text:
    STATE of Louisiana, Appellee v. Terry Wayne SULLIVAN, Appellant.
    No. 49,183-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.

      Teresa C. Carroll, Jonesboro, for Appellant.
    Jerry L. Jones, District Attorney, Brandon B. Brown, George M. Campbell, Jr., Assistant District Attorney, for Appellee.
    Before WILLIAMS, STEWART and PITMAN, JJ.
   WILLIAMS, J.

b The defendant, Terry Wayne Sullivan, was charged by amended bill of information with aggravated second degree battery, a violation of LSA-R.S. 14:34.7, resisting an officer with force, a violation of LSA-R.S. 14:108.2, simple battery, a violation of LSA-R.S. 14:35, and simple criminal damage to property, a violation of LSA-R.S. 14:56. After a trial, defendant was found guilty of the responsive verdict of attempted resisting an officer, a violation of LSA-R.S. 14:108 and 14:27. He was found guilty as charged of the other offenses. The trial court sentenced defendant to serve 15 years at hard labor for the conviction of aggravated second degree battery, three months for attempted resisting an officer, six months for simple battery and six months for simple criminal damage to property, with the sentences to be served concurrently. Defendant was also ordered to pay restitution and prohibited from contacting the victims. Defendant appeals his conviction and sentence for aggravated second degree battery. For the following reasons, we affirm the defendant’s convictions and sentences.

FACTS

The record shows that on February 7, 2012, the defendant was involved in a physical altercation at the home of his maternal grandmother and step-grandfather, Patsy and Tommy Williams. Defendant had lived with the Williams until a few months earlier, when they told him to leave after he became drunk and damaged some of their personal property. Following that incident, he resided with his paternal grandfather, James Sullivan. On the day in question, the defendant had been drinking before he went to his grandparents’ home with Michael Wimberly and James Sullivan 12to get a television. After arriving, defendant spoke with the Williams, who asked if he had been drinking. Defendant seemed angered by the question and he and Wimberly loaded the TV into the truck. Mr. Williams heard defendant yelling and went outside. As Williams walked from his porch, he was approached by defendant. Williams pushed defendant away and instructed him to leave because he was drunk. Defendant then threw Mr. Williams to the ground and his arm was cut. As he stood up, Mr. Williams’ arm began to bleed profusely because of blood thinners that he was taking due to a prior stroke. Defendant was aware of Mr. Williams’ stroke and a prior heart surgery.

Mrs. Williams then instructed Wimberly to call 911. A recording of that call was introduced as Exhibit S-2 and played for the jury. According to Wimberly, when defendant heard that instruction he stated “if I’m going to jail, going to make it worthwhile.” Defendant then pushed Mr. Williams down again and began repeatedly punching the older man. Wimberly gave the phone to Mrs. Williams, who told the 911 dispatcher that her grandson was drunk and that he was hitting Mr. Williams. She then stated that Mr. Williams was bleeding “all over the place.”

Approximately five minutes into the 911 call, the phone was passed to Wimberly, who identified himself as a friend of defendant. Wimberly stated, “he just kicked his grandpa” and that defendant was repeatedly punching Mr. Williams in the head. Wimberly later testified that defendant kicked Mr. Williams two or three times and “speared” him a number of times, referring to a form of kick in which defendant ran toward Mr, |3Williams and kicked him. Mr. Williams was kicked in the face at least once. At some point, Mrs. Williams went into the house and retrieved a baseball bat. Although she struck defendant over the back with the bat, he continued beating Mr. Williams. While trying to intervene, Mrs. Williams was thrown to the ground three times by defendant. Mr. Williams later estimated that he was punched 50 to 75 times. He did not recall whether he was kicked and stated that he was nearly unconscious and could not see due to the amount of blood in his face. During his tirade, defendant also destroyed the lattice surrounding the porch and a yard ornament.

Corporal Jim Funderburk, of the Oua-chita Parish Sheriffs Office, testified that he arrived at the scene approximately 19 minutes after the 911 call was placed and observed defendant running toward Mr. Williams. Cpl. Funderburk exited his vehicle with his Taser drawn and instructed defendant to lie on the ground. Defendant lay on the ground, but jumped up and turned toward Cpl. Funderburk as he approached to handcuff defendant. In response, Cpl. Funderburk deployed his Ta-ser to subdue defendant, who was arrested and transported to the jail.

Mr. Williams was transported to the hospital. Cpl. Funderburk arrived at the hospital approximately 85 minutes later and took photographs of Mr. Williams’ injuries, which included the abrasions and torn skin of his arm and his swollen face and eye. Cpl. Funderburk testified that, upon his arrival at the hospital, Mr. Williams’ nose was still heavily bleeding. Mr. Williams testified that his eye socket was broken in two places, requiring surgery, that he had double vision for approximately two weeks afterward |4and that his eyesight remains worse than it was prior to this incident. He also sustained a broken nose, for which he sought treatment on more than one occasion due to hemorrhaging.

The defendant was charged with aggravated second degree battery upon Tommy Williams, simple battery upon Patsy Williams, resisting an officer with force or violence upon Cpl. Funderburk, and simple criminal damage to property. At the preliminary examination, Cpl. Funderburk testified that he did not observe any weapons being used during the attack, but that defendant was kicking Mr. Williams while wearing shoes, which the officer believed would aggravate any injuries. He could not recall what type of shoes defendant was wearing. The court did not find probable cause for the charged offense of aggravated second degree battery, based on the lack of evidence of a dangerous weapon, but did find probable cause for the charges of second degree battery, resisting an officer by force or violence, simple battery and simple criminal damage to property.

At the outset of the trial, defendant moved for a recess, arguing that he had not understood the state’s previous plea offer of 5 years in exchange for a guilty plea, because his counsel had not adequately explained that defendant could still be tried for aggravated second degree battery despite the court’s finding at the preliminary exam. The prosecutor explained that the state had withdrawn the offer after it was declined by defendant. The court denied the defense motion for additional time to consider a plea offer, finding that the offer had been withdrawn by the state.

Before evidence was presented at trial, the state filed a motion in | Jimine based upon a belief that defendant would seek to argue intoxication as a defense and that he should be precluded from doing so because of the failure to provide adequate notice. The defense argued that the crime of aggravated second degree battery does not require specific intent and, therefore, no notice of the defense of intoxication was required. Concluding that aggravated second degree battery is a specific intent crime, the trial court granted the state’s motion, prohibiting the defendant from asserting the defense of intoxication or requesting jury instructions regarding intoxication. The court noted that the intoxicated condition of the defendant would come out during testimony, but that the defense could not argue that the intoxication precluded the specific intent required for the crime.

After the state’s opening statement, the defense counsel waived his right to make an opening statement. Following the conclusion of the state’s case, defense counsel stated before the jury that he wished to call defendant to the stand. The jury was excused and the court reminded defendant of his right to remain silent. Defendant then withdrew his request to testify. Instead, when the jury returned, the defense chose to call the defendant’s mother, Rhonda Sullivan, who stated that her son was a very caring person, who only became “boisterous” when drinking. The defense rested following the testimony of Ms. Sullivan.

The jury returned a verdict of guilty of aggravated second degree battery, as charged, and guilty of attempted resisting an officer, a responsive verdict. The misdemeanor charges of simple battery and simple criminal damage to property were tried by the court, which found defendant guilty |(jOf both offenses. A pre-sentence investigation report was ordered and showed defendant’s two prior convictions for DWI and possession of marijuana.

At sentencing, the trial court reviewed the facts of the offenses, noting the severe injuries sustained by Mr. Williams, including numerous broken bones in the face which necessitated surgery. The court emphasized the violent nature of the unprovoked attack and the familial relationship between defendant and Mr. Williams. The court noted the testimony that, despite attempts by others to intervene, defendant continued to beat Mr. Williams until law enforcement arrived. The court found that although defendant initially complied with the police officer’s instructions, he then became aggressive toward Cpl. Funderburk, requiring him to employ his Taser to subdue defendant.

