author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Charles EDWARDS, Jr.
    No. KA 2007-1058.
    Court of Appeal of Louisiana, Third Circuit.
    March 12, 2008.

      Van Hardin Kyzar District Attorney Natchitoches, LA for Plaintiff State of Louisiana.
    Annette Fuller Roach Louisiana Appellate Project Lake Charles, LA for Defendant Charles Edwards, Jr.
    Billy Joseph Harrington Assistant District Attorney Natchitoches, LA for Plaintiff State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and GLENN B. GREMILLION, Judges.
   SAUNDERS, Judge.

h Charles Edward, Jr., was indicted on August 30, 2006, for second degree murder, a violation of La.R.S. 14:30.1. A jury trial commenced on February 5, 2007. However, on February 6, 2007, Defendant pled guilty to the amended offense of manslaughter, a violation of La.R.S. 14:31. The trial court ordered a pre-sentence investigation report, and following a hearing held on May 21, 2007, sentenced Defendant to thirty years imprisonment at hard labor. Defendant filed a “Motion to Reconsider Sentence,” which was heard on July 11, 2007, and denied in open court.

Defendant has perfected a timely appeal. He asserts the trial court failed to take adequate consideration of mitigating factors and that the sentence is constitutionally excessive under the circumstances of this case.

For the following reasons, we affirm Defendant’s sentence of thirty years at hard labor.

FACTS:

Because Defendant pled guilty to the crime of manslaughter, the facts are as were given to establish a basis for the offense:

On July 16, 2006 the defendant was at a club in Natchitoches, Illuminations. He was with an individual named Harvey Williams. There was an altercation involving Mr. Williams and Mr. Ronnie Brimsey who was the victim in this matter. The altercation was broken up. Mr. Williams was taken out the back door by security officers. Mr. Brimsey was taken out the front door. Once outside.... Mr. Edwards had already gone outside. Mr. Edwards obtained a gun, a five shot .38 caliber revolver. He approached the victim, Ronnie Brimsey and shot at Mr. Brimsey five times with two of the bullets striking Mr. Brimsey who later died at the Natchitoches Parish Hospital.

ERRORS PATENT:

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

^ASSIGNMENT OF ERROR NUMBER 1:

Defendant argues that the trial court did not give proper consideration to the mitigating factors when fashioning the sentence for Defendant: “Specifically the prior altercations between the two men, appellant’s work history, and his children.”

Several witnesses testified on Defendant’s behalf at the sentencing hearing.

Jacob Nash, a longtime friend of Defendant, testified he was with Defendant on the night of the shooting at Club Illumination. He stated that he and Defendant arrived at the club about 11:00 p.m. He parked behind the club and stayed in his vehicle while Defendant went inside. Shortly thereafter, Defendant came out of the club and asked Nash to walk around in front of the club with him.' Nash testified that Defendant said something about “somebody gonna get beat up.” He stated he had a gun in his possession, a “.38 special,” and that he gave the gun to Defendant. As they walked around the corner of the club, Nash testified that he saw the victim take a gun out of his car. At this point, Defendant pulled the gun out of his pocket and shot the victim. He testified he did not give the police a statement the night of the incident because everyone was told to leave the scene. He further testified he had not come forward with this information prior to the sentencing hearing because he had prior convictions and he was not supposed to be in possession of a firearm.

Nash described an incident that happened about a month earlier when he and Defendant had just driven up to a convenience store, Shop-Rite, and the victim drove into the parking lot behind them. The victim got an AK47 machine gun out of the trunk of his car, got back into his car, and stared at them for a while with the machine gun across his lap. He characterized Defendant as being fearful of the victim.

pKerlina Watson, Defendant’s fiancee, testified she was not at the club that night, but told about an incident when she was outside of her home and the victim drove past waving a gun. She stated that she was aware of animosity between Defendant and the victim.

Kenneth Ratliff, a lifelong friend of Defendant, said he was with Defendant and Nash when the victim showed up at Shop-Rite and stared them down with a machine gun on his lap. He stated Defendant was not the type to back down if someone “messed” with him.

Finally, Thomas Stoker, a private investigator hired by Defendant’s family, testified that although no one would say it outright, the word on the street was if anyone tried to help Defendant in this matter, they would be hurt. He stated he had heard that the two men were antagonistic, that the victim was known for always carrying a gun and Defendant was known for not ever carrying a gun.

The State put Stan Williams, a detective with the Natchitoches City Police Department, on the stand. He was the lead investigator in this case. According to the detective, there was no gun found on or around the victim, or in his vehicle. He recounted statements made by two eyewitnesses, one was the girl who had been with the victim at the club, and the other a witness who was standing close to the victim and could see him clearly. Both eyewitnesses had stated that the victim did not have a gun when Defendant shot him. The detective said he had told several people, including Defendant’s mother, that if there was anyone who had knowledge that the victim had a gun, he would be glad to go and talk to them.

Finally, Jeannetta Brimsey, the victim’s sister, testified. She said she was sitting in the back of the club with her boyfriend the night her brother was shot. She Rstated she saw Defendant come out of the back door of the club and go to Nash’s car and get a gun. The two men then walked around to the front of the club. She said there were shots, and Defendant ran into the bushes, where eventually the police found him. She told of an incident a few years prior to the night at the club when Defendant and Kenneth Ratliff were involved in a shootout with the victim. She admitted she never made a statement to the police regarding what she saw because no one asked her.

The trial judge then gave her ruling. She stated that she had reviewed the pre-sentence investigation report and made the report, along with the police reports and statements of several witnesses, a part of the record. She noted there was testimony the victim had a gun and there was testimony the victim did not have a gun. However, she was dubious as to Nash’s testimony because Nash waited for so long to come forward with the information. She noted that Defendant was initially charged with second degree murder, but had the benefit of pleading to a lesser offense which could result in a much reduced sentence. She noted it was a crime of violence committed with the use of a dangerous weapon, and that it was Defendant’s second conviction for a violent crime. Defendant had deliberately sought out a weapon, indicating a plan. Further, Defendant fired five shots into an area where there were other people close around, thereby putting others at serious risk. She then sentenced Defendant to thirty years at hard labor.

Defendant asserts the trial court failed to take into consideration several mitigating factors including that Defendant, a youthful offender, had lived a law-abiding life for a substantial period of time prior to the shooting, that he accepted responsibility for his act by pleading guilty, that he was gainfully employed, and that |Bhe had children. Thus, the sentence made no meaningful contribution to acceptable penal goals.

Defendant filed a motion to reconsider the sentence and a hearing was held on the motion. At the hearing, Defendant’s mother, Virgie Sue Green, testified that Defendant, who was twenty-four at the time of the hearing, had dropped out of high school because he was bullied every day. She said that about six months before the shooting, the victim had “come to my house and I got a twelve year old, and pulled a gun on him and twelve others lifting weights on my front porch.” Explaining Defendant’s prior conviction for second degree battery, she stated that “[a] boy had pulled a gun on him, he hit him and ran.” Defendant was convicted of the battery because the boy’s mother had called and said that she was dropping the charge, so they did not go to court and the conviction was entered against Defendant in his absence. She further testified that Defendant had a steady employment history. He had worked at Pilgrim’s Pride, but he was allergic to the chemicals — “He has sensitive skin” — and Wal-Mart, “until his baby mom, like I said before put two his tires on flat twice.” She further stated after his job at Wal-Mart terminated, he did not work, but helped to take care of his ill grandmother.

The trial court denied Defendant’s motion to reconsider the sentence, stating that she did consider there was animosity between the two men, the fact that he was someone’s child, and a father, and “I actually went over the entire list of the sentencing guidelines and carefully considered them.” The trial court went on to say:

Our civilization does not allow us to resolve these kinds of disputes by pulling a gun out of your belt and shooting somebody. That’s simply not allowed. We can’t do that. Even if you’re afraid of that person or whatever but there was [n]o imminent danger to this man in this particular case. There was no imminent danger to Mr. Edwards at that point under any of the facts situations that anybody has described to this | ficourt at any of these hearings. He could have gone back into his car and gone home. I have considered the fact that he was worked. I’m not clear that his work history was as solid as you have indicated today. But that still can’t be the decisive point. The decisive point is that he killed a man.

The trial court does not have to list each and every factor set forth in La.Code Crim.P. art. 894.1. However, the record before this court must indicate that the trial court took adequate notice of both aggravating and mitigating factors set forth in Article 894.1. State v. Morrison, 99-1342 (La.App. 3 Cir. 3/1/00), 758 So.2d 283. We find that the record before this court shows the trial court took adequate consideration of the sentencing guidelines when it considered a sentence appropriate to the case before it.

ASSIGNMENT OF ERROR NUMBER 2:

Defendant argues that not only did the trial court not give adequate weight to the mitigating factor in this case, but it placed too much emphasis on the aggravating factors, particularly that the offense involved a killing. Defendant asserts the facts of the case support a sentence in the low to mid-range, rather than a sentence in the upper tier of the maximum sentence allowed by law. Defendant argues his sentence is constitutionally excessive under the circumstances of his case.

Louisiana Revised Statutes 14:31, provides for a range of imprisonment of up to forty years. Defendant was sentenced to thirty years imprisonment.

This court has set forth the standard for reviewing a sentence for exces-siveness:

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “[T]he exces-siveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within |7statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[mjaximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. 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. Whatley, 03-1275 (La.App. 3 Cir. 3/3/04), 867 So.2d 955 (alteration in original).

Moreover, “[w]here 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. Pugh, 40,287, p. 2 (La.App. 2 Cir. 11/2/05), 914 So.2d 1183, 1185. Finally, three factors may be considered when reviewing a trial court’s sentencing discretion: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Jones, 05-735 (La.App. 5 Cir. 2/27/06), 924 So.2d 1113, writ denied, 04-151 (La.10/26/07), 966 So.2d 567.

Defendant was initially charged with second degree murder, which is the intentional killing of another human being, or the intentional infliction of great bodily harm which results in death. On the morning of trial, Defendant pled guilty to the amended offense of manslaughter. In support of a lesser sentence than the sentence imposed by the trial court, Defendant argues he had been fearful of the victim because the victim routinely carried a gun and routinely threatened him. However, we note that at the guilty plea hearing, the facts given to the court to act as a basis for the | sguilty plea indicated that on the night the victim was shot, the confrontation was not between Defendant and the victim, but a Harvey Williams and the victim.

While it is true, as suggested in Defendant’s brief, that the range of punishment for the offense of manslaughter takes into consideration that a death occurred, we find that the offense to which Defendant plead guilty does not adequately describe his conduct. There was no testimony at the sentencing hearing that Defendant had been harassed by the victim the night of the shooting. In fact, the basis for the plea was that when the victim was taken out the front door after a confrontation with another person, Defendant left out the back door of the club, asked for a gun, put it into his pocket, and walked around the building to where he knew the victim would be. At the guilty plea hearing, Defendant agreed with this recitation of these facts. As mentioned by the trial court, Defendant could have got into his friend’s truck and left the club peacefully. Moreover, there was testimony the victim did not have a gun in his possession at the time. Defendant was facing a second degree murder charge, and the facts as stated above could have very likely led to the conviction as charged, and Defendant would have received the mandatory sentence of life imprisonment. Instead, Defendant pled guilty to the lesser charge of manslaughter, and thus had the opportunity to present mitigating evidence in an attempt to further reduce his sentence.

While there was testimony Defendant had been employed, as noted by the trial court, the record was not very clear as to his employment. Defendant’s mother testified at the motion for reconsideration, but was vague as to the duration of his various employments, and indicated he had not been employed for some time prior to the shooting. Furthermore, the only testimony regarding Defendant’s family | srelationship consisted of the statement made by Defendant’s mother that “his baby mom ... .put two of his tires on flat twice.”

Moreover, we find that a sentence in the range of thirty years for the offense of manslaughter is not an uncommon sentence when compared to other cases of similar factual scenarios:

In Morrison, 758 So.2d 283, the accused was charged with second degree murder and pled guilty to manslaughter. The accused and the victim had been at a late night party and were drinking and an argument ensued, following which the accused stabbed the victim. The State recommended a sentence of twenty-six years, but the trial court sentenced him to thirty-five years. This court affirmed the sentence, noting that Morrison benefited greatly from the plea agreement.

In State v. King, 00-1434 (La.App. 5 Cir. 5/16/01), 788 So.2d 589, writ denied, 01-2456 (La.9/20/02), 825 So.2d 1157, the fifth circuit affirmed a sentence of twenty-five years. The accused was charged with second degree murder after he had a fight with the victim and shot him with a rifle because the victim had stolen money from him. According to King, the victim “had victimized him in the past.” Id. at 594. While he had complained to the police, nothing was ever done. King had no prior history of criminal activity. Taking King’s relationship with the victim and his lack of a prior felony record, the fifth circuit did not find the sentence was such that shocked its sense of justice.

The accused in State v. Jefferson, 02-1159 (La.App. 4 Cir. 12/4/02), 834 So.2d 572, was convicted of manslaughter by a jury and sentenced to twenty-five years imprisonment. After drinking and ingesting cocaine, he and the victim, who had become very drunk, and another friend of the victim’s, went to the victim’s 110apartment. He testified the victim proceeded to pick a fight with him, cursing at him in such a way that frightened him. He stated he left the room and asked for a ride home from one of the victim’s roommates. After he returned to the living room, the victim began hitting him and he saw the victim’s friend reach under a sofa and grab something that he thought was a gun. Jefferson, who had no prior criminal history, pulled out a gun and shot the victim and the friend. The victim died, the friend had only superficial wounds. The fourth circuit affirmed the sentence.

In light of the above testimony and jurisprudence, we cannot say the sentence of thirty years imprisonment for the offense of manslaughter is such that would shock this court’s sense of justice. The record indicates the trial court carefully considered both the mitigating and aggravating factors and fashioned a sentence appropriate to the circumstances of the case. The trial court did not abuse its considerable discretion when imposing the sentence.

CONCLUSION:

We affirm Defendant’s sentence.

AFFIRMED.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Terance Antione ROBBINS, Appellant.
    Nos. 43,129-KA, 43,130-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.

      W. Jarred Franklin, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Assistant District Attorney, for Appellee.
    Before CARAWAY, PEATROSS and LOLLEY, JJ.
   CARAWAY, J.

| ¶After a bench trial, Terance Antione Robbins was convicted of possession of marijuana with intent to distribute and conspiracy to distribute marijuana, violations of La. R.S. 40:966 and La. R.S. 40:979. For the possession with intent to distribute conviction, Robbins received a sentence of 20 years at hard labor and a $10,000 fíne or an additional 180 days in prison for failure to pay the fine. For the conspiracy conviction, Robbins was sentenced to 15 years at hard labor and a $1,000 fíne or an additional 90 days in prison for failure to pay the fíne. The sentences were ordered to run concurrently. Robbins appeals his conviction and sentence. We affirm the convictions, vacate the imposed sentences and remand.

Facts

On April 3, 2005, Louisiana State Trooper James Nash stopped the vehicle driven by Terance Robbins in Bossier City (milepost 26) for traveling in the left lane of the interstate for two miles, in violation of La. R.S. 32:71. Upon approaching the driver, Trooper Nash learned he did not have a driver’s license. Robbins also identified himself as Antione Brian Carson. Trooper Nash spoke with the passenger of the vehicle who identified himself as Jamaar Shaw. Shaw identified the driver as Antione Carson and told the officer the car belonged to his girlfriend.

The driver and passenger gave inconsistent statements regarding their relationship to one another. Shaw indicated the two had known each other since they were children. Robbins stated he knew Shaw for six months but did not know his last name, although Shaw was his brother-in-law. At trial, |athe two testified that Shaw was in fact married to Robbins’ cousin. Shaw testified he only knew Robbins by his first name, “T” or Antione, at the time of their arrest because he had recently met him through his wife. Robbins testified Shaw was his cousin’s husband whom he would see “from time to time” and that the two “speak.”

The two also gave inconsistent information to the officer regarding their travels. While both agreed they were coming through Louisiana from Texas, each initially gave different versions of how long they had been in Texas. They eventually agreed upon a two to three day stay in Texas. Neither packed any clothes for the trip. Nevertheless, at trial, Shaw testified that after fourteen hours of driving from Florida to Texas, he dropped Robbins off at a friend’s home. Shaw then spent ten minutes at a local air force base, unsuccessfully tried to visit his father, purchased the drugs and returned to the friend’s house where he played games for a few hours before the two headed back to Florida. At the time of their arrest, the two also stated that the reason for the trip was for Shaw to visit family and friends.

As Trooper Nash spoke with Shaw, he smelled the odor of marijuana emitting from him. Shaw readily admitted he smoked marijuana on the trip. Trooper Nash became suspicious and asked Robbins for permission to search the vehicle. Robbins agreed. When presented with the consent form, Robbins first signed “Terrance R” but scratched it out and wrote Antione Carson on the signature line. A search of the trunk revealed nine pounds of marijuana inside of a plastic trash bag containing a sheet of fabric softener. The trash bag was hidden under a pile of clothes. Both Robbins and Shaw | .^denied ownership of the clothes which Shaw testified were in the car when he left Florida. No other money, scales, weapons, or other paraphernalia were found during the search. Both Robbins and Shaw were placed under arrest. Criminal lab tests later confirmed the item seized from the trunk as marijuana.

Trooper Nash transported Robbins and Shaw to the Louisiana State Police headquarters where Trooper O.H. Haynes interviewed Robbins and had him fill out a waiver of rights form. Robbins first initialed the form with a “T,” but changed it to an “A.” Trooper Haynes informed Robbins that he would be booked as “John Doe” and would not be able to bond out if he was not truthful about his identity. It was then that the officer learned Robbins’ real name. During his interrogation, Robbins admitted smoking marijuana “earlier.” The state’s case did not show whether he smoked the marijuana during his visit with Shaw’s family members or at some point in the vehicle during the return trip. In his statement, Robbins also admitted that they obtained marijuana from Shaw’s cousins in Texas but denied knowing specifically about the nine pounds of marijuana in the trunk.

Shaw initially told the officers he had no knowledge of the marijuana in the trunk of the car. At trial, he admitted he had gone to Texas to purchase marijuana and to have a military physical. Shaw testified he paid $2,500 for the nine pounds of marijuana which he intended for personal use. Shaw insisted he never told Robbins about his plan to purchase marijuana. At trial, Robbins testified he also knew about Shaw’s plans to have a physical examination.

RRobbins was tried on charges of possession of marijuana with intent to distribute and conspiracy to distribute marijuana. Prior to trial, Robbins waived his right to a jury trial and elected a trial by judge alone. At trial, expert testimony of the state established that the amount of marijuana found in the vehicle had a street value of $21,160 and was consistent with packaging for resale and not for personal use. That evidence also showed that fabric softener is used to conceal odor.

For his part in the offense, Shaw pled guilty to possession of marijuana with intent to distribute and received a suspended seven-year sentence with five years probation. The state dismissed the conspiracy charge against Shaw. Shaw testified he had a criminal record which included a grand theft auto conviction and a misdemeanor battery. Shaw also testified that after his arrest he made efforts to let law enforcement know Robbins had no knowledge of the marijuana by executing an affidavit attesting to Robbins’ innocence.

At trial, Robbins explained he gave Trooper Nash the wrong name because he was subject to an outstanding warrant for a probation violation in Florida dealing with several charges of driving without a license. Robbins also admitted to a conviction for felony battery, several convictions for driving with a suspended license, one conviction for giving false identification to a law enforcement officer and failure to appear. He admitted he also had a juvenile adjudication for possession of cocaine. He denied knowing about the marijuana in the trunk of the car or smoking marijuana that day.

| sAfter considering the evidence presented by the state and defense, the trial court found Robbins guilty of the offenses. After timely motions for new trial, post verdict judgment of acquittal and reconsideration of sentence were denied by the trial court, this appeal ensued.

Discussion

Robbins argues that the evidence was insufficient to support his conviction for possession of marijuana with intent to distribute because there was no evidence he had knowledge of the marijuana inside the trunk of the car. He also contends the evidence did not support his conviction for conspiracy to distribute marijuana because there was no evidence of an agreement between the two. Alternatively, Robbins requests the charge of possession of marijuana with intent to distribute be reduced to simple possession of marijuana because there was no evidence that he had any intention of distributing it.

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, reviewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude 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 (LaApp. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the | r,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. In the absence of internal contradictions or irreconcilable conflict with physical evidence, the testimony of one witness is sufficient support for a requisite factual conclusion if that witness is believed by the trier of fact. State v. Jones, 31,613 (La.App. 2d Cir.4/1/99), 733 So.2d 127, writ denied, 99-1185 (La.10/1/99), 748 So.2d 434; State v. Ford, 28,724 (La.App. 2d Cir.10/30/96), 682 So.2d 847, writ denied, 99-0210 (La.5/14/99), 745 So.2d 12.

This standard, now 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, 94-3116 (La.10/16/95), 661 So.2d 442. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, the matter is one of the weight, not the sufficiency, of the evidence. State v. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, Allen v. Louisiana, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). A reviewing court accords great deference to a trier of fact’s decision to accept or reject the testimony of a witness in whole or in part. State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/5/03), 852 So.2d 1020.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Owens, 30,903 (La. App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Barakat, 38,-419 (La.App. 2d Cir.6/23/04), 877 So.2d 223. Circumstantial 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. Barakat, supra. A conviction based upon circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.

A person commits the crime of possession of marijuana with intent to distribute if he knowingly or intentionally possesses marijuana with the intent to distribute it. La. R.S. 40:966(A)(1). The state must prove that the defendant knowingly and intentionally possessed the drug and that he did so with the specific intent to distribute. State v. Taylor, 39,651 (La. App. 2d Cir.4/6/05), 900 So.2d 212; State v. Johnson, 34,902 (La.App. 2d Cir.9/26/01), 796 So.2d 201, writ denied, 03-2631 (La.11/8/04), 885 So.2d 1124; State v. Marshall, 02-1067 (La.App. 5th Cir.2/25/03), 841 So.2d 881, writ denied, 03-0909 (La.9/26/03), 854 So.2d 345. It is not necessary for the state to prove that the defendant was in actual possession of the contraband; rather, proof of constructive possession is sufficient. Constructive possession is shown when the state proves that the contraband was within the defendant’s dominion and control and that the defendant had knowledge of its presence. State v. Toups, 01-1875 (La.10/15/02), 833 So.2d 910; State v. Taylor, supra; State v. Holland, 37,922 (La.App. 2d Cir.12/10/03), 862 So.2d 448.

The mere presence of a person in the place where contraband is found or the mere association with another person possessing contraband is not sufficient to prove constructive possession. State v. Harris, 94-0970 (La.12/8/94), 647 So.2d 337; State v. Brown, 42,188 (La.App. 2d Cir.9/26/07), 966 So.2d 727. Guilty knowledge is an essential element of a possession charge, and such knowledge may be inferred from the circumstances. State v. Toups, supra; State v. Taylor, supra. A determination of whether the defendant was in possession depends on the “peculiar facts” of each ease, which may include the following: (1) the defendant’s knowledge that the contraband is in an area; (2) his relationship with the person found to be in actual possession; (3) his access to the area where the drugs were found; (4) evidence of recent drug use; and (5) the defendant’s physical proximity to the contraband. State v. Taylor, supra. Further, a defendant may have constructive possession if he willfully and knowingly shares the right to control the contraband with another. Id.

Criminal conspiracy is defined by La. R.S. 14:26(A) as follows:

|BA. Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing a crime; provided that an agreement or combination to commit a crime shall not amount to criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.

Thus, in a conspiracy, the foundation of the offense is the combination of at least two minds for an unlawful purpose and a corrupt agreement imparting guilty knowledge on the part of each. State v. Mitchell, 37,916 (La.App. 2d Cir.3/3/04), 869 So.2d 276, writ denied, 04-0797 (La.9/24/04), 882 So.2d 1168, cert. denied, Mitchell v. Louisiana, 543 U.S. 1068, 125 S.Ct. 905, 160 L.Ed.2d 801 (2005); State v. Lowery, 609 So.2d 1125 (La.App. 2d Cir. 1992), units denied, 617 So.2d 905 (La. 1993). The clear purpose of the statute is to criminalize the conduct of two or more persons who intend a criminal act and as a result of intention — manifested as an agreement or combination — one of these does something in furtherance of the intended criminal act. State v. Mitchell, supra; State v. Joles, 485 So.2d 212 (La.App. 2d Cir.1986). The elements of conspiracy may be proven by both direct or circumstantial evidence. State v. Lowery, supra; State v. Perez, 569 So.2d 609 (La.App. 2d Cir.1990), writ denied, 575 So.2d 365 (La.1991).

Specific intent may be inferred from the circumstances surrounding the transactions and the actions of the defendant. State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583, cert. denied, Draughn v. Louisiana, — U.S.-, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007); State v. Brown, supra; Specific intent may be established solely by circumstantial evidence if every reasonable hypothesis of innocence is excluded. Id.

When the specific intent to distribute a controlled dangerous substance is based on circumstantial evidence, the state must prove the amount of the substance, and/or the manner in which it was carried was inconsistent with personal use. Intent to distribute illegal drugs may be established by proving circumstances surrounding the defendant’s possession which give rise to reasonable inferences of intent to distribute. State v. Brown, supra.

The test for determining whether intent to distribute exists includes five factors: (1) packaging in a form usually associated with distribution; (2) evidence of other sales or attempted sales by the defendant; (3) a large amount or quantity of the drug such as to create an inference of intent to distribute; (4) expert or other testimony that the amount was inconsistent with personal use; and (5) the existence of any paraphernalia, such as Baggies or scales, evidencing an intent to distribute. Testimony of street value and dosage of a drug is also relevant to the issue of intent. Id.

Mere possession of contraband does not amount to evidence of intent to distribute “unless the quantity is so large that no other inference is possible.” State v. Hearold, supra; State v. Greenway, 422 So.2d 1146 (La.1982).

The large quantity of marijuana in this case was not in the actual physical possession of either occupant of the car. The constructive possession of the marijuana by either or both occupants required proof by lucircumstantial evidence related to their proximity to the drug. The trunk of the car was equally accessible by both occupants of the vehicle as they embarked on an admitted cross-country trip from Texas to Florida. Thus, their shared dominion and control over the vehicle and its trunk can be inferred from the circumstances. The marijuana was not hidden in any manner to raise a strong inference that one party may have had the complete control over the drug to the exclusion of the other. Therefore, excluding Shaw’s later claim of his sole possession of the drug (a claim which the trial court could ignore from a credibility determination), there was a very strong inference that the marijuana was within the joint control of the occupants of the vehicle, leading to the question of Robbins’ guilty knowledge.

There are various facts demonstrating the parties’ joint guilty knowledge. First, there was smoking of marijuana during the trip within a relatively short time before the traffic stop. Shaw smelled of marijuana. Although at trial Robbins denied smoking during the trip, at the time of his arrest he admitted smoking marijuana to Trooper Haynes. Circumstantially, Shaw’s use of marijuana in the vehicle before the arrest also shows Robbins’ direct involvement with the drug. Thus, the trial court could reasonably conclude from these circumstances that Robbins had knowledge of the presence of marijuana during the time of the transportation of the drug in the trunk of the car. Next, both Robbins and Shaw denied upon arrest any knowledge of the marijuana in the trunk, both lied about Robbins’ real name, and both gave inconsistent details about their trip and | -^relationship. It is certainly not reasonable to conclude that neither man on their long common journey knew about the existence of the marijuana in the trunk. Therefore, when they both fabricated explanations attempting to exclude themselves from any connection to the contraband, these untruthful statements imply guilty knowledge of both parties.

Regarding Shaw’s later claim to the marijuana, his trial testimony occurred after his conviction. His contrasting earlier denial of knowledge of the. marijuana presented a credibility issue for the trial court. From the facts established by the direct evidence and inferred from the circumstantial evidence presented by the state, the trial court could have reasonably rejected Shaw’s claim that Robbins knew nothing of the marijuana.

Likewise, these facts are sufficient to establish that Robbins committed conspiracy to distribute marijuana. As discussed above, from the acts of the defendants in giving identical wrong names for Robbins, denying ownership of the marijuana and in stating inconsistent stories to legitimize their trip to Texas, the trial court could have reasonably inferred that the two were seeking to conceal their concerted actions and were in agreement for the specific purpose of distributing marijuana.

Finally, Robbins contests his intent to distribute the marijuana. Because defendant was the driver of a car that had more than nine pounds of marijuana in the trunk of the car, which experts testified was not consistent with personal use, the factfinder may have reasonably inferred from the evidence that Robbins possessed the requisite intent to distribute the marijuana. See State v. Greenway, supra; State v. Brown, supra.

11sRobbins next argues that the record is devoid of any notice given to him pursuant to La. R.S. 15:499, et seq., of the state’s intent to present the certificate of analysis regarding the criminalistics laboratory testing of the marijuana. Defendant argues that this failure to give notice deprived him of the opportunity to cross-examine on the key issue of the weight of the marijuana seized.

During the testimony of Trooper Haynes, the state offered the certificate of analysis as State’s Exhibit 6 in order to prove that the material seized was marijuana. It is signed by Jimmy D. Barnhill, System Director of the Northwest Louisiana Criminalistics Laboratory. Robbins objected with the following exchange:

MS. JACKSON: Your Honor, I’m going to object at this time to the introduction of the lab as based on testimony of this particular trooper. He did not prepare that lab report. I know that he signed off on that lab report, however, if the State want [sic] to introduce it again at later and have someone from the lab — or introduce it in proper form, but this is not the appropriate witness to introduce that lab report at this time.
MR. LAWRENCE: This is proof by statute. The ten day letter and the statute gives the State the right to present this by — by statute giving the defense the right to call any witnesses they wish in this matter. So with or without Mr. Haynes this document would be self-proved.
MS. JACKSON: Which is exactly what I said, Your Honor, that the document — I did not object to the document as being authentic in any way. I just said that this witness wasn’t the appropriate witness to attest to the validity nor the authenticity of the document. I’m not objecting to the document. I’m just objecting to it being presented as State’s evidence in connection with this witness’ testimony.

| uThe trial court allowed the certificate to be admitted, finding that it would be admissible under the statutes.

The statutes regarding evidence from criminalistics laboratories, as set forth in La. R.S. 15:499 through 15:501, provide for the introduction of evidence regarding the proof of examination and analysis performed by criminalistics laboratories through a certificate prepared by the person in charge of the facility where the examination was performed. State v. Cunningham, 04-2200 (La.6/13/05), 903 So.2d 1110. If the certificate contains the required statutory information, it may be prima facie proof of the facts contained therein unless the defendant subpoenas the preparer of the certificate. La. R.S. 15:500; State v. Cunningham, supra. Pursuant to La. R.S. 15:501, notice must be given by the party seeking to introduce the certificate so that the other party has an opportunity to subpoena the person who conducted the examination or analysis.

Although there is nothing in the record to indicate whether such notice was given to defendant in regard to State’s Exhibit 6, Robbins did not object to any lack of notice at trial. Rather, he objected to the state presenting the crime lab certificate as hearsay which is effectively overcome 1 isby the statutory process. The failure to make a contemporaneous objection pursuant to La.C.Cr.P. art. 841 regarding any lack of notice precludes appellate review of this issue. State v. Brown, supra; State v. McGuffie, 42,069 (La.App. 2d Cir.8/1/07), 962 So.2d 1111, writ denied, 976 So.2d 1283 (La.2/22/08).

Accordingly, this assignment is without merit.

Robbins also complains about the imposed sentences. He contends that the trial court failed to consider the sentencing factors contained in La.C.Cr.P. art. 894.1 and that his sentence is excessive in comparison to his co-defendant, who claimed sole responsibility for the marijuana and was sentenced to a suspended 7-year sentence with 5 years probation for the crime of possession of marijuana with intent to distribute.

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.6/24/98), 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. Lanclos, 419 So.2d 475 (La.1982). The important elements which |1fishould 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.4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 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.3/01/00), 754 So.2d 392, writ denied, 00-1467 (La.2/02/01), 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). A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, Cook v. Louisiana, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). While the judge is given wide discretion to impose a sentence within the statutory limits, the sentence imposed by the trial court should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Cook, supra.

The sentencing range for possession of marijuana with intent to distribute is “imprisonment at hard labor for not less than five nor more than thirty years.” La. R.S. 40:966(B)(3). The sentencing range for conspiracy to distribute marijuana is imprisonment at hard labor for no more thán 15 years. La. R.S. 40:966(B)(3); La. R.S. 40:979(A).

There is no requirement that co-defendants be treated equally by a sentencing judge. State v. Smith, 42,466 (La. App. 2d Cir.9/26/07), 967 So.2d 548; State v. Nugent, 41,070 (La.App. 2d Cir.8/23/06), 938 So.2d 1188, writ denied, 06-2543 (La.5/4/07), 956 So.2d 606. Even so, a reviewing court may consider disparity of sentences between co-defendants when there is no reasonable basis in the record for the disparity. State v. Quimby, 419 So.2d 951 (La.1982); State v. Smith, supra; State v. Nugent, supra.

|1SA defendant’s juvenile history is an appropriate sentencing consideration. See State v. Knox, 446 So.2d 1211 (La.1984); State v. Freelon, 26,938 (La.App. 2d Cir.5/10/95), 655 So.2d 687.

In this case, the record evidence reveals that Shaw pled guilty to possession of marijuana with intent to distribute and received a suspended 7-year sentence with 5 years of probation and the state dismissed the conspiracy charge arising out the same facts as Robbins’ prosecution. Shaw testified that he had a criminal record that included convictions for grand theft auto and a misdemeanor battery. In contrast, Robbins received a 20-year hard labor sentence for his possession with intent to distribute marijuana conviction and the maximum sentence of 15 years at hard labor on the conspiracy to distribute marijuana conviction. At trial, Robbins admitted to felony convictions for battery of a law enforcement officer and habitual driving with a suspended license. He also admitted to a juvenile conviction for possession of cocaine. Robbins’ presentence investigation report (“PSI”) confirmed his status as a third felony offender and recommended trial court consideration of Robbins’ juvenile record.

Regarding the sentencing ruling, it is not clear that Shaw’s prior sentence was a consideration of the trial court at the time of the initial sentencing hearing. While Shaw had revealed his sentence in his testimony during Robbins’ trial, Shaw’s sentence was not re-emphasized to the trial judge during Robbins’ sentencing hearing. The district judge who |iasentenced Shaw could have been a different judge. In sentencing Robbins, the trial court did not mention the Shaw sentence so as to give any justification for the disparity between the sentences. Robbins’ motion to reconsider sentence which belatedly raised the co-conspirator’s sentence was summarily denied by the trial court.

Prior to imposing sentence, the court indicated that it considered the sentencing factors enunciated in La.C.Cr.P. art. 894.1 in addition to letters sent to the court by Robbins, his mother and an aunt. The court also offered Robbins the opportunity to speak which he declined and noted its consideration of the amount of marijuana involved. Thereafter, the court summarily imposed the two sentences.

As reviewed above, both occupants of the vehicle possessed equal culpability in planning, executing and possessing the marijuana seized from the vehicle. Likewise the two occupants’ criminal records are similar with the exception of Robbins’ juvenile drug conviction. Both possess felony convictions which were unrelated to drug activity. Robbins’ additional felony conviction resulted from his habitual driving with a suspended license. For that conviction he received a two-year suspended sentence. Otherwise, Robbins’ criminal record included two misdemeanor convictions for presenting false identification to a law enforcement officer. With both men convicted of the crime of possession with intent to distribute marijuana, the disparity in the two occupants’ sentences is compelling. Moreover, although Robbins technically qualifies as a third felony offender as an adult, one of his previous felony convictions concerned driving offenses.

| ¡^Considering the lack of a reasonable basis for the great disparity in the sentences imposed upon Shaw and Robbins as well as Robbins’ background, we find the imposed sentences to be constitutionally excessive and grossly disproportionate to the severity of the offense. We therefore vacate Robbins’ sentences for possession of marijuana with intent to distribute and conspiracy to distribute marijuana and remand for resentencing in accordance with this opinion.

Conclusion

For the foregoing reasons, we affirm Robbins’ convictions for possession of marijuana with intent to distribute and conspiracy to distribute marijuana. We vacate the imposed sentences and remand for resentencing.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING.

      . The jurisprudence holds that giving a false name can be indicative of guilty knowledge. State v. Toups, supra; State v. Brown, supra.

      . La. R.S. 15:501 reads as follows:
      A. The party seeking to introduce a certificate made in accordance with R.S. 15:499 shall, not less than ten days prior to the commencement of the trial, give written notice of intent to offer proof by certificate. Such notice shall include a copy of the certificate.
      B. (1) The party against whom such certificate is offered shall be permitted to subpoena on cross-examination, the person who performed the examination or analysis of the evidence. If the subpoena is requested at least five days prior to the commencement of trial or the person subpoenaed responds to the subpoena, the certificate shall not be pri-ma facie proof of its contents or of proper custody.
      (2) When the attorney for the defendant, or the defendant acting in his own defense, requests that a subpoena issue to the person who performed the examination or analysis, the request shall be in writing and shall contain a certification that the attorney or the defendant intends in good faith to conduct the cross-examination.

      . The record shows that the state submitted to the court a Sentence Memorandum which listed Robbins’ criminal history that included four juvenile drug related arrests and the one drug-related conviction described by Robbins. The court indicated that it had considered this document in imposing the sentence.

      . Although we have vacated the imposed sentences, we note that an indigent defendant cannot be subjected to default time in lieu of the payment of a fine, costs or restitution. State v. White, 39,681 (La.App. 2d Cir.5/11/05), 903 So.2d 580; State v. Mack, 30,832 (La.App. 2d Cir.6/24/98), 715 So.2d 126.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Clavin BIRCH, Appellant.
    No. 43,119-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.

      Louisiana Appellate Project by Peggy Sullivan, Monroe, for Appellant.
    Walter E. May, Jr., District Attorney, H. Russell Davis, Kenneth P. Haines, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

I,This criminal appeal arises from the Second Judicial District Court, Parish of Bienville, State of Louisiana, where the defendant, Clavin Birch, was convicted of armed robbery with a firearm. The conviction was affirmed on appeal; however, the original sentence was reversed and remanded for resentencing. On remand, Birch was sentenced to 25 years at hard labor without benefit of parole, probation or suspension of sentence on the conviction for armed robbery, a violation of La. R.S. 14:64. Birch was also sentenced to 5 years’ imprisonment without the benefit of parole, probation and suspension of sentence under the enhancement provisions of La. R.S. 14:64.3 to be served consecutively. For the following reasons, we affirm.

FACTS

On the afternoon of June 20, 2005, while working at a local convenience store in Ringgold, Louisiana, Janice Flowers became the victim of an armed robbery. According to her, two men approached the counter and stole money, cigarettes and cigars while one man stayed at the door. She explained that at least two men were armed with handguns. Two of the men pled guilty while the third man, Clavin Birch, proceeded to trial. Birch was convicted by a jury of armed robbery with a firearm. The trial court originally sentenced him to serve 30 years’ imprisonment at hard labor without benefit of parole, probation or suspension of sentence. An appeal followed in which Birch complained that: the evidence was insufficient to support his conviction for armed robbery with a firearm; the trial court erred in denying his motion to suppress his pretrial identification by one of the | ¿victims; and, the sentence imposed by the trial court was excessive. This court, in State v. Birch, 41,979 (La.App. 2d Cir.05/09/07), 956 So.2d 793, affirmed the conviction, but vacated the sentence and remanded for resentencing because the sentence imposed by the trial court was indeterminate. This court stated:

In the instant case, the jury found the defendant guilty as charged of armed robbery with a firearm, but the trial court did not specify what portion, if any, of the defendant’s 30-year sentence was imposed under La. R.S. 14:64.3.... Therefore, we vacate the sentence and remand for resentencing according to law for clarification of whether the defendant’s sentence includes any additional punishment under La. R.S. 14:64.3. The trial court is instructed to consider State v. Williams, 2001-1398 (La.App. 1st Cir.03/28/02), 815 So.2d 378, writ denied, 2002-1466 (La.05/09/03), 843 So.2d 388, noting that, at the time the defendant’s sentence was imposed, La. R.S. 14:64.3 did not provide for the enhanced penalty to be served at hard labor.

On remand, the trial court sentenced Birch to 25 years’ imprisonment at hard labor without the benefit of parole, probation and suspension of sentence on the armed robbery conviction and to 5 years’ imprisonment without the benefit of parole probation and suspension of sentence under the enhancement provisions of La. R.S. 14:64.3. Birch now appeals.

DISCUSSION

In his sole assignment of error, Birch argues that the sentence imposed is excessive because it greatly exceeds the sentences imposed on the co-perpetrators of the offense who received less harsh sentences under |3plea agreements with agreed upon sentences. He also argues that the trial court’s statement in support of his sentence that he had refused to take responsibility for his actions indicates an intent to punish him for exercising his right to trial.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. 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 trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2d Cir.02/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compli-anee with its provisions. 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. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La. App. 2d Cir.01/28/04), 865 So.2d 284, units denied, 2004-0834 (La.03/11/05), 896 So.2d 57, 2004-2380 (La.06/03/05), 903 So.2d 452.

Secondly, 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. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is [4considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App. 2d Cir.04/02/97), 691 So.2d 864.

There is no requirement that co-defendants be treated equally by the sentencing judge. State v. Rogers, 405 So.2d 829 (La.1981); State v. Taylor, 485 So.2d 117 (La.App. 2d Cir.1986). A reviewing court may consider disparity of sentences between co-defendants when there is no reasonable basis in the record for the disparity. State v. Quimby, 419 So.2d 951 (La.1982); State v. Jackson, 30,473 (La.App. 2d Cir.05/13/98), 714 So.2d 87, writ denied, 1998-1778 (La.11/06/98), 727 So.2d 444. Furthermore, disparity in sentences is only one factor to be considered along with all other appropriate considerations in evaluating a contention that a sentence is excessive. State v. Quimby, supra.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, the reviewing court will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. McCall, 37,442 (La.App. 2d Cir.08/20/03), 852 So.2d 1162, writ denied, 2004-0039 (La.12/17/04), 888 So.2d 858.

The law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Sugasbi, 2001-3407 (La.06/21/02), 820 So.2d 518. At the time of the offense, June 20, 2003, La. R.S. 14:64(B) provided, as it does now, the penalty for armed robbery which reads as follows:

| ^Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.

In addition, La. R.S. 14:64.3 provided that an offender convicted of the crime of armed robbery when the dangerous weapon used in commission of the crime was a firearm shall be imprisonment for “an additional period of five years.”

At the original sentencing hearing the trial court considered the pre-sentence investigation report and a victim impact statement which the victim read aloud in court. The victim relayed that Birch’s conduct had caused her to suffer a fear of people and public places and, thus, she had been unable to return to work. She also indicated that she had to seek therapy as a result of the incident. As to the pre-sentence investigation report, the trial court noted a letter from Birch which stated that he “refused to take responsibility for his actions.” In it, Birch expresses his belief that he should not have been found guilty but added that he harbored no ill-feelings towards the court. Birch was 18 years old at the time of this offense and had a limited criminal history.

At the resentencing hearing, the trial court noted various aggravating factors under La. C. Cr. P. art. 894.1, including Birch’s use and discharge of a dangerous weapon in the commission of the offense, the threats of violence in the commission of the offense, the attempt to influence the victim’s identification of the defendant in an attempt to affect the outcome of the criminal proceedings, the damage caused to the victim and Birch’s role as organizer in the commission of the crime. On appeal, Birch does not ¡^question the presence of these factors with the exception of his role as the ring leader, which he claims could only have come from his co-defendants’ self-serving testimony. As to the other factors, Birch argues only that the same factors were present with regard to his co-defendants who received lesser sentences.

The co-defendants reached plea deals with agreed sentences in exchange for their testimony against Birch. As this court stated in State v. Gatti, 39,833 (La. App. 2d Cir.10/13/05), 914 So.2d 74, writ denied, 2005-2394 (La.04/17/06), 926 So.2d 511, the co-defendants making the plea agreements are entitled to reap the benefits of the bargain, not the defendant. Birch is unable to show that there is no reasonable basis in the record for the disparity in sentencing imposed on him versus his co-defendants.

Nor is Birch’s argument that the trial court punished him for exercising his right to a trial by jury persuasive. The trial court’s reference to Birch’s failure to take responsibility for his actions was clearly a reference to the post-conviction letter written by Birch, which is a part of the record, where he failed to accept any responsibility for the offense. The defendant’s letter detailing his denial of responsibility can be regarded as a lack of remorse, and lack of remorse is a proper sentencing consideration. State v. Robinson, 33,921 (La.App. 2d Cir.11/01/00), 770 So.2d 868.

Contrary to Birch’s assertion, the record supports the sentence imposed. The trial court imposed a lower-range sentence of 25 years at hard labor without the benefit of parole, probation or suspension of sentence on |7the armed robbery conviction and an additional 5 years without benefit of parole, probation, or suspension of sentence, a mandatory addition to the armed robbery sentence under La. R.S. 14:64.3. As stated above, the sentencing range for armed robbery is not less than 10 years and not more than 99 years at hard labor without benefits. Based on Birch’s criminal and work history, the facts surrounding this offense, and the impact on the victim, the trial court did not abuse its discretion in sentencing this defendant. While Birch points to the fact that the trial court failed to list any mitigating factors, we note that Birch did not do so either. Accordingly, the sentence imposed does not shock the sense of justice and is, therefore, not constitutionally excessive.

CONCLUSION

For the foregoing reasons, Clavin Birch’s sentence and conviction are affirmed.

AFFIRMED.

      . At the resentencing hearing the trial court originally stated that the enhanced sentence of 5 years' imprisonment imposed under La. R.S. 14:64.3 was to be served at hard labor. Subsequently, the trial court amended the sentence to eliminate the hard labor condition pursuant to the statute at the time of the offense. The term “hard labor” was added to the sentencing clause of La. R.S. 14:64.3 by Act 208, 2006, which became effective on June 2, 2006 — after the instant offense.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Rodney PAMILTON, Appellant.
    No. 43,112-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.

      Peggy Sullivan, Louisiana Appellate Project, Monroe, for Appellant.
    Paul J. Carmouche, District Attorney, Jason Brown, John Ford McWilliams, Jr., Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   GASKINS, J.

pThe defendant, Rodney Pamilton, was found guilty by a jury of second degree kidnapping and aggravated second degree battery. He was ordered to serve 40 years at hard labor, without benefit of parole, probation, or suspension of sentence on the second degree kidnapping conviction and 15 years at hard labor on the aggravated second degree battery conviction, with the sentences to run concurrently. The defendant appealed his convictions and sentences. For the following reasons, we affirm.

FACTS

On April 10, 2005, the defendant agreed to supply the victim, B.B., with crack cocaine in exchange for sex. This was not the first time they had met for this purpose. They went to an abandoned house in Shreveport to consummate the transaction. It is undisputed that B.B. voluntarily accompanied the defendant to the house with the intention of smoking crack and engaging in sexual activities.

In an upstairs bedroom, as they smoked the crack, B.B. performed oral sex on the defendant for approximately 60 minutes. The defendant was unable to achieve dimax. B.B. wanted to leave. After B.B. “made a run for it,” an altercation ensued, during which both the defendant and B.B. fell down a flight of stairs. The defendant was upset and felt that B.B. had not fulfilled her part of the bargain.

At that point, the defendant flew into a rage and brutally beat B.B. The defendant testified that he struck B.B. only with his fists. B.B. testified that the defendant also struck her with a paint can and a glass liquor bottle. |gThe defendant admitted swinging a paint can at B.B.’s head with enough force to kill, but claimed that he missed. A glass liquor bottle with what appeared to be a fresh blood smear was recovered from the crime scene. A dented, mostly-full paint can was also found at the crime scene. Neither the paint can nor the liquor bottle was tested by the crime lab for fingerprints or the presence of blood.

B.B. was severely injured as a result of the fall and beating. Nevertheless, B.B. testified that the defendant dragged her back up the stairs against her will, telling her that she was not going anywhere until she performed what she was supposed to perform. They eventually engaged in additional sexual activities, including vaginal sex. The parties agree that at some point during the night, the defendant was able to achieve climax. Although she was not tied up or bound in any way during the night, B.B. testified that she did not feel free to leave since she tried to leave twice and was beaten both times. Then, the next morning, the defendant told her she could go. The defendant testified that B.B. remained at the house voluntarily.

The next morning, on April 11, 2005, B.B. left the house and went to a neighbor’s house for help. The neighbor called for police and medical assistance. B.B. was taken to the LSU Medical Center and was examined by several doctors, including an OB/GYN who performed a rape examination. The evidence at trial revealed that B.B. had a lacerated liver, multiple spine fractures and facial trauma that required stitches; her eyes | ¡¡were blackened and swollen nearly shut. She was in intensive care for three days.

During the police investigation, the defendant was identified as a suspect and was apprehended. After being advised of his Miranda rights, the defendant admitted to police that he brutally beat B.B. when she tried to leave the house, but denied beating her with any objects such as the paint can or liquor bottle. The defendant admitted that he “whooped her ass,” that “I swole her up,” that there was “blood everywhere,” and that he beat her so badly she looked “like an elephant woman” which “spoiled the mood.” The defendant denied that he forced B.B. to remain at the house against her will. The defendant’s statements were recorded and admitted into evidence at trial.

The defendant was initially charged by bill of information with forcible rape. Subsequently, a grand jury returned a two-count indictment charging the defendant with aggravated kidnapping and aggravated second degree battery. At the conclusion of the trial, the jury found the defendant guilty of the responsive verdict of second degree kidnapping, and guilty as charged of aggravated second degree battery. The defendant was sentenced to 40 years at hard labor without benefit of parole, probation, or suspension of sentence for second degree kidnapping, and to 15 years at hard labor for aggravated second degree battery. The sentences were ordered to run concurrently. The defendant’s motions for post verdict judgment acquittal, new trial, and reconsideration sentence were denied. The defendant appealed, claiming that there was insufficient evidence upon |4which to base his convictions for second degree kidnapping and aggravated second degree battery and that his sentences are excessive. of of

SUFFICIENCY OF THE EVIDENCE

The defendant argues that the evidence adduced at trial was insufficient to convict him of second degree kidnapping and aggravated second degree battery. The defendant argues that there was a lack of proof that the victim was imprisoned or forcibly secreted against her will. He also argues that the evidence was insufficient to prove beyond a reasonable doubt that the defendant used a dangerous weapon in committing the battery upon the victim. These arguments are without merit.

Legal Principles

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); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 1995-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This standard, now 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. Pig-ford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 1996-1048 late court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422. | s(La.10/4/96), 680 So.2d 1165. The appel-

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 1999-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Burd, 40,480 (La.App. 2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35; State v. Jones, 31,613 (La.App. 2d Cir.4/1/99), 733 So.2d 127, writ denied, 1999-1185 (La.10/1/99), 748 So.2d 434.

I ^Second Degree Kidnapping

Second degree kidnapping is defined in La. R.S. 14:44.1 as follows:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(1) Used as a shield or hostage;
(2) Used to facilitate the commission of a felony or the flight after, an attempt to commit or the commission of a felony;
(3) Physically injured or sexually abused;
(4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5);
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

The provisions of this statute apply when any one occurrence mentioned in Subsection B combines with any one or more occurrences enumerated in Subsection A. State v. White, 593 So.2d 882 (La.App. 2d Cir.1992).

In the present case, the bill of information charged that the defendant imprisoned and forcibly secreted B.B. Although the record establishes that B.B. initially accompanied the defendant to the abandoned house voluntarily, the record also reveals that at some point B.B. sought to leave, but she was forcibly constrained from doing the same. The defendant beat her with a dangerous weapon when she tried to leave. B.B. testified that the 17defendant told her: “Bitch, you’re not going to leave here until you give me the satisfaction of what I want. If it takes me keeping you here all night, that’s what I’ll do.” The defendant confined and detained B.B. by telling her that she had to stay and repeatedly beating her when she tried to leave.

The forcible prevention of B.B.’s exit from the abandoned house, coupled with the subsequent physical and sexual abuse (including a battery by the defendant while armed with a dangerous weapon, discussed below), was sufficient to support the defendant’s guilt. The jury did not err in finding the defendant guilty beyond a reasonable doubt of the responsive verdict of second degree kidnapping. The defendant’s argument to the contrary is without merit.

Aggravated Second Degree Battery

Battery is defined, in pertinent part, in La. R.S. 14:33 as the intentional use of force or violence upon another. Aggravated second degree battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily harm. La. R.S. 14:34.7. A dangerous weapon includes any gas, liquid, or other instrumentality which, in the manner used, is calculated or likely to produce death or great bodily harm. La. R.S. 14:2(A)(3).

