author: J^DREW, J.

text:
    STATE of Louisiana, Appellee v. Steve TAUZIN, Appellant.
    No. 38,436-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.
    Rehearing Denied Sept. 16, 2004.

      Louisiana Appellate Project, by James E. Beal, Jonesboro, for Appellant.
    Paul Joseph Carmouche, District Attorney, Mike Pitman, J. Thomas Butler, Assistant District Attorneys, for Appellee.
    Before GASKINS, DREW and LOLLEY, JJ.
   J^DREW, J.

Defendant, Steven Tauzin (“Tauzin”), was tried by jury and convicted as charged of second degree murder. He appeals his conviction. We affirm in all respects.

FACTS

Procedural History

On January 14, 2000, the badly beaten body of Gilbert W. Moore (“Moore”), a local coach, was discovered in his Shreveport home. Three months later, the defendant was indicted for first degree murder. Seven months after the capital indictment, the state filed an amended bill of information, reducing the charge to second degree murder. In due course, a jury found the defendant guilty as charged of second degree murder by a vote of eleven to one. A motion for new trial was filed by the defendant, but was orally withdrawn. The defendant was then sentenced to serve the statutory term of life imprisonment without benefit of probation, parole, or suspension of sentence. This timely appeal followed.

Trial Testimony of Misty Ellis

Misty Ellis (“Misty”), the main state witness, testified that:

• She knew the victim, Gilbert W. Moore, having lived with him “as friends” at his residence on East Stephenson Street in Shreveport for a while, until they had a falling-out in 1998, at which time she moved into her own apartment in Shreveport until about October of 1999.
• At that time, she moved into a residence located on Jean Lane in Bossier City with Tauzin and Noe Stephan (“Stephan”).
• On the night of January 13, 2000, she was eating and drinking at a Bossier City sports bar, “The Locker Room,” with Tauzin, Stephan, and two female neighbors, at which time she noticed Moore at the bar.
|P* Though she did not speak with Moore, she told Tauzin and Stephan that she used to live with the victim and that he still had some of her “stuff’ at his home.
• They continued to eat and drink for a while and then left, at which time she, Tauzin, and Stephan went to a strip club called “The Centerfold” in Shreveport so Misty could check into getting her job back.
• The trio then went to another Shreveport club called “The Cabaret,” where Misty unsuccessfully tried to contact a friend and recover some clothing.
• She came up with the idea for the three of them to break into the victim’s home so she could get her remaining personal belongings, including clothing and the social security card she needed so as to secure employment.
• At one time, she possessed keys to the victim’s home, but she no longer had them on the night of January 13, 2000.
• Tauzin suggested that they get gloves from a hospital to prevent leaving any fingerprints, and this they did, stealing surgical gloves and a wheelchair from a Bossier City hospital.
• Next they went to their Jean Lane residence to change into dark clothing to reduce the chance of their being seen while breaking into the victim’s home.
• At this time, Tauzin also armed himself with a crowbar.
• The three left their residence and drove past “The Locker Room” to make sure the victim was still there, which he was.
• Stephan drove them in his mother’s car.
• Their plan was to quickly break into the victim’s home, get Misty’s belongings and leave.
• Upon arriving at the victim’s home, the defendant was dropped off, with she and Stephan parking the car a block and a half away.
• She and Stephan walked to the victim’s home, climbing his fence.
• Tauzin had previously climbed over the fence and had broken a window so as to enter the home.
13« Tauzin let the others into the home through a side door, with none of them having authority to enter the premises.
• The three looked for Misty’s belongings for a short time, at which point the victim arrived, agitated over the broken window.
• From a hiding place, Misty heard some arguing and then a “big thud,” followed by gargling noises.
• She hid in the closet for about ten minutes — not knowing what was going on, and not wanting to be part of it.
• When things quieted down, she came out and saw the victim’s body “face down” on the floor, with Tauzin standing a foot away from the victim, holding a hammer.
• Stephan was standing about two feet away from the victim, holding a flat pry bar (crowbar).
• Tauzin said that he “needed to take out some frustration.”
• Tauzin wiped his forehead with paper towels and attempted to wipe off some footprints on the floor, later discarding the towels on the floor.
• Tauzin filled a syringe with cooking oil, pulled down the victim’s pants and stuck the syringe in the victim’s buttock.
• Tauzin looked through the victim’s pockets for money, taking his keys.
• The three discussed setting the victim’s home on fire.
• Finally, she insisted that they needed to leave, which they did, locking the victim’s home, unlocking the gate, going through the gate, and re-locking the gate, at which point all three left in the car.
• She took off her gloves and put the keys inside them.
• Tauzin had stolen some of the victim’s tools.
• On their way back to Bossier City, they stopped their car on the Shreveport-Barksdale Bridge, whereupon Tauzin exited the car, and then threw into the river his shirt, Stephan’s shoes, all of their gloves, the victim’s keys, and the crowbar.
• Back at their residence, the defendant told Misty and Stephan never to talk about what had happened.
14* They went to sleep.
• Tauzin left town and went to Miami, Florida.
• Misty’s mother told her that the police wanted to interview her.
• She went to the police station, where she denied any knowledge of the murder.
• She and Stephan went to Mexico, where they stayed for about a week, living on the beach.
• The two of them sent word to the defendant to meet them in Mexico, which he did, the three staying together in Mexico for about a week, before they returned to the Shreveport>-Bossier area to get some money and the defendant’s truck.
• The trio then returned to Mexico and got an apartment in Nuevo Laredo.
• Tauzin returned to the Shreveporb-Bossier area, with she and Stephan following about a week later, at which time she was apprehended on an outstanding bench warrant for using fake identification at a Bossier Parish casino in 1997.

Other Testimony

Custus Rainey, the owner of “The Locker Room,” testified at trial that:

• On the night of January 13, 2000, the defendant, Misty, Stephan, and two female neighbors came into his bar to eat and drink.
• Misty’s testimony regarding what transpired at the bar was essentially correct, including the fact that defendant paid for the group’s meals and drinks with a check and that they left the bar at about 10:00 or 11:00 p.m.
• The victim was also in the bar that night.
• He did not recall seeing anyone from the defendant’s group speak to the victim.
• The victim was a regular customer and long-time friend of Rainey.
• The victim stayed at the bar until after the 2:00 a.m. closing time and helped to clean up, leaving about 2:30 or 3:00 a.m.

| .John Gresham, a friend of the victim, testified that on the morning of January 14, 2000, he became concerned when the victim failed to answer his doorbell. He climbed the wrought iron fence, approached the home, and saw the victim’s body through a window. He climbed back over the fence and went to a neighbor’s house to call 911. Then Gresham returned to the victim’s home and forced the front door open with his shoulder in an attempt to render aid to the victim. Gresham saw the victim, apparently dead, with a head wound, lying in a big pool of blood. He touched nothing and went back outside to wait for help.

When police officers, detectives, and crime scene investigators arrived on the scene, they found the victim lying face down in a pool of blood on the kitchen floor, a hammer on the floor nearby, and blood spatters on the walls and ceiling. The victim’s pants were pulled halfway down, exposing a syringe stuck in his right buttock. A plastic bottle of cooking oil and a roll of paper towels were located on a table to the right of the victim. There were two crumpled-up bundles of paper towels near the victim. One bundle, which was located near the victim’s left foot, contained a couple of drops of blood. The other bundle was located near the right side of the victim’s torso. A portion of that bundle was partially soaked in blood. The victim’s home and truck both appeared to have been ransacked. There were tools and other items piled up in the front room of the home.

Police testified that the scene was processed for evidence, and photographed. Later in the investigation, pursuant to the execution of a search warrant, various firearms were found in a bag located in a closet in | fithe victim’s home. These items included a Colt AR-15, a 9-millimeter In-terdynamic, a .45-caliber Ingram, a silencer, gun parts, and ammunition.

The autopsy performed on the victim revealed that death was caused by multiple blunt force injuries received as a result of a beating with one or more heavy, blunt objects. There was evidence on the victim’s head of between twelve and eighteen separate blows that crushed the skull. Between four and six of these blows could have been lethal had they been inflicted separately. The characteristics of the majority of the head wounds were consistent with the claw hammer found at the scene. The rest of the victim’s body contained evidence of approximately six blows, including injuries to the lower back and the forearms. The nature of these injuries indicated that they had been inflicted by a long, slender object of about onei-half inch in diameter, a description more consistent with a crowbar than a hammer.

Forensic DNA analysis was later performed on the paper towels recovered from the crime scene and compared to a reference sample taken from the defendant. Two stains on a paper towel were attributable to the defendant. It was cal-culatéd that the likelihood that the DNA came from a Caucasian other than the defendant was one in 82.5 trillion. On the same paper towel were two other stains, presumptive for blood, which were attributed to the victim. DNA reference samples taken from Misty and Stephan excluded them as donors regarding this same paper towel. A blood spatter expert opined that the blood stains contained on one of the paper |7towels were consistent with use of the paper towel to wipe blood from a nonporous surface, such as skin.

