author: 11 DAVID S. GORBATY, Judge. hBELSOME, J.,

text:
    STATE of Louisiana v. George WISCHER.
    No. 2004-KA-0325.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 22, 2004.
    Eddie J. Jordan, Jr., District Attorney, Battle Bell IV, Assistant District Attorney, New Orleans, LA, for Plaintifi/Appellee.

      Eric J. Hessler, Frank G. DeSalvo, ' A.P.L.C., New Orleans, LA for Defendant/Appellant.
    (Court composed of Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).
   11 DAVID S. GORBATY, Judge.

Defendant George Wischer appeals his conviction and sentence for simple battery. For the following reasons, we affirm the conviction, vacate the sentence and remand for resentencing.

STATEMENT OF CASE:

On April 24, 2003, the State indicted George Wischer for second-degree battery, a violation of La.Rev.Stat. 14:34.1. Following a two-day bench trial, the judge found the defendant guilty of simple battery, a violation of La. Rev. Stat 14:35, and subsequently sentenced him to six months in parish jail, suspended, one year inactive probation, and ordered him to pay a fine of $2,500.00 and $148.00 in court costs.

STATEMENT OF FACT:

Paula Lynn Farrior, the victim, testified that she has a history of depression, anxiety, agoraphobia, and that she is prone to self-mutilation. She receives therapy, psychiatric treatment and medication for her disorders. On the night of January 17, 2003, two police officers came to her house reporting that they had |2received a call that someone in the house was trying to hurt herself. Ms. Farrior allowed the officers to enter the house and assured them she was the only person on the premises. She denied trying to hurt herself. The officers looked around and commented on the unkempt condition of her house. The officers questioned her about the scratches on her wrists and arms, and she explained that the cuts were two days old. They told her they were going to transport her to the hospital for her safety. She refused to go, so they handcuffed her hands behind her back. She denied resisting the officers in any manner. When backup officers arrived, making a total of six officers in her house, Ms. Farri- or yelled for them to close her front door because her cats would get out. Ms. Far-rior explained to the female officer on the scene that she was under treatment and wanted to call her personal physician rather than being transported to Charity Hospital. The officers began to shackle her legs. Ms. Farrior was frightened and started twisting and screaming, trying to get away. Although she resisted being shackled, she did not try to kick or hit any of the officers. As she was shackled, the defendant, Officer George Wischer, punched her on the left side of her face and continued to hit her even after she was shackled and had stopped resisting. The defendant called her “bitch” as he hit her. When Ms. Farrior arrived at Charity Hospital, the left side of her face was bruised and swollen. Her left eye was swollen shut. She was sent to the psychiatric ward for evaluation but was not kept for observation. She was released the same night with instructions to report to the eye clinic the next morning. Ms. Far-rior suffered pain for several days after the incident and could not wear her eyeglasses because |sof the swelling and pain. She has a scar under her left eye. Ms. Farrior identified pictures of the injuries to her face and eye.

The State and the defense stipulated that the police officers had the right and duty to take Ms. Farrior into custody for treatment based upon their observations that night.

Sgt. Jody Crocher testified that she was on patrol around midnight on January 17, 2003, when she heard the defendant and Officer Doyle request backup. Crocher drove to the residence where she met Officers Mark Gareno and Jody LaRoche, who also responded to the defendant’s call. As Sgt. Crocher entered the residence, Ms. Farrior was yelling about her cats getting out of the door left open by the officers. Sgt. Crocher also heard Ms. Far-rior say she wanted to kill herself. The defendant and Officer Doyle were trying to persuade Ms. Farrior to accompany them to the hospital. The officers handcuffed Ms. Farrior, and seated her on the floor. Although Ms. Farrior resisted being handcuffed, she was not combative but only wanted to get away and not be touched. Sgt. Crocher called for shackles because she feared Ms. Farrior would attempt to escape. Officer Richter arrived ten minutes later and attempted to shackle her. Ms. Farrior was placed on her back, with her hands cuffed behind her. She began to cry, and twist on the floor to thwart Richter’s effort. Officers Gareno and La-Roche restrained Ms. Farrior’s legs. The defendant was kneeling on Ms. Farrior’s left side, near her shoulders and head. Sgt. Crocher stationed herself between the defendant and the officers holding Ms. Farrior’s legs. Ms. Farrior began wiggling and trying to Rescape the officers restraining her. Sgt. Crocher was facing Ms. Farrior’s feet but turned when she heard a noise as if someone was being struck. She saw the defendant strike Ms. Farrior multiple times in rapid succession with a closed fist. After the incident when Sgt. Crocher questioned the defendant about his conduct, he told her that Ms. Farrior bit him on the thigh. However, the defendant said nothing at the time of the biting. Sgt. Crocher stated that Ms. Farrior had no injuries to her face prior to the officers’ attempt to shackle her, but as Ms. Farrior was walked out to the police car, Sgt. Crocher saw the extent of the injuries to the left side of her face and left eye. Sgt. Crocher ordered the defendant to return to the Third District station until further notice.

Lt. Henry Waller and Officer Jody La-Roche testified for the defense.

Lt. Waller said that he saw the defendant at the Third District station shortly after midnight on January 17, 2003. Lt. Waller noticed that the defendant’s uniform was ripped and that he had a paper towel wrapped around a bleeding finger on his left hand. Lt. Waller directed that photographs be taken of the defendant’s finger, the condition of the defendant’s uniform and the defendant’s left knee, because he complained of swelling in the knee. He identified the photographs at trial. Lt. Waller documented the defendant’s injuries in a First Report of Injury as related by the defendant: “ ... while attempting to handcuff the subject the employee received scrapes to his left wrist and left ringer finger. Subject also bit the employee through his pants leg causing slight swelling to the inside of his left knee.” Lt. Waller admitted that he did not see any bite marks on the defendant, but he did note swelling in the left knee area. The defendant was |fidrug tested and then taken to a clinic for treatment of his scrapes. On cross-examination, Lt. Waller testified that the defendant told him Ms. Farrior attempted to bite him.

Officer Jody LaRoche testified that he and his partner, Mark Gareno, also responded to the defendant’s backup request. Wben Officer LaRoche entered the house, the victim was visibly disturbed. He noted that the victim had “I want to die” and “six, six, six” scratched on her arms. All of the officers attempted to persuade the victim to seek medical help, but she refused. As officers handcuffed the victim for transport to the hospital, she became combative. It took at least 3 officers to handcuff her. After handcuffing her, the officers sat the victim on the floor awaiting the arrival of the shackles ordered by Sgt. Crocher. When the victim saw the shackles, she started violently kicking at the officers and twisting her torso to escape. Officers LaRoche and Gareno restrained the victim’s legs with their hands and ordered her to stop resisting, to no avail. Officer LaRoche heard the defendant say that the victim bit him during the struggle but did not see any biting because he was focused on restraining the victim’s legs. He did not hear the defendant call Ms. Farrior a bitch or strike her. When Officer LaRoche entered the house, there were no injuries to the victim’s face. He denied looking at her face at all before he left the scene.

