State of Louisiana v. Douglas Paul James

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-238

STATE OF LOUISIANA

VERSUS

DOUGLAS PAUL JAMES

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 97243
HONORABLE TONY A. BENNETT, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Charles G.
Fitzgerald, Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

Annette Roach
Louisiana Appellate Project
P. O. Box 6547
Lake Charles, LA 70606-6547
(337) 436-2900
COUNSEL FOR DEFENDANT-APPELLANT:
Douglas Paul James

Terry Wayne Lambright
District Attorney, 30th Judicial District Court
William R. Thornton
Assistant District Attorney
P. O. Box 1188
Leesville, LA 71446
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

PICKETT, Judge.

FACTS

The defendant, Douglas Paul James, was charged by bill of information with

second degree battery, a violation of La.R.S. 14:34.1. He was convicted as

charged. The court imposed an eight-year hard labor sentence, suspended one

year, and placed the defendant on supervised probation for three years. The court

imposed a fine of $2,000.00 and court costs, both of which are to be paid during

probation. Additionally, the defendant was ordered to pay a monthly supervision

fee of $65.00 and a monthly sex offender technology fund fee of $11.50. The

defendant is before this court appealing both his conviction and sentence.

ERRORS PATIENT

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 is one error patent.

For the defendant’s conviction of second-degree battery, the court sentenced

him to serve eight years at hard labor with one year suspended. The defendant was

placed on supervised probation for three years and ordered to pay a monthly

supervision fee of $65.00 and $11.50 per month to the sex offender technology

fund. Additionally, the defendant was ordered to pay a $2,000.00 fine and court

costs. A monthly payment plan was established for the supervision fee and the

sex offender technology fund fee; however, a payment plan was not established for

the $2,000.00 fine and court costs. Accordingly, the defendant was not put on

notice of how the fine and court costs must be paid to comply with his probation

and avoid possible revocation. Thus, the defendant’s case must be remanded for

the establishment of a payment plan in compliance with La.Code Crim.P. art.

875.1.

ASSIGNMENTS OF ERROR

1. The evidence introduced at the trial of this case, when viewed under
the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979) standard, was insufficient to prove beyond a reasonable doubt
that Douglas Paul James committed second degree battery.

2. The evidence introduced at the trial of the case was sufficient to
establish by a preponderance of the evidence an affirmative defense in
that Douglas Paul James’ actions were justified in defense of himself
or others.

3. The maximum hard labor sentence imposed in this case on this first
felony offender is nothing more than cruel and unusual punishment
and, thus, a violation of the Eighth Amendment of the Constitution of
the United States and La. Constit. Art. 1, § 20 prohibitions against
excessive sentences.

DISCUSSION

Assignments of Error Numbers One and Two

The defendant argues these two assignments of error together. He contends

the evidence introduced at trial was insufficient to prove beyond a reasonable

doubt that he committed second degree battery. He does not contest the fact that he

hit Woodie Blanks, Jr., the victim, nor the extent of the injuries suffered by Mr.

Blanks. He contends, as he did at trial, that his actions were justified under the

facts of the case. Alternatively, he contends the state did not prove beyond a

reasonable doubt that he had the specific intent to inflict great bodily harm upon

the victim. He argues that the victim’s testimony alone cannot support the

conviction due to the inconsistencies between his trial testimony and his statements

to police, witnesses’ testimonies, and the medical evidence.

Evidence Presented at Trial

At trial, the victim, Mr. Blanks, a sixty-eight-year-old veteran, testified that

he delivered newspapers for the Lake Charles American Press. One of his

customers, Wallace James, a cancer patient, requested that Mr. Blanks place his

newspaper near the steps of his house rather than in the canister by the road. Thus,
2

Mr. Blanks either placed the newspaper on the porch, or, if Mr. James was on the

porch, he handed it to him.

On the day of the incident, December 17, 2021, Mr. Blanks began working

at approximately 1:00 a.m. Complying with COVID safeguards, the American

Press advised employees to wear plastic gloves and a mask, which Mr. Blanks did

that day, along with his jeans, a shirt, and tennis shoes. That morning, instead of

driving into Mr. James’ driveway, Mr. Blanks left his vehicle (running) on the

road. He walked up the driveway and handed Mr. James his paper. While he was

doing so, two vehicles pulled up near his truck, one on the left side, and one behind

his truck. Finding this odd, Mr. Blanks said he pointed it out to Mr. James, but he

received no response. Mr. Blanks then walked down the driveway to return to his

truck. As he did, he noticed two people had exited the vehicle parked on his left

side and two people had exited the vehicle behind his truck. The two people from

the rear vehicle came across the yard wanting to know what he was doing in their

grandfather’s driveway. Mr. Blanks said he “told him that his grandpa was sitting

right there on his porch, that he could speak with him.” As Mr. Blanks was

speaking to the two people coming “across behind the vehicle,” he was “sort of

blindsided,” knocked to the ground, and was beaten up. He said he was first hit in

the chest, then when he was knocked to the ground, two other people got on top of

him and began beating him while the other two kicked him. Shortly thereafter, he

received “a number of” punches, all of which hit him in the face except where he

was being kicked. He heard Mr. James yell for the beating to stop and for them to

leave Mr. Blanks alone, but the beating continued until Mr. James pulled them off

him. He further explained:

Even after, when I left out - - they left, uh, it was a little short guy, he,
uh, hit me in the stomach and I just looked at him and he was saying
that “I will - - I’ll kill him.” And it went through my mind, was where
3

is this coming from? And, uh, that’s when I felt like I better leave
while I could.
As Mr. Blanks tried to leave, he realized the keys to his truck were missing,

and Mr. James brought them to him. According to Mr. Blanks, he did not receive

an apology. Mr. Blanks testified that he felt his life was in danger and that he

“didn’t have pretty much no vision at all,” but he knew he had to leave. Mr.

Blanks denied wearing a hoodie, a hat, or any covering on his head.

On cross-examination, Mr. Blanks testified that no one asked him who he

was. He explained, “one of the two individuals that came from behind my vehicle,

wanted to know what I was doing in their grandfather’s - - grandpa’s driveway . . .

at 3:00 in the morning.” As Mr. Blanks was saying that his grandfather was on the

porch and that he could talk to him, he was attacked. When he tried to leave, he

could not because his vehicle keys were gone. When Mr. Blanks was asked about

the discrepancy between his trial testimony and his oral and written statements, he

explained, “I didn’t tell too much of anything to anybody. The statement that I

wrote is what I wrote. I was in no condition to give a statement or to write a

statement. I was given paperwork, uh, that when I was in condition enough and

asked to come down to the station and - - and bring the written statement.” Mr.

