Case Number: 51,851-KA

Judge: D. Milton Moore III

Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney: ROBERT S. TEW
District Attorney

GEARY S. AYCOCK
+Assistant District Attorney

Defendant's Attorney: LOUISIANA APPELLATE PROJECT
By: Douglas L. Harville

Description: Defendant was charged by bill of information with second degree
battery and second degree kidnapping that occurred on August 29, 2015, in
Monroe, Louisiana. After an extensive on-record discussion, the trial court
granted defendant’s motion to represent himself. Defendant waived his right
to a jury trial and filed notice of his intent to present an intoxication defense.
Following a bench trial, on January 23, 2017, the trial judge found defendant
guilty as charged on both counts.
Defendant filed numerous post-trial motions, which were either
withdrawn or denied at a hearing on April 13, 2017. Thereafter, the trial
judge reviewed the pre-sentence investigation report, and sentenced
defendant to four and one-half years at hard labor for second degree battery.
For second degree kidnapping, defendant was sentenced to 15 years at hard
labor, with all but four and one-half years suspended, with the four and one
half years to be served without the benefit of parole. Defendant was
thereafter to be placed on supervised probation for five years. The trial
judge ordered the sentences to be served concurrently. Further, for second
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degree battery, the trial judge ordered Scheanette to pay a fine of $2,000 plus
court costs, in default of which he was to serve 180 days in jail, with the fine
and costs to be paid within two years once he is on probation. The trial court
denied defendant’s motion to reconsider sentence. This appeal followed,
and appellate counsel was appointed.
DISCUSSION
Sufficiency of the Evidence

Defense counsel contends that the evidence was insufficient to prove
that defendant was guilty of either second degree battery or second degree
kidnapping. As to the battery, defense counsel argues that there was no
evidence that defendant intentionally inflicted serious bodily injury on the
victim. Noting that defendant struck the victim only once, not repeatedly,
defense counsel asserts that there was only evidence of an alleged intent to
commit a simple battery. As to the kidnapping, defense counsel claims that
there was no evidence that defendant caused physical injury to the victim
while he was allegedly kidnapping her. Rather, defense counsel argues that
at best, the evidence established that defendant battered the victim, and then
kidnapped her after the battery was completed.
The standard of appellate review for a sufficiency of the evidence
claim 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 (1979); State v.
Tate, 01-1658 (La. 05/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905,
124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004). This standard, now legislatively
embodied in La. C. Cr. P. art. 821, does not provide the appellate court with
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a vehicle to substitute its own appreciation of the evidence for that of the
fact finder. State v. Pigford, 05-0477 (La. 02/22/06), 922 So. 2d 517.
A reviewing court accords great deference to the jury’s decision to
accept or reject the testimony of a witness in whole or in part. State v.
Casaday, 49,679 (La. App. 2 Cir. 02/27/15), 162 So. 3d 578, writ denied,
15-0607 (La. 02/05/16), 186 So. 3d 1162. The testimony of a victim alone is
sufficient to convict a defendant. Such testimony alone is sufficient even
where the state does not introduce medical, scientific, or physical evidence
to prove the commission of the offense by the defendant. State v. McGill,
50,994 (La. App. 2 Cir. 01/11/17), 213 So. 3d 1181.
At trial, the court was presented with the following testimony and
evidence. The victim, Courtni McDonald, testified that on August 29, 2015,
she was living with defendant at her house, along with their eight-month-old
daughter. On that date, there were some men doing work on their house.
Ms. McDonald, defendant, and their daughter left the house and went to
Fred’s Pharmacy Store. When they left the store, defendant was driving and
Ms. McDonald and the baby were in the backseat. Defendant had been
drinking that day. He had the music on loud, and Ms. McDonald asked him
to turn it down. She eventually reached up and turned it off. Ms. McDonald
testified that defendant then said that another guy had been flirting with her
and “whispering in her ear.” Defendant got angry and began driving
recklessly. On their way home, defendant stopped at a gas station to buy
beer. Ms. McDonald got out of the car with the baby, and asked the store
clerk to call the police because defendant was driving erratically. The store
clerk would not do so. Defendant got angry when Ms. McDonald refused to
ride with him, and he left Ms. McDonald and the baby at the gas station.
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About 30 minutes later, defendant returned and Ms. McDonald agreed to
drive them home.
As Ms. McDonald was driving, defendant was sitting in the passenger
seat. Defendant got mad that Ms. McDonald had wanted the store clerk to
call the police. Ms. McDonald testified that defendant then punched her in
the face, under her right eye, hard enough to split her skin open. Ms.
McDonald was bleeding profusely and had to stop the car. She got in the
passenger seat and asked defendant to take her to the hospital at least two or
three times. Defendant refused to take her to the hospital, stating that he did
not want to go to jail, and began driving toward their house. However, when
they got close to their house, Ms. McDonald was covered in blood and there
were people outside, so defendant kept driving. Ms. McDonald told
defendant to take her home, but he refused. He drove around the
neighborhood for a little while and then said that they were going to his
mother’s house, which was close by. As defendant drove past his mother’s
house, Ms. McDonald asked him where they were going. Defendant said
that he was going to take her to the woods and kill her.
Ms. McDonald testified that defendant did not let her out of the car.
As they approached a stop sign, Ms. McDonald unbuckled her seat belt and
attempted to get out, but defendant turned the corner too fast. When they
approached a second stop sign, defendant had to stop for traffic, and Ms.
McDonald was able to jump out of the car. She started walking to
defendant’s mother’s house, but defendant passed her and made it to his
mother’s house before she did. As Ms. McDonald walked up, defendant’s
mother saw Ms. McDonald’s face and said that she was going to call the
police. Defendant’s mother got the baby out of the car, and everyone went
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inside the house. Ms. McDonald took the baby to the back of the house, and
defendant wrestled his mother to the floor and grabbed the phone from her
hand, apparently after she had connected with 911. The altercation
continued into the bedroom, where defendant pushed Ms. McDonald onto
the bed.1 When the police arrived, about 30 minutes later, defendant forced
Ms. McDonald into the bathroom and demanded that she clean her face and
change shirts, in an attempt to hide her injury from them.
Ms. McDonald stated that after she talked to the police, and they took
pictures of her injuries, they called an ambulance and she went to the
hospital. Ms. McDonald had to get four or five stitches and still has a scar
on her face. Ms. McDonald identified the photos of her injury taken right
after the incident, showing the blood dripping down her face, and several
photos she took the next day, showing the stitches and a large area under her
right eye that was bruised and swollen.
Defendant’s mother, Connie Scheanette, testified that when defendant
and Ms. McDonald arrived at her house, and she saw the blood on Ms.
McDonald’s face, she grabbed the phone to call the police. Defendant was
angry and took the phone away from her, knocked her down, and a struggle
ensued. Mrs. Scheanette did not see defendant push Ms. McDonald, but
stated that they went into the bedroom. Mrs. Scheanette stated that she
could smell alcohol on defendant’s breath and noted that he has a drinking
problem. A couple of days after defendant’s arrest, Ms. McDonald told her
that there had been no kidnapping, that she and defendant had been out
shopping.

