author: PICKETT, Judge.

text:
    STATE of Louisiana v. Huey Lee RICHARDS.
    No. 2006-1553.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      James Edward Beal Louisiana Appellate Project, Jonesboro, LA, for Defendant Appellant Huey Lee Richards.
    James C. Downs, Loren M. Lampert, District Attorney, Alexandria, LA, for State-Appellee.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

| .TRIAL COURT PROCEEDINGS

A month after the February 24, 2005 murder of La’Kedric Quinney, the Rapides Parish Grand Jury indicted the defendant, Huey Lee Richards, with committing the first degree murder of Mr. Quinney. At his arraignment, the defendant pled not guilty. On May 22, 2006, the prosecution amended the indictment and reduced the charge to second degree murder, in violation of La.R.S. 14:30.1. The defendant also pled not guilty to the reduced charge.

After voir dire, trial on the merits began May 24, 2006. The trial concluded the next day, and the jury found the defendant guilty of second degree murder. After his conviction, the defendant filed a motion for new trial. After denying the defendant’s motion for new trial on June 19, 2006, the district court sentenced the defendant to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence.

The defendant now appeals alleging that the state failed to present evidence sufficient to support his conviction.

EVIDENCE PRESENTED

The first witness called by the State in this matter was Appifanny Randall. Ms. Randall is the seventeen-year-old mother of the victim’s child. Although Mr. Quin-ney had been living with his mother in Baton Rouge, he had moved in with Ms. Randall about a week before he disappeared. On the evening of February 23, 2005, Mr. Quinney and Ms. Randall had been riding around in a white Cadillac Mr. Quinney had borrowed from Defendant. After making several stops, Mr. Quinney and Ms. Randall returned their sleeping infant home.

|gMr. Quinney and Ms. Randall left again and went to the store. Ms. Randall stayed in the car while Mr. Quinney went inside. When he returned to the car at about 2:00 a.m., he had a signed check. The defendant had given Mr. Quinney the check in repayment for some crack cocaine Mr. Quinney had sold to the defendant. When Ms. Randall’s mother refused to cash the check, Mr. Quinney, saying it was too late, returned the check to the defendant inside the store. Before returning to the store, Mr. Quinney expressed to Ms. Randall his anger at the defendant and his reluctance to re-enter the store, explaining that the reluctance was because the defendant was naked. In exchange for the check, the defendant gave him a credit card bearing a woman’s name. Mr. Quinney then unsuccessfully tried to use the credit card to withdraw cash at Red River Bank. Ms. Randall thought that the card had been stolen and told Mr. Quinney her suspicion.

Ms. Randall and Mr. Quinney returned to the store. When they arrived, a woman was standing outside of the store. The defendant and the woman were the only people at the store. The woman stopped Mr. Quinney and spoke to him as he approached the store. Ms. Randall believed that the woman was asking Mr. Quinney for crack. Ms. Randall did not think that Mr. Quinney gave her anything before he entered the store because the woman yelled, “I got $2-1 got $2.” After awhile, the woman followed Mr. Quinney into the store, and Mr. Quinney exited. When Mr. Quinney got into the car, he told Ms. Randall that the defendant had told him to go to Hibernia instead of the Red River Bank.

Ms. Randall and Mr. Quinney went to Hibernia, and Ms. Randall got out of the car because Mr. Quinney had been taking too long. Mr. Quinney told her that the card had gotten stuck in the ATM and that only happened when the card was stolen. | s After leaving Hibernia, Mr. Quinney dropped Ms. Randall off at home. Ms. Randall told Mr. Quinney that he should not return to the store. Ms. Randall asked Mr. Quinney to remain at home, but he said that he would be back in five minutes and left. When she awoke around 5:00 a.m., Ms. Randall noticed that Mr. Quinney was not home and called Bernice Quinney, Mr. Quinney’s mother. Ms. Randall did not see Mr. Quinney again.

When Ms. Randall returned to the store looking for Mr. Quinney, she saw the defendant’s car parked outside and encountered the defendant’s wife when she entered the building. Speaking rapidly and shaking her head, the defendant’s wife denied having seen the defendant or Mr. Quinney and said that the defendant was at the casino. The defendant’s wife told Ms. Randall that she did not know how she had gotten the white Cadillac back from Mr. Quinney or the defendant. The defendant’s wife followed Ms. Randall out of the store, then locked up, and left in the car. Ms. Randall and her family continued to search for Mr. Quinney over the next ten days. They also posted missing person flyers that Ms. Quinney and Ms. Randall’s aunt had made.

Later, Ms. Randall returned to the store with Ms. Quinney and they encountered the defendant while he was being questioned by the police. Ms. Randall saw that the defendant’s face was scratched. The defendant told them that Mr. Quinney had slid the car keys under the store’s door and had left with some men with ecstasy pills. Ms. Randall attempted to tell the police that it would be impossible to slide car keys under the store’s door. Ms. Randall and Ms. Quinney exited the store when the police told them to leave, but Ms. Randall and some of her family went back later.

|4In all the time Ms. Randall had known Mr. Quinney, she never saw him with a gun. Mr. Quinney had carried a small pocketknife for a while, but he had lost it about seven months before he disappeared. Other than the pocketknife, Ms. Randall had never seen Mr. Quinney carry a knife. Instead, Mr. Quinney seemed confident that he could defend himself without weapons. Ms. Randall described Mr. Quinney as standing about an inch under six feet and weighing 150 pounds.

The second witness to testify for the prosecution was Gwendolyn Davenport. Ms. Davenport is addicted to crack cocaine. That night, Ms. Davenport only had $3.00, so she could not get high. Instead, she went to the store to buy snacks. As she approached the store, Ms. Davenport noticed that the lights were on, but no vehicle was parked outside. As Ms. Davenport turned to go home, she saw the defendant’s vehicle turn into the store parking lot. Ms. Davenport then crossed the street so she could enter the store. As she neared the door, she heard arguing.

Ms. Davenport waited for the arguing to calm down before she knocked. The defendant let her in and the young man who had been arguing with the defendant left while she was shopping. While inside, Ms. Davenport noticed a condom package on the counter. The defendant was wearing a T-shirt, but he was naked from the waist down. Ms. Davenport did not leave. Instead, she stayed at the store with the defendant for thirty to forty-five minutes and got high on crack cocaine supplied by the defendant.

The young man returned after about fifteen minutes. The defendant let the young man into the store, and the young man told the defendant that an ATM card was not working and that the machine had kept the card. The young man was upset and kept repeating that he wanted his money. The defendant did not pay attention to |fithe young man. The young man told the defendant, “[I]f I was like one of the rest of these little youngsters, I’d be whooping your — ss.” The defendant responded that the young man did not know with whom he was dealing. The defendant did not act at all worried when the young man threatened him. The defendant told the young man to take his girlfriend home and then come back to the store.

The young man left, and the defendant asked Ms. Davenport if she wanted to accompany him and the young man to Super One. Ms. Davenport was high and feeling nervous, so she refused. When Ms. Davenport suggested that the defendant finish dressing before he left the store, the defendant yelled at her to not tell him what to do. The young man returned to the store, having dropped off his girlfriend, and Ms. Davenport left. As she was walking out, the young man told her that she was going to be reading about the defendant. The young man was not armed at any time while in Ms. Davenport’s sight. Ms. Davenport did not see the young man after that night. Ms. Davenport identified the corpse depicted in the photographs marked S-7, S-8, and S-9 as the young man who was at the store that evening.

Sergeant William Bates, a crime scene detective with the Alexandria Police Department, testified for the state. Sergeant Bates investigated Mr. Quinney’s murder. During the investigation, Sergeant Bates collected two cotton swabs of blood from the defendant’s carport driveway, two cotton swabs of blood from the threshold entry to defendant’s house from the carport, two cotton swabs from a bloodstain on the screen door of that entry, two cotton swabs of suspected blood from the defendant’s bathtub, and bloodstain swabs from the defendant’s car. Sergeant Bates went to Memphis, Tennessee to execute a search warrant on the defendant’s car. For comparison, the 1 (¡investigators took buccal swabs and blood samples from the defendant. Sergeant Bates also collected a blood sample from the victim.

The prosecution called Connie Brown to testify as an expert in DNA analysis. Ms. Brown analyzed the blood samples in the instant case. The blood taken from the defendant’s carport screen door matched Mr. Quinney’s DNA. The carport driveway and door swabs yielded no DNA evidence. The bathtub swabs matched the defendant’s DNA, which is not unusual since it was the defendant’s bathtub. The blood swabs from the passenger seat of the defendant’s car matched Mr. Quinney’s DNA.

