author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Antonio DAVENPORT, Appellant.
    No. 43,101-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.
    Rehearing Denied April 24, 2008.

      Louisiana Appellate Project by James E. Beal, Jonesboro, for Appellant.
    Antonio Davenport, Pro Se.
    Paul J. Carmouche, District Attorney, Damon Daniel Kervin, Tommy J. Johnson, John Ford McWilliams, Jr., Assistant District Attorneys, for Appellee.
    Before BROWN, C.J., and PEATROSS and DREW, JJ.
   PEATROSS, J.

h Defendant, Antonio Davenport, was charged with one count of armed robbery, a violation of La. R.S. 14:64. He pled not guilty, but a jury convicted Defendant as charged. The State filed a habitual offender bill against Defendant, and the trial court found him to be a second felony habitual offender. The trial court imposed a sentence of 50 years’ imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Defendant filed a motion to reconsider sentence asserting a bare claim of excessiveness; the trial court denied that motion. For the following reasons, we affirm the conviction of Defendant. The sentence of Defendant is amended and, as amended, is affirmed.

FACTS

On January 3, 2005, Samuel Jeffers drove his girlfriend, Aisha Pouncy, and a female acquaintance, Meacha Davenport, to a house on David Raines Road in Shreveport. Mr. Jeffers had never been to this home; Ms. Davenport asked Mr. Jeffers to take her there in order to visit her mother. Mr. Jeffers, who had just been paid and who had been to the bank with the women earlier that day, was in possession of several thousand dollars in cash and travelers’ checks.

When they arrived, Mr. Jeffers and Ms. Pouncy went inside briefly and met Ms. Davenport’s son, Antonio, Defendant herein. Mr. Jeffers and Ms. Pouncy then went back out to the vehicle. 'As they sat in the vehicle, Defendant left the house, came up to the vehicle and opened the passenger side door. Mr. Jeffers testified:

And when I looked around to see what was going on, that’s when he hit me in the face with the pistol, and then he pointed |2at me first and then he stuck it in my side.... [H]e didn’t say nothing. It happened so quick, you know. He hit me real quick in the head, and then he stuck it in my side, and he said “Give it up.” And I kind of hesitated a little bit, and that’s when he stuck it up under there. He said “I ain’t playing with you, man. I’m fixing to blow your head off right now if you don’t give me that money.”

Mr. Jeffers gave the money to Defendant, who fled along with another man who had approached the driver’s side of the vehicle during the robbery. No physical evidence was recovered to link Defendant to the crime.

Police showed a photo lineup, including Defendant, to Mr. Jeffers and Ms. Pouncy. Mr. Jeffers picked two similar looking people from the lineup, one of whom was Defendant. Ms. Pouncy picked Defendant. Defendant and his mother were subsequently arrested and charged with armed robbery. At trial, Mr. Jeffers and Ms. Pouncy positively identified Defendant as the man with the gun who robbed Mr. Jeffers. A unanimous jury convicted Defendant of armed robbery.

Defendant filed motions for new trial and post-verdict judgment of acquittal, but the trial court denied those motions. In the meantime, the State filed a habitual offender bill of information alleging that Defendant was a second felony offender, having pled guilty to forgery in 2001 and been sentenced to six years’ imprisonment, suspended, with three years’ supervised probation.

On March 17, 2007, the trial court held a habitual offender hearing. A fingerprint expert matched Defendant’s prints to those on the bill of information for the 2001 forgery, and the trial court found Defendant to be a second felony offender. Defendant waived the delay for sentencing, and the |strial court stated that the minimum sentence for a second felony habitual offender who commits armed robbery is 49½ years’ imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Without giving reasons, the trial court sentenced Defendant to serve 50 years’ imprisonment at hard labor without benefit of probation, parole or suspension of sentence. The trial court also ordered Defendant to pay court costs or, in default thereof, to serve 30 days’ imprisonment, concurrently.

Defendant filed a motion to reconsider sentence. Defendant objected to the sentence “on the ground that it is excessive.” The trial court denied that motion. Defendant obtained an out-of-time appeal and now appeals his sentence and conviction.

DISCUSSION

Sufficiency of Evidence

Defendant argues that the evidence is insufficient to sustain his conviction. When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in 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 (La.App.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 evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Tate, 01-1658 (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, 95-1377 (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, 02-2634 (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. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 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. 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, 02-3090 (La.11/14/03), 858 So.2d 422.

La. R.S. 14:64 provides, in part:

A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

LMr. Jeffers testified that Defendant was armed with a handgun, that Defendant hit him in the face with the handgun and then pointed the gun at him and said, “Give it up. I ain’t playing with you, man, I’m fixing to blow your head off right now if you don’t give me that money.” Mr. Jef-fers said that Defendant then took the money and fled. This testimony, believed by the trier of fact, is sufficient evidence to support the verdict. Defendant contends that the jury should not have believed Mr. Jeffers’ testimony because, inter alia, he was not able to identify the specific type of weapon used by the perpetrator, because he admitted that he had been drinking before the incident and because of an alleged discrepancy between statements he made to police and his testimony at trial about the number of perpetrators. Defendant’s counsel cross-examined Mr. Jeffers on all of the points raised by Defendant in his brief, and the jury chose to credit Mr. Jeffers’ testimony despite the minor imperfections in his recollection. On this record, any rational jury could have found the elements of armed robbery proven beyond a reasonable doubt. We find that this assignment of error is without merit.

Prosecutorial Statements

Defendant submits that he was denied his due process rights in violation of the Fourteenth Amendment of the United States Constitution because of alleged improper statements by the prosecutor. Specifically, he contends that the prosecutor made improper statements relating to the conviction of Defendant’s co-conspirator and improperly vouched for the credibility of witnesses.

| BDuring opening statements, the prosecutor informed the jury that Defendant’s mother, Ms. Davenport, had already been convicted of simple robbery for her role in the robbery of Mr. Jeffers, and defense counsel also referred to that fact while stating that Ms. Davenport’s case was on appeal. During closing argument, the prosecutor stated:

You also have to consider the witnesses’ credibility with regard to their statements. Their credibility is good. They don’t have motive or incentive to lie. If they lie, that’s perjury, that’s a felony. There is no reason for them to lie. For them to lie on Mr. Davenport would suggest that they have something to get out of this. That’s what [defense counsel] is trying to say. No, they are not. There is nothing for them to gain by telling a lie here in open court. They don’t gain anything from that.

Defendant argues that these statements amount to the prosecutor improperly vouching for its key witnesses.

Defendant submits that these statements constitute prosecutorial misconduct that amounts to reversible error. As the jury was instructed, however, opening and closing arguments are not evidence. La. C. Cr. P. art. 774 provides, in part:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the State or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.

Defense counsel did not object to either of the arguments in question, nor would such an objection have been successful. The conviction of Defendant’s mother in connection with this offense was a fact that defense counsel could not dispute, and the credibility of the witnesses was clearly an important issue in the case because of the absence of physical evidence.

|7In State v. Smith, 554 So.2d 676 (La.1989), overruled on other grounds by State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, writ denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996), the supreme court stated:

[I]t has consistently been held to be reversible error for the prosecutor to express his belief in the guilt of the accused, or the credibility of a key witness, where doing so implies that he has additional knowledge or information about the case which has not been disclosed to the jury.

Commenting on the credibility of the witnesses, however, is proper and within the scope of closing argument where the credibility of the witness is in question and the facts bearing on the witness’s credibility appear in the record. State v. Montgomery, 42,835 (La.App.2d Cir.01/09/08), 974 So.2d 110, citing State v. Mims, 39,757 (La.App.2d Cir.6/29/05), 907 So.2d 237 and State v. Sayles, 395 So.2d 695 (La.1981); State v. Brewer, 38,515 (La.App.2d Cir.8/20/04), 880 So.2d 1005, unit denied, 04-2509 (La.2/18/05), 896 So.2d 27. The facts bearing on the witnesses’ credibility were explored at length during the trial and the prosecutor’s arguments properly focused on those facts and were not an appeal to prejudice or other improper matters. We, therefore, find that this assignment of error is without merit.