1 The baby was not injured during this incident.
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Deputy Steven Daniel May of the Ouachita Parish Sheriff’s Office
testified that he was dispatched to Connie Scheanette’s house on August 29,
2015, at 1:47 p.m. in response to a 911 call hang-up. The homeowner was at
the front door. When he went inside the house, defendant and Ms.
McDonald were coming out of a back bedroom. Deputy May observed Ms.
McDonald’s injury and learned that defendant had struck her in the face.
Defendant was arrested, and Ms. McDonald was transported to the hospital
by ambulance. Deputy May stated that although he could tell that defendant
had been drinking, he was not significantly intoxicated; defendant could
hold a conversation and did not have any trouble walking. Deputy May took
photos of the following: the victim’s injury; the car, which showed blood on
the console, steering wheel and driver’s seat; the beer that was found inside
the car; and the inside of the house, which was in disarray.2
Second Degree Battery
A battery is the intentional use of force or violence upon the person of
another. La. R.S. 14:33. Second degree battery is defined as “a battery
when the offender intentionally inflicts serious bodily injury.” La. R.S.
14:34.1(A). “Serious bodily injury” is defined as “bodily injury which
involves unconsciousness, extreme physical pain or protracted and obvious
disfigurement, or protracted loss or impairment of the function of a bodily
member, organ, or mental faculty, or a substantial risk of death.” La. R.S.
14:34.1(B)(3).
Second degree battery is a specific intent crime and therefore, the
evidence must show that the defendant intended to inflict serious bodily

