State v. Sims

Decision Date30 June 2021
Docket NumberNo. 53,791-KA,53,791-KA
Citation322 So.3d 902
CourtCourt of Appeal of Louisiana — District of US
Parties STATE of Louisiana, Appellee v. Gary P. SIMS, Jr., Appellant

LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Counsel for Appellant

JOHN F.K. BELTON, District Attorney, Counsel for Appellee

E. MICHAEL MAHAFFEY, CLIFFORD ROYCE STRIDER III, Assistant District Attorneys

Before MOORE, STONE, and STEPHENS, JJ.

STEPHENS, J.

This criminal appeal by defendant, Gary P. Sims, Jr., arises from the Third Judicial District Court, Union Parish, State of Louisiana. Sims was convicted of one count of aggravated battery and six counts of aggravated assault on a peace officer with a firearm and sentenced to a total of 30 years at hard labor. For the following reasons, we affirm Sims’ conviction and sentence for aggravated battery and reverse his convictions and sentences for aggravated assault on a peace officer with a firearm.

FACTS AND PROCEDURAL HISTORY

On April 11, 2017, Sims discharged a firearm from inside his residence in Downsville, Louisiana, after a deputy with the Union Parish Sheriff's Department had approached the residence to serve a warrant on him. Multiple law enforcement agencies responded after Sims’ shot was reported. Over the course of several hours, Sims remained inside his residence, which was surrounded by tactical law enforcement teams. Sims later fired from within the residence a second time and was ultimately taken into custody after law enforcement deployed chemical agents into the home. No law enforcement officers were injured during the incident. Sims was charged by amended bill of information with seven counts of attempted first degree murder.

A jury trial began on September 23, 2019. Sims was convicted of one count of aggravated battery and six counts of aggravated assault on a peace officer with a firearm. On December 18, 2019, the trial court sentenced Sims to 10 years at hard labor on each count, with three counts to be served consecutively, and the other four counts to be served concurrently, for a total sentence of 30 years at hard labor. Defense counsel's oral motion for reconsideration based on the consecutive and excessive nature of the sentences was denied by the trial court. This appeal by Sims ensued.

DISCUSSION

On appeal, Sims asserts three assignments of error: (1) there is insufficient evidence to support the aggravated battery conviction; (2) aggravated assault on a peace officer with a firearm is not a responsive verdict to attempted first degree murder; and (3) the sentences imposed are excessive.

Overview of Relevant Testimony

On April 11, 2017, around 8:30 a.m., Deputy Bruce McCrell of the Union Parish Sheriff's Department arrived to serve a warrant on Sims at his residence in Downsville, Louisiana. Deputy McCrell was dressed in official uniform and driving a marked unit. Deputy McCrell knocked on the front door of Sims’ mobile home but received no response. He then went to the back door and knocked. Still receiving no response, Dep. McCrell used a broken axe handle found outside the residence to reach over a bush and knock on the front of the home near a window, where he believed the bedroom would be located. Deputy McCrell heard someone inside the residence respond but could not understand what was said. Deputy McCrell identified himself, asked the person to meet him at the front door to talk, and walked back to the front door. When no one came to the door, Dep. McCrell again knocked on the wall near the window with the axe handle, at which time "a gunshot come through the side of the trailer," slightly to the right of where Dep. McCrell was standing. Deputy McCrell retreated from the mobile home and requested assistance from dispatch.

A number of officers responded to the location, including members of the Union Parish Sheriff's Department, the Monroe Police Department SWAT Team, the Ouachita Parish SWAT Team, and the Louisiana State Police SWAT Team. The officers used loudspeakers in an unsuccessful attempt to establish contact with Sims and get him to surrender. Around 12:00 p.m., the Monroe SWAT Team breached the front door of the mobile home with their armored vehicle, the "bearcat," so they could throw in a phone, but Sims slammed the door shut. At 12:35 p.m., two teams of officers deployed multiple ferret rounds of CS powder into the mobile home. The team positioned behind the home consisted of Scotty Sadler, Donnell Gray, James Crouch, and Kevin Cope of the Monroe Police Department SWAT Team, and Chris Wright and Nathan Sharbono of the Louisiana State Police. As that team was deploying CS powder into the rear of the mobile home, they heard one or two gunshots.1 The shots came from inside the residence through the window on the back door. None of the officers were injured, and they did not return fire. More CS powder and CS gas were deployed, and an unarmed Sims eventually exited the mobile home through the back door. Sims was shot with a beanbag round and finally apprehended around 1:30 p.m.

