State v. Fortino

• Decision Date: 30 December 2002
• Docket Number: No. 02-KA-708.,02-KA-708.
• Citation: 837 So.2d 684
• Parties: STATE of Louisiana v. Eugene FORTINO.
• Court: Court of Appeal of Louisiana — District of US

837 So.2d 684

STATE of Louisiana v. Eugene FORTINO.

No. 02-KA-708.

Court of Appeal of Louisiana, Fifth Circuit.

December 30, 2002.

Arcenious F. Armond, Jr., Gretna, LA, for Appellant.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Appellate Counsel, Thomas J. Butler, Counsel of record on appeal, Frank Brindisi, Trial Counsel, Rob Konrad, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee.

Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS. JAMES L. CANNELLA, Judge.

The Defendant, Eugene Fortino, appeals from his conviction of second degree battery and his sentence to four years imprisonment at hard labor. We affirm the conviction and sentence and remand.

The Defendant was charged on August 22, 2001 with second degree battery on his estranged wife, Constantina Lopipero (Lopipero), a violation of La.R.S. 14:34.1. He pled not guilty at arraignment. On October 23, 2001, the State filed a Notice of Intent to Use Evidence of Other Crimes. The motion was heard and granted. Supervisory writs were applied for and denied in this Court in January of 2002.¹ The Louisiana Supreme Court also denied writs.² On January 30, 2002, a six-person jury found the Defendant guilty as charged and the trial judge sentenced the Defendant on February 22, 2002 to four years imprisonment at hard labor.

Lopipero testified that she and the Defendant met in April of 2000 and were married on July 21, 2001. On the night of July 27, 2001, as the couple was preparing to go to sleep in their house in Marrero, Lopipero, as usual, opened a window a few inches for her cat. Earlier that night, the Defendant had closed it, even though he knew that she liked to leave it open. When the Defendant discovered the open window, he became extremely angry. He told her, "I'm sick of you, and I'm sick of your f—ing cat, you bitch." Lopipero told him that she did not want him to curse at her. The Defendant grabbed her from behind, clutching her in a chokehold. He forced her onto the bed as he continued to choke her. She testified that she could not breathe, she felt her neck crack and she feared for her life. The Defendant also kicked her from behind. Although Lopipero attempted to push defendant away, she was not strong enough. The Defendant weighs about 200 pounds and she weighs about 109 pounds. During the struggle, the Defendant told her that he was the man of the house and that he was going to "teach her a f—ing lesson." Lopipero then lost consciousness. When she regained her faculties, Lopipero went into the living room and sat on the sofa. She was having difficulty breathing. She felt as if she were dying and would never see her family again. The Defendant followed her into the living room and sat next to her. Although she tried to placate him, he beat her about the head and face seven to eight times. When he stopped, Lopipero told the Defendant that she was going outside to smoke a cigarette, thinking she could escape him. However, the Defendant followed her. At 4:00 a.m. he told her to go back inside with him and she complied. The Defendant then ordered her to lay down in a chair with him and they had sexual relations. She testified that she did so because she was afraid that he would beat her again if she did not cooperate. The Defendant fell asleep, but Lopipero was afraid to leave for fear that she would awaken him.

After the Defendant left for work the morning of July 28, Lopipero telephoned her friends, Jackie and David. She told them what the Defendant had done to her and they instructed her to leave the house and meet them at a filling station. Meanwhile, David called police and she returned to the house to meet with the officers.

Deputy Al Hymel met with Lopipero at her house. Lopipero testified that she showed the officer a bump on her head, a cut over her eyebrow, and facial swelling. She said that she had a clot in her eye and the inside of her mouth was cut. Deputy Hymel testified that the victim's neck and left side of her face were red. The area around her eye was swollen and there was a scratch above her left eye. He felt a bump on the back of her head. He testified that Lopipero did not have any scars or broken bones. Based on his investigation, Deputy Hymel obtained an arrest warrant for the Defendant.