Melissa Quick verified that the defendant (her former fiancé) showed up at her Miami, Florida, residence in January 2000. The defendant explained that he had to “get away” from Shreveport because he was a suspect in a murder. Quick’s current fiancé told the defendant that he had to leave, which he did.

Robert Catts testified that the defendant, Misty, and Stephan stayed at his residence for about two weeks in February 2000. He explained that the defendant telephoned him from a bus station early one morning and told him that he needed a place to stay because he and his wife had split up. Catts related that he found it strange that the defendant was at the bus station because he knew that the defendant owned a truck. Later that morning, the defendant arrived at Catts’s residence, accompanied by Misty and Stephan. The defendant explained to Catts that the police were trying to “pin” the murder of the tennis coach on them and they needed to get away to get their alibis together. Catts suspected that the trio were involved in' the murder and feared for his own safety. He related the details of how he contacted the authorities and cooperated with the police so that they could be apprehended.

Defendant’s Trial Testimony

Tauzin’s testimony regarding the events leading up to the break-in basically corroborated that of Misty and the bar owner. The defendant swore that:

Is* He drank four or five “kamikazes” at ■ “The Locker Room” and was “kinda drunk” on the night of the killing.
• He was against breaking into the victim’s home, but after Misty explained that she needed her clothes and social security card, and that she had keys, he went along with the plan.
• It was Stephan’s idea to steal gloves so they would not leave any fingerprints.
• After they broke into the victim’s home, he was drunk and mostly sat on the couch without wandering around much.
• Misty and Stephan searched the victim’s home.
• Misty found a card to the victim from her sister, and became angry.
• When they heard the victim return home, Stephan ran into the kitchen and hid behind the door with the crowbar that Stephan brought with them.
• He (Tauzin) ducked into a closet.
• Stephan began beating the victim.
• When he (Tauzin) came back into the kitchen, he saw Stephan still beating the victim, so he walked back out.
• When he returned to the kitchen, Misty had the crowbar and was beating the victim as she screamed at him.
• Blood spattered onto his face, so he wiped his head with a paper towel.
• Stephan took the crowbar back from Misty and told him to hit the victim, because they were “all in this together.”
• He complied, hitting the victim once with the hammer, then dropping it.
• He never hit the victim in the head with the hammer, his only blow being to the body or arm.
• He told Misty and Stephan that he was leaving, and they followed him out of the victim’s home.
| s» Misty locked the door and gate behind them (with keys she must have had all along) and threw the keys into the woods across from the victim’s home.
• Stephan stopped the car at the top of the bridge, told everyone to take off their clothes, and then threw the clothes and crowbar into the river.
• After the crime, he tried to get away from Misty and Stephan by going to stay with a friend, though he was later convinced to join Stephan and Misty in Mexico.
• He was mentally drained from these events, and from his child custody battle with his ex-wife, so a beach vacation sounded like a good idea.
• He ran after the murder because he was scared.

DISCUSSION

Motion in Limine

On February 28, 2003, the state filed a motion in limine seeking to prohibit the defense from cross-examining state witness Misty Ellis regarding her prior work as a “stripper” and about her prior drug use. A week later, the state filed an amended motion in limine seeking to prohibit the defense from questioning Misty at trial regarding the following areas:

• Use of controlled substances;
• Employment as a “stripper” or an “exotic dancer”;
• Clothing worn by Misty while dancing;
• Sexual past, including names and number of sexual partners;
• Previous psychiatric or psychological care;
• Financial situation, including tax returns filed or not filed; and
• Her ability to drive a vehicle and/or possession of a driver’s license.

|10At the hearing relative to these motions in limine, the state cited La. C.E. art. 608 for the proposition that a witness’s general reputation may be attacked, but admission of evidence of specific particular acts is impermissible. The state pointed to a litany of questions of Misty by the defense at the preliminary examination as questions that are impermissible. The court discussed the motion in limine regarding particular acts, and it was clarified that prior inconsistent statements made under oath would be permissible. At the conclusion, the trial court granted the state’s amended motion in limine with respect to all of the areas listed, with the exception of the area regarding Misty’s ability to drive a vehicle and/or possession of a driver’s license (which the defense argued showed her reputation for untruthfulness).

During the defense’s cross-examination of Misty at trial, the state made several objections. Outside the presence of the jury, the court went over these objections and took arguments for the record. Particularly, the trial court sustained the state’s objection to questions by defense counsel regarding Misty’s tattoos, past drug use, sexual activity, and lying. In reviewing the rulings and taking arguments, the trial court noted that these areas of questioning were included in the state’s pre-trial motions in limine, which had been granted.

On appeal, defendant summarizes testimony given by Misty at the preliminary examination on cross-examination. The defendant lists Misty’s various admissions of using drugs and dancing nude and topless for money. He also asserts that Misty admitted lying on several occasions and in several |yi different situations. Misty’s problems with her mother concerning lying and her filing and/or failure to file tax returns are also set forth. The defendant concludes that he was forced to testify to rebut Misty’s devastating testimony, which further demolished his case. The defendant asserts that had he been allowed to adequately cross-examine Misty at trial, it would not have been necessary for him to take the witness stand, and the eleven to one jury verdict might have been different. He alleges that his rights under the Sixth Amendment of the United States Constitution and Louisiana Constitution article I, § 16, were violated, and his conviction should be vacated and reversed.

The Sixth Amendment of the United States Constitution and article I, § 16, of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to be confronted with the witnesses against him. The primary purpose behind this right is to secure for the defendant the opportunity for cross-examination. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Hotoph, 99-243 (La.App. 5th Cir.11/10/99), 750 So.2d 1036, writs denied, 99-3477 (La.6/30/00), 765 So.2d 1062, and 00-0150 (La.6/30/00), 765 So.2d 1066.

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. State v. Hillard, 398 So.2d 1057 (La.1981). The scope and extent of cross-examination is within the discretion of the trial judge, whose ruling will not be disturbed absent an abuse of discretion. State v. Garrison, 400 So.2d 874 (La.1981); State v. Hotoph, supra.

|12An accused also has a constitutional right to present a defense. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); State v. Hotoph, supra.

La. C.E. art. 608, regarding attacking or supporting credibility by character evidence, provides in pertinent part:

A. Reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of general reputation only, but subject to these limitations:
(1) The evidence may refer only to character for truthfulness or imtruthfulness.
(2) A foundation must first be established that the character witness is familiar with the reputation of the witness whose credibility is in issue. The character witness shall not express his personal opinion as to the character of the witness whose credibility is in issue.
(3) Inquiry into specific acts on direct examination while qualifying the character witness or otherwise is prohibited. B. Particular acts, vices, or courses of conduct. Particular acts, vices, or courses of conduct of a witness may not be inquired into or proved by extrinsic evidence for the purpose of attacking his character for truthfulness, other than conviction of crime as provided in Articles 609 and 609.1 or as constitutionally required.

Although La. C.E. art. 607(C) permits a party to attack the credibility of a witness by examining him concerning any matter having a reasonable tendency to disprove the truthfulness of his testimony, this grant is necessarily subject to the relevancy balance of La. C.E. art. 403 and to the limitation set forth in La. C.E. art. 608(B), generally precluding inquiry into particular acts, vices or courses of conduct to attack character for truthfulness. State v. Meshell, 567 So.2d 1181 (La.App. 3d Cir.1990), writ denied, 572 So.2d 87 (La.1991).

113The state correctly points out that this was also the rule of law prior to the enactment of the Louisiana Code of Evidence, which was based upon then-existing La. R.S. 15:491. See State v. Burrell, 561 So.2d 692 (La.1990), cert. denied, Burrell v. Louisiana, 498 U.S. 1074, 111 S.Ct. 799, 112 L.Ed.2d 861 (1991).

In Hotoph, supra, the defense counsel attempted to question the victim/witness about whether she had ever boasted in general about her ability to lie. The trial court limited cross examination in this area to questions relating to lying about the accusations in the case. Hotoph argued that the trial court erred by limiting the questioning in this manner. Citing La. C.E. art. 608(B), the appellate court noted that Hotoph wished to inquire specifically into a particular course of conduct of the victim, specifically, that she boasted about lying. Because Hotoph’s intention was to ask about specific acts of the victim, the appellate court concluded that the trial court was correct in not allowing Hotoph to ask the question, citing State v. Ellis, 94-599 (La.App. 5th Cir.5/30/95), 657 So.2d 341, writs denied, 95-2095 (La.12/8/95), 664 So.2d 421, and 95-1639 (La.1/5/96), 666 So.2d 300.

Relevancy and admissibility calls are properly within the discretion of the trial judge, whose determinations in these areas should not be overturned absent a clear abuse of discretion. See State v. Mosby, 595 So.2d 1135 (La.1992).