The state recalled Sergeant Bates. Sergeant Bates became involved in the investigation on February 29, 2005, when another officer told him that Mr. Quinney had disappeared and that the authorities suspected foul play. On March 1, 2005, Sergeant Bates participated in executing a search warrant on the defendant’s store and residence to search for signs of a struggle. At the defendant’s home, the officers seized a disposable camera. After searching the defendant’s home, law enforcement officers began looking for Mr. Quinney’s body.

On March 3, 2005, Sergeant Bates obtained the pieces of the previously mentioned credit card from Hibernia, the bank’s surveillance video, and a disposable camera the defendant had given to his mother. Sergeant Bates then assisted in executing a second search warrant on the defendant’s residence. This time, officers seized blood evidence. Sergeant Bates found some hand towels hanging in the bathroom that showed spots when sprayed with luminol, which reacts and fluoresces when in contact with blood.

|7A tall levee on Red River borders the defendant’s property. The levee is separated from Red River by woods. On March 4, 2005, a search team gathered to search the woods across the levee from the defendant’s house. On the opposite side of the levee from the defendant’s residence, officers discovered a trail where something had been dragged through the brush. Officers found Mr. Quinney’s naked body near a pair of cinder blocks in the woods at the base of the levee. Mr. Quinney’s body had been stabbed repeatedly both in front and in back. The nearby cinder blocks, which appeared to have been moved from the defendant’s house, had recently been set in place. Officers repeatedly searched for Mr. Quinney’s clothing and the murder weapon, but they were not able to locate them.

Next, Sergeant Bates executed the search warrant on the defendant’s car on March 14, 2005. Sergeant Bates also obtained consent to search for blood stains from the defendant’s wife prior to traveling to Memphis, Tennessee, where the car had been stored. During the search, Sergeant Bates discovered two apparent stab holes in the vehicle’s headliner and a graze on the plastic control center also on the car’s ceiling. The search of the defendant’s vehicle revealed blood, which had dried in the crevasses and seams of the car’s passenger seat. Sergeant Bates submitted all of the blood samples for DNA testing.

When Sergeant Bates executed a search warrant on the disposable camera, he had the photographs developed by the crime scene bureau’s photo processing lab. The processed pictures depict the defendant with blood on him: his hands, his face, his scalp, his legs, his shirt. The blood appeared to have been transferred onto the defendant rather than bled by the defendant. Sergeant Bates’ investigation revealed that the defendant’s wife had taken the photographs.

|sOn the second day of trial, Dr. Collie Trant, a forensic pathology expert, was the first person to testify for the state. Dr. Trant became involved in the case when the coroner who performed the autopsy died. Dr. Trant issued Mr. Quinney’s autopsy report. Mr. Quinney’s body had many sharp force injuries and several blunt force injuries:

(1) stab wound to the right back, seven inches deep and through the lung, inflicted with a back to front motion, possibly fatal by itself if left untreated;
(2) stab wound to the upper right arm, inflicted with a front to back and right to left motion, possibly a defensive wound because of its position and half-inch depth;
(3) stab wound to the upper front neck, two inches deep, inflicted with a front to back and slightly downward motion, postmortem since there was no associated hemorrhage;
(4) stab wound to the lower front neck, two inches deep, inflicted with a front to back and slightly left to right motion, possibly fatal by itself if left untreated;
(5) stab wound to the front lower neck, two inches deep, inflicted with a front to back and right to left motion, eventually fatal as it punctured both the trachea and the esophagus;
(6) stab wound to the upper middle chest/lower neck, half an inch deep, inflicted with a front to back motion, not fatal;
(7) stab wound to the lower right side of the neck, thirty degrees from vertical, inflicted with a downward and right to left motion;
(8) stab wound to the upper right side of the neck, four inches deep, inflicted with a downward and right to left motion, fatal without immediate treatment as it passed through both the jugular vein and carotid artery;
(9) stab wound to the right upper chest, six inches deep, inflicted with a front to back and right to left motion, fatal as it punctured the aorta and the esophagus, caused Mr. Quinney to fall unconscious due to blood loss;
(10) stab wound to the middle left chest, seven inches deep, inflicted with a front to back motion, pierced Mr. Quinney’s lung;
|fl(ll) cut to the right index finger, one-eighth of an inch deep, inflicted by a horizontal motion, defensive wound;
(12) stab wound to the upper back neck, four inches deep, inflicted with a back to front motion, possibly paralyzed Mr. Quinney because it cut into the spinal cord, fatal;
(13) stab wound to the upper left back, three quarters of an inch deep, inflicted with a back to front motion;
(14) stab wound to the lower back neck, five inches deep, inflicted with a back to front motion, did not damage anything significant;
(15-20) superficial stab wounds to the upper back, depth ranging from four fifths of an inch to five inches, inflicted with back to front motions, spacing indicates that Mr. Quinney was immobile when they were inflicted, none of the wounds caused significant damage;
(21) cut to the top of the head, one half inch deep;
(22) lacerations on the lips caused by a blow from a blunt object sufficiently forceful to split the skin, a large contusion to the right elbow, contusions associated with all sharp force wounds except the postmortem stab wound, abrasions on the abdomen, chest, back, arms, and face from being dragged.

All of the stab wounds were made by a single-edge knife. The damage would have taken about ten minutes to inflict. If the injuries were inflicted in a vehicle, there would possibly be cut marks in the car due to the confined space. Also, there would be blood around Mr. Quinney in the vehicle.

Additionally, Mr. Quinney had postmortem wounds to his genital area. The body had a hole above the penis, which had been skinned. That skin, Mr. Quinney’s scrotum, and his testicles were all missing. None of the defects were made by animals although animals can cause the same type of defects. The edges of the wounds were relatively smooth rather than scalloped, showing that the genital injuries were incised by a knife instead of animal teeth.

|inDr. Trant opined that, based on the insect eggs and larvae, the body had probably been where it was found for a day or two. However, if the weather was cold, it could inhibit blowfly activity. If a body had been lying in field for the length of time it took to find Mr. Quinney, the body would be filled with maggots, and the larvae would have eaten at the wounds until it would have been difficult to determine what caused them. In contrast, Mr. Quin-ney’s body was relatively well-preserved for the area in which it was found. Overall, the insect activity and the decomposition of the body were consistent with Mr. Quinney having been dead since his disappearance.

The prosecution called Detective Cedric Green with the Alexandria Police Department to testify as its final witness. Detective Green was the case agent in the investigation of the disappearance and death of Mr. Quinney. Detective Green learned that the defendant had been the last person seen with Mr. Quinney. On Friday, February 25, 2005, Detective Green spoke to the defendant on the telephone, and the defendant stated that he would call Detective Green the following Monday. The defendant did not call until Tuesday, and during that conversation, the defendant volunteered to visit Detective Green’s office the next morning. The defendant insisted on having an attorney present during the interview. The defendant never reported to Detective Green’s office.

When the defendant failed to call on Monday as promised, Detective Green became suspicious. On Tuesday morning, Detective Green went by the defendant’s store and discovered that it was closed, stopped at the defendant’s house and found out that no one was home, and drove to the local school and learned that the defendant and his wife had withdrawn their children. Based on his findings, Detective Green became even more suspicious of the defendant, so Detective Green obtained warrants to search hithe defendant’s home and business. During the investigation, Detective Green learned that the defendant had relatives in Tennessee. As a result, he contacted them and told them that he was looking for Mr. Quin-ney’s body and the defendant’s car.

On Thursday, March 3, 2005, an informant told Detective Green that the defendant had returned to the area. Detective Green found the defendant’s wife at the defendant’s mother’s house, and the defendant’s wife told him that defendant was at the VA hospital. When the hospital released the defendant, Detective Green detained him and had him transported to police headquarters. The defendant’s physical condition was documented when he arrived. He had a black eye and a scabbed-over injury to his right forearm.

After speaking with the defendant, the investigators had enough information to believe that Mr. Quinney’s body would be found in a wooded area near the defendant’s residence. As a result, a multi-agency search team looked for Mr. Quin-ney’s body in the wooded area behind the defendant’s home. The searchers found Mr. Quinney’s body the following day. When the Memphis police informed Detective Bates that they had located the defendant’s car, Detective Green and Detective Bates went to Tennessee. After getting the defendant’s wife’s permission to search the car and a search warrant signed by a Tennessee judge, Detective Bates searched the vehicle with Detective Green present.