Habitual Offender Hearing

Defendant argues that his habitual offender adjudication must be reversed because the State did not file the habitual offender bill until after the multiple offender hearing had already commenced. The record reflects that the prosecutor filed the habitual offender bill of information in the ^district court on March 14, 2007, although the State had already filed a supplemental discovery response on January 17, 2007, that included the bill of information and minutes of court for Defendant’s prior conviction for forgery in Morehouse Parish. Trial of the habitual offender bill was conducted on March 17, 2007, at which time the prosecutor stated that he was then filing the habitual offender bill and calling it for arraignment. Defense counsel stated that he was aware that the prosecutor was going to file a multiple offender bill and that he had received discovery related to the bill. The trial court accepted the-filing of the bill and informed Defendant of his right to remain silent and told Defendant that “you are entitled to discovery in connection with this matter within fifteen days of said arraignment.” Defense counsel did not object to the late filing of the bill or that he was not given any delay to respond to the bill. The trial court found no prejudice to Defendant in the late filing and found Defendant to be a habitual offender based upon the fingerprint evidence and his prior conviction. Despite the lack of a verbal objection, the trial court stated that it “[n]ote[d] the defense’s objection to the Court’s ruling for the record.”

La. R.S. 15:529.1(D)(1) provides in part that a defendant shall have 15 days to file objections to a habitual offender bill from the date he denies or refuses to answer the bill. On appeal, Defendant objects to the procedure used in his case, but he made no objection at the time of the occurrence. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. 841. The generic statement by the trial court is insufficient to substitute for a specific objection to the lack |9of a delay period in this case. Thus, this assignment of error is not properly before this court and need not be addressed on the merits. La. C. Cr. P. art. 841; State v. Sanders, 39,645 (La.App.2d Cir.4/6/05), 900 So.2d 221, writ denied, 05-1634 (La.2/3/06), 922 So.2d 1173. Further, errors in a habitual offender proceeding are subject to harmless error review. State v. Richardson, 39,456 (La.App.2d Cir.3/2/05), 896 So.2d 257, writ denied, 05-0845 (La.11/29/05), 916 So.2d 165, cert. denied, 547 U.S. 1135, 126 S.Ct. 2032, 164 L.Ed.2d 791 (2006). Any error in the late filing of the bill was surely harmless in this case; the State provided to Defendant discovery regarding Defendant’s prior conviction two months prior to the hearing and Defendant’s attorney was aware that the bill would be filed. We, therefore, find that this assignment of error is without merit.

Excessive Sentence

Defendant urges that his sentence is excessive and that the habitual offender law does not contain a restriction against parole for him.

La. R.S. 14:64 provides, in part:

B. 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.

The minimum sentence for armed robbery for a second felony habitual offender is 49 1/2 years’ imprisonment at hard labor. La. R.S. 15:529.1; State v. Roshell, 42,398 (La.App.2d Cir.9/26/07), 966 So.2d 770. Since the underlying offense of armed robbery requires the sentence to be imposed without benefit of parole, the habitual offender sentence likewise is to be|inimposed without parole, despite La. R.S. 15:529.1(G). State v. Thomas, 42,322 (La. App.2d Cir.8/15/07), 962 So.2d 1119, citing State v. Hailey, 41,897 (La.App.2d Cir.2/28/07), 953 So.2d 979, writ denied, 07-1024 (La.11/16/07), 967 So.2d 522. Defendant’s assertion that his sentence should not prohibit parole is incorrect.

As in Thomas, swpra, Defendant’s sentence was only six months longer than the minimum sentence. Where there is a mandatory sentence, there is no need for the trial court to justify, under art. 894.1, a sentence it is legally required to impose. State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35; State v. Koon, 31,177 (La.App.2d Cir.2/24/99), 730 So.2d 503.

As this court observed in Thomas, swpra:

The Louisiana Supreme Court has stated that courts have the power to declare a mandatory minimum sentence excessive under Article I, Section 20 of the Louisiana Constitution. However, that power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive. State v. Thomas, [41,734 (La. App.2d Cir.1/24/07), 948 So.2d 1151].
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, 1997-1906 (La.3/4/98), 709 So.2d 672; State v. Gay, 34,371 (La.App.2d Cir.4/4/01), 784 So.2d 714. The courts have held that the burden is on Defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so, 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 | n offense, and the circumstances of the case. State v. Johnson, supra; State v. Gay, supra; State v. Thomas, supra.

Defendant not only pointed a gun at Mr. Jeffers, but verbally threatened to kill him if he did not comply with Defendant’s demands. Although Defendant’s prior offense was a nonviolent forgery, Defendant’s minimum sentence is appropriate and is not excessive.

Error Patent

On error patent review, we find that the trial court erred in ordering Defendant to serve 30 days in jail in default of payment of court costs. An indigent defendant cannot be subjected to default time in lieu of the payment of a fine, costs or restitution. State v. Mack, 30,832 (La.App.2d Cir.6/24/98), 715 So.2d 126; State v. Hughes, 587 So.2d 31 (La.App. 2d Cir.1991), writ denied, 590 So.2d 1197 (La.1992). Indigence may be discerned from the record. State v. Conway, 604 So.2d 205 (La.App. 2d Cir.1992), writ denied, 610 So.2d 797 (La.1993). Defendant was initially represented at trial by the Indigent Defender’s Office. The Indigent Defender’s Office was later excused and Defendant was represented by a court-appointed attorney. On appeal, he was represented by the Louisiana Appellate Project. Thus, we conclude that he was and still is indigent. We, therefore, find that the imposition of jail time in lieu of payment of court costs was illegal, and we amend the sentence to delete that portion providing for the | ^additional 30 days’ incarceration.

CONCLUSION

For the reasons set forth above, we affirm the conviction of Defendant, Antonio Davenport. We amend his sentence to delete the additional 30 days’ incarceration in default of payment of court costs and affirm the sentence as amended.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED.

APPLICATION FOR REHEARING

Before BROWN, C.J., and GASKINS, PEATROSS, DREW and LOLLEY, JJ.

Rehearing denied.

      . La. R.S. 15:529.1(G) provides, "Any sentence imposed under the provisions of this Section shall be without benefit of probation or suspension of sentence.”


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Ivory V. NEWTON, Appellant.
    No. 43,079-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.

      James E. Beal, Louisiana Appellate Project, Jonesboro, for Appellant.
    Jerry L. Jones, District Attorney, Brian Harkins, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS and DREW, JJ.
   GASKINS, J.

|TThe defendant, Ivory V. Newton, was originally charged with attempted second degree murder.' He was allowed to plead guilty to aggravated battery and was sentenced to eight years at hard labor. The trial court also imposed a fine of $1,000; in default thereof, it ordered the defendant to perform 250 hours of community service. The court directed that the defendant not be allowed accrual of good time credit. The defendant appeals his sentence as excessive. We affirm.

FACTS

On April 9, 2005, the defendant was involved in an altercation with the victim, who is the former husband of the defendant’s girlfriend. The victim refused to leave the girlfriend’s residence and indicated that the defendant should leave instead. The victim bumped into the defendant several times. The defendant produced a 12-inch serrated knife. The victim fled from the defendant but fell. The defendant then stabbed the victim in the shoulder. Two other men intervened and pulled the defendant away from the victim long enough to allow the victim to escape from the defendant.

The defendant was charged with attempted second degree murder. Pursuant to a plea bargain, he pled guilty to a reduced charge of aggravated battery, and a presentence investigation (PSI) report was ordered.

While the defendant was awaiting sentence, he was arrested on charges of second degree battery and false imprisonment. These offenses involved the girlfriend whose ex-husband was stabbed in the instant offense; she was badly beaten. At the defendant’s sentencing hearing on the | ¡Instant offense, the girlfriend recanted her statements that the defendant was the person who beat her.

The trial court sentenced the defendant to an eight-year term of imprisonment at hard labor and a fine of $1,000. In default of payment of the fine, the court directed that the defendant perform 250 hours of community service. The court also ordered that the defendant not accrue good time credits. The defendant’s motion to reconsider sentence was- denied.

The defendant appeals his sentence as being excessive.

LAW

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.2/28/07), 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. State v. Landos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57, and 2004-2380 (La.6/3/05), 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. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728.

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.9/28/07), 964 So.2d 351; State v. Jones, 33,111 (La. App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

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.1/14/03), 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 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.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La. 1992); State v. Robinson, 40,983 (La.App. 2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

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). Moreover, a trial judge may properly consider a defendant’s attitude and criminal propensities when determining the appropriate sentence. State v. Jackson, supra. 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 actual 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.

A trial court has wide discretion to sentence within the statutory limits. Absent-a showing of manifest abuse of discretion, this 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.8/20/03), 852 So.2d 1162, writ denied, 2004-0039 (La.12/17/04), 888 So.2d 858.

DISCUSSION

The defendant argues that an eight-year sentence, without the benefit of diminution of sentence for good behavior, is excessive. He asserts that despite his history of misdemeanor convictions and the pending felony charges against him, he has only one prior felony conviction.