Blanks was asked why he did not tell law enforcement that four people were

beating him and two were kicking him on the ground as he testified to at trial. He

explained:

if I didn’t include that in the statement, I thought I did. And if I didn’t
include it, when I spoke with the deputy, I made my case to him that
that was the case. And when Detective Wingate came to my house, I
spoke - - spoke with him about it. And he said that he un - - he knew
that it was four people, but he just didn’t know who the other two
were.

Mr. Blanks testified that if the individual who asked him the question had

taken a few minutes and checked with his grandfather, the situation would have

4

been cleared up. He said he was not running and had nothing in his hands to

indicate he was attempting to steal anything. Additionally, he noted he did not

have his vehicle keys. He said the perpetrators could have called the police or

taken his license plate number.

The first officer Mr. Blanks encountered was Officer Robert Green of the

Rosepine Police Department. Officer Green heard the victim beating on the rear

door of the station and when he saw the victim, he noticed facial bruising, swollen

eyes, and some blood. The victim was agitated and appeared to be in pain. Officer

Green called for emergency response, then left to go to an apartment complex

where he initially believed the incident occurred. Unable to locate the suspects, he

returned to the police department where he noticed the victim driving out of the

parking lot heading north. Officer Green observed the victim having difficulty

“maintaining the lane,” so he pulled him over at a gas station and had medical

emergency assistance respond there instead of the station. When Officer Green

learned that the incident occurred outside his jurisdiction, he called for a parish

deputy.

Jacob Durrett of the Vernon Parish Sheriff’s Office testified that on

December 17, 2021, he took a verbal statement from Mr. Blanks and observed no

defensive wounds on the victim’s hands indicating he tried to fight back.

Detective Wade Wingate, a detective with the Vernon Parish Sheriff’s

Office, learned from Deputy Durrett that the suspects were possibly grandsons of

Mr. James, and that a Jeep may be involved. He proceeded to the location where

most of the James family lived and observed a Jeep at that location. When he

knocked on the door, the defendant answered. Detective Wingate testified that he

read the defendant his rights, and after the defendant acknowledged that he

understood his rights, he voluntarily spoke to Detective Wingate.
5

The defendant told him that he and his brother, Dillon James, were riding

around when they saw a pickup truck sitting on Catfish Hut Road near his

grandparents’ house. No one was in the truck, and when he started walking up the

driveway to check on his grandparents, he met a man (the victim) wearing a hood

and mask, coming down the driveway. The man, who would not answer him when

he asked him why he was at their grandfather’s house, started moving towards his

truck. The defendant and his brother Dillon hit the victim at about the same time,

and Mr. James began yelling at them to stop. Mr. James then helped the victim up

and asked him if he was alright.

Detective Wingate subsequently spoke to the defendant’s brother, Dillon,

Mr. James, and the victim. The focus of his investigation did not change from the

defendant and Dillon being the perpetrators, and he sought arrest warrants for

them.

On February 2, 2022, Detective Wingate was contacted by Detective

Twyman who had spoken to Travis Moses. Thereafter, Detective Wingate met

with Mr. Moses and learned that other people were present when the incident

occurred, including Charles “Max” Courville. Detective Wingate then spoke to

Mr. Courville, who told him that Kara Edwards and Chelsea Coleman were also

present. He spoke with them as well, and after speaking to each of the witnesses,

the course of his investigation did not change. According to Detective Wingate,

the defendant, Dillon, and Max Courville all told him that the victim would not tell

them who he was when they asked. Mr. Moses said that the victim said, “If you’ve

got a problem with me, go ask the man up there.” The victim told Detective

Wingate that he told them if they wanted to know what he was doing, they should

ask the man at the house.

6

Travis Moses, a friend of the defendant’s, testified that on the night in

question, he was hanging out with Dillon, and he went to the defendant’s house

around 1:30 a.m. When he arrived, present were the defendant, Dillon, Max

Courville, and two females. The group decided to go mud riding, and around 2:00

a.m., Travis left in Max’s Jeep with Max and Dillon to go mud riding. The

defendant followed in another Jeep with Kara and Chelsea.

On the way to the creek, they passed the defendant’s grandfather’s home and

observed a dark Ford truck parked in the middle of the road, which they found

suspicious. They looked in the truck bed for stolen items, and Dillon and the

defendant walked up the driveway to investigate. They came upon the victim,

who was walking back from the home. Several times, they asked him what he was

doing there, and he responded, “If you’ve got a problem with what I’m doing, you

can just talk to these people here.” According to Travis, no one ran up to the porch

or called the police. The defendant and Dillon “started attacking [the victim] or

hitting him.” At some point after the victim hit the ground, Travis said he pulled

Dillon out of the fight. Travis confirmed that Mr. James told his grandsons to stop,

that the victim was delivering the newspaper. Travis testified that the situation

diffused, and he believed the defendant helped the victim off the ground. When

they asked the victim why he did not tell them he was delivering the newspaper,

the victim said he did. An argument over this ensued for a few minutes, and then

the victim left the scene. According to Travis, before the victim left, the defendant

apologized to him, and he also told his grandfather, “I’m sorry, Pawpaw, we

thought he was a thief.” Travis testified that he has known the defendant for at

least twelve years, and he is not a troublemaker or instigator. He did not recall the

defendant ever being in a fight.

7

Charles “Max” Courville, another friend of the defendant, testified that he,

Travis, and Dillon were riding in Max’s Jeep when they left the defendant’s house.

The defendant followed in his Jeep with two women as passengers. Max’s

testimony was like that of Travis. Max confirmed that the situation seemed

abnormal, and he was uneasy pulling up to a vehicle blocking the road. The

uneasiness was not alleviated when he saw a tall man with a mask, hood, and

gloves walking down the driveway. In the years he has known the defendant, he

did not recall ever seeing him in a fight.