In order to rebut the state’s evidence, the defense called the defendant to testify as its sole witness. The defendant attested that Mr. Quinney had initiated an incident around 3:00 a.m. by hitting the defendant in the eye with the butt of a gun. When the defendant fell out of his chair, Mr. Quinney again struck the defendant with the butt of the gun, hitting the defendant’s arm. Mr. Quinney then pointed the gun at the | ^defendant’s face and told the defendant that he was going to take everything since the defendant owed him ninety dollars. In response, the defendant gave Mr. Quinney the $200.00 he had in the store as well as his watch and jewelry. Mr. Quinney kept the gun pointed at the defendant, forced him into the Cadillac, and made the defendant take the driver’s seat while Mr. Quinney took the passenger seat. The defendant stated that he was crying at that point. Complying with Mr. Quinney’s instructions, the defendant drove to his house while another vehicle followed. When the defendant parked, Mr. Quinney hit him in the nose with the gun and took the keys. The defendant grabbed a kitchen knife he had in the car left over from his supper. When the defendant stabbed Mr. Quinney with the knife, Mr. Quinney dropped the gun, opened the passenger door, and tried to exit the vehicle. The defendant grabbed Mr. Quinney by the shirt collar, twisted the fabric around his hand, and stabbed Mr. Quinney in the chest. Before the defendant stabbed Mr. Quinney the second time, Mr. Quinney picked the gun back up, holding it with the barrel facing away from the defendant.

On cross-examination, the defendant changed his story. He added that, after he initially stabbed Mr. Quinney, he stabbed at Mr. Quinney a second time as Mr. Quinney clutched the stab wound and tried to open the car door. The defendant grabbed Mr. Quinney’s collar to pull him back into the vehicle only after jabbing at Mr. Quinney who was attempting to retreat. The defendant stabbed Mr. Quin-ney again after he pulled Mr. Quinney back into the car and Mr. Quinney had picked up his gun, holding it with the barrel facing away from the defendant.

Mr. Quinney again tried to move away from the defendant, but the defendant followed him out of the passenger side of the car. The two men struggled until they | iSboth fell in the ditch at the front of the defendant’s residence, Mr. Quinney landed face down with his head on the defendant’s knees and his body across the defendant’s legs. Mr. Quinney lay unmoving with his gun arm tangled in his shirt. While in that position, the defendant stabbed Mr. Quinney several more times. The defendant denied inflicting injuries to Mr. Quin-ney’s genitals and stated that the stab wounds to Mr. Quinney’s throat must have been exit wounds to where he stabbed Mr. Quinney in the back of the neck. In spite of his denial, the defendant admitted on cross-examination that he stabbed Mr. Quinney in the throat, as opposed to the neck. The defendant averred that he was afraid because he did not want his family’s sanctuary violated.

The defendant looked up and saw the driver from the other vehicle approaching with some rope and duct tape in his hands. The defendant jumped up, ran to the rear of his house, and kicked in the back door. The defendant told his wife that somebody was trying to kill him and wedged a chair under the doorknob. The defendant instructed his wife to not let them in. The defendant again reported that he was crying. After awhile, the defendant had his wife photograph him. Then, he changed clothes and went outside to move the body. The defendant’s wife placed his bloody clothing in a plastic bag.

The other vehicle and its driver had left when the defendant exited his house. The defendant pulled Mr. Quinney’s shirt off, grabbed him by the hand, and began to drag the body. Mr. Quinney’s oversized trousers and underpants had shifted to his ankles when Defendant stopped by the carport to rest. At that point, the defendant removed Mr. Quinney’s remaining clothes and put them in the corner of his backyard. The defendant then pulled Mr. Quinney up the levee by his feet and down the levee by his hand. After stopping for a rest, the defendant grabbed Mr. Quin-ney’s legs and 114dragged him to where the body was discovered. The defendant returned home, collected Mr. Quinney’s clothing, and gave them to his wife to bag. The defendant picked up the gun and the knife, put them in a brown paper bag, and individually dropped the gun, the knife, and the bag in a bayou as they left town. They threw the bag with Mr. Quinney’s clothing into a dumpster.

After the defense rested, the prosecution recalled Sergeant Bates as a rebuttal witness. Sergeant Bates testified that the lock on the defendant’s back door had been intact when investigators searched the home. Sergeant Bates also refuted testimony by the defendant that he and his wife stopped taking pictures because the film ran out. He averred that there were fourteen unexposed frames left on the disposable camera.

DISCUSSION

The defendant contends that “[t]he evidence is insufficient to convict the defendant of second degree murder.” The defendant argues that the jury should have acquitted him based on his justification defense; or alternatively, a manslaughter conviction was more appropriate.

Second degree murder is the killing of a human being when the offender has specific intent to kill or inflict great bodily harm. La.R.S. 14:30.1(A)(1).

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” La. R.S. 15:438; see State v. Neal, 2000-0674[,] p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory test of La. R.S. 15:438 “works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt 11Hbeyond a reasonable doubt to a rational jury.” Neal, 2000-0674[,] p. 9, 796 So.2d at 657.

State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170.

Louisiana courts have held that a showing that a defendant inflicted multiple cut, slash, or stab wounds on a victim is sufficient to support a finding that the defendant intended to commit second degree murder. State v. Pagan, 04-1478 (La.App. 5 Cir. 5/31/05), 905 So.2d 435, writ denied, 05-2003 (La.2/17/06), 924 So.2d 1013; State v. Mackens, 35,350 (La.App. 2 Cir. 12/28/01), 803 So.2d 454, writ denied, 02-413 (La.1/24/03), 836 So.2d 37; State v. Bates, 95-1513 (La.App. 1 Cir. 11/8/96), 683 So.2d 1370; State v. Segura, 464 So.2d 1116 (La.App. 3 Cir.), writ denied, 468 So.2d 1203 (La.1985). Additionally, when a defendant flees or attempts to avoid apprehension, the trier of fact may infer a guilty conscience. State v. Cazenave, 00-183, 00-184 (La.App. 5 Cir. 10/31/00), 772 So.2d 854, writ denied, 00-3297 (La.10/26/01), 799 So.2d 1151 (citing State v. Fuller, 418 So.2d 591, 593 (La.1982)).

The evidence shows that the defendant repeatedly stabbed Mr. Quinney over a ten-minute period until after Mr. Quin-ney expired. After Mr. Quinney died, the defendant stabbed him at least once more and then mutilated the body. The defendant then concealed the body and disposed of evidence before fleeing Louisiana with additional evidence. Thus, the evidence shows that the defendant had the specific intent to kill Mr. Quinney and that Mr. Quinney died of the injuries inflicted by the defendant. Accordingly, when viewing the evidence in a light most favorable to the prosecution, the state introduced sufficient evidence at trial to prove beyond a reasonable doubt that the' defendant was guilty of the second degree murder of La’Kedric Quinney.

| ^JUSTIFICATION

Homicide is justifiable in some instances: in cases of self defense; if necessary to prevent a violent or forcible felony involving danger to life or great bodily harm; in situations where the offender reasonably believes the victim is likely to use unlawful force against a person present in a dwelling, business, or motor vehicle; and when the offender is lawfully inside a dwelling, business, or motor vehicle and the offender reasonably believes that deadly force is necessary to either repel an intruder or force the intruder to leave the premises. La.R.S. 14:20. “When a defendant claims self-defense in a homicide case, the State bears the burden of establishing beyond a reasonable doubt that the defendant did not act in self-defense.” State v. Boston, 03-977, p. 9 (La.App. 1 Cir. 2/23/04), 874 So.2d 197, 204, writ denied, 04-792 (La.9/24/04), 882 So.2d 1167.

In examining a claim of self-defense, it is necessary to consider: (1) whether the defendant had a reasonable belief that he was in immediate danger of death or great bodily harm; (2) whether, under circumstances such as the possibility of escape, killing was necessary to prevent that death or great bodily harm; and (3) whether the defendant was the aggressor in the conflict. State v. Jenkins, 98-1603 (La.App. 4 Cir. 12/29/99), 750 So.2d 366, writ denied, 00-556 (La.11/13/00), 773 So.2d 157. “A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.” La.R.S. 14:21. In the instant case, the jurors were not instructed on the aggressor doctrine.

In Bates, 683 So.2d at 1377, the first circuit stated:

|17The number and character of stab wounds as described by Dr. Cefalu in his testimony and autopsy report furnishes sufficient evidence to support a finding of the specific intent to kill or inflict great bodily harm required for second degree murder. Based on the defendant’s own account of the incident reflecting that he stabbed the victim after disarming her, a rational trier of fact could have reasonably concluded that the killing was not necessary to save [the] defendant from the danger envisioned by [La.R.S.] 14:20(1) and/or that [the] defendant had abandoned the role of defender and taken on the role of an aggressor and, as such was not entitled to claim self-defense. Consequently, the trial court’s rejection of the defense of justifiable homicide is supported by these circumstances.

