State v. Arita
| Decision Date | 27 February 2002 |
| Docket Number | No. 2001-KA-1512.,2001-KA-1512. |
| Citation | 811 So.2d 1146 |
| Parties | STATE of Louisiana v. Theodore N. ARITA. |
| Court | Court of Appeal of Louisiana — District of US |
Harry F. Connick, District Attorney of Orleans Parish, Juliet Clark, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Plaintiff/Appellee.
Frank G. DeSalvo, Frank G. DeSalvo, A.P.L.C., New Orleans, LA, for Defendant/Appellant.
Court composed of Chief Judge WILLIAM H. BYRNES III, Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY.
The defendant Theodore N. Arita was charged by bill of information on September 1, 2000 with second degree battery, a violation of La. R.S. 14:34.1. The trial court denied the defendant's motion to quash on October 20, 2000. A bench trial took place on October 23 and 25, 2000, with the trial court taking the matter under advisement. On December 20, 2000, the trial court found the defendant guilty of attempted second degree battery. On January 22, 2001, the trial court denied the defendant's motion to reconsider the verdict, and sentenced the defendant to seven months at hard labor, with credit for time served. The trial court denied the defendant's motion to quash the State's habitual offender bill of information, vacated the original sentence, adjudicated the defendant a second-felony habitual offender, and resentenced him to seven months at hard labor.
Officer Justin Clark arrested the defendant in the early morning hours of June 18, 2000, after observing him kicking Tina Bowie about her face in the 700 block of Bourbon Street. The defendant fled, but was apprehended within a block and returned to the scene, where Ms. Bowie identified him as the person who had battered her. Ms. Bowie, who the officer said had been temporarily rendered unconscious, had blood on her face.
The State called Tina Bowie as a witness. She denied that the defendant battered her, testifying instead that he came to her rescue from someone who had attacked her from behind. She denied identifying the defendant as her attacker. Ms. Bowie had a sexual relationship with the defendant that had ended some time before the incident. She denied ever losing consciousness, even though hospital records reflected a loss of consciousness; she admitted that a CAT scan was done. She said her nose was bleeding and she had a scratch on her neck as a result of the attack.
Dawnell Bartholomew testified that the defendant, her live-in boyfriend, had never committed any act of violence upon her. Tina Bowie testified on behalf of the defendant that she told the district attorney's office numerous times that the defendant had not attacked her. The defendant testified that he witnessed another male hitting Ms. Bowie, and that he pushed the attacker away from Ms. Bowie and attempted to pick her up. The defendant said he ran when he saw the police coming, because he was afraid of being arrested and having his probation revoked. The defendant admitted prior convictions for possession of cocaine and flight from an officer.
Dr. Edwin Wood said that Ms. Bowie's hospital records contained a physician notation of a "questionable loss consciousness," and that an EMS attendant wrote that she lost consciousness. The medical records reflected no fractures of the face or head, or bleeding inside of the brain, and Dr. Wood indicated that it had not been a severe beating. He said a CAT scan would not show a concussion or whether a person had lost consciousness, and conceded that someone could be kicked in the head yet show no trauma. Ms. Bowie's blood alcohol level that night was .15.
Karem Rankinson, the defendant's cousin, testified that the defendant pushed the attacker and fled when police arrived. Mr. Rankinson said that he stated, in the presence of police, that the defendant did not do it. Tina Bowie, testifying for the third time, said she was drinking that night, but was not drunk.
Officer Clark testified on rebuttal that Karem Rankinson was pushing the defendant away from Ms. Bowie as the defendant was kicking her. He said that Mr. Rankinson said nothing to him after he apprehended the defendant and returned him to the scene.
A review of the record reveals four patent errors, three of which are rendered moot by the disposition as to defendant's assignment of error, which is also the fourth error patent.
First, the record does not reflect that the defendant was arraigned. However, La.C.Cr.P. art. 555 provides that an error in failing to arraign a defendant is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty. Even assuming the defendant was not arraigned, the record reflects that he proceeded to trial without objecting thereto. Accordingly, the error is harmless.
Second, the verdict of attempted second degree battery was not responsive to the indictment, as the only verdicts responsive to the charged offense of second degree battery are guilty, guilty of simple battery, and not guilty. La. C.Cr.P. art. 814(A)(15). The defendant raises this matter in his sole assignment of error, discussed below.
