Opinion
NUMBER 2012 KA 0758
01-23-2013
STATE OF LOUISIANA v. CARL ARNAUD
Richard Ward, District Attorney Tony Clayton, Asst. District Attorney Elizabeth Engolio, Asst. District Attorney Michael Maronge, Asst. District Attorney Plaquemine, LA Attorneys for Appellee State of Louisiana Tommy Thompson Port Allen, LA and Lieu T. Vo Clark Louisiana Appellate Project Mandeville, LA Attorneys for Appellant Defendant - Carl Arnaud Carl Arnaud Angola, LA In Proper Person Defendant - Appellant
NOT DESIGNATED FOR PUBLICATION
Appealed from the
18th Judicial District Court
In and for the Parish of Iberville, Louisiana
Trial Court Number 948-06 C
Honorable William C. Dupont, Judge
Richard Ward, District Attorney
Tony Clayton, Asst. District Attorney
Elizabeth Engolio, Asst. District Attorney
Michael Maronge, Asst. District Attorney
Plaquemine, LA
Attorneys for Appellee
State of Louisiana
Tommy Thompson
Port Allen, LA
and
Lieu T. Vo Clark
Louisiana Appellate Project
Mandeville, LA
Attorneys for Appellant
Defendant - Carl Arnaud
Carl Arnaud
Angola, LA
In Proper Person
Defendant - Appellant
BEFORE: PARRO, HUGHES, AND WELCH, JJ.
WELCH , J.
The defendant, Carl Arnaud, was charged by amended grand jury indictment with second degree murder, in violation of La. R.S. 14:30.1. He pled not guilty. Following a jury trial, the defendant was found guilty of second degree murder, and the trial court sentenced him to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. The defendant now appeals, arguing one pro se and three counseled assignments of error. We affirm the conviction and sentence.
The indictment also charged Jeremy Butler. Roderick Henderson, and Morquincy Mosby with the same offense. Butler testified at trial, pursuant to an undisclosed plea arrangement with the State. During jury deliberations, Henderson and Mosby pled guilty to the lesser charge of manslaughter.
FACTS
On the morning of July 7, 2006, Roderick Henderson and Morquincy Mosby (the "codefendants"), the defendant, and Jeremy Butler, rode together in Butler's car, a blue Buick Regal, to Dedrick Edwards's home in Bayou Goula, Lousiana. The State's case hinged primarily upon the testimony of Butler, who cooperated with the State and testified at trial. He said that on that morning, he left his mother's house to buy cigarettes and on the way home, passed the defendant and the codefendants sitting outside, and they asked him for a ride. He told them that he was going to Edwards's home to buy dope, and they said they would go too. Edwards was a drug dealer from whom Butler had bought crack cocaine before. This time, Butler said they all planned to go "jack" Edwards, that he and Henderson brought revolvers, and the defendant brought an SKS rifle. Their plan was to split any money and dope they got from Edwards.
The defendant and the codefendants did not testify at trial.
According to Butler, when they arrived at Edwards's trailer, only he got out of the car. He knocked on the front door of the trailer and James Kelly (the victim) opened it and told him that Edwards was in the back bedroom. Kelly and Butler knew each other. Butler testified that he knocked on Edwards's bedroom door, announced his presence and, when Edwards opened the door, told him that he wanted to buy an "8-ball." Edwards's girlfriend, Shaila Delaune, was in the bedroom as well. Edwards and Butler went to the adjoining bathroom where Edwards scaled up the drugs, but instead of paying, Butler grabbed the drugs and he and Edwards started fighting. Butler claimed that as they were fighting, he heard a gunshot, at which point he pulled out his revolver, Edwards let him go, and Butler ran out of the bedroom. He then saw the defendant standing inside the trailer with the rifle in his hands, and Kelly lying on the floor.
Two witnesses testified that they saw a blue Regal parked at Edwards's trailer that morning and that there were three or four men in the car.
Delaune confirmed Butler's account that he knocked on the bedroom door, Edwards opened it, and then the two men went into the bathroom. Delaune remained in the bed the entire time Butler was in the room and she could not see much. However, she recalled that Edwards and "the robber" struggled with each other in the bathroom and that she heard a gunshot. She testified that "the robber" was not the shooter, and she thought someone else was in the trailer.