The court considered the sentencing factors of LSA-C.Cr.P. art. 894.1, finding an undue risk that defendant would commit another crime during a period of suspended sentence or probation, that he was in need of correctional treatment, and that a lesser sentence would deprecate the serious nature of the offense. No mitigating factors were noted. The court found that the maximum sentence was appropriate and not grossly disproportionate to the seriousness of the offense, despite the fact that this was defendant’s first felony conviction. Defendant was sentenced to 15 years at hard labor for the conviction of aggravated second degree battery, three months without hard labor for the conviction of attempted resisting an officer, six months for the conviction of simple battery and six months for the conviction of simple criminal damage to property. The sentences were |7to be served concurrently. Defendant was ordered to pay restitution of $6,565.98 and lifetime protective orders were issued prohibiting defendant’s contact with the victims.

This appeal followed. The defendant then filed a motion with this court seeking to supplement the record with a transcript of an alleged appearance in September 2012 and defendant’s letter declining a plea offer referenced by the state at the start of trial. This court denied the defendant’s motion, finding that the district court was in a better position to address the matter, as there was no indication in the record that the court appearance took place or that the letter had been admitted into evidence. State v. Sullivan, 49,183 (La.App.2d Cir.3/21/14).

DISCUSSION

The defendant contends the evidence presented does not support his conviction. Defendant argues that the state failed to prove his specific intent to commit aggravated second degree battery or that he used his tennis shoes as a dangerous weapon.

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, 2001-1658 (La.5/20/03), 851 So.2d 921. 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 accords great 1 ^deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913, cert. denied, 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010); State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

Direct evidence provides proof of the existence of a fact, for example, a witness’s testimony that he saw or heard something. State v. Lilly, 468 So.2d 1154 (La.1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id. When the state relies on circumstantial evidence to establish the existence of an essential element of a crime, the court must assume every fact that the evidence tends to prove and the circumstantial evidence must exclude every reasonable hypothesis of innocence. LSA-R.S. 15:438; State v. Lilly, supra; State v. Robinson, 47,437 (La.App.2d Cir.11/14/12), 106 So.3d 1028, writ denied, 2012-2658 (La.5/17/13), 117 So.3d 918. The trier of fact is charged with weighing the credibility of this evidence and on review, the same standard as in Jackson v. Virginia is applied, giving great deference to the fact finder’s conclusions. State v. Hill, 47,568 (La.App.2d Cir.9/26/12), 106 So.3d 617.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its ^sufficiency. State v. Glover, 47,311 (La.App.2d Cir.10/10/12), 106 So.3d 129, writ denied, 2012-2667 (La.5/24/13), 116 So.3d 659; State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299. The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness in whole or in part; the 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, cert. denied, 531 U.S. 840,121 S.Ct. 104,148 L.Ed.2d 62 (2000); State v. Woodard, 47,286 (La.App.2d Cir.10/3/12), 107 So.3d 70, writ denied, 2012-2371 (La.4/26/13), 112 So.3d 837.

A battery is the intentional use of force or violence upon another. LSA-R.S. 14:33. The crime of aggravated second degree battery is defined as “a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury.” LSA-R.S. 14:34.7(A). A “dangerous weapon” may include “any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” LSA-R.S. 14:2(A)(3).

Numerous everyday items have been held to constitute a “dangerous weapon,” including “a stick, an ink pen, rum, a tennis shoe, and a metal pipe.” State v. Pamilton, 43,112 (La.App.2d Cir.3/19/08), 979 So.2d 648, 654. In State v. Munoz, 575 So.2d 848 (La.App. 5th Cir.1991), the Fifth Circuit Court of Appeal found that rubber-soled tennis shoes, used to kick the victim forcefully in the head, constituted a “dangerous weapon.” This |incourt has also found that a tennis shoe was a dangerous weapon when the victim is kicked in the head, causing the victim to bleed profusely. State v. Taylor, 485 So.2d 117 (La.App. 2d Cir.1986). Whether a weapon is dangerous is a factual question for the jury to determine upon considering the character of the weapon, by whom, upon whom, and in what manner it was used. State v. Pamilton, supra.

Criminal intent may be specific or general. State v. Fuller, 414 So.2d 306 (La.1982). Proof of specific intent is required where the statutory definition of a crime includes the intent to produce or accomplish some prescribed consequence. State v. Johnson, 368 So.2d 719 (La.1979); State v. Elzie, 343 So.2d 712 (La.1977). Second degree battery and aggravated second degree battery are both crimes requiring specific intent. State v. Speed, supra. Although intent is a question of fact, it need not be proven as a fact; instead, it may be inferred from the circumstances of the transaction. State v. Fuller, supra. Specific intent exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10(1); State v. Speed, supra.

In this ease, the defendant does not contest that the first element of an aggravated second degree battery, the commission of a battery, was proven. The defense asserts there was no evidence presented to show that defendant used his tennis shoes in a manner likely to inflict great bodily harm. To support his position, defendant points to the testimony of Mrs. Williams, who did not see defendant kick Mr. Williams, and Mr. Williams, who does |n not recall whether he was kicked. However, Mrs. Williams did not see the entirety of the attack, as she entered the house at least twice, and Mr. Williams testified that he was partially unconscious and could not see due to blood in his eyes. In contrast, an eye witness who viewed the entire altercation, Michael Wimberly, informed the 911 dispatcher at the time of the offense that defendant kicked Mr. Williams at least two times, and one of those kicks was to Mr. Williams’ head.

It is not disputed that defendant was wearing tennis shoes during the attack. Whether the defendant’s tennis shoe constitutes a dangerous weapon is a factual question for the jury to determine based upon the circumstances of the offense. In this case, the jury heard the testimony regarding defendant’s behavior before and during the attack and testimony describing the victim’s injuries. The jury found credible Wimberly’s testimony that defendant kicked Mr. Williams to cause some of the injuries. This court must accord great deference to the credibility determinations made by the jury. Based on the testimony presented, we cannot say the jury was clearly wrong in finding that the tennis shoes worn by defendant during this offense were used as a dangerous weapon.

In addition, the record shows that defendant intended to inflict serious bodily injury and that the victim suffered such an injury as a result of defendant’s actions. “Serious bodily injury” means 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.

11214:34.7. The injuries inflicted need not be permanent. State v. Harris, 42,376 (La. App.2d Cir.9/26/07), 966 So.2d 773.

At trial, Mr. Williams testified that he suffered extreme physical pain both during and after this attack. Both Wimberly and Mrs. Williams testified to the large amount of blood lost by Mr. Williams. Photographs in evidence show abrasions to Mr. Williams’ arm and face, as well as a severely swollen eye. Mr. Williams underwent surgery in which a plate was inserted to support his eye socket and his vision had not fully recovered at the time of trial. Further, defendant continued to punch and kick Mr. Williams for at least 19 minutes despite his visible injuries and the attempts of witnesses to stop defendant. The severity of the injuries suffered and the duration of the attack support a finding that defendant intended to inflict serious bodily injury.

Based upon the evidence presented, a rational trier of fact could have found that the elements of aggravated second degree battery were proven beyond a reasonable doubt. Thus, this assignment of error is without merit.

Defense of Intoxication

The defendant contends the trial court erred in not allowing trial counsel to conduct voir dire regarding intoxication and in refusing to give the jury an instruction regarding the affirmative defense of intoxication. Defendant argues that the lack of prior notice did not result in unwarranted prejudice in this case, as the state was aware of the evidence showing that the defendant was intoxicated at the time of the offense.