NOPD Criminalist Joseph Tafaro performed a forensic light test on the defendant’s pants and shirt. Testing showed the presence of some unidentified possible biological material on the right pants leg.

The defendant testified that on the night of January 17, 2003, he responded as backup to a signal 103M call — mental subject armed with a knife. He met Officer Doyle at the location and made contact with Ms. Farrior explaining the |fireason for their visit. Ms. Farrior allowed the officers to enter her residence, at which time the defendant noticed cuts on Ms. Farrior’s wrists. She admitted that she was depressed and contemplating suicide, so the defendant suggested she go to Charity Hospital for evaluation but she refused. Ms. Farrior became agitated and combative. The defendant called for backup. With the arrival of backup, the officers continued to calmly persuade Ms. Farrior to seek psychiatric care. Ms. Farrior steadfastly refused the request and began evading the officers, moving around the house. The officers decided to handcuff her to contain her movements and to ensure her safety. As the defendant placed the first cuff on Ms. Farrior, she swung at him, grazing his face with her fist. The officers forced her to the ground face first, and, as a group, forced her other arm behind her to complete the handcuffing process. A few minutes later, Officer Richter arrived with the shackles requested by Sgt. Crocher. The sight of the restraints caused Ms. Farrior to kick at the officers and flip-flop on the floor to thwart their efforts to subdue her. Two officers immobilized Ms. Farrior’s legs. The defendant placed his left knee on her chest to inhibit torso movement. As the defendant held Ms. Farrior, she raised her head with her mouth open, and made contact with the inside of his left knee. He punched her in the face. When she attempted to come at him with an open mouth a second time, he punched her again. He did not believe she had broken his skin, but he felt pressure. The defendant testified that when Sgt. Crocher asked him what had happened, he told her that the victim had bitten him. Sgt. Crocher visually inspected the area of his knee, then ordered him to the station. He admitted that he did not know if Ms. Far-rior had actually bitten him when he reacted by punching her. When asked if he could have just pushed the victim’s head down with his free hand instead of punching her, the defendant 17responded that it would not have been practical. The defendant maintained he acted reasonably in defending himself.

ERRORS PATENT:

A review for errors patent reveals an error in the sentencing. Whoever is convicted to simple battery shall be fined not more than five hundred dollars, imprisoned for not more than six months, or both. The trial court imposed a fine of $2500. Accordingly, we vacate the sentence of the trial court, and remand for resentencing in accordance with the statute.

ASSIGNMENT OF ERROR:

In a sole assignment of error, the defendant argues the court erred in convicting him of simple battery because his conduct was justifiable as self-defense and reasonable under the circumstances. La. Rev.Stat. 14:18 and 14:19.

To obtain a conviction for simple battery, the State must prove that the defendant intentionally used force or violence upon the victim without the victim’s consent. La.Rev.Stat. 14:33,14:35.

Louisiana Revised Statute 14:18 provides that “[t]he fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct.” Further, the defense of justification can be claimed when any crime, except murder, is committed when the offender’s conduct is an apparently authorized and reasonable fulfillment of any duties of public office. La.Rev.Stat. 14:18(1). (emphasis supplied). Since' “justification” defenses are not based on the nonexistence of any essential element of the offense, but rather on circumstances which make the accused’s conduct excusable on policy grounds, such defenses should be treated as affirmative ^defenses which the accused must establish by the preponderance of evidence. La.Rev.Stat. 14:18; State v. Cheatwood, 458 So.2d 907 (La.1984).

La.Rev.Stat. art. 14:19 provides in part: “The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person ... provided that the force or violence used must be reasonable and apparently necessary to prevent such offense .... ” (emphasis supplied).

As noted by this Court in State v. Fluker, 618 So.2d 459, 462 (La.App. 4 Cir. 1993): “In a nonhomicide situation, the defense of justification requires a dual inquiry, namely: an objective inquiry into whether the force used was reasonable under the circumstances; and, a subjective inquiry into whether the force was apparently necessary.” Other courts of appeal in Louisiana have held that as an affirmative defense, the defendant has the burden of showing justification by a preponderance of the evidence. See State v. Wright, 99-1137 (La.App. 3 Cir. 3/1/00), 758 So.2d 301, writ denied, State ex rel Wright v. State, 2000-1614 (La.3/9/01), 786 So.2d 118; State v. Barnes, 491 So.2d 42 (La.App. 5 Cir.1986). See also State v. Cheatwood, 458 So.2d 907 (La.1984), where the Supreme Court discussed this burden and stated:

It is logical to conclude that the Legislature intended to require the state to prove beyond a reasonable doubt only the elements of the offense and to require defendant to prove by preponderance óf evidence the exculpatory circumstances constituting the “affirmative” defense. The statutory provisions setting forth the states burden of proof refer only to the requirement that the state prove the elements of the crime — ■ not that the state disprove the exculpatory circumstances constituting defenses which defeat criminal culpability despite proof of the presence of all elements of the offense.

Cheatwood, 458 So.2d at 910, fn. 4 (emphasis in original) (citations omitted).

| flIt is the opinion of this Court that we adopt the position set forth by the Supreme Court in Cheatwood, and adopted by the 3d and 5th Circuits.

A conviction cannot stand if no rational trier of fact could find the defendant guilty as charged based on the record as a whole. State v. Mussall, 523 So.2d 1305, 1311 (La.1988). The appellate court reviews the record in its entirety because a rational trier of fact would consider all of the evidence presented. The appellate court presumes that the trier of fact acted rationally. Id. Rational credibility calls, rational decisions on the weight of the evidence, and rational inferences drawn from the evidence must stand. Id.

Although defendant contends that his actions were justified in that he acted in self-defense, he failed to prove necessity, i.e., that the threat of force by another was imminent and apparent, and that he had no reasonable alternative but to punch the victim numerous times. He also failed to prove justification, i.e., that he was in imminent peril of great bodily harm, or reasonably believed himself or others to be in such danger. His self-serving testimony that he thought the victim might head-butt other officers was not corroborated by any other testimony or evidence.