The defendant, thirty-three at the time of trial, testified that he was

previously convicted of DUI when he was twenty-one, but he had no other

convictions. He lived about a half mile down the road from his grandfather, and

over the past couple of years there had been several incidents at his grandfather’s

house. The year before, on nearby property, they had to “tase and mace” someone

in the yard who was trying to get into the house.1

The defendant testified that on the night in question, he, Chelsea, and Kara

were riding in his Jeep, and the women did not get out. In Max’s Jeep were Max,

Travis, and Dillon. They saw a vehicle in the middle of the road blocking his

grandfather’s driveway, so he and Dillon got out and confronted the victim about

midway up the driveway. It was dark outside, and the victim had on gloves, a

“longer shirt,” and “some kind of facial mask.” When asked if Mr. Blanks had a

hoodie on, the defendant replied, “[h]e had some kind of longer jacket, pullover

type hoodie, whatever you would want to call it.” According to the defendant, Mr.

Blanks continued walking toward them and they confronted him numerous times.

He asked Mr. Blanks what he was doing at his grandfather’s house, but he got no

response. Dillon asked the same question and received no response. According to

1
It is not clear what house the perpetrator was trying to enter.
8

the defendant, this continued at least four to five times, and Mr. Blanks continued

walking toward them, not saying anything until the incident was over. The

defendant testified that Mr. Blanks did not appear to be a 67-year-old frail, elderly

man. He testified that as Mr. Blanks came closer, he did not know what else to do;

he panicked, swung, and hit him. He affirmed that he was in a “fight or flight”

mode, and he said he did not know what Mr. Blanks was going to do when he

came closer. After he and Dillon hit Mr. Blanks, the defendant heard his

grandfather yell from the porch. The defendant said he ran toward his grandfather,

and then the two walked back to where Mr. Blanks was. The defendant said, “we

were helping him up, and that’s when Pawpaw was telling us that that was his

mailman. That’s when we figured that out.” According to the defendant, it was

not a continuous beating, and Max and Travis were “back towards the road” when

this took place. The defendant was asked whether this would have happened if Mr.

Blanks had tried to walk around him or put his hands up and say, “I’m the

newspaper guy,” and the defendant said it would not have. He testified that he did

not intend the consequences. According to the defendant, when he and his

grandfather approached Mr. Blanks, they helped him off the ground, told him

“sorry” a few times, and escorted him to his vehicle. There was some discussion

after that point between the defendant and his grandfather about the victim being

the newspaper man.

On cross-examination, the defendant admitted he confronted the victim, and

his brother Dillon was with him. According to the defendant, he and his brother hit

the victim at the same time; they were “almost shoulder touching each other, and

he was right in [their faces].” They intended to knock on the door to check on his

grandfather, but the victim met them before they reached the porch.

9

The defendant was shown his brother’s statement, which indicated that he

was in the vehicle with the defendant. The defendant disputed this and said his

brother was in the vehicle with Max. He testified he had no knowledge that night

that the victim’s keys were taken. When asked if he agreed he had other options

than to hit the victim, the defendant responded, “At that time, I wasn’t sure of what

he was gonna [sic] do to me, when he got that close.” The defendant said he was

scared, and he did not keep beating the victim. He said he hit him one time to get

him out of his face. He said the fight was over by the time his grandfather came

partially down the driveway to stop it.

When asked if he ever had the thought that Mr. Blanks was simply trying to

get to his vehicle that was behind the defendant, the following exchange occurred:

Q. Did it ever - - did it ever dawn on you that Mr. Blanks was trying
to get to his vehicle that was behind you?

A. He shouldn’t have got that close into my face. He could have
walked around.

Q. You confronted him, correct?

A. Just asking him why he was there, and he would not tell us.

Q. And because he wouldn’t tell you, did you ever find any of your
grandfather’s property on him? You didn’t - - you didn’t find
anything on him that belonged to your grandfather, did you?

A. No, sir.

Q. And your grandfather was nowhere around at that moment, was
he?

A. No, sir.

When confronted with Travis’s (who was closer to the road) testimony that

he heard the victim say several times, “If you want to know why I’m here, tell

those - - ask those people. Your grandfather’s on the porch,” the defendant

responded that he did not hear this.

10

Max was recalled as a witness for the defense. He testified that neither he

nor Travis hit or kicked Mr. Blanks. He said the defendant and Dillon were the

only two in the altercation. He said he was not asked by law enforcement whether

he was involved in the altercation. On cross-examination, he confirmed that he

removed the keys from the victim’s vehicle. Travis was also recalled as a witness.

He denied ever kicking or hitting Mr. Blanks and testified that the police did not

ask him whether he kicked Mr. Blanks. He confirmed that the defendant and his

brother were the only ones hitting Mr. Blanks.

Dillon James, the defendant’s brother, testified that he and his brother were

approached by the victim, who was wearing a big coat, mask, and gloves, about

halfway up the driveway as they were going to check on their grandfather. He and

the victim stopped a few feet from each other, and he and the defendant began

asking the victim what he was doing at their grandfather’s house. Although asked

two or three times, the victim did not respond. When asked if the victim responded

at some point, Dillon testified, “I remember the last - - last time asking what he

was doing at my grandpa’s house, I remember a - - a remark was he said, “If this is

your grandpa’s, you can ask him.” The victim continued walking toward him.

Dillon testified he was scared, and he was concerned about his grandfather. The

defendant hit the victim, and Dillon went to the ground with the victim. The

victim briefly fought back, and the fight was over in a few seconds. When they got

up, his grandfather was there, and they walked the victim to his truck. He clarified

that he and his brother rode in separate vehicles that night, and he said he did not

look in the victim’s truck when they stopped at his grandfather’s house.

Dillon affirmed that Travis pulled him off the victim but said that Mr. James

did not pull the defendant off the victim. Mr. James walked with the defendant

down to the fight. Dillon confirmed that the victim did not swing or lunge at them.
11

They confronted him. However, Dillon confirmed that his impression was that the

victim was “gonna go through [him], if [he] didn’t get out of the way.” He

testified that nothing would have happened if the victim had said he was delivering

newspapers.

As for the injuries sustained by Mr. Blanks, Dr. Chanping Liang, an

ophthalmology surgeon and professor of ophthalmology at LSU Shreveport, was

accepted as an expert in the field of ophthalmology. She testified that when she

saw Mr. Blanks, she was told he had been assaulted the night before. She observed

extensive bruises and bleeding in both of his eyes. The left eye had a severe dense

subconjunctival hemorrhage indicative of a ruptured eyeball. The right eye also

had bruises and a hemorrhage, but to a lesser degree. Scans showed his right eye

had an orbital floor fracture, i.e., a break in the bony area below the eyeball. The

injuries to his left eye required surgery, during which the blood clots were

removed, and intraocular contents came out. She attempted to suture the laceration

of the eyeball, but she could not successfully suture the entire laceration due to its

severity and length/location. The right eyeball was left intact for the bleeding to

resolve by itself. Mr. Blanks lost sight in his left eye. Although not functional,

Mr. Blanks opted to keep his eyeball intact. There is a rare possibility that the

right eye can become inflamed and develop sympathetic ophthalmia, in which case

Mr. Blanks would lose sight in that eye as well. According to Dr. Liang, this

disease can occur many years later.