When “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 that crime.” LSA-R.S. 14:15(2). The offense of aggravated second degree battery is a specific intent crime. State v. Speed, supra. If a defendant intends to introduce testimony relating to a mental disease, defect, or other condition bearing upon the issue of whether he had the mental state required for the offense charged, he shall not later than ten days prior to trial or such reasonable time as the court may permit, notify the district attorney in writing of such intention. LSA-C.Cr.P. art. 726(A). Upon a failure to provide the required notice, the court may exclude the testimony of any witness offered by the defendant on the issue of such condition. LSA-C.Cr.P. art. 726(B).

Initially, we note that the trial court allowed defendant’s counsel to question prospective jurors regarding their feelings about those who become intoxicated. Thus, defendant’s contention that the trial court refused to allow his counsel to conduct voir dire regarding intoxication lacks merit.

Because the crime of aggravated second degree battery requires proof of specific intent, the intended use of the defense of voluntary intoxication to preclude the presence of such intent must be disclosed at least ten days prior to the commencement of trial. In this case, it is undisputed that the defendant’s trial counsel did not provide notice to the state that he intended to assert the defense of voluntary intoxication prior to the beginning of trial. The trial court has the discretion to exclude evidence related to the defense if proper notice is not provided. In State v. Trahan, 576 So.2d 1 (La.1990), |14the supreme court held that the trial court properly excluded evidence related to defendant’s intoxication because the record did not demonstrate that defendant gave the required notice under Article 726. The Court noted that without notice, the state could not properly prepare its case.

Here, in a similar manner, defendant’s failure to provide advance notice of the intent to assert the affirmative defense of voluntary intoxication was prejudicial to the state, which was prevented from preparing the evidence tending to prove that defendant’s level of intoxication did not preclude the presence of the specific intent necessary to commit aggravated second degree battery. Consequently, the trial court properly refused to allow defendant to assert the defense of voluntary intoxication and refused to give the jury instructions on that defense. Thus, the assignments of error lack merit.

Plea Offer

The defendant contends the trial court erred in failing to grant a continuance or recess of trial to ascertain the status of a previous plea offer. Defendant argues that he should have been allowed to accept the state’s previous plea offer because his attorney failed to adequately explain that he would be tried for the offense of aggravated second degree battery.

A continuance is the postponement of a scheduled trial or hearing. A recess is a temporary adjournment of a trial or hearing that occurs after the proceeding has commenced. LSA-C.Cr.P. art. 708. In State v. Louis, 94-0761 (La.11/30/94), 645 So.2d 1144, the supreme court held that contractual principles may be helpful by analogy in deciding disputes | ^involving plea agreements. However, the Louis opinion and cases cited therein all involved the interpretation of plea agreements that were reached between the prosecuting authority and the defendant. In State v. Walker, 32,342 (La.App.2d Cir.9/24/99), 747 So.2d 133, this Court distinguished between cases that involved plea agreements reached and those in which no plea agreement was reached between the defendant and the state.

Regardless of the argument asserted by the defense, the trial court did not err in denying a continuance or recess with respect to the plea offer. First, the trial court did take time prior to jury selection to determine the status of the plea offer. At that time, the state had withdrawn the offer and wished to proceed to trial. Second, the defense argues that the trial court should have granted a continuance or recess of the scheduled trial date because the defendant did not understand the terms of the plea offer, so no agreement was reached between the defendant and the state.

The trial court determined that the defendant had refused the plea offer based upon the argument of counsel and the defendant’s letter produced by the state. That letter is not contained in the record, so this court must rely upon the trial court’s acceptance of its contents. A plea offer is revocable and the state may withdraw that offer if it is not accepted by defendant. Because the state had withdrawn the plea offer, the trial court had no reason to grant a continuance or recess on that matter. This assignment of error is without merit.

Ineffective Assistance of Counsel

The defendant contends he was denied his right to the effective | ^assistance of counsel. Defendant argues that his right to a fair trial was prejudiced because his attorney failed to give the proper notice for an affirmative defense of voluntary intoxication, waived his right to present an opening statement, incorrectly stated that the defendant would testify in the presence of the jury and failed to file any post-trial motions.

A defendant’s right to counsel is guaranteed by the federal and Louisiana constitutions. U.S. Const. Amend. VI; La. Const. Art. 1, § 13. As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing on the issues relating to counsel competence under LSA-C.Cr.P. art. 980. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139, writ denied, 07-2190 (La.4/4/08), 978 So.2d 325.

In the present case, we note that defense counsel’s mistaken belief that aggravated second degree battery is not a specific intent crime and his failure to provide the proper notice to the state of the potential defense of intoxication precluded defendant from asserting an applicable defense at trial. After considering the matter, we conclude the record does not contain sufficient evidence to resolve defendant’s ineffective assistance of counsel claim on direct review. Defendant may raise this issue by PCR application. Sentencing

The defendant contends the trial court erred in imposing an excessive sentence. Defendant argues that the maximum sentence imposed is grossly 1^disproportionate to the offense because defendant is a first felony offender.

In reviewing a sentence for excessiveness, the appellate court applies a two-pronged test. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Watson, 46,-572 (La.App.2d Cir.9/21/11), 73 So.3d 471. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166.

The trial court is given wide discretion in the imposition of sentences within the statutory limits. The sentence imposed ■will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Diaz, 46,750 (La. App.2d Cir.12/14/11), U81 So.3d 228. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, supra; State v. Free, 46,894 (La. App.2d Cir.1/25/12), 86 So.3d 29.

As a general rule, maximum or near maximum sentences are reserved for the worst type of offenders. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802. The sentence for a conviction of aggravated second degree battery is a fine of not more than $10,000 or imprisonment, with or without hard labor, for not more than fifteen years, or both. LSA-R.S. 14:34.7.

Prior to imposing sentence, the district court reviewed a presentence investigation (“PSI”) report, which showed a prior misdemeanor conviction for possession of marijuana. The trial court carefully reviewed the factors set forth in Article 894.1. The court noted the violent and continued nature of the attack, which lasted at least 19 minutes. The court also focused upon the prior close, familial relationship between defendant and the victim, the grandfather of defendant. The court, in finding an undue risk that defendant would commit another offense if released, noted the statement by the victim’s daughter that defendant had threatened to kill his grandparents upon release from jail. In addition, the court found that defendant’s violent acts manifested deliberate cruelty to the victim and that defendant knew the victim was incapable of resistance due to his age and ill health.

In their statements for the PSI, both Mr. and Mrs. Williams expressed their desire that defendant be incarcerated. In his statement, defendant l1fladmitted to a problem with alcohol, which he claims was a factor in this offense, but said he had not sought treatment on his own. The court noted that defendant was a first felony offender, but pointed out that defendant repeatedly punched and kicked the defenseless victim despite his awareness of his grandfather’s vulnerable condition.

This record supports the court’s finding that any lesser sentence would deprecate the seriousness of the offense committed. Although harsh, the sentence imposed does not shock the sense of justice in light of the pain, suffering and fear inflicted on the elderly victims by defendant’s repeated attacks. Consequently, we cannot say the trial court abused its discretion in sentencing this defendant. Thus, this assignment of error lacks merit.

CONCLUSION

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

AFFIRMED.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Douglas Fredrick FINLEY, Appellant.
    No. 49,184-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.

      Douglas Fredrick Finley, Pro Se.
    Edward John Marquet, Lafayette, Louisiana Appellate Project, for Appellant.
    Robert W. Levy, District Attorney, Laurie Lee Whitten James, Michael Shane Frederick, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and LOLLEY, JJ.
   LOLLEY, J.

It Douglas Fredrick Finley was convicted by a jury of one count of sexual battery and sentenced to serve 6 1/4 years’ imprisonment at hard labor without parole. He appealed, but appellate counsel filed a motion to withdraw, together with a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that there are no nonfrivolous issues upon which to base an appeal. For the reasons stated herein, the motion to withdraw is granted, and Finley’s conviction and sentence are affirmed.

