author: PEATROSS, J. CARAWAY, J.,

text:
    STATE of Louisiana, Appellee v. Tremaine TAYLOR, Appellant.
    No. 42,627-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Louis G. Scott, for Appellant.
    Jerry L. Jones, District Attorney, J. Michael Ruddick, Assistant District Attorney, for Appellee.
    Before BROWN, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

| defendant, Tremaine Taylor, was convicted by a jury of attempted second degree murder, armed robbery and two counts of carjacking. In regard to attempted second degree murder, the trial court sentenced Defendant to 45 years at hard labor without benefit of parole, probation or suspension of sentence. In regard to armed robbery, the trial court sentenced Defendant to 70 years at hard labor without benefit of parole, probation or suspension of sentence. In regard to both counts of carjacking, the trial court sentenced Defendant to 20 years at hard labor without benefit of parole, probation or suspension of sentence and ordered that the carjacking sentences be served concurrently. The trial court ordered that the sentences for attempted second degree murder and armed robbery be served concurrently to each other and consecutively to the sentences for carjacking, with credit for time served. Defendant now appeals. For the reasons stated herein, the convictions and sentences of Defendant are affirmed.

FACTS

On March 2, 2003, Willie Lamar Reed was walking home from a friend’s house on Luther Street in Monroe when Defendant approached him and asked for a cigarette. When Reed told Defendant that he did not have enough cigarettes to give him one, Defendant grabbed Reed by the throat. Reed jerked away from Defendant and, at the same time, saw something shiny coming up toward him. Suddenly, Reed saw a flash and felt a gunfire blast go within two to three inches of his face; Reed testified that fragments from the blast actually hit his face. Reed ran to a neighbor’s house and called the police. Reed went back outside and saw Defendant, who then 12said, “Mot Reed, I see you, bitch.” Defendant then fired another shot at Reed, and Reed ran back inside the house. Reed testified that he could see Defendant walking down the sidewalk, that Defendant was continuing to discharge the firearm and that Defendant took a car from someone in a nearby driveway while still armed with the handgun. He further testified that, when he saw the police arrive, he told them what happened, including the facts that there was no argument between him and Defendant and that Defendant had no reason for doing what he did. Reed maintained that he believed Defendant would have shot him in the forehead if he had not jerked back.

Donnie McGee testified that he was visiting a friend on Luther Street that night and that he thought he heard gunshots as he got out of his car. McGee testified that he went inside and continued hearing gunshots, but that he went back outside because he remembered leaving his keys inside the car. While standing outside next to his 1996 Buick Century and talking to his friend, Defendant walked up and got inside of McGee’s car. McGee told Defendant to get out of his car, but Defendant started the engine. McGee reached inside the car to retrieve the keys and try to get Defendant out of his car, but Defendant then pointed a gun at his chest. McGee backed away, and Defendant drove away. McGee testified that he did not give Defendant permission to take his car.

Soon thereafter, Vincent J. Newton, Jr., was driving his 1999 Lincoln Navigator on Jackson Street when he encountered Defendant. Newton noticed Defendant because he thought Defendant was driving “crazy” and |sfollowing him. as Newton took a Mend to her home on Mississippi Street. Newton saw Defendant pull into a nearby driveway and, after the friend got out of his vehicle, Defendant knocked on Newton’s window and pulled open the car door. Newton saw that Defendant had a silver gun pointed at him, and Defendant told Newton to give up the truck. Defendant then made Newton give him all of his valuables, which included a ring, a cell phone and some loose cash. Defendant drove away in Newton’s Lincoln Navigator, and Newton then flagged down a Monroe Police patrol car that was passing by at the time.

Monroe Police Officers Roy Cox and Tommy Crowson approached Defendant inside the Winnsboro Grocery and Gas because he matched the description issued in • a BOLO (“Be On The Lookout”). Defendant initially refused their request to step outside, so they handcuffed him and forcefully took him outside. When searching Defendant’s person, they found a cell phone and a ring. The Lincoln Navigator was in the parking lot with a silver and black 9mm Smith and Wesson handgun inside. Monroe Police Office Lisa Quillar drove Newton to Winnsboro Grocery and Gas, where Newton identified the vehicle, ring and cell phone as being his. In the meantime, bullet casings were recovered from the crime scenes at Luther Street, which were sent to the North Louisiana Crime Laboratory for analysis. Michael Stelly, an expert in firearms identification with the North Louisiana Crime Laboratory, testified that the bullet cartridges recovered from the crime scene on Luther Street were fired from the handgun recovered at Winnsboro Grocery and Gas. Monroe Police Officer Roderick 14Jackson, who was the detective on the case, testified that the crime scenes on Luther Street were approximately four miles from the Winns-boro Grocery and Gas.