Edwards, who testified at trial, recalled events a little differently. He said that someone knocked on his bedroom door and, disguising his voice, said that he wanted to buy dope. This person, who was wearing a mask and carrying a gun, pushed open the door and told Edwards to "up it." Edwards said that he and the robber struggled with the gun from the bedroom to the bathroom and that, once the robber fled the room, he heard a gunshot. Edwards looked out the trailer door and saw Butler and another man get into a blue Buick Regal. There were other masked men in the car. He speculated that the incident was not about drugs but that Butler was upset with him for sleeping with Butler's girlfriend. He said he never kept drugs at his home and that Butler had never been to his trailer before. Edwards also testified that Thomas Kelly, who was inside the trailer that morning, told him that he saw a man, who was not Butler, standing at the end of the hallway with a shotgun.
Thomas Kelly gave a statement to Iberville Parish Sheriffs Office (IPSO) Detective Eric Ponson, but the trial court determined that it was inadmissible hearsay because Thomas Kelly died prior to the trial.
Butler recalled that when he walked out of the trailer, Mosby was in the back seat of the car and Henderson was standing outside of the car. Butler, Henderson, and the defendant got into the car and drove away. They then took the Plaquemine ferry across the Mississippi River, heading towards Baton Rouge. Once they were in Baton Rouge, Butler dropped off the defendant near a white Jeep driven by an unidentified woman. The defendant took the guns with him so that they would not be in the Regal if Butler was stopped by the police. Butler and the codefendants continued on to Katina Henderson's house in Baton Rouge where Butler stayed until, at his mother's urging, he turned himself in to the police the next day. He claimed that the defendant and the codefendants came to Katina's house to caution him to remain silent
Once Butler turned himself in to the police, he gave a statement that he described at trial as only partially true. This first statement did not mention that the defendant had a rifle and got into a white Jeep, nor did it name all the codefendants. However, he did tell the police on July 10, 2006, that the defendant was the person who shot James Kelly. He explained that in his initial statements to the police, he lied because he did not want to give up the other men involved. Butler expressly denied that James Kelly was shot accidentally while Butler and Edwards struggled over the revolver.
IPSO Detective Eric Ponson went to Edwards's trailer to investigate the crime scene and determined that only one shot had been fired. Charles Watson, an expert in the field of forensic science and firearms examination, examined the bullet fragments removed from Kelly's body. He testified that, in his opinion, the bullet could not have been fired from a pistol, but was consistent with a firing from a rifle.
COUNSELED ASSIGNMENTS OF ERROR NOS. 1 & 2
In two related counseled assignments of error, the defendant contends that the trial court erred in denying his motion for a mistrial, as the State was allowed to make a substantive amendment to the indictment after the trial began.
The original grand jury indictment, dated September 26, 2006, charged the defendant, Butler, Henderson, and Mosby with committing the offense of principal to second degree murder of James Kelly, in violation of La. R.S. 14:30.1 and La. R.S. 14:24. The indictment was amended on July 7, 2011, to charge them as "principals to second degree murder," when the offenders) was (were) engaged in the perpetration of armed robber of Dedrick Edwards even though he has no intent to kill or to inflict great bodily harm." On August 18, 2011, the jury was selected and opening arguments were about to start when the State amended the indictment a second time, to charge the defendant and the codefendants with "second degree murder of James Kelly with specific intent to kill or inflict great bodily harm and/or committed principal to second degree murder of James Kelly when the offender or offenders was or were engaged in the perpetration of armed robbery or attempted [armed robbery] of Dedrick Edwards even though he has no intent to kill or inflict great bodily harm... ."
The defendant immediately objected to the State's final amendment. He claimed that the State had previously assured him that it intended to proceed under the felony-murder doctrine, and he pointed out that he had not questioned the jurors about specific intent. The court did not view the amendment as a surprise because throughout the case, everyone talked about one person who pulled the trigger and the others were guilty under the principal statute. The court also thought that the amendment did not prejudice the defendant because it actually put a higher burden on the State to prove specific intent. As the objections from Henderson, Mosby, and the defendant mounted, the State withdrew the motion to amend, but the trial court asked the State to wait. The State then revealed that it would only seek to show that the defendant acted with specific intent to kill or inflict great bodily harm.
The defendant argued that while the burden to prove specific intent may be higher than that to prove felony-murder, the amendment would effectively broaden the State's basis for conviction. The State responded that under La. Code Crim. P. art. 487, it was allowed to amend the indictment at any time for defect, imperfection, omission, or uncertainty, and that the final amendment was for clarification purposes. The court ruled that it would allow the amendment because it did not affect the defendant in any substantial manner, the potential sentence did not change, the substance of what was alleged did not change, the facts that everyone knew or assumed stayed the same, and the State had a higher burden. The defendant's request for a continuance or mistrial was denied.