(citations omitted).

In a later case, the fourth circuit agreed that self-defense does not apply to cases where a defendant disarms an attacker and then proceeds to stab the unarmed attacker numerous times. Jenkins, 750 So.2d 366. “Even if the jury accepted the defendant’s statement that the victim approached him with a knife, the defendant admitted that he disarmed the victim. At that point, the defendant could have left. Instead, the defendant used the knife to inflict injuries to the victim.” Id. at 377.

In State v. Pittman, 93-892 (La.App. 1 Cir. 4/8/94), 636 So.2d 299, the first circuit examined a case wherein the larger defendant asserted that the smaller victim had approached him with a knife, the victim discarded the knife when the fight began, the defendant beat the victim unconscious, then the defendant continued to beat the defenseless victim; based on those facts, the first circuit rejected the defendant’s justification defense. In an earlier case, the first circuit also held that a continued attack on an unconscious victim was sufficient to negate a justifiable homicide defense. State v. Jones, 598 So.2d 511 (La.App. 1 Cir.1992). Also, a defendant’s concealment of the body is inconsistent with a self-defense argument. State v. Patomo, 01-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141.

11sThe only testimony in the record describing the actual homicide is the defendant’s self-serving account of the incident. If one accepts the defendant’s account of the events leading to Mr. Quinney’s death together with the physical evidence, the aggressor doctrine prevents the defendant from being successful in a justification defense. The record shows that, under the facts of the defendant’s story, Mr. Quinney dropped his weapon and attempted to retreat after the defendant stabbed him the first time.

When Mr. Quinney tried to escape, the defendant continued the confrontation by stabbing at the retreating unarmed victim then by physically pulling Mr. Quinney back into the confrontation. When Mr. Quinney retrieved his weapon, he made no attempt to point it at or to use it on the defendant. Nevertheless, the defendant continued to stab Mr. Quinney. Again, Mr. Quinney attempted to retreat from the confrontation. This time, the defendant followed Mr. Quinney out of the car in order to continue the altercation. The parties struggled and eventually fell. Even after Mr. Quinney lay motionless, the defendant continued to stab Mr. Quin-ney. Expert testimony revealed that it would have taken the defendant about ten minutes total to inflict the number of stab wounds found on Mr. Quinney. Moreover, since at least six of the stab wounds to the neck were inflicted after incapacitation and because there were only two defensive wounds, the defendant probably inflicted the remaining throat wounds, which were also inflicted in a relatively tight pattern, after Mr. Quinney had been incapacitated.

Thus, under the defendant’s account of events, his actions were not justified as he became the aggressor after the first stab when he sought confrontation with the retreating unarmed victim even though Mr. Quinney may have been the initial |1flaggressor in the altercation. After the defendant became the aggressor in the conflict, he inflicted twenty additional sharp force injuries to Mr. Quinney.

The jury apparently disbelieved the defendant.

When the evidence is viewed in the light most favorable to the prosecution, there is sufficient evidence in the record to disprove the defendant’s justification defense beyond a reasonable doubt.

MANSLAUGHTER

The defendant contends that the repeated tight patterns of stab wounds make it abundantly clear that he was acting from either extreme fright or heat of passion. Second degree murder becomes manslaughter when “the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La.R.S. 14:31. If a jury finds that a defendant committed second degree murder, it must then determine whether the circumstances of the crime indicate that it was actually manslaughter. State v. Jack, 596 So.2d 323 (La.App. 3 Cir.), writ denied, 600 So.2d 611 (La.1992).

“Manslaughter exists if a defendant can prove by a preponderance of the evidence that mitigating factors, such as provocation, exist.” State v. Paddio, 02-722, p. 12 (La.App. 3 Cir. 12/11/02), 832 So.2d 1120, 1128-29, writ denied, 03-402 (La.2/13/04), 867 So.2d 682. Heat of blood or sudden passion is an act committed in response to such provocation as would deprive an average person of his self-control and cool reflection. State v. Charles, 00-1611 (La.App. 3 Cir. 5/9/01), 787 So.2d 516, writ denied, 01-1554 (La.4/19/02), 813 So.2d 420. In order to establish provocation, there must be some act or series of actions by Mr. Quinney that would be sufficient to deprive a reasonable person of cool reflection. Id. The adequacy of the provocation |2oand the amount of time in which a defendant’s blood should have cooled are primarily questions for the jury. State v. Ducksworth, 496 So.2d 624 (La.App. 1 Cir.1986); see also Bates, 683 So.2d 1370. Thus, the jury must have concluded either that there was insufficient provocation for the defendant to kill Mr. Quinney or that the defendant was not acting out of heat of blood or sudden passion.

A jury may rationally reject manslaughter in favor of the more severe crime of second degree murder if the victim bore defensive wounds and if the evidence showed that the defendant continued to stab his victim after the victim was incapacitated. State v. Jordan, 31,568 (La.App. 2 Cir. 2/24/99), 728 So.2d 954, writ denied, 99-893 (La.10/8/99), 750 So.2d 177; see also State v. Knowles, 598 So.2d 430 (La.App. 2 Cir.1992). Evidence of flight, concealment, and attempt to avoid apprehension indicates consciousness of guilt. State v. Hamilton, 99-523 (La.App. 3 Cir. 11/3/99), 747 So.2d 164 (citing State v. Davies, 350 So.2d 586, 588 (La.1977)). A defendant’s pursuit of his victim indicates that the defendant was not acting in the heat of blood or sudden passion. State v. Arabie, 496 So.2d 554 (La.App. 1 Cir.), writ denied, 502 So.2d 565 (La.1987). “Our law may extend some limited indulgence to passion justly excited, but it does not indulge revenge.” Id. at 558.

A review of the evidence presented at trial reveals that a rational trier of fact could have concluded that the defendant failed to establish the necessary mitigating factors by a preponderance of the evidence. The jurors, who were free to reject or accept, in whole or in part, the testimony of any witness, could have reasonably discounted the defendant’s self-serving testimony and believed that the victim was unarmed. Patorno, 822 So.2d 141. The jury may also have concluded that Mr. Quinney did not attempt to rob the defendant. Instead, the defendant attacked Mr. | ai Quinney because he did not want to pay for his illicit drug purchase. Thus, the jurors could have reasonably believed that the defendant had insufficient provocation for attacking Mr. Quin-ney.

Also, the defendant testified that he was afraid and acting from fear. The jurors could have reasonably found that the defendant’s fear was irreconcilable with his actions. The defendant averred that he pursued the fight by pulling the unarmed and retreating victim back into the altercation; the jury may have reasonably concluded that someone who was frightened to the point of panicking would have been more likely to allow his attacker to get away while escaping in the opposite direction. Thus, rational jurors could have concluded that the defendant failed to prove that he acted from fear or from heat of blood, sudden passion, or a loss of cool reflection.

Therefore, a rational trier of fact could have found that the defendant failed to establish by a preponderance of the evidence the presence of the mitigatory factors necessary for reducing his conviction from second degree murder to manslaughter.

ERRORS PATENT

In accordance with La. Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

CONCLUSION

The defendant’s conviction is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Tracey H. WESTFALL.
    No. 07-8.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      Mary Constance Hanes, Louisiana Appellate Project, Orleans, Louisiana, for Defendant/Appellant, Tracey H. Westfall.
    David W. Burton, District Attorney-Thirty-sixth Judicial District, ADA James R. Lestage, DeRidder, Louisiana, for Ap-pellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, OSWARD A. DECUIR, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

LOn January 19, 2006, Defendant, Tracey H. Westfall, was charged by bill of information with four counts of obtaining a controlled dangerous substance (CDS) by fraud, in violation of La.R.S. 40:971(B)(l)(b). On August 23, 2006, Defendant pled guilty to all four counts. Defendant was sentenced on October 26, 2006 to two and one-half years at hard labor on each count with the sentences to run concurrently. The trial court also imposed a $250.00 fine and court costs on each count. On November 2, 2006, Defendant filed a motion to reconsider sentence which was denied on the same day. On November 6, 2006, Defendant filed an appeal and is now before this court alleging that her sentence is excessive. We find Defendant’s sentence is not excessive.

FACTS

The following facts were adduced at Defendant’s plea hearing: During the months of September and October of 2005, Defendant fraudulently obtained Hydrocodone and Alprazolam (Xanax).

ASSIGNMENT OF ERROR

In her sole assignment of error, Defendant asserts that her sentence of two and one-half years on each count is excessive as applied to the particular circumstances of her case, which is the same assertion she made in her motion to reconsider sentence. As Defendant’s only assignment of error is that her sentence is excessive, we will evaluate her claim as a bare claim of excessiveness.