At the sentencing hearing, the trial court recounted that it had requested an updated rap sheet on the defendant because almost two years had passed since his guilty plea. In the interval, the defendant had been charged with second degree battery and false imprisonment and was |Rawaiting trial. These charges arose from an incident in which the defendant’s girlfriend, the former wife of the victim of the instant offense, had been badly beaten. The girlfriend was placed under oath at the sentencing hearing and stated that the defendant was not the person who inflicted the beating. Noting the propensity of domestic violence victims to recant, the trial court found her testimony lacking in credibility. The trial court also pointed out that there had been a finding of probable cause to charge the defendant with that crime.

The trial court reviewed the defendant’s social history. He dropped out of high school and, while he had done some work toward obtaining a GED, he had not completed those efforts. He had worked in a variety of jobs, even achieving the level of supervisor at one place of employment. Married only once, he had seven children with at least two women.

Additionally, the trial court considered the defendant’s lengthy record of arrests and convictions. The defendant had a history of crimes of violence, particularly against women, in both Texas and Louisiana. Beginning in 1991, there were several simple battery convictions. The defendant described them dismissively as “a couple of simple batteries with my kid’s mother.” He repeatedly asserted that he was “blamed for a lot of|fistuff that I didn’t do.” The defendant also attempted to describe his conduct in the instant case as self-defense.

Reviewing the factors enumerated in La. C. Cr. P. art. 894.1, the trial court found that the defendant was in need of correctional treatment or a custodial environment most effectively provided by commitment to an institution and that a lesser sentence would deprecate the seriousness of the crime. As aggravating factors, the trial court noted the defendant’s long history of violence, usually against women, in at least two states, and the defendant’s use of a 12-inch knife in the instant offense which could have caused the victim’s death. There was no strong provocation, as the victim was attempting to flee at the time he was stabbed. The only mitigating factor the court found applicable to the defendant was the fact that, by pleading guilty, he spared the state and the witnesses the inconvenience and cost of a trial.

The trial court articulated its reasons for sentencing in great detail, fully complying with the provisions of La. C. Cr. P. art. 894.1. The court carefully considered the defendant’s offender class, criminal history, pending criminal charges, social history, work history and prior education in determining the appropriate sentence for this defendant. The trial judge was not required to give any factor a particular weight in determining the defendant’s sentence, and appropriately considered the defendant’s lengthy criminal record as well as the pending charges. In particular, the court | expressed its. great concern with the defendant’s lifetime propensity toward violence.

The defendant was originally charged with attempted second degree murder, which has a sentencing range of 10 to 50 years imprisonment at hard labor without benefit of parole, probation or suspension of sentence. La. R.S. 14:30.1; 14:27(D)(l)(a). Aggravated battery, the offense to which the defendant was allowed to plead guilty, carries a maximum sentence of 10 years imprisonment, with or without hard labor, and a fine up to $5,000, or both. La. R.S. 14:34. The defendant received great benefit from the plea bargain, which reduced his sentencing exposure from a minimum term of imprisonment of 10 years at hard labor without benefits to a maximum of 10 years with or without hard labor.

The defendant contends that the sentence, imposed without the benefit of diminution of sentence for good behavior, is excessive and grossly disproportionate to the severity of the crime. Despite the defendant’s contentions, we do not find constitutional error in imposition of the eight-year sentence in this case. As recognized by the trial judge, this defendant has an extensive history of committing crimes against persons, despite only one felony conviction. It is apparent, even from the,defendant’s own statements, that he has a history of engaging in volatile behavior in his domestic relationships. The current case arose as a result of a domestic disturbance. Despite his many opportunities to rectify his inappropriate domestic behavior, the defendant has persisted in handling his domestic situations with violence.

Lin accordance with La. C. Cr. P. art. 890.1(B) and La. R.S. 14:2(B)(5), the trial court properly denied the defendant’s eligibility for diminution of sentence based on good behavior (good time credits). Even considering the denial of the defendant’s right to earn diminution of sentence, we do not find the sentence constitutionally excessive.

This assignment of error lacks merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The PSI report stated that the defendant was arrested in 1993 for second degree battery, with intentional serious bodily injury, and pled guilty to aggravated battery. When confronted with this information at the sentencing hearing, the defendant denied it. However, defense counsel concedes in brief that the defendant had a prior felony conviction.

      . The defendant's lack of remorse is also evident in a pro se brief he filed with this court. Among other things, he denied the facts recited in the state's brief — which were essentially the same facts to which he pled guilty — as "all untrue.'' He also claimed that in other offenses, including one in which he allegedly hit his daughter, he had been "lied on” and a police officer had falsified a report.

      . This provision states:
      B. Notwithstanding any provision of law to the contrary, if a person is convicted of or pleads guilty to a crime of violence as defined or enumerated in R.S. 14:2(B) and is sentenced to imprisonment for a stated number of years or months, the sentencing court may deny or place conditions on eligibility for diminution of sentence for good behavior unless diminution of sentence is prohibited by R.S. 15:571.3(C) or (D).

      . This statute provides, in relevant part:
      B. In this Code, "crime of violence” means an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon. The following enumerated offenses and attempts to commit any of them are included as "crimes of violence”:
      (5) Aggravated battery


author: WILLIAMS, J.

text:
    Kermit ADAMS, et al., Plaintiff-Appellee v. Caddo PARISH, Defendant-Appellant.
    No. 43,047-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.

      Jerald N. Jones, Shreveport, for Appellant.
    Carl H. Franklin, Shreveport, for Appel-lee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   WILLIAMS, J.

LThe defendant, Caddo Parish Fire District No. 6, appeals a judgment in favor of the plaintiffs, Kermit Adams and Vanessa Adams. The trial court awarded damages and attorney fees to the plaintiffs, finding that the defendant acted in bad faith in building a fire station on plaintiffs’ property. For the following reasons, we reverse in part, affirm in part and remand.

FACTS

In December 1998, Kermit and Vanessa Adams bought a parcel of land in Caddo Parish identified as Lot 17 of the Jordan Estate partition. In December 2000, Cad-do Parish Fire District No. 6 (“the District”) bought the adjacent parcel of land, Lot 18, by cash sale deed. The District purchased the land for the purpose of building a satellite fire station. The District hired Michael Bowman, a surveyor, who surveyed Lot 18 and marked the property lines with stakes. The survey showed that Lot 18 was bordered by Var-daman Road on the south side and by Keithville-Keatehie Road along the east side.

In a deposition, Jarrell Morgan, the chairman of the District at the time, stated that he rented equipment and cleared brush and stumps from within the marked border of Lot 18. Morgan testified that he prepared a dirt pad for the building by leveling the ground, but that someone else had poured the concrete slab for the fire station. Morgan stated that volunteers built the fire station and that he did not recall seeing any written plans for the building. The fire station was completed in February 2001.

Kermit Adams testified at trial that he first learned that the fire station had been built on his property in November 2004, when he obtained a Lsurvey of Lot 17 in preparation for building a horse barn. Adams stated that although he had observed the fire station prior to that time, he did not know that most of the building was actually located on his lot. After learning of the encroachment, Adams contacted the District. The parties discussed a possible lease of the affected portion of Lot 17 or an exchange of land, but they could not reach an agreement.

In March 2005, the plaintiffs, Kermit and Vanessa Adams, filed a petition against the defendant, Caddo Parish, seeking return of possession of the property and damages. Subsequently, the plaintiffs filed an amended petition substituting the District as party defendant and alleging bad faith in construction of the fire station. The plaintiffs’ claims against Caddo Parish were later dismissed. The District filed an answer alleging that plaintiffs’ claims had prescribed and a reconventional demand seeking a judgment declaring that it had acquired a servitude of use over plaintiffs’ property.

After a trial, the court issued a written opinion finding that the District had not acted in good faith in negligently building the fire station across the property line and that LSA-R.S. 19:14 was not applicable under the circumstances. Concluding that LSA-R.S. 13:5111 was the applicable statute, the court found that plaintiffs’ claims had not prescribed since they had filed suit within three years of the date of discovery of the taking. The court rendered judgment awarding plaintiffs damages of $3,000, attorney fees of $3,000 and ordering the District to remove the encroachment from the plaintiffs’ property. The District appeals the judgment.

I ¡¿DISCUSSION

The District contends the trial court erroneously stated certain incorrect facts concerning ownership of the property in its written opinion. The District argues that the judgment should be reversed because the court’s opinion was based on the wrong factual information.