During opening and closing statements at trial, counsel for Defendant did not dispute the State’s assertion of what Defendant did on March 2, 2003; however, he argued that Defendant was not responsible for his actions because, earlier in the day, he had been smoking a marijuana cigarette that was, unbeknownst to him, laced with phencyclidine (“PCP”), which caused him to commit those crimes. Officer Jackson testified that Defendant was eventually taken to the hospital for evaluation because he was behaving in a strange manner and throwing things at the Monroe Police Department. Medical records from the hospital indicated that a toxicology test was performed on Defendant’s urine and that it tested positive for PCP and marijuana. In support of his claim that he involuntarily ingested the PCP, Defendant presented the testimony of Clyde Bernard Mitchell. Mitchell, who was incarcerated at the time of trial, testified that he is Defendant’s friend and that he was at a barbeque with Defendant on that day. He further explained that he gave Defendant a marijuana cigarette laced with PCP while Defendant was cooking. Mitchell testified that he did not tell Defendant about the PCP and that he did not know it would affect him that way.

On cross-examination, Mitchell testified that he and others smoked this same cigarette, but that neither he nor anyone else who had smoked that cigarette tried to kill, rob or carjack anyone else that day. When asked why |she did not give this information to police earlier, Mitchell testified that he did not want to get a reputation for being a “rat” by talking to police. Warren Brown, an investigator with the District Attorney’s office, testified that he interviewed Mitchell before the trial and that Mitchell told him that Defendant and everyone at the barbeque knew that the marijuana cigarette was laced with PCP.

As previously stated, based upon the evidence at trial, the jury convicted Defendant of attempted second degree murder, armed robbery and two counts of carjacking.

DISCUSSION

Assignment of Error Number One (verbatim): The trial court erred by excluding the testimony of Dr. Donald Harvey Marks.

Defendant argues that the trial court erred in excluding the expert testimony of Dr. Donald Harvey Marks because his testimony was admissible under La. C.E. art. 702 in that it was necessary to help the jury understand that his actions were indicative of drug intoxication. Defendant argues that this expert testimony was necessary to prove his lack of specific intent, which was an element of the offenses charged. Defendant also argued that, because the State argued that Defendant was not very intoxicated and that the PCP did not affect others the way it affected him, the testimony of Dr. Marks was necessary to show the jury how drugs affect different people in different ways. As a result, Defendant argues that the jury may not have believed that he was intoxicated at the time of the offenses. Defendant argues that Dr. Marks had excellent credentials, which included having both an M.D. and a Ph.D., being the associate director of | ^research at Hoffman LaRoche Pharmaceutical, being the associate director of research at Aventis Pasteur Pharmaceuticals, being board-certified in internal medicine, having medical licenses in three states and being both a physician researcher and practicing physician at a hospital. Defendant argues that less qualified individuals, such as laymen, crime labóra-tory employees and law enforcement officers, have been permitted to testify about intoxication. Defendant further asserts that the Daubert standards do not apply to all cases requiring expert testimony. In addition, Defendant argues that the trial court erred in excluding the testimony on the ground that it would be based upon hearsay because experts are allowed to use hearsay information and because the State would have had the opportunity to cross-examine Dr. Marks. According to Defendant, the trial court should not have excluded the testimony, but, rather, allowed the jury to determine what weight should be given to it.

The State argues that the trial court did not commit manifest error by excluding Dr. Marks as an expert witness on the adverse effects of PCP. In support thereof, the State emphasizes that Dr. Marks’ experience was limited to two cases that he treated 15 years ago, where he received information from police that the patients were on PCP and where he could not clearly recall if the PCP intoxication had been confirmed by medical tests. Further, Dr. Marks admitted that those patients’ symptoms could have been caused by other medical reasons.