2 Deputy Zach Johnson of the Ouachita Parish Sheriff’s Office testified as to his limited involvement as the backup officer in this case.
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injury. State v. Fuller, 414 So. 2d 306 (La. 1982); State v. Linnear, 44,830
(La. App. 2 Cir. 12/09/09), 26 So. 3d 303. Specific intent is that state of
mind that exists when the circumstances indicate the offender actively
desired the prescribed criminal consequences to follow his act or failure to
act. La. R.S. 14:10(1). Specific intent may be inferred from the
circumstances surrounding the offense and the conduct of the defendant.
The determination of whether the requisite intent is present in a criminal
case is for the trier of fact, and a review of this determination is to be guided
by the standards of Jackson v. Virginia, supra; State v. Linnear, supra; State
v. Jackson, 51,575 (La. App. 2 Cir. 09/27/17), ___ So. 3d ___, 2017 WL
4273705.
There is no requirement that a victim be hit multiple times to satisfy
the elements of second degree battery. State v. Dickerson, 16-1336 (La.
App. 1 Cir. 04/12/17), 218 So. 3d 633. The Louisiana Supreme Court has
firmly rejected the notion that the second degree battery statute envisions an
offender who mercilessly beats a fallen victim. State v. Fuller, supra; State
v. Diaz, 612 So. 2d 1019 (La. App. 2 Cir. 1993).
As to second degree battery, Ms. McDonald testified that while she
was driving, defendant punched her in the face under her right eye.
Defendant struck Ms. McDonald hard enough to split her skin open, causing
her to bleed profusely. Ms. McDonald had to get four or five stitches, and
the area under her eye was bruised and swollen the next day. The injury
caused “extreme physical pain” and resulted in a permanent scar on Ms.
McDonald’s face. The manner in which defendant hit Ms. McDonald, the
severity of her injury, and defendant’s actions in refusing to take Ms.
McDonald to the hospital, together with his statement that he was going to
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take her to the woods to kill her, all support a finding that defendant
intended to inflict serious bodily injury. Although defense counsel asserts
that defendant only struck McDonald once, there is no requirement that a
victim be hit multiple times to satisfy the elements of second degree battery.
See State v. Dickerson, supra. The trial judge reasonably found that
defendant intentionally inflicted serious bodily injury on Ms. McDonald.
Second Degree Kidnapping
La. R.S. 14:44.1 defines second degree kidnapping as follows:
(A). Second degree kidnapping is the doing of any of the acts listed in Subsection (B) wherein the victim is:

. . .

(3) Physically injured or sexually abused;

. . .

(B). For purposes of this Section, kidnapping is:

(1) The forcible seizing and carrying of any person from one place to another; or

(2) The enticing or persuading of any person to go from one place to another; or

(3) The imprisoning or forcible secreting of any person.

The provisions of this statute apply when any one occurrence
mentioned in Subsection (B) combines with any occurrence enumerated in
Subsection (A). State v. Pamilton, 43,112 (La. App. 2 Cir. 03/19/08), 979
So. 2d 648, writ denied, 08-1381 (La. 02/13/09), 999 So. 2d 1145, rehearing
denied and opinion modified, 10-0273 (La. 02/04/11), 56 So. 3d 986.
Further, as to second degree kidnapping, the evidence was sufficient
to prove that defendant forcibly seized and carried Ms. McDonald from one
place to another, or imprisoned her, while she was physically injured. After
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he hit Ms. McDonald in the face and she could no longer drive, defendant
refused Ms. McDonald’s requests for him to take her to the hospital or
home. Defendant continued driving around, passing their house and his
mother’s home, and told Ms. McDonald that he was going to take her to the
woods to kill her. Ms. McDonald had to jump from the moving car to
escape from defendant. Thereafter, defendant forced Ms. McDonald into the
bathroom at his mother’s house and prevented her from exiting until she
cleaned her face and changed shirts before speaking to responding officers.
Although the injury occurred before the acts constituting the kidnapping, the
injury facilitated the forcible seizing and carrying and the imprisonment, and
was an integral part of the incident.
Considering the evidence in a light most favorable to the prosecution,
the evidence was sufficient for the trial judge to conclude beyond a
reasonable doubt that defendant was guilty of second degree battery and
second degree kidnapping. This assignment of error is without merit.
Denial of Pro Se Motion in Arrest of Judgment.

