, Deputy Kurtz was the least

experienced officer involved. At trial in October of 2021, Deputy Kurtz testified

he had been at DC I for almost three years; the incident took place on March 12,

2019, meaning Deputy Kurtz would have been at DC I for less than six months at

the time. Additionally, Deputy Kurtz testified he did not recall the specifics of

what Mr. Francisco said but acknowledged his report did not contain any threats

against himself or the defendant. Aside from the defendant’s testimony, there was

no evidence to support his claim Mr. Francisco had threatened him or was acting
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aggressively towards him. Given the evidence presented, we cannot say the trial

court erred in finding the other officers were correct that the defendant used an

unreasonable amount of force against Mr. Francisco.

The defendant has argued that because his intent was based upon

circumstantial evidence, the state failed to disprove every hypothesis of innocence

and therefore the trial court could not have found him guilty beyond a reasonable

doubt. This argument appears to be based upon La.R.S. 15:438, which states “The

rule as to circumstantial evidence is: assuming every fact to be proved that the

evidence tends to prove, in order to convict, it must exclude every reasonable

hypothesis of innocence.” The “must exclude every reasonable hypothesis of

innocence” standard only applies where a conviction is based solely on

circumstantial evidence. Here, the trial court heard testimony from three witnesses

who were present at the time of the incident in addition to being able to observe the

incident itself on video. Given the presence of such direct evidence, the court need

not exclude every reasonable hypothesis of innocence and the defendant’s

contentions to the contrary are simply misplaced.

Finally, the defendant contends the trial court erred in defining his use of

force against Mr. Francisco as a battery. The defendant contends this means law

enforcement could never use force against an inmate or a suspect regardless of the

actions of the inmate or suspect. This is nothing more than an attempt at fear

mongering. Most importantly, while the trial court may have used the word

“battery,” the defendant was not on trial for committing a battery, he was on trial

for committing malfeasance in office as a result of his inappropriate use of

unreasonable force while working as a law enforcement officer. As noted in

Ballard, “the trial court must evaluate the officer’s actions comparing them to

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those of an ordinary, prudent and reasonable man placed in the same position as

the officer and with the same knowledge as the officer.” 239 So.3d at 405. The

trial court compared the defendant’s actions against those of other officers who

testified the use of force was unreasonable. Those other officers should be

considered “ordinary, prudent and reasonable [man].” Id.

CONCLUSION

The defendant’s assignments of error lack merit. His conviction and

sentence are affirmed.

AFFIRMED.

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