Facts

On February 22, 2011, Finley was charged by bill of information with one count of sexual battery, a violation of La. R.S. 14:43.1. It was alleged that Finley intentionally touched the genitals of R.N., a 15-year-old juvenile, without her consent, while she was staying with Finley’s daughter at his residence. Following his arrest, Finley waived formal arraignment and pled not guilty to the charge. Prior to trial, the state filed a notice of intent to use evidence of similar crimes pursuant to La. C.E. art. 412.2, specifically a 2002 conviction for indecent behavior with juveniles.

The matter came before a six-person jury on October 16, 2011. Both the victim and the defendant, among other witnesses, testified during trial. At trial, the defense conceded the admissibility of Finley’s prior conviction for a similar sex offense. The case was submitted to the jury for deliberations, and on October 17, 2011, the jury returned a unanimous verdict of guilty of sexual battery.

|aA presentence investigation report (“PSP’) was ordered and sentencing was held on January 31, 2013. The trial court recited the mitigating and aggravating circumstances, after permitting a statement by Finley’s wife. The trial court sentenced Finley to serve six years and three months at hard labor, without probation, parole, or suspension of sentence. Finley received written notification of sex offender registration requirements and post-conviction relief delays. Finley did not file a motion to reconsider sentence.

On February 28, 2013, Finley’s trial counsel filed a motion and order for appeal, which the trial court granted. However, Finley’s trial counsel was allowed to withdraw as counsel of record for the purposes of direct appeal, and the Louisiana Appellate Project was appointed to represent him.

This appeal followed, and Finley’s appellate counsel has filed an Anders brief, seeking to withdraw, on grounds that he could find no nonfrivolous issues to raise on appeal. See Anders v. California, supra; State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.04/28/95), 653 So.2d 1176; and, State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir. 1990).

On March 26, 2014, this court issued an order holding the motion to withdraw in abeyance, rescinding the pro se briefing deadline, and notifying Finley that he could file a brief in this appeal within 30 days of the date of the order and file a request to view the appellate record within 10 days of the date of the order. Finley was further advised that if no brief was timely Ufiled, the appellate record would be reviewed only for error patent. Nonetheless, Finley failed to file a supplemental brief in his appeal within the allocated time period in which to do so.

Discussion

Appellate counsel’s brief, containing no assignments of error, conforms with the procedures set forth in Anders and Jyles, supra. The brief outlines the procedural history of the case and the action of the trial court. The brief also contains “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra. Defense counsel further verifies in his certificates of service that he has mailed copies of the motion to withdraw and appellate brief to the defendant, in accordance with Anders, Jyles, Mouton, and Benjamin, supra.

After a careful review of the record, we are in agreement with appellate counsel that there are no nonfrivolous issues and no rulings which arguably support an appeal. The bill of information was in proper form and signed by an assistant district attorney. The minutes reflect that the defendant was present at all critical stages of the prosecution. The only evidentiary issue of note was the admission of evidence of the defendant’s prior conviction. However, at trial and without objection, defense counsel acknowledged the admissibility of this prior conviction for indecent behavior with a juvenile. This evidence was admissible under La. C.E. art. 412.2 and not more prejudicial than probative under La. C.E. art. 403.

14A review of the record reveals that the victim’s testimony proved every essential element of sexual battery. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gul-lette, 43,032 (La.App.2d Cir.02/13/08), 975 So.2d 753.

Here, the jury chose to believe the testimony of the victim and reject the testimony of the defendant. As outlined in the detailed recitation of the facts in counsel’s Anders brief, an examination of the evidence reveals nothing to undermine that choice. 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 accords 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.2d Cir.05/09/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

Finally, Finley was sentenced within the statutory guidelines provided in La. R.S. 14:43.1 and to a slightly greater than mi-drange sentence. The trial court correctly took cognizance of the sentencing guidelines in La.C.Cr.P. art. 894.1 and the sentence is not excessive given Finley’s prior conviction for a similar offense.

In conclusion, we agree with Finley’s appellate counsel that this matter has no nonfrivolous issues to raise on appeal. Further, we have examined the record for error patent and found none. So considering, we |fihereby grant the motion to withdraw filed by appeal counsel and the conviction and sentence of Douglas Fredrick Finley are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.


author: COOKS, Judge.

text:
    Clyde SNIDER, Jr. et ux v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, et al.
    No. 12-1068.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 27, 2014.
    Broussard, Halcomb & Vizzier, Daniel E. Broussard, Jr., Alexandria, LA, Attorney for Plaintiffs/Appellants Clyde Snider, Jr. et ux.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Benjamin J. Guilbeau, Jr., Lake Charles, LA, Attorney for Defendant/Appellee Louisiana Medical Mutual Insurance Comp., et al.
    Court composed of SYLVIA R. COOKS, BILLY H. EZELL and JAMES DAVID PAINTER, Judges.
   COOKS, Judge.

h PROCEDURAL HISTORY

The Louisiana State Supreme Court in Clyde Snider, Jr. Et Ux. v. Louisiana Medical Mutual Insurance Company, Et al., 13-579, (La.12/10/13), 130 So.3d 922, reversed this court’s decision in which we found the jury committed legal error in rendering a verdict finding Dr. Yue did not commit medical malpractice. It then remanded the case for this court to consider all of Plaintiffs’ assignments of error including those not previously addressed by this court. On first review we found Plaintiffs alleged consent to the surgical procedure, which is the focus of his malpractice claim, did not constitute informed consent as required by La. R.S. 40:1299.40. We held the jury legally erred in finding the contrary, and we reversed the jury’s verdict. The supreme court has instructed us on remand to reconsider that issue applying the manifest error standard of review. The supreme court also declared that “compliance with the requirement of informed consent was alternatively attainable under Subsection (A) or (C) of LSA-R.S. 40:1299.40.” Id. at 939. In accordance with the supreme court’s instruction we have reviewed the matter applying the appropriate standard of review on the issues presented by Plaintiff.

RELEVANT FACTS

Clyde Snider, Jr. (Snider) received medical treatment from Dr. Robin Yue (Dr. Yue) at Beauregard Memorial Hospital (Beauregard) in August 2007. Dr. Yue performed a pacemaker implant on Snider. Snider, only twenty-six years old, had a personal and family history of heart trouble, diabetes, and high blood pressure. Snider’s primary cardiologist was ■ Dr. J. King White, M.D. (Dr. White) at Christus St. Patrick Hospital (St. Patrick) in Lake Charles, Louisiana. Snider went to the Emergency Room at Beauregard on August 28, 2007, because he was ^experiencing chest pain and had a low pulse rate. According to Dr. Yue’s testimony, Snider’s pulse rate was below normal but was not so low as to constitute an emergency situation.

According to Snider, and his wife at the time, Lisa Snider (Lisa) (now Lisa Clark), he asked to be transferred to St. Patrick to be attended by his regular cardiologist, Dr. White, but was told he was in too serious a condition to be sent anywhere. Snider testified if he would have been told of an alternative to an immediate implant at Beauregard, which would have allowed him to get the advice of his regular cardiologist, Dr. White, he would have refused the implant. Dr. Yue did not “outright” refute Snider’s version of events leading up to the surgery. Rather, he simply testified he did not recall Snider asking to be transferred. He also testified he did not offer Snider the option to be transferred so that his regular cardiologist could oversee his care and treatment. Instead, Dr. Yue performed a heart catheterization and then proceeded to the operating room to perform a pacemaker implant. The implant procedure took about twenty minutes with a small incision made in Snider’s chest leaving a permanent scar. Snider suffered pain in his left arm and did not have normal use of that arm for several weeks.

Just before the procedure, Snider signed a partially blank consent form purporting to signify his consent to the procedure. The record contains the consent form, still displaying several blank lines and containing a typed-in line and a handwritten note.

