author: CARAWAY, J.

text:
    Quarynecha LAWRENCE on Behalf of her minor child, Jy’Quarrius Brown, Plaintiff-Appellant, v. Leslie GROAN & American National Property and Casualty Louisiana Insurance Company, Defendants-Appellees. Deworange Brown & Quarynecha Lawrence, Plaintiffs-Appellants, v. Leslie Groan & American National Property and Casualty Louisiana Insurance Company, Defendants-Appellees.
    Nos. 42,842-CA, 42,843-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Pierre & Pierre, L.L.C., by J. Rodney Pierre, Monroe, for Appellant.
    Davenport, Files & Kelly, L.L.P., by M. Shane Craighead, Monroe, for Appellee.
    Before GASKINS, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

|! This automobile accident occurred in a private parking lot as the defendant backed her vehicle out of a marked parking space. The plaintiffs’ vehicle was proceeding through the lot in the travel lane running directly behind and perpendicular to the parking space where defendant’s vehicle was exiting. Neither driver saw the other and a collision occurred. After trial, the trial court found the plaintiff driver totally at fault. This appeal resulted. Plaintiffs argue that at least a minimal portion of fault must be assessed to defendant for the accident. Finding no manifest error in the ruling of the trial court, we affirm.

Facts

The plaintiffs in these consolidated actions are Quarynecha Lawrence (“Lawrence”), individually and as the natural tutrix of the minor, Jy’Quarrius Brown (“JQB”), and Deworange Brown (“Brown”). Brown was driving the vehicle owned by Lawrence and JQB occupied the back passenger seat. The accident occurred during daylight hours in the parking lot of a credit union. The front end of the plaintiffs’ vehicle was allegedly damaged when an SUV driven by defendant, Leslie Groan (“Groan”), backed out of a parking spot. JQB was restrained in a child safety seat in the back seat and apparently slept through the accident.

The front of Lawrence’s Dodge Intrepid was damaged when it went under the bumper of the SUV. Brown had just stopped at the ATM in the lot. Groan testified that she did not see or hear the plaintiffs’ vehicle as it |2was moving through the parking lot. Groan’s SUV had about $1,800 worth of damage on the rear passenger side, mostly around the steel bumper.

Brown obtained treatment with a chiropractor for mid-back pain and continued chiropractic therapy from March until June 2006. He claimed special damages for this treatment totaling $2,969. The chiropractor also treated JQB a couple of times.

Groan’s insurer appraised the property damage to Lawrence’s vehicle at $6,400 and had it towed for repair. By the time of trial, the vehicle had not been repaired. Apparently, the vehicle had some pre-ex-isting collision damage from another prior accident.

Plaintiffs’ suits claimed damages for personal injury and the property loss to the vehicle. After a one-day trial, the trial court took the matter under advisement and post-trial briefs were submitted with proposed judgments. By written ruling adopting defendants’ proposed findings of fact, the trial court dismissed plaintiffs’ consolidated actions.

Discussion

In negligence cases, we use a duty-risk analysis to determine whether liability exists under the facts of a particular case. Under this analysis, a plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. LeJeune v. Union Pacific Railroad, 97-1843 (La.4/14/98), 712 So.2d 491. The element of duty is a question of law. Century Ready Mix Corp. v. Boyte, 2,634 (La.App.2d Cir.10/24/07), 968 So.2d 893. The inquiry is whether a plaintiff has any law-statutory, jurisprudential, or arising from general principles of fault-to support his or her claim. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So,2d 606; Manno v. Gutierrez, 05-0476 (La. App. 1st Cir.3/29/06), 934 So.2d 112.

Where there are concurrent causes of an accident, the proper inquiry is whether the conduct in question was a substantial factor in bringing about the accident. Manno, supra. Whether the defendant’s conduct was a substantial factor in bringing about the harm, and thus, a cause-in-fact of the injuries, is a factual question to be determined by the fact finder. Bonin v. Ferrellgas, Inc., 03-3024 (La.7/2/04), 877 So.2d 89, 94.

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State through Dept. of Transp. and Devel., 617 So.2d 880 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840 (La.1989). When factual findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings. Id. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985). Furthermore, where there is a |4conflict in testimony, evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Daye v. General Motors Corp., 97-1653 (La.9/9/98), 720 So.2d 654.