The record reveals that the trial court did not abuse its discretion by granting the state’s pre-trial motions in limine, and in sustaining the state’s objections during trial, regarding the admissibility of evidence of the 1 uwitness’s prior drug use, past sexual activity, and “habitual lying.” See State v. Mosby, supra, and State v. Hotoph, supra. These rulings correctly applied La. C.E. art. 608, allowing evidence of the witness’s general reputation with regard to truthfulness or untruthfulness, but prohibiting inquiry into particular acts, vices, or courses of conduct, other than criminal convictions. See La. C.E. art. 608(A)(1) and (B). The evidence the defense sought to present to the jury was clearly nothing more than “particular acts, vices or courses of conduct” calculated to “taint” the witness’s testimony. As the state correctly notes, the defense still managed to present much of this subject matter to the jury, despite the trial court’s pre-trial ruling to the contrary. The jury was unconvinced that her testimony should be discredited. Defendant has failed to support his arguments that the defendant’s right to cross-examination was violated. We affirm the conviction.

Sentence

Defendant does not complain of his sentence. We agree, noting nothing in this record that could lead a reviewing court to consider amending the mandatory life sentence for this despicable and senseless offense. Accordingly, we affirm Tauzin’s life sentence. He earned all of it.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, PEATROSS, DREW and LOLLEY, JJ.

Rehearing denied.


source: Caselaw Access Project

author: I,STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Cedric M. BENNETT, Appellant.
    No. 38,507-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Cedric M. Bennett, Pro se.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Edward C. Jacobs, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   I,STEWART, J.

The defendant, Cedric Bennett (“Bennett”), was convicted of possession with intent to distribute a Schedule II CDS, marijuana, and sentenced to serve eight years at hard labor, to run consecutively with any other sentence. The defendant now appeals. For the reasons that follow, we affirm the defendant’s conviction and remand for resentencing in accordance with this opinion.

PACTS

On March 18, 2002, Sergeant Don Campbell was traveling down Interstate-20 in Bossier City, Louisiana, at the Old Minden Road exit when' he was passed by a black SUV which appeared to be speeding. Sergeant Campbell clocked the vehicle at 75 miles per hour in a 60 mile per hour zone. Sergeant Campbell then conducted a traffic stop. He advised the driver, Vivian Lethridge (“Lethridge”), of the speeding violation. Lethridge explained that she was speeding because of the big trucks on the road. While standing by the opened passenger window, Sergeant Campbell noticed an odor of marijuana coming from inside the vehicle and noticed that the passenger was nervous. Sergeant Campbell asked the passenger for his identification. The passenger initially identified himself as Cedric Atchinson; however, when Sergeant Campbell went to verify this information, he was informed that there was no record of anyone by that name. Sergeant Campbell became more suspicious of the unidentified passenger who was still acting nervously. The passenger’s nervousness combined with the marijuana smell coming from the vehicle prompted the officer to ask Lethridge for consent to search her vehicle. After obtaining _j£Consent to search, Campbell seized nineteen bags of marijuana weighing 17.2 pounds from the rear cargo area of the vehicle. Both Lethridge and the passenger, later identified as Cedric Bennett, were placed under arrest. As they were placed into custody, Bennett screamed to Lethridge, “keep your mouth shut, don’t say nothing!” Lethridge told police officers that Bennett was going to pay her $1,000.00 to drive him to Mississippi to sell his marijuana and that she expected to be paid from the proceeds of the sale. Lethridge testified at trial against Bennett about his knowledge of the marijuana in her vehicle and that the drugs belonged to Bennett. Following the trial, Bennett was found guilty of possession of marijuana with the intent to distribute.

DISCUSSION

Sufficiency of Evidence

The criterion for evaluating sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational fact-trier could find that the state proved all elements of the crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Clower, 30,745 (La.App.2d Cir.06/24/98), 715 So.2d 101. That standard, initially enunciated in Jackson and now legislatively embodied within La. C.Cr.P. art. 821, is applicable in eases involving both direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La. 1983); State v. Perry, 612 So.2d 986 (La. App. 2d Cir.1993).

| aCircumstantial evidence consists 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. Anderson, 36,969 (La.App.2d Cir.4/9/03), 842 So.2d 1222. For circumstantial evidence to convict, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.

To be guilty of possession of a controlled dangerous substance, one need not actually possess the contraband; constructive possession is sufficient to convict. Constructive possession means having an object subject to one’s dominion and control, with knowledge of its presence, even though it is not in one’s physical possession. State v. White, 37,261 (La.App.2d Cir.6/25/03), 850 So.2d 987.

A determination of whether there is “possession” sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. State v. Toups, 2001-1875 (La.10/15/02), 833 So.2d 910.

It is always the function of the jury to assess the credibility of witnesses and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir. 1992), twit denied, 617 So.2d 905 (La. 1993). Where the trier of fact has made a rational determination, an appellate court Lshould not disturb it. Indeed, in the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for the requisite factual conclusion. State v. Clower, supra; State v. Thomas, supra; State v. Combs, 600 So.2d 751 (La.App. 2d Cir.1992), writ denied, 604 So.2d 973 (La.1992).

We find that the evidence presented was sufficient to convince a reasonable jury that Cedric Bennett had possession of nineteen plastic bags of marijuana weighing 17.2 pounds found in the rear cargo area of Lethridge’s vehicle. Lethridge’s testimony certainly provided a reasonable basis upon which the jury could conclude that Bennett had “dominion and control” over the marijuana in her vehicle.

Lethridge testified that Bennett paid her $1,000.00 to drive him to Mississippi to sell marijuana. She stated that she needed the money to catch up her mortgage payments. Her uncontroverted testimony demonstrates that she knew nothing more about the drug transaction than the fact that she was to drive Bennett and get paid for her services. The jury’s decision to believe Lethridge’s version of the facts surrounding the events of this case is a credibility determination that this court will not disturb.

Ineffective Assistance of Counsell Illegal Arrest

The defendant also raises issues of ineffective assistance of counsel and illegal arrest. However, we find no merit in either argument. Bennett claims he received ineffective assistance of counsel because his attorney did not file a motion to suppress the marijuana seized at the scene of the traffic 1 Rstop. In the instant case, a motion to suppress would not have changed the outcome because Lethridge gave her consent to have her vehicle searched following a legal traffic stop for speeding. The jury obviously believed Lethridge’s testimony concerning her involvement in the crime and that the marijuana belonged to Bennett.

Similarly, the arrest was not illegal as it was made following a search of the vehicle that was consented to by the owner of the vehicle. Moreover, Bennett acted nervously throughout the legal traffic stop and shouted to Lethridge to “keep your mouth shut, don’t say nothing,” as they were being arrested. The jury could reasonably determine that this action showed a guilty knowledge of the existence of the marijuana. These assignments of error are without merit.

Sentencing Error

Our review of the record reveals that the trial court failed to order “at least” the first five years to be served without benefits, in accordance with La. R.S. 40:966 B(2), in effect on the date of the offense (March 18, 2002).

When a district court fails to order service of sentence without benefits in a case in which an indeterminate time period to be so served is mandated by the statute of conviction, it is necessary for the appellate court to remand the matter to the trial court for re-sentencing. La. R.S. 15:301.1(A). State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. Although a criminal defendant has the constitutional right to have his conviction reviewed to insure that the State proved his guilt beyond a reasonable doubt,' it is nonetheless well established that a defendant in a criminal case does not 1 (¡have a constitutional or statutory right to an illegal sentence. State v. Williams, supra. When an illegal sentence is corrected, even though the corrected sentence is more onerous, there is no violation of the defendant’s constitutional rights. Simply stated, when a court complies with a nondiscretionary sentencing requirement, i.e., a mandatory minimum term or special parole provision(s), no due process violation is implicated because neither actual retaliation nor vindictiveness exists. State v. Williams, supra.

CONCLUSION

As such, we find that the evidence was sufficient for a reasonable jury to find the defendant guilty of possession of marijuana with intent to distribute; therefore we affirm his conviction. However, we find that the defendant received an illegally lenient sentence and remand this matter to the trial court for resentencing consistent with the ideas expressed in this opinion.

AFFIRMED IN PART AND REMANDED.


author: | WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. David HENDERSON, Appellant.
    No. 38,536-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Pamela S. Moran, New Orleans, for Appellant.
    J. Schuyler Marvin, District Attorney, Bret L. Barham, Andrew C. Jacobs, Assistant District Attorney, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   | WILLIAMS, J.

The defendant, David Henderson, was charged by bill of information with two counts of distribution of cocaine, a violation of LSA-R.S. 40:967. Through a plea agreement, defendant entered a plea of guilty to one count of distribution of cocaine. The district court imposed a sentence of 30 years at hard labor and denied a timely motion for reconsideration of sentence. Defendant appeals his sentence as excessive. We affirm.

