State v. Howard
Also decided on this docket: La. Ct. App. 1st Cir., October 6, 1993 624 So. 2d 1277; La. Ct. App. 3d Cir., November 2, 1994 649 So. 2d 489
State v. Howard, 630 So. 2d 2 (La. Ct. App. 1st Cir. 1993).
Cited by
- State v. Dunn 709 So. 2d 852 La. Ct. App. 2d Cir. 1998
- State v. Howard 638 So. 2d 216 La. 1994
Opinion text
ON REHEARING WOODARD, Judge. We granted rehearing in this case because the facts support a conviction of the lesser included responsive offense of simple battery. If an appellate court finds that the evidence, viewed in the light most favorable to the state, supports a conviction of a lesser included responsive offense, the court may modify the verdict and render a judgment of conviction on the lesser included responsive offense. La.C.Cr.P. art. 821 E; State v. McBride, 504 So:2d 840 (La.1987). Simple battery is defined in La.R.S. 14:35 as a battery committed without the consent of the victim. Defendant used force by grabbing the victim’s shoulders and attempting to pull her out of the vehicle. The victim did not consent to this use of force. Thus, the defendant committed a simple battery upon-the victim. We, therefore, vacate the defendant’s conviction of aggravated battery and enter a conviction for the responsive offense of simple battery. The case .is remanded for resen-tencing for this conviction. CONVICTION AND SENTENCE VACATED; RESPONSIVE VERDICT ENTERED; REMANDED FOR RESEN-TENCING.