Full Opinion (html_with_citations)

STATE OF LOUISIANA                             *    NO. 2022-KA-0346

VERSUS                                         *
                                                    COURT OF APPEAL
TERRENCE KEITH WILSON                          *
                                                    FOURTH CIRCUIT
                                               *
                                                    STATE OF LOUISIANA
                                      *******



                               APPEAL FROM
             ST. BERNARD 34TH JUDICIAL DISTRICT COURT
                        NO. 21-01648, DIVISION “B”
                     Honorable Jeanne Nunez Juneau, Judge
                                  ******
                        Judge Tiffany Gautier Chase
                                  ******
(Court composed of Chief Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge
Tiffany Gautier Chase)


Walter R. Woodruff, Jr.
Anna M. Singleton
CHEHARDY LAW FIRM
One Galleria Blvd.
Suite 1100
Metairie, LA 70001

      COUNSEL FOR APPELLANT

Perry Michael Nicosia, District Attorney
Megan Suffern, Assistant District Attorney
Justin Stephens, Assistant District Attorney
34TH JDC, ST. BERNARD PARISH
1101 W. St. Bernard Highway
Chalmette, LA 70043

      COUNSEL FOR APPELLEE

                                                   APPEAL CONVERTED TO
                                                   WRIT; WRIT GRANTED;
                                                   CONVICTION AFFIRMED
                                                   DECEMBER 09, 2022
TGC
TFL
JCL
            Defendant/Relator Terrence Keith Wilson (hereinafter “Mr. Wilson”) filed

      this appeal seeking review of a first offense misdemeanor conviction of domestic

      abuse battery, a violation of La. R.S. 14:35.3. After consideration of the record

      before this Court and applicable law, we affirm Mr. Wilson’s conviction and

      sentence.

                           Conversion of Appeal to Supervisory Writ

            There is no right of appeal from a misdemeanor conviction. State v. Walker,

      2005-0876, p. 1 (La.App. 4 Cir. 3/15/06),
929 So.2d 155, 156
. However, this Court

      may exercise supervisory jurisdiction and convert an improperly filed criminal

      appeal to a writ. State v. Waddell, 2012-0111, p.1 (La.App. 4 Cir. 10/24/12),
102 So.3d 1025, 1027
; State v. Morales, 2013-1148, p. 1 (La.App. 4 Cir. 1/22/14),
133 So.3d 144, 145
. An appeal can be converted to an application for supervisory

      review when the appeal is filed within the thirty-day period allowed for an

      application of supervisory writ. Plaquemines Par. Gov’t v. Williams, 2018-0675, p.

      5 (La.App. 4 Cir. 12/19/18),
262 So.3d 1080
, 1085.




                                              1
       The trial court held a bench trial on March 31, 2022, in which Mr. Wilson

was found guilty of domestic abuse battery. On April 27, 2022 Mr. Wilson filed a

notice of appeal; thus, his appeal was timely filed. Accordingly, we exercise our

supervisory jurisdiction and convert Mr. Wilson’s appeal to an application for

supervisory writ. See La. C.Cr.P. arts. 912.1(B)(1) and 912.1(C)(1).

                         Relevant Facts and Procedural History

       On May 5, 2021, Mr. Wilson arrived at the home of his then wife, Sameka

Leonard (hereinafter “Ms. Leonard”), to discuss their joint checking account.1

Following a discussion, a physical altercation ensued. Mr. Wilson and Ms. Leonard

both called 911.2

       On May 12, 2021, a Gwen’s Law hearing was held wherein the court set a

bond of $2,500.00 and issued a protective order, ordering Mr. Wilson to surrender

his gun.3 Thereafter, on June 4, 2021, Mr. Wilson was charged by bill of

information with domestic abuse battery, first offense, a violation of La. R.S.

14:35.3. A bench trial was held on March 31, 2022. At the trial, three witnesses

testified as to the events that occurred on May 5, 2021.