The defense witnesses, Lt. Waller, Officer LaRoehe, and Criminalist Tafaro gave no support to the defendants testimony. Lt. Waller did not witness the exchange between the defendant and the victim, and Officer LaRoehe admitted he could not see if the victim had bitten the defendant because his attention was focused on subduing the victims legs. Criminalist Tafaro testified as to the possible presence of an “unidentified biological material” on the defendant’s right pants leg. However, Lt. Waller testified that the defendant reported to him that the victim bit the defendant’s left leg. Moreover, no testing ever proved that the material Tafaro detected was saliva.

|10The State’s witness, Sgt. Jody Crocher, on the other hand testified that she heard “a loud noise that sounded like someone was being struck ... like a fist making contact with ... flesh.” Sgt. Crocher turned in the direction of the sound and “... saw Officer Wischer kneeling over Ms. Farrior. And I saw his arm coming up and his fist going down. It was ... multiple blows in rapid succession ... [cjlosed fist.” Sgt. Crocher testified that the first time the defendant said anything about being bitten was after the incident as he was leaving the scene. Moreover, Sgt. Crocher’s testimony indicates that at the time the defendant struck the victim, she was immobilized. She was lying on the floor with her hands cuffed behind her back. Four officers — three holding her legs and the defendant restricting the victim’s torso movement, restrained her. The officers’ restraint immobilized the victim and rendered her incapable of turning over.

Upon sentencing the defendant, the trial judge noted:

... you are rightly or wrongly placed (sic) a higher level of confidence in the professional training, temperament and judgment of people who we as the general public entrust with this level of responsibility. Mr. Wischer, you failed us, you failed us in that regard. Yet, sir, I once again recognize that, that cool reflection allows us, after put in the situation, of looking back on what you did and deliberating on the wisdom of the judgments that you made on that day when you yourself had but a few brief moments to react to what was happening before you. I also heard testimony that there was a similar experience in your professional background which may have played a role in your reaction, your response. Yet, the court once again reminds you that the level of responsibility that was placed upon your shoulders as a law enforcement professional would in fact have mandated your reaction be dramatically different than it was.

After reviewing the record in its entirety, this Court finds no error in the trial judge’s conclusion that the defendant failed to prove that his action was necessary or reasonable.

| nAccordingly, we affirm the conviction. The sentence is vacated and this matter is remanded to the trial court for resentenc-ing in accordance with the provisions of La.Rev.Stat. 14:35.

CONVICTION AFFIRMED; SENTENCE VACATED, AND REMANDED.

BELSOME, J., concurs in Decree with Reasons.

hBELSOME, J.,

concurring in decree with reasons.

I concur in the result rendered by this court, but respectfully disagree with the majority opinion’s interpretation of LSA R.S. 14:18 and 14:19, determining that a criminal defendant in a non-homicide case should bear the burden of proving self-defense or justification. This court discussed the very issue in State v. Fluker, 618 So.2d 459 (La.App. 4 Cir.1993), stating:

Under our Louisiana Constitution, every defendant is innocent until proven guilty. La. Const. Article I § 16 (1974). The State bears the burden of proving guilt beyond a reasonable doubt. Id. Except where expressly stated by the legislature, the state should bear the burden of proving every aspect of a criminal defendant’s guilt.

LSA R.S. 14:18, 14:19 and 14:20 specifically set forth the provisions under which a defense of justification applies. The justification statutes are silent as to the defendant bearing any burden of proof. Logically, if the State must disprove a defendant’s assertion of innocence in a homicide case, the state shall also bear that burden in a non-homicide case. The lack of distinction between the statutes does not support this majority opinion’s reasoning that in a non-homicide case the burden of proof is lessened to a preponderance of the evidence and shifts to the defendant.

In State v. Freeman, 427 So.2d 1161 (La.1983), Chief Justice Calogero acknowledged that there was no Louisiana jurisprudence distinguishing the hburdens of persuasion applicable to self-defense in homicide and non-homicide cases. He further stated that it was a “narrow legal issue” that did not have to be resolved for the court to decide the Freeman case. Id. at 1163. Likewise, I do not believe the facts of this case warrant a determination of that “narrow legal issue” to affirm Officer Wischer’s conviction. The State met their burden of disproving Officer Wischer’s assertion of self-defense beyond a reasonable doubt.

Officer Wischer’s conduct would have been justified only if it was apparently authorized and reasonable in the fulfillment of his duties. LSA R.S. 14:18(1). It is undisputed that at the time Officer Wischer assaulted Ms. Farrior, she was lying on her back, handcuffed while officer Officer Wischer knelt on her left side. Assuming that Officer Wischer’s claim that Ms. Farrior bit him was true the extent of force used against Ms. Farrior, several closed fist punches to the face, was unreasonable under the given circumstances. Therefore, I agree with this court’s result, but for the reasons discussed cannot join in the majority opinion’s reasoning.

      . Apparently, one of the victim's unnamed friends contacted the police and expressed concern that the victim was suicidal.

      . During the course of the trial, some of the witnesses refer to Sgt. Crocher by her other name "Colmenaro.”

      . The transcript indicates that this officer's name was spelled phonetically.

      . Lt. Waller held the rank of sergeant at the time of this incident.


source: Caselaw Access Project

author: I «THOMAS F. DALEY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Furnell D. SEVERIN, Jr.
    No. 04-KA-326.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 28, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Donald A. Rowan, Jr., Assistant District Attorneys, Twenty-Fourth Judicial District Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defen-danVAppellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and THOMAS F. DALEY.
   I «THOMAS F. DALEY, Judge.

The defendant, Furnell Severin, Jr., has appealed his convictions of second degree murder and attempted second degree murder, claiming there is insufficient evidence to support the jury’s verdict. For the reasons that follow, we affirm.

FACTS:

In the early morning hours of March 30, 2002, defendant, Furnell Severin, went to Mike’s Place, a bar at 433 Veterans Boulevard in Kenner. He arrived there with Charley Hollins and Chad Gooden. Defendant was driving Gooden’s car, a black 1994 Chevrolet Impala. The group was accompanied by Shawn Moore and Brandon Irving, who arrived together in Irving’s white Chevrolet Impala. Both cars were parked at the far side of the parking lot, some distance from the bar’s front entrance. Irving testified that they entered the bar shortly after midnight.

Ashley Washington testified that she arrived at Mike’s Place between 12:30 and 12:45 a.m. She did not go inside, as she was sixteen years old, and underage. Instead, she waited outside for an older friend who had gone into the bar. She | ^testified that thirty to forty-five minutes after arriving, she saw defendant leave the bar. She further testified that she heard defendant say he was going to get “that thing,” because someone in the bar had “pissed him off.”