Although the trial court incorrectly identified the owner of each of the lots in its summary of facts, a reading of the entire opinion indicates that the court was aware of the claims of the parties and that there was an encroachment on the plaintiffs’ property. In addition, following trial the court made several “preliminary observations,” correctly noting that the District had purchased Lot 18 and that most of the fire station was located on Lot 17, which was owned by the plaintiffs. Thus, the record shows that the trial court was aware of the correct facts regarding ownership despite the mistake in its opinion. The assignment of error lacks merit.

Issue of Good Faith

The District contends the trial court erred in applying the provisions of LSA-R.S. 13:5111 in this case. The District argues that LSA-R.S. 19:14 is the applicable statute because it built the fire station in good faith on the plaintiffs’ property with their acquiescence.

In a case where the state or its political subdivision has in good faith taken possession of privately owned immovable property of another and constructed facilities upon such property with the consent or acquiescence of the owner of the property, the owner shall be entitled to bring an action for just compensation for the taking of his property. The amount of | compensation will be determined as of the time of the taking and the owner’s action shall proceed as if the state or political subdivision had filed a petition for expropriation. LSA-R.S. 19:14.

A trial court’s factual findings will not be reversed unless clearly wrong. A reviewing court does not decide whether the factfinder was correct, but whether its findings were reasonable based upon the record. Stobart v. State DOTD, 617 So.2d 880 (La.1993).

In its appellate brief, the District argues that it acted in good faith because it obtained a survey of Lot 18 and built the fire station in reliance on that survey. However, the evidence in the record does not support the District’s assertion regarding placement of the building.

Michael Bowman, a registered land surveyor, testified that he surveyed Lot 18 for the District and prepared a survey map in January 2001. This survey map shows that the eastern border of Lot 18 is a total of 21.5 feet and that the northern property line gradually widens heading west. Bowman stated that he prepared a survey of Lot 17 for the plaintiffs in November 2004. That survey map indicates that the fire station and driveway encroached on the southeast corner of Lot 17. Bowman testified that approximately 85% of the station had been built on the plaintiffs’ property and that the building’s width was 28.4 feet and its length was 36.3 feet. Photographs of the lots admitted into evidence show a ditch on the southern boundary of Lot 18 running along Vardaman Road.

In his deposition, Jarrell Morgan testified that he prepared a dirt pad for the fire station by using a bulldozer and backhoe to move dirt to the area Lwhere the building would be located. Morgan stated that he did not know who poured the concrete slab for the fire station and that he was not present when that work was done. Morgan asserted that he remained within the area marked by survey stakes while preparing the dirt pad. However, he did not state that the concrete slab underneath the fire station had been placed in a location different from that of the dirt pad he had prepared, indicating that Morgan had not installed the dirt pad within the boundaries of Lot 18.

Moreover, considering the physical dimensions of the fire station and the narrowness of the eastern portion of Lot 18, a person relying in good faith on the survey map should have realized that a building of that size, being placed approximately 54 feet from the eastern property line, would have needed to be located much closer to Vardaman Road to remain within the Lot 18 boundaries. That location, though, would have required more extensive work to fill in the ditch and level the ground.

Based upon the evidence presented, the trial court could have found that the District unreasonably disregarded the Lot 18 property lines reflected in the survey map in building the fire station in that location. Thus, we cannot say the trial court was clearly wrong in finding that the District did not act in good faith in its placement of the fire station. Consequently, the trial court did not err in concluding that LSA-R.S. 19:14 was not applicable in this case. The assignment of error lacks merit. Applicability of LSA-R.S. 18:5111

The District .contends the trial court erred in applying LSA-R.S. 13:5111 in this case. The District argues that plaintiffs are not entitled to ^compensation for the taking of their property because they filed an action for declaratory judgment and not for compensation.

Every pleading is construed so as to do substantial justice. LSA-C.C.P. art. 865. • The caption, or heading, of the pleading does not control and the court is obligated to ascertain the substance of the pleading. Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980); Ford Motor Credit Co. v. Brown, 32,995 (La.App.2d Cir.4/5/00), 756 So.2d 654. Where property has been taken or damaged for a public purpose without an expropriation proceeding, there is an inverse condemnation. Harrington v. Southwestern Electric Power Co., 567 So.2d 731 (La.App. 2d Cir. 1990).

Although the title of plaintiffs’ pleading in this case did not refer to compensation, their second amended petition alleged an adverse taking of their property by the District and prayed for all available relief. In addition, the plaintiffs’ pretrial brief alleged that the District had built a fire station on their property and refused to reasonably compensate them. The plaintiffs further alleged that the District had taken their property in bad faith without expropriation and they sought compensation and attorney fees. Based upon the pleadings and filings in the record, the plaintiffs raised a claim for inverse condemnation. Thus, the trial court did not err in applying LSA-R.S. 13:5111 in this case.

The District contends the plaintiffs’ claims have prescribed. LSA-R.S. 13:5111 requires that actions for compensation, including reasonable attorney fees, for the taking of property by a state political subdivision without an expropriation proceeding be brought within three years from the 17date of such taking. The three-year prescriptive period of Section 5111 is deemed to begin only when the owner discovers the fact that his property has been taken. Lieber v. State DOTD, 28,745 (La.App.2d Cir.10/30/96), 682 So.2d 1257, writ denied, 97-0087 (La.3/7/97), 689 So.2d 1374; Jungeblut v. Parish of Jefferson, 485 So.2d 974 (La.App. 5th Cir.1986).

In the present case, Kermit Adams testified that although he had seen the fire station while driving past his property he did not know of the encroachment until he obtained a survey of his lot in November 2004. The photographic exhibits and the testimony demonstrated that the plaintiffs’ property was undeveloped and overgrown, such that the location of the property line was not readily apparent. Based upon the evidence presented, we cannot say the trial court was clearly wrong in finding that the plaintiffs were not aware of the taking of their property until they obtained the November 2004 survey. Thus, the court did not err in concluding that the plaintiffs’ lawsuit filed in March 2005 was timely. The assignment of error lacks merit.

The District contends the trial court erred in ordering removal of the fire station from plaintiffs’ property. The District argues that if LSA-R.S. 13:5111 is applicable, then plaintiffs are entitled to compensation for the property taken, not removal of the encroachment. This assignment has merit.

In order to determine whether property rights have been “taken” under La. Const. Art. 1, Sec. 4, which provides that property shall not be taken or damaged by the state or its political subdivisions except for public 1 «purposes and with just compensation paid to the owner, the court must determine (1) if a property right has been affected; (2) whether the property has been taken or damaged in a constitutional sense; and (3) whether the taking is for a public purpose under Article 1, Section 4. Williams v. City of Baton Rouge, 98-1981 (La.4/13/99), 731 So.2d 240. The compensation for landowners in inverse condemnation proceedings is the same as in expropriation cases: the owner is entitled to the market value of his property and severance damages. Roy v. Belt, 03-1022 (La.App. 3rd Cir.2/18/04), 868 So.2d 209, writ denied, 04-1149 (La.7/2/04), 877 So.2d 147. The value of appropriated property is fixed as of the date of its appropriation. Roy v. Belt, supra.

Here, the plaintiffs’ property has been “taken” as a result .of the District’s construction of the fire station on their lot and they are entitled to inverse condemnation damages. However, the record does not contain sufficient information to determine the market value of the property appropriated in January 2001 for the fire station. Consequently, this matter must be remanded for an evidentiary hearing to assess the value of the plaintiffs’ property at the time of the appropriation and to determine whether plaintiffs are entitled to severance damages.

Pursuant to the provisions of LSA-R.S. 13:5111, the trial court erred in ordering the removal of the fire station and driveway from the plaintiffs’ property and we shall reverse that part of the judgment. Accordingly, the District will be recognized as owner of a servitude concerning the property actually taken by the fire station and driveway, along with a strip of land 13three feet wide surrounding those structures to allow for reasonable access and maintenance.

Damages

The District contends the trial court erred in awarding damages of $3,000 to plaintiffs for their inability to complete their plans to use their property for a horse barn and for inconvenience resulting from the District’s actions. The Louisiana Supreme Court has held that in addition to property damages resulting from the inverse condemnation, when the appropriating authority has acted in bad faith the owner is entitled to an award of general damages, including loss of use and loss of enjoyment of property, inconvenience and anxiety. Williams v. Baton Rouge, supra. The trier of fact is given much discretion in the assessment of damages. Upon appellate review, damage awards will be disturbed only when there has been a clear abuse of that discretion. LSA-C.C. art. 2324.1; Williams, supra.