Dr. Marks testified about his educational background, which included an undergraduate degree in biology from California State University and |7both a Ph.D. and M.D. from the University of California. Dr. Marks testified that he was certified by the American Board of Internal Medicine and licensed to practice in New York, Alabama and Mississippi. He testified that he currently worked at a hepatitis clinic, that many of his patients were current or former drug users and that this gave him experience with problems of drug use and addiction. Dr. Marks was formerly an associate director of research for Hoffman LaRoche Pharmaceuticals and the director of clinical research at Aventis Pasteur Pharmaceuticals. He testified that he worked as a medical legal consultant and has testified as an expert witness in cases similar to the present one. Dr. Marks also testified that, while working in the emergency room during his medical residency, he had seen a few-cases of PCP intoxication and that he had reviewed the subject and how to treat it. Defendant sought to tender Dr. Marks- as an expert in the field of the adverse effects of drug abuse; the State objected, and the trial court sustained the objection.

Dr. Mairks then testified more about his experience with the pharmaceutical companies and how he was in charge of evaluating adverse effects of the medications being tested, which were mostly antibiotics and vaccines. Dr. Marks testified that he had been qualified to testify as an expert' regarding the adverse effects of drug use in Texas, New York, New Jersey and Pennsylvania. On cross-examination, Dr. Marks testified that, while his experience with the pharmaceutical companies did not include evaluating those taking PCP, he did evaluate patients who experienced adverse psychiatric effects from anti-malarial medication and adverse |Rcentral nervous system effects from antibiotic medication. Dr. Marks further testified that his only experience with PCP intoxication had been two patients he saw in the emergency room and that it had been over 15 years ago. The State maintained its objection in regard to Dr. Marks being accepted as an expert, and the trial court sustained the objection.

On redirect, Dr. Marks testified that PCP is only produced illegally and that it has not been produced legally for human use since 1965. Dr. Marks testified that the two patients he observed with PCP intoxication had been brought to the emergency room by police officers who said the patients had been found with PCP in their possession, but said that the manic state that they were in made it difficult to question them or to perform a physical examination. Dr. Marks further explained that these patients had symptoms associated with use of a PCP-like drug, such as agitation, being disoriented and delusional and that they were difficult to physically control. On re-cross examination, Dr. Marks acknowledged that he was unsure as to whether there had been some kind of “chemical confirmation” that those patients were intoxicated with PCP and that there were other possible medical causes for the behavior these patients were exhibiting. Dr. Marks also testified that the clinical pharmacology of PCP has not changed in 20 years. After considering the arguments of counsel, the trial court refused to qualify Dr. Marks as an expert witness for the following reasons:

The doctor’s testimony was clear that he remembers two cases of what he thought was PCP. That his memory ... the best he can remember, it was fifteen years ago. I can relate because doctors have tons of patients. And he does research and he’s testified he’s done research reference vaccine evaluations and others and adverse effects of clinical drugs, being for | apharmaceutical companies, not for illegal drugs. And he testified that based on hearsay testimony, what the officers said, he believed they to be under PCP and that he believes that there may have been clinical confirmation. No way he would know because it was too long ago. The best he could remember. And so basically he thinks that he can recall that but he does not know for sure. He testified uncontra-dicted that the exhibit of behavior that he saw could have been from several things. That ... He did not testify that he did a screening that narrowed it down absent the clinical confirmation to PCP. Based on that the Court finds that his testimony is not material and that he does not meet the Daubert analysis to testify in this trial. I’m going to exclude it.

According to La. C.E. art. 702, expert testimony is admissible under the following conditions:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In State v. Foret, 628 So.2d 1116 (La.1993), the Louisiana Supreme Court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding the proper standards for the admissibility of expert testimony, which requires the trial court to perform a “gatekeeping” function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Allen, 41,548 (La.App. 2d Cir.11/15/06), 942 So.2d 1244, citing State v. Chauvin, 02-1188 (La.5/20/03), 846 So.2d 697. In so doing, the Louisiana Supreme Court adopted Daubert’s requirement that technical or | ^scientific expert testimony must rise to a threshold level of reliability before it is admissible under La. C.E. art. 702. State v. Allen, supra. Even so, while the trial court may consider one or more of the four Daubert factors, those factors do not necessarily or exclusively apply to all experts or in every case. State v. Allen, supra, citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226.