Definition of Second Degree Battery and Specific Intent Requirement

Louisiana Revised Statutes 14:34.1 defines second degree battery as “a

battery when the offender intentionally inflicts serious bodily injury[.]” Serious

bodily injury is defined in La.R.S. 14:2(C) as, “bodily injury which involves

unconsciousness; extreme physical pain; protracted and obvious disfigurement;
12

protracted loss or impairment of the function of a bodily member, organ, or mental

faculty; or a substantial risk of death.” It is a specific intent crime. State v.

Robertson, 98-883 (La.App. 3 Cir. 12/9/98), 723 So.2d 500, writ denied, 99-658

(La. 6/25/99), 745 So.2d 1187.

Specific intent is defined in La.R.S. 14:10 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.” Specific intent can be inferred from the circumstances
of the incident and the defendant’s actions. See State v. Wommack,
00–137 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, writ denied, 00–2051
(La.9/21/01), 797 So.2d 62.

State v. Hicks, 10-19, p. 5 (La.App. 3 Cir. 6/2/10), 38 So.3d 1262, 1265, writ

denied, 10-1548 (La. 2/11/11), 56 So.3d 998. “[S]pecific intent to cause serious

bodily injury ‘may be inferred from the extent and severity of the victim’s

injuries.’” State v. Williams, 20-605, p. 33 (La.App. 3 Cir. 11/3/21), 329 So.3d

938, 955, writ denied, 21-1798 (La. 4/12/22), 336 So.3d 85 (quoting State v.

Hager, 13-546, p. 6 (La.App. 5 Cir. 12/27/13), 131 So.3d 1090, 1093).

On appeal, the defendant contends the state did not prove beyond a

reasonable doubt that he had the specific intent to inflict great bodily harm. The

defendant testified that he was unaware his punch could cause so much damage,

damage he did not intend to cause. He notes that he hit the victim (who did not

appear to be an elderly man) one time, he did not continue the beating, and the

encounter lasted only seconds. He argues the state presented no history of

aggressive behavior, and there was no attempt for the defendant to engage with Mr.

Blanks until Mr. Blanks came toward him and “got in his face.” There was no

medical testimony that the injuries resulted from multiple blows. Further, the

defendant argues that the victim’s testimony is insufficient to support factual

conclusions that he was repeatedly beaten and kicked or that he told the defendant

why he was at that location.
13

The state contends that the serious debilitating injuries suffered by the

victim, who lost the vision in one eye and could lose his vision in the other due to

one or two punches in the face, was sufficient to meet the specific intent

requirement.

When the issue of sufficiency of evidence is raised on appeal,
the reviewing court determines 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 (1979); State v. Mussall, 523 So.2d 1305 (La.1988).
Discretion in determinations of credibility is vested in the jury, which
may accept or reject testimony within the bounds of rationality, and
we will only impinge upon its discretion “to the extent necessary to
guarantee the fundamental protection of due process of law.” Mussall,
523 So.2d at 1310. Thus, other than ensuring the sufficiency
evaluation standard of Jackson, “the appellate court should not
second-guess the credibility determination of the trier of fact,” but
rather, it should defer to the rational credibility and evidentiary
determinations of the jury. State v. Ryan, 07-504, p. 2 (La.App. 3 Cir.
11/7/07), 969 So.2d 1268, 1270 (quoting State v. Lambert, 97-64, p. 5
(La.App. 3 Cir. 9/30/98), 720 So.2d 724, 727).

However, the Jackson standard “does not permit the reviewing
court to view just the evidence most favorable to the prosecution and
then to decide whether that evidence convinced it beyond a reasonable
doubt.” Mussall, 523 So.2d at 1310. “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.” State v. Allen, 36,180,
p. 5 (La.App. 2 Cir. 9/18/02), 828 So.2d 622, 626, writs denied, 02-
2595 (La. 3/28/03), 840 So.2d 566, 02-2997 (La. 6/27/03), 847 So.2d
1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90
(2004).

State v. Thomas, 17-959, pp. 13-14 (La.App. 3 Cir. 9/26/18), 255 So.3d 1189,

1199, writs denied, 18-1757, 18-1662 (La. 4/22/19), 268 So.3d 294, 303.

In State v. Diaz, 612 So.2d 1019, 1022-23 (La.App. 2 Cir. 1993), in

reviewing the sufficiency of the evidence presented to support a second degree

battery conviction, the court stated:

Defendant makes much of the fact that he only struck the victim
once, failed to knock the victim to the floor or render him
unconscious, and did not pursue the victim after striking him. These
14

factors, argues the defendant, indicate an absence of intent to cause
serious bodily harm. We do not agree. The supreme court has firmly
rejected the notion that the second degree battery statute envisions an
offender who mercilessly beats a fallen victim. Fuller, supra. The
statute clearly states that the intended harm is “serious bodily injury”
and defines this to involve, among other things, unconsciousness,
extreme physical pain or protracted and obvious disfigurement. Under
the circumstances of this case, when Diaz struck Bullock as hard as he
could, he intended to cause serious bodily injury as contemplated by
the statute. See State v. Accardo, 466 So.2d 549 (La.App. 5th
Cir.1985) (statutory requirements met where single blow to victim’s
head merely caused swelling and a stunned reaction).

Indeed, as a consequence of the defendant’s blow, Bullock’s
jaw was broken in two places. He testified that his mouth was
bleeding after the blow and his jaw “just kinda jingled.” He further
stated that some of his teeth appeared to be missing but that he later
learned the gap in his lower row of teeth was caused by the separation
of the fractured pieces of his mandible. Dr. Willis confirmed that the
fractures created a six millimeter gap between Bullock’s teeth, and he
described the breaks in Bullock’s jaw as a “serious injury.” Bullock
described his pain as “excruciating,” and his mother testified that he
was asking for a pain shot at the hospital. The injury required a five-
hour reparative surgery during which Bullock was under general
anesthesia. For approximately two months following surgery,
Bullock’s mouth was wired shut, which kept him from eating solid
foods and greatly impaired his ability to speak. According to his
mother, at the time of trial, some eight months after the fight took
place, Bullock’s face was still disfigured, and he was still having
reparative work done to his teeth.