In a case involving a two-car collision in a private parking lot, this court noted in Stephens v. Fuller, 39,918 (La.App.2d Cir.6/29/05), 907 So.2d 917, that a motor vehicle rule under the Louisiana Highway Regulatory Act (the “Act”) governing standards of care in highway driving did not strictly govern the duty of one of the drivers. Acknowledging this, plaintiffs nevertheless argue that the provisions of the Act, La. R.S. 32:103 (moving parked vehicles) and La. R.S. 32:281(A) (limitations on backing), are generally instructive for Groan’s duty of care in this case. These two statutes provide as follows:

La. R.S. 32:103. No person shall move a vehicle which is stopped, standing, or parked unless and until such movement can be made with reasonable safety.
La. R.S. 32:281(A). The driver of a vehicle shall not back the same unless such movement can be made with reasonable safety and without interfering with other traffic.

Considering these provisions, we find that the reasonably expected speed and movement of vehicles in a parking lot and the utility of closely configuring the parking spaces make the duty of the driver of the parked vehicle something less than these statutory duties imposed for highway traffic. Parked vehicles of varying shapes and sizes are closely aligned in a parking lot. The field of vision of the driver backing out of the parking space is expected to be impeded or even blocked altogether as initial | ¡^movement of the vehicle begins. The vehicle’s brake and backup lights serve as reasonable notice to oncoming traffic so long as the driver backs out very slowly and occasionally stops so that the lights and minor movement can be readily observed. On the other hand, drivers moving through the parking lot have the paramount duty of attentiveness and maintaining a low vehicle speed because of other cars and pedestrians. In contrast to the highway driver with the right-of-way, one expects that vehicles in a parking lot will be backing up slowly into the travel lane with visibility somewhat impaired for the driver. This action is expected to cause minor interference with the movement of the oncoming traffic. The key safety factor for both drivers is a greatly reduced level of speed, enabling the driver in the travel lane with unimpaired vision either to stop, maneuver around or sound the horn to avoid a potential collision. Accordingly, we do not find that the statutory duties of the Louisiana Highway Regulatory Act strictly govern this setting.

As a driver backing up her vehicle, Groan’s duty required a slow, halting motion. Yet that duty did not require that she must initially see the oncoming traffic. Brown’s duty to exercise much caution while driving behind parked vehicles encompassed the risk that a vehicle would begin slowly backing out from a parking slot. In that event, such duty required him to yield or at least insure that Groan’s vehicle stopped. As such, we define Brown’s duty not as an accommodation for Groan’s negligence. Instead, his duty is designed to guard against a foreseeable risk resulting from the confinement of parked vehicles in the lot. While the key factor of | (¡speed might result in the breach of both drivers’ duties and concurrent negligence, a finding of complete fault attributable to either driver is a possibility depending upon the facts of each case. With these duties defined, we will now review the facts and conclusions of the trial court for manifest error.

There are two important facts concerning the configuration of this parking lot. First, there were two lanes of travel behind the parking space for Groan’s vehicle. Second, the marked parking spaces were perpendicular to the travel lanes and on one side of those lanes only. This meant that as Brown drove his vehicle in the lane closest to the parked vehicles, he had only that one line of vehicles to watch and could maneuver into the other lane if necessary. The testimony indicates that no other oncoming vehicle approached Brown from the opposite direction as Groan backed out. Also, since the undisputed testimony showed that two similarly-sized vehicles on either side of Groan’s SUV blocked her view, she could only see clearly through her mirrors to directly behind her vehicle and not toward the portion of the travel lane in which Brown was driving.

Groan testified that she only backed up her SUV approximately three feet when the collision occurred. She stated that she was moving at “just a slow speed.” The SUV’s taillights were working. Brown testified that he did not see the SUV. Groan’s estimate of the three-foot movement of the SUV from its parking place was not disputed.

|7Significant evidence of how the collision occurred is revealed by the damaged vehicles as shown in photos. The trial court’s finding of fact states:

Based upon the property damage photographs of each of the vehicles, it is obvious to the Court that the front, passenger corner of the Brown vehicle traveled under and probably in a downward manner beneath the rear, passenger corner of Ms. Groan’s SUV.

The crushed condition of the car’s hood clearly shows it was pushed back toward the windshield. The side panel of the car does not appear to be crushed inward toward the engine compartment. In contrast, the side quarter panel of the SUV appears to have been hit directly, compressing it and the corner of the bumper inward. The vehicular damage indicates that, contrary to Brown’s view of the accident, the SUV did not back into his vehicle. Brown hit the SUV after it had just protruded into his lane of travel.

