HIGGINBOTHAM, J.
The defendant, Antwoene Irving, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty and, following a jury trial, was found guilty as charged. The defendant filed a motion for post-verdict judgment of acquittal, which was denied. The defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating three assignments of error. We affirm the conviction and sentence.
After dating for a brief period, the defendant and Kiewanna Sopsher began living together in Kiewanna's trailer on Central Avenue in Roseland, Tangipahoa Parish. Kiewanna's young son and daughter also lived with them. According to several relatives of Kiewanna who testified at trial, the defendant began physically abusing Kiewanna. On different occasions, Kiewanna had an injured lip, marks and scratches on her, bumps on her head, and bruises on her neck, A short time later, to get away from the defendant, Kiewanna moved out of the trailer and into the home of her sister, who lived about one-half mile from Kiewanna.
On the evening of April 5, 2011. Kiewanna drove her eleven-year-old son, Dareale, to the trailer they had lived in so that Dareale could get a belt for school. When Dareale got to the door of the trailer, he saw the defendant standing near Kiewanna's vehicle, a Buick Rendezvous, talking to her. Moments later, Dareale heard his mother scream and saw the defendant inside the vehicle choking Kiewanna, accusing her of having been with another man. Dareale tried to get the defendant off of his mother, but the defendant kicked Dareale to the ground. The defendant then jumped in the driver's seat and drove the Buick away with Kiewanna in the front passenger seat. Less than one mile away, the defendant turned onto Washington Avenue. As he drove, Kiewanna was somehow ejected from the vehicle. After hitting the roadway, she may also have been run over by the rear wheel of the vehicle. The defendant stopped, picked up Kiewanna, who was not breathing, and placed her on the backseat floorboard. He then drove around for about three hours, including as far north as McComb, Mississippi. After talking on a cell phone to some people he knew, the defendant turned himself in to the police. The Buick, with Kiewanna's body still in it, was found on La. Hwy. 67 in East Feliciana Parish.
Dr. Susan Garcia, the pathologist who performed the autopsy on Kiewanna, testified that the cause of death was a hinge fracture to the skull. Dr. Garcia explained that Kiewanna had a fracture line across the base of her skull, which usually causes severe debilitating injury to that part of the brain stem that is crucial to functioning, and often results in instantaneous death.
The defendant was interviewed by the police. In a recorded statement, the defendant said that Kiewanna asked him to go for a ride. The defendant denied trying to choke Kiewanna or that Dareale tried to stop him. The defendant admitted that during their relationship, he had choked Kiewanna once. The defendant claimed that while he was driving, Kiewanna somehow fell from the vehicle because she apparently thought the defendant was going to beat her up. After she hit the ground, the defendant stated that he felt the back tire run over a bump, He then stopped the vehicle, picked up Kiewanna, placed her in the vehicle, and drove around.
The defendant did not testify at trial.
In three related assignments of error, the defendant argues, respectively: (1) the trial court erred in failing to instruct the jury the State had to prove the victim died from a direct act of the defendant; (2) the trial court erred in denying the motion for post-verdict judgment of acquittal regarding the felony murder rule, which required proof of a direct act of the offender as a prerequisite of murder; and (3) the evidence was insufficient to support the second degree murder conviction. The defendant suggests that all of the assignments of error address one issue: "the proof of necessary support [for] a second degree murder conviction under the felony murder rule."
A conviction based on insufficient evidence cannot stand as it violates Due Process.
Three criminal statutes are at issue in this appeal The first statute relates to second degree murder in La. R.S. 14:30,1, and provides in pertinent part:
The second criminal statute relates to second degree kidnapping, found at La. R.S. 14:44.1, and provides in pertinent part:
Specific intent is an issue under the second degree murder statute. Specific intent is that state of mind that 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). Such state of mind can be formed in an instant.
The defendant does not contest the pertinent facts in this case, namely, that he took control of Kiewanna's vehicle; he drove around with her in the passenger seat; and at some point during the drive, Kiewanna fell or was ejected out of the moving vehicle and died as a result of the injuries she sustained. Confined to a single legal issue, the defendant argues that the State failed to establish that his actions constituted the direct act of killing Kiewanna. Relying on a recent Louisiana Supreme Court decision,
In
However, the Supreme Court reversed the conviction for second degree murder in
The defendant's reliance on, and interpretation of,
The agency test adopted in Louisiana requires that a "direct act" of the defendant or his accomplice commit the act of killing, and that the proximate cause test, rejected by our Supreme Court, holds the defendant responsible for all deaths that foreseeably result from the acts of defendant and co-felons.