We find that, viewing the evidence as a whole in a light most
favorable to the prosecution, any rational trier of fact could have
found proof beyond a reasonable doubt that Diaz struck Bullock
without the latter’s consent and with the specific intent to cause
serious bodily injury.

In State v. Fuller, 414 So.2d 306, 310 (La.1982), the supreme court upheld

the defendant’s conviction for second degree battery, stating:

Defendant is a thirty-year old man whose occupation is a
bouncer at the business where the battery occurred. The defendant
was not working the night of the offense, but was spending his free
time at the lounge that evening. The victim was a much younger man
than defendant, approximately nineteen, and considerably smaller.
The defendant hit the victim with a blow sufficient to knock him over
the pool table. The blow caused the victim’s sight to be permanently
impaired. Under these circumstances, a rational trier of fact could
certainly have found that defendant possessed the intent to do “serious
bodily harm.” When a much stronger man hits a younger, smaller
15

man, the fact finder could rationally conclude that the offender
intended to cause, at a minimum, unconsciousness and/or extreme
physical pain.

In the present case, the defendant and his brother confronted the victim

several times in the driveway asking what he was doing at their grandfather’s

house. The defendant’s brother, Dillon, and Travis each testified that they heard

the victim say something to the effect that if they wanted to know what he was

doing there, they could ask their grandfather. There was no testimony indicating

the victim swung or lunged at the defendant, only that he was close to the

defendant’s face and did not go around them to get to his truck. The defendant and

his brother struck the elderly victim with such force that serious injury resulted.

Under the facts of this case, we find a rational trier of fact could have found the

defendant possessed the intent to inflict serious bodily injury when he struck the

victim.

Justification/Self-Defense

The defendant contends he acted out of fear and was not the aggressor in this

situation. He claims he acted in self-defense and was justified in hitting Mr.

Blanks to prevent a battery upon himself.

The defense of justification is set forth in La.R.S. 14:18:

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. This defense of justification can be
claimed under the following circumstances:

....

(7) When 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:
16

(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.

....

C. A person who is not engaged in unlawful activity and who is
in a place where he or she has a right to be shall have no duty to
retreat before using force or violence as provided for in this Section
and may stand his or her ground and meet force with force.

In State v. Ross, 18-453, pp. 31-32 (La.App. 3 Cir. 3/13/19), 269 So.3d

1052, 1072, writ denied, 19-581 (La. 1/22/20), 291 So.3d 1041, this court stated:

As for the defendant’s claim of justification, the jurisprudence
states the following:

A different justification provision applies to
Defendant’s self-defense claims for the two attempted
second-degree murder convictions:

A. The use of force or violence upon
the person of another is justifiable when
committed for the purpose of preventing a
forcible offense against the person. . .
provided that the force or violence used
must be reasonable and apparently necessary
to prevent such offense

....

La.R.S. 14:19. “In non-homicide cases, . . . the defendant [has] the
burden of proving self-defense by a preponderance of the evidence.
The issue of self-defense requires a dual inquiry: (1) an objective
inquiry into whether the force used was reasonable . . . ; [and] (2) a
subjective inquiry into whether the force was apparently necessary.”
[State v.] Hall, 606 So.2d [972] at 973–74 [ (La.App. 3 Cir.1992) ]
(citations omitted).

State v. Williams, 10-900, p. 4 (La.App. 3 Cir. 3/9/11), 2011 WL
798878 (unpublished opinion), writ denied, 11-1060 (La. 12/2/11), 76
So.3d 1173.

As stated earlier, it is apparent that the jury in the present case
did not believe the defendant’s testimony. Considering the evidence in
a light most favorable to the state, the evidence shows the defendant
intentionally confronted the victim about his driving, yelled
17

obscenities at him, and threatened to kill him. The victim approached
the defendant carrying a gun on his side, but not holding the gun in his
hand, and told the defendant to leave the scene. Instead of simply
leaving the scene, the defendant accelerated forward and intentionally
ran over the victim with his car. Even if the defendant felt threatened
by the holstered gun, the defendant’s choice to run over the victim
instead of leaving the scene was not reasonable. Under these
circumstances, the jury rationally determined the force used by the
defendant was neither reasonable nor necessary under the
circumstances.

This assignment lacks merit.

In the present case, considering the evidence in a light most favorable to the

state, the evidence showed the defendant and his brother intentionally confronted

the victim in their grandfather’s driveway. The victim approached them as he was

walking down the driveway but took no aggressive action toward either the

defendant or his brother, other than getting close to them and not walking around

them. The defendant and his brother could have left, gone around the victim to

check on their grandfather, or called police with a description of the victim and his

vehicle/license plate number. Under the circumstances presented in this case, the

jury rationally determined that the force used was not reasonable nor apparently

necessary to prevent an offense against the defendant.

Internal Contradictions or Irreconcilable Conflict with Physical Evidence

The defendant contends Mr. Blanks’ testimony was not credible and should

not be relied on in determining the sufficiency of the evidence. Specifically, he

notes that the victim said he was hit in the chest area, then two guys got on top of

him and were beating him while two other guys started kicking him. Later, he

testified that all punches hit him in the face except when he was kicked. This

testimony as to the location of the punches was internally inconsistent and was also

contradicted by what the victim told several officers after the incident.

18

Another inconsistency pointed out is that Deputy Durrett stated in his report

that two to four white males pulled the victim out of his vehicle, started hitting

him, and then left. He offered no explanation regarding the statement that the

victim was pulled out of the vehicle or that he told the men he was delivering

newspapers. At trial, the victim testified that he told the defendant and his brother

that they could speak to their grandfather, not that he was delivering newspapers.

Additionally, the defendant notes that his brother heard the victim’s response

as he tackled him. Travis testified that he heard the victim say if anyone had a

problem with him being there to ask “these people” but it was not clear at what

point in the encounter this statement was made.

Finally, the defendant’s testimony that he was beaten by two men and kicked

by the other two was inconsistent with other testimony presented at trial.

Additionally, the victim’s testimony that he attempted to protect himself by

covering his face with his hands was disputed by photographs of his hands and

arms which showed no signs of scrapes or bruising. He argues that both the

photographs and medical reports contradict the victim’s statements that he received

a prolonged beating and kicking by four men.