FACTS

The record shows that on February 18 and March 25, 2003 defendant sold rocks of crack cocaine to a confidential informant who was working with the Webster Parish Sheriffs Office in Cullen, Louisiana. The transactions were recorded on audio and video tape. The crime lab verified the identity of the substances. The defendant was charged with two counts of distribution of cocaine.

Subsequently, the defendant pled guilty to one count of distribution of cocaine, which is punishable by a sentence of not more than thirty years at hard labor. In exchange for his guilty plea, the state dismissed one count of distribution of cocaine and agreed not to file a habitual offender bill against the defendant, who was a fourth felony offender. The defendant was sentenced to serve 30 years imprisonment at hard labor.

DISCUSSION

Defendant argues that his sentence is excessive. When, as here, a defendant’s motion for reconsideration urges merely that the sentence is excessive, he is relegated solely to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993).

|2A sentence violates La. Const. Art. 1, § 20, if it is grossly disproportionate to the severity of the offense or nothing more than a purposeless infliction of suffering. State v. Caraway, 28,769 (La.App.2d Cir.10/30/96), 682 So.2d 856. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it is shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La. 1992).

Prior to imposing sentence, the district court reviewed a pre-sentence investigation (“PSI”) report. The court considered the facts of the case and defendant’s employment and social history. The court noted that the defendant had completed the 11th grade. His wife was deceased and he had a daughter who was 30 years old. Defendant had a history of work in the trucking industry. He was a fourth felony offender with prior convictions for possession of stolen treasury checks, simple burglary and distribution of cocaine. Based on its review of the PSI, the court believed the defendant was likely to commit further offenses if placed on probation. The court reasoned that a lesser sentence would deprecate the seriousness of the offense. Finally, the court noted that if defendant had been charged as a habitual offender he would have been exposed to a life sentence.

A trial court has wide discretion to impose a sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court does not set aside a sentence as excessive. Caraway, supra; State v. Thompson, 25,583 (La.App.2d Cir.1/19/94), 631 So.2d 555. On this record, we do not find constitutional error. The sentence imposed is lawful and does not include a discretionary fine of up to $50,000. Defendant, age |<¡48, received a substantial benefit from his plea bargain. He has a substantial criminal record. Had he been adjudicated to be a habitual offender he would have been exposed to a life sentence. His prior drug distribution offense weighs heavily in the decision to uphold the imposition of this maximum sentence. See, State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385. The sentence is neither grossly disproportionate to the severity of the offense of conviction nor is it shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence which, under the facts and circumstances of the case, is supported by the record and is not constitutionally excessive. This assigned error lacks merit.

We have examined the record for error patent and found that the trial court failed to inform the defendant during the sentencing proceedings that the first two years of his sentence are to be served without the benefit of probation, parole or suspension of sentence, as required by LSA-R.S. 40:967 B(4)(b). However, this was harmless error. LSA-R.S. 15:301.1(A) provides in pertinent part:

The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole or suspension of sentence.

Furthermore, LSA-R.S. 15:574.4(A)(1) renders defendant ineligible for parole due to his fourth felony offender status.

The conviction and sentence are affirmed.

AFFIRMED.


author: | .MOORE, J.

text:
    Shallon T. GLOVER, Plaintiff-Appellant v. GENERAL MOTORS, Defendant-Appellee.
    No. 38,805-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      The Cook Law Firm Counsel, by Dale T. Montgomery, II, Haughton, for Appellant.
    Lunn, Irion, Salley, Carlisle & Gardner, by J. Martin Lattier, Shreveport, for Ap-pellee.
    Before STEWART, PEATROSS and MOORE, JJ.
   | .MOORE, J.

The claimant, Shallon T. Glover, appeals a judgment that granted her employer General Motors’ motion for involuntary dismissal and rejected her claim to reinstate workers’ compensation benefits. Finding legal error, we reverse and remand.

Procedural Background

Ms. Glover had been employed at General Motors since 1969; by September 1999 she was an assembly-line worker with an average weekly wage of $960.70. She testified that she sustained a work-related injury in 1997, resulting in permanent restrictions; she returned to work, but was eventually placed in a job that exceeded her restrictions. On September 21, 1999, she re-injured herself trying to pull a regulator out of a container; she fell into the container, resulting in “unbearable” pain all over her right side. General Motors began paying her compensation benefits, both indemnity and medical, as a result of this accident.

After the September 1999 accident, Ms. Glover treated her pain with physical therapy and prescription medications. One of her physicians, Dr. Jerry H. Smith, reported to General Motors’ Life and Disability Benefits program on March 21, 2000, that she was unable to return to work owing to “permanent disability.” A staffing report from Spectrum Rehabilitation Center on March 14 referred to “FCE [functional capacity evaluation] reports” that declared her “unemployable.” In May 2000, Dr. Smith indicated on a standard-form “attending physician’s statement” that Ms. Glover’s disability would exceed 12 months.

1 gAnother of her physicians, Dr. Glen Sholte, completed a similar form in January 2001, stating that Ms. Glover was totally disabled and would never be able to return to work. On November 6, 2001, Dr. Smith noted, “Her most recent FCE * * * in March basically had an unemployable level and I believe she basically remains there at this time.” A concomitant report from Spectrum Rehabilitation, entitled “Functional Capacity Evaluation” and signed by a physical therapist, found that Ms. Glover’s effort was “inconsistent, [with] moderate pain behavior present during testing.”

In December 2001, another of her physicians, Dr. James S. May, completed the standard-form attending physician’s statement with the handwritten conclusion, “permanent total disability.”

On July 3, 2002, General Motors’ compensation manager advised Ms. Glover that her benefits would be terminated effective June 30, 2002, pursuant to La. R.S. 23:1221(3)(d) (iii). The letter explained that she had been paid 104 weeks of compensation as of October 7, 2001, and that all subsequent payments had been over-payments. The letter finally informed her that she could apply for a hearing with the OWC, but warned that General Motors reserved the right to seek reimbursement in the event she did so. In August 2002, General Motors executed an LDOL Form 1003 (stop payment form), formally advising the state and claimant of the termination of benefits. The form declared that General Motors had paid Ms. Glover $54,473.14 in temporary total disability (“TTD”) payments, and indicated no supplemental earnings benefits (“SEB”) or any other kind of indemnity benefits. The form also stated that benefits were being | ^terminated because Ms. Glover had retired.

Ms. Glover filed the instant disputed claim for compénsation in November 2002, seeking reinstatement of benefits. By pro se claim she stated: “I elected to receive retirement benefits. However, I have not retired. I did not withdraw from the work force. My unemployment is caused solely by employment injury.”

General Motors answered the claim, asserting benefit reductions and offsets pursuant to La. R.S. 23:1206, 1225 and 1221(3). By amended pretrial statement, General Motors also contested whether Ms. Glover sustained a compensable injury in September 1999.

The matter proceeded to trial on November 4, 2003; Ms. Glover represented herself. She described her injuries and testified that she was totally disabled from working. She introduced numerous medical records, the highlights of which are summarized above. She also called Mr. Willie Thomas, whom she had hired to help her with household chores.

After Ms. Glover rested, General Motors moved for involuntary dismissal. In support, counsel argued that the payment of TTD benefits was subject to a six-month limitation that became effective in August 1999, after which TTD would be converted to SEB which, in turn, could be terminated upon retirement. The WCJ stated from the bench that Ms. Glover had not introduced an FCE, only a doctor’s report stating that two FCEs were inconclusive. The court granted General Motors’ motion, holding that Ms. Glover failed to prove either permanent, total disability or TTD; the termination of benefits was not improper. By written judgment, the WCJ | ¿further found that Ms. Glover did indeed sustain a work-related injury on September 21,1999.

After retaining counsel, Ms. Glover filed a motion for new trial, seeking to introduce additional evidence of other FCEs. After a hearing in January 2004, the WCJ denied her motion, finding a lack of due diligence in obtaining these documents. The instant appeal followed.

Discussion

By two assignments of error, Ms. Glover urges the WCJ was plainly wrong in finding that she was not permanently, totally disabled, and abused its discretion in denying her motion for new trial. General Motors responds that it was entitled to terminate indemnity benefits after the claimant retired and received 104 weeks of benefits, under La. R.S. 23:1221(3)(d)(iii), and that the WCJ was not plainly wrong in finding that Ms. Glover failed to prove permanent, total disability by clear and convincing evidence, as required by R.S. 23:1221(2) (c).

The WCJ committed legal error. The basis for termination of benefits urged by General Motors and accepted by the WCJ is R.S. 23:1221(3)(d)(iii), which states (with emphasis added):

(d) The right to supplemental earnings benefits pursuant to this Paragraph shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate:
(iii) When the employee retires; however, the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks.