The trial court has great discretion in determining the competence of an expert witness and that determination will not be overturned absent an abuse of discretion. State v. Higgins, 03-1980 (La.4/1/05), 898 So.2d 1219, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005); State v. George, 39,959 (La.App. 2d Cir.10/26/05), 914 So.2d 588, writ denied, 06-0707 (La.10/6/06), 938 So.2d 66; State v. Gipson, 37,132 (La.App. 2d Cir.6/25/03), 850 So.2d 973, writ denied, 03-2238 (La.1/30/04), 865 So.2d 75. The test of competency of an expert is his knowledge of the subject about which he is called to express an opinion, which may be shown through a combination of that expert’s specialized training, work experience and practical application of the expert’s knowledge. State v. Gipson, supra.

In the present case, the trial court did not abuse its discretion in excluding Dr. Marks as an expert witness. While Defendant proffered Dr. Marks as an expert in the adverse effects of drug abuse, Defendant’s argument clearly indicates that he sought to use Dr. Marks specifically for the purpose of proving to the jury that he was intoxicated on PCP at the time Inof the offenses and that the PCP caused him to commit crimes that he would not have otherwise committed. The testimony showed that Dr. Marks has impressive credentials generally and specifically in regard to the research and development of pharmaceuticals and in treating hepatitis patients who may be drug abusers. Even so, the testimony showed that his only experience with PCP intoxication was from two patients he treated in an emergency room over 15 years ago, and it is unclear whether there was any medical confirmation that those patients actually suffered from PCP intoxication. While Dr. Marks may have reviewed the literature on the diagnosis and treatment of PCP intoxication, it appears that his actual experience with PCP intoxication was extremely limited and, possibly, nonexistent. Accordingly, the trial court did not abuse its discretion in excluding Dr. Marks as an expert witness on this particular subject because it does not appear that he had the specialized knowledge necessary to help the jury determine whether Defendant’s behavior was the result of PCP intoxication.

This assignment is, therefore, without merit.

Assignment of Error Number Two (verbatim): The trial court erred by finding that there was sufficient evidence of intoxication.

Defendant presented no argument in brief on the issue of whether the trial court erred by finding that there was sufficient evidence of intoxication. The assignment makes no sense in regard to the present case because the jury was charged with making that finding, not the trial court. Defendant did not specifically argue in his motion for post-verdict judgment of acquittal that he proved involuntary intoxication by a preponderance of the | ^evidence, so the assignment still does not make sense even if counsel was trying to argue that the trial court erred in denying the post-verdict motion. In the “ISSUES ON APPEAL” portion of Defendant’s brief, counsel asks, “Did the defendant prove involuntary intoxication by a preponderance of the evidence?” No argument is offered in regard to the issue of involuntary intoxication in the brief. Assignments of error which are neither briefed nor argued are considered abandoned. U.R.C.A. 2-12.4; State v. Schwartz, 354 So.2d 1332, fn. 1 (La.1978); State v. King, 41,084 (La.App. 2d Cir.6/30/06), 935 So.2d 815, writ denied, 06-1803 (La.2/16/07), 949 So.2d 411; State v. Kotwitz, 549 So.2d 351 (La.App. 2d Cir.1989), writs denied, 558 So.2d 1123 (La.1990). Further, a mere statement of an assignment of error in a brief,does not constitute briefing of the assignment; and, therefore, the assignment is deemed abandoned. State v. Lee, 39,969 (La.App. 2d Cir.8/17/05), 909 So.2d 672, unit denied, 06-0247 (La.9/1/06), 936 So.2d 195, citing State v. Toney, 26,711 (La.App. 2d Cir.3/1/95), 651 So.2d 387. To the extent that Defendant bore the burden of proving by a preponderance of the evidence the affirmative defense of involuntary intoxication, that will be discussed generally in Assignment of Error Number Three. Further, the State briefed the issue of involuntary intoxication as part of its argument for Assignment of Error Number Three.

Assignment of Error Number Three (verbatim): The trial court erred by finding that there was sufficient evidence to convict Defendant of Attempted Second Degree Murder.

Defendant argues that the evidence was insufficient to support his conviction for attempted second degree murder because there was no [^evidence that he actually pointed the gun at Reed or any other victim. Defendant argues on appeal that he was so close to Reed that he could have shot him if that had been his intention. The State argues that the evidence of Reed’s testimony shows that Defendant did have the specific intent to kill Reed. Although Defendant makes no actual argument on appeal in regard to voluntary intoxication, the State argues that Defendant failed to prove the affirmative defense of involuntary intoxication in light of the fact that there was contradictory evidence of whether the intoxication was involuntary and that the others who smoked the same PCP-laced marijuana cigarette did not commit violent felonies as Defendant did on that day.