Ashley testified that she saw defendant walk around the side of the building, and return carrying a handgun. Ashley further testified that defendant opened fire in front of the building, shooting at Stanley Norman and his companions. Ashley testified that, after defendant fired his gun, a skinny, dark-skinned man who was with defendant aimed a handgun at the ground and fired.

Ashley testified that she and her friends ran to their car and prepared to leave. They saw Stanley Norman slumped over his ear’s steering wheel, and stopped to investigate. They discovered he had been shot. Ashley testified that he was bleeding profusely from his chest, and was having difficulty breathing. She testified that she did not see either Stanley Norman or his friends do anything to antagonize defendant.

Terrence Jones testified that he was at Mike’s Place with a group of friends, including Stanley Norman. At one point, Jones saw his friends become involved in an altercation with a group of young men. That group included Chad Gooden, whom Jones knew from middle school. Jones also testified that he knew defendant because they had attended Fannie C. Williams Middle School together. Jones was unable to determine how the fight had started, as the loud music in the bar made it impossible for him to hear what the parties were saying. The fight escalated, and one of Jones’s friends, Michael Bernard, was hit in the face with a bottle.

Jones testified that he helped Bernard out of the bar, and they walked toward Stanley Norman’s car. Jones testified that defendant ran toward him, firing a gun at a distance of about thirty feet. Jones testified that defendant fired at least seven to eight shots. Jones was hit, and fell to the ground. When the shooting stopped, 14he made his way to Stanley Norman’s car. He saw that Stanley Norman was in the driver’s seat, slumped over the steering wheel.

Sergeant Richard Mottley of the Kenner Police Department testified that he and Sergeant Emile Sanchez were having breakfast at Rick’s Café on Loyola Drive, one-half block away from Mike’s Place, when a man entered and told them shots had been fired at the bar. The two officers immediately got into their police units and drove to the scene. Sergeant Sanchez alerted Troy Simon, a police radio dispatcher, to the shooting report.

Dispatcher Troy Simon testified that, sometime between 2:00 and 2:30 a.m., he received a telephone call regarding gunshots fired at Mike’s Place. He testified that Mike’s Place is across the street from police headquarters. Dispatcher Simon went to a window from which he could see the bar. He saw a man in front of Mike’s Place raise his hand and fire a gun into a group of about five people. The people fled from the shooter, and two of them fell to the ground. Dispatcher Simon relayed a description of the incident over the police radio.

Officers Patrick Gallagher, Mary McCormick, and Chad Peterson were at the police headquarters when they heard over the radio that shots had been fired at Mike’s Place, and that there were subjects down. The three officers immediately responded to the call. Officer Peterson testified that he, Officer Gallagher, and Officer McCormick exited through the rear of the building, and ran toward their police vehicles, but when they looked toward the bar and saw defendant firing a gun into a crowd, they proceeded to the scene on foot. Officer Peterson testified that defendant fired seven to eight shots. The officers shouted at defendant, “Stop, police department, stop.” Officer Peterson testified that defendant looked at him and the other officers as they approached, and fired an additional shot. Defendant then got into a car and drove it directly toward the officers.

| ¡^Officers Peterson and Gallagher opened fire on defendant’s vehicle. Defendant turned his vehicle and drove it across the median on Veterans Boulevard, heading eastbound in the westbound lanes. Officer Peterson testified that Sergeant Mottley arrived at the scene in a police vehicle, and he gave Sergeant Mottley a description of defendant and his car. Sergeant Mottley pursued defendant, while Officers Peterson, Gallagher, and McCormick remained at the scene.

Officer Gallagher testified that he located three shooting victims in front of Mike’s Place. One, Stanley Norman, was seated in a maroon Oldsmobile, with a gunshot wound to the chest. Another had sustained a gunshot wound to the leg. The third victim had a gunshot'wound to the arm. The victims were transported to area hospitals. Stanley Norman was pronounced dead at Kenner Regional Medical Center.

Sergeant Mottley testified that he arrived at the scene just after defendant drove away in his car. Sergeant Mottley followed defendant in his police unit. He testified that defendant continued traveling east on Veterans Boulevard, crossing into the eastbound lanes. Defendant turned right on Williams Boulevard, and Sergeant Mottley followed. Sergeant Mottley pulled defendant over in the 1800 block of Williams. Sergeant Mottley stopped his car behind defendant’s vehicle, and used a microphone to instruct defendant to get out of his car. Defendant then drove away at a high rate of speed. Sergeant Mottley testified that he continued to follow defendant. Defendant’s tires eventually began to fall apart, and he was forced to stop. When Sergeant Mottley approached the car, defendant was in the driver’s seat. There was a man in the front passenger seat, and another in the back seat.

Officer Peterson relocated to Williams Boulevard, where Sergeant Mottley had stopped defendant and his companions. He identified defendant as the shooter. | ^Officer Peterson testified that he advised defendant of his Miranda rights, and then asked defendant whether he wished to waive his rights and make a statement regarding the shootings. Defendant told Officer Peterson there was a fight inside of Mike’s Place. Defendant said someone spilled a drink on him, and he (defendant) “capped him.”

Detective Brian McGregor testified that he was responsible for the crime scene investigations in the instant case. These included the scene where defendant’s car was stopped, Brandon Irving’s vehicle, which was found on Airline Highway, where it had been involved in a crash, and the area around Mike’s Place. A gun was recovered from the ground next to the Irving car. Both cars were towed to the Kenner Police Department, and were searched pursuant to warrants obtained by Detective McGregor. Numerous projectiles were recovered from defendant’s vehicle.

Detective McGregor determined that defendant fired a weapon at the scene. He testified that he recovered a Taurus .9mm handgun in the course of his investigation, and that it was believed to be defendant’s gun. According to Detective McGregor, twelve bullet casings found at the scene were matched to the Taurus handgun.

Detective McGregor further testified that the bullet that hit Stanley Norman exited the victim’s chest, making it impossible to attempt a ballistics match. Various bullet fragments and pellets recovered from the scene and defendant’s vehicle were insufficient to test.

The parties stipulated that, if Captain Louise Walzer were to testify, she would be accepted as a ballistics expert. The parties further stipulated that Captain Walzer would testify that, of the eight pellets recovered from the scene that could |7be identified through ballistics analysis, four were from Officer Gallagher’s gun, and four were from Officer Peterson’s gun. It was stipulated that there were nine unknown, unidentified fragments. None of the pellets that were recovered matched the Taurus ,9mm pistol, but twelve spent bullet casings matched the Taurus pistol. No spent casings matched State’s Exhibit 17, a Bryco .9mm pistol.