In the instant matter, the defendant stated that Kiewanna jumped or fell from the vehicle, and, similarly, the theory of the defense was that Kiewanna voluntarily ejected herself from the vehicle. Detective Don McKey, with the East Feliciana Parish Sheriff' Office, testified the defendant told him that when Kiewanna was hanging on the vehicle, he grabbed her, trying to keep her from jumping. The prosecution's theory was that Kiewanna leapt from the moving vehicle to get away from the defendant. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilt) unless there is another hypothesis which raises a reasonable doubt,
Several witnesses testified at trial that the defendant physically abused Kiewanna on several occasions, leaving marks and scratches on her, including on her neck. A short time before she was killed, Kiewanna had broken up with the defendant, left her own trailer and moved in with her sister, to get away from the defendant. On the night she was killed, the defendant had attacked, choked and kidnapped Kiewanna and, apparently, refused to let her out of her vehicle as he drove away. Thus, the jury's verdict reflected the reasonable conclusion that based on the physical evidence and the eyewitness testimony, Kiewanna jumped from the vehicle because she was in fear of receiving great bodily harm from the defendant or even of being killed.
The defendant's contention that the State failed to prove the direct act of killing because Kiewanna "elected to eject herself from the car" is baseless. Kiewanna ejected herself from the vehicle on her own volition to escape direct acts of violence upon her person by the defendant.
In his statements to the police, the defendant said that Kiewanna invited him to take a ride, and that the next thing he knew while he was driving her vehicle, she just fell out of the vehicle. The defendant explained that before she fell out of the vehicle, she was hanging on the door frame facing the defendant, with her legs hanging outside of the vehicle. Then at some point, she let go. Had the defendant been invited into the vehicle or had not entered it against Kiewanna's will, then the State could not have established the underlying felony of aggravated burglary or second degree kidnapping. However, testimony and physical evidence suggest the defendant was not invited into the vehicle and Kiewanna had no intention of riding around with him. Kiewanna had broken up with the defendant and moved out of her own trailer to get away from him. On the night the defendant got into her vehicle, Kiewanna had only made a quick ride over to the trailer with her son, Dareale, so that he could get a belt for school. Kiewanna was wearing pajama bottoms and apparently wore no shoes when she drove to the trailer, actions strongly indicative of her intending a very brief trip from her sister's house and back. Dareale testified that before he went into the trailer to get his belt, he saw the defendant choking Kiewanna while he had her pushed back into the front passenger seat. Dareale intervened and tried to get the defendant off of his mother, but the defendant kicked him, knocking him out of the vehicle, before taking off with Kiewanna still in the vehicle. Kiewanna jumped out of her vehicle only 4/10 of a mile from where the defendant abducted her. Detective Mike Moore, with the Tangipahoa Parish Sheriff's Office, testified that he drove the 4/10 of a mile distance from where Kiewanna was abducted to where Kiewanna's blood was found on the roadway, the spot where she allegedly jumped from the vehicle. According to Detective Moore, that drive took only seconds. The autopsy revealed that Kiewanna had linear abrasions on the right and left sides of her neck. In her left eye she had petechiae, burst blood vessels usually caused by strangulation. Dr. Garcia testified that her neck injuries were not caused from hitting the road, but were consistent with being choked.
The jury heard the testimony and viewed the evidence presented to it at trial and found the defendant guilty as charged. The defendant did not testify.
The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient.
We note as well, the defendant's actions of leaving the scene where Kiewanna was injured and probably deceased, taking the body with him and driving around for hours are actions that are inconsistent with a theory of innocence. Flight following an offense reasonably raises the inference of a "guilty mind."
After a thorough review of the record, we find that the evidence supports the jury's unanimous verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of the hypothesis of innocence suggested by the defense at trial, that the defendant was guilty of the second degree murder of Kiewanna Sopsher.
The defendant also argues the trial court erred in refusing to include the defendant's request for the jury charge that Kiewanna died as a direct act of the defendant. Specifically, during trial, defense counsel's motion for jury instructions requested the following language be provided to the jury: "The State of Louisiana must prove that the physical element of Antwoene Irving's act or conduct in causing the death may only be shown by proof that he . . . performed the direct act of killing." Finding that the charge would only confuse the jury, the trial court denied the motion. We find no error in the trial count's ruling. The trial court provided the fall definition of second degree murder (less the irrelevant enumerated felonies) in its jury charges this statutory definition adequately covered the applicable law. Moreover the trial court pointed out at the motion hearing, and as discussed above, to include such language about the direct act of killing "would lead the jury to conclude that [the defendant had] to actually touch, push, shoot, grab, stab, batter, or whatever to be guilty under the felony murder statute," but the jurisprudence does not support that contention.
Accordingly, these assignments of error are without merit.