       Detective Jason Prevaue (hereinafter “Detective Prevaue”) testified that he

reported to Ms. Leonard’s home following a 911 call. Detective Prevaue noted that

Ms. Leonard had a visible cut on her lip and that she stated Mr. Wilson struck her



1 Mr. Wilson and Ms. Leonard were married at the time of the incident but had been separated

since 2014. According to Mr. Wilson, the parties were divorced on October 27, 2021.
2 Both Ms. Leonard and Mr. Wilson’s 911 calls were submitted into evidence at trial.


3 La. C.Cr.P. art. 313 commonly referred to as “Gwen’s Law,” allows a trial court to conduct

a contradictory bail hearing for a person in custody who is charged with domestic abuse battery,
violation of a protective order, stalking, or any felony offense involving the use or threatened use
of force or a deadly weapon upon a family member.



                                                 2
in the face.4 He also testified that Mr. Wilson had no visible injuries and declined

EMS support.

       Ms. Leonard also testified. She stated that Mr. Wilson came to her home to

discuss the joint checking account and that the verbal altercation turned physical

and Mr. Wilson struck her in the face. Ms. Leonard admitted to calling Mr. Wilson

names and putting him into a headlock but she maintains that her actions were in

direct response to Mr. Wilson’s actions.

       Mr. Wilson testified in his case in chief. He stated that he went to Ms.

Leonard’s home to inform her that he was no longer going to make deposits into

their joint checking account. According to Mr. Wilson, Ms. Leonard became upset,

called him names, and asked him to leave her house. Mr. Wilson testified that

when Ms. Leonard asked him to leave her home and he refused, she began pushing

and hitting him. Mr. Wilson maintains that he did not intentionally strike Ms.

Leonard, rather he contends that the two were fighting on the floor when his index

finger entered her mouth resulting in the laceration to her lip.

       After taking the matter under advisement, the trial court found Mr. Wilson

guilty of domestic abuse battery, a violation of La. R.S. 14:35.3. He was sentenced

to four months in parish prison, with all but seven days suspended, and was

ordered to pay a fine of $300.00 and court costs. This appeal followed.

                                          Discussion




4 Detective Prevaue asked Ms. Leonard to execute a written statement of her account of the

altercation. The written statement, introduced by the State, indicates that Ms. Leonard was struck
in the face by Mr. Wilson. The State also introduced a photograph of Ms. Leonard’s bloody lip.
Detective Prevaue was wearing a bodycam which shows the conversation he had with Ms.
Leonard after arriving to her home. The bodycam footage, also submitted by the State at trial,
shows Ms. Leonard telling an officer that Mr. Wilson hit her.


                                                3
       Mr. Wilson challenges his conviction. He argues that there was insufficient

evidence to show that he intentionally used force or violence upon Ms. Leonard.5

Specifically, Mr. Wilson submits: (1) there was insufficient evidence to show that

he committed domestic abuse battery; (2) the State failed to establish beyond a

reasonable doubt that he committed domestic abuse battery; and (3) the trial court

erred in concluding he did not act in self-defense. Therefore, we will consider

whether the State presented sufficient evidence for the trial court to find Mr.

Wilson guilty of domestic abuse battery.

Sufficiency of Evidence

       When reviewing claims of insufficiency of evidence, an appellate court must

determine whether the evidence, viewed in the light most favorable to the

prosecution, is sufficient to convince a rational trier of fact that all of the elements

of the crime have been proved beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307
,
99 S.Ct. 2781
,
61 L.Ed.2d 560
 (1979); State v. Ross, 2012-0109, p.7

(La.App. 4 Cir. 4/17/13),
115 So.3d 616, 620
. This Court must review “the record

as a whole since that is what a rational trier of fact would do.” State v. Lightfoot,

2018-0336, p.4, (La.App. 4 Cir. 12/12/8),
318 So.3d 1033
, 1038 (quoting State v.

