State v. HowardState v. Howard
In a bill of indictment filed on May 24, 1982, defendant, Grover B. Howard, was charged with violation of
On March 24,1982, at about 9:41 p.m., the defendant, Grover B. Howard, was found unconscious in his vehicle by two uniformed officers of the Jefferson Parish Sheriff’s Office. The car was resting on top of a fire hydrant. The officers were eventually able to wake the defendant at which point he got out of his car and walked to the rear of the vehicle where he urinated, soiling his clothes. Deputy Gray Thurman then approached the defendant and asked for some identification. The defendant gave no response, but suddenly punched the deputy in the middle of his chest. The other deputy attempted to subdue the defendant, but was resisted. Consequently, two more deputies were summoned to the scene and the defendant, after about ten to fifteen minutes of struggle, was placed in the rear seat of the police vehicle.
Secured in the rear of the car, the defendant continued to struggle and attempted to kick оut the windows. The subject’s legs were restrained and he was subsequently transported to the Third District Station and then to the Jefferson Parish Correctional Center. Dеputy Thurman sustained a hairline fracture above his right eye as a result of this incident.
Defendant appeals his conviction, asserting as error that no rаtional trier of fact could have found defendant guilty of bat
The defense submits that battery on a police officer requires the special knowledge that a person is a “commissioned officer acting in the performance of his duty”,
In summation, defense contends that the evidence of the defendant’s general demeanor and his failure to even acknowledge the officers’ presence was suсh that no rational trier of fact could have found that the essential element of specific intent was proven beyond a reasonable doubt. We agree.
The fact of an intoxicated or drugged condition of the offender at the time of the commission of the crime is immaterial, except as follows:
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(2) Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for thаt crime.
Battery is defined as “the intentional use of force or violence upon the person of another....”
The only difference between Article 35 and Article 34.2 is the addition of the element of the special knowledge that the victim is an on-duty police officer.
The Jackson standard рrovides that a verdict must be set aside, if when the evidence is viewed in the light most favorable to the prosecution, ■ a rational trier of fact cоuld not conclude that all of the elements of the offense have been proven beyond a reasonable doubt. When the conviction, however, depends upon circumstantial evidence,
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 Louisiana Supreme Court has in rеcent years articulated several different approaches in correlating the Jackson standard and the revised statute.
“Where an essential element of the crime is not proven by direct evidence,LSA-R.S. 15:438 applies. That rule restrains the fact finder, as well as the reviewer on appeal, to accept as prоven all that the evidence tends to prove and then to convict only if every reasonable hypothesis of innocence is excluded.” [p. 1097]
Whilе this court recognizes the disparity in the Supreme Court’s analysis of Jackson and
LSA-C.Cr.P. art. 821(E) states that:
If the appellate court finds that the evidence, viewed in a light most favorable to the State, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsivе offense.
The court in State v. Byrd,
[W]hen it is clear from the verdict that the trial judge or jury necessarily found the elements of a lesser and included offense had been proved beyond a reasonable doubt, and the state, constrained by the double jeopardy clause, cannot seek anew a conviction on thе greater offense, a remand for a new trial would serve no useful purpose. [Citations omitted]
[See also State v. Greenway,422 So.2d 1146 (La.1982).]
LSA-C.Cr.P. art. 814 does not give responsive verdicts for the crimе of battery on a police officer; however, Article 815 states, “[i]n all cases not provided for in Article 814, the following verdicts are responsive:
(1) Guilty;
(2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or
(3)Not guilty.”
Simple battery is a lesser and included grade of the offense of battery on a police officer and, therefore, is a responsive verdict to the crime originally charged.
Therefore, after a review of the record and the law, the conviction of battery on a police offiсer is vacated. Since the evidence supports a conviction of simple battery, a judgment of conviction of that lesser and included grade of the aforementioned offense will be entered. LSA-C.Cr.P. art. 814; LSA-C.Cr.P. art. 815; LSA-C.Cr.P. art. 821(E); State v. Byrd, supra; and State v. Greenway, supra.
Defendant, Grover B. Howard, is guilty of violating
CONVICTION SET ASIDE; NEW CONVICTION ENTERED; REMANDED.
Notes
. State v. Austin,