author: I ¡JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Kenneth SMOTHERS.
    No. 02-KA-277.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Holli Herrle-Castillo, Marrero, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Appellate Counsel, Andrea F. Long, Counsel of record on appeal, Cameron M. Mary, Trial Counsel, Dominick Tamburo, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   I ¡JAMES L. CANNELLA, Judge.

The Defendant, Kenneth Smothers, appeals from his convictions of Counts 1 and 4 of armed robbery and from his sentences on eight counts of armed robbery. We affirm and remand.

On August 17, 2000 the Defendant was charged with eight counts of armed robbery, violations of La.R.S. 14:64. He was tried by a twelve person jury on March 12, 2001, convicted on all eight counts, and sentenced to 99 years imprisonment at hard labor on each count, to be served consecutively.

On appeal, the Defendant asserts that his defense counsel provided him ineffective assistance relative to Counts 1 and 4, that the trial judge erred in failing to grant a mistrial, that the evidence was insufficient as to Count 5, and the sentences were excessive.

Count One

Deputy Jonathan Witman testified that he responded to an armed robbery call on May 20, 2000 at Swifty Serve at 4327 Jefferson Highway. He testified that he was the first person on the scene. He interviewed the victim, Felicia Hawkins, who was somewhat distraught and hysterical. She told Deputy Witman that an unknown black male, wearing a black baseball cap, a blue denim button down shirt and white jeans entered the store and walked around the store toward the back. He [3approached the counter, placed a nickel-plated, semi-automatic handgun on the counter, and told her to give him all the money out of the drawer. She complied and he exited the store. Deputy Witman reviewed the videotape from the surveillance camera and identified the State’s Exhibit 2 as a photograph of the suspect from the videotape. He canvassed the area looking for a suspect, but he was unable to apprehend one that evening.

Sergeant Joe Picone testified that he also investigated the armed robbery at the Swifty Serve. Ms. Hawkins told Sergeant Picone that a black male had entered the store, walked around the store, approached the counter, displayed a handgun, and demanded the money from the register. She described «the suspect as a black male in his 30’s with a small build. Sergeant Picone later obtained a photograph of the suspect from the store videotape. According to the videotape, the suspect was wearing a long-sleeve light blue shirt and white pants. Ms. Hawkins was subsequently shown a photographic lineup and made a positive identification of the Defendant. She did not testify at trial.

Count Two

On May 25, 2000, a man entered the EZ Serve at 1001 Metairie Road and robbed employee, Aleda Smith, at gunpoint. When the man came into the store, she asked him how he was doing and he took a gun from his pants and told her to give him the money that was in the drawer. After she did so, he instructed her to come from around the counter. He put his gun back in his pants and told Ms. Smith that he was not going to hurt her. The man took her to the back of the store, tied her up, told her to wait 15 minutes, and walked out. Ms. Smith testified that the man was wearing a plaid shirt with khaki shorts, a stocking over his head and a baseball cap. She testified that the gun was long and silver. Ms. Smith identified the State’s Exhibit 10 as the gun that the robber produced. She positively identified the Defendant as the perpetrator in the photographic lineup and in court.

| ¿Deputy Daniel O’Neil testified that, when he conducted a follow-up investigation, Ms. Smith was nervous and upset. She told Deputy O’Neil that a black male entered the store, produced a handgun, and demanded money. After Ms. Smith complied, the male took her in the back office and tied her up with a phone cord. After the Sheriffs office focused on the Defendant as a suspect, a photographic lineup was compiled. Deputy O’Neil showed it to Ms. Smith, who positively identified the Defendant as the robber.

Count Three

Kelley Peters was employed as the front desk night auditor at LaQuinta Inn on Causeway Boulevard on June 1, 2000. On that date, she was completing her shift when a man entered, pulled out a gun, set it on the desk, and told her to give him all the money that she had sitting out on the register. Ms. Peters later looked at a photographic lineup, but she could not identify the man who robbed her. However, in court, she looked at the videotape of the robbery and positively identified the Defendant as the perpetrator. Ms. Peters further testified that the gun had a silver top and was medium sized. She identified the State’s Exhibit 10 as the gun used in the robbery.

Val J. Lacour was the general manager for LaQuinta Inn Causeway at the time. He was in charge of the surveillance system at the hotel. He gave to the Jefferson Parish Sheriffs Office a videotape dated June 1, 2000, State’s Exhibit 9.

Detective Williams M. Jones also investigated the robbery at the LaQuinta Inn Causeway. He interviewed Ms. Peters, who told him that a black male had entered the motel armed with a silver handgun and robbed her of money belonging to the business. Detective Jones viewed the videotape from the surveillance camera and compared it to a photograph of the Defendant. He believed that it was the same person. Detective Jones showed a photographic lineup to Ms. Peters who | ¡¡was unable to identify the Defendant as the perpetrator. However, he testified that the Defendant confessed to robbing the LaQuinta Inn.

Count Four

Detective Michael Hoolahan testified that he investigated a robbery on June 3, 2000 at the EZ Serve on Metairie Road. He spoke to the victim, Kimberly Polk, who was extremely upset. She told Detective Hoolahan that a black male had entered the store, pointed a gun at her, and asked for the money. She gave him approximately $100. The man told her to go to the back, but she just stood there. He put the gun back in his waistband and left the store. Detective Hoolahan took possession of the surveillance videotape and turned it over to the robbery division.

Deputy Daniel O’Neil conducted a follow-up investigation. He showed Ms. Polk a photographic lineup and she positively identified the Defendant as the robber. Ms. Polk did not testify at trial.

Count Five

Kim Yambra was a hotel desk clerk at the Landmark Hotel on June 9, 2000 when she was robbed. Ms. Yambra was sitting in the back office when the hotel bell rang. She went to the front desk and saw a man who asked for change for a five dollar bill. When he opened the drawer, the man pulled a “big” silver gun and told her to give him all the money. Ms. Yambra identified the State’s Exhibit 10 as the gun used in the robbery.

Detective Scott Fontaine investigated the robbery and spoke to Ms. Yambra. She informed him that a black male with a baseball cap had entered the hotel, produced a silver semi-automatic handgun, and demanded money. Ms. Yambra complied, gave him the money, and he walked out of the hotel lobby. Afterwards, a photographic lineup was compiled which included the Defendant. However, when Detective Fontaine showed Ms. Yambra the photographic lineup, she was unable to identify the Defendant.

| nCount Six

On June 16, 2000, Patricia Rodrigue was the desk clerk at the Quality Inn in Gretna when a black male came in with a silver automatic gun and said that he wanted all the money in the register. It was her first night on the job and she was standing at the end of the counter. Her trainer, Norma Roussell, was standing behind the register counting the money. Ms. Rodrigue described the robber as wearing a red baseball cap with his hair pulled back. Ms. Rodrigue later positively identified the Defendant in a photographic lineup shown to her by the police and she also identified him at trial. Ms. Rodrigue testified that the gun produced by the State in Exhibit 10 could have been the one the robber used. Ms. Roussell testified that the robber was a black man wearing a red baseball cap. She stated that he walked up to the front desk at approximately 9:00 p.m., went to the water cooler, and then returned to the front desk. Ms. Roussell and Ms. Rodrigue asked the man if they could help him. He responded by pointing a gun at them and demanded that they give him the money. Ms. Roussell opened the cash drawer and gave him the money. She testified that she was nervous and feared for her life. Later, the police showed Ms. Roussell a photographic lineup, but she was unable to identify anyone. However, at trial, Ms. Roussell identified the Defendant in court as the man who robbed them. She also identified the State’s Exhibit 10 as the gun used in the robbery.

Detective William M. Jones investigated the robbery at the Quality Inn. He met with Ms. Roussell and Ms Rodrigue and learned that a man armed with a silver, semi-automatic handgun had entered the hotel and robbed them. The victims described the suspect as a black male, 30 to 40 years old, with dark black hair, wearing a cap and light clothing. The police viewed the videotape from the surveillance camera and observed the suspect entering the business. Detective Jones later presented a photographic lineup to Ms. Rous-sell and Ms Rodrigue. Ms. 17Roussell was unable to identify the robber, but Ms. Ro-drigue positively identified the Defendant.