Detective Chad Jacquet testified that he conducted a tape recorded interview with defendant. The interview began at 11:07 a.m. on March 30, 2002. The audio tape was played for the jury at trial.

Defendant told Detective Jacquet that he went to Mike’s Place with Chad, Charley, Shawn, and Brandon. Defendant drove Chad’s car there. Defendant said he drank a fifth of Hennessey before arriving at the bar, and that he had more to drink after he got there. He was intoxicated. Someone in the club hit defendant. He was knocked to the floor, and people wearing, red and blue rags kicked him. According to defendant, Charley was also hit.

Defendant further stated that he and Charley exited the bar and went to the car. Shots were fired from among a group of black men outside the bar, and Charley was wounded. Defendant grabbed his pistol from under the driver’s seat of Chad’s car, and fired it in the direction from which he believed the shots had been fired at Charley. Defendant told Detective Jac-quet he did not know whether the people he fired at were those with whom he had fought inside the bar. He said that none of the shots he fired hit anyone.

Defendant stated that he got into Chad’s car and drove away, while someone fired a gun at him. Charley and Chad were in the car with him. Defendant continued to drive until he hit something. Defendant said he threw the gun out of the car window, but did not remember where. Defendant told Detective Jacquet he |sdid not intend to kill anyone, and that he fired his gun in response to the gunfire that was directed at Mm.

Defendant testified at trial, stating that he told Detective Jacquet the truth in the recorded interview. He denied having told Officer Peterson that he had “capped” anyone.

Defendant identified State’s Exhibit 16, the Taurus .9 mm handgun, as the one he fired in front of Mike’s Place. He testified that he fired his gun at a group of fifteen to twenty people after someone in that group fired at him. He did not see the person who shot at him, as it was dark. Defendant testified that no one was hit when he fired the gun, and that no one fell. He asserted that Stanley Norman was shot before he (defendant) exited the bar. Defendant denied seeing or hearing the police officers who approached him at the scene. He further testified that he did not see or hear Sergeant Mottley attempt to stop him in his car.

Brandon Irving testified for the defense. He stated that he was at Mike’s Place with defendant, Furnell Severin, Jr., Shawn Moore, Charley Hollins, and Chad Gooden. The group was involved in a fight inside of the bar. Irving went outside with Moore, and the two men walked to Irving’s car. He did not see when defendant left the bar. Irving testified that he heard the sound of gunshots coming from the area in front of the bar. He did not see who fired those shots.

Irving testified that he took his gun out of his car and fired a round into the air then he and his companions drove away from the scene. When he realized defendant was not behind him, Irving turned around and drove back toward Mike’s Place. He saw police officers shoot at defendant’s car. He thought defendant was probably dead, and left the area. Irving said he was stopped by police for a traffic violation, and that officers told him at that time that he was under investigation for first degree murder and attempted murder. He testified that he was charged with |flone count of first degree murder and two counts of attempted murder, and that he had pled guilty to illegal use of a weapon.

Irving testified that he gave a statement to police. He said that he told officers he fired into the air, and not toward Mike’s Place. But after he was shown his statement to refresh his memory, Irving testified that he told police he fired toward the bar, in the air.

At the conclusion of trial, defendant was found guilty of second degree murder of Stanley Norman and attempted second degree murder of Terrence Jones. Defendant received the mandatory life sentence for second degree murder and fifty years at hard labor for attempted second degree murder. He timely filed this appeal.

LAW AND DISCUSSION:

In his sole specific Assignment of Error, the defendant argues the evidence was insufficient to support the verdict. Specifically, defendant contends that the State failed to prove he fired the shots that killed Stanley Norman and injured Terrence Jones. He suggests the shots were fired by “parties unknown.” Defendant further complains the State failed to show that defendant had a motive for shooting the victims, and thus, failed to prove specific intent.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 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. State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291; State v. Williams, 99-223, p. 6 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 607.

|inWhen ■ circumstantial evidence forms the basis of a 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. Williams, 99-223, at p. 8, 742 So.2d at 608. When circumstantial evidence is used to prove a case, the trial judge must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. This statutory test works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury. State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657.

In State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83 (emphasis as found in the original), the Louisiana Supreme Court commented:

On appeal, the. reviewing court “does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events.” State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020. Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. Id.

To prove second degree murder, the State was required to show (1) the killing of a human being, and (2) that the defendant had the specific intent to kill or inflict great bodily harm. LSA-R.S. 14:30.1(A)(1). To sustain a conviction for attempted second degree murder, the State must prove that the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim’s death. LSA-R.S. 14:27; 14:30.1. Although the 'statute for the completed crime of second degree murder allows for a conviction based on specific intent to kill or to inflict great bodily harm, attempted second degree murder requires specific intent to kill. State v. Bishop, 01-2548, p. 4 (La. 1/14/03), 835 So.2d 434, 437; State v. Zaldivas, 02-0690, pp. 5-6 (La.App. 5 Cir. 12/30/02), 836 So.2d 577, 580-581, writ denied, 03-0705 (La.10/17/03), 855 So.2d 757.

Encompassed in proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. When the key issue in the case is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Billard, 03-319, p. 5 (La.App. 5 Cir. 7/29/03), 852 So.2d 1069, 1072, writ denied, 03-2437 (La.2/6/04), 865 So.2d 739.

In the case ’ before us, defendant does not dispute that he fired his weapon at the scene. He asserts, however, that so many individuals fired guns at the scene within a brief period of time that it is mere speculation to say he was responsible for shooting Stanley Norman and Terrence Jones. He points out that police were not able, through ballistics testing, to link his gun to the bullets that hit Stanley Norman and Terrence Jones. Contrary to defendant’s argument, the State provided a great deal of evidence, both direct and circumstantial, to show that defendant did fire the shots that killed Stanley Norman and injured Terrence Jones.

Ashley Washington testified that she saw defendant leave Mike’s Place and walk around the. side of the building, out of view. She heard him say that someone in the bar “had pissed him off,” and that he was going to get “that thing.” Ashley’s friend exited the bar and told her that “he” was going to get a gun. Ashley inferred that, by “he,” her friend meant defendant. Ashley testified that defendant returned to the bar shortly thereafter, carrying a gun and that defendant “opened fire in front of Mike’s Place.” She further testified that defendant was shooting at “Stan and his friends.” They reacted by attempting to duck and hide.

Ashley testified that when defendant fired his gun, Stanley Norman fell to the ground in back of his car. She testified that Stanley Norman and his friends |12were going to their car when defendant opened fire. Ashley explained that Stanley Norman and his friends did not do anything to cause defendant to fear for his life, specifically stating that Stanley Norman did not fire a gun.