This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive [2sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

In order to decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

In this case, Defendant pled guilty to four counts of obtaining a CDS by fraud, in violation of La.R.S. 40:971(B)(l)(b). The sentence for obtaining a CDS by fraud is up to five years in jail, and up to a $5,000.00 fine. See La. R.S. 40:971(B)(2). Subsequent to pleading guilty to four counts of obtaining a CDS by fraud, Defendant |awas sentenced on each of the four counts to two and one-half years at hard labor and was ordered to pay a $250.00 fine as well as court costs, with the sentences on all four counts to run concurrently with each other. In imposing its sentence, the trial court reviewed Defendant’s criminal history, which included: a previous conviction for ten counts of obtaining a CDS by fraud on January 30, 2003; bank fraud on April 19, 2004; six counts of obtaining a CDS by fraud and one count of identity theft on April 5, 2006; and felony theft on June 19, 2006. In summarizing Defendant’s criminal history, the court stated, “[y]ou now have six separate felony convictions.... To my knowledge, you have not previously been incarcerated for any of your convictions, except perhaps for a short period following your arrest.” The trial court went on to comment, “I find that the aggravating conditions of your criminal history far outweigh the mitigating factors; and based on your criminal history, I do not find that you would be a good candidate for probation.” In this case, Defendant, a registered nurse with a history of this type of activity, wrote herself prescriptions for Hydrocodone and Alprazo-lam (Xanax), allegedly for depression.

We find that the sentence imposed by the court is supported by the record and is not excessive. See State v. Buckhalter, 480 So.2d 839 (La.App. 2 Cir.1985), in which the court affirmed a two-year sentence for attempting to obtain a CDS by fraud, holding the sentence was not excessive. In Buckhalter, at the conclusion of her trial, Defendant was sentenced to two years at hard labor, and the court noted that because of Defendant’s history of drug involvement, there would be an undue risk that she would commit a similar crime. Id.

It is noteworthy that Defendant’s sentence of two and one-half years is half of the maximum that she could have received under the statute. Based on the facts and |4circumstances presented in the record, we find that Defendant’s sentence was not excessive.

DISPOSITION

We find that the trial court did not err in sentencing Defendant to two and one-half years at hard labor on each count plus a $250.00 fine and court costs subsequent to her pleading guilty to four counts of obtaining a CDS by fraud, as said sentence is supported by the record. Consequently, Defendant’s sentence is affirmed in its entirety.

AFFIRMED.


author: PETERS, J.

text:
    Cevero GARCIA v. Cynthia KILLINGSWORTH, Assistant District Attorney, et al.
    No. 06-1504.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      Cevero Garcia, Angola, LA, in proper person.
    John F. Derosier, District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for Defendants/Appellees, Cynthia Killingsworth, Judge Charles Quienalty.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   PETERS, J.

|-i Cevero Garcia was convicted by a jury of two counts of aggravated rape and sentenced to life imprisonment on both counts on May 22, 1996. On February 17, 2006, Garcia filed the present civil suit to have his convictions declared null pursuant to the provisions of La.Code Civ.P. art.2004. He named as defendants Cynthia Hollings-worth, an assistant district attorney with the Calcasieu Parish District Attorney’s Office who prosecuted the case against Garcia, and now-retired Judge Charles Quienalty, who presided at Garcia’s jury trial and subsequently imposed sentence on him. The petition challenges the validity of Garcia’s criminal conviction and the fact of his confinement in prison based on allegations of fraud and ill practices on the part of the defendants. After the trial court dismissed the petition, Garcia perfected this appeal. We affirm the trial court’s dismissal of Garcia’s suit, but for reasons different from those expressed by the trial court.

DISCUSSION OF THE RECORD

Garcia’s 1996 convictions and sentences were affirmed by this court in an unpublished opinion. State v. Garcia, 96-1594 (La.App. 3 Cir. 12/10/97), 704 So.2d 990, writ denied, 98-108 (La.5/1/98), 805 So.2d 201. Accordingly, the judgment of his conviction and sentences is final. La.Code Crim.P. art. 922.

The petition now before us is a civil action, wherein Garcia asserts that his convictions are final judgments which may be annulled based on fraud and ill practices as provided for in La.Code Civ.P. art. 2004(A). As we appreciate Garcia’s petition, he asserts that the indictment charging him with the offenses was defective and the trial court allowed evidence not included on the face of the indictment. In | ^asserting the conspiratorial nature of the actions of Ms. Killingsworth and Judge Quienalty, Garcia stated the following in Paragraph 8 of his petition:

The prosecutor and the judge in this case knew or should have known that the ILL-PRACTICE that was performed, in executing an indictment that failed to contain any aggravating factors to constitute the crime and absent the mandatory elements, upon the petit jury would compromise judgement, verdict or sentence rendered upon facts not contained in the formal accusation or in the Bill Of Particulars, moreover, enforcement of the May 22d 1996 sentence of two lives without the benefit of parole or probation stands to be unconscionable and or inequitable.

The trial court dismissed Garcia’s suit on its own motion based on its interpretation of the Prison Litigation Reform Act, La.R.S. 15:1181, et seq. Garcia now appeals.

OPINION

In dismissing Garcia’s suit, the trial court applied La.R.S. 15:1181 and La.R.S. 15:1184(B), which authorize a court to dismiss any prisoner suit “if the court is satisfied that the action is frivolous, is malicious, fails to state a cause of action, seeks monetary relief from a defendant who is immune from such relief, or fails to state a claim upon which relief can be granted.” La.R.S. 15:1184(B). We agree that the petition fails to state a cause of action, but we reach that conclusion based on the provisions of the Louisiana Code of Civil Procedure, not the Prison Litigation Reform Act.

The present proceeding is not a civil action authorized under the Prison Litigation Reform Act. The Act defines “civil action with respect to prison conditions” or “prisoner’s suit” to mean any civil proceeding with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but it expressly does not apply to “post conviction ^relief or habeas corpus proceedings challenging the fact or duration of confinement in prison.” La. R.S. 15:1181(2). Mr. Garcia’s present civil action concerns neither the conditions of his confinement nor the effects of actions by the district attorney or judge on his life as a person confined in prison. Instead, his civil action concerns the fact or duration of his confinement in prison, matters that could only be the subject of post-conviction relief. Thus, Garcia is seeking post-conviction relief by means of his present civil petition. An application for post-conviction relief is “a petition filed by a person in custody after sentence following conviction for the commission of an offense seeking to have the conviction and sentence set aside.” La.Code Crim.P. art. 924(1). The statutory time limitations for filing an application for post-conviction relief as provided in La.Code.Crim.P. art. 980.8(A) have expired in Garcia’s case, and he apparently seeks to avoid this prescriptive ban on his action by attacking his sentences and convictions in a civil action.

The failure of a petition to disclose a cause of action may be noticed by either the trial court or the appellate court on its own motion. La.Code Civ.P. art. 927(B); Succession of Wilson v. Wilson, 446 So.2d 526 (La.App. 3 Cir.1984). In ruling on an exception of no cause of action, the court is limited to the face of the pleadings, and factual allegations in the petition must be accepted as true. Colquitt v. Claiborne Parish, Louisiana, 36,260 (La.App. 2 Cir. 8/14/02), 823 So.2d 1103. The allegations of Mr. Garcia’s petition with respect to the indictment, and the bill of particulars are matters that are properly addressed through post-conviction relief, not through a civil petition against the district attorney and judge to annul the judgment of conviction. Although the dismissal by the trial court under the Prison Litigation Reform Act was | technically inappropriate, the petition was properly dismissed because it failed to state a cause of action.

A case directly on point is McCoy v. City of Monroe, 32,521 (La.App. 2 Cir. 12/8/99), 747 So.2d 1234, writ denied, 00-1280 (La.3/30/01), 788 So.2d 441. In that civil action, the plaintiff claimed that his criminal conviction was an absolute nullity under La.Code Civ.P. arts.2001-2006. The court held that the procedural articles dealing with the nullity of a civil judgment had no application to the plaintiffs attack on his criminal conviction and sentence. We agree with the second circuit’s ruling in McCoy and hold likewise that Garcia’s petition does not state a cause of action that would entitle him to release from incarceration.

When a petition fails to state a cause of action, the plaintiff is allowed to amend his demand if the grounds of the objection can be removed by amendment. La.Code Civ.P. art. 934. However, where the grounds for the objection cannot be removed by amendment, the court is not required to allow the pleadings to be amended. Id.; Richardson v. Home Depot USA 00-393 (La.App. 1 Cir. 3/28/01), 808 So.2d 544. No amendment by plaintiff could possibly cure the deficiencies in his demands. The dismissal with prejudice was proper.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment dismissing Cevero Garcia’s suit against the defendants, Cynthia Killingsworth and Judge Charles Quienalty. We assess all costs of this appeal to Cevero Garcia.