Even without the victim’s testimony, there was sufficient evidence presented

to prove the defendant hit the victim with specific intent to cause great bodily

injury. The defendant admitted he hit the victim. Other witnesses heard the victim

tell the defendant to speak to his grandfather if he wanted to know why he was

there. Although the defendant said he hit the victim because he was scared and he

wanted to get him out of his face, when he was asked if it ever dawned on him that

the victim was trying to get to his vehicle which was behind the defendant, he

responded, “He shouldn’t have got that close into my face. He could have walked

around.” When asked if he confronted the victim, the defendant replied, “Just
19

asking him why he was there, and he would not tell us.” The defendant’s brother

confirmed that they confronted the victim and he never swung or lunged at them.

It was his impression that the victim was “gonna go through [him] if [he] didn’t get

out of the way.” The injuries sustained by the victim caused extensive bruising and

bleeding in both eyes, with the damage to the left eye so severe that the victim lost

his vision in that eye, according to Dr. Liang. These facts, without the victim’s

testimony, were sufficient to prove the elements of the offense beyond a reasonable

doubt and this claim has no merit.

Assignment of Error Number Three

The defendant contends the facts of this case do not warrant a maximum

sentence of incarceration with only one year suspended. The defendant notes that

he was thirty-three at the time of the trial, and caring for a three-year-old son in a

shared custody arrangement with the child’s mother. At the time of sentencing, the

defendant was supporting his fiancé, Laura Myers, as well as her child, and they

had another child on the way. The defendant and Ms. Myers, who was twelve

weeks pregnant, planned to marry the weekend after sentencing. Ms. Myers

testified she had been in a relationship with the defendant for approximately nine

months and had lived with him for about two or three months. She described the

defendant as a good father who paid child support despite the absence of a court

order.2 She said the defendant was a person with good morals, a good work ethic,

a family man, and a person who would comply with conditions of probation as he

was never one to run from his problems. The defendant’s mother described him as

a kind person, with a big heart, who was not a troublemaker. He worked for his

2
Ms. Myers testified that she knew the defendant prior to their nine-month relationship
because their families knew each other, and she had been around him a few times.

20

prior employer for eleven years before his termination over this incident. She

testified that he abided by the conditions of probation when convicted of DWI.

Riley Milner, the defendant’s employer, who has known the defendant since

birth,3 testified that the defendant is a good worker, has good moral character, and

he has never known the defendant to be in trouble other than his prior DWI. He

testified that the defendant would continue to have a job with him as long as he

needed to work, and he felt that the defendant was the kind of person who would

take probationary conditions seriously.

The defendant argues that the court imposed the sentence based on the

extent of injury to the victim’s eyes and did not consider the defendant’s personal

history, need to support his family, and good work history. The state contends that

the defendant has failed to prove that the trial court abused its wide discretion in

imposing sentence, and it fully considered all relevant mitigating factors and

concluded they did not outweigh the permanent, incapacitating, and painful harm

inflicted on the victim.

For second degree battery, the defendant faced a maximum eight-year

sentence at hard labor and a fine of not more than two thousand dollars. As

discussed above, he was sentenced to eight years with one year suspended and

three years of supervised probation. This court addressed an excessive sentence

claim for the imposition of a maximum sentence for second degree battery in State

v. Williams, 20-609, pp. 20–27 (La.App. 3 Cir. 10/20/21), 329 So.3d 885, 897-900:

On appellate review of sentence, the relevant question is
“ ‘whether the trial court abused its broad sentencing
discretion, not whether another sentence might have been
more appropriate.’ ” State v. Cook, 95-2784, p. 3 (La.
5/31/96), 674 So.2d 957, 959 (quoting State v.
Humphrey, 445 So.2d 1155, 1165 (La.1984)), cert.

Mr. Milner testified that he is a friend of the defendant’s father, and the defendant also
3

worked for him while in high school.
21

denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539
(1996). In this context, a trial court “abuses its sentencing
discretion only when it contravenes the prohibition of
excessive punishment in La. Const. art. I, § 20, i.e., when
it imposes ‘punishment disproportionate to the offense.” ’
State v. Soraparu, 97-1027 (La. 10/13/97), 703 So.2d 608
(quoting State v. Sepulvado, 367 So.2d 762, 767
(La.1979)).

State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50.

Louisiana courts have laid out the following guidelines with
regard to excessive sentence review:

Sentences within the statutory sentencing range
can be reviewed for constitutional excessiveness. State v.
Sepulvado, 367 So.2d 762 (La.1979). In State v. Barling,
00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779
So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02),
808 So.2d 331, a panel of this court discussed the review
of excessive sentence claims, stating:

La. Const. art. 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. State v. Campbell, 404 So.2d 1205
(La.1981). 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. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99),
746 So.2d 124, writ denied, 00-0165 (La.
6/30/00), 765 So.2d 1067. The relevant
question is whether the trial court abused its
broad sentencing discretion, not whether
another sentence might have been more
appropriate. State v. Cook, 95-2784 (La.
5/31/96), 674 So.2d 957, cert. denied, 519
U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539
(1996).

Further, in reviewing the defendant’s sentences, the appellate
court should consider the nature of the crime, the nature and
22

background of the offender, and the sentences imposed for similar
crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d
57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ denied, 99-
433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith, 02-719, p. 4
(La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562
(La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:

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
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[, cert. denied, 519 U.S. 1043, 117 S.Ct.
615 [136 L.Ed.2d 539] (1996)].

State v. Soileau, 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153
So.3d 1002, 1005-06, writ denied, 14-452 (La. 9/26/14), 149 So.3d
261.

In State v. Baker, 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d
83, writ denied, 07-320 (La. 11/9/07), 967 So.2d 496, and writ denied,
07-1116 (La. 12/7/07), 969 So.2d 626, this court adopted the fifth
circuit’s three factor test regarding the suitability of sentences from
State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ
denied, 99-433 (La. 6/25/99), 745 So.2d 1183, which established that
an appellate court should consider the nature of the crime, the nature
and background of the offender, and the sentences imposed for similar
crimes.

Pursuant to Baker, we first consider the nature of the crimes for
which the defendant was convicted. Louisiana Revised Statutes
14:2(B)(6) defines second degree battery as a violent crime. Further,
although not explicitly designated a crime of violence under La.R.S.
14:2(B), by its very definition, battery of a healthcare professional
producing injury is a violent offense in that it necessarily involves
violent actions by the offender producing injury to the victim. The
second Baker factor involves a review of the nature and background
of the offender. The defendant’s arguments as to the excessiveness of
his sentences are related to the fact that these are his first felony
convictions and that he suffers from mental illness and is in need of
treatment. The defendant was twenty-eight years old at the time of the
attack on Ms. Smith and was almost thirty when he was sentenced.
The defendant has a high school education and does not appear to
have any children. During sentencing, the trial court acknowledged
that there have been concerns about the defendant’s volatility as far
back as when he was in elementary school, and that the defendant had
23

been in need of mental health treatment for years prior to the current
incident.