Ashley testified that she identified defendant in a photographic lineup on April 4, 2002. She also identified defendant in court as the gunman who shot Stanley Norman.

Terrence Jones testified that he was at Mike’s Place with some friends, including Stanley Norman. Jones stated that he saw some of his friends become involved in a fight with another group of people inside the bar. He and his friends went outside, where they were shot upon by another group of people. One of Jones’s companions was injured, and Jones walked with him toward the parking lot. Jones saw defendant running toward him, shooting at him from a distance of about thirty feet. Jones was hit by a bullet. He fell to the ground, and remained there until the shooting stopped. He then went to Stanley Norman’s car, and discovered Stanley Norman had also been shot. Jones testified that he was facing defendant when he fired the gun, but that his friends had their backs to defendant.

Jones testified that he knew defendant prior to the shooting incident, as they had attended Fannie C. Williams Middle School together. Defendant testified he did not know Terrence Jones. He stated he did not attend Fannie C. Williams Middle School, and that he went to school at St. Raphael. In support of defendant’s contention, the defense produced a student handbook, a basketball team certificate, a sports banquet program, and a graduation program, all of which show that defendant was a student at St. Raphael during the 1993-1994 school term. Those documents do not, however, exclude the possibility that defendant attended Fannie C. Williams Middle School during some other school term. In any case, Jones identified defendant in a photographic lineup on April 4, 2002 and at trial.

_|_1gDispatcher Troy Simon’s account of the shooting corroborated the testimony of Ashley Washington and Terrence Jones. When Dispatcher Simon looked at the parking lot of Mike’s Place, he saw a man raise his arm, point a gun, and fire into a group of about five people. The people at whom the shooter was firing began to run away from him, while two of them fell to the ground.

Dispatcher Simon broadcast descriptions of the incident and the shooter over the police radio, and several officers immediately responded. Dispatcher Simon saw those officers approach the gunman. Dispatcher Simon then saw the shooter get into a car and drive toward those officers.

Officers Patrick Gallagher, Mary McCormick, and Chad Peterson approached the scene after the victims were shot, but before defendant stopped firing his weapon. Officer Gallagher testified that he arrived to see a black male with long “dreadlocks” firing into a group of people. Officer McCormick testified that she was too far away to identify the shooter by his facial features, but that she could see he had braided hair, and wore black pants and a brownish-beige shirt. Officer Peterson testified that he saw defendant fire a gun into a crowd of people.

Immediately after defendant drove away from the bar, Officer Peterson gave Sergeant Mottley a description of the shooter and his vehicle. Sergeant Mottley followed the vehicle, keeping it in sight until he was able to execute a stop. Sergeant Mottley identified defendant at trial as the person he followed from the bar. After Sergeant Mottley apprehended defendant, Officer Peterson went to the scene of the arrest. Defendant and his two companions were each in separate police cars. Officer Peterson looked at each subject, and identified defendant as the shooter.

Ashley Washington testified that she saw one of defendant’s companions (as-sumedly Irving) fire eight to nine shots toward the ground after defendant fired at Stanley Norman and his friends. Terrence Jones testified he did not hear any 114other gunshots before defendant fired the shots that hit him and Stanley Norman. Irving testified that he fired one round into the air, in the direction of the bar.

The jury found the accounts of Ashley Washington and Terrence Jones convincing. They both testified that they saw defendant point his gun and fire at Stanley Norman and his friends. Additionally, Officer Peterson identified defendant as the shooter after his car was stopped. Moreover, Officer Peterson testified that defendant told him someone spilled a drink on him in the bar, and he “capped” (i.e., shot) him.

We are aware that at trial defendant denied having made such an admission to Officer Peterson and testified that he shot his gun in self defense and did not strike any one. However, in choosing to believe the testimony of Ashley Washington, Terrence Jones, and Officer Peterson over that of the defendant, the jury made a credibility assessment. This Court cannot assess credibility or reevaluate evidence on appeal. State v. Favorite, 03-425, p. 9 (La.App. 5 Cir. 11/25/03), 862 So.2d 208, 214, writ denied, 03-3529 (La.4/23/04), 870 So.2d 298.

Defendant further argues that the State failed to prove he had the requisite intent to kill or inflict great bodily harm with respect to the murder charge, and that the State did not prove specific intent to kill as to the attempted murder charge. 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.” LSA-R.S. 14:10(1). Because specific intent is a state of mind, it need not be proven as a fact, but may be inferred from circumstances and actions of the accused, as well as the extent and severity of the victim’s injuries. State v. Keating, 00-51, p. 5 (La.App. 5 Cir. 10/18/00), 772 So.2d 740, 743, unit denied, 00-3150 (La.10/12/01), 799 So.2d 494.

Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Robinson, 02-1869, p. 4 (La.4/14/04), 874 So.2d 66, 74; State v. Williams, 01-1650, p. 16 (La.11/1/02), 831 So.2d 835, 849. It is of no consequence whether defendant, in firing his weapon into a group of people, intended to hit one person or several people. In State v. Tyler, 342 So.2d 574 (La.1977), cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977), the defendant was convicted of first degree murder after firing a gun into a crowd. The Supreme Court found that the jurisprudence supported the proposition that shooting into a crowd indiscriminately with intent to kill someone was an assault with intent to kill each of them. See also, State v. Neal, 00-0674 at p. 10, 796 So.2d at 657 (“clearly an offender who uses a high powered assault rifle and shoots indiscriminately through a door at a group of people specifically intends to kill the victims”)[J We find that the testimony elicited at trial that the defendant fired his gun into a crowd of people is sufficient to satisfy the intent requirement of this statute.

Defendant then argues that the State failed to establish a motive. Motive is not an element of second degree murder or attempted second degree murder under LSA-R.S. 14:30.1 or LSA-R.S. 14:27. However, the Louisiana Supreme Court has explained that absence of proof of motive “ ‘may properly be considered as a circumstance mitigating against specific intent.’” State v. Williams, 98-2707, p. 4 (La.3/11/94), 633 So.2d 147, 149 (quoting State v. Mart, 352 So.2d 678, 681 (La.1977)).

Officer Peterson’s testimony that defendant stated that someone in the bar had spilled a drink on him, and that he had “capped” that person, suggests a motive for the shootings. Ashley Washington testified that, as defendant left the bar to retrieve his gun, she heard him say that someone inside the bar had “pissed him off.” Additionally, defendant also testified at trial that he and his Mends became involved in an altercation inside of Mike’s Place. This also suggests a motive for defendant to shoot into the crowd.