Lopipero testified to instances of abuse that occurred prior to the July of 2001 incident. She stated that she was diagnosed with multiple sclerosis in April of 2001. She experienced symptoms such as general weakness, difficulty walking, and vision problems. The Defendant would not allow her to mention her symptoms to him, because he felt that she had brought the illness on herself by letting "Satan" into her.

In February of 2001, the Defendant was driving her home from a play at his church when the couple became involved in a heated argument about the play's subject matter involving children being sent to hell. The Defendant grabbed Lopipero by the neck and banged her head against the window. He screamed at her that she was "the devil." Defendant later apologized to her and the two reconciled.

On May 26, 2001, the Defendant and Lopipero joined friends for dinner at a restaurant to celebrate their engagement. While at the restaurant, the Defendant flirted with a woman whom he had formerly dated. He told Lopipero that this woman was a "tiger." The following morning, as she was waking up, he again spoke to her about the former girlfriend. Lopipero asked him if he had to talk about the woman, and got up and went to shower. When she came back into the room, the Defendant grabbed her and threw her against the vanity, and said, "Do you want to get f—ed, bitch?" He also grabbed her by her throat and shoved her into the mirror. He continued to choke her until she fell to the floor. The Defendant told her that she had to learn to respect him. He then left the house to go to work. Although Lopipero was in a great deal of pain, she went to work that day, and later went with a friend and co-worker to pick up the Defendant's son from a former marriage. She was feverish and vomiting from the beating. When the Defendant returned home from work and saw how ill she was, he became violently angry, and denied that he had caused her injuries. Lopipero testified that she and the Defendant were married and spent their honeymoon in Las Vegas, Nevada. She testified that the Defendant struck her even during their honeymoon.

Attia Meda Gerhold (Gerhold), a friend of Lopipero's, testified that she telephoned her after the February of 2001 incident. She stated that Lopipero was crying hysterically. She told Gerhold that the Defendant had grabbed her by the throat and shoved her against the car window. Gerhold also saw Lopipero after the May of 2001 incident. Lopipero was very upset and pale, and was crouched over. She appeared to have internal injuries. Lopipero showed Gerhold the badly bruised left side of her body. Gerhold said that she has seen the Defendant verbally abuse Lopipero.

Angela Fortino (Fortino) testified that she married the Defendant in 1992 and divorced him seven years later. Fortino stated that throughout the marriage, the Defendant physically attacked her without provocation. He slapped her, attempted to strangle her, and threatened to kill her. In one instance, she blacked out as the Defendant continued to choke her. She suffered a fractured nose and pulled ligaments in her neck and shoulder in that incident. Fortino testified to another incident in which the Defendant bit her face and foot.

The Defendant testified that he did not attempt to strangle Lopipero in July of 2001, but stated that he did push her away from him that night. The Defendant also denied hitting or choking Lopipero in May of 2001 and denied shoving her head against a car window after the church play in February of 2001. While he did not admit to the severe beatings alleged by the State, he admitted to having hit Fortino four or five times during the course of their marriage. He also testified that he slapped both of his wives. He claimed that he knew it was wrong to hit a woman, but that he did it in the heat of argument. He stated that his anger was relieved after he slapped his wives.

On appeal, the Defendant asserts that the evidence was insufficient, that the trial judge erred in admitting Prieur evidence, and that the sentence is excessive.

In the first assignment of error, the Defendant contends that the State failed to satisfy its burden of proof beyond a reasonable doubt that he is guilty of second-degree battery.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the elements of the crime in the light most favorable to the prosecution, to find the essential elements of the offense were proven beyond a reasonable doubt. State v. Evans, 00-1766, p. 3 (La.App. 5th Cir.4/11/01), 786 So.2d 781, 783, writ denied, 01-1390 (La.4/12/02), 812 So.2d 664; State v. Williams, 99-223, p. 6 (La.App. 5th Cir.6/30/99), 742 So.2d 604, 607.

La.R.S. 14:33 defines battery in part as "the intentional use of force or violence upon the person of another." La.R.S. 14:34.1 provides:

Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.

For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme 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.

Defendant contends that the state failed to prove that Lopipero's injuries were sufficient to constitute "serious bodily injury" as intended by the second-degree battery statute. Howeve...