The defendant contends his sentences are excessive precisely
because he was in need of mental health treatment. However, as noted
by the trial court, the defendant has repeatedly failed to take
prescribed medication for his mental illness and instead has opted to
self-medicate with illegal drugs and alcohol. The defendant also
contends his sentences are excessive because he is a first felony
offender. While technically true, the State listed thirteen prior
misdemeanor offenses, most of which were simple battery charges
and were, therefore, violent crimes. Furthermore, as noted by the trial
court, a number of those battery charges were ultimately dismissed
because the victim was the defendant’s mother, Ms. Rose Williams,
who would not cooperate with any prosecution.

Finally, Baker directs the court to consider sentences imposed
in other cases for the same offenses. . . . Additionally, the eight-year
hard labor sentence the defendant received for second degree battery
also represents a maximum sentence.

In State v. White, 35,235 (La.App. 2 Cir. 10/31/01), 799 So.2d
1165, the second circuit upheld consecutive maximum sentences for a
first offender convicted of simple robbery, conspiracy to commit
simple robbery, and second degree battery, all arising out of the same
robbery. That court noted:

During sentencing, the trial court stated:

This is a heinous crime, one of the worst and
unfortunately the District Attorney because of the way
laws are written and because of the way the
interpretations of the supreme court as to what they could
charge you with, you were charged, entered a plea of
guilty to the charges of simple robbery, conspiracy to
commit simple robbery, and second degree battery. You
heard what the lady said, broken jaws on the right side,
left side, reconstruction, medical bills that will probably
run into the thousands and thousands of dollars that they
are going to have to find ways to pay for. It’s traumatized
not only the wife but the husband as well as their
children. . . . But based on what I have seen in this case
and what I can do as a judge, the only thing I can do is
give the maximum sentence on each charge and I’m
going to do that.

Examination of the record indicates that the trial court
adequately considered all facts, including the presentence
investigation. The court obviously felt that the risk to public safety
was so great as to justify maximum consecutive sentences. The
court’s concern was justified under the facts of this case. The victim
24

was viciously beaten, suffering severe and life-altering injuries which
continue to plague her. As a result of the brutality inflicted upon this
hapless woman, her family has also suffered considerable emotional
distress. The defendant asserts that he is not “the worst of the worst,”
deserving of the maximum penalties. However, the trial court found
that the defendant was, in fact, among the worst offenders; based upon
this record, we must concur in the trial court’s assessment.

The record does not demonstrate that the
consecutive sentences imposed are grossly out of
proportion to the seriousness of the offenses, or nothing
more than a purposeless and needless infliction of pain
and suffering. Viewed in light of the harm done to
society, the defendant’s sentences do not shock the sense
of justice.

In pronouncing the sentences imposed here, the trial court
articulated its consideration of the sentencing guidelines of La.Code
Crim.P. art. 894.1. Specifically, the trial court determined that there
was an undue risk that the defendant would commit another crime if
given a lesser sentence, that a lesser sentence would depreciate the
seriousness of the crimes committed here, that the defendant is in need
of correctional treatment or a custodial environment, and that the
crimes committed manifested extreme cruelty to the victim and
caused serious bodily injury. . . . Further, while recognizing the
defendant as a first-felony offender, the trial court noted that it could
find no mitigating factors relevant other than the defendant’s mental
issues.

We find no abuse of the broad sentencing discretion of the trial
court. The defendant was found guilty of two separate crimes, though
they constituted part of a continuing event. The batteries committed
on nurse Smith were extremely violent and protracted. Nurse Smith
was beaten about the head and body and kicked in her stomach and
sides. She was seriously injured and disfigured, requiring medical
attention, hospitalization, and continued therapy. She further suffered
post-traumatic stress as a result of the incident and has not been able
to return to work. The defendant expressed no remorse following the
incident; instead laughing until told by attending officers that this was
no laughing matter. Later, in his recorded telephone call, the
defendant bragged about beating nurse Smith, referring to her using
profane and vile language. That same recorded phone conversation
reflects the defendant’s callousness and deviousness, shown by
statements from which one can draw the inference that he expects that
he will get away with his acts because of his asserted mental illness.
This reflects conscious thought, a knowledge of right and wrong, and
not serious mental illness. The victim in this case did nothing to
warrant the vicious attack by the defendant. In fact, she was there in
her professional capacity to aid and assist the the defendant. She was
rewarded by being violently attacked and seriously injured. This
25

record does not demonstrate that the sentences imposed are grossly
out of proportion to the seriousness of the offenses. Indeed, the
seriousness of the offenses warranted a serious sentence. Thus, we
affirm the sentences imposed.

In the present case, after recounting the facts of the case, prior to imposing

sentence, the court stated:

The court did, in fact, go through the Sentencing Guidelines,
uh, Article 894.1, and I’ll talk about that a little later. Was economic
harm caused to the victim? The answer is, “Yes.” And I will talk
about some other things shortly. This defendant is 33 years of age.
He is married. He has one child and one on the way. The defendant
is in good health. He is presently employed by Riley Milner, the
Signman. He graduated from high school. He does not have a history
of drug or alcohol abuse.

This case was tried before a jury on August the 29th of 2021
[sic]. The jury found him guilty, and we are here today for
sentencing. There was a sentencing hearing held on behalf of Mr.
James, and I also received letters on his behalf. I also received letters
from Mr. Blanks and his daughters, which I have also reviewed.

As to the defendant’s criminal history, this is his first felony.
The only other criminal history he has is a DWI several years ago.
The court looked, specifically, at Code of Criminal Procedure Article
894.1, the Sentencing Guidelines, for the aggravating and mitigating
factors. As far as aggravating factors, the court finds that the offender
used threats of or actual violence in the commission of the offense.
The offense resulted in a significant permanent injury and economic
loss to the victim and his family. A lesser sentence would deprecate
the seriousness of the offense. As far as the mitigating factors are
concerned, the court finds that the defendant has no history of prior
delinquency or criminal activity or has led a law-abiding life for a
substantial period of time before the commission of the instant
offense. As I stated earlier, he had a prior DWI several years ago.