AFFIRMED.

      . Although Garcia names Ms. Killingsworth and Judge Quienalty as the only defendants, the only relief he seeks is nullification of the judgment of conviction.

      . When judgment is rendered against a party who has been allowed to litigate without the payment of costs, the party "shall be condemned to pay the costs incurred by him ... and those recoverable by the adverse party.” La.Code. Civ. P. art. 5188.


text:
    Janet Dunn MALBROUGH v. W. Marvin DUNN.
    No. 07-20.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      Henry B. King, Jr., Baton Rouge, LA, for Defendant/Appellant, W. Marvin Dunn.
    Janet Dunn Malbrough, Opelousas, LA, for Plaintiff/Appellee, Janet Dunn Malb-rough.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

liThe defendant appeals the trial court’s denial of his motion for new trial. He argues that the trial court did not have the jurisdiction to enforce a child support order rendered in a different trial court without registering it. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that the plaintiff, Janet Dunn Malbrough, and the defendant, W. Marvin Dunn, were married, and four minor children were born of this union. A petition for divorce was filed and granted in the Family Court of East Baton Rouge Parish, Louisiana. By consent decree, the parties stipulated that Dunn would pay child support in the amount of $850.00 per month beginning on March 3,1997.

On October 11, 2005, Malbrough filed a rule to show cause in St. Landry Parish, in which she asserted that Dunn “was served with a petition to register and make the Judgment rendered in East Baton Rouge [Pjarish, executory in St. Landry [P]arish[.]” Malbrough alleged that although Dunn objected to the service of the petition, he did not object to “making the Judgment executory in St. Landry [P]arish[.]” She further alleged that “all delays have lapsed.” According to Malbrough, as of July 6, 2005, Dunn owed child support arrearage in the amount of $33,250.00. She requested that the arrears be made executory and that Dunn be found in contempt of court and incarcerated for his failure to make child support payments.

According to the record, the parties met on October 24, 2005 for an intake conference in which the hearing officer determined that Dunn was in arrears for “35,-800.00 from September [] 2003 through October [ ] 2005.” A hearing was subsequently held, and on April 10, 2006, the trial court held Dunn in contempt for his failure to pay $35,850.00 in child support arrearage. He was sentenced to sixty |2days incarceration, ten days without the benefit of work release. On April 12, 2006, Malbrough filed another rule to show cause, alleging that after making a $5,000.00 payment towards the arrearage, Dunn failed to make any further child support payments. She requested that Dunn be found in contempt and immediately incarcerated.

Dunn responded by filing an exception of lis pendens and an exception of lack of jurisdiction, alleging that “the Parish of East Baton Rouge has continuing, exclusive jurisdiction in these proceedings.” Following a hearing, the exceptions were denied. Dunn thereafter filed a motion for new trial and/or to alter or amend judgment, in which he contended that because St. Landry Parish “has not issued an order confirming the registration of the support order for enforcement!,]” the trial court judgment finding that he owed $35,850.00 in child support arrearage is null and void.

A hearing was held on September 8, 2006, in which the trial court denied Dunn’s motion for new trial as being untimely filed. Dunn now appeals, arguing that the trial court- “is in error by usurping jurisdiction over a matter then pending in the Family Court of East Baton Rouge, wherein the judgment rendered by the Family Court in East Baton Rouge was never registered or confirmed.”

Discussion

In his sole assignment of error, Dunn argues that because the trial court did not have subject matter jurisdiction over these proceedings, its April 10, 2006 judgment is void. Thus, it would appear that Dunn is appealing the merits of the denial of his exception of lis pendens. However, the judgment on which Dunn sought review was pthe denial of the motion for new trial. We turn to the consideration of the trial court’s determination that it was untimely.

At the motion hearing, the trial court noted that the clerk mailed the notice of judgment on June 20, 2006. Dunn’s attorney explained that he fax filed the motion for new trial to the Clerk of Court’s Office on June 28, 2006, within the applicable time period. At that point, the trial court asked him when the costs were paid, to which Dunn’s attorney answered that he did not “have that information.” After perusing through some documents, the trial court discovered “a document dated 6-29-06, receipt number 19501, Motion and Order for New Trial and/or Alternatively Amend Judgment with [S]ervice[.]” According to that document, the costs were received on August 2, 2006.

The trial court explained what when “fax fihng[,] you have five days from the date of the fax fifing in which to submit all payments in order for the fifing to be effective.” In denying the motion as being untimely filed, the trial court explained that “[tjhere was a fax fifing on June 29th; however, the payment of the fees and funds were not made until August 2nd, more than the time allowed by statute.”

Louisiana Revised Statutes 13:850 provides in pertinent part:

A. Any paper in a civil action may be filed with the court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions. Fifing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court. The facsimile when filed has the same force and effect as the original.
B. Within five days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing, the document shall forward the following to the clerk:
(1) The original signed document.
|4(2) The applicable fifing fee, if any.
(3) A transmission fee of five dollars.
C. If the party fails to comply with the requirements of Subsection B, the facsimile filing shall have no force or effect. The various district courts may provide by court rule for other matters related to filings by facsimile transmission.

(Emphasis added.)

After reviewing the record, we find no error in the trial court’s denial of Dunn’s motion for new trial as untimely filed. Louisiana Code of Civil Procedure Article 1974 provides: “The delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.”

Furthermore, pursuant to La.R.S. 13:850, the filing fees must be paid within five days, exclusive of legal holidays, after the clerk of court has received the transmission. Recall that Dunn alleged that he fax filed on June 28, 2006. The trial court found that the record showed that the filing fees were not received until August 2, 2006. Accordingly, the trial court held the filing untimely under La.R.S. 13:850. Dunn has not shown that this finding was erroneous.

This assignment is without merit.

DECREE

For the above reasons, the judgment of the trial court denying the defendant’s motion for new trial is affirmed. All costs of these proceedings are assessed against the defendant, W. Marvin Dunn.

AFFIRMED.

      . We note that an appeal from this judgment alone is untimely.


author: COOKS, Judge.

text:
    Alma HARDY, et al. v. HORACE MANN INSURANCE COMPANY, et al.
    No. 06-1428.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.
    Byron O’Neal, O’Neal Law Firm, Alexandria, LA, for Plaintiffs/Appellees, Alma Hardy, et al.

      Daniel G. Brenner, Christina S. Slay, Bolen, Parker & Brenner, LTD, Alexandria, LA, for Defendants/Appellants, Horace Mann Insurance Company Esaw Owens and Esaw Owens, Jr.
    Court composed of SYLVIA R. COOKS, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

| .¿STATEMENT OF THE CASE

This case arises out of an automobile accident between Alma Hardy and Esaw Owens. Mrs. Hardy and her husband, Chauncey Hardy, filed suit against Mr. Owens and his insurer, Allstate Insurance Company and Horace Mann Insurance Company (Horace Mann), the excess carrier. Trial was held in the Alexandria City Court. The trial court awarded $37,000 in general damages to Mrs. Hardy, which was reduced to the jurisdictional amount of $35,000, and $5,000 to Mr. Hardy for loss of consortium. Allstate paid its policy limits of $10,000 and Horace Mann tendered $25,000. Horace Mann now appeals the award of $5,000 to Mr. Hardy, asserting the loss of consortium claim is a derivative claim, not the separate claim of Mr. Hardy, and should be included in the jurisdictional amount. The sole issue for our review is whether the city court judge exceeded its jurisdictional authority by awarding an additional $5,000 to Mr. Hardy for loss of consortium.

LAW AND DISCUSSION

The jurisdictional limit of the City Court of Alexandria is provided for in La.Code Civ.P. art. 4843(K) which provides, in relevant part:

“In the City Court of Alexandria, the civil jurisdiction is concurrent with the district court in cases where the amount in dispute, or the value of the property involved, does not exceed thirty-five thousand dollars.”

Horace Mann contends the loss of consortium claim is not the separate claim of Mr. Hardy, rather it is derivative of Mrs. Hardy’s primary claim for personal injuries and is intended to be included in the jurisdictional limit. In support of this position, Horace Mann relies on cases holding a loss of consortium claim is included in the per person limit in insurance policies (See Ferrell v. Fireman’s Fund Ins. Co., 396-3028 (La.7/1/97), 696 So.2d 569); Shepard v. State Farm Mut. Auto. Ins., 545 So.2d 624 (La.App. 4 Cir.1989), writ denied, 550 So.2d 627 (La.1989) and included in the limitation on recovery provisions of the Medical Malpractice Act (See Williams v. Enriquez, 40,305 (La.App. 2 Cir. 11/17/05), 915 So.2d 434). However, these cases are interpreting the special provisions unique to insurance contracts and to the MMA, and are not necessarily controlling on the issue of the jurisdictional limitations of city courts.