General Motors’ LDOL Form 1003 (stop payment form) clearly indicates that it had paid Ms. Glover temporary total disability benefits for [ s141 weeks. There is no indication that it ever paid her any SEB. For this reason, the 104-week limitation of 23:1221(3)(d)(iii) simply does not apply. Moreover, the employer may not shift an employee’s indemnity benefits from TTD to SEB in the absence of an appropriate justification. White v. Louisiana State Penitentiary, 93-770 (La.App. 3 Cir. 3/2/94), 634 So.2d 1271; Joiner v. Neivberg Venture, 94-1533 (La.App. 3 Cir. 5/3/95), 657 So.2d 206; Malone & Johnson, 13 La. Civ. L. Treatise (Workers’ Compensation, 4th ed.), § 276, pp. 665-666 (West Group, ©2002). The instant record discloses no change in Ms. Glover’s physical condition that would justify shifting her benefits to SEB.

At trial, counsel argued that a special statutory provision placed a six-month limit on TTD. From 1989 until August 15, 1999, TTD benefits were payable until “continued, regular treatment by a physician is not required, or six months after the injury, whichever first occurs.” A 1999 amendment, however, removed the six-month cap. See 1999 La. Acts No. 702, § 1, effective August 15, 1999. R.S. 23:1221(l)(d) now provides:

(d) An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee can be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required.

Ms. Glover’s entitlement to benefits is obviously governed by the version of the statute in effect at the time of her injury, September 21, 1999. Chevalier v. L.H. Bossier Inc., 95-2075 (La.7/2/96), 676 So.2d 1072; Loflin v. International Paper Co., 34,976 (La.App. 2 Cir. 8/22/01), 793 So.|2d6 533. The post-amendment version does not provide for an automatic shift from TTD to SEB after six months. The WCJ committed legal error in finding the benefits shifted and were subject to termination after retirement and the receipt of 104 weeks’ indemnity benefits.

Because the WCJ applied the wrong law to the termination of benefits, his findings are not governed by manifest error. Bujol v. Entergy Services Inc., 2003-0492 (La.5/25/04), — So.2d -, 2004 WL 1157413; Richardson v. Aldridge, 37,192 (La.App. 2 Cir. 5/16/03), 854 So.2d 923, writ denied, 2003-3034 (La.2/6/04), 865 So.2d 743. If the record is otherwise complete, the appellate court should review the evidence de novo and render judgment. Id.; Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742. In this case, however, we do not consider the record to be “otherwise complete.” Appearing pro se, Ms. Glover offered no medical records more recent than December 2001; however, represented by counsel, she sought a new trial on grounds that she had obtained a copy of her FCE. The interests of justice require that the WCJ assess this omitted evidence together with the other medical records, in light of the credibility of the live witnesses. We will therefore remand the case for further proceedings consistent with this opinion.

Conclusion

For the reasons expressed, the judgment of involuntary dismissal is reversed and the case remanded to the OWC for further proceedings. Costs of appeal are assessed to the appellee, General Motors.

REVERSED AND REMANDED.


author: |.GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Cedric Deon GIBBS, Appellant.
    No. 38,816-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.
    Kenota Pulliam Johnson, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, Lea Hall, Jr., J. Thomas Butler, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   |.GASKINS, J.

Following a bench trial, the defendant, Cedric Deon Gibbs, was convicted as charged of aggravated burglary. He was subsequently adjudicated a third felony offender and sentenced to 30 years at hard labor without benefit of probation or suspension of sentence. We affirm the defendant’s conviction and sentence.

FACTS

On July 16, 2002, the 13-year grandson of the victims was alone at their home in southwest Shreveport. His grandmother was at her nearby sandwich shop; his grandfather, a Caddo Parish deputy sheriff, was also at work. The boy heard someone ringing the doorbell incessantly. Peering through the peephole in the front door, he saw a black male. A dark-colored Chevrolet Caprice was in the driveway. The boy went back to the kitchen to call his grandmother but received no answer. He began to call 911; however, he heard pounding on the front door. As the front door was broken down, he fled out the back door and ran to his grandmother’s store.

When the boy arrived at the store and told his grandmother what had happened, she immediately called 911 and informed them of the home invasion. She swiftly closed her shop, asked a neighbor to call her husband, and got in her car with her grandson. They returned to the house in time to see the dark-colored car pulling out of their driveway. Due to the extremely dark tint of the car’s windows, they were unable to ascertain how many persons were in the fleeing vehicle. However, the grandmother blocked in the car when it pulled in a driveway and obtained its license plate number. 12Fearing that the car occupants might be armed, she moved her car to avoid a confrontation.

The grandmother continued to follow the car until she saw a police car headed toward her house. At this point, she discontinued her pursuit and returned to the house to give the police a description of the car and its tag number.

The police quickly broadcast the car’s description, and several marked units converged upon the area to locate it. Within minutes, the police were in close pursuit of the fleeing car; an officer closely following the ear was able to determine that it had three occupants. Several police units conducted a staging at an intersection. The Caprice was intercepted, and a felony stop was executed. A passenger jumped from the back seat and attempted to escape; he was subsequently captured after a foot chase. The defendant, who was the driver, and a front seat passenger were removed from the vehicle and placed under arrest. Numerous items belonging to the victims were found in the back seat and the trunk of the car. Among these items were electronic equipment and several weapons, at least one of which was loaded.

The three men were charged with aggravated burglary. Following a bench trial, the defendant was found guilty as charged. The state filed a habitual offender bill of information, charging him as a third felony offender. He was so adjudicated. The court sentenced him to 30 years at hard labor without benefit of probation or suspension of sentence.

I «INSUFFICIENT EVIDENCE

The defendant contends that the evidence was insufficient to convict him of the offense of aggravated burglary. While conceding that he was in the vehicle when it was stopped, the defendant asserts that there is no evidence that he participated in the burglary. No forensic evidence such as DNA or fingerprints placed him inside the victims’ home. The victims’ grandson was unable to identify him as the man he observed through the peephole. To the contrary, the defendant claims that the other two car occupants came by his apartment and picked him up after they committed the burglary. He maintains that he had no reason to believe that the electronic equipment heaped in the back seat was stolen.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The decision concerning the credibility of the witnesses is within the sound discretion of the trier of fact. State v. Prince, 32,134 (La.App.2d Cir.6/16/99), 742 So.2d 922. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

La. R.S. 14:60 states, in relevant part:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
14(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.

To obtain a conviction of aggravated burglary in the present case, the state had to prove that the defendant (1) made an unauthorized entry into the victims’ home, (2) with the intent to commit a theft therein, and (3) armed himself therein. La. R.S. 14:60; State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747.

The defendant in the Haley case was the back seat passenger who jumped from the ear and attempted to flee from the police. He made the same argument as the defendant in the instant case; he too claimed that the other two men picked him up after the burglary.

In dismissing this claim, the Haley court stated:

The extremely unlikely alternative hypothesis given by the defendant (that the co-defendants picked him up after the crime, but before arrest) is unbelievable, even with a willful suspension of disbelief. Such an unlikely event would have had to occur within the three- to four-minute span that the suspects’ vehicle was out of sight of the victims or police authorities. That two escaping criminals would stop and pick up a hitchhiker during the pursuit is a suggestion unworthy of belief. The trial court correctly found this crime was proven beyond a reasonable doubt.

We cast a similarly jaded eye upon this defendant’s assertion that the two other car occupants committed the actual burglary and then — while fleeing the crime scene — stopped to offer the defendant a ride in a car laden down with stolen loot from the burglary haphazardly scattered across the back seat. In his statement to the probation officer who compiled the | ¿presentence investigation report, the defendant denied noticing any items in the car. However, in dismissing this statement as “completely unbelievable,” the trial court succinctly observed, “Anybody with a lick of sense would have noticed that the car was loaded down” with a large variety of items.

The large amount of items taken and the small amount of time in which they were removed from the victims’ residence demonstrates that the burglary was committed by more than the one person seen by the grandson. A brief period of time, mere minutes, passed between the time the grandmother and grandson lost sight of the burglars’ car and the time when police, alerted by a prompt radio message, spotted the vehicle. The officer following the car was able to discern three occupants within the car and apparently never lost visual contact with the vehicle from that point. When the car was stopped shortly thereafter, the defendant was found to be the driver. Certainly the fact that he was driving the car while it was pursued by the police and when it was finally stopped contributes to our skepticism about his claim to be a mere post-burglary passenger.

This assignment of error lacks merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed. .

AFFIRMED.

      . Like the defendant here, Haley was convicted of aggravated burglary, adjudicated a third felony habitual offender, and sentenced to 30 years at hard labor without benefit of probation or suspension of sentence. His conviction and sentence were affirmed by this court.


author: _[iLOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Roy Lee GREEN, Appellant.
    No. 38,701-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Indigent Defender Office, by Jerry Kir-cus, Shreveport, Louisiana Appellate Project, by Karen Gpdail Arena, for Appellant.
    Paul J. Carmouche, District Attorney, Lea R. Hall, Jr., Assistant District Attorney, J. Thomas Butler, Assistant District Attorney, for Appellee.
    Before WILLIAMS, PEATROSS and LOLLEY, JJ.
   _[iLOLLEY, J.