After returning home from Beauregard, Snider was injured when his two-year-old daughter jumped into his arms upon seeing him before she could be warned to be careful of his pacemaker implant. Snider returned to Beauregard and was eventually treated for an infection at the site of the pacemaker implant. Snider then sought examination by his cardiologist, Dr. Wfiiite, who determined that the | ^implantation of the pacemaker was medically unnecessary and unwarranted. In due course the pacemaker was surgically removed and Snider has not been the worse since.

The three members of the Medical Review Panel found Dr. Yue violated the standard of care in performing the implant on Snider under non-emergent circumstances. Dr. Wfiiite and one panel member provided live testimony at trial and the parties stipulated that the two additional Medical Review Panel members would have testified the same. Dr. Yue and his medical expert witness testified that because Dr. Yue’s implantation of the pacemaker was one possible appropriate choice his decision to immediately perform a permanent pacemaker implant did not constitute medical malpractice. They agreed, however, with the other medical experts that another option would have been to temporarily take Snider off of a particular heart medication he was taking and wait at least twenty-four hours to see if that helped Snider return to a more acceptable heart rate. According to the testimony of five medical experts in the field of cardiology, the medical records show Snider was stable at the time he was initially examined by Dr. Yue. Additionally, his decision to proceed so quickly with a permanent implant after administering only one dose of a beta-blocker constituted treatment below the standard of care and was not in keeping with the national guidelines for “Indications for Permanent Cardiac Pacing” as published by the joint task force of the American College of Cardiology, the American Heart Association, and the Heart Rhythm Society.

After careful review of the record a second time, we now find the jury manifestly erred in failing to find that Dr. Yue’s actions fell below the acceptable standard of care in light of the strong preponderance of evidence and testimony at trial.

|4LEGAL ANALYSIS

Snider argues several assignments of error on appeal. He asserts the jury erred in concluding that he failed to prove by a preponderance of evidence that Dr. Yue “deviated from the appropriate standard of care.” He argues the jury erred in finding he gave informed consent for the procedure under the provisions of La. R.S. 40:1299.40. Snider also maintains Dr. Yue rushed his decision to perform a pacemaker implant without all of the necessary medical information available concerning Snider’s condition and without attempting to contact Snider’s regular cardiologist. He further contends Defendants failed to show that the opinion reached by the Medical Review Panel was unreasonable. Additionally, he maintains Dr. Yue should have disclosed to him his financial incentive arrangement with Beauregard before performing the pacemaker implant and that Dr. Yue’s undisclosed financial incentive to perform such an operation was the reason Dr. Yue failed to contact Snider’s treating physician and refused to consider transporting him to St. Patrick’s for care and treatment. Snider contends Dr. Yue’s failure to make this disclosure was a violation of the standard of care.

The law regarding informed consent in medical malpractice claims is well-settled in Louisiana. It is both statutory and jurisprudential. Tipton v. Campbell, 08-139, 08-140 (La.App. 4 Cir. 9/24/08), 996 So.2d 27, writ denied, 08-2564 (La.1/9/09), 998 So.2d 720. In Maybrier v. Louisiana Medical Mutual Insurance Co., 08-1508, p. 8, (La.App. 3 Cir. 6/10/09), 12 So.3d 1115, 1121, writ denied, 09-1558 (La.10/9/09), 18 So.3d 1287 (emphasis added), we explained the doctrine of informed consent:

The informed consent doctrine is based on the principle that every adult of sound mind has the right to determine what will be done to his or her own body. LaCaze v. Collier, 434 So.2d 1039 (La.1983). Where circumstances permit, a patient should be told the nature of the pertinent ailment or condition, the general nature of the\yproposed treatment or procedure, the risks involved, the prospects of success, the risks of failing to undergo the treatment or procedure, and the risks of any alternative methods of treatment. Hondroulis [v. SchuhmacherJ, 553 So.2d 398 [ (La. 1988) ].

In this case, however, it is not necessary for us on remand to visit the question of informed consent again because even if Snider gave informed consent under Sections A or B of the statute, which the supreme court finds applicable, such consent has no bearing on the question of whether Dr. Yue’s actions fell below the standard of care when he rushed to implant a permanent pacemaker in the body of Snider. As noted, Dr. Yue maintains his decision to do so did not constitute malpractice because he deemed it an “appropriate choice.” Therein lies the legal quagmire upon which Dr. Yue’s position rests.

According to four medical experts who testified in this matter, including Snider’s treating physician, Snider’s condition was not critical or life-threatening at the time. Dr. Yue and his expert witness agree with that assessment. Dr. Yue testifies in his own opinion, although Snider’s heart rate was abnormally low it was not so low as to pose an immediate threat. Additionally, Dr. Yue’s expert witness, Dr. Freddy Michel Abi-Samra, (Dr. Samra) testified Snider’s condition was a Class II situation, meaning it was not mandatory that a pacemaker be immediately implanted, and that Snider was indeed in good enough condition to be transferred to St. Patrick’s hospital in Lake Charles where he could have been attended by his regular cardiologist.

The document introduced into evidence entitled “Indications for Permanent Cardiac Pacing” lists three classifications for permanent pacing as established by a joint task force formed by the American College of Cardiology, the American Heart Association, and the Heart Rhythm Society. Under these national guidelines, the three classifications are described as follows (emphasis added):

| fiClass I — Conditions in which permanent pacing is definitely beneficial, useful, and effective. In such conditions, implantation of a cardiac pacemaker is considered acceptable and necessary, provided that the condition is not due to a transient cause.
Class II — Conditions in which permanent pacing may be indicated but there is conflicting evidence and/or divergence of opinion; class IIA refers to conditions in which the weight of the evidence/opinion is in favor of usefulness/efficaey, while class IIB refers to conditions in which the usefulness/efficacy is less well established by evidence/opinion.
Class III — Conditions in which permanent pacing is not useful/effective and in some cases may be harmful.
Symptoms — Patients frequently present for consideration of pacemaker placement because of symptoms that may be due to bradyarrhythmias (e.g. dizziness, lightheadedness, syncope, fatigue, and poor exercise tolerance). These patients will often have evidence of mild or intermittent sinus node dysfunction or conduction abnormalities. It is critical to attempt to establish a direct correlation between symptoms and bradyarrhythmias. This is done via a careful history and ambulatory monitoring.
A direct correlation between symptoms and bradyarrhythmias will increase the likelihood of recommending pacemaker placement. On the other hand, failure to document such a correlation or the presence of an alternative explanation for symptoms will make pacemaker placement less likely or even contraindicated.

The medical records of Beauregard Hospital concerning Snider’s condition when he was admitted on August 28, 2007, indicate Snider had no new onset of fatigue, no “chronic headaches, dizziness, syncope, stroke seizures, or numbness or tingling” though he was experiencing some episodes of nearly passing out. He was “alert, awake, in mild acute distress” with a pulse rate of 35. He is described as a “well developed, well nourished” person with a “regular [heart]rhythm SI S2” with “no significant heart murmur.” There was “no edema” in his legs. In Dr. Yue’s consultation report on this same date he notes Snider “developed bradycardia” after his heart attack three months earlier and that “[h]is symptoms [progressively got worse after] he started taking Atenolol [2 weeks earlier].” He also noted that although chest pains brought Snider to the E.R. that day, by the 17time Dr. Yue saw him he was “chest pain free”. In Dr. Yue’s Consultation Report he diagnosed Snider with “Symptomatic bradycardia” but notes “[although patient is on beta blocker, patient has bradycardia before he started Atenolol. Atenolol just made his symptoms worse.”