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). In the absence of internal contradictions or irreconcilable conflict with physical evidence, the testimony of one witness is sufficient support for a requisite factual conclusion if that witness is believed by the trier of fact. State v. Jones, 31,613 (La.App. 2d Cir.4/01/99), 733 So.2d 127, writ denied, 99-1185 (La.10/01/99), 748 So.2d 434, citing State v. Ford, 28,724 (La.App. 2d Cir.10/30/96), 682 So.2d 847, writ denied, 99-0210 (La.5/14/99), 745 So.2d 12. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 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. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, the matter is one of the weight, not the sufficiency, of the evidence. State v. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566 and 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). 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.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/05/99), 737 So.2d 747. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Barakat, 38,419 (La.App. 2d Cir.6/23/04), 877 So.2d 223, citing State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, supra. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred 11Baecording to reason and common experience. State v. Barakat, supra, citing State v. Anderson, 36,969 (La.App. 2d Cir.4/9/03), 842 So.2d 1222. To convict a defendant based upon circumstantial evidence, it must exclude every reasonable hypothesis of innocence. State v. Barakat, supra, citing La. R.S. 15:438.

Second degree murder is the killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). Although the complete crime of second degree murder can be proved by showing either specific intent to kill or to inflict great bodily harm, the state must prove that the defendant had the specific intent to kill in order to support a conviction for attempted second degree murder. State v. Bouie, 00-2934 (La.5/14/02), 817 So.2d 48, fn. 2, citing State v. Huizar, 414 So.2d 741 (La.1982), State v. Strother, 362 So.2d 508 (La.1978); State v. Carter, 34,677 (La.App. 2d Cir.5/9/01), 787 So.2d 509, unit denied, 01-1707 (La.5/3/02), 815 So.2d 93. In State v. Mitchell, 39,202 (La.App. 2d Cir.12/15/04), 889 So.2d 1257, writ denied, 05-0132 (La.4/29/05), 901 So.2d 1063, this court stated that the specific intent to kill could be inferred from the circumstances, such as discharging a firearm aimed at a person within close range:

Specific intent is the state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Ellis, 28,282 (La.App. 2d Cir.06/26/96), 677 So.2d 617, writ denied, 96-1991 (La.02/21/97), 688 So.2d 521. As a state of mind, specific intent need not be proved as a fact; it may be inferred from the circumstances and the actions of .the defendant. State v. Kahey, 436 So.2d 475 (La.1983); State v. Murray, 36,137 (La.App. 2d Cir.08/29/02), 827 So.2d 488, writ denied, 02-2634 (La.09/05/03), 852 So.2d 1020; State v. Ellis, supra. The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Murray, supra; State v. Johnson, 27,522 (La.App. 2d Cir.12/06/95), 665 So.2d 1237. The determination of whether the requisite intent is present is a question for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982).

We conclude that the State presented sufficient evidence that Defendant had the specific intent to kill Reed. Reed testified that Defendant grabbed him by the throat, that he saw something shiny coming up toward him as he jerked away from Defendant, that he saw a flash, that he felt a gunfire blast go within two to three inches of his face and that he felt fragments from the blast actually hit his face. Reed testified that after he went back outside, Defendant said, “Mot Reed, I see you, bitch,” and fired another shot at him. Reed believed that Defendant would have shot him in the forehead if he had not jerked back. This testimony was evidence that Defendant was aiming the gun at Reed and that he fired the gun at Reed within very close range. Accordingly, we find that the State presented sufficient evidence from which a rational jury could determine that Defendant had the specific intent to kill Reed and that he attempted to do so by firing the handgun at Reed.

Defendant argued at trial that he was not responsible for his conduct due to being involuntarily intoxicated at the time of the offenses. 11?According to La. R.S. 14:15(1), involuntary intoxication is a complete defense for criminal behavior:

(1) Where the production of the intoxication or drugged condition has been involuntary, and the circumstances indicate this condition is the direct cause of the commission of the crime, the offender is exempt from criminal responsibility-

If a defendant proves that he was intoxicated at the time of the offense, the state has the burden of negating that defense by proof beyond a reasonable doubt. State v. Mitchell, supra, citing State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994). In the present case, Defendant’s medical records indicate that he tested positive for PCP and marijuana when he was taken to the hospital after his arrest.