Count Seven

Donald Watson, Jr. and his sister Monica Watson worked at the Evergreen Plaza Hotel. Mr. Watson was in the maintenance department. Ms. Watson worked as a hotel desk clerk. On June 23, 2000, Mr. Watson went to the hotel lobby. He saw another man enter and go into the bathroom. Mr. Watson followed. He and the man exchanged looks. Mr. Watson then picked up the trash and left to dump the trash. Afterward, Mr. Watson returned to the lobby. At that time, his sister told him that she had been robbed. Mr. Watson stated that the perpetrator was wearing a white sweater and blue jeans. A detective showed Mr. Watson a photographic lineup and he positively identified the Defendant as the man he saw that day. He also positively identified the Defendant in court.

Ms. Watson arrived for work at the hotel a few minutes before 3:00 p.m., and began performing her usual duties of counting the money. She testified that as she did this, a man entered the lobby and went to the restroom. Ms. Watson’s brother also came in. The man then went out the front door. Ms. Watson stated that after Mr. Watson left, one of the housekeepers came in and went into the bathroom area. The man then walked back into the hotel, pulled a gun, and told her to give him the money. Ms. Watson gave the robber approximately $300. She stated that the robber was wearing a striped multi-colored shirt and a red baseball cap. Subsequently, in a photographic line-up she positively identified the Defendant as the robber. She also identified the Defendant in court as the man who robbed her. Ms. Watson testified that the gun which the robber used was big and shiny, and she identified the State’s Exhibit 10 as the gun that the robber used. Ms. Watson testified that it was her responsibility to make sure that a videotape was in the surveillance camera. She viewed the tape in court and identified it as | sportraying an accurate representation of the robbery. She testified that the Defendant was the person on the videotape who robbed her.

Detective Scott Fontaine investigated the robbery at the Evergreen Plaza. He spoke to Ms. Watson, who told him a black male had come into the lobby area, walked around, out of the lobby, and back in, disappeared into a hallway where a bathroom was located, walked back outside, then back inside. Once the customer with whom Ms. Watson was dealing left, the man displayed a silver semi-automatic handgun to her and demanded money. She complied and he walked out of the lobby. Detective Fontaine showed the Watsons a photographic lineup and they positively identified a photograph of the Defendant. Detective Fontaine testified that he did not tell the Watsons that others had previously identified the Defendant.

Count Eight

On June 25, 2000, Jayne Belancio was the assistant general manager at the Ramada Inn Hotel on Causeway Boulevard. On that date, at approximately 7:15 p.m., she was checking-in a guest when a man entered. When she asked him if she could help him, he produced a silver gun, pointed it at her chest, and said, “Give me your cash.” Ms. Belancio testified that Britt Perrin was working next to her. Ms. Be-lancio asked Ms. Perrin to open the drawer and hand him the cash. After they gave him the money, the man paused as if he was thinking about something, but he kept the gun pointed at Ms. Belancio’s chest. The man turned and walked three feet. Then he turned back again pointing the gun at Ms. Belancio. She and Ms. Perrin did not move or talk. The man said, “Just keep doing what you’re doing.” He again turned away, walking toward the door, but came back before leaving. After pausing again, he finally went out the glass automatic doors and disappeared. Ms. Perrin then dialed 911, but Ms. Belancio took the telephone and was talking to the operator when the man returned. He saw Ms. Belancio talking [9in the telephone. When he heard her say to the operator, “He’s back,” he left the hotel. Ms. Belan-cio testified that the man was wearing jeans, a white pullover T-shirt, and a red baseball cap. She identified the gun at trial. Although she could not make a positive identification when she viewed the photographic lineup, she positively identified the Defendant in court as the man who robbed her. Ms. Belancio testified that she was in charge of the surveillance system on the night of the robbery. She identified the videotape introduced by the State as the one taken on the night of the robbery. Ms. Belancio testified that the videotape accurately depicted the robbery.

Tammy Duvernay was a hotel guest at the Ramada Inn on June 25, 2000. As she was checking-in for her honeymoon, a man with a short, silver gun came up to the desk demanding money, which the hotel employee gave him. Ms. Duvernay testified that the robber was wearing a baseball cap, a gray shirt with red sleeves, and stained blue jeans. She stated that the gun produced by the State looked like the one used in the robbery. Ms. Duvernay made a positive identification of the Defendant in a photographic line-up.

Sergeant Joe Picone investigated the robbery at the Ramada Inn. He explained that other detectives in his unit were investigating robberies at the time and that the robberies appeared to be similar. Sergeant Picone testified that the physical description of the suspect appeared to be the same, that the videotapes from the scenes were compared, and that it appeared to be the same person in each videotape. In addition, the weapon being used, a silver, semi-automatic handgun appeared to be the same gun used in all of the robberies. After other jurisdictions were notified about this case, Detective Sal Corona provided the Defendant’s name to Sergeant Picone. The officers obtained a photograph of the Defendant and compared it to the videotapes. Sergeant Pi-cone stated that the Defendant appeared to be the person committing the robberies in the videotape. Sergeant Picone |! (Instructed one of the Detectives to assemble a photographic lineup, using the Defendant’s photograph. Duplicates of the same lineup were shown to all of the witnesses.

Sergeant Picone stated that Ms. Duver-nay told him that she had just gotten married and was checking into her room when a man appeared at her side. Ms. Duvernay told him that she saw a gun and the person demanding money from the employees. Ms. Belancio and Ms. Perrin also told Sergeant Picone that a man appeared at the counter, displayed a silver gun, and demanded money from the hotel. One of the witnesses told Sergeant Picone that the gun was an automatic. Sergeant Picone presented a photographic lineup to Ms. Duvernay, who made a positive identification of the Defendant. He subsequently presented the photographic lineup to Ms. Belancio and Ms. Perrin. Ms. Perrin was unable to identify the perpetrator and Ms. Belancio made a tentative identification. She pointed to the Defendant’s photograph and said that he looked like the person who robbed her, but she was not completely sure.

Additional testimony

Officer James Pledger of the New Orleans Police Department testified that, on June 30, 2000, he was working the night watch alone between 10:25 p.m. and 7:00 a.m. On that date, he stopped the Defendant and seized a bicycle and a handgun with a chrome slide and black handle. Officer Pledger identified the gun and bicycle that he seized from the Defendant (State’s Exhibits 10 and 18).

On July 14, 2000, Detective Fontaine and Sergeant Picone met with the Defendant and advised him of his constitutional rights. The Defendant acknowledged that he understood those rights by signing the “rights of arrestee and suspect form” and the form indicating that he waived his rights. He subsequently gave a statement in which he confessed to having committed the eight armed Inrobberies. The audiotape was played for the jury and transcripts of the audiotape of the confession were distributed to them.

Sergeant Picone and other officers went to the Defendant’s residence on Louisiana Parkway to attempt to locate evidence with regard to these robberies. The Defendant’s sister advised Sergeant Picone that the Defendant did not reside there and she directed them to 3009 Delachaise Street. Sergeant Picone learned from Deborah Thomas, the occupant at that address, that the Defendant had lived there previously. Ms. Thomas agreed to a search and she provided them with a bag of items which she said belonged to the Defendant. Sergeant Picone only took a light blue, long-sleeved Levi shirt from Ms. Thomas’ house. He reviewed the surveillance photograph from the videotape of the robbery at Swifty Serve and noted that the person on the videotape was wearing a light blue, long-sleeved shirt, which looked like the shirt which he had seized.

INEFFECTIVE ASSISTANCE OF COUNSEL

On appeal, the Defendant first contends that he received ineffective assistance of counsel relative to counts one and four.

As to Count 1, the Defendant contends that his counsel faded to object to hearsay testimony of the crime facts, failed to object to hearsay testimony of positive identification of a photographic lineup, and failed to object to the lack of authentication and evidence of the chain of custody of the videotape that was retrieved from the Swifty Serve store. As to Count 4, the Defendant contends that his counsel failed to object to hearsay testimony of crime facts and to the hearsay testimony of positive identification of the photographic lineup.

The State responds that allegations of ineffective assistance of counsel are best addressed in an application for post-conviction relief. Alternatively, relief is not warranted, first because the testimony in question was not hearsay. The State asserts that the testimony was offered to explain the sequence of events leading to | Tpthe Defendant’s arrest, and not to prove the truth of the matter asserted. The State next asserts that, if this Court finds the testimony in question to be hearsay, the testimony was still admissible under the “excited utterance” exception to the hearsay rule. La.C.E. art. 803(2). Finally, the State contends that, even if the evidence was improperly admitted, it was harmless error because the Defendant confessed to having committed the robberies.

A Defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. In assessing a claim of ineffective assistance of counsel, a two-pronged test is employed. The Defendant must show that (1) his attorney’s performance was deficient, and (2)‘the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042 (La.App. 5th Cir.4/26/94), 636 So.2d 1069, 1075, writs denied, 94-0475 (La.4/4/94), 637 So.2d 450, and 94-1361 (La.11/4/94), 644 So.2d 1055. The error is prejudicial if it was so serious as to deprive the Defendant of a fair trial, or “a trial whose result is reliable.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064; State v. Serio, 94-131 (La.App. 5th Cir.7/1/94), 641 So.2d 604, 607, writ denied, 94-2025 (La.12/16/94), 648 So.2d 388.

In order to show prejudice, the Defendant must demonstrate that the outcome of the trial would have been different, but for counsel’s unprofessional conduct. Strickland, 466 U.S. at 693, 104 S.Ct. at 2068; Soler, 636 So.2d at 1075. Effective assistance of counsel does not mean error-less counsel, or counsel who may be judged ineffective on mere hindsight. State ex rel. Graffagnino v. King, 436 So.2d 559, 564 (La.1983). Because there is no precise definition of reasonably effective assistance of counsel, any inquiry into the effectiveness of counsel must be specific to the facts of the case. State v. Peart, 621 So.2d 780, 787 (La.1993); State v. Addison, 00-1730 (La.App. 5th Cir.5/16/01), 788 So.2d 608, 615.

is Claims for ineffective assistance of counsel are most appropriately addressed through application for post-conviction relief, so as to afford the parties an adequate record for review. Peart, 621 So.2d at 787. However, the Court can address the issues if the record contains sufficient evidence to decide the issue, and the issue is properly raised by assignment of error on appeal, State v. Hamilton, 92-2639 (La.7/1/97), 699 So.2d 29, 31, cert. denied, 522 U.S. 1124, 118 S.Ct. 1070, 140 L.Ed.2d 129 (1998); State v. Pendelton, 00-1211 (La.App. 5th Cir.3/14/01), 783 So.2d 459, 465-466.

In this case, we conclude that the issue should be raised in an application for post-conviction relief. An evidentiary hearing may be warranted to fully explore the issues considering the allegations raised by the Defendant. See: State v. Watson, 00-1580, p. 4 (La.5/14/02), 817 So.2d 81, 84.

FAILURE TO GRANT A MISTRIAL

In his second assignment of error, the Defendant contends that the trial judge erred in failing to grant a mistrial when the jury was made aware of other crimes allegedly committed by the Defendant through the introduction of the audiotape and transcript of his confession. He further argues that the trial judge erred in failing to admonish the jury regarding the reference to other crimes.

The State counters that a mistrial was not mandated because the judge, district attorney, or court official did not make the statement at issue, did not prejudice the Defendant, and was only a brief remark contained in a 23 page transcript. It contends that if error, it was harmless. It further argues that since the Defendant failed to ask for a mistrial, the trial judge did not err in failing to grant a mistrial or to admonish the jury.

Evidence of other crimes is generally inadmissible in the guilt phase of a criminal trial unless the probative value of the evidence substantially outweighs its prejudicial effect and unless other safeguards are met. State v. Johnson, 94-1379, p. 9 (La.11/27/95), 664 So.2d 94, 99. An exception to the rule allows evidence of a conviction for impeachment purposes of a witness, or of a defendant that chooses to testify. See: La.C.E. art. 609.1. Johnson, 94-1379, p. 10, 664 So.2d at 99. However, evidence regarding previous arrests, indictments, prosecutions, or other criminal proceedings not resulting in convictions is prohibited. Johnson, 94-1379, p. 10-11, 664 So.2d at 99.

During the hearing on the motion to suppress the identification and statement that was held prior to trial, the State advised the trial judge that the Defendant’s confession contained some statements with respect to armed robberies in the French Quarter and in New Orleans East, but that he would excise those prior to trial and ask the judge to give a limiting instruction to the jury with regard to the portions that had been removed, and to tell the jury that they were not to speculate as to what they may have been. The Defendant’s counsel added that he would meet with the State prior to trial to make sure he had no objection. At trial, the copies of the confession and the transcript of the audiotape of the statement were introduced into evidence and given to the jury. After a lunch break, the Defendant’s counsel discovered a comment that referred to other crimes that had not been removed. He apologized for not finding the reference earlier and asked for a mistrial. The State objected on the basis that the comment was too vague for a layperson to conclude that it referred to another crime. The trial judge agreed and denied the motion. The State then commented that, even if the statement were inadmissible, it was harmless error because the Defendant was not prejudiced. The State pointed out that, although the comment referred to the Defendant being in jail, it did not state the nature of the other crimes. The trial judge agreed, but cautioned the State not to allow other references to other crimes to be placed |15before the jury, and that it was to be removed if the transcript was shown again to the jury.

The following is the excised portion of the transcript:

Sgt. J. Picone:
Okay as we dis ... we were discussing you’re, you’re locked up right here in Orleans Parish for what charges?
Defendant:
Armed Robbery.
Sgt. J. Picone:
Okay, multiple charges of armed robbery?
Defendant:
Yes sir.
Sgt. J. Picone:
Okay and that was from arrest by New Orleans Police Department right? Defendant: Yes sir.
Sgt. J. Picone:
Okay what we talking [sic] to you here today is about a series of robberies which occurred in, in Metairie and Jefferson, out in Jefferson Parish. You aware [sic] of that?
Defendant:
Yes sir.

The following is the portion that the jury heard and viewed in the transcript:

Sgt. J. Picone:
And this is in fact separate from your [sic] in here for now?
Defendant:
Yes sir.

(State’s Exhibit 6, pp. 2-3; Emphasis added).

La.C.Cr.P. art. 771 requires the trial judge to admonish the jury to disregard a comment made within the hearing of the jury that is irrelevant, immaterial or prejudicial to the defendant or the state, when an admonishment is requested by the defendant or the state. This article applies to comments by the judge, the district 11Rattorney, or a court official, when the remark is not within the scope of Article 770, or to remarks or comments made by any other witness or person, regardless of whether the remark or comment is within the scope of Article 770. In such cases, on motion of the defendant, the trial judge may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial. C.Cr.P. art. 771. However, mistrial is a drastic remedy, which is only authorized where substantial prejudice will otherwise result to the accused. State v. Smith, 418 So.2d 515, 522 (La.1982).

In the instant case, all of the references to other crimes were excised except for Sgt. Picone’s comment, “And this is in fact separate from your [sic] in here for now?” This unsolicited remark does not refer to any specific crime committed by the Defendant and is vague and ambiguous. Thus, we find that it was not inadmissible evidence of other crimes.

Furthermore, even if the remark did constitute inadmissible other crimes evidence, an improper reference to other crimes evidence is subject to the harmless error rule. State v. Johnson, 94-1379, p. 15 (La.11/27/95), 664 So.2d 94, 102. The test for determining harmless error is whether the verdict actually rendered in the case was surely “unattributable to the error.” Id.

In this case, the Defendant’s confession and the testimony of the witnesses amply supported the convictions. Furthermore, since the Defendant did not request that an admonition be given to the jury to disregard the reference, the trial judge was not required to provide one. See: State v. Mayer, 589 So.2d 1145, 1151 (La.App. 5th Cir.1991), writ denied, 609 So.2d 251 (La.1992). Thus, we find that the trial judge did not err in failing to grant a mistrial or to give an admonishment to the jury.

^INSUFFICIENT EVIDENCE

The Defendant next asserts that the evidence was insufficient to convict him on count five. The Defendant argues that the State failed to prove that he was the perpetrator because the victim, Kim Yam-bra, could not identify him in court and could not positively identify him in a photographic lineup.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the elements of the crime in the light most favorable to the prosecution, to find the essential elements of the offense were proven beyond a reasonable doubt. State v. Evans, 00-1766, p. 3 (La.App. 5th Cir.4/11/01), 786 So.2d 781, 783, writ denied, 01-1390 (La.4/12/02), 812 So.2d 664; State v. Williams, 99-223, p. 6 (La.App. 5th Cir.6/30/99), 742 So.2d 604, 607.

When the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Smith, 430 So.2d 31, 45 (La.1983); State v. Anderson, 01-789, p. 9 (La.App. 5th Cir.1/15/02), 807 So.2d 956, 960. If there is a conflict in the testimony, the trier of fact is free to accept or reject, in whole or part, the testimony of any witness. Anderson, 01-789 at p. 9, 807 So.2d at 960. 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 finding. Id.