Despite these observations, and being informed of Snider’s ongoing treatment under the care of a cardiologist, and, knowing at that time Atenolol was an experimental drug, Dr. Yue admits he did not attempt to contact Snider’s regular cardiologist in Lake Charles. Further, he acknowledges that it would not have posed any serious threat to Snider to wait at least twenty-four hours or more to see if Snider’s slow heart rate would normalize after discontinuing Atenolol before implanting a pacemaker as a solution to Snider’s immediate symptom. The record clearly supports a finding that Dr. Yue failed to follow the protocol established in the guidelines for “Indications for Permanent Cardiac Pacing”. Significantly, he did not “attempt to establish a direct correlation between symptoms and bradyar-rhythmias ” which “is done via a careful history and ambulatory monitoring.” He did not heed the warning in the guidelines that “failure to document such a correlation or the presence of an alternative explanation for symptoms will make pacemaker placement less likely or even contraindicated”. It is clear that, when contemplating the pacemaker implant, Dr. Yue was aware of strong “alternative explanations” for Snider’s symptom which had already begun to abate after his arrival at Beauregard Hospital. His decision to perform the invasive implant procedure clearly fell outside the guidelines established by the joint task force of the American College of Cardiology, the American Heart Association, and the Heart Rhythm Society; and fell below the standard of care in this specialized field.

Specifically, the record shows Snider’s low heart rate could have been | ^caused by the new medications he was prescribed by his treating physician. The evidence also shows other reasonable alternatives to an immediate “emergency” pacemaker implant in this instance including transferring Snider to St. Patrick’s for treatment by his regular cardiologist who was more knowledgeable about his condition and/or simply waiting at least twenty-four hours to see if the administration of more than one dose of a beta-blocker and/or discontinuance of Atenolol would allow Snider’s heart rate to return to a more normal range. All of these options were “appropriate” choices for Snider’s circumstances under the published guidelines and according to the experts in the field who testified. Five medical experts agreed on the availability of these alternatives, and all opined that the standard medical practice would have been to employ these alternatives before “rushing” to a pacemaker implant which this patient ultimately did not need.

We point out the Medical Review Panel unanimously found “Dr. Yue rushed the decision for implantation of a permanent pacemaker in this patient.” According to these three highly qualified medical experts, and Snider’s treating physician, “[Dr. Yue] should have stopped the beta-blocker and the rivaroxabhan for 24-48 hours, and monitored the patient for possible improvement or deterioration in heart rate, before making the decision about a permanent pacemaker.” (emphasis added). This finding is consistent with the nationally established “Indications for Permanent Cardiac Pacing.” Dr. Yue’s action was wholly inconsistent with the established guidelines and prescribed protocol. It simply was not an “appropriate choice” as he maintains. As Dr. Yue testified, Snider’s condition at the time he recommended the pacemaker implant was not life-threatening. All medical experts in the case agreed with that assessment. Instead, as the Medical Review Panel acknowledged, Dr. Yue made the decision for Snider and inappropriately “rushed” to that decision. Snider’s treating cardiologist and another expert in the field later 19removed the pacemaker finding it was never necessary to implant and was not appropriate cardiac care for Snider. We therefore find the jury manifestly erred in concluding that the evidence did not preponderate in Snider’s favor.

A plaintiffs burden of proof in a medical malpractice case against a physician was set forth by the supreme court in Martin v. East Jefferson General Hospital, 582 So.2d 1272,1276 (La.1991):

In a medical malpractice action against a physician, the plaintiff carries a two-fold burden of proof. The plaintiff must first establish by a preponderance of the evidence that the doctor’s treatment fell below the ordinary standard of care expected of physicians in his medical specialty, and must then establish a causal relationship between the alleged negligent treatment and the injury sustained. LSA-R.S. 9:2794; Smith v. State through DHHR, 523 So.2d 815, 819 (La.1988); Hastings v. Baton Rouge General Hospital, 498 So.2d 713, 723 (La.1986). Resolution of each of these inquiries are determinations of fact which should not be reversed on appeal absent manifest error. Housley v. Cerise, 579 So.2d 973 (La.1991); Smith, 523 So.2d at 822; Rosell v. ESCO, 549 So.2d 840 (La.1989); Hastings, 498 So.2d at 720.

See also Goodwin v. Kufoy, 07-737, (La. App. 3 Cir. 1/16/08), 974 So.2d 815.

Snider has shown that Dr. Yue’s action fell below the standard of care, and he has shown that Dr. Yue’s breach of his duty was the cause-in-fact of his damages. Because we have found the jury could not reasonably conclude that Dr. Yue’s actions did not fall below the standard of care, we need not address the issues raised by Snider concerning Dr. Yue’s failure to disclose his personal financial interest in performing the procedure nor is it necessary to address Snider’s contention that Defendant improperly appealed to local bias by counsel’s remarks to the jury in closing argument.

We therefore reverse the judgment of the trial court and render judgment in favor of Plaintiffs. Although the record contains some stipulations as to medical costs and references to the costs of the litigation, the trial judge elected to bifurcate the evidence concerning damages pending the jury’s decision in the matter. The Injury's decision finding no liability aborted further proceedings in the matter. We therefore remand the matter to allow the parties an opportunity to complete the record regarding damages which may be due Plaintiffs.

DECREE

Judgment is rendered in favor of Plaintiffs. All costs of this appeal are assessed against Defendants/Appellants. The case is remanded to the district court for a determination of the amount of damages to be awarded to Plaintiffs.

REVERSED: JUDGMENT RENDERED AS TO LIABILITY: REMANDED FOR DETERMINATION OF DAMAGES.


author: WALLER, Chief Justice,

text:
    Dexter FULTON a/k/a Dexter Calvin Fulton v. STATE of Mississippi.
    No. 2011-CT-01819-SCT.
    Supreme Court of Mississippi.
    Sept. 11, 2014.

      Monique Brooks Montgomery, Columbus, attorney for appellant.
    Office of the Attorney General by Scott Stuart, John R. Henry, Jr., attorneys for appellee.
   ON WRIT OF CERTIORARI

WALLER, Chief Justice,

for the Court:

¶ 1. Dexter Fulton was convicted in the Lowndes County Circuit Court for receiving stolen property. The Court of Appeals affirmed Fulton’s conviction and sentence on direct appeal. We granted Fulton’s petition for writ of certiorari to determine whether Fulton’s indictment was fatally defective and whether the trial court erroneously allowed an amendment of substance to Fulton’s indictment. Finding error as to both issues, we reverse the judgments of the Court of Appeals and the circuit court and vacate Fulton’s conviction.

STATEMENT OF THE CASE

¶ 2. Dexter Fulton was arrested by officers of the Columbus Police Department after he attempted to sell allegedly stolen truck-battery box covers to Columbus Scrap in Columbus, Mississippi. These battery boxes previously had been reported missing after a break-in at Sobley Excavating in Columbus.

¶ 3. Fulton’s indictment, which charged him with receiving stolen property in violation of Section 97-17-70 of the Mississippi Code, provided:

[O]n or about the 20th day of October, 2008, [Fulton] did unlawfully, wilfully, and feloniously, receive, possess or dispose of the personal property of Sobley Excavating, to-wit: tractor batteries, battery cables, mack truck batteries, and aluminum wheels, said property having a total value in excess of $500.00, and having been feloniously taken away from the said Sobley Excavating and further that the said Dexter Fulton [ ] had reasonable grounds to believe at the time of the receiving, possessing, or disposing of said property that said property had been so feloniously taken.

(Emphasis added.)

¶ 4. On August 10, 2010, the State moved to amend Fulton’s indictment, asking that the words “tractor batteries, battery cables, mack truck batteries, and aluminum wheels” be struck from the indictment and replaced with “tractor battery box covers and mack truck battery box covers.” The trial court granted the State’s motion to amend Fulton’s indictment on February 18, 2011, ten days before trial. At the conclusion of Fulton’s trial, the jury found Fulton guilty of receiving stolen property. Fulton was sentenced as a habitual offender to ten years’ imprisonment without the possibility of parole or reduction in sentence. On appeal, Fulton argued that the trial court had erred when it allowed a substantive amendment to his indictment. The Court of Appeals affirmed his conviction, finding no error in the amendment of the indictment. Fulton v. State, No. 2011-KP-01819-COA, 146 So.3d 982, 984, 2013 WL 3886021, *3 (Miss.Ct.App. July 30, 2013). Fulton now seeks certiorari review from this Court. We limit our review to whether Fulton’s indictment was fatally defective for faffing to inform him sufficiently of the charges against him and whether the Court of Appeals erred in holding that the amendment of the indictment was one of mere form. Miss. R. App. P. 17(h).