The record also reflects that on the day of sentencing, defense counsel moved that the court reenter a verdict of not guilty, as the verdict of attempted second degree battery was not responsive to the charge. The trial court denied the motion, and pronounced sentence. The defendant's motion appears to have been a motion in arrest of judgment based on the ground that the verdict was not responsive to the indictment. La. C.Cr.P. art. 859(5). La. C.Cr.P. art. 873 provides that sentence shall not be imposed until at least twentyfour hours after the motion is overruled, unless defendant expressly waives the delay. However, the failure to observe that delay is harmless error where the defendant does not challenge his sentence on appeal. State v. Commodore, 2000-0076, pp. 3-4 (La.App. 4 Cir. 11/21/00), 774 So.2d 318, 320, writ denied, 2000-3485 (La.11/2/01), 800 So.2d 869. As the defendant does not challenge his sentence on appeal, the error is harmless.
Finally, there is a problem with the sentence, in that the defendant was sentenced for a crime that does not exist in Louisiana. See discussion below.
In the defendant's sole assignment of error, he correctly argues that the trial court verdict of guilty of attempted second degree battery is not responsive to the bill of information.
When the bill of information charges the offense of second degree battery, as in the instant case, the only responsive verdicts are guilty, guilty of simple battery, or not guilty. La. C.Cr.P. art. 814(A)(15). The trial court found the defendant guilty of attempted second degree battery, which is not a recognized crime in Louisiana—because an attempt to commit a battery is an assault. See La. R.S. 14:36. Therefore, the defendant's conviction must be reversed. See State vaLMayeux, 498 So.2d 701 (La.1986); State v. Nazar, 96-0175 (La.App. 4 Cir. 5/22/96), 675 So.2d 780.
In Mayeux, the jury was instructed at the request of defense counsel that it could return verdicts of guilty of attempted aggravated battery in response to two charges of aggravated battery. The jury returned verdicts of attempted aggravated battery. The State did not object to the verdicts. On appeal to the Court of Appeal for the Third Circuit, the court found the verdict invalid as a non-responsive verdict. The court also found that the verdict indicated that the State had failed to prove the essential elements of the aggravated batteries, reversed the convictions and sentences, and entered judgments of acquittal. The State sought review in the Louisiana Supreme Court, which held that the unresponsive verdict and the conviction of an offense not specifically designated as a crime in Louisiana were two separate errors patent. The court went on to find that the verdict was "wholly invalid." The court stated that the illegal verdict amounted to a conviction of a "non-crime," and therefore operated as neither a conviction nor an acquittal. The court held that the appropriate action was to set aside the conviction and remand for a retrial. In reaching its decision, the court held that the Fifth Amendment's double jeopardy clause did not bar retrial.
The Mayeux defendant was retried on the two charges of aggravated battery and acquitted on one...
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State v. Lambert, 2015–KA–0629.
...at 1098–1103 ; see State v. Joshua, 42,766 (La.App. 2 Cir. 1/9/08), 973 So.2d 963 ; State v. Arita, 01–1512 (La.App. 4 Cir. 2/27/02), 811 So.2d 1146 ; State v. Nazar, 96–0175 (La.App. 4 Cir. 5/22/96), 675 So.2d 780 ; State v. Mayeux, 498 So.2d 701 (La.1986). “Whether the defendant pleaded g......
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State v. Lewis
...degree battery’ is not a valid crime as defined by the Louisiana Criminal Code."); State v. Arita, 01–1512 (La.App. 4 Cir. 2/27/02), 811 So.2d 1146 (noting that attempted second degree battery is not a recognized crime in Louisiana, "because an attempt to commit a battery is an assault."); ......
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State v. Joshua
... ... The court stated, "[Mere is no such crime in Louisiana. An attempted simple battery is a simple assault." Id. at 781 ... Similarly, in State v. Arita, 2001-1512 (La.App. 4th Cir.2/27/02), 811 So.2d 1146, the defendant, who was charged with second degree battery, was convicted of "attempted" second degree battery. The court of appeal vacated the conviction, stating: ... 973 So.2d 970 ... La.C.Cr.P. art. 814(A)(15), which sets forth the only ... ...
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State v. McDowell
... ... Lambert , 15-629, (La.App. 4 Cir. 3/16/16), ... 191 So.3d 630, writ denied , 16-681 (La. 4/7/17), 218 ... So.3d 109; State v. Joshua , 42,766 (La.App. 2 Cir ... 1/9/08), 973 So.2d 963, writ denied , 08-358 (La ... 9/19/08), 992 So.2d 951; State v. Arita , 01-1512 ... (La.App. 4 Cir. 2/27/02), 811 So.2d 1146; State v ... Marsh , 17-584 (La.App. 4 Cir. 11/8/17), 231 So.3d 736; ... and State v. Nazar , 96-175 (La.App. 4 Cir. 5/22/96), ... 675 So.2d 780 ... In ... contrast, Louisiana courts ... ...