In the instant case, the Defendant confessed to committing this robbery in his statement dated July 14, 2000. He recalled robbing the Landmark Hotel, that the victim was a white woman, that he had used the same gun that day that he had | isused in the other robberies, and that he was using his bicycle for transportation as he had in the other robberies. The State introduced an audiotape of this statement as Exhibit 5 and a transcript as Exhibit 6. In addition, Ms. Yambra recounted the events surrounding the robbery. Ms. Yambra also identified State’s Exhibit 10 as the gun used in the robbery, and described the robber to Detective Fontaine as a black male with a baseball cap who was armed with a silver gun, a description similar to that provided by the victims of the other armed robberies. Sergeant Pi-cone testified that all of the robberies appeared to be similar. This testimony, with the confession, is sufficient under Jackson to show that the Defendant was the perpetrator of Count 5 beyond a reasonable doubt.

EXCESSIVE SENTENCE

The Defendant argues that his 792 year sentence for convictions on eight counts of armed robbery is constitutionally excessive. He claims that his sentence is much longer than that ordinarily reserved for murderers, that the evidence on all eight counts was not overwhelming, that no shots were ever fired, that none of the victims was physically harmed during the robberies, that he did not attempt to harm any of the victims, and that only a small amount of money was taken. The Defendant further adds that the trial court only “paid lip service” to La.C.Cr.P. art. 894.1.

The State responds that the sentence imposed by the trial court is not constitutionally excessive. It asserts that La.C.Cr.P. art. 883 authorizes the eight consecutive sentences because the Defendant committed eight separate robberies on eight different days, that the robberies were crimes of violence, that the Defendant was facing a charge of attempted murder of a police officer and other armed robbery charges in Orleans Parish at the time of sentencing, that the Defendant was on parole for a 1979 armed robbery charge at the time he committed the instant offenses, and that the victims were emotionally harmed.

ligThe Defendant orally objected to the sentence and filed a motion to reconsider the sentence. However, he failed to state the specific grounds for the objection, as required by La.C.Cr.P. art. 881.1. In addition, he neither objected to the consecutive nature of the sentences, nor claimed that the trial court failed to follow the guidelines of La.C.Cr.P. art. 894.1.

The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Hester, 99-426 at p. 16, 746 So.2d at 103. Accordingly, we will review the Defendant’s sentence for constitutional ex-cessiveness.

Both the United States and Louisiana constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const. Amend. 8 La. Const. of 1974, Art. I, Sect. 20; State v. Richmond, 98-1015 (La.App. 5th Cir.3/10/99), 734 So.2d 33, 38. A sentence is generally considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Richmond, 734 So.2d at 38; State v. Lobato, 603 So.2d 739, 751 (La.1992). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. However, the sentence will not be set aside, absent a showing of manifest abuse of the trial court’s wide discretion to sentence within statutory limits. Richmond, 734 So.2d at 38. The trial judge is afforded wide discretion in determining a sentence and, if the record supports the sentence imposed, the court of appeal will not set aside a sentence for excessiveness. La.C.Cr.P. art. 881.4(D); Richmond, 734 So.2d at 38. Nonetheless, a sentence may be reviewed for excessiveness even though it is within statutory range. Richmond, 734 So.2d at 38.

1 j»nLa.R.S. 14:64B provides that whoever commits the offense of armed robbery shall be imprisoned at hard labor for not less than ten years and not more than 99 years, without the benefit of parole, probation or suspension of sentence. Here, the Defendant received the maximum sentence on each count.

Prior to sentencing, the State introduced into the record a copy of the transcript from the motion to suppress hearing. At that hearing, Officer James Pledger of the New Orleans Police Department testified that when he attempted to arrest the Defendant, he started fighting with him, pulled out a weapon, and pointed it at the officer’s stomach. Officer Pledger fought with the Defendant and disarmed him by throwing the Defendant’s weapon into the bushes. The Defendant charged at Officer Pledger with his hands up in the air yelling, “I’m going to shoot you. I’m going to kill you.” Officer Pledger pulled his gun, pointed it at the Defendant, and pulled the trigger; however, the gun malfunctioned. They continued to fight and the Officer sprayed mace in the Defendant’s face. Officer Pledger called other officers to the scene. The Defendant grabbed Officer Pledger’s testicles and squeezed. Two other police officers arrived and apprehended the Defendant as he was fleeing.

In addition, the evidence showed that the Defendant was currently facing an attempted murder of a police officer charge in Orleans Parish, as well as other armed robbery charges. The State reminded the trial court that the Defendant was out on parole for a 1979 conviction for an armed robbery when he committed these crimes. The Defendant had received 30 years imprisonment for that conviction and was released early.

Prior to sentencing, the trial judge stated:

Mr. Smothers, you’ve been convicted of eight counts of armed robbery. And after hearing three days of testimony, it is evident that these acts were intentional and violent. The victims of these armed robberies were visibly shaken. And these acts of violence perpetrated by you are life-altering experiences for these victims. |21 There’s no doubt that these people feared for their lives. And they will live with your actions for the rest of their lives, Mr. Smothers.
The victims’ identification of you was positive and unequivocal. After considering the guidelines of 894.1, your criminal history, and the facts of this case, the Court sentences you to serve 99 years in the Department of Corrections at hard labor on each count. These sentences are to run consecutively with each other and are to be served without benefit of probation, parole, or suspension of sentence.

In State v. Kennedy, 93-776 (La.App. 5th Cir.1/25/94), 631 So.2d 1195, the defendant was convicted of six counts of armed robbery and two counts of attempted armed robbery. The eight counts arose out of four separate incidents, and the victims were not injured. The trial court sentenced the defendant to 50 years imprisonment on each of the six counts of armed robbery, to run consecutively, and to 25 years imprisonment on each count of attempted armed robbery, to run consecutively, for a total of 350 years, to be served without benefit of parole, probation or suspension of sentence. This Court concluded the sentences were not excessive, noting that the victims were placed in grave danger and could have been killed, and that armed robbery was a serious crime and should be dealt with very sternly.

In State v. Alexander, 98-993 (La.App. 5th Cir.3/10/99), 734 So.2d 43, writ denied, 99-2138 (La.12/10/99), 751 So.2d 250, the defendant was convicted of five counts of armed robbery arising out of three incidents. He sentenced to serve 50 years on each count without benefit of parole, probation or suspension of sentence, to run consecutively. This Court concluded that defendant’s sentence was not excessive, noting that defendant had a criminal history commencing at a relatively early age, that he had convictions for possession of stolen things and armed robbery, that defendant had just been released from prison in May 1997, and had only been out of prison for two months when he began the spree of armed robberies which resulted in the five armed robbery convictions, the victims were | ¡^frightened for their lives during the armed robberies, and in one of the robberies, the defendant injured one of the victims when he grabbed her blouse and scratched her chest.

In the instant case, the Defendant committed eight separate armed robberies on eight different days involving ten victims over a five week period. The victims were placed in grave danger and could easily have been killed. They were emotionally harmed as a result of the robberies. The Defendant could have been charged with ten counts of armed robbery since there were ten victims, rather than eight. In addition, he was previously convicted of armed robbery in 1979, sentenced to 30 years in prison, released early and was on parole at the time of the commission of the instant offenses. At the time of sentencing, the Defendant was facing an attempted murder of a police officer charge in connection with this case and other armed robbery charges in Orleans Parish. The Defendant is clearly predisposed to committing robberies and is obviously a career criminal. He is a violent and dangerous man. In his statement, he said he enjoyed committing the robberies. Under these circumstances, we find that the sentences are not constitutionally excessive.

ERROR PATENT DISCUSSION

The record was reviewed for patent errors, in accordance with La.C.Cr.P. art. 920. See: State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Perrilloux, 99-1314 (La.App. 5th Cir.5/17/00), 762 So.2d 198.

At the conclusion of sentencing, the trial judge informed the Defendant of the two year prescriptive period for seeking post-conviction relief, but did not tell him when this period began to run. This notice was incomplete. La.C.Cr.P. art. 930.8 provides that a defendant has two years from the day the judgment becomes final in which to file for post-conviction relief. Therefore, we remand the case with an order for the trial judge to send written notice to the Defendant of the 1 ^prescriptive period, along with a notice of when the period begins to run, within ten days of the rendering of its opinion, then to file written proof in the record that the Defendant received the notice. See: State v. Esteen, 99-662, p. 28 (La.App. 5th Cir.5/15/02), 821 So.2d 60, 78.

