State v. Boiteux

• Decision Date: 30 August 2011
• Docket Number: No. 10–KA–1017.,10–KA–1017.
• Citation: 74 So.3d 731
• Parties: STATE of Louisiana v. Jean U. BOITEUX.
• Court: Court of Appeal of Louisiana — District of US

74 So.3d 731

STATE of Louisiana

v.Jean U. BOITEUX.

No. 10–KA–1017.

Court of Appeal of Louisiana, Fifth Circuit.

Aug. 30, 2011.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Appellate Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.

Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Appellant, Jean U. Boiteux.

Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and HILLARY J. CRAIN, Pro Tempore.

SUSAN M. CHEHARDY, Judge.

[5 Cir. 2] In this appeal, defendant seeks review of his second degree battery conviction and sentence. For the following reasons, we affirm.

On January 7, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jean Boiteux, with second degree battery in violation of La. R.S. 14:34.1. Defendant was arraigned on May 29, 2009, and pled not guilty. On April 19, 2010, the State amended the charge in the bill of information to aggravated battery, in violation of La. R.S. 14:34.¹ Trial commenced before a six-person jury on June 1, 2010. After hearing testimony and evidence, the jury unanimously found defendant guilty of the responsive verdict of second degree battery on June 2, 2010. ² On June 24, 2010, the trial judge sentenced defendant to five years at hard labor. Defendant now appeals his conviction and sentence.³

[5 Cir. 3] Facts

At trial, Marie–Lucie Cleronay testified that she had been in a relationship with Jean Boiteux since 2001 and they have two living children. Further, she stated that she and Boiteux had cohabitated since 2003. In August of 2007, they moved into a house in Harvey, Louisiana. Ms. Cleronay testified that, on December 19, 2008, her children's father, Jean Boiteux, struck her with a metal pipe on the left forearm, sprayed her in the face with pepper spray, and struck her with a leather belt.

Ms. Cleronay stated that, early on the morning of December 19, 2008, at approximately 3:30 to 4:00 a.m., Boiteux came into their children's room where she was sleeping. Boiteux woke her up to complain about her cooking and cleaning skills. Not wanting to wake the children, Ms. Cleronay left the room and walked to the kitchen, and Boiteux followed her, berating her as they went. Then, Boiteux left for work abruptly.

A short time later, Boiteux returned to the house, entered the children's room, pulled Cleronay out of bed and said, “I'm going to make you forget the 911 number.” Ms. Cleronay ran to the garage, where defendant threw a cup of tea in her face and hit her in the left forearm with a metal pipe. She said that it hurt when defendant hit her with the pipe, but the wound did not bleed.

After the defendant left for work, she prepared her children for school, dropped them off, then went to work. Ms. Cleronay returned to her house with her children at approximately 5:30 or 6:00 p.m. because she had no other place to go. When she entered the house, she found defendant standing with his back against the wall and two hands underneath his shirt. She brought her kids to their room and headed toward the kitchen to use the phone.

[5 Cir. 4] As Ms. Cleronay walked past the defendant, he sprayed her in the face with pepper spray. The spray hurt and prevented her from breathing. Ms. Cleronay stated that she knew it was pepper spray because defendant had threatened to use pepper spray on her earlier in the day. After the defendant pepper-sprayed her, he brandished a leather belt and struck her repeatedly on the right side of her head. Ms. Cleronay telephoned 911 while the defendant was still beating her with the belt. During the call, defendant left and Ms. Cleronay informed police that the defendant had fled from the residence in his cab.

Thereafter, EMS arrived on the scene and treated Ms. Cleronay's injuries. At trial, Ms. Cleronay identified the picture taken of the injuries to her hand and arm. She also identified photos taken that depicted injuries she sustained from the pepper spray. X-rays revealed no broken bones.

On cross examination, Ms. Cleronay reiterated that defendant hit her left arm once with a metal pipe, which caused swelling in her arm. She also reiterated that defendant beat her all over her body with the leather belt, including her face. She stated that defendant hit her with his belt and caused her left hand to bleed and scratched her face. Ms. Cleronay admitted that she bit the defendant's left thumb on June 11, 2008.