In this case, Kermit Adams testified that he paid Byron Smith $4,050 to clear brush from Lot 17, to dismantle and move a barn to the lot from another location and for materials to rebuild the barn. Adams stated that the presence of the fire station and driveway on his property prevented the construction of the horse barn in the location he had planned. Adams testified that the District had dug a drainage ditch across his property and that he had lost approximately 30 feet of frontage area because of the fire station.

Byron Smith testified that he was hired by plaintiffs to dismantle a bárn located elsewhere and rebuild the structure on their property. Smith Instated that he cleared their lot of stumps and brush, leveled the ground and prepared a dirt pad for the barn. Smith testified that after he hauled the building materials out to plaintiffs’ property they instructed him to stop work until a survey could be done. Smith stated that as a result of this delay in rebuilding the barn, he would need to clear the site again to remove brush that had regrown and to flatten the dirt pad.

Contrary to thé District’s assertion in its brief, Michael Bowman did not state that the plaintiffs were not inconvenienced by the presence of the fire station. Bowman’s testimony indicated that Adams would need to build the barn farther to the west than originally intended to have the same size structure as planned. The evidence indicated that such a change in location would require plaintiffs to install a much longer driveway.

The evidence presented demonstrates that the delay in plaintiffs’ planned use of their property caused by the construction of the fire station will require additional work to clear the lot of brush and repair the dirt pad, or to relocate the pad. After reviewing the record, we cannot say that an award of $3,000 for plaintiffs’ loss of use and enjoyment of their property and their inconvenience was an abuse of the trial court’s wide discretion in assessing damages. The assignment of error lacks merit.

Attorney Fees

The District contends the trial court erred in awarding attorney fees. The District argues that the plaintiffs failed to present sufficient evidence to support an award of $3,000 in attorney fees.

Pursuant to LSA-R.S. 13:5111, a plaintiff is entitled to reasonable Inattorney fees actually incurred to be awarded as part of the court costs. In determining reasonable attorney fees the factors to be considered include the result obtained, the amount involved, the skill of the attorney, the amount of work necessarily undertaken and the court’s own knowledge. Jungeblut, supra.

In the present case, the plaintiffs’ attorney filed two amended petitions, an answer to the District’s reconventional demand and a pretrial brief. At trial, the plaintiffs’ counsel called several witnesses and ultimately obtained a favorable result for his clients. In addition, we note that the trial court was able to evaluate the extent and quality of the attorney’s work product. After considering the statutory authority for attorney fees, the applicable factors and the record of these proceedings, we cannot say the trial court abused its discretion in the award of attorney fees. The assignment of error lacks merit.

Answer

The plaintiffs filed an answer to the appeal seeking an increase in the awards of damages and attorney fees. Plaintiffs contend the trial court should have awarded more for reimbursement of their expenses. They further contend the court erred in failing to award damages for their loss of stall rental revenue resulting from the delay in building their horse barn.

The testimony demonstrated that a significant amount of the plaintiffs’ expenses in preparing their lot would have been incurred even if the fire station had not been present. In addition, the record shows that the trial court was not clearly wrong in finding that the evidence presented was 1 ^insufficient to support the plaintiffs’ claim for lost rental revenue.

The plaintiffs seek an increase of attorney fees for work on appeal. Based upon this record and the factors considered above, we conclude that the trial court’s award of attorney fees was reasonable for the work performed by plaintiffs’ counsel through this appeal. The plaintiffs’ arguments in answer to the appeal lack merit.

CONCLUSION

For the foregoing reasons, that part of the trial court’s judgment ordering removal of the fire station and driveway is reversed, and Caddo Parish Fire District No. 6 is hereby recognized as owner of the property actually taken by the fire station and driveway, along with a strip of land three feet wide surrounding those structures to allow for reasonable access and maintenance. The judgment is otherwise affirmed and this matter is remanded for an evidentiary hearing on the issues of the market value of the property at the time of the appropriation and whether plaintiffs are entitled to severance damages.

Costs of this appeal are assessed one-half to the appellant, Caddo Parish Fire District No. 6 to the extent allowed by law and one-half to the appellees, Kermit and Vanessa Adams.

REVERSED IN PART; AFFIRMED IN PART AND REMANDED.


author: DREW, J.

text:
    Marlin MATHIS, Plaintiff-Appellee v. Herbert VANDENBERG, Defendant-Appellant.
    No. 42,973-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.
    Storms & Storms by Tyler Graham Storms, L.L.C., Ruston, for Appellant Herbert Vandenberg.
    Bleich & Burnett, APLC by Gerald Wade Burnett, Shreveport, for Respondent Liquidator.

      Hudson, Potts & Bernstein, L.L.P., by Stephen Adam North, Monroe, for Appel-lee Marlin Mathis.
    Michael Stephen Coyle, Ruston, for Ap-pellee Lincoln General Hospital.
    Robert Douglas Wood, Jr., for Appellee Community Trust Bank.
    Jeffrey Levance Robinson, Jonesboro, for Appellees Stan Mahaffey and Dan French.
    Yumeaka Robinson Washington, for Ap-pellee Radian Hennigan.
    Before STEWART, PEATROSS and DREW, JJ.
   DREW, J.

|, Dr. Herbert Yandenberg appeals a judgment denying his claim for funds held in trust and allegedly due him from the liquidation of businesses in which he had ownership. The trial court decided that the liquidation had been properly finalized and concluded that Yandenberg was not entitled to the funds held in trust in the liquidation. Having made a careful review of the record, we affirm the judgment of the trial court and direct that Vandenberg pay the costs of this appeal.

FACTS

Vandenberg and Marlin Mathis went into business together, with each having a 50% ownership interest in three juridical entities:

• NCL Hospitals, L.L.C.;
• Jackson Rehabilitation Services, Inc.; and
• Paradigm One, Inc.

These operations were owned and operated as a psychiatric hospital and clinics with Vandenberg providing the care and Mathis running the businesses. The working relationship between the two men became fractious, leading to this unhappy chronology:

• November 2003 — Liquidation proceedings were instituted.
• May 2004 — By consent judgment, the three enterprises were placed into dissolution, with attorney G. Wade Burnett being appointed as Liquidator.
• December 2004 — The trial court approved the Joint Settlement and Mutual Release between Vandenberg, Mathis, and the Liquidator (Burnett), who was ordered: to pay certain debts, to send notice to all known creditors, to publish required notices, and, after the expiration |aof the statutory time limit for notice of claims, to present a proposed final disbursement schedule, along with an order by which to terminate the proceedings.
• February 2005 — All known creditors received letters advising them of the situation, and a notice was published twice in four area newspapers. Both the correspondence and the publications legally triggered a requirement of action by any creditors desiring to present claims to the Liquidator.
• January 2006 — The Liquidator evaluated all claims made and requested authority to pay certain uncontested debts. The trial court approved the request.
• December 2006 — The Liquidator filed two rules, each being set for hearing on February 8, 2007:
(1) a rule regarding final payment of debts, and
(2) a rule regarding disputed funds held in trust.
• February 7, 2007 — The day before the rule date, Vandenberg filed an eleventh-hour claim for almost $60,000 allegedly due him (not a third party), relative to a “TriSpan” debt owed to NCL. The Liquidator properly chose not to honor this tardy and contractually unsupported claim.
• February 8, 2007-By stipulation of the parties, the trial court granted the rule regarding final payment of certain uncontested debts.
• February 8, 2007-The trial court also ruled that Mathis should receive all funds held in trust and further found that all requirements for a final liquidation had been met (over three years having passed since commencement of this litigation).

Vandenberg now takes exception to these rulings through this appeal.

DISCUSSION

Legality of Final Liquidation, Rejection of Eleventh-Hour Claim, Payment to Mathis of the Funds Remaining in Trust with the Liquidator

This appeal is controlled by the clear terms of the Joint Settlement Agreement and by the requirements of La. R.S. 12:147, the provisions of Leach having been scrupulously followed by the Liquidator and the trial court. The statute in question has not been amended since 1968.

The Joint Settlement and Mutual Release Agreement requires no interpretation:

2. For and in consideration of Mathis’s release and waiver of all rights under that certain purchase agreement by and between Mathis and the Liquidator and further in consideration of the | ¿redemption of the entirety of Mathis’ membership interests and/or stock, as the case may be, in the Companies, the Liquidator shall transfer, convey and/or assign to Mathis, free and clear of any [and] all liens or other encumbrances, the following described properties:
C. All rights of NCL Hospitals, L.L.C. and Paradigm One, Inc. as regards such company’s rights of medicaid/medicare reimbursement and/or receivables and reimbursements due such companies from governmental agencies including, but not being limited to, those administered through that entity known and generally referred to as “TriSpan”; and

By the clear terms of the Settlement Agreement, Vandenberg is not entitled to receive any trust sums related to an NCL Hospital reimbursement, as administered by “TriSpan,” which is the exact nature of this contested $60,000 claim. A deal’s a deal.