Accordingly, we hereby affirm all eight convictions and sentences. We remand the case with an order to the trial judge to send to the Defendant, within ten days of the rendering of this opinion, written notice of the prescriptive period for post-conviction relief, along with a notice of when the period begins to run, and then to file written proof in the record that the Defendant received the notice.

CONVICTIONS AND SENTENCES AFFIRMED. CASE REMANDED.

      . A review of the transcript shows that on page 21 a large section is blank. It appears that a portion of the statement was blocked out.

      . La.C.Cr.P. art. 770(2) provides that during trial or argument, when the judge, district attorney, or court official makes a direct or indirect reference to another crime committed or alleged to have been committed by the defendant, in the hearing of the jury, and the evidence is not admissible, a mistrial is warranted on motion of the defendant.


source: Caselaw Access Project

author: J^SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Stanley GORMAN and Christopher Palmer v. Aurlander ALLEN, J.B. Allen, Allstate Insurance Company and Lafayette Insurance Company.
    No. 02-CA-962.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Darleen M. Jacobs, A1 Ambrose Sarrat, New Orleans, LA, for Plaintiff-Appellant, Stanley Gorman.
    Christopher E. Lawler, Christopher P. Lawler, Metairie, LA, for Defendants-Ap-pellees, Aurlander Allen, et al.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   J^SUSAN M. CHEHARDY, Judge.

This is an automobile personal injury suit in which the plaintiff appeals the dismissal of his claims. We affirm.

The accident occurred on October 26, 1998 in the early afternoon at the intersection of Williams Boulevard (Louisiana Highway 49) and West Metairie Avenue in Kenner. Stanley Gorman was operating his 1988 Chevrolet van proceeding south on Williams, with Christopher Palmer riding in the front passenger seat. Auslan-der Allen was driving a 1984 Chevrolet pickup truck owned by his father, J.B. Allen, also heading south and also planning to turn left at West Metairie. J.B. Allen was a passenger in the pickup truck. It is undisputed that Allen’s truck struck Gor-man’s van from the rear. The parties contest whether Gorman was already in the turn lane when Allen struck him, or whether Allen was in the turn lane first and Gorman swerved in front of Allen. Allen asserted he could not stop his truck quickly because he was pulling an enclosed trailer containing an automobile.

Gorman and Palmer filed suit jointly against Auslander Allen, J.B. Allen, Allstate Insurance Company (the Allens’ insurer), and Lafayette Insurance 1 «Company (Gorman’s uninsured/underin-sured motorist insurance carrier). Prior to trial Palmer settled his claim and Gor-man dismissed Lafayette from the suit.

The trial court concluded that the accident was Gorman’s fault. In a judgment incorporating reasons for judgment, the court noted that the investigating police officer had observed that damage to Gorman’s vehicle was on the left rear and damage to the Allen vehicle was on the right front. Based on the location of the damage to the vehicles and the “more credible” testimony of Aurlander and J.B. Allen, the court found:

[M]ore probable than not, the accident occurred when the Gorman vehicle suddenly veered into the lane occupied by the Allen vehicle, immediately in front of the Allen vehicle, at a time when it was not safe to do so and, this action by the Gorman vehicle was the sole cause of the accident.
Gorman appeals.

On appeal he asserts the trial court committed manifest error by not finding fault on the part of the defendants, by telling the defendant how to respond to the plaintiffs question, and by relying upon an unauthenticated photograph which did not depict the damage to plaintiffs vehicle.

Our review of the record discloses the following testimony:

Officer Keith Forsythe of the Kenner Police Department investigated the accident. He testified that he observed debris from both vehicles in the left turn lane, which indicated to him that both vehicles were completely in the left turn lane at the time of impact. He found the two drivers’ stories inconsistent on how the accident happened. Gorman told him he was stopped in the turn lane. Allen told him he was the first one in the turn lane. Forsythe said there was light damage to both vehicles. The debris indicated to him that Gorman’s vehicle was already in the turn lane when the accident occurred.

LGorman testified he was stopped at the left-turn lane when he heard brakes squealing behind him, turned his head and saw the defendants’ truck, and then his van was hit. He said, however, that it hit him on the left rear side and “kind of creased the side of the truck, the whole side of the truck kind of just bent right in.”

Although Gorman initially said that he was stopped at the light when Allen’s truck hit the van, he later admitted he was “hitting the brakes.” He had moved into the left lane from the right lane, in which he had been driving for “[a] couple of blocks, a block or so” before he moved into the left lane in order to get into the left turn lane. Gorman stated, “I didn’t see him. I was in the left lane when I could look in the mirror and I seen this truck coming down at me, and he pulled this truck to the side, and that’s how he clipped the back or left side of my truck.” Gor-man estimated he pulled into the left-turn lane at the point where the turn lane begins.

Gorman said he was slowing down as he starting pulling over to the turn lane and was probably at 10-15 miles per hour. There was a car making a left-turn ahead of him as the light was turning yellow. As he pulled into the lane the light turned red, he stopped, and that’s when he heard the squealing brakes and saw the truck coming behind.

Christopher Palmer testified they had been in the left-turn lane “over a minute” before the accident occurred and that Gor-man’s van was completely stopped. He knew moments beforehand that there was going to be an impact because he heard the noise of tires squealing on the pavement. He braced himself, he was thrown backward against the seat and then bounced off the seat back. Palmer denied that Gorman cut into the lane ahead of Allen. Palmer did not recall any cars being in the lane ahead of Gorman. He estimated he heard the screeching sound for about 20 seconds before the impact.

| sAurlander Allen testified he was traveling south on Williams at the speed limit and was in the turning lane at West Me-tairie, getting ready to make a left turn. He noticed the light was yellow so he was in the process of slowing down. He was on his brakes and had down-shifted the truck, preparing to stop. When he got to the light, that’s when Gorman turned into the left-turning lane and stopped. The rear of Gorman’s truck was still on an angle; he was directly in the center of the lane. Allen estimated that his front bumper was less than three or four feet from the back of Gorman’s vehicle when Gor-man cut in front of him and stopped.

Allen said that the right front of his truck struck the left rear of Gorman’s and that Gorman stopped for the light at the intersection after he came over in front of Allen’s truck.

The trailer Allen was towing is 28 feet long. His truck is a crew-cab dualie truck. Allen disagreed with the police officer’s estimation that Gorman was completely in the left lane at the time of the collision.

J.B. Allen testified his son was driving about 20 to 25 miles an hour before they got into the left-turn lane. He saw the light turn yellow.

Counsel for Gorman disputed the accuracy of a photograph of Gorman’s van that defense counsel placed in evidence. Recalled to testify on rebuttal, however, Gor-man looked at the photo and said it accurately reflected the damage to his vehicle, except that he has replaced the rear window since the accident. He also said the photo did not show the extent of his damage because the whole left rear side was pushed forward. He said the damage was partially on the rear, right where the first bracket meets the left side of the truck. The side was pushed in and the middle of the back door was dented.

Gorman denied that he cut in front of the Allen vehicle. He insisted he was already in that lane, “and the lane is so short, how can they get a trailer and a truck Ifiin that lane, and say they were already in that lane, without violating the other left-turn lane going the opposite way?”

Gorman said, “The reason he hit me on the left side is because he was trying to avoid the accident, so he had time to pull his truck to the side.”

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Our supreme court has announced a two-part test for the reversal of a fact finder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State, 617 So.2d 880, 882 (La.1993).

Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 844.

Here, the trial judge was presented with two opposing versions of the events and was required to choose between them. We cannot say, on the evidence in the record, that the trial court was clearly wrong in finding the Allen version more credible.

Further, there is no merit to plaintiffs contention that the trial court should have found defendant comparatively negligent. The court chose between opposing versions of the events and saw no contribution by defendant to the cause of the accident in the version he believed. We find no manifest error in the court’s conclusion.

[7As to plaintiffs second assignment of error, that the trial court instructed J.B. Allen how to answer a question, we find no error.

Plaintiffs counsel asked Mr. Allen whether, if his son testified that prior to the accident he was traveling 40 miles per hour, he would disagree with that. Mr. Allen responded, “I don’t think he was going 40 miles an hour.” Plaintiffs counsel reiterated, “Would you disagree with his testimony?” and Mr. Allen repeated, “I don’t think he was going 40 miles an hour.” The exchange was repeated a third time.