In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. La. Const, art. I, §13. This requirement protects the accused's right to prepare a defense and exercise fully his rights of confrontation and cross-examination. The bill of information or indictment must therefore inform the accused of the nature and cause of the accusation against him in sufficient detail to allow him to prepare for trial, as well as to allow the court to determine the admissibility of the evidence. See State v. Johnson, 93-0394 (La. 6/3/94), 637 So.2d 1033, 1034-35 (per curiam).
The amendment of indictments and bills of information is regulated by La. Code Crim. P. art. 487, which states, in pertinent part:
A. An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.
Once the trial has begun, the State may not substantively amend a bill of information or indictment to charge a new offense. State v. Johnson, 637 So.2d at 1035. A jury trial commences when the first prospective juror is called for examination. La.C.Cr.P. art. 761. Since the jury had already been selected in this case when the amendment occurred, the trial had commenced.
Determination of whether the court erred in allowing the amendment of the indictment is made by considering whether the defendant was prejudiced. State v. Booker, 2002-1269 (La. App. 1st Cir. 2/14/03), 839 So.2d 455, 465, writ denied, 2003-1145 (La. 10/31/03), 857 So.2d 476. The defendant argues that because the amendment was one of substance, a showing of prejudice was not required and he was entitled to a mistrial However, a "defect of substance" as contemplated by Article 487 is intended to mean a defect which will work to the prejudice of the party accused. See City of Baton Rouge v. Norman, 290 So.2d 865, 870 (La. 1974). The purpose of requiring the State to file an amendment to the indictment before trial is to provide the defendant with adequate notice of the charge so that he may properly prepare his defense. When the indictment against him provides sufficient notice of the crime with which he is charged, a defendant suffers no prejudice. See State v. Young, 615 So.2d 948,951 (La. App. 1st Cir.), writ denied. 620 So.2d 873 (La. 1993); see also State v. Delandro, 2001-2514 (La. App, 1st Cir. 5/10/02), 818 So,2d 1011, 1017.
The original bill of indictment charged the defendant as a principal to second degree murder, citing La. R.S. 14:30.1, and did not specify whether it was felony-murder or specific-intent murder. The final amendment was presumably based upon Butler's anticipated testimony which identified the defendant as the shooter. Though the defendant was unaware of what specifically Butler would say at trial, the record reflects that all parties were aware that Butler had provided statements to the police before and was expected to cooperate with the State by testifying at trial. In addition, the theory and facts of the crime - that one person shot Kelly during an armed robbery by several individuals who had varying degrees of involvement - did not change. All iterations of the indictment charged the defendant with second degree murder. While the defendant argues that the amendment allowed the State a wider target for conviction, a new and separate crime was never alleged. Compare State v. Johnson, 637 So.2d at 1035. The basis of conviction was never expanded beyond second degree murder, and the defendant was always provided sufficient notice of the charge against him to prepare for trial. Accordingly, the defendant suffered no prejudice by the amendment of the indictment and the trial court did not err in denying the motion for a mistrial.
We also note that the jury returned a verdict of guilty of second degree murder. The verdict did not specify whether it was founded on felony-murder or specific intent to kill or inflict great bodily harm, though evidence was presented to support either conclusion.
Because the codefendants pled guilty prior to the jury reaching a conclusion, we do not know what the jury verdicts on those individuals would have been.
These assignments of error are without merit.
COUNSELED ASSIGNMENT OF ERROR NO. 3
In his third counseled assignment of error, the defendant contends that other crimes evidence admitted during the trial was not admissible pursuant to La. Code Evid. art. 404(B). Specifically, he argues that the trial court erred in allowing the State to present evidence of his prior felony conviction for simple robbery because it was not relevant to any material fact in issue, and the only purpose the evidence served was to show that he was a bad person and a robber.
Louisiana Code of Evidence Article 404(B)(1) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act. La. Code Evid. art. 404(B)(1). Furthermore, the other crimes evidence must tend to prove a material fact genuinely at issue and the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. See State v. Millien, 2002-1006 (La. App. 1st Cir. 2/14/03), 845 So.2d 506, 513-14. Prejudicial effect limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. State v. Germain, 433 So.2d 110, 118 (La. 1983); see also Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997) ("The term 'unfair prejudice,' as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.").