These parties are clearly well educated and sophisticated investors, represented at all times by excellent counsel. The terms of the Joint Settlement Agreement were considered in detail prior to the parties’ entering into the agreement. Accordingly, Vandenberg’s claim to a portion of the proceeds in trust is invalid for two reasons:

• The claim is not allowable under the clear terms of the Joint Settlement Agreement.
• The claim comes far too late for consideration by the Liquidator and by the learned trial court.

The liquidation statutes set out a procedure to finalize unhappy proceedings such as these. The Liquidator and the trial court were reasonable and even-handed in all dealings herein. It was appropriate and lawful for the trial court to conclude the liquidation, and it was also appropriate and lawful that Mathis should receive the funds remaining in the hands of the Liquidator.

| ¿DECREE

We affirm the judgment of the learned trial court in all respects, with all costs of this appeal to be paid by appellant.

AFFIRMED, WITH ALL APPEAL COSTS TO BE PAID BY APPELLANT.

      . The court notes and acknowledges the excellent and thorough services of the Liquidator in this rancorous and convoluted proceeding. Mr. Burnett could not be blamed if he never voluntarily agrees to serve in this capacity again.

      . Six months.

      . La. R.S. 12:147. Claims against corporation in liquidation; peremption
      A. A corporation in liquidation may have the benefit of subsections C, D and E of this section by following the procedure set forth in subsection B of this section.
      B. After the proceeding for dissolution has taken effect, notice thereof shall be (1) given by registered or certified mail to all known creditors of, to all persons believed to have valid and subsisting claims (excluding prescribed and time-barred claims) against, and to all persons having unfulfilled contracts with, the corporation, and (2) published once a week for two successive weeks in a newspaper of general circulation in the parish in which the corporation's registered office is located. Such notice shall call on the addressees to present their claims in writing and in detail, at a specified place and by a specified date, not less than six months after the notice was mailed. The giving and publication of such notice shall not be deemed an acknowledgment of the validity of any claim against the corporation, waiver of any defense or set-off to any such claim, interruption of prescription on, or tolling of any statute of limitation applicable to, any such claim, or revival of any claim which has been barred by any prescription, peremption or statute of limitations.
      C. If any addressee of such notice shall not present his claim or claims as prescribed in the notice, such of his claims as would be enforceable against the corporation except for the provisions of this subsection shall, unless suit has been entered thereon in a court of competent jurisdiction before the final date prescribed in the notice for presentation thereof, be perpetually and peremptorily barred, except to the extent, if any, that the court may allow them against any remaining undistributed assets of the corporation on a finding that the claimant had some valid excuse for his failure so to present his claim.
      D. All claims which would be enforceable by suit against the corporation except for the provisions of this subsection, on which suit has not been filed in a court of competent jurisdiction before the expiration of three years after the proceeding for dissolution takes effect (or, if the notice prescribed in subsection B of this section was not given and publication thereof commenced within one month after the proceeding takes effect, before the expiration of three years after the giving or completion of publication of the notice, whichever is later), shall be barred perpetually and peremptorily.
      E. The time limits provided in subsections C and D of this section shall not be subject to suspension on any ground, or to interruption except by timely presentation of the claim as to subsection C or timely suit as to subsection D.
      F. The provisions of subsections C and D of this section shall not preclude the enforcement at any time, without regard to whether a claim has been presented or a suit filed timely as prescribed in said subsections, of any valid and subsisting lien securing any claim against, or indebtedness of, the corporation.


author: CARAWAY, J.

text:
    Gregory M. TAYLOR, Plaintiff-Appellee v. TOMMIE’S NOVELTY GAMING, L.L.C. and Bridgefield Casualty Insurance Company, Defendants-Appellants.
    No. 43,104-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.

      The Smith Law Office, L.L.C., by Esk-ridge E. Smith, Jr., Bossier City, Linda L. Smith, for Appellants.
    Gregory M. Taylor, In Proper Person.
    Daniel Steven Wanko, Jr., Slidell, for Appellee U.S. Specialty Ins. Co.
    Before CARAWAY, PEATROSS and LOLLEY, JJ.
   CARAWAY, J.

pThe ruling of the workers’ compensation judge (‘WCJ”) in this matter resulted upon remand of this case by the Louisiana Supreme Court in Taylor v. Tommie’s Gaming, 2004-2254 (La.5/24/05), 902 So.2d 380 (hereinafter “Taylor I ”). The remand ruling directed the continuation of the trial on the employee’s claim for benefits and the reconventional demands of the employer’s insurers against the employee for fraud. Upon remand, the employee moved to dismiss his claim and the entirety of the case. The WCJ granted the employee’s request over the objection of the employer and one of its insurers, which now appeal the dismissal of their reconventional demand. The WCJ was in error, and we reverse.

Facts and Procedural History

This case involves two work-related accidents alleged by Gregory M. Taylor (“Taylor”) while employed by defendant Tommie’s Novelty Gaming, LLC (“Tommie’s”). The first injury involved a work-related motor vehicle accident on November 9, 2000, resulting in the herniation of disks in Taylor’s neck for which surgery was ultimately performed. The workers’ compensation insurance carrier at that time, U.S. Specialty Insurance Company (“US Specialty”), paid Taylor medical and indemnity benefits totaling $40,432.12 for the first accident claim. Several months after Taylor returned to work during May, 2001, Taylor claimed he re-injured himself while moving equipment on September 14, 2001. When the second injury occurred, Tommie’s workers’ compensation carrier had been replaced by Bridgefield Casualty Insurance Company (“Bridgefield”). Both carriers |2defended Taylor’s claim and at trial, the WCJ determined that for the purposes of La. R.S. 23:1208(D), Tommie’s first learned of Taylor’s fraudulent conduct during his deposition on September 17, 2002.

Tommie’s and Bridgefield, on the one hand, and U.S. Specialty on the other, asserted separate reconventional demands for forfeiture of benefits based on Taylor’s alleged false statements made for the purpose of obtaining workers’ compensation benefits, in violation of La. R.S. 23:1208. In addition to their right to restitution, defendants claimed all reasonable costs of investigation and litigation.

The original trial occurred on April 15, 2003. Taylor was the sole witness who testified. After direct examination by his counsel, and cross-examination by both opposing counsel, Taylor was again examined by his lawyer on redirect. Counsel for Tommie’s and Bridgefield conducted recross examination. At the conclusion of this examination, U.S. Specialty’s attorney moved for an involuntary dismissal, arguing that because of Taylor’s overall lack of credibility and his established false assertions, forfeiture of his rights to benefits was undeniable. Nevertheless, Taylor’s counsel objected to the involuntary dismissal, arguing that the presentation of Taylor’s case was not yet concluded. Tommie’s and Bridgefield joined in the motion for involuntary dismissal.

After briefly taking the matter under advisement, the WCJ ruled from the bench and granted the defendants’ involuntary dismissal. The WCJ also awarded the insurers restitution for their payments of benefits and certain expenses of the litigation. This court later affirmed the WCJ’s involuntary | ^dismissal while reversing in part and affirming in part the restitution judgments in Taylor v. Tommie’s Gaming, 38,568 (La.App.2d Cir.6/25/04), 878 So.2d 853.

The procedural ruling of the WCJ for involuntary dismissal was ultimately reversed by the Louisiana Supreme Court in Taylor I, supra, as follows:

The [Office of Workers’ Compensation (“OWC”) ] grant of defendant’s motion for involuntary dismissal was premature under La. C.C.P. art. 1672(B). The clear language of the article itself and the jurisprudence interpreting the article dictate that the plaintiff must be given the opportunity to conclude the presentation of his case before a motion for involuntary dismissal may be heard. Taylor was not allowed to finish presenting his evidence; thus, the motion for involuntary dismissal was untimely.
For the reasons expressed herein, the judgments of the lower courts are reversed. The matter is remanded to the OWC for plaintiff to present any remaining witnesses or other evidence and to conclude his case, then for the remaining parties to present such evidence as they choose.
Taylor v. Tommie’s Gaming, supra, at 384.