After Roy Lee Green (“Green”) was convicted of simple burglary of a religious building, La. R.S. 14:62.6, he was adjudicated a fourth felony offender and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. Green now appeals his conviction and sentence. For the following reasons, we affirm.

Facts

Green was charged by Bill of Information for the offense of simple burglary of a religious building. La. R.S. 14:62.6. At the trial of the matter, Shreveport Police officer Todd Eatman testified that on the morning of October 3, 2002, he responded to a call at the Christian Missionary Baptist Church in Shreveport, Louisiana. When Off. Eatman arrived at the church, he noticed a broken window with a chair under it outside of the church. K-9 officer Clint Cain was called to the scene, and he and his dog entered the church. After Off. Cain and his dog entered the church, Off. Eatman entered as well, following the K-9 unit upstairs. When Off. Eatman reached the second floor, he observed Green lying on the floor with the dog standing near him — Green had dog bites to an arm and leg. Off. Eatman observed offering envelopes scattered through the building.

Officer Cain described that he and his dog discovered Green in a second floor bathroom of the church. When Green failed to respond to Off. Cain’s request to exit the bathroom, Off. Cain kicked down the door and his dog grabbed Green by the knee. Green hit the dog in the head, and the dog 1 ¡.then gripped Green by his arm, taking him to the ground. Officer Cain then called his dog off of Green and called for assistance.

Upon arrest, Green was given his Miranda rights and a taped statement was obtained. Both Green’s signed Miranda rights form and taped statement were introduced at his trial. In that taped statement, Green admitted entering the church to find food or something to sell in order to buy drugs.

Finally, Reverend Garner Hodge testified at the trial for the state. Reverend Hodge was the “key man” on behalf of the owner of the building, who for insurance purposes was responsible for assessing the property damage for the owner. At trial, he stated that the building was used only for religious purposes and that Green did not have permission to be inside. Finally, Rev. Hodge testified that the building had a sign signifying it was a church and that it also had stained glass windows.

Upon hearing all the evidence, the trial court found Green to be guilty as charged of simple burglary of a religious building in violation of La. R.S. 14:62.6. Afterward, the state filed a fourth felony habitual offender bill of information, to which Green waived arraignment and pled not guilty. After his multiple offender hearing, the trial court determined Green to be a fourth felony offender pursuant to La. R.S. 15:529.1. The trial court ordered a pre-sentence investigation report be prepared, which the trial court referred to at Green’s sentencing hearing. At the conclusion of Green’s sentencing hearing, he was sentenced by the trial court to life imprisonment, without ^benefit of probation, parole, or suspension of sentence. Green now appeals his conviction and sentence.

Discussion

In his first assignment of error, Green argues that the record fails to show he knowingly and intelligently waived his constitutional right to trial by jury. Specifically, Green acknowledges that the trial court’s minutes show that the trial court advised him of his right to trial by jury, which right he waived. However, Green contends that the record fails to show whether the trial court ascertained that he understood the right he waived. Green’s argument is without merit.

Both the United States Constitution and the Louisiana Constitution expressly guarantee the criminally accused the right to a jury trial. U.S. Constitution Amendment VI; La. Constitution Article I, §§ 16, 17. Louisiana C. Cr. P. art. 780 provides that:

A. A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge. At the time of arraignment, the defendant in such cases shall be informed by the court of his right to waive trial by jury....

The waiver of the right to a jury trial cannot be presumed. State v. McCarroll, 337 So.2d 475 (La.1976). The waiver must be established by a contemporaneous record setting forth the articulated appraisal of that right followed by a knowing and intelligent waiver by the accused. State v. Smith, 447 So.2d 4 (La.App. 3d Cir.1984).

In this case, the record indicates that Green gave a knowing and intelligent waiver of his right to a jury trial, despite his argument to the 1 ¿contrary. Initially, at his preliminary examination, the trial court advised Green of his right to a jury trial, and also advised him that he could waive that right. Further, the trial court at that time instructed Green to “talk to your Attorney about this and let us know what you want to do when this matter is set for trial.” Later, on March 3, 2003, the record reflects that Green chose to waive his right to a jury trial. When this appeal commenced, the record only contained a minute entry dated March 3, 2003, which stated, “[Green] being present with counsel ... waived his right to jury trial.” Green argues that this lone minute entry was insufficient to show that he knowingly waived his right to trial by jury; however, the appeal record was subsequently supplemented with a transcript of the proceeding corresponding to the March 3, 2003, minute entry. That transcript reflects the following:

MR. KIRCUS: May it please the Court, Defendant is ready. However, I discussed this matter at length with the Defendant last evening in the jail, and he has decided that he would ask for a bench trial rather than a Jury trial.
THE COURT: All right. Mr. Green, I have been informed by your Attorney that you now want to waive your right to a Jury trial. Is that correct?
MR. GREEN: Yes.
THE COURT: Do you understand the difference between a Judge trial and Jury trial?
MR. GREEN: Yes.
|f;THE COURT: And you want to waive your right to be tried before a Jury in this case. Is that correct?
MR. GREEN: Yes, I do.
THE COURT: Okay. Now, when we start your bench trial, we are not going to change our mind and then say we want a Jury trial. You understand that.
MR. GREEN: Yes.
THE COURT: Okay. You have now waived your right to a trial before a Jury. Mr. Kircus, you have gone over with your client the difference between the two types of trials?
MR. KIRCUS: I have, Your Honor.

Clearly, the record demonstrates that on March 3, 2003, Green was personally informed by the trial court of his right to a jury trial and his option to waive that right. Moreover, the record indicates that during that same proceeding, in the presence of his attorney, Green waived that right to a jury trial and indicated he understood his choice. Accordingly, this assignment is without merit. See, State v. Jones, 1999-2595 (La.App. 4th 11/08/00), 773 So.2d 234, writ denied, 2001-0476 (La.01/04/02), 805 So.2d 1194.

In his second assignment of error, Green maintains that his life sentence as a forth felony habitual offender was an abuse of the trial court’s discretion and constitutionally excessive. In his pro se brief, Green argues that the predicate offenses upon which his forth felony habitual offender sentence was based were inadequate to support a sentence under the habitual offender statute.

|6(After Green’s conviction, the state filed a habitual offender bill of information charging Green as a fourth felony offender, based upon his present conviction and his previous guilty pleas for simple burglary committed on June 13, 1988, simple burglary committed on December 5, 1994, and attempted simple burglary committed on June 14, 1998. No written objection to the proceedings was filed in accordance with La. R.S. 15:529.1(D)(1)(b).

The definition of criminal conduct and the provisions of penalties for such conduct is a purely legislative function. State v. Johnson, 97-1906 (La.03/04/98), 709 So.2d 672; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Gaddis, 36,661 (La.App.2d Cir.03/14/03), 839 So.2d 1258, writ denied, 2003-1275 (La.05/14/04), 872 So.2d 519. Pursuant to this function, the legislature enacted the habitual offender statute, which has been held on numerous occasions to be constitutional. Since that statute in its entirety is constitutional, the minimum sentences it imposes on recidivists are presumed to be constitutional. The determination of an appropriate minimum sentence by the legislature should be afforded great deference by the judiciary. While the judiciary is not without authority to declare a mandatory minimum sentence under the habitual offender law excessive under the facts of a particular case, this should be done only in those rare instances where there is clear and convincing evidence to rebut the presumption of constitutionality. State v. Johnson, supra.

|7In order to successfully rebut the presumption that the mandatory minimum sentence is constitutional, a defendant must clearly and convincingly show that:

[He] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

Id. at 676. Additionally, in determining whether Green has met this burden, the trial judge must consider that the goals of the Habitual Offender Law are to deter and punish recidivism. Finally, it must be emphasized that the departure downward from the minimum sentence prescribed under the Habitual Offender Law (here, the mandatory life sentence, without benefit of parole, probation, or suspension of sentence) should occur only in rare instances. Id.

In the case sub judice, Green’s fourth felony conviction and two of his prior felonies (the guilty pleas for simple burglary) were all offenses potentially punishable by imprisonment for twelve years. Thus, pursuant to La. R.S. 15:529.1(A)(1)(c)(ii), the trial court imposed the mandatory life sentence, without benefit of parole, probation, or suspension of sentence. Green now argues that the imposed sentence is excessive in light of his previous criminal history and the fact that any crime he committed was a result of his drug addiction. Nevertheless, Green made no such argument to the trial court nor presented evidence showing his claimed unusual circumstances or that he is the “exceptional” defendant for which downward departure from the statutory maximum was warranted. Moreover, as the | atrial court stated, Green is a “career criminal,” noting his seven felony convictions. We agree. Green’s propensity toward criminal activity, even if he has not committed “crimes of violence,” has obviously not been assuaged by previous sentencing leniency. In these circumstances, the trial court properly imposed the life sentence without benefit of probation, parole, or suspension of sentence, and we deem this assignment to be without merit.