11frAfter a review of the evidence based on the standard enunciated in Jackson v. Virginia, we find the State provided sufficient proof for a rational trier of fact to find the defendant guilty of second degree murder and attempted second degree murder beyond a reasonable doubt.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent. LSA-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 in this case.

CONCLUSION:

For the foregoing reasons, the defendant’s convictions are affirmed.

AFFIRMED.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The parties stipulated at trial that, if Dr. Susan Garcia, Deputy Coroner with the Jefferson Parish Coroner's Office, were to testify, she would say that Stanley Norman died as a result of a gunshot wound to the back, and that no pellet was recovered from the body.

      . This gun was apparently the gun found next to Brandon Irving’s car. The State introduced it in evidence at the time of the stipulation.


text:
    STATE of Louisiana v. Nick LAWSON.
    No. 04-KA-334.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 28, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and THOMAS F. DALEY.
   I «THOMAS F. DALEY, Judge.

The defendant has appealed his six-year sentence as a second felony offender for his conviction of one count of battery on a correctional facility employee and two counts of simple battery. For the reasons that follow, we affirm the sentence and remand this matter to the trial court with instructions.

FACTS:

The defendant, Nick Lawson, was charged with three counts of battery upon three different correctional facility employees while detained in jail, violations of LSA-R.S. 14:34.5. He proceeded to trial before a six-person jury.

At approximately 6:15 or 6:30 a.m. on April 7, 2002, defendant was in a temporary holding cell in the intake booking area of the Jefferson Parish Correctional Center. Deputy Louis Anear testified that the defendant was belligerent and yelling when he was first brought into the jail. Defendant was not yet processed for booking when he requested to use the restroom. Deputy Mark [¡¡Layrisson, the processing officer, testified that he told the defendant that he needed to wait until he had been processed because the restroom was located in an area of the jail where certain items could not be taken. Deputy Layrisson testified that when he told defendant he would need to wait, defendant urinated through the mesh siding of the temporary cell onto the floor.

Deputy Anear, who was nearby, testified that he saw defendant urinating on the floor. Deputies Anear and Layrisson decided to remove defendant from the cell. After Deputy Anear opened the door, both he and Deputy Layrisson requested defendant to exit the cell. According to Deputy Anear, defendant said that if they wanted him to come out, they would have to drag him out. Deputy Joaquin Campoy testified that he was approximately eight to ten feet away from defendant’s cell, heard the commotion, and went to investigate. As Deputy Campoy approached, defendant threw his shoes into the puddle of urine, which splashed on all three officers.

According to Deputy Campoy, defendant was aggressive and cursing while in the back of the holding cell. Deputy Campoy entered the cell and told the defendant that he needed to exit the cell, but defendant raised his fists and told the officer that he would have to “come in and get me.” Thereafter, defendant struck Deputy Campoy in the left jaw. Deputy Cam-poy and Deputy Anear were able to remove defendant from the cell. As the officers and defendant exited the cell, they were shoved into Deputy Layrisson, who was standing outside of the cell.

The scuffle continued on the floor and defendant was ultimately subdued and handcuffed. Defendant was processed and placed in an isolation cell. Defendant subsequently filed a complaint against the officers for battery.

Deputy Campoy sustained a cut on his arm during the incident and Deputy Anear sustained “[m]inor scrapes and bruises.” Deputy Layrisson said that he was Lshoved against the wall when the officers and defendant exited the cell and that defendant’s “swinging hands ... brushed” against him.

At the conclusion of trial, the jury found defendant guilty as charged to count one, which involved correctional employee, Deputy Joaquin Campoy. The jury returned responsive verdicts of guilty of simple battery on counts two and three, which involved correctional employees, Deputies Mark Layrisson and Louis Anear, respectively.

After denying defendant’s Motion for New Trial, the trial judge sentenced defendant on April 10, 2003 to five years of imprisonment with the “Department of Corrections” on count one. The trial judge also imposed sentences of six months each on counts two and three to be served with the “Department of Corrections,” with all three of the sentences to be served concurrently with each other. That same day, the State filed a multiple offender Bill of Information seeking to enhance defendant’s sentence for battery on a correctional facility employee. The multiple bill was based on two prior convictions of distribution of cocaine (1991 and 1990), and the crime of “federal bank robbery” (1979). Defendant denied the allegations therein.

At the February 2, 2004 multiple offender hearing, the trial judge found defendant to be a second felony offender and sentenced defendant to six years “with the Department of Corrections.”

LAW AND DISCUSSION:

In his sole specific Assignment of Error, the defendant argues that the trial court imposed an excessive sentence. He contends that his five-year sentence for | R“battery of a police officer” is unconstitutionally excessive. Defendant also asserts that a “six[-]year sentence as a second offender, with a predicate conviction for the non-violent offense of distribution of cocaine, is likewise extreme and unwarranted.” Defendant does not contest the validity of his conviction for battery of a correctional facility employee.

The State does not address defendant’s original five-year sentence, but responds that his enhanced sentence was not excessive.

Initially, it is noted that defendant was convicted of violating LSA-R.S. 14:34.5, battery of a correctional facility employee, not LSA-R.S. 14:34.2, battery of a police officer. Additionally, the five-year sentence imposed by the trial court on April 10, 2003 for battery of a correctional facility employee was vacated on February 2, 2004 after a multiple offender hearing, at which time a six-year enhanced sentence was imposed. The defendant’s argument relating to his original sentence is moot, since that sentence no longer exists. See, State v. Hanson, 00-1168 (La.App. 5 Cir. 12/13/00), 778 So.2d 43, 45.

Next, it is noted that defendant did not object in the trial court to the enhanced sentence as excessive nor did he make or file a Motion to Reconsider the Sentence. According to LSA-C.Cr.P. art. 881.1(B), a motion for reconsideration “shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.” According to LSA-C.Cr.P. art. 881.1(E),

Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of | fiexcessiveness, shall preclude the State or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Nevertheless, this Court has reviewed a defendant’s constitutional challenge of a sentence even in the absence of a Motion to Reconsider Sentence. State v. Pendelton, 00-1211 (La.App. 5 Cir. 3/14/01), 783 So.2d 459, 465, writ denied, 01-1242 (La.1/25/02), 807 So.2d 243. The failure to file a Motion to Reconsider Sentence, or to state specific grounds upon which the motion is based, merely limits a defendant to a bare review of the sentence for constitutional excessiveness. Id.

In accordance with our prior jurisprudence, the defendant’s claim of constitutional excessiveness regarding his enhanced sentence is addressed.