STANDARD OF REVIEW

¶ 5. Because the question of whether an indictment is fatally defective is an issue of law, the standard of review is de novo. Peterson v. State, 671 So.2d 647 (Miss.1996). The standard of review for an amendment of an indictment also is de novo. Spears v. State, 942 So.2d 772, 773 (Miss.2006).

DISCUSSION

I. Whether Fulton’s indictment was fatally defective for failing to sufficiently describe the stolen property he allegedly received.

¶ 6. The purpose of the indictment is “to furnish the accused such a description of the charges against him as will enable him to adequately prepare his defense.” Williams v. State, 445 So.2d 798, 804 (Miss.1984). Rule 7.06 of the Uniform Rules of Circuit and County Court Practice governs our consideration of the sufficiency of an indictment, including that the indictment must contain “a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06. “An additional test [for the sufficiency of the indictment] is whether, in case other criminal proceedings are taken against the defendant based on the same matters, the record shows with accuracy to what extent he may plead a former acquittal or conviction in bar of the later proceedings.” Hamilton v. State, 197 So.2d 469, 474 (Miss.1967) (citation omitted).

¶ 7. Fulton was indicted under Section 97-17-70 of the Mississippi Code, which prohibits a person from “intentionally possessing], receiving], retaining] or disposing] of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen[.]” Miss.Code Ann. § 97-17-70 (Rev. 2006). The question presented here is whether Fulton’s indictment sufficiently described the stolen property that he allegedly received, an essential fact at issue.

¶ 8. “It is essential, in an indictment for receiving stolen property, to describe the property with the same particularity as is required in an indictment for larceny.” Wells v. State, 90 Miss. 516, 43 So. 610, 611 (1907). The common-law rule regarding the sufficiency of the description of stolen property required in an indictment for larceny has been stated as follows: “A statement of number or quantity of articles taken being a necessary part of the description, ‘a load of cord wood,’ or a ‘certain load of lumber’ is not sufficiently definite. It is insufficient to allege the defendant stole ‘cattle.’” Rutherford v. State, 196 Miss. 321, 17 So.2d 803, 804 (1944) (quoting 36 C.J. 815, § 271). In Rutherford, the defendant’s indictment charged him with larceny of “a quantity of clover seed.” Id. This Court reasoned that “[t]he word ‘quantity’ is so vague, uncertain and indefinite as to give the defendant no intimation regarding the amount of clover seed which he was accused of stealing.” Id. This Court recognized that, where a sufficient description of the stolen property is not known, “such fact, if alleged in the indictment or information, will generally cure the otherwise insufficiency, for the .reason that the law does not require a greater certainty than the nature of the case affords.” Id. (citation omitted). However, because the stolen clover seed readily could have been described by specific weight or quantity, this Court found that the defendant’s indictment was fatally defective for failing to include that information. Id. at 805.

¶ 9. This Court has adhered to the rule in Rutherford when determining the sufficiency of the description of property in an indictment for receiving stolen property. For example, in Nguyen v. State, 761 So.2d 873, 876-77 (Miss.2000), this Court held that an indictment for receiving stolen property, which described the property as “114 items, including televisions, C.D. players, VCR’s, cameras, tools and microwaves,” was fatally defective. Because “[t]he indictment does not describe how many individual TV’s, VCR’s, cameras, tools or microwaves were received,” this Court found that the defendants were not sufficiently notified of the “essential facts constituting the offense charged.” Id. at 877 (citing URCCC 7.06). Notably, this Court rejected the State’s argument that the discovery process eliminated the need for exhaustive descriptions in the indictment, finding that “[discovery is not a substitute for the requirements of URCCC 7.06.... [T]he appellants should not be forced to engage in discovery in order to find out the essential facts constituting the offense charged!.]” Id. Again, in Tucker v. State, 47 So.3d 135, 139 (Miss.2010), this Court found a defendant’s indictment for receiving stolen property to be fatally defective, where the stolen property was described merely as “athletic apparel.” In Tucker, this Court, citing Nguyen, found that the defendant’s indictment should have contained “limiting modifiers” or listed the quantity of each item received rather than simply describing the stolen property as a single class. Id. at 138 (citing Nguyen, 761 So.2d at 877). Accordingly, this Court held that the property description of “athletic apparel, said property having a total value in excess of $500,” did not describe the stolen property with sufficient particularity to inform the defendant of the nature of the charges against him. Tucker, 47 So.3d at 139.

¶ 10. In the instant case, Fulton’s indictments, both originally and as amended, clearly suffer from the same inadequacies as those recognized by this Court in Nguyen and Tucker. In Fulton’s original indictment, the stolen property he was alleged to have received was described only by class — “tractor batteries, battery cables, mack truck batteries, and aluminum wheels.” When Fulton’s indictment was amended shortly before trial, this class of items was merely substituted for another — “tractor battery box covers and mack truck battery box covers.”

¶ 11. We hold that Fulton’s indictments did not describe with sufficient particularity the essential facts constituting the offense charged. Accordingly, the trial court erred in denying Fulton’s motion to quash the indictment.

II. Whether the amendment of Fulton’s indictment was one of substance or form.

¶ 12. Fulton argues that the State could not amend his indictment to change the description of the stolen property he allegedly,received, because such an amendment would be one of substance rather than form. “All indictments may be amended as to form but not as to the substance of the offense charged!.]” URCCC 7.06. “[A] change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case.” Miller v. State, 740 So.2d 858, 862 (Miss.1999) (quoting Greenlee v. State, 725 So.2d 816, 821 (Miss.1998)) (quotations omitted). An amendment to the substance of a charge must be made by a grand jury. Eakes v. State, 665 So.2d 852, 860 (Miss. 1995). The Court of Appeals found that the change in the description of the stolen property in Fulton’s indictment was one of form rather than substance, because the amendment did not change the offense charged and did not remove any defenses available under the original indictment. Fulton, 146 So.3d at 984, 2013 WL 3886021, at *3. The Court of Appeals also found that Fulton was given a fair opportunity to present a defense to the amended indictment. Id.

¶ 13. We find that the Court of Appeals’ analysis of Fulton’s argument is incomplete, as the court did not analyze whether the amendment of Fulton’s indictment “materially alter[ed] facts which are the essence of the offense on the face of the indictment as it originally stood,” another mark of a substantive amendment. Miller, 740 So.2d at 862. This Court previously has held that the description of an item in an indictment may be changed by amendment if the change supplements, but does not vary, the description of the property. Davis v. State, 181 Miss. 239, 179 So. 740 (1938). In Davis, the defendant was charged with grand larceny for the theft of three horses and a cow. Id. The State later amended the defendant’s indictment to provide more specific descriptions of two of the stolen animals. Id. On appeal, this Court affirmed the amendment of the indictment, rejecting the defendant’s argument that the amendment was one of substance. Id. This Court provided the following reasoning:

We are of the opinion that the court properly allowed this indictment; that it ' did not vary the description, but merely supplemented it, and that the original indictment probably would have been sufficient; and that such amendment did not constitute a new case or a new description which would prevent the appellant from understanding the offense with which he was charged.

Id. at 741 (emphasis added).