Deputy Kevin McGuffie of the Jefferson Parish Sheriff's Office testified that, on December 19, 2008, he was dispatched to a disturbance call at 2256 Breckenridge Drive in Harvey, Louisiana. Upon his arrival, Deputy McGuffie observed an adult female victim, crying and tearful, who stated that she had been in an altercation with her boyfriend. The victim, who identified herself as Marie Cleronay, indicated that her boyfriend, Jean Boiteux, had fled the scene in his White Fleet taxi cab. Deputy McGuffie relayed that information to the Sheriff's Office dispatcher.

[5 Cir. 5] According to the information received from the victim, earlier that same day, her boyfriend and children's father, Jean Boiteux, abruptly entered the room in which she slept and stood at the foot of the bed yelling insults at her. To prevent him from waking their preschool-aged children, she left the room and defendant followed. When she fled to the garage, he picked up a metal pipe ⁴ and struck her on the left forearm. The defendant immediately left the residence. Ms. Cleronay did not call the police at that time.

When Ms. Cleronay returned later that afternoon, Jean Boiteux was standing in the entryway of their house with “both of his hands tucked up underneath his shirt.” After she settled the children in their bedroom, she returned to the main living area of the house. When she entered the room, Boiteux removed one hand from underneath his shirt and sprayed Ms. Cleronay in the eyes, mouth, and nose with pepper spray.

Ms. Cleronay recounted that, after Boiteux pepper-sprayed her, he removed his other hand from underneath his shirt and produced a men's leather belt. Boiteux proceeded to hit her with the belt. She showed cuts on her fingers consistent with wounds received in defending herself.

Deputy McGuffie testified that he observed signs that were consistent with Ms. Cleronay's account. Specifically, there was a large swollen area on one of her forearms and her face was covered with an orange film indicative of pepper spray. She also had cuts on her fingers and swelling on her cheekbone. Deputy McGuffie identified crime scene photographs, which depicted Ms. Cleronay's left forearm in a splint, cuts on her left index finger, swelling of her left cheek bone, and treatment to remove pepper spray.

[5 Cir. 6] Deputy McGuffie received assistance in responding to the call from Detective Gregory Joerger. Detective Joerger observed Boiteux's vehicle travelling northbound on Manhattan, initiated overhead lights and sirens, and stopped Boiteux. After stopping Boiteux and removing him from his vehicle, Detective Joerger noticed a brown leather men's belt on the floor of the vehicle. Detective Joerger seized the belt then transported Boiteux to the crime scene where Ms. Cleronay identified him as her assailant.

Deputy McGuffie identified the defendant in open court. Deputy McGuffie also identified the metal pipe, which was given to him as evidence of the crime by the victim on the night in question. On cross examination, Deputy McGuffie stated that he never found the pepper-spray can that defendant used.

Defendant, Jean Boiteux, also testified at trial. He stated that he had known Ms. Cleronay since April of 2001 and that she had born him three children. He said that he never hit Ms. Cleronay with a metal pipe, and that she actually sustained the injury to her arm on December 15, 2008, when she fell through the ceiling above their garage. Defendant then stated that he never knew exactly what injury Ms. Cleronay sustained when she fell through the ceiling because she never told him. Defendant denied that he struck Ms. Cleronay with a belt or sprayed her with pepper spray.

Defendant further testified that he did not flee the crime scene on the evening in question because he did not realize that Ms. Cleronay had called the police. He said that if he had known that she had called the police, he would have remained at the home to give his side of the story. Defendant said that once Ms. Cleronay bit his thumb during an argument and that he spent 17 days at LSU Hospital after the bite became infected.

[5 Cir. 7] On cross examination, defendant admitted that, on May 10, 2007, Ms. Cleronay called the police five times during an argument they were having and she claimed that he had hit her. Defendant agreed that Ms. Cleronay had called 911 to report him for domestic disturbances approximately 17 times during the 18 months that they had lived in Harvey. Defendant admitted that he had pled guilty to battery on a police officer in Florida in 1996. He also admitted that he was convicted of aggravated assault with a dangerous weapon and aggravated stalking in Florida in 1997. Based on the foregoing, the jury found defendant guilty of second degree battery.

On appeal, defendant raises two assignments of error: first, defendant argues that the evidence was insufficient to support the verdict of guilty of second degree battery and second, his five-year sentence at hard labor is unconstitutionally excessive.

In his first assignment of error, defendant argues that there was insufficient evidence to support the verdict of second degree battery because the State failed to establish that the victim suffered serious bodily injuries. The State contends, however, that the evidence does not have to support that element because second degree battery was a responsive verdict to the charged crime of aggravated battery, to which the defendant failed...