The trial date on remand was scheduled for May 21, 2007. A few weeks after the original March, 2007 trial date was upset, Taylor’s counsel withdrew from his representation of Taylor. On May 8, 2007, Taylor moved pro se for dismissal of his entire claim. The hearing on the motion to dismiss was set for the same day as the trial. US Specialty made no appearance. After argument, the OWC granted Taylor’s motion and dismissed his claim with prejudice. The reconventional demand asserted by 14Bridgefield was dismissed without prejudice. Tommie’s and Bridgefield appeal the OWC judgment.

Discussion

Appellants assign as error the WCJ’s dismissal of their reconventional demand against Taylor, which they argue is a separate, incidental and compulsory demand pursuant to La. C.C.P. arts. 1031 and 1061.

Forfeiture of benefits for false statements is governed by La. R.S. 23:1208, which provides in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
⅜ :¡: * :¡: ⅜
C. (1) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of ten thousand dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or fined not more than ten thousand dollars, or both.
* * * * *
(4) Notwithstanding any provision of law to the contrary which defines “benefits claimed or payments obtained”, for purposes of Subsection C of this Section, the definition of “benefits claimed or payments obtained” shall include the cost or value of indemnity benefits, and the cost or value of health care, medical case management, vocational rehabilitation, transportation expense, and the reasonable costs of investigation and litigation.
D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars payable to the Kids Chance Scholarship Fund, Louisiana Bar Foundation, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through | ¿fraud and only up to the time the employer became aware of the fraudulent conduct.
E.Any employee violating this Section shall, upon determination by [the] workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

There need be no showing of prejudice on the part of the employer prior to the forfeiture of any employee’s benefits under Section 1208. Resweber v. Haroil Constr. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7. When the statute is satisfied, benefits will be forfeited for the sole reason that the claimant has willfully and deliberately attempted to defraud the workers’ compensation system, and no further requirements are to be imposed. Johnikin v. Jong’s Inc., 40,116 (La.App.2d Cir.9/21/05), 911 So.2d 413.

The original, exclusive jurisdiction over all claims or disputes arising under the workers’ compensation act, including but not limited to employer demands for recovery for overpayment of benefits, is vested in the OWC judge. La. R.S. 23:1310.3(E). The controversion of a claimant’s entitlement to workers’ compensation benefits based upon willful false statements or representations is integrally related to the judicious administration of workers’ compensation claims. Clarendon Nat'l Ins. Co. v. Weston, 97-1089 (La.App. 1st Cir.5/15/98), 712 So.2d 628.

If an incidental demand has been pleaded prior to motion by plaintiff in the principal action to dismiss the principal action, a subsequent dismissal thereof shall not in any way affect the incidental action, which must be tried and decided independently of the principal action. La. C.C.P. art. 1039.

|fiIn the present ruling of the WCJ, no legal basis for the dismissal of the recon-ventional claim of Tommie’s and Bridge-field was given. The plaintiff, Taylor, may voluntarily dismiss his claim for benefits, but he also offers no legal authority for the dismissal of the reconventional action. The remand ordered by the Louisiana Supreme Court effectively placed these parties back into the middle of an ongoing trial, where both the principal demands of plaintiff and the reconventional action of the defendants were in the process of adjudication. That adjudication, insofar as it pertains to the reconventional demands asserted by Tommie’s and Bridgefield, should continue despite the dismissal of the principal action. La. C.C.P. art. 1039. The action in reconvention by defendants Tommie’s and Bridgefield was improperly dismissed and the judgment of the OWC is reversed.

Conclusion

For the above reasons, the judgment of the Office of Workers’ Compensation insofar as the reconventional demand of Tommie’s and Bridgefield is reversed. Costs of the appeal are assessed to Gregory M. Taylor.

REVERSED.

      . US Specialty makes no appeal of the dismissal of its reconventional demand.


text:
    STATE of Louisiana, Appellee, v. Frederick ROBINSON, Appellant.
    No. 43,133-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.
    James E. Beal, Jonesboro, for Appellant.
    J. Schuyler Marvin, District Attorney, C. Sherburne Sentell, III, John M. Lawrence, Assistant District Attorneys, for Appellee.

      Before WILLIAMS, STEWART and PEATROSS, JJ.
   WILLIAMS, J.

It The defendant, Frederick Robinson, was charged by bill of information with two counts of felony theft and one count of forgery arising out of his attempt to defraud a Minden car dealership of two vehicles valued at approximately $28,000 each. The state agreed to dismiss the two counts of felony theft in exchange for the defendant’s guilty plea to forgery. The state also agreed not to file a habitual offender bill against the defendant. A pre-sentence investigation (“PSI”) report was ordered. The defendant pled guilty and was later sentenced to serve ten years’ imprisonment at hard labor, to run consecutively with any other sentence. The defendant’s timely filed motion to reconsider sentence was denied. He now appeals his sentence as excessive. We affirm.

Since defendant’s motion for reconsideration merely alleged that the sentence is excessive, under State v. Mims, 619 So.2d 1059 (La.1993), he is “simply relegated to having the appellate court consider the bare claim of excessiveness.” This bare claim preserves only a claim of constitutional excessiveness. Mims, supra; State v. McEachern, 624 So.2d 43 (La.App. 2d Cir.1993). 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. Livingston, 39,390 (La.App.2d Cir.4/6/05), 899 So.2d 733; State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123.

Forgery carnes a penalty of imprisonment, with or without hard labor, for not more than ten years, a fine of not more than $5,000 or both. The defendant was sentenced to serve ten years’ imprisonment at hard labor, to |?run consecutively with any other sentence imposed. On this record, we do not find constitutional error. The defendant is a fifth felony offender with a lengthy criminal history including multiple offenses of forgery, felony theft and issuing worthless checks. Additionally, the defendant received substantial benefits as a result of the plea bargain agreement. We do not find that the sentence imposed is grossly disproportionate to the severity of the offense or that it is shocking to our sense of justice.

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

AFFIRMED.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee, v. Gary Lamond GIBSON, Appellant.
    No. 43,146-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.

      Peggy J. Sullivan, Louisiana Appellate Project, for Appellant. ■
    Robert W. Levy, District Attorney, A. Shawn Alford, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS, and LOLLEY, JJ.
   BROWN, Chief Judge.

| defendant, Gary Lamond Gibson, was convicted of second degree murder, a violation of La. R.S. 14:30.1, and sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Defendant has appealed, urging insufficiency of the evidence. We affirm defendant’s conviction and sentence.

Discussion

The grand jury indictment states that on April 14, 2005, defendant, Gary Lamond Gibson, committed the second degree murder of Freddrick Gray. At trial and on appeal, defendant claims that the evidence was not sufficient to prove beyond a reasonable doubt that he shot Freddrick Gray. At trial defendant’s counsel argued that the detective “simply relied on these two witnesses (Latonya Simmons and Marco Aaron) and to say that (defendant) came in this house and brutally murdered Fred-drick Gray. One of them (the two eyewitnesses) could have brutally murdered Freddrick Gray and made the story up.”

In brief defendant argues:

The evidence was insufficient to sustain the conviction for at least three reasons. First, there was conflicting testimony as to whether or not Mr. Gibson had a bandage on his right hand which would have prevented him from firing a gun. Second, the only two witnesses to the crime had conflicting accounts of where they were when the crime occurred. Third, there was a total lack of any physical, tangible evidence linking Mr. Gibson to the crime.

Testimony

Detective Trey Fulton testified that on April 14, 2005, he made contact with defendant in the interview room at Det. Fulton’s office and explained defendant’s constitutional rights to him with the aid of a Miranda | ¿rights form. According to Det. Fulton, defendant asked for a lawyer and refused to sign the form. Det. Fulton did not ask defendant any more questions, but when Det. Fulton told defendant that he was under arrest for the second degree murder of Freddrick Gray, defendant asked how it could be murder when he was defending himself.

Latonya Simmons testified that she and defendant had a child together, but that she had broken up with him in 2005 and had been seeing Freddrick Gray since that time. Latonya indicated that defendant was jealous of her relationship with Gray that had been ongoing for a year and a half prior to the date of the shooting, April 14, 2005. Latonya stated that she also had a four-month-old son with Gray. Although she and Gray were not married, they had planned to wed and had obtained a marriage license.