Huckabay, 2000-1082, p.32 (La.App. 4 Cir. 2/6/02),
809 So.2d 1093, 1111
.)

(citations omitted).

   “[A] reviewing court is not called upon to decide whether it believes the

witnesses or whether the conviction is contrary to the weight of the evidence.”

Huckabay, 2000-1082, p.32,
809 So.2d at 1111
 (quoting State v. Smith,
600 So.2d 1319, 1324
 (La. 1992)). “The existence of conflicting statements as to factual

5 This appeal is now considered an application for supervisory review, thus a review of the

record for errors patent is not required. However, out an abundance of caution, a review of the
record for errors patent reveals none.


                                              4
matters affects the weight of the evidence, not its sufficiency, and such a

determination rests solely with the trier of fact who may accept or reject, in whole

or in part, the testimony of any witness.” State v. McGinnis, 2019-0381, p.11

(La.App. 4 Cir. 3/11/20), __So.3d__, p.11,
2020 WL 1173567
 *5. The testimony

of a witness is sufficient to support a conviction if believed by the trier of fact. See

State v. Wells,
2010-1338 (La.App. 4 Cir. 3/30/11)
,
64 So.3d 303
 (citation

omitted). This Court will not disturb the ruling of the factfinder, concerning the

credibility of a witness, unless it is clearly contrary to the evidence. State v. James,

2009-1188, p.4 (La.App. 4 Cir. 2/24/10),
32 So.3d 993, 996
.

      The crux of Mr. Wilson’s argument, in his first two assignments of error,

centers on Ms. Leonard’s alleged conflicting testimony from the Gwen’s Law

Hearing and at trial. Specifically, he submits that Ms. Leonard’s conflicting

testimony and the State’s evidence was insufficient to prove that he committed

domestic abuse battery.

      La. R.S. 14:35.3(A) defines domestic abuse battery as “intentional use of

force or violence committed by one household member or family member upon the

person of another household member or family member.” Criminal intent may be

specific or general. La. R.S. 14:10. La. R.S. 14:35.3 does not specify if it is a

general or specific intent crime. In the absence of a qualifying provision, the terms

“intent” and “intentional” reference towards general intent. La. R.S. 14:11. Thus, a

reading of La. R.S.14:35.3 in pari materia with La. R.S. 14:10-11, suggests it is a

general intent crime.

      The testimony and evidence presented by the State included: Ms. Leonard’s

written statement dated May 5, 2021; an image of the laceration on Ms. Leonard’s




                                           5
lip; Ms. Leonard and Mr. Wilson’s 911 call; bodycam footage; Detective Prevaue’s

testimony; and Mr. Wilson’s testimony.

      Ms. Leonard testified in the State’s case in chief. She likewise testified at

Gwen’s Law Hearing on May 12, 2021. Mr. Wilson points out that Ms. Leonard’s

testimony at the Gwen’s Law Hearing conflicted with her trial testimony. At the

Gwen’s Law Hearing, Ms. Leonard could not recollect whether Mr. Wilson struck

her in the face with a closed or open hand. At trial, Ms. Leonard testified that Mr.

Wilson struck her in the face with a closed fist when asked to leave her home.

Although conflicted on whether Mr. Wilson used a closed or open hand, a review

of Ms. Leonard’s testimony from the Gwen’s Law Hearing and the bench trial

demonstrates that she consistently maintained that Mr. Wilson initiated physical

contact and struck her in the face. The testimony of Detective Prevaue was that Mr.

Wilson did not sustain any injuries. Conversely, he stated that Ms. Leonard had a

lip laceration, swollen nose, and was visibly distressed.

      After hearing the testimony and considering the evidence, the trial court

determined that Mr. Wilson was the aggressor. The trial court also found Ms.