Sims’ home was positioned on a slope, with the ground in front of the mobile home being higher than the ground in the rear. The first shot exited the residence at a slight upward angle, and the shotgun pellets hit a utility pole positioned approximately four feet seven inches from the home, as well as the rear driver's side window of Sims’ truck. Pellets from the subsequent shot(s) fired were not recovered, and officers were unable to determine their trajectory. Police recovered a total of two shell casings from the residence: one casing was found on top of the refrigerator (where Sims said he placed the casing from the first shot fired at Dep. McCrell), and the other casing was found on the floor in the kitchen.

At trial, Sims testified that he had been at his friend's house the night before the incident, drinking all night, and that he "felt like crap." This incident started shortly after he got home that morning. When he got to his house, he made a drink, Seagram's Seven, nearly straight. Sims turned on the window A/C unit in the bedroom to high, finished his drink, and lay down on the bed. Sims heard somebody knock on the bedroom window by the window unit. He thought somebody was breaking into his home because a couple of nights before, a light on his shed was torn down and disabled. Sims did not look out the window, but grabbed his shotgun, went over to the wall by the window, asked who was there, and said he was going to shoot if he didn't get an answer. When Sims did not hear anything, he fired a shot through the wall. Sims stated that he felt threatened and was not trying to kill anybody, just trying to scare off the person.

Sims took the shell casing to the kitchen and made himself another drink. He then went back into the bedroom, finished his drink, and passed out. According to Sims, the next thing he remembered was the bathroom window being knocked out, which scared him. Sims grabbed his shotgun, went into the kitchen, and fired a shot out the back door, believing that somebody was stealing stuff from his shed. He stated that he did not aim at the officers and did not even know they were there. Sims testified that he never heard the loudspeaker and did not remember slamming the front door shut. When he saw the tear gas in the kitchen, Sims realized that it was probably the police, not regular criminals, so he went out the back door, and he was arrested. During his arrest, Sims suffered injuries requiring stitches in his ear and staples to the back of his head.

Sufficiency of the Evidence: Aggravated Battery

In his first assignment of error, Sims asserts the evidence presented at trial is insufficient to support his conviction of aggravated battery. Sims argues that because there was no physical contact to support his conviction for aggravated battery, the state had to produce sufficient evidence to prove that he was guilty of attempted first degree murder, the charged offense, in order for the conviction to stand. Sims maintains that because he was not shooting at anyone and only intended to scare the person banging on the side of his home, he did not have the requisite specific intent to kill.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. La. C. Cr. P. art. 821 ; 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, cert. denied , 541 U.S. 905, 124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004) ; State v. Young , 51,711 (La. App. 2 Cir. 1/18/18), 245 So. 3d 353, writ denied , 2018-0309 (La. 11/14/18), 256 So. 3d 283. The Jackson standard does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 2005-0477 (La. 2/22/06), 922 So. 2d 517 ; State v. Kirby , 53,661 (La. App. 2 Cir. 1/13/21), 309 So. 3d 946, writ denied , 2021-00254 (La. 5/11/21), 315 So.3d 868.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton , 436 So. 2d 471 (La. 1983) ; State v. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So. 3d 717, writ denied , 2016-1479 (La. 5/19/17), 221 So. 3d 78.

The appellate court does not assess the credibility of...

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2 cases
  • State v. Gasser
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    • Louisiana Supreme Court
    • 29 Junio 2022
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