The Eighth Amendment of the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. A sentence is generally considered to be excessive if it is grossly disproportionate to the offense or imposes needless pain and suffering. 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. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Pendelton, 783 So.2d at 465. The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pendelton supra; LSA-C.Cr.P. art. 881.4(D).

LSA-R.S. 14:34.5(B)(2) provides the penalty for battery of a correctional facility employee when the offender is detained in jail:

§ 34.5. Battery of a correctional facility employee

(2) If at the time of the commission of the offense the offender is under the jurisdiction and legal custody of the Department of Public Safety and Corrections, or is being detained in any jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility, the offender shall be fined not[7more than one thousand dollars and imprisoned with or without hard labor without benefit of parole, probation, or suspension of sentence for not less than one year nor more than five years. Such sentence shall be consecutive to any other sentence imposed for violation of the provisions of any state criminal law.

In the present case, the multiple offender Bill of Information alleged defendant to be a fourth offender based on prior convictions of distribution of cocaine (1991 and 1990), and the crime of “federal bank robbery” (1979). At the hearing, defendant’s attorney, Mr. Lambert, stated that, based on the evidence presented, he did not “take much issue” with the federal conviction or with the 1991 distribution of cocaine conviction. However, Mr. Lambert argued that the evidence for the 1990 conviction was deficient and that the link between the federal conviction and the 1991 conviction was broken. As such, the defense urged the trial court to find defendant to be a second felony offender, rather than a fourth felony offender. Finally, the defense pointed out that the trial court had the ability to impose a sentence of less than the mandatory minimum even if the court found defendant to be a fourth felony offender.

As a second felony offender, defendant faced a sentencing range of two and one-half to ten years of imprisonment. See, LSA-R.S. 15:529.1(A)(l)(a) and LSA-R.S. 14:34.5(B)(2). Prior to imposing the six-year enhanced sentence, the trial judge took a recess to review the evidence. The judge then stated as follows:

THE COURT:
Okay. I wanted to review some of the evidence.
I find that the State has met its burden of proof that the Defendant is a second offender under the provisions of the Multiple Offender Statute and should be sentenced accordingly.
I also find that this case may very well also present a Dorothy type situation where the sentence as a quad offender would be unconstitutional and that it would be excessive in light of all the facts of this case, which have been well documented both.at the trial and at various arguments. But, in any case, I think it would be appropriate to sentence him as a second offender.

IsDefendant’s chief complaint is that the trial judge had no basis for imposing the sentence. The Louisiana Supreme Court has stated that the question presented when reviewing a defendant’s sentence is not “whether another sentence would have been more appropriate, but whether the trial court abused its broad sentencing discretion.” State v. Jones, 99-2207 (La.1/29/01), 778 So.2d 1131, 1133. Prior criminal activity is one of the factors to be considered by the trial judge in sentencing a defendant. State v. Washington, 414 So.2d 313, 315 (La.1982); State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212, 1219.

The pre-sentence investigation report (PSI) classified defendant as a third offender. At the time of the commission of the underlying offense on April 7, 2002, defendant was fifty-one years old. Prior to that time, defendant had been arrested for several felonies, in particular, attempted murder and attempted armed robbery in 1969. However, the PSI indicates the district attorney’s office was not able to associate the 1969 charges with the arrest and defendant pled guilty to a lesser charge and was given six months in parish prison.

The PSI also reflects that defendant was paroled for Bank Robbery on September 2, 1983, but was revoked on May 28, 1986. He was paroled again on June 5, 1990 and revoked again in 1991, to serve the remainder of his ten-year sentence in the Federal Prison System. The PSI concluded that defendant had “numerous encounters with police officers due to his defiance of authority figures.”

The trial judge imposed a mid-range sentence of six years. “The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.” State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158, 1167. Under all of the circumstances in this case, in particular, 19defendant’s past criminal history, we find no abuse of the trial judge’s sentencing discretion in imposing the enhanced six-year sentence.

The record was reviewed for errors patent, according to LSA-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 record does not show that defendant was advised of the two-year prescriptive period for filing post-conviction relief as required by LSA-C.Cr.P. art. 930.8. Therefore, this matter is remanded to the trial court and the trial court is instructed to send appropriate written notice to defendant of the prescriptive period for post-conviction relief, and to file written proof in the record that defendant received the notice within ten days of the rendering of the opinion. See, State v. Battaglia, 03-692 (La.App. 5 Cir. 11/25/03), 861 So.2d 704, 712.

It is also noted that there is a conflict between the commitment for the enhanced sentence and the corresponding transcript because the transcript reflects that the trial judge vacated the original sentence, while the commitment does not. An additional conflict between the commitment and the transcript is that the commitment appears to indicate the trial judge sentenced defendant on the misdemeanor convictions of simple battery, while the transcript reflects that the trial judge ordered the enhanced sentence to be served concurrently with those sentences, which had been previously imposed.

Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). On remand, the trial court is also ordered to correct the defendant’s commitment to show that the original sentence was vacated and to clarify that the simple battery sentences were previously imposed.

I ^CONCLUSION:

For the foregoing reasons the defendant’s sentence is affirmed. This matter is remanded to the trial court for the limited purpose of informing the defendant of the time period for seeking post-conviction relief and correcting the commitment to conform with the transcript.

SENTENCE AFFIRMED; MATTER REMANDED.

      . The record does not disclose whether defendant sought supervisory relief from his simple battery convictions and sentences. However, considering that these convictions are misdemeanors, this appeal relates solely to defendant's appeal of his felony conviction for battery of a correctional facility employee.

      . Although the trial court did not state that the enhanced sentence was to be served at hard labor, "a sentence committing a prisoner to the Department of Corrections is necessarily at hard labor.” State v. Lisenby 534 So.2d 996, 998 (La.App. 3 Cir. 1988).

      . The penalty provisions of the two statutes are similar in that both contain a penalty of a fine of not more than $1000 and imprisonment with or without hard labor, without benefit of parole, probation or suspension of sentence for not less than one year nor more than five years, "[i]f at the time of the commission of the offense the offender is under the jurisdiction and legal custody of the Department of Public Safety and Corrections, or is being detained in any jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility....” Compare, LSA-R.S. 14:34.2(B)(2) and LSA-R.S. 14:34.5(B)(2). However, LSA-14:34.2(B)(3) provides that if the battery (of a police officer) produces an injury that requires medical attention, the offender is subject to a fine of not more than $1000 or imprisonment with or without hard labor for not less than one year nor more than five years or both. LSA-R.S. 14:34.5 (battery of a correctional facility employee) does not contain a corresponding penalty provision for a battery that produces an injury requiring medical attention.