From these facts, the trial court could conclude that the slow movement of Groan’s SUV and the illumination of the SUV’s taillights support the ruling of no breach of Groan’s duty of care. Those factors allowed Brown, if he was driving attentively and slowly through the parking lot, to recognize the vehicle exiting from its parking place. The SUV was already in front of Brown and only slightly in his lane before the crash. The trial court’s view that Groan was moving so slowly that her actions were reasonable is not clearly wrong or manifestly erroneous.

Is Conclusion

For the foregoing reasons, the trial court’s ruling is affirmed. Costs of appeal are assessed to appellants.

AFFIRMED.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Kenneth Lennell JOSHUA, Appellant.
    No. 42,766-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Laura M. Pavy, for Appellant.
    Kenneth Lennell Joshua, pro se.
    Paul J. Carmouche, District Attorney, John F. McWilliams, Jr., Brian H. Barber Assistant District Attorney, for Appellee.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   WILLIAMS, J.

b The defendant, Kenneth Lennell Joshua, was charged by bill of information with aggravated battery, a violation of LSA-R.S. 14:34. Following a jury trial, he was convicted as charged. He was subsequently adjudicated a third felony offender and sentenced to life in prison at hard labor without benefit of probation, parole or suspension of sentence. For the reasons set forth herein, we affirm the defendant’s conviction and sentence.

FACTS

On February 3, 2004, the victim, Vincent Shine, was standing near the corner of Portland and Stonewall Street in Shreveport, Louisiana talking to a woman named “Rita.” The defendant approached Shine asking, “What are you doing talking to her?” Shine replied, “I wasn’t talking to you, I was talking to her.” The defendant pulled out a gun and attempted to shoot Shine, but the gun jammed. The defendant pulled the trigger again and shot at Shine at least five times, striking him once in the right leg. The defendant and Rita fled the scene. When police officers interviewed Shine, he identified the defendant as the shooter.

Shine was not armed at the time of the incident. The gun used to shoot Shine was never located, but shell casings from a .38-caliber handgun were recovered from the crime scene. Police officers were unable to locate any witnesses to the crime.

The defendant was arrested on February 24, 2004. On April 1, 2004, the defendant was charged by bill of information with aggravated battery, a violation of LSA-R. S. 14:34. He proceeded to trial before a jury of six and | ¿was found guilty as charged. The defendant was subsequently adjudicated a third felony offender and was sentenced to life in prison at hard labor, without benefit of probation, parole or suspension of sentence. This appeal followed.

DISCUSSION

The defendant’s appellate counsel only assigned as error the excessiveness of the defendant’s sentence. However, the defendant filed a pro se brief, adding four additional assignments of error.

Sufficiency of the Evidence

In the defendant’s first pro se assignment of error, he contends the evidence was insufficient to support a conviction of aggravated battery. According to the defendant, his conviction was based on the victim’s uncorroborated testimony. The defendant also contends Detective Russell Ross of the Shreveport Police Department relied primarily upon “secondhand” information and failed to interview witnesses who could have corroborated the defendant’s testimony that a person called “Little Duke” shot Shine.

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. Murray, 36,-137 (La.App.2d |aCir.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 LSA-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. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); 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; State v. Barakat, 38,419 (La.App.2d Cir.6/23/04), 877 So.2d 223. To convict a defendant based upon circumstantial evidence, every reasonable hypothesis of innocence must be excluded. Id., citing LSA-R.S. 15:438. In the absence of internal contradiction or irreconcilable conflict with the 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. Wiltcher, 41,981 (La. App.2d Cir.5/9/07), |4956 So.2d 769.

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; State v. Du-pree, 41,658 (La.App.2d Cir.1/31/07), 950 So.2d 140, writ denied, 2007-0439 (La.10/12/07), 965 So.2d 936. 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. When 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, units 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).

Battery is the intentional use of force or violence upon the person of another. LSA-R.S. 14:33. Aggravated battery is a battery committed with a dangerous weapon. LSA-R.S. 14:34. “Dangerous weapon” includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm. LSA-R.S. 14:2(3).

In the instant case, Shine testified that he knew the defendant personally and had been involved in an altercation with the defendant in the past. He further testified that on the day in question, he and the defendant | .^exchanged words, and the defendant pulled out a gun and attempted to shoot him, but the gun jammed. The defendant pulled the trigger of the gun again and shot at Shine at least five more times, striking him in the right leg near his knee.

The defendant testified in his own defense. He admitted that he and Shine had been involved in a “fistflght” approximately three weeks prior to the shooting. However, the defendant testified that a man called “Little Duke” shot Shine because Shine owed him money. The defendant stated that he initially told police officers that he did not know who shot Shine because he “wasn’t going to tell on nobody.” According to the defendant, the shooting was witnessed by “probably 12 to 13 other people” and “everybody took off running” when the shooting started.