The fourth time plaintiffs counsel said, “Well, you still haven’t answered my question.” The judge then said, “Tell him you disagree, Mr. Allen.” Mr. Allen then said, ‘Yeah, I disagree. Okay.”

Plaintiff contends the court committed legal error in telling J.B. Allen what to say. We find no reversible error in the exchange. This was a bench trial, not a jury trial, and it is clear to us that the court’s view of the facts was not affected by the exchange. Similarly, we find no merit to plaintiffs argument that the court erred in relying on the photograph of plaintiffs vehicle that the defense introduced. The plaintiff himself stated that the photograph depicted some of the damage to his vehicle, although he said there was damage to the left side that did not show in the photograph, including a broken window that had been replaced. Since the police officer, Gorman, and Allen all testified that the right front side of Allen’s truck struck the left rear side of Gorman’s van, the photograph did not contradict that evidence and the court did not err in allowing its introduction.

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellant.

AFFIRMED.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Carlos A. ZALDIVAS.
    No. 02-KA-0690.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alison Wallis, Assistant District Attorneys, Gretna, LA, for Appellee.
    Bertha M. Hillman, Thibodaux, LA, for Appellant.
    Panel composed of Judges EDWARD A.. DUFRESNE, MARION F. EDWARDS and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

Defendant/Appellant, Carlos Zaldivas, appeals his' conviction and sentence for attempted second degree murder. For the following reasons, we affirm.

On February 15, 2000, the Jefferson Parish District Attorney filed a bill of information charging defendant, Carlos Zal-divas, with attempted first degree murder, a violation of LSA-R.S. 14:27:30. Zaldivas was arraigned on March 8, 2000, and pled not guilty. On August 18, 2000, the state amended the bill of information, reducing the charge to attempted second degree murder, a violation of LSA-R.S. 14:27:30.1. Zaldivas filed a Motion to Suppress Confession, Identification, and Physical Evidence. The trial court heard and denied the motion to suppress the identification on February 22, 2001. It appears that Zaldivas abandoned the motion as it related to any confession or physical evidence.

Zaldivas was tried before a 12-member jury on February 21 and 22, 2002. At the conclusion of trial, the jury returned a verdict of guilty as charged. Zaldivas | ¿filed a Motion for New Trial on February 25, 2002. The trial court denied the motion on February 28, 2002. Zaldivas waived statutory delays, and was sentenced that day to 50 years at hard labor, without benefit of parole, probation or suspension of sentence. Zaldivas made an oral motion for appeal, and filed a written Motion for Appeal the same day, which the trial court granted.

Darryl Butler testified that, in June or July of 1999, he allowed defendant, Carlos Zaldivas, to move into his apartment at 3525 North Arnoult Boulevard in Metairie. Zaldivas had been living nearby with his parents, and he told Butler he was no longer welcome there. The two men agreed that Zaldivas would stay at the apartment for one month, during which time he would look for a permanent place to live. Zaldivas further agreed to pay Butler $50 each week for expenses. Butler testified that, for a time, he and Zaldi-vas shared an intimate relationship.

Butler stated that Zaldivas never complied with their agreement. Zaldivas stayed on for more than a month, and failed to contribute toward apartment expenses as promised. On Monday, November 15, 1999, Butler told Zaldivas he was no longer welcome to live there. Zaldivas became very upset, and told Butler that he would leave before he was put into jail for murder. When Butler returned home from work the following day, he found Zaldivas had moved his belongings out, and had left his apartment keys on a counter.

On November 19, 1999, Butler arrived home at about 10:00 p.m., after having visited his mother in the hospital. He watched television for several hours. During that time his telephone rang several times, but he did not answer the calls. By about 3:00 a.m. on November 20, Butler was sleeping on the couch. There was a knock at the front door, which Butler recognized as the knock Zaldivas used. Butler decided not to open the door. Five minutes later, the front window of the apartment was broken. Butler went to the window to investigate, and dialed 911 on his cordless telephone.

14Zaldivas entered the apartment through the window. Butler could see that Zaldivas had removed the screen from the window and had broken the glass. Zaldivas berated Butler for not answering the door or telephone. Zaldivas took Butler’s telephone. He then pulled an object from his pocket and used it to slash Butler’s throat. Butler testified that the weapon appeared to be a carpet knife with a razor blade in it.

Butler raised his arm to defend himself, and Zaldivas cut it with the weapon. Zal-divas continued trying to cut Butler. Eventually Butler managed to force Zaldi-vas out of the apartment. Butler then locked himself in his bathroom. He looked in a mirror and saw that he was bleeding profusely from his neck. He went outside to seek help.

Deputy Gerald Favalora of the Jefferson Parish Sheriffs Office testified that he and his partner, Deputy Weaver, responded to a 911 hang-up call at the North Arnoult apartment complex in the early morning hours of November 20, 1999. A Deputy Morris also reported to the scene. Morris. held a towel to Butler’s neck to help stanch the bleeding. Favalora noted that the victim had a laceration on his neck from below his left ear to his chin.

Emergency medical personnel were called, and Butler was transported to East Jefferson General Hospital, where he was treated by Dr. Raoul Guevera. Butler informed the doctor that his former roommate had broken into his apartment, threatened his life, and cut him with a razor knife. Dr. Guevera testified that the laceration to Butler’s neck was close to the carotid artery, and that an injury to that artery would have caused Butler to bleed to death within minutes.

Favalora took a brief statement from Butler before he was taken to the hospital. The victim reported that his former roommate had broken the window to his apartment, produced a knife, and slashed his neck. Butler named Carlos Zaldivas as the perpetrator of attack.

lsOn November 29,1999, Detective Craig Gardner met with Butler and showed him a photographic lineup. The victim positively identified Zaldivas as his attacker. Butler told Gardner that Zaldivas had broken into his apartment and sliced him with a razor blade.' Detective Gardner testified that officers tried unsuccessfully to locate Zaldivas at his parents’ address. Zaldivas was ultimately arrested on January 1, 2000.

Angela and Christopher Mayer, Zaldi-vas’ teenage niece and nephew, testified on his behalf. They stated that on the night of November 19-20, 1999, Zaldivas slept at their house in Marrero.

At trial, Zaldivas vehemently denied ever having intimate relations with Butler, and testified that he moved out of the apartment because he disapproved of Butler’s lifestyle. Zaldivas testified that he did not threaten or attack Butler. He further posited that Butler was attacked by men to whom he owed money.

LAW AND ANALYSIS

In his first assignment of error, Zaldivas argues the state failed to prove he committed attempted second degree murder, as his alibi witnesses successfully discredited the testimony of the state’s only eyewitness, Darryl Butler. The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt.

To prove attempted second degree murder, the state must establish, beyond a reasonable doubt, that the defendant specifically intended to kill a human being |fiand that he committed an overt act in furtherance of that goal. 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.” Because specific intent is a state of mind, it need not be proven as a fact, but may be inferred from the circumstances and actions of the defendant.

The state’s only eyewitness was the victim, Darryl Butler. Jurisprudence provides that in the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding. Butler positively identified Zaldivas as his attacker on several occasions. He gave Zaldivas’ name to officers who responded to his attempted 911 call and to the doctor who treated him in the hospital emergency room. He identified Zaldivas in a photographic lineup and at trial. It is undisputed that Zaldivas and Butler knew each other for some time before the stabbing, so there seems to be no question of Butler’s ability to recognize Zaldivas.

Butler asserted at trial that Zaldivas’ attack was triggered by his decision to have Zaldivas move out of his apartment. This testimony presented the jury with a possible motive. Zaldivas’ verbal threats, the force of his attack, and the severity of Butler’s injuries can be viewed as indicative of specific intent to kill. It is clear from Zaldivas’ own trial testimony that he bore Butler a great deal of ill will.

Dr. Raoul Guevera, who treated Butler’s wounds, testified that Butler had a large laceration on the left side of his neck. The layer- of muscle that was cut overlies the carotid artery, the vessel that carries blood ■from the heart to the brain. A laceration of the carotid artery would have caused profuse bleeding, leading to |7death within a few minutes. According to Guevera, it would have taken significant force to cause such an extensive laceration, as it went deep into the muscle. The doctor further noted a laceration to the scalp, a laceration of the back of the arm consistent with a defensive wound, and a smaller forearm laceration. He stated that the wounds had clean edges, and were thus consistent with a weapon such as a box cutter or some other type of straight-edged blade.