¶ 14. In this case, unlike in Davis, the amendment to Fulton’s indictment did not supplement the description of the stolen property he was alleged to have received. On the contrary, “tractor battery box covers and mack truck battery box covers,” the stolen items allegedly received, were not included in Fulton’s original indictment at all. And a battery box cover is part of a vehicle, while batteries and battery cables clearly are not. We find that completely changing the stolen property alleged to have been received by the defendant, an essential element of the crime of receiving stolen property, “materially alter[s] facts which are the essence of the offense on the face of the indictment as it originally stood.” Miller, 740 So.2d at 862. Thus, we cannot say that the amendment to Fulton’s indictment was one of form. Because the State’s proposed amendment to Fulton’s indictment was one of substance rather than form, only the grand jury had the authority to approve such an amendment. Accordingly, we must reverse the holding of the Court of Appeals on this issue, as well as the judgment of the trial court, and vacate Fulton’s conviction. See, e.g., Hall v. State, 127 So.3d 202, 207 (Miss.2013) (holding that, upon conviction of a crime for which the defendant was not properly indicted, the judgment of conviction must be set aside, dismissed, or vacated and remanded, and finding “no legal authority to acquit [the defendant] by reversing and rendering judgment”).

CONCLUSION

¶ 15. For the foregoing reasons, we reverse the Court of Appeals’ judgment that the indictment was sufficient, as well as the judgment of the Lowndes County Circuit Court, and vacate Fulton’s conviction.

¶ 16. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT IS REVERSED AND THE CONVICTION IS VACATED.

DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . As used in this case, a “battery box” refers to a hinged metal box attached to a heavy-duty vehicle, such as a semi truck or a tractor, that houses the vehicle’s battery. The top portion of the battery box, referred to as the "battery box cover” can be removed from the rest of the box to access the battery.

      . As explained above, larceny cases are particularly instructive on the issues raised in the instant case because an indictment for receiving stolen property must describe the property with the same particularity as is required in an indictment for larceny. See Wells, 43 So. at 611.


author: GRIFFIS, P. J.,

text:
    Dexter FULTON a/k/a Dexter Calvin Fulton, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KP-01819-COA.
    Court of Appeals of Mississippi.
    July 30, 2013.
    Rehearing Denied Dec. 10, 2013.
    Dexter Fulton, appellant, pro se.
    Carrie A. Jourdan, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   GRIFFIS, P. J.,

for the Court:

¶ 1. Dexter Fulton was convicted of receiving stolen property. He was sentenced to serve ten years in the custody of the Mississippi Department of Corrections, as a habitual offender, without eligibility for parole or reduction in sentence. On appeal, Fulton argues that the trial court erred when it allowed an amendment to the indictment. We find no error and affirm.

FACTS

¶ 2. On October 17, 2008, C.J. Stockman closed and locked the office of Sobley Excavating Company in Columbus. Sobley had eleven trucks at its office. The next morning, a Sobley employee discovered that six or seven battery boxes from the trucks were missing. The battery cables had been cut, and the batteries were missing from some of the trucks. Stockman called the police.

¶ 3. Two days later, Thomas Pearson of Columbus Scrap was notified to look for the battery boxes. Later that day, Fulton arrived at Columbus Scrap and wanted to sell some battery boxes. Nelda Umfress, the manager at Columbus Scrap, told Fulton that she would not buy the boxes. Fulton took the battery boxes and drove away. The surveillance cameras at Columbus Scrap recorded these events. The police were notified and given the videotape from Columbus Scrap.

¶ 4. Columbus Police Department Investigators Amanda Burrell and L.C. Cockrell watched the videotape. Burrell checked the license plate on the vehicle and identified it as Fulton’s car. Investigators Bur-rell and Cockrell went to Fulton’s apartment. When they arrived, they saw the battery boxes in Fulton’s car. They arrested Fulton and took possession of the battery boxes.

¶ 5. At the police department, Stockman identified the battery boxes as belonging to Sobley. Eight battery boxes were recovered from Fulton.

¶ 6. On April 29, 2009, Fulton was indicted. The indictment charged:

[O]n or about the 20th day of October, 2008, [Fulton] did unlawfully, wilfully, and feloniously, receive, possess or dispose of the personal property of Sobley Excavating, to-wit: tractor batteries, battery cables, mack truck batteries, and aluminum wheels, said property having a total value in excess of $500.00, and having been feloniously taken away from the said Sobley Excavating and further that the said Dexter Fulton [] had reasonable grounds to believe at the time of the receiving, possessing, or disposing of said property that said property had been so feloniously taken.

¶ 7. On August 10, 2010, the State filed a motion to amend the indictment. The motion asked the court to enter an order to amend the indictment to correct certain language. It read:

[T]he proof would show that the stolen items were tractor battery box covers and mack truck battery box covers and therefore the words “tractor batteries, battery cables, mack truck batteries, and aluminum wheels “should be stricken and replaced with “tractor battery box covers and mack truck battery box covers,” and that this change would only be one of form, and not of substance.

¶ 8. On February 18, 2011, the circuit court entered an order that authorized the amendment to the indictment. The trial began on February 28, 2011. On March 1, 2011, the jury found Fulton guilty. After post-trial motions, a final judgment was entered on September 15, 2011. On November 21, 2011, the circuit court entered an order that allowed Fulton to file an out-of-time appeal. The notice of appeal was filed on December 5, 2011.

STANDARD OF REVIEW

¶ 9. The standard of review for an amendment to the indictment is de novo. See Spears v. State, 942 So.2d 772, 773 (¶ 5) (Miss.2006). “The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by this court.” Id.

DISCUSSION

¶ 10. Fulton claims that his rights to a fair trial and due process were violated when the court allowed the amendment to the indictment. He claims the amendment was one of substance and not simply form. The State responds that Fulton had fair notice and an opportunity to defend against the charges.

¶ 11. “To be sufficient, an indictment needs only to allege each essential element of the offense charged so as to enable the accused to prepare his defense and to allow the accused to invoke the double jeopardy clause in any subsequent proceeding.” Tran v. State, 962 So.2d 1237, 1244 (¶ 27) (Miss.2007) (quoting United States v. Webb, 747 F.2d 278, 284 (5th Cir.1984)).

¶ 12. Rule 7.09 of the Uniform Rules of Circuit and County Court provides:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as [a]n habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence, Miss.Code Ann. § 68-11-30). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

In Tarver v. State, 15 So.3d 446, 458 (¶ 28) (Miss.Ct.App.2009), this Court succinctly stated the relevant law on amendments:

The purpose of an indictment is to furnish the defendants notice and a reasonable description of the charges against them. Therefore, an indictment is only required to have a clear and concise statement of the elements of the crime the defendant is charged with. It may be amended to correct defects of form, but not defects of substance. An amendment of substance is one which changes the charge made in the indictment to another crime. A permissible change in the indictment is one that does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case. Specifically, with regard to changing a location, Mississippi Code Annotated section 99-17-13 (Rev.2007) expressly allows for a court to amend an indictment when there appears to be any variance between the statement in the indictment and the evidence offered in proof thereof, in the name of any county, city, town, village, division, or any other place mentioned in such indictment.

(Internal citations and quotations omitted). In Tarver, the Court concluded that the change of the term “park” to “day care” was not an amendment of substance. Tarver, 15 So.3d at 458 (¶ 30).

¶ 13. Here, the amendment did not change the crime that Fulton was charged with having committed. The amendment only changed the description of the property that was stolen. An amendment as to form rather than substance is one where the defense under the indictment is equally available after the amendment and the evidence the defendant must use is the same pre- and post-indictment. Griffin v. State, 540 So.2d 17, 21 (Miss.1989).

¶ 14. Fulton does not argue that he was not afforded a fair opportunity to present a defense. He does not argue that he was prejudiced by the amendment of the indictment or that he was unfairly surprised. Fulton was given notice of the State’s effort to amend the indictment six months before the trial. The fact that the circuit court entered the order allowing the amendment approximately ten days before trial does not affect our analysis. Indeed, Fulton was provided with sufficient notice of the amendment to allow him an opportunity to defend himself from the charges.

¶ 15. We find no error and affirm Fulton’s conviction and sentence.

¶ 16. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF RECEIVING STOLEN PROPERTY AND SENTENCE AS A HABITUAL OFFENDER OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.