After reviewing the record, we find that the evidence was sufficient to support the defendant’s conviction of aggravated battery. Shine, who testified that he had known the defendant “for some years,” identified the defendant as the shooter to police officers who interviewed him at the scene shortly after the shooting. Shine was interviewed by Detective Ross in the emergency room on the night of the shooting, and he again identified the defendant as the shooter. Shine also positively identified the defendant as his assailant in open court during the trial. Shine testified that he was standing approximately five feet from the defendant at the time of the shooting, and he was “one hundred percent” certain that the defendant shot him. On cross-examination, Shine admitted that the shooting occurred at night, but he stated that there were street lights surrounding the area.

I [/Die finder of fact, in this case the jury, clearly accepted Shine’s version of the events and rejected the defendant’s testimony. As stated above, the testimony of one witness, if believed by the jury, is sufficient support for a factual conclusion. See, State v. Burd, supra. It was the jury’s prerogative to assess credibility, and we will not disturb the jury’s verdict.

The evidence in the record clearly reflects that the defendant committed the charged offense of aggravated battery in that he intentionally used force and violence upon the victim, while he was armed with a dangerous weapon that was clearly calculated or likely to produce death or great bodily harm. Therefore, this supplemental assignment of error is without merit.

Jury Instructions

In his next pro se assignment of error, the defendant contends the trial court erred in failing to include the definition of the term “attempt” in its jury instructions and in failing to include the charges of “attempted aggravated battery,” “attempted second degree battery” and “attempted simple battery” on the jury verdict form. According to the defendant, he was statutorily entitled to have the requested instructions presented to the jury. He argues that his conviction must be set aside because of the trial court’s erroneous refusal to give the instructions.

When a count in an indictment sets out an offense which includes other offenses of which the accused could be found guilty under the provisions of Code of Criminal Procedure Article 814 or 815, the court shall charge the jury as to the law applicable to each offense. LSA-C.Cr.P. art. |7803. The following findings are listed under LSA-C.Cr.P. art. 814(A)(14) as responsive verdicts to a charge of aggravated battery: guilty, guilty of second degree battery, guilty of simple battery; not guilty.

The Louisiana Supreme Court has held that a conviction of “attempted aggravated battery” is “wholly invalid.” In State v. Mayeux, 498 So.2d 701 (La.1986), the defendant was charged with two counts of aggravated battery. At the request of defense counsel, the jury was instructed that a responsive verdict of guilty of attempted aggravated battery could be returned. The jury returned a verdict of guilty of attempted aggravated battery on both counts. The court held that, in addition to being unresponsive to the crime charged, the verdict purported to convict the defendant of an offense not designated as a crime in Louisiana. The court found that the verdict was “wholly invalid,” amounted to the conviction of a “non-crime,” and therefore, could operate neither as a conviction nor an acquittal for purposes of double jeopardy.

In State v. Nazar, 96-0175 (La.App. 4th Cir.5/22/96), 675 So.2d 780, the defendant was charged with simple battery, but was found guilty of “attempted simple battery.” Citing Mayeux, supra, the court held that “attempted simple battery” was a non-crime and thus, the guilty verdict was invalid. The court stated, “[T]here is no such crime in Louisiana. An attempted simple battery is a simple assault.” Id. at 781.

Similarly, in State v. Arito, 2001-1512 (La.App. 4th Cir.2/27/02), |s811 So.2d 1146, the defendant, who was charged with second degree battery, was convicted of “attempted” second degree battery. The court of appeal vacated the conviction, stating:

La.C.Cr.P. art. 814(A)(15), which sets forth the only responsive verdicts for the charge of second degree battery, does not set forth a responsive verdict of attempted second degree battery. Under the Louisiana Supreme Court decision in Mayeux, and this court’s decision in Nazar, attempted second degree battery is a non-crime, and the trial court’s verdict of guilty of attempted second degree battery is invalid.

Id. at 1150.

Moreover, the Louisiana Supreme Court has consistently held that when responsive verdicts are mandated by LSA-C.Cr.P. art. 814, the trial court is without authority to vary or add to the prescribed verdicts. State v. Square, 433 So.2d 104 (La.1983); State v. Simmons, 357 So.2d 517 (La.1978). Consequently, the trial court may exclude one of the responsive verdicts listed in Article 814, but it cannot add to their number. State v. Wright, 36,635 (La.App.2d Cir.3/7/03), 840 So.2d 1271.