Following his bench trial, defendant filed an amended motion in arrest
of judgment, arguing that the bill of information was fatally defective as to
the charge of second degree kidnapping, as it failed to state which portion of
La. R.S. 14:44.1(A) (i.e. that the victim was physically injured) he allegedly
violated. The trial court denied the motion, stating that defendant had
sufficient notice of the allegations regarding the injury to the victim as the
bill also charged him with second degree battery, and he was provided with
open-file discovery.
Regarding the charge of second degree kidnapping, the bill of
information states that on August 29, 2015, defendant:
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DID WILLFULLY, UNLAWFULLY AND INTENTIONALLY FORCIBLY SEIZE AND CARRY COURTNI MCDONALD FROM ONE PLACE TO ANOTHER, OR ENTICE OR PERSUADE COURTNI MCDONALD TO GO FROM ONE PLACE TO ANOTHER OR IMPRISON THIS PERSON OR FORCIBLY SECRET THIS PERSON IN VIOLATION OF R.S. 14:44.1

La. C. Cr. P. art. 859 provides that the court shall arrest the judgment
only when the indictment is substantially defective because an essential
averment is omitted.
La. Const. art. I, § 13 provides that an accused shall be informed of
the nature and cause of the accusation against him. La. C. Cr. P. art. 464
provides that the indictment shall be a plain, concise, and definite written
statement of the essential facts constituting the offense charged. The bill of
information must contain all the elements of the crime intended to be
charged in sufficient particularity to allow the defendant to prepare for trial,
to enable the court to determine the propriety of the evidence that is
submitted upon the trial, to impose the appropriate penalty on a guilty
verdict, and to protect the defendant from double jeopardy. State v.
Washington, 41,182 (La. App. 2 Cir. 09/01/06), 939 So. 2d 557, writs
denied, 06-2320, 06-2468 (La. 05/18/07), 957 So. 2d 148, 149.
The time for testing the sufficiency of an indictment or bill of
information is before trial by way of a motion to quash or an application for
a bill of particulars. State v. Draughn, 05-1825 (La. 1/17/07), 950 So. 2d
583, cert. denied, 553 U.S. 1012, 128 S. Ct. 537, 169 L. Ed. 2d 377 (2007).
A post-verdict attack on the sufficiency of an indictment should be rejected
unless the indictment failed to give fair notice of the offense charged or
failed to set forth any identifiable offense. Id.; State v. Jones, 49,948 (La.
App. 2 Cir. 09/30/15), 178 So. 3d 1075.
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Although defendant filed a motion to quash prior to trial, that motion
did not allege that the bill of information failed to state which portion of La.
R.S. 14:44.1(A) that he allegedly violated. As such, defendant has arguably
waived any claim based on the allegedly defective bill of information.
Nevertheless, the record establishes that defendant had full knowledge of the
nature of the charges against him. As noted above, the crime of second
degree kidnapping required the state to prove one of the acts in Subsection
(A) and one of the acts in Subsection (B) of La. R.S. 14:44.1. The bill of
information did not specify the particular act under Subsection (A) under
which defendant would be tried. However, the only subsection that could
apply in this case was La. R.S. 14:44.1(A)(3), wherein the victim was
“physically injured or sexually abused,” and defendant was well aware that
the state was proceeding under that portion of Subsection (A). Defendant
was provided with open-file discovery, and at the preliminary examination,
at which defendant was present, the trial judge found that there was probable
cause for the second degree kidnapping charge, specifically noting La. R.S.
14:44.1(A)(3), the “physical injury” provision. Further, defendant has not
claimed that the omission in the bill of information prejudiced his defense in
any way. Therefore, although the bill of information did not allege that the
victim was “physically injured,” defendant was sufficiently informed of the
second degree kidnapping charge against him and was not prejudiced by any
defect in the bill of information at trial. This assignment of error is without
merit.
Error Patent Review
The trial court imposed an illegally lenient sentence for defendant’s
second degree kidnapping conviction. La. C. Cr. P. art. 893(A) provides that
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the court shall not suspend the sentence for certain crimes of violence,
including second degree kidnapping.
La. C. Cr. P. art. 882(A) states that an illegal sentence may be
corrected at any time by the court that imposed the sentence or by an
appellate court on review. This Court’s authority to correct an illegally
lenient sentence is permissive, not mandatory. In this case, neither the state
nor the defense has objected to the sentence imposed by the trial court.
Since this Court is not required to take action, the state has not objected to
the error, and defendant is not prejudiced by the sentence, this Court
declines to correct the illegally lenient sentence. See State v. Weldon, 13
285 (La. App. 3 Cir. 10/23/13), 161 So. 3d 18

Outcome: For the foregoing reasons, defendant’s convictions and sentences are
affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: