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State v. Desilva12/9/1998
hat date existed.
The defense presented Althea Howard, who lived in an upstairs apartment at the corner of St. Philip and Marais. She testified that when she heard the gunshots, she went to her door and saw a young woman standing across the street who told her to call the police. She testified she became so nervous that she sat on her sofa and took some aspirin, and when she next looked outside the police had arrived. She could not identify the defendant as the person who told her to call the police, but she testified the same person who told her to call the police was later taken into custody by the police. She also testified she did not see anyone take the victim's wallet, nor did she see a female running from the scene.
Otis Alexander, the defendant's father, testified that his daughter was living with him in the 1600 block of N. Robertson at the time of the shooting. He indicated he did not know Ms. Benjamin, nor had he heard her name prior to the shooting.
It was stipulated that the victim's blood alcohol level was .11 percent.
By her sole assignment of error, the defendant contends there was insufficient evidence to support the verdict. Specifically, she argues the State failed to prove that she had either the intent to kill or inflict great bodily harm on the victim or the intent to engage in an armed robbery of the victim.
In State v. Egana, 97-0318 pp. 5-6 (La.App. 4 Cir 12/3/97), 703 So.2d 223, 227-228, this Court set forth the standard for an appellate review of the sufficiency of evidence to support a defendant's conviction:
"In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4th Cir. 1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La. 1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green, supra. " 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." State v. Smith, 600 So.2d 1319 at 1324 (La. 1992).
"In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La. 1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La. 1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt stand
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