The procedure to be used when the State intends to offer evidence of other criminal offenses was formerly controlled by State v. Prieur, 277 So.2d 126 (La. 1973). Prior to its repeal by 1995 La, Acts No. 1300, §2, La. Code Evid. art. 1103 provided that the notice requirements and clear and convincing evidence standard of Prieur and its progeny were not overruled by the Code of Evidence. Under Prieur, the State was required to give a defendant notice, both that evidence of other crimes would be offered against him, and on which exception to the general exclusionary rule the State intended to rely. State v. Prieur, 277 So.2d at 130. Additionally, the State had to prove by clear and convincing evidence that the defendant committed the other crimes. State v. Prieur, 277 So,2d at 129; State v. Millien, 845 So.2d at 514. However, 1994 La. Acts, 3d Ex.Sess., No. 51, §2, added La. Code Evid. art. 1104, which provides that the burden of proof in pretrial Prieur hearings, "shall be identical to the burden of proof required by Federal Rules of Evidence Article IV, Rule 404." The burden of proof required by Federal Rules of Evidence Article IV, Rule 404, is satisfied upon a showing of sufficient evidence to support a finding by the jury that the defendant committed the other crime, wrong, or act. See Huddleston v. U.S., 485 U.S. 681, 685, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988). The Louisiana Supreme Court has yet to address the issue of the burden of proof required for the admission of other crimes evidence in light of the repeal of La. Code Evid. art. 1103 and the addition of La. Code Evid. art. 1104. However, numerous Louisiana appellate courts, including this court, have held that burden of proof to now be less than "clear and convincing." See State v. Millien, 845 So.2d at 514.
In the instant case, at a pretrial hearing on July 7, 2011, the State sought to amend the indictment to charge the defendants as felons in possession of a firearm, which would be derived from the facts on the date of the murder. All the defendants objected and the court refused to allow it because it would require rearraignment and delay of the trial, and the State had waited too long to make an amendment that it could have made years earlier. The State then advised the court that it intended to "Prieur in" the gun charges on all defendants except Butler, and the issue was set for a later hearing.
At the Prieur hearing, held on August 15, 2011, the State gave notice of its intent to present evidence of the defendant's prior conviction for simple robbery, stemming from an incident in March 1995, to which he pled guilty. At the hearing, Steve Falcon, the victim of that robbery, testified that he was at a convenience store in Plaquemine when he hitched a ride with the defendant and three other black men, none of whom he knew. Once he got into their car, one of the men hit him with a pistol and robbed him. The State argued that the facts surrounding the simple robbery conviction were admissible as evidence of the defendant's pattern and motive, showing that he traveled with a group of men and had the same type of plan and preparation for robbery. The trial court disagreed, determining that the 1995 robbery was a crime of convenience and the instant case was one of intent, committed under different circumstances.
The State also introduced evidence that Henderson had a prior conviction in September 2003 for attempted possession of cocaine and in November 2006 for illegal carrying of a weapon, and that Mosby had a prior conviction in September 2002 for distribution of cocaine.
The State then presented testimony from IPSO Captain Mike Sparks, who investigated the Kelly homicide. Captain Sparks testified that the defendant was a felon and not allowed to carry a firearm, but that a rifle was used during the instant case. He cited Butler's statement to the police that the defendant had a rifle during the armed robbery. The State argued again that the 1995 simple robbery-conviction was admissible because it showed the defendant's intent and motive, specifically that "instead of going to work like everybody else he just robs people. And then he uses guns or guns are involved whenever these robberies takes [sic] place so we think that comes in," With respect to all the defendants, the State argued: "... that is the whole intent of 404B, not to show that they're bad guys but to show that they operate, Judge, they operate under the cover of darkness, they operate early in the morning when folks are sleeping, and they ride around like a bunch of shoot them up, bang-bang kind of guys and just, you know, like they can just do this." The defendant argued that possession of a firearm by a convicted felon had nothing to do with proving that he committed the crime, nor did it show motive, opportunity, intent, preparation, knowledge or mistake, but instead was purely for the purpose of showing that he is a bad person who had done other bad things.