In Book v. State Farm Mutual Automobile Insurance Company., 02-1348 (La.App. 3 Cir. 4/2/03), 843 So.2d 515, the issue presented was whether a consortium award in excess of the $50,000 limit for a jury trial was permissible. The trial court awarded general and special damages to Mr. Book in the amount of $55,439, which amount was reduced to $50,000. The trial court then awarded Mrs. Book $5,000 for loss of consortium. State Farm appealed, asserting the loss of consortium claim exceeded the limit for denial of jury trial contained in La.Code Civ.P. art. 1732. This court noted La.Code Civ.P. art. 1782(1) provides a jury trial is not available in cases “where the amount of no individual petitioner’s cause of action exceeds fifty thousand dollars.” The court characterized Mrs. Book’s loss of consortium claim as her “individual ... cause of action,” apart from her husband’s claim, and held since neither party’s claim exceeded $50,000, a jury trial was not available.

Horace Mann contends the rationale in Book with regard to a jury trial should not be applied here because La.Code Civ.P. art 1732(1) focuses on an “individual petitioner’s cause of action” while La.Code Civ.P. art. 4843(E) refers to “amount in dispute.” Horace Mann argues awarding an additional $5,000 for loss of consortium raises the total “amount in dispute” above the jurisdictional limit. It is undisputed if Mr. and Mrs. Hardy had each suffered general damages below the jurisdictional I ¿amount, they would be entitled to bring their cause of action in city court and both would be entitled to recover the full amount of general damages up to $35,000. Horace Mann’s argument with regard to the “amount in dispute” can only succeed if we do not characterize a loss of consortium claim as a separate and distinct claim belonging to Mr. Hardy. Rather, Horace Mann’s theory requires us to treat Mr. Hardy’s claim as part of the total recovery of Mrs. Hardy. We do not believe La. Code Civ.P. art. 4843(E) expressly mandates that in determining the “amount in dispute,” we are compelled to treat Mr. and Mrs. Hardy’s claim as one. We agree with the rationale of the court in Book, characterizing a claim for loss of consortium as a separate and distinct claim for purposes of determining the right to a jury trial. By analogy, then, it follows that a claim for loss of consortium is not added to the primary victim’s claim in determining if the damage award is within the jurisdictional amount in city court. In fact, a panel of this court recently reached that conclusion in an identical situation involving the Alexandria City Court.

In Bailey v. AJG Insurance, et al., an unpublished opinion bearing docket number 06-0924 (La.App. 3 Cir. 12/6/06), 943 So.2d 1278, this court held the loss of consortium claim is separate and distinct from that of the primary claimant and is not included in the jurisdictional amount. This court looked for guidance in Landry v. Avondale Industries, Inc., 03-719, 03-993, 03-1002, (La.12/3/03), 864 So.2d 117. In Landry, the supreme court distinguished those cases interpreting insurance policies, cited by Horace Mann, and characterized a claim for loss of consortium as a separate and distinct claim apart from the primary victim’s. The supreme court stated:

In Ferrell, we were interpreting the single person policy limits of an insurance policy and held that, because the loss of consortium claim |fiwas “derivative of the primary victim’s injury,” it was restricted to the single person policy limits of the defendant’s policy. As one commentator has aptly explained, “this limitation to the single person policy limits occurs because of the construction the courts have given the relevant liability insurance policy provisions, not because the derivative nature of the loss of consortium claim makes it merely a part of a single claim or cause of action (i.e., the primary victims’s).” Crawford, Developments in the Law 1993-1991, supra at 658. As further explained: The claim for loss of consortium is almost indistinguishable from the claim for wrongful death in that both causes of action are dependent on a primary tort to another person. Nonetheless, both claims are, beyond question, causes of action separate from any claim of the primary victim. The loss of consortium and wrongful death claims are thus derivative only in the sense that the damages suffered by these claimants flow from their relationship with the primary tort victim. Neither claim, however, is the assertion of the primary victim’s cause of action itself, as in the case with a survival action.
Id. We agree with Professor Crawford’s conclusion that loss of consortium claims are derivative “only in the sense that the damages suffered by these claimants flow from their relationship with the primary tort victim.” However, this does not mean that the loss of consortium claim is governed by the status of the primary victim’s claim. A loss of consortium claim, like a wrongful death claim, clearly compensates the beneficiaries for their own injuries, separate and distinct from the victim’s injuries. Both are unlike a survival action, which we stated in Taylor v. Giddens, “comes into existence simultaneously with the existence of the tort and is transmitted to beneficiaries upon the victim’s death and permits recovery only for the damages suffered by the victim from the time of injury to the moment of death. It is in the nature of a succession right.” 618 So.2d 834 [, 840] (La.1993).

Landry, 864 So.2d at 125-26.

We find an award for loss of consortium is a separate and distinct claim from the primary victim’s claim. The trial court did not exceed its jurisdictional authority in awarding $35,000 in general damages to Mrs. Hardy and $5,000 for loss of consortium to Mr. Hardy. Therefore, we affirm the decision of the trial court.

RDECREE

Based on the foregoing review of the record, we affirm the decision of the trial court. All costs of this appeal are assessed to Horace Mann Insurance Company.

AFFIRMED.

      . La.Code Civ.P. art. 4843 has since been amended by 2006 La.Acts. No. 365, § 1. This amendment does not affect the disposition of this case.

      . In Feireil, the supreme court concluded the loss of consortium claim of the wife was derivative of her husband’s claim for damages and is included in the per person bodily injury limits of the insurance policy.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. John MONK, Appellant.
    No. 42,067-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 2, 2007.

      James D. Sparks, Jr., Monroe, for Appellant.
    Jerry L. Jones, District Attorney, George Daniel Ross, Assistant District Attorney, for Appellee.
    Before STEWART, DREW and LOLLEY, JJ.
   DREW, J.

It John Monk was indicted for manslaughter, but pled guilty to negligent homicide. The trial court sentenced defendant to five years at hard labor with credit for time served. The defendant now seeks review of his sentence. We affirm.

FACTS

On the evening of October 21, 2003, a senseless barroom brawl broke out in the Library Lounge in Monroe. The fight then spilled outside to the parking lot. After the initial violence ended, David Pearson, Jeff Bradford, and Jamie Han-kins began walking to Hankins’ residence at the nearby University Trailer Park. As this group was crossing King Street, a pickup truck (driven by the defendant) pulled out of the bar parking lot at a high rate of speed onto Desiard Street. The truck turned onto King Street where it ran over Pearson and clipped Bradford. Monk never stopped nor applied his brakes. Pearson, a 23-year-old father of two, died two days later from head trauma sustained in the collision.

The defendant pled guilty to negligent homicide pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), stating that it was in his best interest to plead guilty, thereby reducing his sentencing exposure from 40 years at hard labor to five years at hard labor. Through counsel, defendant admitted that he was driving the truck that ran over David Pearson, but denied that he had any intent to injure the victim or that he acted with criminal negligence. After ordering a |2presentencing investigation, the trial court sentenced defendant to the maximum five years at hard labor.

DISCUSSION

The defendant argues that:

• his five-year sentence is constitutionally excessive;
• the trial court erred in denying his motions to reconsider sentence;
• the court erred in sentencing him to the maximum penalty because he is not the most egregious of offenders, because this was his first felony conviction, and because he has a good background;
• the trial court did not comply with sentencing guidelines of La. C. Cr. P. art. 894.1 in that it did not state all the specific grounds upon which it relied in imposing sentence;
• the trial court’s reliance upon his past misdemeanor convictions and arrests to impose the maximum sentence violated the holdings in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); and
• he takes issue with the factual assertions made in the state’s brief and with the trial court’s per curiam and amended per curiam opinions.

The state responds that:

• the sentence was not excessive under the circumstances of this sad case;
• the victim was 23 years old at the time of his death, leaving behind a wife and two young sons;
• the victim suffered for 36 hours after the accident before dying;
• the defendant was driving very fast out of the parking lot;
• some witnesses believe the defendant ran over the victim in retaliation because the victim had previously been fighting with the defendant’s cousin;
• the defendant reacted violently when arrested for another parking lot fight that occurred a few months prior to the present offense; and
|3* the defendant received substantial leniency when he pled guilty to the lesser charge of negligent homicide.