Finally, Green’s argument made in his pro se brief is misplaced. He argues that his fourth felony conviction and two of the predicate offenses had the possibility of being punishable for less than twelve years, thus they failed to meet the requirement under La. R.S. 15:529.1 A(l)(c)(ii) that those offenses be punishable for “twelve years or more.” Green’s “fourth felony” and most recent conviction for burglary of a religious building carries a potential sentence up to twelve years. Additionally, “two of the prior felonies,” both for simple burglary, also carry potential sentences of up to twelve years. Clearly, all of those crimes have the potential for being punishable by at least twelve years and meet the requirement stated in the stated section of the Habitual Offender Law. We do not take the habitual offender statute to mean that the specified crimes must be punishable by no less than twelve years, but that there is a potential punishment of at least twelve years. Green’s sentence is, therefore, affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . The Bill of Information filed against Green listed the church as being the “Christian Journey Missionary Church.” The church was also identified at the trial as the “Christian Journey Missionary Baptist Church.”

      . In an Order dated March 22, 2004, this court allowed the state to supplement the record with the stated transcript.


author: | JOLLEY, J.

text:
    STATE of Louisiana, Appellee v. James RABUN, Appellant.
    No. 38,655-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Louisiana Appellate Project by Sherry Watters, New Orleans, Paula Corley Marx, Lafayette, for Appellant.
    Jerry Jones, District Attorney, Charles Brumfield, Assistant District Attorney, for Appellee.
    Before GASKINS, DREW and LOLLEY, JJ.
   | JOLLEY, J.

Defendant, James Rabun (“Rabun”), appeals his convictions and sentences for armed robbery and conspiracy to commit armed robbery from the Fourth Judicial District Court, Morehouse Parish, Louisiana. For the following reasons, we affirm his conviction and sentence for armed robbery and vacate the conviction and sentence for conspiracy.

Facts

The state charged Rabun by bill of indictment stating that he committed four armed robberies and conspired with Tony Moore, a.k.a. Tony Jackson (“Moore”), to commit those robberies. Rabun was tried on all eight charges, but ultimately was only convicted in connection with one incident which occurred on March 18, 2002, at the Citgo East in Bastrop, Louisiana. Those convictions are the subject of this appeal.

At the trial for that robbery, Jamilla Zimmerman (“Zimmerman”) testified that she was working the midnight shift on March 18, 2002, when the business was robbed. She testified that there were no cars in the parking lot when a black male, armed with a gun, jumped the counter and indicated he wanted her to open the cash register. Zimmerman testified that the perpetrator took cash from a money drawer and that she locked herself in the bathroom for a minute until the perpetrator left. Zimmerman testified that she was positive the perpetrator did not drive up in a vehicle prior to the robbery. She described the weapon used as a small caliber, black or blue handgun, and testified that it looked like the one the assistant district | ^attorney showed her. The perpetrator obtained $952.00. Zimmerman testified that she called the police within 90 seconds after the perpetrator left the store, and she subsequently identified him to be Moore from a photo line-up.

Bastrop police officer Gerald Boley (“Boley”) testified that he investigated the robbery. Boley stated that when he heard the radio call about the robbery, he was half a block from the scene and began looking for a suspect vehicle. He saw a white car driving through a grocery store parking lot, very close to the Citgo East, at a high rate of speed, and the car pulled right in front of Boley’s squad car. Boley testified that he made a traffic stop and video-taped the stop. He identified Rabun as the driver of that vehicle and stated that he knew Rabun. Boley’s investigation showed that the vehicle was licensed to Rabun. Boley testified that he did not know the passenger, so he patted him down, but did not find any weapon on him.

Moore testified that he pled guilty to armed robbery and conspiracy to commit armed robbery resulting in an 18-year sentence in exchange for his agreement to testify truthfully at Rabun’s trial. At the trial Moore stated that he was living with Quentina Bradshaw (“Quentina”) in Bas-trop at the time of the robbery, and that Rabun lived there as well. Moore stated he and Rabun planned the Citgo East robbery for a couple of days and discussed where Rabun would drop Moore and where Rabun would pick him up. Moore testified that they looked for surveillance cameras, and they decided to do the robbery at night because there would be only one person working. 1 ¡¡Moore stated that the plan was for Rabun to wait for him behind a nearby grocery store.

Moore testified that after that robbery he had to wait for a few minutes for Rabun to pick him up. As they left the parking lot, a police officer stopped them; however, the officer did not search the car. According to Moore’s testimony, the stolen cash, the weapon and the clothes he changed out of were on the front seat of the vehicle when the officer stopped them. Moore further testified that he and Rabun split the proceeds of the robbery. Finally, Moore testified Rabun furnished the pistol used in the Citgo East robbery and that after that robbery Rabun gave the pistol to Anthony Bradshaw (“Anthony”) and told him to hide it.

Anthony, Quentina’s son, also testified at the trial, and he claimed he did not know Moore. Anthony testified that he led Bas-trop police officer Chuck Wilson (“Detective Wilson”) to a .38 caliber handgun. He stated that he had thrown the weapon away from the house to get rid of it. Anthony testified that his mother had given him the gun and that he never saw the weapon before his mother handed it to him.

Detective Wilson testified that he investigated the Citgo East robbery and arrested Moore and Rabun and recovered the crime weapon. Upon being advised by Moore that Anthony was given the gun to hide following the robbery, Det. Wilson testified that he brought in Anthony with his mother, Quentina, for an interview. Detective Wilson testified that after he advised Anthony and Quentina of their Miranda rights, Anthony stated that Ra-bun gave him the gun after the Citgo East robbery and had told him to |4hide it. Detective Wilson further testified that Anthony described hiding the gun in some bushes by a trailer not far from Quentina’s residence. Anthony later took Det. Wilson directly to the location of the weapon which was located 50 to 100 yards from Quentina’s residence. Detective Wilson testified that he arrested Moore and that when Moore gave his statement naming Rabun as his accomplice, he appeared to be sober and normal.

Quentina testified that Rabun lived at her house in February and March of 2002 and that he dated her daughter. Quentina stated that although Rabun and several other people lived with her, Moore did not live with her. She testified as to instructing Anthony to throw the gun into the bushes on the night Rabun was arrested. She also stated that she had gotten the gun from Moore. Quentina also verified she had been present when Det. Wilson interviewed her son, Anthony, but denied that Anthony said he got the gun from Rabun.

At the trial’s conclusion, a unanimous jury found Rabun guilty on the charges of the March 18, 2002, armed robbery and conspiracy to commit armed robbery. The trial court denied a timely motion for post-verdict judgment of acquittal and, after imposing concurrent sentences of 15 years at hard labor without benefits for the completed offense and seven years for the conspiracy, denied a motion for reconsideration of sentence. Rabun now appeals his convictions and sentences.

Discussion

On appeal, Rabun enumerates three assignments of error. Rabun’s second assignment of error, which we will address first, is two-pronged. | RFirst, Ra-bun contends that the state failed to prove him guilty of both armed robbery and conspiracy to commit armed robbery. Second, he further argues that the proof and conviction of both offenses violates his right against double jeopardy. As to Ra-bun’s argument regarding the evidence against him, we find that the evidence of record viewed in the light most favorable to the prosecution, supports his convictions for armed robbery (as a principal) and for the conspiracy to commit that armed robbery beyond a reasonable doubt.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

To convict a defendant of armed robbery, the state is required to prove: (1) a taking (2) of anything of value (3) from a person or in the immediate control of another (4) by the use of force or intimidation (5) while armed with a dangerous weapon. La. R.S. 14:64; State v. Jeselink, |635,189 (La.App.2d Cir.10/31/01), 799 So.2d 684. All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La. R.S. 14:24.

To convict an accused of conspiracy, the prosecution must prove an agreement or combination of two or more persons for the specific purpose of committing a crime and an act done in furtherance of the object of the agreement or combination. La. R.S. 14:26; State v. Valrie, 1999-226 (La.App. 3d Cir.10/13/99), 749 So.2d 11, unit denied, 1999-3236 (La.04/20/00), 760 So.2d 343.

Specific intent, for the purpose of proving a criminal conspiracy, is that state of mind which exists when the circum-. stances indicate the offender actively desired the proscribed criminal consequence to follow. Intent may be inferred from the circumstances of the actions of the offender. State v. Johnson, 2001-1084 (La.App. 3d Cir.02/06/02), 817 So.2d 120.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Cummings, 1995-1377 (La.02/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.09/27/00), 768 So.2d 687, writs denied, 2000-3070 (La.10/26/01), 799 So.2d 1150, 2001-2087 (Lap.|04/19/02),7 813 So.2d 424. This standard, legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442.

