81 So. 3d 145
La. Ct. App.2011Background
- Defendant was charged with two counts of attempted first and second degree murder; the counts were amended to allege attempted second degree murder of Kendra in count two.
- Trial proceeded before a 12-person jury; the jury convicted on the responsive verdict of two counts of aggravated battery and the court sentenced concurrent ten-year terms.
- A multiple offender bill was filed and later dismissed; defendant appeals challenging the aggravated battery convictions.
- Facts show Kendra and D.O. were threatened and shot at; physical evidence included bullets and shell casings in both bedrooms and a spent shell in the mattress.
- Defendant admitted, in a post-arrest statement, that a dispute occurred and a gun was fired during a struggle with Kendra and D.O.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supports aggravated battery as a lawful responsive verdict | Alsay argues no evidence showed a battery or use of a weapon against the victims. | Alsay contends aggravated battery requires force/weapon, which was not proven; intent to kill not shown. | Evidence supports attempted murder convictions; aggravated battery affirmed only as responsive verdict. |
Key Cases Cited
- State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La. 1982) (aggravated battery not essential element of attempted murder; responsive verdict allowed)
- Blackburn, 424 So.2d 246 (La. 1982) (recognizes responsive verdict rationale for aggravated battery)
- State v. Austin, 900 So.2d 867 (La. App. 5th Cir. 2005) (adequacy of evidence for charged offenses governs; responsive verdict safe if supported)
- State v. Cepriano, 767 So.2d 893 (La. App. 5th Cir. 2000) (specific intent required for attempt; act tending toward result proves ability to convict)
- State v. Lewis, 698 So.2d 456 (La. App. 5th Cir. 1997) (specific intent may be inferred from circumstances)
- State v. Noble, 425 So.2d 734 (La. 1983) (specific intent may be inferred from firing at a person)
- State v. Templet, 943 So.2d 412 (La. App. 1st Cir. 2006) (reiterates inferability of specific intent from conduct)
- State v. Butler, 850 So.2d 932 (La. App. 2d Cir. 2003) (case law supporting inference of intent from actions)
- State v. Slang, 646 So.2d 1037 (La. App. 5th Cir. 1994) (discusses sufficiency and related evidentiary standards)