We conclude that the trial court did not err in failing to charge the jury with regard to the “crimes” of “attempted” aggravated battery, “attempted” second degree battery and “attempted” simple battery. As noted above, the proposed offenses are “non-crimes.” Moreover, the proposed offenses are not responsive verdicts of the crime of aggravated |9battery as listed in LSA-C.Cr.P art. 814. Therefore, the trial court was without authority to add the proposed offenses to the prescribed verdicts. This assignment lacks merit.

Ineffective Assistance of Counsel

The defendant also argues that he received ineffective assistance of counsel. Specifically, the defendant contends trial counsel failed to: (1) investigate and interview or subpoena the witnesses who allegedly observed the shooting; (2) object to “hearsay testimony and prejudicial remarks” made by Detective Ross; (3) object on the grounds that he was the victim of an illegal arrest; and (4) object to the state’s failure to prove that he was advised of his Miranda rights.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. King, 41,083 (La.App.2d Cir.6/28/06), 935 So.2d 354; State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). Claims of ineffective assistance of counsel are more properly raised in an application for post-conviction relief in the trial court because it provides the opportunity for a full evidentiary hearing under LSA-C.Cr.P. art. 930. State v. Lane, 40,816 (La.App.2d Cir.4/12/06), 927 So.2d 659, 669, writs denied, 2006-1453 (La.12/15/06), 944 So.2d 1283, 2006-2502 (La.5/4/07), 956 So.2d 599. When the record is sufficient, however, allegations of ineffective assistance of trial counsel may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Lane, supra.

I min the instant case, the appellate record does not contain sufficient information for this court to adequately review all of the defendant’s allegations with regard to his claim of ineffective assistance of counsel. An application for post-conviction relief will afford the defendant the opportunity to develop evidence with regard to his claims. Moreover, a full evidentiary hearing will allow the trial court to review facts and determine the merits of the defendant’s claims. Accordingly, we find that the defendant’s assertions of ineffective assistance of counsel will be more appropriately addressed in the post-conviction relief process.

Sentence

Appellate counsel argues that although the defendant’s conviction meets the requirements of the law for purposes of the imposition of a life sentence, the trial court should have more carefully considered his record and crime of conviction. He further argues that due to the extreme gravity of the sentence, it is imperative that this court consider the particular circumstances of the defendant. In a separate pro se assignment of error, the defendant argues that he is entitled to the benefit of the 2001 revision to LSA-R.S. 15:529.1. According to the defendant, the ameliorative changes to the statute drastically reduced a defendant’s sentencing exposure and should have been considered by the court prior to sentencing.

The defendant’s underlying conviction was for aggravated battery, in violation of LSA-R.S. 14:34. Under LSA-R. S. 14:2(B)(5), aggravated battery is listed as a crime of violence. Following the trial court’s finding |nthat the defendant was a third felony offender, the defendant was subject to sentencing pursuant to LSA-R.S. 15:529.1, which provides, in pertinent part:

A. (1) Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(ii) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B) ..., or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

In the instant case, the defendant’s two prior felonies, simple burglary of an inhabited dwelling and simple burglary, are crimes punishable by imprisonment for 12 years under LSA-R.S. 14:62 and 14:62.2. As stated above, the third felony, aggravated battery, is defined as a crime of violence under LSA-R.S. 14:2(B)(5).

Because the sentence imposed for the habitual offender adjudication is proscribed by statute, the trial court’s compliance with LSA-C.O.P. art. 894.1 is not required. State v. Gay, 34,371 (La. App.2d Cir.4/4/01), 784 So.2d 714. Moreover, since the habitual offender law is constitutional in its entirety, the minimum sentences it imposes upon recidivists are also presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 |12So.2d 672; State v. Grant, 39,102 (La. App.2d Cir.12/15/04), 890 So.2d 689, writ denied, 2005-1372 (La.1/13/06), 920 So.2d 233.

Although the supreme court stated in State v. Dorthey, 623 So.2d 1276 (La.1993), that courts have the power to declare a mandatory minimum sentence excessive under Art. I, § 20 of the Louisiana Constitution, this power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive. State v. Grant, supra. In order to successfully rebut the presumption that a mandatory minimum sentence is constitutional, the defendant must “clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case.” State v. Johnson, 709 So.2d at 676; State v. Allen, 41,548 (La.App.2d Cir.11/15/06), 942 So.2d 1244.

The sentencing court may not rely solely upon the nonviolent nature of the present crime or prior crimes as sufficient evidence to rebut the constitutional presumption. State v. Johnson, supra. The lack of violence cannot be the only reason, or even the main reason, for declaring such a sentence excessive. Id.

