State v. Poche

• Decision Date: 01 March 2006
• Docket Number: No. 05-1042.,05-1042.
• Citation: 924 So.2d 1225
• Parties: STATE of Louisiana v. Parnell POCHE.
• Court: Court of Appeal of Louisiana — District of US

924 So.2d 1225

STATE of Louisiana v. Parnell POCHE.

No. 05-1042.

Court of Appeal of Louisiana, Third Circuit.

March 1, 2006.

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Douglas L. Hebert, Jr., District Attorney, Joe Green, Assistant District Attorney, Oberlin, Louisiana, for State of Louisiana.

Prentice L. White, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant: Parnell Poche.

Parnell Poche, In Proper Person, St. Gabriel, Louisiana.

Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and J. DAVID PAINTER, Judges.

SULLIVAN, Judge.

On March 24, 2005, Defendant, Parnell Poche, was convicted of committing battery of a correctional facility employee in violation of La.R.S. 14:34.5(B)(2) and obscenity in violation of La.R.S. 14:106. On April 8, 2005, Defendant filed a motion for post-verdict judgment of acquittal, which the trial court denied on April 12, 2005. Defendant also filed a motion for new trial on May 5, 2005; however, he withdrew this motion at the sentencing hearing.

At the sentencing hearing, the trial court ordered Defendant to serve two years at hard labor for the obscenity conviction and four years at hard labor without benefit of probation, parole, or suspension of sentence for the battery of a correctional facility employee conviction. The trial court also fined Defendant $500.00 for his battery conviction. The trial court ordered each sentence to be served consecutively with each other and with any sentence Defendant was already serving. After being sentenced, Defendant filed a motion to reconsider and correction of excessive and illegal sentence with the trial court, which the trial court denied. Defendant appeals, arguing that the State failed to meet its burden of proving one element of each crime. Defendant also filed a supplemental brief containing several pro se assignments of error.

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Review of the record, revealed one error patent and one possible error patent. The possible error patent—whether or not Defendant validly waived his right to counsel—is raised in Pro Se Assignment of Error No. 1; therefore, the error is addressed in that assignment.

The bill of information contains an error in the citation for the charge of battery on a correctional facility employee. In one portion, the bill correctly cites La.R.S. 14:34.5(B)(2) as the statute for battery on a correctional facility employee. In another portion, the bill correctly refers to the crime as "battery on correctional facility employee" and sets forth the appropriate elements of that crime but incorrectly cites La.R.S. 14:34.2(B)(2), which is the citation for battery of a police officer.

The erroneous citation of a statute in a charging instrument is addressed by La. Code Crim.P. art. 464:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

Nothing on the face of the record indicates the citation error misled Defendant to his prejudice. The correct statute is cited in one portion of the bill, and the elements of the correct offense are set forth in the bill. Neither the minutes nor the pleadings indicate Defendant alleged any prejudice prior to trial. Accordingly, the error is harmless.

Facts

Each cell block at the Allen Correctional Center is divided into tiers. A tier consists of a wide dead-end hall with thirteen cells lining the right side. Defendant lived alone in the thirteenth cell at the far end of the C-1 tier of the Mars Cell Block. Nurse Trisha Johnson and Sergeant David Amrine, employees of Allen Correctional Center, distributed medication to inmates at three o'clock in the morning as part of their regular duties. The medication distribution duty required Nurse Johnson, escorted by Sergeant Amrine, to visit Defendant's cell two or three times a week.

On February 12, 2003, as per standard procedure, both Nurse Johnson and Sergeant Amrine announced pill call prior to entering the tier. When they entered the well-lit hall, they saw Defendant masturbating at the far end of the hall. Defendant had pressed himself against the bars of his cell, pushed his penis through the bars, and was stroking his erect penis outside of the bars with his hand. Inmate masturbation or exposure of himself to a prison employee is a violation of Allen Correctional Center's rules.

In accordance with policy, both Nurse Johnson and Sergeant Amrine asked Defendant to stop masturbating while they were at the beginning of the tier and several times thereafter. Defendant ignored the requests and continued to masturbate while Nurse Johnson distributed medication to the other inmates on the tier. When Nurse Johnson and Sergeant Amrine reached the eleventh or twelfth cell and saw that Defendant was not going to stop, Nurse Johnson announced, per standard procedure, that Defendant was refused medication. Nurse Johnson and Sergeant Amrine then turned around and walked toward the tier exit. Before they had gotten far, Defendant threw a liquid, which strongly smelled of urine, toward them. The liquid hit Nurse Johnson on her lower left leg and Sergeant Amrine's back. Throwing substances on the prison employees is also against the Allen Correctional Center's rules. At that point, Defendant told Nurse Johnson and Sergeant Amrine that he would teach them to not give him his pills by "p-ssing" or "sh-tting" them down every day.

Nurse Johnson and Sergeant Amrine testified that they neither invited nor wanted Defendant to throw anything at them and that Defendant's masturbation and being hit by the urine were offensive to them. They each completed a written report describing Defendant's behavior.

Captain Terry Langley, an investigator at Allen Correctional Center, questioned Defendant about the incident. Defendant admitted throwing the liquid but told Captain Langley that it was soap and water.

Sufficiency of the Evidence—Obscenity

The defense contends there was insufficient evidence to convict Defendant of obscenity because the State failed to prove that he intended to arouse Nurse Johnson by masturbating, asserting that inmate masturbation was commonplace at the prison and was done regardless of the audience.

In determining sufficiency of the evidence on appeal, this court has previously stated:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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 ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

In order for the State to obtain a conviction, it must prove the elements of the crime beyond a reasonable doubt. In order for this court to affirm a conviction, the record must reflect that the State has satisfied this burden of proving the elements of the crime beyond a reasonable doubt. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367.

State v. Touchet, 04-1027, pp. 1-2 (La. App. 3 Cir. 3/9/05), 897 So.2d 900, 902 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). "The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony; thus, a reviewing court may impinge on the `fact finder's discretion [... ] only to the extent necessary to guarantee the fundamental due process of law.'" State v. Johnson, 03-1228, pp. 4-5 (La.4/14/04), 870 So.2d 995, 998 (quoting State v. Sylvia, 01-1406, p. 3 (La.4/9/03), 845 So.2d 358, 361).

The law prohibiting obscenity provides, in pertinent part:

A. The crime of obscenity is the intentional:

(1) Exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view, or in any prison or jail, with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.

La.R.S. 14:106. Evidence that a defendant's genitals were exposed and that he was masturbating indicate that his actions were intended to arouse himself and is sufficient to support an obscenity conviction. State v. Arabie, 507 So.2d 859 (La. App. 5 Cir.1987); see also State v. Lewis, 00-53, (La.App. 4 Cir. 12/13/00), 776 So.2d 613, writ denied, 01-381 (La.10/5/01), 798 So.2d 966; State v. Strong, 446 So.2d 506 (La.App. 4 Cir.1984); State v. Walters, 440 So.2d 115 (La.1983).

In State v. Smith, 04-805 (La.App. 3 Cir. 11/10/04), 887 So.2d 701, Smith appealed his obscenity conviction, alleging insufficient evidence. Smith was an inmate housed at the Avoyelles Correctional Center where a window in the inmates' shower room overlooked an employee desk area. Smith stood at the window, looked down at two female guards, and began to masturbate. From their desks where they were processing mail, both female guards observed Smith with his erect penis in his hand. Both female guards verbally ordered Smith to stop, but Smith ignored the orders and only ceased...