Latonya related that on the day of the shooting, Gray had picked her up from work and had taken her to her mother’s house where she and Gray were also living. Defendant tried to call Latonya, but she let the phone ring because she did not want to talk to him. Later, defendant called, and Gray answered and indicated to defendant that Latonya was not at home. According to Latonya, she and her stepfather were in the kitchen and Gray was in Latonya’s brother’s room playing a video game when defendant came into the house armed with a gun. Defendant was looking for Gray; he looked in the bedrooms and did not see Gray at first, but when he overheard Gray call out to Latonya to ask her what was wrong, defendant went into theLbedroom where Gray was, pointed the gun at him and fired. Latonya testified that she saw the fire from the gun and that defendant fired four shots. Defendant then threatened Latonya’s stepfather, who ran into Latonya’s mother’s room and locked the door. Defendant tried unsuccessfully to kick the door down, then saw Gray walking, holding his left arm, trying to get out of the house. Defendant snatched the phone that Latonya was dialing, threw it across the room and shot at Gray again. Gray went outside and fell off the front porch. Defendant then drove away in Latonya’s car. Gray died at the scene.

On cross-examination, Latonya admitted being in jail twice for theft. Defense counsel went over the events of April 14, 2005, using a diagram of the home prepared by the state. Defendant’s attorney was able to point out some minor inconsistencies between Latonya’s testimony and statements she had made to police approximately two years earlier. Latonya testified that she and her stepfather were standing at a table when defendant entered; she denied telling Officer Trey Fulton after the incident that she and her stepfather were sitting at the bar. Latonya denied remembering defendant having a bandage or cast on his right hand, the hand in which Latonya said that defendant had held the gun. On redirect, Latonya mentioned that defendant had been in jail when she left him, and defendant’s counsel made a motion for a mistrial that was denied.

Marco Aaron testified that at the time of trial, he was serving time in Arkansas for “commercial burglary — probation revocation.” Aaron was 29 years old and was the stepfather of 22-year-old Latonya Simmons (he was | ¿married to Latonya’s mother, who was 39). Aaron was present at the time of the shooting, and his testimony largely corroborated that of Latonya as to the events that transpired. Like Latonya, Aaron stated that he did not notice a bandage or cast on defendant’s hand. However, unlike his stepdaughter, Aaron remembered that he and Latonya were seated at the bar in the house when defendant arrived. Aaron also remembered defendant firing five or six shots when he was in the bedroom and then maybe one or two more after that. However, Aaron admitted that he “didn’t exactly count” the shots and he didn’t know the exact number of shots fired.

Aaron also testified that he had run into his wife’s bedroom and locked the door, but when defendant’s attorney pointed out that Aaron had not told this to the police in his previous statement, Aaron responded, “It happened so fast — I just told them what happened.” Additionally, Aaron recounted a prior incident in which he and defendant had a “little fist fight” at the end of which defendant had pulled a gun on Aaron, shot at the ground a couple of times, and hit Aaron with the gun before running away.

Lieutenant Keith Blackman of the Union Parish Sheriffs Office assisted at the crime scene, and his testimony was used to introduce photographs of the crime scene, along with three spent .380 caliber shell casings and one unfired cartridge found at the scene. On cross-examination, Lt. Blackman admitted that no one dusted for fingerprints because, from the information supplied by witnesses, they [police] “knew who they were looking for.” The weapon used was never found despite what Lt. Blackman characterized as , a thorough search. When asked if he knew how many 1 Rtimes the victim had been hit, Lt. Black-man responded that he knew of one time, and the officer indicated that based upon his observation, Gray was struck by that bullet while in the front bedroom.

Dr. Stephen Venters, the coroner of Union Parish, testified that on the day of the shooting, he examined Freddrick Gray’s body and saw a single gunshot wound to the left arm. The body was then sent to a forensic pathologist who performed an autopsy. Over a defense objection, Dr. Ven-ters opined that, based on the autopsy report, the cause of death was a gunshot wound through the left arm and into the chest that caused Gray to “bleed out.”

Detective Trey Fulton of the Union Parish Sheriffs Office testified that he responded on the day of the shooting to a complaint of homicide, and, after talking to Latonya and Marco Aaron, he developed defendant as a suspect. Detective Fulton stated that defendant was taken into custody and read his rights. As he had done at the motion to suppress hearing, Det. Fulton testified that defendant indicated that he wanted a lawyer, but when told that he was under arrest for second degree murder, defendant asked, “How can that be murder? I was just defending myself.” Det. Fulton testified that they had no other suspects but defendant, and that nothing in the investigation was inconsistent with defendant having committed the crime.

Officer Keith Blackman was recalled to the stand in order to introduce a few more crime scene photos, including some “perimeter shots.” Again, Lt. Blackman indicated that the scene was thoroughly searched for | fithe weapon, but he admitted on cross-examination that it was possible that a gun could have been hidden in the junk that was in the yard.

Chief Deputy Don McClanahan’s testimony primarily focused on the search for the weapon at the crime scene, and added little to that of Keith Blackman. After Chief Deputy MeClanahan testified, the state rested its case.

The defense began by recalling Marco Aaron to the witness stand. Aaron clarified that after the shooting, he called 911 and then ran down the street to a nearby police station. He also denied that he and his stepdaughter, Latonya Simmons, were lovers; he acknowledged the seven or eight-year age difference between them, however.

Next, the defense called Phyliss Gibson, defendant’s mother, to the stand. Ms. Gibson testified that defendant and Latonya met in 2000 and were still seeing each other up until the time of the crime. Ms. Gibson stated that at the time of the crime, defendant had stitches in his right hand, which was bandaged. When asked if she was suggesting that defendant was unable to shoot Gray, she responded that his hand “was damaged so bad that he couldn’t squeeze some — some (unintelligible).” Ms. Gibson testified that to the best of her knowledge her son did not own a pistol on April 14, 2005. She also testified that on the day of the shooting she had a phone conversation with Latonya Simmons and told her not to call back because, “(defendant) is upset and not thinking right, in his mind.” When asked why defendant was upset, Ms. Gibson testified that he had been taking “them pills young folks be taking ...” She also indicated that defendant was upset [ 7because when he was in El Dorado “somebody had jumped on him, and he was steady crying and complaining about that and he was talking about his hand was hurting, and I knew if he talked to [Latonya], he would have been more upset ...” However, she then testified that defendant “should’ve been used to it, ‘cause that [Latonya] was constantly doing the same thing every day’ ” and that “seemed like whenever he did talk to her on the phone, she never made things better. It was always a — they were always arguing on — back and forth on the telephone, or whatever the case may be.” Ms. Gibson also testified that Latonya still wanted to be defendant’s girlfriend and was having sex with him, and that when Latonya would come to Ms. Gibson’s house, she would bring her other boyfriend [Freddrick Gray] with her. After Ms. Gibson’s testimony, the defense rested.

The last witness to testify was the state’s rebuttal witness, Deputy Jerome McKenzie, whose testimony was used to explain the fact that the witnesses had thought the gun used in the crime was a 9 mm handgun when in fact it was a .380. Dy. McKenzie testified that he was familiar with handguns and that there was no difference in the size of the guns; he agreed that a layperson might not know whether a gun was a .380 or a 9 mm by looking at it.

Analysis

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, 01-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.02/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.08/29/02), 827 So.2d 488, unit denied, 02-2634 (La.09/05/03), 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. Pigford, 05-0477 (La.02/22/06), 922 So.2d 517; 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. 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, 02-3090 (La.11/14/03), 858 So.2d 422.

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(A)(1). Thus, in the instant case, the state had to prove beyond a reasonable doubt that defendant had the specific intent to kill or inflict great bodily harm on Gray. Defendant simply denies that he was the one that shot Gray.

First, there is defendant’s admission to police that he was the shooter, and it is not disputed that Gray died of a gunshot wound received at the crime scene. Second, there were two eyewitnesses, both of whom testified |9that defendant was the shooter; the witnesses’ different recollection of their locations in the room when defendant entered armed with a pistol is not significant. A rational jury could have believed these witnesses, whose testimony was supported by that of the police officer to whom defendant admitted that he shot Gray in self-defense. At the same time, there was absolutely no evidence that defendant actually acted in self-defense. Instead, the evidence shows that defendant came to the house armed, looking for Freddrick Gray, whom defendant shot as soon as he located the victim. A rational jury also could have rejected the testimony of defendant’s mother concerning defendant’s allegedly injured hand. There was no corroboration of her testimony, neither of the witnesses remembered any bandage or cast on defendant’s hand, and again defendant admitted being the shooter. Finally, in light of the evidence discussed above, it was of no moment that the gun used in the shooting was never recovered or that there was no DNA or fingerprint evidence linking defendant to the shooting.

A rational juror could have reasonably concluded that defendant was guilty as charged.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.

      . Defendant filed a motion to suppress the statements which was heard and denied. Defendant also filed a motion to quash based on a speedy trial complaint which was also denied.