Zaldivas argues that he was able to refute Butler’s testimony at trial. Angela Mayer testified that Zaldivas, who is her uncle, moved into her mother’s home on Lee Drive in Marrero in August or September of 1999. On November 20, Zaldi-vas slept at the house. Also staying there were Angela’s two brothers, her mother and her cousin, Carlos (Zaldivas’ son). Angela was certain Zaldivas was with her family that weekend, as it was the weekend before Thanksgiving. Angela testified that Zaldivas was at home when she went to sleep on the night of November 19, 1999, and that he was at work when she awoke at noon on November 20. Angela stated there was no way Zaldivas could have left the house during the night, as her mother locked all of the burglar bars and gates for security purposes.

Christopher Mayer, Angela’s brother, testified that he was living at the Marrero house in September of 1999, when Zaldivas moved in with his family. Zaldivas lived with them through December 1999. Christopher stated that Zaldivas was at the Marrero house on the weekend of November 20,1999. Christopher went to bed at about 10:00 or 11:00 p.m. on November 19. He did not see Zaldivas go to bed that night, but guessed that it was at about 11:00 p.m. Christopher awoke at 8:00 on the morning of November 20. He testified that Zaldivas was still asleep at that time, and he woke him for work. Zaldivas normally goes to work at 6:30 on Saturday mornings, but on that morning he overslept. Although Christopher was asleep in a separate room, he said he knew Zaldivas was at home at 3:00 a.m. on November 20, 1999.

1 Julio Hernandez, a general contractor, testified that Zaldivas was in his employ in November 1999. Zaldivas did not own a car, so Hernandez routinely picked him up at the house on Lee Drive, and drove him to work. Hernandez testified that he and his crew worked many Saturdays. However, he had no documentation to show that Zaldivas worked on the morning of November 20,1999, or that he was paid for working that day.

None of Zaldivas’ witnesses was with him at 3:00 a.m. on November 20, 1999, and thus none of them could testify to a certainty that Zaldivas was at the Lee Drive house at the time the attack on Butler took place. Moreover, their testimony conflicts with Zaldivas’ own testimony that he lived with Darryl Butler during November of 1999.

The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Where there is conflicting testimony about factual matters, the resolution of which depends on a determination of credibility of witnesses, it goes to the weight of the evidence, and is not part of a sufficiency determination. We need only make a determination as to sufficiency, not witness credibility. Based upon our review of the record, we find that the state provided sufficient evidence under the Jackson standard to support a conviction for attempted second degree murder. This assignment of error merits little consideration.

In his second assignment of error, Zaldivas complains that his 50-year sentence, the maximum allowed for attempted second degree murder is excessive, arguing that the trial court failed to consider various mitigating circumstances under LSA-C.Cr.P. art. 894.1. We first note that Zaldivas failed to file a timely written motion to reconsider sentence, as prescribed by LSA-C.Cr.P. art. 881.1. The record does show, however, that Zaldivas made the following oral objection at 19the time of sentencing: “We do object to the sentencing as being unduly harsh.” Article 881.1 provides that a motion to reconsider sentence, whether oral or written, must set forth specific grounds on which the motion is based. It does not appear that Zaldivas’ oral motion contained the specificity required to preserve the issue for review. In previous cases, we have held that the failure to move for reconsideration of sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Even a sentence which falls within the statutory limits may be excessive under certain circumstances.

A reviewing court will not set aside a sentence as excessive if the record supports the sentence imposed. Factors the court may consider in reviewing the sentencing judge’s discretion are: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts.

In his reasons for sentencing, the trial judge commented:

Mr. Zaldivas on the stand said he didn’t feel sorry for this victim that this horrible crime had happened to, so it goes beyond him saying he committed the crime and I’m sorry. Certainly he denied that he lincommitted the crime. The jury found that he did in fact commit the crime.
The Court, after reviewing the record, and the Court takes into consideration the sentencing guidelines provided in the Code of Criminal Procedure Article 8941. The Court finds that Mr. Zaldi-vas certainly is in need of correctional treatment based upon this horrible crime that was in fact committed.
During the commission of the crime the defendant, knowing he created a risk of death and great bodily harm to the victim in this matter, the crime was committed by using a dangerous weapon. The victim of this crime was horribly wounded. It is only but for chance, or by the grace of God that Mr. Zaldivas was charged with attempted second degree murder and not second degree murder.
We heard the testimony of the doctor, who told this jury how close the victim was to being killed rather than being an attempted murder.
The scars that remain for the rest of the victim’s life are horrible. Mr. Zaldi-vas is fortunate that by that chance this victim survived the horrible act.

It does not appear that the trial court abused its discretion in imposing the maximum sentence. Defendant’s date of birth is listed on the bill of information as July 6, 1961, making him 38 years of age at the time of the offense. This was not the act of an impetuous youth. Zaldivas conceded at trial that he had a prior cocaine conviction. However, considering that the conviction was about 20 years prior to the instant offense, it has little bearing on this case. The trial court’s primary concerns were the brutality of the attack, and Zaldi-vas’ obvious lack of remorse.

In his testimony at trial, Zaldivas showed a great deal of contempt for the victim. Zaldivas expressed his feelings in his responses to the prosecutor’s cross-examination:

Q. Did you care whether or not this happened to Mr. Butler or did you think he deserved this, because of his lifestyle, according to you?
A. No, sir.
Q. He did not deserve this?
I^A. I didn’t care about Mr. Darryl.
Q. You didn’t care about Mr. Darryl?
A. No, sir.

Based on the foregoing, we find that Zaldivas’ sentence is not constitutionally excessive.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, and State v. Weiland. No patent errors were found.

Accordingly, based on the foregoing, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . It is unclear from the record whether defendant was arraigned as to the amended charge. The minute entry is silent on that point, and that day's proceedings were not transcribed.

      . 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . State v. Juluke, 98-0341 (La.1/8/9), 725 So.2d 1291; State v. Williams, 99-223 (La.App. 5 Cir. 6/30/99), 742 So.2d 604.

      . While specific intent to inflict great bodily harm is sufficient to support a murder conviction, first or second degree attempted murder requires a specific intent to kill. State v. Cepriano, 00-213, p. 6 (La.App. 5 Cir. 8/29/00), 767 So.2d 893, 897, 898.

      . State v. Harrell, 01-841, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

      .LSA-R.S. 14:10(1).

      . State v. Harrell, supra, at 1015, 1019.

      . State v. Rivers, 01-1251, p. 6 (La.App. 5 Cir. 4/10/02), 817 So.2d 216, 219.

      . The doctor testified that Butler was able to relate the details of the attack coherently, and did not appear to be mentally impaired.

        . State v. Simard, 01-1373, p. 6 (La.App. 5 Cir. 4/30/02), 817 So.2d 366, 370.

      . State v. Simard, 01-1373 atp. 7, 817 So.2d at 370.

      . See, State v. Freeman, 97-1115, p. 8 (La.App. 5 Cir. 12/29/98), 727 So.2d 630, 635, in which this Court found that "[a] statement challenging a sentence as excessive does not set forth specific grounds

      . State v. Brown, 01-160, p. 14 (La.App. 5 Cir. 5/30/01), 788 So.2d 667, 674.

      . State v. Wickem, 99-1261, p. 10 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839.

      . State v. Short, 00-866, p. 12 (La.App. 5 Cir. 10/18/00), 769 So.2d 823, 831, writ denied, 00-3271 (La.8/24/01), 795 So.2d 336.

      . LSA-C.Cr.P. art. 881.4D; State v. McCorkle, 97-966, p. 14 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212, 1219.

      . State v. Ulmer, 99-1079, p. 4 (La.App. 5 Cir. 1/25/00), 751 So.2d 1017, 1019.

      . 312 So.2d 337 (La.1975).

      . 556 So.2d 175 (La.App. 5 Cir.1990).


author: |,SOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Michael LOTT.
    No. 02-KA-702.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alan D. Alario, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   |,SOL GOTHARD, Judge.

This is defendant’s third appeal. Defendant was convicted of two counts of distribution of cocaine in violation of La. R.S. 40:967 A. He was originally sentenced to twenty-five (25) years of imprisonment on both counts. Defendant was subsequently found to be a third felony offender and was sentenced under La. R.S. 15:529.1 to life imprisonment.

On his first appeal, this Court affirmed defendant’s convictions, but vacated his multiple offender adjudication and sentence on the basis there was no specification in the multiple offender bill of information as to which one of the two counts was being considered for an enhanced sentence. State v. Lott, 97-1002 (La.App. 5 Cir. 5/27/98), 712 So.2d 289.