In the present case, the defendant has failed to rebut the presumption that the mandatory minimum sentence is constitutional. In particular, he has not shown that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity 113of the offense and the circumstances of the case. Moreover, the fact that his two prior felony convictions were for nonviolent crimes is not sufficient to rebut the constitutional presumption. As stated above, the lack of violence cannot be the only reason, or even the main reason, for declaring such a sentence excessive. State v. Johnson, supra.

The facts and circumstances of the instant case illustrate the defendant’s complete disregard for human life. The defendant shot at the victim multiple times at point blank range, solely because he took offense to the victim speaking to a particular woman. Because the defendant has not shown that his case falls within those rare circumstances where a downward departure is warranted, we do not find that the mandatory minimum sentence is excessive.

ERRORS PATENT

The defendant also urged this court to search the record for any patent error and to take whatever corrective action deemed appropriate. We have examined the record and note the presence of one error patent. At sentencing, the trial court did not adequately advise the defendant of the time period within which to apply for post-conviction relief. The trial court simply advised the defendant he had two years to seek post-conviction relief. In State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189, the Louisiana Supreme Court held that LSA-C.Cr.P. art. 930.8(C), which requires the trial court to inform the defendant of the limitation period for filing an application for post-conviction relief, is supplicatory language which does not bestow an enforceable right on an individual 114defendant.

In the instant case, the trial court should have advised the defendant, and we now advise him by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 or 922. See State v. Pugh, 40,159 (La.App.2d Cir.9/21/05), 911 So.2d 898.

CONCLUSION

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

AFFIRMED.

      . The case was remanded for a new trial and the defendant was ultimately convicted of aggravated battery. The federal court granted the defendant's writ of habeas corpus, finding that the defendant’s conviction for aggravated battery was barred by double jeopardy. See, Mayeux v. Belt, Til F.Supp. 957 (W.D.La. 1990).

      . In State v. Morse, 365 So.2d 1319 (La.1978), however, the Louisiana Supreme Court held that the trial court is required to charge the jury, when properly requested, "as to the law applicable to any theory of defense which a jury could reasonably infer from the evidence." The record in the present case reflects that the jury was fully instructed to acquit the defendant if it did not find the defendant guilty of the charged offense or any of the lesser responsive verdicts. Thus, under the rationale of Marse, the failure of the trial court to give a special charge with regard to a non-responsive offense was not reversible error.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Ardic FIELDS, Appellant.
    No. 42,761-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Ardic Brian Fields, pro se.
    Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Dhu Thompson, Assistant District Attorneys, for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   LOLLEY, J.

_JjThis criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Ardic Fields, was convicted by a jury of attempted second degree murder, La. R.S. 14:30.1 and La. R.S. 14:27. Fields was adjudicated a third felony habitual offender and sentenced to 100 years of imprisonment at hard labor without benefits. Fields now appeals, and for the following reasons, we affirm his conviction and sentence.

Facts

Fields and Linda Alexander, the victim, began dating in 1998. In January 2000, Alexander ended the relationship. Fields was purportedly angered by the break-up and wanted to resume the relationship. On July 4, 2000, Alexander and her 14-year-old son, Steven, were home together when Fields entered the home, uninvited. Fields was angry and agitated, and after some time of conversation with Alexander, he pulled a knife out of his pocket and began stabbing her. Steven was able to run from the residence and call police. After stabbing Alexander over fifty times with his knife, Fields stopped and fled the scene in Alexander’s vehicle. Later, Alexander’s vehicle was recovered in Dallas, Texas, where Fields was also taken into custody.

Fields was originally charged by bill of information with attempted first degree murder. Subsequently, the state filed an amended bill of information, amending the charge to attempted second degree murder, pursuant to La. R.S. 14:30.1 and La. R.S. 14:27. Fields initially pled not guilty, then changed his plea to not guilty and not guilty by reason of | ¡.insanity. Preliminary matters included a request for a sanity commission, which was granted by the trial court. Fields was initially found incompetent to proceed on July 19, 2004. On March 28, 2006, the trial court ruled that Fields was competent to proceed, and after examination by a second sanity commission and the related hearing, the trial court ruled that Fields was competent to proceed and was also competent at the time of the offense.

After a trial by jury, Fields was found guilty as charged. The state then filed a habitual offender bill of information charging Fields as a fourth felony habitual offender, to which he pled not guilty. His motions for post-verdict judgment of acquittal and new trial were denied by the trial court prior to sentencing. After a habitual offender proceeding, the trial court found Fields to be a third felony habitual offender. Subsequently, Fields was sentenced to serve 100 years’ imprisonment at hard labor without benefit of probation, parole or suspension of sentence. His motion to reconsider sentence was denied without a hearing, and this appeal ensued.

