Application for rehearing may be filed within the delay allowed by Art. 992, La. C. Cr. P.
Thedious Dewayne Woods
The defendant was charged with attempting to murder Johnny Edwards and Cortez Sheridan. At trial, the state called three witnesses. Monroe Police Department Corporal
The state rested, and the defense called no witnesses.
The jury found Woods guilty of the responsive verdict of aggravated battery as to Count One and not guilty as to Count Two. The trial court ordered a presentence investigation report. Woods filed timely motions for post-verdict judgment of acquittal and for a new trial, both of which were denied. The defendant was sentenced to nine years at hard labor, with credit for time served. Woods filed a motion to reconsider his sentence, which was denied.
Assignment of Error: Insufficiency of Evidence
The defendant argues on appeal:
The state responds that the evidence presented at trial, viewed in a light most favorable to the prosecution, was sufficient to support Woods' conviction. Additionally, there is no other logical explanation for the injuries to Edwards.
Our law on appellate review of sufficiency questions is well settled.
A battery includes the "intentional use of force or violence upon the person of another." La. R.S. 14:33. Aggravated battery is a battery committed with a dangerous weapon. La. R.S. 14:34. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Brown, 24,840 (La. App. 2 Cir. 5/5/93), 618 So.2d 629, writ denied, 93-1449 (La. 9/24/93), 624 So.2d 1222.
When the defendant asserts that he was not the perpetrator, or remains silent, the state bears the burden of negating any reasonable probability of misidentification. State v. Powell, 27,959 (La. App. 2 Cir. 4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La. 2/21/97), 688 So.2d 520; State v. Mickens, 31,737 (La. App. 2 Cir. 3/31/99), 731 So.2d 463, writ denied, 99-1078 (La. 9/24/99), 747 So.2d 1118. It is the province of the jury to resolve conflicting inferences from the evidence. State v. Mickens, supra. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness—if believed by the trier of fact—is sufficient support for a requisite factual conclusion. State v. Jones, 34,863 (La. App. 2 Cir. 8/22/01), 794 So.2d 107, writ denied, 01-2648 (La. 8/30/02), 823 So.2d 938. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence. State v. Mickens, supra.
In this case, there was sufficient circumstantial evidence presented to support Woods' conviction of aggravated battery.
The state was required to prove beyond a reasonable doubt that Woods intentionally used force or violence upon Edwards with a dangerous weapon. Sheridan testified that Woods pointed a revolver at him and twice pulled the trigger, misfiring both times. As he ran away, Sheridan saw Edwards try to disarm Woods. Six or seven seconds later, he heard three or four gunshots behind him.
While Sheridan did not actually see Woods shoot Edwards, the timing between Woods shooting at Sheridan for the second time, Sheridan running away, and then hearing gunshots provide strong circumstantial evidence that Woods was the shooter. Sheridan's testimony establishes that only Woods was in possession of the revolver seconds before Edwards was shot. There is no evidence that any other person at the scene had a gun or threatened Edwards and Sheridan. Sheridan's story is further corroborated by Cpl. Gray's and Det. Kent's testimonies, who determined that Woods was the man who shot him.
Woods' intent to harm Sheridan and Edwards can be discerned from Woods drunkenly muttering, "Somebody gonna get shot tonight. Might as well be one of y'all." Also, by introducing the defense of intoxication, Woods essentially admitted to being at the scene on September 20, 2015.
Ultimately, it was the jury's decision to believe Sheridan's testimony and draw conclusions based on the circumstantial evidence provided. As the jury's decision was based on a credibility call, it cannot be disturbed on appeal.
A review of the record reveals that the defendant was not advised as to the time delays for filing an application for post-conviction relief, in compliance with La. C. Cr. P. art. 930.8. La. C. Cr. P. art. 930.8(C) is supplicatory language that does not give an enforceable right to an individual defendant. State v. Williams, 34,936 (La. App. 2 Cir. 9/26/01), 795 So.2d 1221. The failure to advise a defendant of these rights is not grounds to vacate the sentence and remand for resentencing. Id. at 1223; State v. Cooper, 31,118 (La. App. 2 Cir. 9/23/98), 718 So.2d 1063, writ denied, 99-0187 (La. 5/14/99), 741 So.2d 663.
Through this opinion, we now advise the defendant that no application for post-conviction relief, including applications to seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922. See State v. Pugh, 40,159 (La. App. 2 Cir. 9/21/05), 911 So.2d 898; State v. Williams, 50,852 (La. App. 2 Cir. 9/28/16), 207 So.3d 552.
This conviction and sentence are AFFIRMED.
The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in a light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Speed, 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied, 09-0372 (La. 11/6/09), 21 So.3d 299.
Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Broome, 49,004 (La. App. 2 Cir. 4/9/14), 136 So.3d 979, writ denied, 14-0990 (La. 1/16/15), 157 So.3d 1127. If a case rests essentially upon circumstantial evidence, that evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438; State v. Gipson, 45,121 (La. App. 2 Cir. 4/14/10), 34 So.3d 1090, writ denied, 10-1019 (La. 11/24/10), 50 So.3d 827; State v. Broome, supra.
When an investigating officer testifies concerning events which lead to the arrest of a defendant, statements made to the officer during the course of the investigation are not hearsay, if they are merely offered to explain the officer's actions. State v. Zeigler, 40,673 (La. App. 2 Cir. 1/25/06), 920 So.2d 949, writ denied, 06-1263 (La. 2/1/08), 976 So.2d 708.
The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court affords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La. App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied, 07-1209 (La. 12/14/07), 970 So.2d 529. Likewise, a reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La. 1/26/00), 775 So.2d 1022; State v. Thomas, 50,898 (La. App. 2 Cir. 11/16/16), 209 So.3d 234.