On remand, after a second multiple bill hearing, the trial court again found defendant to be a multiple offender, vacated his original sentence on count one, and sentenced him to life imprisonment without the benefit of parole, probation or suspension of sentence, to run concurrent with his sentence on count two.

On his second appeal, this Court affirmed defendant’s adjudication as a third felony offender but vacated his enhanced sentence on the basis that the version of La. R.S. 15:529.1 in effect at the time of the commission of the underlying offense |3did not mandate a life sentence. State v. Lott, 00-1390 (La.App. 5 Cir. 5/30/01), 796 So.2d 941 (unpublished opinion), writ denied, 01-2410 (La.9/13/02), 824 So.2d 1189.

On the second remand, the trial court noted that defendant was a third felony offender and resentenced him on count one under La. R.S. 15:529.1 to twenty-five (25) years at hard labor without the benefit of probation or suspension of sentence, to run concurrent with his previous twenty-five (25) year sentence on count two.

After the denial of his motion to reconsider sentence, defendant, pro se, filed both a supervisory writ and a motion for appeal. The writ, 02-KH-534, was denied. In this appeal, defendant seeks review of his twenty-five (25) year enhanced sentence as unconstitutionally excessive.

Originally we note that defendant’s motion for appeal appears untimely because it was filed more than five days from the ruling on the motion to reconsider sentence. La.C.Cr.P. art. 914B(2). However, the record reflects that defendant deposited his motion for appeal with the prison authorities within five days of his receipt of the notice of denial of his motion for reconsideration of sentence. Given the Louisiana Supreme Court’s directive in State ex rel. Egana v. State, 00-2351 (La.9/22/00), 771 So.2d 638, we find that defendant’s appeal is timely.

The facts of this case were set forth in the first appeal as follows:

The instant charges arise from two separate undercover narcotics transactions. The officers involved in the transactions testified regarding the circumstances surrounding the two purchases establishing the following facts.
On the afternoon of July 31, 1995, Agent Jamal Taylor, equipped with a “Unitel transmitter” and a video camera, proceeded to the Robinson Avenue area of Marrero, Louisiana, in order to make a “street-level” purchase of narcotics. Upon entering the 300 block of Robinson Avenue, Agent Taylor stopped his vehicle. A subject approached whom Agent Taylor described as a black | ¿male, 5'10" in height, 170 pounds, 22 or 23 years old and wearing a white polo shirt and blue jeans. Agent Taylor purchased two rocks of crack cocaine for $40.00 from the subject.
Following the transaction, Agent Taylor met his supervisor, Agent Morton, who had monitored the transaction via radio receiver, and Agent Taylor submitted the evidence to Agent Morton. Ten days later, Agent Taylor viewed a photographic line-up and identified the defendant as the subject who sold him the crack cocaine. Thereafter, on August 14, 1995, a warrant was issued for the defendant’s arrest.
Subsequently, on the afternoon of October 23, 1995, Agent John Curtis proceeded to the Robinson Avenue area in order to make a second undercover purchase of narcotics. Agent Curtis was similarly equipped with a transmitter and video camera. While traveling on Robinson Avenue, Agent Curtis noticed a subject approaching his vehicle. After stopping his vehicle, Agent Curtis purchased two rocks of crack cocaine for $40.00 from the subject whom he described as a black male with a short haircut, 6'3" in height, and wearing jeans and a maroon plaid shirt.
After the purchase, Agent Curtis met his supervisor, Agent Wilky, who had monitored the transaction via radio receiver, and Agent Curtis turned over the evidence to him. When Agent Curtis viewed a photographic line-up on January 16, 1996, he identified the defendant as the subject who sold him the two rocks of crack cocaine. Thereafter, in November of 1996, a warrant was issued for the defendant’s arrest. [Footnote citation omitted.]
Additionally, in conjunction with the testimony of Agent Taylor and Agent Curtis, videotapes of each transaction were played for the jury. The agents testified that their respective videos accurately depicted the events that occurred.

State v. Lott, 97-1002 (La.App. 5 Cir. 5/27/98), 712 So.2d 289, 290.

Defendant, through counsel, argues his twenty-five (25) year enhanced sentence is unconstitutionally excessive because, in the five years that he was in prison prior to his resentencing, he rehabilitated himself through the various courses offered in prison. He points to several substance abuse, life-saving, and religious courses he completed while in prison. He also notes that he is currently ^enrolled in a GED program. Defendant claims his twenty-five (25) year sentence is excessive considering his nonviolent record.

In addition, defendant has also filed a pro se brief in which he assigns as error the trial court’s failure to articulate reasons for imposing sentence in violation of La.C.Cr.P. art. 894.1.

As discussed in State v. Lott, 00-1390 (La.App.5/30/01), 796 So.2d 941 (unpublished opinion), writ denied, 01-2410 (La.9/13/02), 824 So.2d 1189, under the laws in effect in July 1995, the time of defendant’s underlying offense, defendant faced an enhanced sentence of “not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction” or between twenty (20) and sixty (60) years. Defendant received twenty-five (25) years, which is at the low end of the sentencing range.

Both the United States and Louisiana Constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const. amend. VIII; La. Const. of 1974, art. I, § 20. A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. Trial judges are granted great discretion in imposing sentences and sentences will not be set aside as excessive absent clear abuse of that broad discretion. State v. Bacuzzi, 97-573 (La.App. 5 Cir. 1/27/98), 708 So.2d 1065, 1068-1069.

In sentencing a defendant, the trial court should state for the record the considerations taken into account and the factual basis therefor. La.C.Cr.P. art. 894.1 C. However, where the record clearly shows an adequate factual basis for the ^sentence imposed, remand for re-sentencing is unnecessary, even where there is not full compliance with La.C.Cr.P. art. 894.1. State v. Morrison, 01-268 (La.App. 5 Cir. 8/28/01), 795 So.2d 465, writ denied, State ex rel Morrison v. State, 2001-2856 (La.8/16/02), 822 So.2d 614.

In reviewing a sentence for ex-cessiveness, this Court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing sentence. State v. Brown, 99-172 (La.App. 5 Cir. 9/28/99), 742 So.2d 1051, 1056, writ denied, 99-3148 (La.4/20/00), 760 So.2d 340. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. Id.

Defendant is a third felony offender. His prior convictions include possession of cocaine and possession of stolen property. State v. Lott, 00-1390 (La.App. 5 Cir. 5/30/01), 796 So.2d 941 (unpublished opinion), writ denied, 01-2410 (La.9/13/02), 824 So.2d 1189. In his most recent conviction, defendant’s level of crime progressed to distribution of cocaine. We find an adequate factual basis for the trial court’s imposition of a twenty-five (25) year sentence in this case.

Defendant argues twenty-five (25) years is excessive in light of his non-violent record. However, a defendant’s record of non-violent offenses cannot be [7the sole reason, or even the major reason, for declaring a sentence excessive. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676.

[t]his is because the defendant’s history of violent or non-violent offenses has already been taken into account under the Habitual Offender Law for third and fourth offenders, which punishes third and fourth offenders with a history of violent offenses more severely than those with a history of non-violent offenses.

State v. Lindsey, 99-3256 c/w 99-3302 (La.10/17/00), 770 So.2d 339, 343, cert. denied by Lindsey v. Louisiana, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001).

Defendant also argues, based on various courses he completed in prison, that he has been or is in the process of being rehabilitated. While being a model prisoner is commendable, it does not negate the fact that defendant committed three offenses in the first place. Defendant’s sentence is based on his previous life of crime and not what he may or may not do while in prison for the crimes which he has committed.

In this case, defendant’s twenty-five (25) year sentence is at the low end of the sentencing range. Given his prior convictions, and the facts of this case, we cannot say that the trial court abused its discretion in this matter.

As requested by defendant, the record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

For the above discussed reasons, defendant’s sentence is affirmed.

AFFIRMED.

      . Distribution of cocaine carries a sentence of "not less than five years nor more than thirty years.” LSA-R.S. 40:967 B. (The 1995 version of the statute is used because the offense was committed in 1995).

      . In State v. Johnson, supra, the Louisiana Supreme Court was discussing the excessiveness of a mandatory minimum sentence under the Habitual Offender Laws. While this case does not involve the imposition of a mandatory minimum sentence, the rationale of Johnson provides general guidance on excessive sentences.