Discussion

On appeal, Fields’ appeal counsel brings two assignments of error, along with two assignments of error raised by Fields in his pro se capacity.

Sufficiency of the Evidence

In his first assignment of error, Fields argues that the evidence was insufficient to support the conviction of attempted second degree murder. Specifically, Fields maintains that the State failed to prove that he had the specific intent to kill, an element of the crime. We disagree.

|aThe 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. Cummings, 1995-1377 (La.02/28/96), 668 So.2d 1132; State v. Henson, 38,820 (La.App. 2d Cir.09/22/04), 882 So.2d 670. 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. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Henson, supra. 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.08/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. 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. Henson, supra.

| ¿Fields was charged by amended bill of information with attempted second degree murder, violations of La. R.S. 14:27 and 14:30.1 A(l). Second degree murder is defined, in pertinent part, as “... the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.” La. R.S. 14:30.1. In La. R.S. 14:27(A), “attempt” is defined, in pertinent part, as follows:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Although second degree murder includes a specific intent to inflict great bodily harm, a conviction for attempted second degree murder requires a finding that the defendant had the specific intent to kill. State v. Butler, 322 So.2d 189 (La.1975); State v. Golson, 27,083 (La.App. 2d Cir.06/21/95), 658 So.2d 225, writ denied, 1997-0165 (La.10/10/97), 708 So.2d 600. Therefore, in the instant case, the state had the burden of proving that Fields had the specific intent to kill Alexander and that he committed an act for the purpose of accomplishing that goal.

Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the proscribed criminal consequences to follow his act or his failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert, denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990). Specific intent may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Bishop, 2001-2548 (La.01/14/03), 835 So.2d 434; State \¡¡o. Allen, 41,548 (La.App. 2d Cir.11/15/06), 942 So.2d 1244. Specific intent to kill can be implied by the intentional use of a deadly weapon such as a knife or a gun. State v. Templet, 2005-2623 (La.App. 1st Cir.08/16/06), 943 So.2d 412, writ denied, 2006-2203 (La.04/20/07), 954 So.2d 158. Finally, the determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Wilson, 42,440 (La.App. 2d Cir.09/19/07), 965 So.2d 992. In reviewing the correctness of such a determination, the court should review the evidence in a light most favorable to the prosecution and must determine if the evidence is sufficient to convince a reasonable trier of fact of the guilt of the defendant beyond a reasonable doubt as to every element of the offense. Id., citing Jackson v. Virginia, supra; State v. Huizar, supra.

In the case sub judice, the state clearly met its burden of proving that Fields had the specific intent to kill Alexander, and he committed an act for the purpose of accomplishing that goal. According to Alexander, Fields actually expressed his intent to kill her with his knife. She explained at trial that when he initially grabbed her, he told her that since her son was going to call the police, he might as well kill her. Additionally, Fields’ specific intent to kill Alexander can also be inferred from the general circumstances of the crime. First, the jurisprudence is clear that specific intent to kill can be implied by the intentional use of a deadly weapon such as a knife — the weapon Fields utilized against Alexander. Second, Fields’ specific intent to kill is evidenced by the bloody and brutal nature of his actions. Fields, in a fit of anger, stabbed his victim over 50 times (resulting in over 1,000 |fistitches and staples) — we find it unfathomable that he could have possessed anything other than a specific intent to kill Alexander. Therefore, considering the barbarous nature of the crime, along with Fields’ statement to Alexander that he might as well kill her, the record more than supports the jury’s finding of his specific intent to kill Alexander. This assignment is without merit.

Excessive Sentence

In his second assignment of error, Fields argues that the sentence imposed is excessive. 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 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 compliance 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. Landos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La. App. 2d Cir.01/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.03/11/05), 896 So.2d 57, 2004-2380 (La.06/03/05), 903 So.2d 452. 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. Hampton, supra. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.09/28/07), 964 So.2d 351.

Second, 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. Dor-they, 623 So.2d 1276 (La.1993). 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. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App. 2d Cir.01/24/07), 948 So.2d 379.

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.01/27/05), 920 So.2d 866, writ denied, 2006-0478 (La.09/29/06), 937 So.2d 851. 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, 1994-0217 (La.06/03/94), 638 So.2d 218. These matters may be ^considered even in the absence of proof the defendant committed the other offenses. State v. Estes, 42,093 (La.App. 2d Cir.05/09/07), 956 So.2d 779.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 1999-1753 (La.05/16/00), 769 So.2d 1158.