The trial court ruled that if testimony was elicited during the trial that indicated that the defendant possessed a firearm or had one in his immediate vicinity, it would allow evidence of the prior conviction to come in, but not the underlying facts. The court explained that under Article 404(B), "I think that would be probative in this regard [sic] intent or motive to have a weapon as a convicted felon, yes. That is my reasons for whatever it's worth, all right." At trial, Butler testified that the defendant had a rifle when he got into Butler's car before the robbery, that he shot Kelly with that rifle, and that he took the rifle with him afterwards. Therefore, the trial court allowed the State to introduce evidence of the prior conviction, reasoning that it could show the . defendant's guilty knowledge and intent because he possessed a firearm when he was not supposed to.
The State was also allowed to introduce evidence of the codefendants' felony convictions.
Before the State called Christy Crochet, the defendant's probation and parole officer for the simple robbery conviction, the trial court cautioned the jury as follows:
Evidence that the defendant was involved in the commission of an offense other than the offense for which he is on trial is to be considered only for a limited purpose. The sole purpose for which such evidence may be considered is whether it tends to show guilty knowledge [or] intent. Remember, the accused is on trial only for the offense charged. You may not find him guilty of this offense merely because he may have committed another offense.Crochet then testified that one of the defendant's parole conditions, stemming from his conviction for simple robbery, was that he was not to have in his possession or control any firearm or dangerous weapon.
We find that introducing evidence of the defendant's simple robbery conviction was prohibited under La. Code Evid. art, 404(B). The fact that he was convicted of a prior felony and was not supposed to have a firearm has no relevance to his guilty knowledge or intent in the instant case. While his possession of a gun on the morning of July 7, 2006, on the way to Edwards's house, goes towards showing his intent to commit a crime or his knowledge that the men were prepared to commit armed robbery, his status as a felon does not, and the conviction was, therefore, inadmissible other crimes evidence. We also reject the State's argument, made on appeal, that the evidence relates to conduct that constitutes an integral part of the act. Whether or not the defendant possessed a gun may constitute an integral part of the crime in this case, but again, whether or not he was a convicted felon simply does not.
We can only conclude that the real purpose for which this evidence was introduced was to show that the defendant had a bad character and that he had committed prior bad acts. La. Code Evid- art. 404(B)(1) specifically prohibits evidence of other crimes, wrongs, or acts when their only purpose is to show that the defendant acted in conformity therewith. The simple robbery conviction did not tend to prove a material fact genuinely at issue in this case. Additionally, the fact that the defendant was convicted of simple robbery over ten years earlier has no probative value on whether or not he committed the crime at issue in this case, and only served to prejudice the jury against him, by painting him generally as a robber. Since the other crimes evidence failed to meet any of the requirements of La. Code Evid. art, 404(B), the trial court erred in allowing it to be introduced at trial.
However, the erroneous admission of other crimes evidence is subject to harmless error analysis. The test for determining harmless error is whether the verdict actually rendered in this case was surely unattributable to the error. See State v. Morgan, 99-1895 (La. 6/29/01), 791 So.2d 100, 104 (per curiam), After reviewing the record in its entirety, we conclude that the jury's verdict was based on the evidence presented at trial that demonstrated the defendant intentionally shot the victim or that the shooting occurred during the perpetration of an armed robbery. The evidence showed the following: On the morning of July 7, 2006, four individuals, including the defendant, went to Edwards's home armed with a rifle and two pistols with the intent to rob Edwards of money and/or drugs; two individuals went into the house; Butler attempted to rob Edwards; Kelly was shot by someone other than Butler; and all four individuals left the scene together. Butler's testimony, corroborated by Delaune, was that he was in the back bedroom wrestling with Edwards when they heard a gunshot. Butler and Edwards both testified that Butler had a gun with him, but it was not a rifle. However, the forensic examination determined that Kelly was shot by a rifle, Butler's testimony was the only evidence that placed the rifle in the defendant's hands, but if his testimony was believed by the jury, it was sufficient to find the defendant guilty of second degree murder of Kelly by shooting him with the intent to kill or to inflict great bodily harm. Butler, Edwards, and Delaune also testified that Butler was trying to rob Edwards at the time that Kelly was shot, and Butler testified that the four men went to Edwards's home, armed with weapons, with the intent to "jack" him. Alternatively, the jury could have found the defendant guilty of second degree murder because Kelly's death occurred during the perpetration of an armed robbery. Considering this evidence, the guilty verdict was surely unattributable to the erroneously introduced other crimes evidence. Accordingly, while we agree that the defendant's prior simple robbery conviction should not have been introduced at trial, we find that its introduction was harmless beyond a reasonable doubt and does not constitute reversible error. See La. C.Cr. P. art. 921.
This assignment of error is without merit.