Our law on sentencing is well settled.

At the sentencing hearing, the parents of the victim expressed to the court how their son’s death had adversely affected their lives. The defendant also gave a statement expressing sorrow “... that David lost his 14Iife as a result of this.” He referred to biblical scripture in asking that Pearson’s family forgive him.

The trial court stated that:

• it had considered the presentence investigation report and the many letters written in support of and against the defendant;
• some of the correspondence expressed concern that the defendant had not shown remorse for his actions;
• it had found a factual basis for the offense of negligent homicide based upon the recitation of facts made by the state;
• it considered the reduction of charge from manslaughter to negligent homicide as taking into account “any facilitation of the commission of the offense in this situation by the victim;”
• the defendant had previously pleaded guilty to resisting arrest and disturbing the peace;
• only months before this incident, defendant had been arrested for trespassing, simple assault on an officer, resisting by violence, and fraudulent use of a license;
• the defendant began consuming alcohol at age 16;
• the defendant was in need of correctional treatment in a custodial environment;
• the defendant’s conduct created a risk of death or great bodily harm to more than one person, as defendant also struck another individual at the same time he ran over the victim;
Is* defendant may have committed this offense while concealing the commission of another offense because he was trying to leave the scene of a fight before the police arrived; and
• it found the defendant’s conduct to be criminally negligent because he should not have contemplated leaving a parking lot under those circumstances at such a high rate of speed.

In the per curiam opinion and amended per curiam opinion later filed by the trial court, it further explained that there was conflicting evidence regarding whether defendant’s actions were intentional, criminally negligent, or accidental. The trial court further stated that:

• while the victim may have been involved in the fight at the bar, the victim did not facilitate the crime of negligent homicide or cause the defendant to run over him;
• it was plausible that defendant intentionally ran over the victim in retaliation for injuring his cousin during the brawl; and
• it considered the harm done to the victim’s widow and children by removing his emotional and other support from their lives.

In short, a thorough review of the record indicates that the trial court was fully cognizant of the sentencing considerations of La. C. Cr. P. art. 894.1.

Imposing the maximum sentence in this particular case was not constitutionally excessive in this case, in spite of this being defendant’s first felony. A substantial advantage obtained by means of a plea bargain is a legitimate consideration in sentencing. State v. Ross, 35,552 (La.App.2d Cir.2/27/02), 811 So.2d 176. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea | (¡bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. This particular defendant, in fact, could be the most egregious of offenders in regard to the crime of negligent homicide, considering the fact that he made the conscious decision not to stop and render assistance after injuring someone out of criminal negligence, at best, or intentionally out of revenge, at worst. The presen-tence investigation report chillingly reveals that defendant’s cousin gave a statement that he was with defendant when he ran over Pearson and that the defendant refused to stop because he was afraid of losing a college scholarship if he got into trouble.

In regard to the trial court’s alleged failure to consider defendant’s good background, the presentence investigation revealed that this young defendant had previously been arrested for and convicted of various misdemeanor offenses wherein he behaved violently. Defendant argues that the trial court’s reliance upon his past misdemeanor convictions and arrests to impose the maximum sentence violated the holding in Apprendi supra, alleging that this case stands for the proposition that only felony convictions may be used to enhance a sentence. The defendant misstates the holding of Apprendi and, therefore, his rebanee upon it is misplaced. In Apprendi supra, the United States Supreme Court stated that any facts, with the exception of prior felony convictions, used to enhance a sentence beyond the statutory maximum for the convicted offense must be proved beyond a | Treasonable doubt to the jury. The Court in Apprendi did not state that only felony convictions may be considered at sentencing, and the trial court did not sentence defendant beyond the statutory maximum for his conviction.

The defendant argues that considering a misdemeanor offense or arrest as a reason to enhance the sentence for a later conviction constitutes multiple punishment for the misdemeanor offense and, therefore, violates the holding in Blakely, supra. In Blakely, supra, the Court reiterated its earher holding in Apprendi supra, by again stating that any fact used to sentence the defendant above the statutory maximum for that offense must be proved to the jury beyond a reasonable doubt. The Court did not prohibit the consideration of past criminal offenses, whether misdemeanors or felonies, when fashioning a sentence within the prescribed statutory range for that offense.

Further, this defendant was not convicted at trial. He voluntarily entered a plea with a statutory cap of five years-a vastly reduced exposure as compared with the crime of indictment, manslaughter. Therefore, the holdings in Apprendi supra, and Blakely, supra, are inapplicable to the present case.

The trial court properly considered defendant’s prior misdemeanor convictions and arrests as part of his criminal history at sentencing. After all, that is a prime purpose of the PSI.

Defendant complains that the trial court did not comply with the sentencing guidelines of La. C. Cr. P. art. 894.1 in that it did not state all the specific grounds upon which it relied in imposing sentence. This is an | ^allegation without merit, as the trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered, as here, the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The record clearly indicates that the trial court adequately considered those guidelines.

The defendant implies that the victim was responsible for his own death by chasing the truck out of the parking lot, asserting that the victim could not have otherwise gotten in front of the defendant’s vehicle.

In its amended per curiam, the trial court stated that,

[t]he Record indicates Appellant and his companions departed in great haste from the parking lot and it defies logic that persons on foot, including the decedent, were able to not only to keep up with but to overtake and get in front of Appellant’s vehicle over the distance covered thereby “facilitating” running over them.

The sentence of five years for negligent homicide is not grossly disproportionate to the seriousness of the offense, nor does it constitute needless infliction of pain and suffering. The defendant recklessly drove out of a parking lot onto a street at a high rate of speed and ran over the victim, refusing to stop and render aid for fear of losing his college scholarship. This sentence does not shock the sense of justice. The trial court clearly did not abuse its discretion, and the sentence is not constitutionally excessive. Further, because the sentence was tailored to fit the defendant and the offense, the trial court did not abuse its discretion by denying defendant’s motions for reconsideration of sentence. State v. Nugent, 41,070 (La.App.2d Cir.08/23/06), 938 So.2d 1188; State v. Small, 40,998 (La.App.2d Cir.06/28/06), 935 So.2d 285.

DECREE

The conviction and sentence are AFFIRMED.

      . Over what brand of beer was due the winner of a game of pool.

      . In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,-767 (La.App.2d Cir.06/24/98), 715 So.2d 641. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728.
      Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985).
      There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.03/01/00), 754 So.2d 392, writ denied, 2000-1467 (La.02/02/01), 783 So.2d 385. The trial court shall exercise its sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829 (La.1981). The trial court has broad discretion to sentence within the statutory limits, and the appellate court will not set aside a sentence as excessive absent a showing of manifest abuse of discretion. State v. Hardy, 39,233 (La.App.2d Cir.01/26/05), 892 So.2d 710.
      In selecting a proper sentence for a criminal defendant, a trial judge is not limited to considering only prior convictions and may review all evidence of prior criminal activity. State v. Cooks, 36,613 (La.App.2d Cir. 12/04/02), 833 So.2d 1034. When evaluating a defendant's criminal history, trial courts may consider evidence at sentencing that would otherwise be inadmissible at trial. State v. Myles, 94-0217 (La.06/03/94), 638 So.2d 218. For example, the trial court may consider records of prior arrests, hearsay evidence of suspected criminal activity, conviction records, and evidence of uncharged offenses or offenses that were nolle prossed. State v. Anderson, 30,060 (La.App.2d Cir. 10/29/97), 702 So.2d 40; State v. Emerson, 31,408 (La.App.2d Cir.12/09/98), 722 So.2d 373, writ denied, 99-1518 (La.10/15/99), 748 So.2d 470; State v. Myles, supra. Conversely, a defendant has the "due process right to rebut prejudicially false or misleading information” that could adversely affect his sentence. State v. Myles, supra.

      . In a later per curiam opinion filed by the trial court, it clarified that it did not believe that the victim had facilitated the negligent homicide, but was instead referring to the evidence that the victim had been involved in a fight before the collision.

      . In the previous matter, the defendant was in a confrontation with police in a bar parking lot while they were trying to clear a blocked roadway in front of the bar. The defendant yelled profanities at the police. When he started to walk away, the officer grabbed his arm, at which point the defendant jerked away, spun around, drew back his fist, had to be restrained, and continued to resist violently during the course of his arrest.

      . The PSI further reflects that defendant was expelled from one high school for usage of marijuana.

      . Some of the victim’s immediate family members apparently still think this is a possibility, as reflected by their heartfelt and tortured correspondence with the trial court.

      . Not quite 19 years old as of the date of the crime.