On appeal, Rabun argues that the only evidence presented against him was the uncorroborated testimony of Moore. However, we find that Moore’s testimony was sufficiently corroborated. Although Rabun was convicted in connection with only one robbery, the jury heard evidence regarding the three other robberies he was charged with. In that vein, Officer Michael Farrar with the Morehouse Parish Sheriffs Office testified that on February 19, 2002, he observed a white car, which matched Rabun’s car, parked down the street from the Circle K outside of Bas-trop. Moore testified that Rabun dropped him off at that location, rather than in the parking lot, so Moore could commit a robbery of the Circle K; Officer Farrar’s description of a white car matched the description of the vehicle used in the subject robbery. On March 18, 2002, moments after the Citgo East robbery, Officer Boley stopped Rabun’s vehicle, a white car. A videotape of the incident showed Rabun and Moore standing outside Rabun’s white vehicle.

Additionally, the handgun used in the robbery was found near Rabun’s residence. Anthony’s.testimony was that his mother, Quentina, Isgave him the gun. However, it was Off. Wilson’s testimony that Anthony told him in the interview that Rabun had given Anthony the gun to discard.

Although conflicting testimony existed, the jury obviously found as more credible Moore’s testimony that Rabun actively aided and abetted him by planning the robbery and acting as the driver. In State v. Deruise, 98-0541 (La.04/03/01), 802 So.2d 1224, 1243, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001), the Louisiana Supreme Court reiterated that “[t]he trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness.” It is not the function of the appellate court to assess credibility or reweigh the evidence. State v. Hotoph, 99-243 (La.App. 5th Cir.11/10/99), 750 So.2d 1036, 1045, writs denied, 99-3477 (La.06/30/00), 765 So.2d 1062, 00-0150 (La.06/30/00), 765 So.2d 1066. It is our view that from the testimony read in its entirety, a rational juror could have found that Rabun and Moore acted in concert to take property of value from third persons by the use of intimidation while armed with a dangerous weapon. Thus, the trial testimony, viewed in the light most favorable to the prosecution, supports the convictions for armed robbery (as principal) and for the conspiracy to commit that armed robbery beyond a reasonable doubt.

In the same assignment of error, Rabun maintains that the convictions violated his right against double jeopardy. Although his convictions for both offenses are supported by the law, as discussed herein, we agree that they nevertheless violate the prohibition against double jeopardy.

|9As a general rule, double jeopardy bars separate punishment for lesser included offenses where the defendant has been convicted of the greater offense. State v. Cotten, 438 So.2d 1156 (La.App. 1st Cir.1983), writ denied, 444 So.2d 606 (La.1984).

A person cannot twice be put in jeopardy for the same offense. U.S. Const. amend. V; La. Const. art. 1, § 15; La. C. Cr. P. art. 591; State v. Knowles, 392 So.2d 651 (La.1980). The test for double jeopardy to determine if there are two offenses or one is whether each of fense requires proof of an additional fact not required by the other offense. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Coody, 448 So.2d 100 (La.1984). Louisiana uses the “same evidence” test:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial.

State v. Steele, 387 So.2d 1175 (La.1980); State v. Knowles, supra; State v. Coody, supra; State v. Robertson, 511 So.2d 1237 (La.App. 2d Cir.1987), writ denied, 516 So.2d 366 (La.1988).

To remedy a violation of double jeopardy, the reviewing court vacates the conviction and sentence of the less severely punishable offense and affirms the conviction and sentence of the more severely punishable offense. State ex rel. Adams v. Butler, 558 So.2d 552 (La.1990); State v. Lee, 554 So.2d 180 (La.App. 2d Cir.1989).

In the instant case, the elements and proofs of the conspiracy offense and the principal to armed robbery offense are the same. Both Rabun and |inMoore were concerned in the commission of a crime, one present and the other nearby. While Moore directly committed the act constituting the offense, Rabun aided and abetted or acted in furtherance of its commission by supplying the weapon, driving the getaway car and presumably acting as a lookout. Thus, they are principals. However, the same evidence proves that Rabun and Moore conspired to commit an armed robbery, i.e., there was an agreement or combination between Rabun and Moore for the specific purpose of committing a crime and both Rabun and Moore directly performed acts in furtherance of the object of the agreement or combination. Thus there is a violation of the prohibition against double jeopardy. Accordingly, Ra-bun’s conviction and concurrent sentence for the conspiracy count is hereby vacated.

In another assignment of error, Rabun argues that the trial court erred in failing to give a cautionary instruction as to Moore’s testimony, both at the time of the testimony and in the final jury instruction. Specifically, Rabun argues that his trial attorney failed to request such an instruction or the trial court should have given this cautionary instruction on its own motion. We find that this argument has no validity for the following reason.

At the trial no request was made for the special instructions under La. C. Cr. P. art. 807, which provides that the state and the defendant shall have the right before argument to submit to the court special written charges for Inthe jury. Such charges may be received by the court in its discretion after argument has begun, and the jurisprudence does not hold that such an instruction is required even if not requested by defense counsel, i.e., there is no sua sponte requirement to so instruct which is imposed on the trial judge.

A conviction can be sustained on the uncorroborated testimony of a purported accomplice, although the jury “should be instructed to treat such testimony with great caution.” State v. May, 339 So.2d 764 (La.1976). The May court further noted that a contemporaneous objection by the accused is a necessary prerequisite to appellate relief on an alleged inadequate jury charge. However, a cautionary instruction is not an absolute ne cessity when there is a material corroboration of the accomplice’s testimony. See State v. Murray, 375 So.2d 80 (La.1979). Corroboration is enough if there is evidence which confirms material points in an accomplice’s tale, and confirms the defendant’s identity and some relationship to the situation. State v. Schaffner, 398 So.2d 1032, 1035 (La.1981); State v. Dunn, 30,560 (La.App.2d Cir.02/25/98), 709 So.2d 852, 857. Although Rabun argues that this issue can be raised on due process grounds even though there was no objection at the trial, the contemporaneous objection rule is necessary to promote judicial efficiency and does not violate an accused’s rights under the state constitution. State v. Marcell, 320 So.2d 195, 198 (La.1975). When there is no request for a special instruction concerning accomplices and no contemporaneous objection is made to the charge, the defendant is precluded from raising the issue on appeal. State v. Dugar, 93-718 (La|App.12 3d Cir.10/05/94), 643 So.2d 870, 878-79, writ denied, 94-2712 (La.06/30/95), 657 So.2d 1019.

In the case sub judice, there was no request for a special cautionary instruction and there was no contemporaneous objection to the lack of this instruction at trial. La. C. Cr. P. art. 841; State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. We do not find that the jurisprudence requires that the instruction be given sua sponte. Regardless, we find that this assignment of error lacks merit because there was corroboration of the accomplice’s testimony as noted above. Finally, because there was no contemporaneous objection, this issue is not properly before this court for review and is therefore rejected on that ground.

In his last assignment of error Rabun contends the trial court did not give sufficient weight to certain personal circumstances of his, and that he should have been given the minimum sentence possible (ten years) due to: his age (18); his lack of prior felony convictions; his level of education (high school graduate); his work history (he worked at his family’s car wash business), and, he is an unmarried father. We disagree.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.03/01/2000), 754 So.2d 392, 394, writ denied, 2000-1467 (La.02/02/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.02/26/97), 690 So.2d 864, writ denied, 97-0705 (La.09/26/97), 701 So.2d 979. The record shows that |13a presentence investigation report was ordered and that the trial court adequately considered its findings therein.

Rabun faced a sentence of 10 to 99 years at hard labor and his accomplice was sentenced to 18 years, after pleading guilty and agreeing to cooperate. We find that the sentence imposed on Rabun is at the low end of the range and is less than that meted out to his more actively involved accomplice. Absent a showing of manifest abuse of discretion an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158; State v. Lingefelt, 38,038 (La.App.2d Cir.01/28/04), 865 So.2d 280. In the instant case, we find that there is no clear showing of an abuse of the trial court’s sound discretion. Accordingly, Rabun’s sentence for the armed robbery is affirmed.

Conclusion

The evidence, viewed in the light most favorable to the prosecution, is sufficient to support the unanimous verdicts of guilty of armed robbery of the Citgo East in Bas-trop, Louisiana and conspiracy to commit that armed robbery. However, because the same evidence was needed and used to convict on both offenses, there is a violation of double jeopardy which requires the vacation of the conviction and sentence for the lesser offense of conspiracy to commit armed robbery. This has no practical effect on the sentence to be served. The sentence imposed for the armed robbery, which is not excessive, is therefore affirmed.

AFFIRMED IN PART; VACATED IN PART.

      . Although Rabun argues that his trial counsel failed to request a special instruction to the jury, he does not raise an ineffective assistance of counsel argument.