On this record and considering the particular facts at hand, we do not find Fields’ sentence of 100 years’ imprisonment to be excessive. The record clearly supports the trial court’s determination that Fields earned the maximum sentence, as he can clearly be classified as one of the worst offenders, and this offense, one of the worst offenses. When this crime and Fields’ punishment are viewed in light of the harm done to society by violent recidivists, his 100-year hard labor sentence without benefits does not shock the sense of justice. The trial court’s sentence was not a manifest abuse of its discretion, and for the foregoing reasons, Fields’ sentence is affirmed.

Pro Se Assignments of Error

In Fields’ supplemental pro se appeal brief, he brings two assignments of error, related to various issues. First, he states that the trial court abused its discretion and committed manifest error in denying his motion to dismiss his appointed counsel, which was heard on August 7, 2006. Fields refers to and includes a copy of the transcript from that proceeding, which is not part of the appellate record. Review of this issue |9would be more appropriate later on a request for post-conviction relief; therefore, we will not address it on appeal.

Fields also argues that the trial court erred in denying his motion to quash the indictment based upon the time limitations set forth in La. C. Cr. P. art. 578(2). He further argues that this court erred in denying his writ application pertinent to the motion to quash in writ no. 38,251-KW on October 16, 2003, and again in writ no. 41,951-KH on October 26, 2006, because we relied on the minute entries. He notes that the transcripts of the hearing on the motion to quash were not made part of the record, which he argues supports his claim that the rulings of the trial court and this court were in error.

Although Fields is correct that the transcripts are not part of the appellate record, we stand by our previous rulings on his writ applications on this same issue. As we noted in our disposition in writ no. 38,251-KW, the court minutes, which are part of the record, support the trial court’s ruling to deny the motion to quash. Prosecution against Fields was instituted on January 29, 2001. On January 14, 2003, Fields was present with counsel, the case was set for trial on April 7, 2003, and the case was continued until February 20, 2003. After this action, the state had a minimum of one year from the January 14, 2003 ruling in which to commence trial. La. C. Cr. P. art. 580; State v. Evans, 627 So.2d 664 (La.App. 2d Cir.1993). The March 26, 2003 motion to quash was filed within this one-year time period, ie., the deadline by which the state had to commence Fields’ trial had not been reached; thus, the motion was filed |inprematurely and was properly denied. This assignment is therefore without merit.

In his second assignment of error, Fields argues that the trial court erred in denying his motion to quash the habitual offender bill. Specifically, he claims that without a transcript of the 1997 aggravated battery conviction, it cannot be determined that he was properly Boykinized for that offense. Fields argues that court minutes are insufficient proof because they merely reflect that he was advised of his rights as per Boykin v. Alabama. Fields concludes that his sentence is illegal and requires reversal as a result.

The state’s burden of proof in habitual offender proceedings under La. R.S. 15:529.1 is stated in State v. Shelton, 621 So.2d 769 (La.1993):

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boy-kin rights. [Footnote omitted.]

The Shelton court determined that it was appropriate to shift the burden to the defendant after the state makes the initial showing that the In defendant made the guilty plea with the representation of counsel because there is a “presumption of regularity that attaches to final judgments.” Id. at 778; State v. Zeigler, 41,-617 (La.App. 2d Cir.12/20/06), 945 So.2d 946.

Applying the burden of proof set forth in Shelton to the facts of this case, we conclude that the state met its initial burden of proof. The minutes for the 1997 conviction show that the state proved the existence of the prior guilty plea and that Fields was represented by counsel when it was taken. Fields, however, has not met his subsequent burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Because Fields did not meet his subsequent burden of proof, the inquiry stops there. The state was not required to prove the constitutionality of the plea by producing a “perfect” transcript. Therefore, the trial court did not err in denying Fields’ motion to quash the habitual offender bill on this ground. So considering, this assignment is without merit.

Error Patent

Our error patent review of the record shows that the trial court imposed Fields’ sentences immediately after the denial of his motions for new trial and post-verdict judgment of acquittal. There is no showing on the record that Field waived the delay required by La. C. Cr. P. art. 873. However, he did not complain of actual prejudice, so the error appears harmless. State v. Roberson, 40,809 (La.App. 2d Cir.04/19/06), 929 So.2d 789.

| ^Conclusion

For the foregoing reasons, the conviction and sentence of Ardic Fields are affirmed.

AFFIRMED.