Leonard’s recollection of the altercation credible and noted that the evidence

submitted by the State was sufficient to conclude that Mr. Wilson committed

domestic abuse battery. As credibility determinations are within the discretion of

the trial court, it will not be disturbed upon review. State v. Marshall, 2004-3139,

p. 9 (La. 11/29/06),
943 So.2d 362, 369
 (“Credibility determinations are within the

sound discretion of the trier of fact and will not be disturbed unless clearly contrary

to the evidence.”).

Self-Defense




                                          6
       Mr. Wilson further submits that the trial court erred in finding that his

actions were not in self-defense and that the State failed to meet its initial burden

that he committed domestic abuse battery. Mr. Wilson contends that Ms. Leonard

was the aggressor and that he only made contact with Ms. Leonard as a result of

her actions.

       Our Supreme Court has noted that “[i]n a non-homicide situation, the

defense of self-defense requires a dual inquiry; an objective inquiry into whether

the force used was reasonable under the circumstances; a subjective inquiry into

whether the force was apparently necessary.” State v. Freeman,
427 So.2d 1161, 1163
 (La. 1983) (citation omitted). “[T]his [C]ourt has consistently declined to

settle definitively on the issue of which party bears the burden of persuasion in

proving self-defense in non-homicide cases.” State v. Abbott, 2017-0016, p.18

(La.App. 4 Cir. 6/14/17),
222 So.3d 847, 857
 (quoting State v. De Gruy, 106-0891,

pp.
18-19 (La.App. 4 Cir. 4/5/17)
,
215 So.3d 723, 733
) (citation omitted). However,

Louisiana Court of Appeal, Third Circuit, has provided some guidance on the issue

in McCauley v. McCauley, stating that the defendant has the burden of proving

self-defense, in non-homicide cases, by a preponderance of the evidence.

McCauley v. McCauley, 2020-27, p.24, (La.App. 3 Cir. 10/21/20),
305 So.3d 981
,

995.

       La. R.S. 14:19 sets forth the instances in which the use of force or violence

upon another is justifiable and in pertinent part states:

       [T]he use of force or violence upon the person of another is
       justifiable… when committed for the purpose of preventing a forcible
       offense against the person or a forcible offense or trespass against
       property in a person's lawful possession, provided that the force or
       violence used must be reasonable and apparently necessary to prevent
       such offense.



                                           7
La. R.S. 14:19(A)(1)(a). Further, “a person who is the aggressor or who brings on a

difficulty cannot claim the right of self-defense unless he withdraws from the

conflict in good faith and in such a manner that his adversary knows or should

know that he desires to withdraw and discontinue the conflict.” La. R.S. 14:21.

      Mr. Wilson’s self-defense claim lacks merit. The State produced

sufficient evidence to establish that Ms. Leonard was the only party to suffer

physical injuries. There is no evidence to indicate that Mr. Wilson striking Ms.

Leonard in the face was justified and for the purposes of preventing a forcible

offense. Thus, we do not find that the trial court erred in rejecting Mr. Wilson’s

claim for self-defense.

                                      Conclusion

      Viewing the evidence and testimony presented by the State, in a light most

favorable to the prosecution, we find the trial court was presented with sufficient

evidence that Mr. Wilson intentionally used force and/or violence upon Ms.

Leonard. The trial court found Ms. Leonard’s testimony credible and determined

that Mr. Wilson struck her in the face. See McGinnis, 2019-0381, p.11,
2020 WL 1173567
 *5. Furthermore, Mr. Wilson’s claim of self-defense is not justifiable as it

does not negate the trial court’s finding that he committed domestic abuse battery.

This Court will not disturb the ruling of the trial court if it is not contrary to the

evidence within the record. See James, 2009-1188, p.4,
32 So.3d at 996
.

Accordingly, we find the trial court did not err in determining that Mr. Wilson

committed domestic abuse battery in violation of La. R.S. 14:35.3.

                                       Decree

      For the following reasons, we grant Mr. Wilson’s application for review and

affirm his conviction and sentence.

                                          8
    APPEAL CONVERTED TO
    WRIT; WRIT GRANTED;
    CONVICTION AFFIRMED




9