The facts reflect that Mr. James and his brother attacked Mr.
Blanks around 3:00 AM on the morning of December the 17 th of
2021. The court’s concerns are the injuries to Mr. Blanks. The
testimony of Dr. Liang, at trial, shows that, as a result of the attack,
Mr. Blanks had extensive bruising - - bruises and bleeding in both
eyes. The left eye had a severe dense subconjunctival hemorrhage. In
other words, the white part of the eyeball was ruptured. His right eye
had a orbital floor fracture. He was then operated on and they found a
laceration behind the eye and they had to remove a blood clot and he
lost a lot of the fluids inside the eyeball, which resulted in significant
pain. As a result of this incident, Mr. Blanks lost sight in his left eye.
There is also a risk of losing sight in the right eye. These injuries did
in fact cause severe pain during the time, and Mr. Blanks is still
26

experiencing severe pain. The victim stated to the court, in his letter,
that, since the loss of his vision in his eye, he cannot shave; he cannot
groom himself; he cannot cook; or bathe himself. He will forever
need assistance. He has daily pain in his eyes and, on most days, it is
unbearable. He has also neurological issues he didn’t have before.
He often has nightmares. He also lost and will forever lose the quality
of enjoyment with his daughters and grandchildren in the future. He
also lost the ability for income that he had prior to this incident. The
court will note that there was not any bills provided to this court or
any request for restitution. The court assumes that is because of the
testimony at trial regarding a possible civil suit.

The testimony, at trial, from the defendant and his brother was
that they did not intend to cause these results. Whether that is true or
not has little, if any, to do with the outcome. Once you start down the
road using violence, there is always a possibility of unintended results.
The fact is Mr. Blanks’ life was forever changed, on that fateful night,
caused by the action of this defendant and his brother. I did read
several letters from friends and family, on your behalf, all stating that
you are a good person. I heard from your family and employers, at
your sentencing hearing, testifying to your good character. I have no
doubt this is true, but it does not change the injuries to Mr. Blanks
from that night.

Considering the Baker factors, we note second degree battery is a violent

crime. The defendant was thirty-three years old at the time of trial, had a job, and

he had family members who relied on him for support. His prior criminal history

consisted of a DWI, and according to his mother, he successfully complied with

the associated probationary conditions. According to the testimony at the

sentencing proceeding, he was not a troublemaker and did not have a violent past.

In pronouncing sentence, the trial judge articulated his consideration of the

sentencing guidelines of La.Code Crim.P. art. 894.1, noting both mitigating and

aggravating factors, most notably the degree of injuries suffered by the victim.

The defendant received a high-end sentence, but not the maximum, in that one year

of his sentence was suspended.

This court upheld the imposition of the maximum sentence in Williams, 329

So.3d 885. As in Williams, the victim’s injuries were quite significant, having

been beaten in the head and body and kicked in her stomach and sides. She was
27

disfigured, required hospitalization, and continued therapy, and she was unable to

work due to post-traumatic stress.

Unlike the defendant, Williams had a more extensive criminal history

consisting of multiple misdemeanor arrests/convictions. He suffered from mental

illness for which he opted to self-medicate with drugs and alcohol. Williams had

no children, and he expressed no remorse for his actions, even laughing and

bragging about what he had done.

In State v. Bowie, 482 So.2d 90 (La.App. 4 Cir. 1986), the fourth circuit

upheld the imposition of the maximum five-year sentence for second degree

battery where the thirty-four-year-old unmarried, unemployed, heroin-addicted

defendant threw a brick at a police officer during an altercation. The brick was

thrown with such force that it broke into three pieces, and the injuries sustained by

the unarmed officer, who had his back to the defendant as he was walking away,

included a torn scalp, fractured skull, and injuries to the left shoulder and back.

The defendant’s criminal record consisted of a 1976 conviction for possession of

heroin, a 1980 conviction of theft, and arrests for thefts, forgeries, possession of

quaaludes, sale and possession of heroin, and automobile theft. He expressed

remorse at his sentencing hearing, blaming his conduct on his experiences in the

Vietnam war.

In the present case, as in Bowie, significant injuries were inflicted on the

victim, and the defendant expressed remorse. Unlike Bowie, the defendant had a

minimal prior criminal history, had a family to support, and was employed.

We further note State v. Linnear, 44,830 (La.App. 2 Cir. 12/9/09), 26 So.3d

303, where the second circuit affirmed a near maximum sentence for a defendant

who became angry, lost control, knocked the victim unconscious, and left the scene

with the victim unattended. The defendant’s statement indicated that the victim
28

was “throwing” gang signs in the defendant’s face and bumping into him at a

nightclub, and the defendant eventually “went off” and punched him, knocking

him to the cement floor. The victim did not have the opportunity to fight back, and

the defendant got on top of him and repeatedly hit him. The victim’s injuries,

which consisted of multiple jaw fractures, a head injury, and an ensuing decubitus

ulcer on his back, required weeks of intensive care and ongoing lengthy, costly

rehabilitation. The defendant’s criminal history consisted of misdemeanor

convictions for disturbing the peace by fighting and domestic abuse battery, with

prior terms of probation being revoked for noncompliance. He argued on appeal

that the term of incarceration would place an undue hardship on his family as they

relied on him both financially and in helping with the care of his disabled child

who suffered from cerebral palsy. He noted that he participated in rehabilitative

programs while incarcerated, including anger management.

In the present case, as in Linnear, significant injuries were suffered by the

victim and incarceration presented hardship for the defendant’s family. Unlike the

defendant in Linnear, the defendant did not get on top of the victim and repeatedly

hit him, and Linnear’s criminal history included more convictions and terms of

unsuccessful probation, which has not been an issue for the defendant.

In reviewing the record and the reasons for sentencing set forth by the trial

court, we note he fully complied with La.Code Crim.P. art. 894.1 and, in fact,

considered all the mitigating factors discussed above, as well as the aggravating

factors in this case. We do not find that in imposing this sentence that the court

abused its vast discretion, and we affirm the sentence imposed by the court, subject

to the remand instructions discussed in the Errors Patent section of this opinion.

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CONCLUSION

Both the defendant’s conviction and sentence are affirmed. This matter is

remanded to the trial court for the establishment of a payment plan for the fine and

court costs imposed as conditions of the defendant’s probation in accordance with

La.Code Crim.P. art. 875.1.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

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