PRO SE ASSIGNMENT OF ERROR
In his only pro se assignment of error, the defendant argues that there was insufficient evidence to sustain his conviction for second degree murder. Specifically, he contends that his conviction is not supported by the weight of the evidence because the State failed to prove his identity as the perpetrator. He argues that Butler's testimony, which alone identified him as the gunman, was uncorroborated, unreliable, internally inconsistent, and contradicted.
The standard of review for the sufficiency of evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime and the defendant's identity beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L Ed.2d 560 (1979). See also La. C.Cr.P. art. 821; State v. Lofton, 96-1429 (La. App. 1st Cir. 3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So.2d 1331. The Jackson standard of review incorporated in Article 821 is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. State v. Davis, 2000-2685 (La. App. 1st Cir. 11/9/01), 818 So.2d 76, 79.
Where the key issue is the defendant's identity as the perpetrator of the crime, rather than whether or not the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Johnson, 99-2114 (La. App. 1st Cir. 12/18/00), 800 So.2d 886, 888, writ denied. 2001-0197 (La. 12/7/01), 802 So.2d 641. Positive identification by only one witness may be sufficient to support a conviction. State v. Davis, 2001-3033 (La. App. 1st Cir. 6/21/02), 822 So.2d 161, 163. Moreover, it is the factfinder who weighs the respective credibilities of the witnesses, and this court generally will not second- guess those determinations. See State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047, 1051.
Second degree murder is defined, in part, as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm, or when the offender is engaged in the perpetration or attempted perpetration of, among other crimes, armed robbery even though he has no intent to kill or to inflict great bodily harm. See La. R.S. 14:30.1(A)(1) & (2). Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La„ R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the factfinder. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person See State v. Henderson 99-1945 (La. App. 1st Cir. 6/23/00), 762 So.2d 747, 751, writ denied, 2000-2223 (La. 6/15/01), 793 So.2d 1235.
The defendant does not contest that the offense was committed. Rather, he denies that he was the perpetrator, presumably meaning the gunman, as his complaint is that Butler's testimony was the State's only evidence to identify him as the person who shot Kelly. The State's case that the defendant was the gunman was based primarily on Butler's testimony and neither the defendant nor the codefendants testified at trial. We also note that Butler testified pursuant to an undisclosed agreement with the State, a fact which was brought to the jury's attention and surely factored into their assessment of Butler's credibility. The defendant points out the inconsistencies throughout Butler's testimony, such as Butler's statements that he was going to Edwards's home to "jack" him, but that he was likely going to pay for the drugs, and then that he did not have the courage to rob Edwards until he had the defendant, Henderson, and Mosby with him. The defendant also notes the contradictions between the testimony of Butler and Edwards. In particular, Edwards recalled that the shot was fired seconds after Butler ran out of the bedroom, a direct challenge to Butler's account that the shot was fired while he and Edwards were fighting in Edwards's bedroom.
As noted already, Butler's testimony was the only evidence that placed the rifle, the purported murder weapon, in the defendant's hands, but if his testimony was believed by the jury, it was enough to find that the defendant was the perpetrator of the crime. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. See Davis, 818 So.2d at 80. Further, "[b]ecause a determination of the weight of the evidence is a question of fact, this court has no appellate jurisdiction to review it in appeals of criminal cases." State v. Gordon, 2001-0236 (La. App. 1st Cir. 2/15/02), 809 So.2d 549, 552, writ denied, 2004-2438 (La. 6/24/05), 904 So.2d 733. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a jury's determination of guilt. See State v. Hendon, 94-0516 (La. App. 1st Cir. 4/7/95), 654 So.2d 447, 450. The reviewing court cannot substitute its idea of what the verdict should be for that of the jury. Further, the appellate court is constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases; that determination rests solely on the sound discretion of the trier of fact. State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83.
As the trier of fact, the jury was free to accept or reject, in whole or in part, the testimony of any witness. The guilty verdict returned by the jury indicates that it accepted the State's evidence and rejected the defendant's theory of misidentification. See State v. Andrews, 94-0842 (La. App. 1st Cir. 5/5/95), 655 So.2d 448, 451, 453. We cannot say that the jury's determination was irrational under the facts and circumstances presented to thern. See State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the jury and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
After a careful review of the record, we are convinced that any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have concluded that the State proved beyond a reasonable doubt that the defendant was the perpetrator of the offense.
This assignment of error is without merit.
For the foregoing reasons, the defendant's conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.