Whether a weapon is dangerous is a factual question for the jury to determine upon considering not only the character of the weapon, but by whom, upon whom, and in what manner it was used. State v. McClure, 34,880 (La.App. 2d Cir.8/22/01), 793 So.2d 454; State v. Taylor, 485 So.2d 117 (La.App. 2d Cir.1986). Louisiana jurisprudence reveals that numerous everyday items have been held to constitute a “dangerous weapon,” in the manner used, including a stick, an ink pen, rum, a tennis shoe, and a metal pipe. State v. McClure, supra; State v. Johnson, 598 So.2d 1152 (La.App. 1st Cir.1992), writ denied, 600 So.2d 676 (La.1992); State v. Malhiot, 41,175 (La.App. 2d Cir.8/23/06), 938 So.2d 1158, writ denied, 2006-2352 (La.4/27/07), 955 So.2d 682; State v. Munoz, 575 So.2d 848 (La.App. 5th Cir.1991), writ denied, 577 So.2d 1009 (La.1991); State v. Tyner, 41,937 (La.App. 2d Cir.2/28/07), 953 So.2d 865.

It is undisputed that the defendant committed a battery upon B.B. and that he intentionally inflicted serious bodily harm. The defendant’s sole challenge to the sufficiency of the evidence concerning the aggravated second degree battery charge centers on the purported conflicting testimony about whether a dangerous weapon was used to perpetrate the offense. The defendant argues that the victim’s testimony was inconsistent and could not serve as support for the conviction for aggravated second degree battery.

In her trial testimony, the victim was unsure whether she was hit with the paint can or the bottle first. The defendant also points out that the paint can found at the scene was not tested for fingerprints. In addition, the can was partially open and the defendant claims that, if he hit the victim with it, she would have had paint on her body. The defendant further argues that the liquor bottle was never tested for fingerprints or to determine whether the substance observed on the bottle was the victim’s blood.

|3The record reflects that there was sufficient evidence for a trier of fact to find that a dangerous weapon was used in committing the battery on B.B. The victim testified that she was struck with a paint can and a bottle. The fact that she could not recall which object she was struck with first is irrelevant. She clearly stated that she was struck with at least one of these objects. A paint can, containing paint, and a glass liquor bottle smeared with what appeared to be fresh blood were found at the crime scene during the police investigation. The defendant admitted that he swung the paint can at B.B. with such force that it was likely to cause death or great bodily harm, had it made contact. Although the defendant denied striking B.B. with any objects, it is obvious that the jury credited the testimony of the victim over that of the defendant on this factual point. Looking at the evidence in the light most favorable to the prosecution, a rational juror could reasonably find that B.B. was struck with the paint can and the bottle, and that the objects were used in a manner calculated or likely to cause death or great bodily harm. The defendant’s argument to the contrary is without merit.

EXCESSIVE SENTENCE

The defendant contends that his sentence to 40 years at hard labor, without benefit of parole, probation, or suspension of sentence, for his conviction for second degree kidnapping, is excessive. This argument is without merit.

LnLaw

When, as in the instant ease, a defendant’s motion for reconsideration urges simply that his sentence is excessive, he is relegated to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Taylor, 41,898 (La.App. 2d Cir.4/4/07), 954 So.2d 804. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Taylor, supra.

A trial court has broad discretion to sentence. Absent a showing of manifest abuse of that discretion, this court may not set aside a sentence as excessive. State v. Guzman, 1999-1528 and 1999-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App. 2d Cir.5/12/04), 873 So.2d 939.

As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Taylor, supra.

The penalty for second degree kidnapping is set forth in La. R.S. 14:44.1(C):

Whoever commits the crime of second degree kidnapping shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence.

Discussion

In the present case, the trial court imposed the maximum sentence on the defendant for second degree kidnapping. The defendant contends that he is not the worst offender and his conduct does not represent the worst | n offense. Therefore, according to the defendant, the imposition of a maximum sentence is excessive.

The defendant was convicted of a violent crime and the victim suffered life-threatening injuries. The nature of the beating was particularly savage and cruel. The trial court observed that the defendant was 40 years old at the time of this offense.

The trial court noted at the sentencing hearing that the defendant has a long and sordid criminal history. According to the trial court, the city court minutes concerning the defendant’s numerous court appearances and misdemean- or convictions encompassed 46 pages. Although the defendant has only one prior felony conviction for conspiracy to distribute a schedule II controlled dangerous substance, he has been arrested at least 33 times for numerous other offenses, many of them felony charges which were reduced. The trial judge listed a litany of misdemeanor convictions, including four charges of resisting arrest, six charges of battery (including one on a police officer), a concealed weapons charge, three thefts, four charges of disturbing the peace, eight charges of entering and remaining after being forbidden, plus charges of assault, property damage, and trespass. The judge noted that in several reports the defendant was listed as having the nickname “Craekhead Rodney.” With respect to the defendant’s disciplinary record at the Caddo Correctional Center, the trial court noted 59 write-ups in the approximately two years since his arrest on the present charge. Many of these offenses involved batteries against staff, assault, and fighting. All of these matters were properly considered by the trial court in | ^concluding that the defendant was deserving of the maximum or near-maximum sentences. Due to the nature of the offenses and the defendant’s criminal history, the trial court found that the defendant was in need of lengthy correctional treatment.

The trial court also noted that the defendant received great leniency from the jury by being convicted of the lesser crime of second degree kidnapping instead of the crime charged, aggravated kidnapping. Aggravated kidnapping would have resulted in the mandatory sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence. La. R.S. 14:44. The trial court indicated that the facts would have supported a rape charge.

Based upon this record and particularly in light of the defendant’s violent nature, this sentence for second degree battery does not shock the sense of justice and was tailored to the offender and the offense. The trial court did not abuse its discretion. This assignment is therefore without merit.

I «CONCLUSION

For the reasons stated above, the defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . The victim’s initials are used because of victim confidentiality requirements applicable to the instant case under La. R.S. 46:1844(W).

      . DNA testing confirmed that the DNA profile obtained from the samples taken from the victim's rape kit was consistent with the defendant's DNA profile.

      . False imprisonment is defined as the intentional confinement or detention of another without consent and without proper legal authority. La. R.S. 14:46. Courts have found that the words "imprisoning” (as used in the second degree kidnapping statute) and "confinement” (as used in the false imprisonment statute) are synonymous. See State v. Arbuthnot, 625 So.2d 1377 (La.App. 1st Cir.1993).

      . In his assignments of error the defendant urges that, "The sentence of Mr. Pamilton by the trial court was constitutionally excessive." In his brief, the defendant has made no argument regarding excessiveness of the sentence for aggravated second degree battery. He contends only that the trial court erred in imposing an excessive sentence for his conviction for second degree kidnapping.

      . In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Russell, 40,526 (La.App. 2d Cir. 1/27/05), 920 So.2d 866, writ denied, 2006-0478 (La.9/29/06), 937 So.2d 851; State v. Jackson, 612 So.2d 993 (La.App. 2d Cir. 1993). The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Jones, 31,569 (La.App. 2d Cir. 12/9/98), 724 So.2d 810; State v. Anderson, 30,060 (La.App. 2d Cir. 10/29/97), 702 So.2d 40. Absent a defendant's assertion that he was falsely or mistakenly charged with an offense, the sentencing court may also consider a dismissed charge as part of the defendant’s criminal history, even when the dismissal forms part of the plea agreement. State v. Cook, 466 So.2d 40 (La.App. 2d Cir. 1985); State v. Daley, 459 So.2d 66 (La.App. 2d Cir.1984), writ denied, 462 So.2d 1264 (La.1985).

      . Even though the defendant has not argued that his sentence to 15 years at hard labor on the aggravated second degree battery conviction is excessive, we find that the sentence was not an abuse of the trial court’s sentencing discretion.