Even so, the evidence that the intoxication was involuntary or that 'the intoxication directly caused him to commit these crimes was controverted by the State’s evidence. Mitchell testified that Defendant did not know that the marijuana cigarette was laced with PCP. Conversely, Investigator Brown testified that Mitchell told him that Defendant and everyone at the barbeque knew that the marijuana cigarette was laced with PCP. Mitchell’s credibility was further challenged by the fact that he was incarcerated at the time of his testimony and by the fact that he did not go to police with this information. Further, Defendant presented no evidence that the PCP directly caused him to commit these crimes. Rather, on cross-examination, Mitchell testified that he and others smoked this same cigarette, but that neither he nor anyone else who had smoked that cigarette tried to kill, rob or carjack anyone else that day. A reviewing court accords great deference to a Injury’s decision to accept or reject the testimony of a witness in whole or in part as to issues regarding the question of intoxication. State v. Mitchell, supra, citing State v. Jordan, 31,568 (La.App. 2d Cir.2/24/99), 728 So.2d 954, writ denied, 99-0893 (La.10/8/99), 750 So.2d 177. Defendant did not meet his burden of proving involuntary intoxication because he presented no evidence that the intoxication directly caused him to commit these offenses. Moreover, in light of the contradictory evidence regarding whether the intoxication was involuntary and the lack of evidence regarding whether the intoxication caused Defendant to commit these crimes, a rational jury could properly conclude beyond reasonable doubt that involuntary intoxication was not proven in this case.

This assignment is, therefore, without merit.

Assignment of Error Number Four (verbatim): The trial court erred by sentencing the defendant to consecutive rather the [sic ] concurrent sentences.

Defendant argues that the consecutive sentences imposed were excessive because this was his first felony conviction and because these crimes arose from a single course of conduct. Defendant further argues that the trial court’s reasoning was based upon facts not in evidence and that there are no reasons that justify the consecutive sentences imposed by the trial court. The State counters that the trial court did not abuse its discretion in ordering the consecutive sentences because they arose from separate incidents involving different victims and because Defendant was a second-felony offender with a violent criminal history. The State further urges that Defendant voluntarily ingested PCP and intentionally committed these | iaviolent crimes against victims who had done nothing to provoke him, putting them in fear for their lives.

Although Defendant filed a motion to reconsider sentence, it was not filed within 30 days of sentencing as required by La. C. Cr. P. art. 881.1(A)(1). The record indicates that the trial court sentenced Defendant on January 27, 2006, but that his motion to reconsider sentence was not filed until March 24, 2006. When a defendant fails to timely file a motion to reconsider sentence pursuant to La. C. Cr. P. art. 881.1, the appellate court’s review is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Jones, 41,449 (La.App. 2d Cir.9/20/06), 940 So.2d 61; State v. Duncan, 30,453 (La.App. 2d Cir.2/25/98), 707 So.2d 164. Further, in the motion to reconsider sentence, Defendant did not specifically allege that the sentences were excessive for being imposed consecutively. According to La. C. Cr. P. art. 881.2(A)(1), review of a sentence is restricted to the grounds raised in the motion to reconsider sentence. Even if Defendant had timely filed his motion to reconsider sentence, he would still be precluded from review of his sentences based upon the argument that the trial court erred by imposing them consecutively. Thus, this court’s review of Defendant’s sentences is limited to whether the sentences were constitutionally 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 articulation of the factual basis for a sentence is the goal of La. C. Cr. P. |P,nart. 894.1, not a rigid or mechanical compliance with its provisions. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App. 2d Cir.6/24/98), 715 So.2d 641. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So.2d 747, unit denied, 04-2606 (La.6/24/05), 904 So.2d 728.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of Defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985).

| ⅞1 There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385. As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Grissom, 29,718 (La.App. 2d Cir.8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2d Cir.1991). The trial court shall exercise its sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829 (La.1981). A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). The trial court is given wide discretion to -impose a sentence within the statutory limits, and a sentence imposed by the trial court should not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7, citing State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330, State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La.1982); State v. Hardy, 39,233 (La.App. 2d Cir.1/26/05), 892 So.2d 710. On review, an appellate court does hot determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Cook, supra.

| ¡>i>At the sentencing hearing, the trial court first noted that Defendant was found guilty as charged for attempted second-degree murder, armed robbery and two counts of carjacking. The trial court considered Defendant’s social history, noting that he was 26 years old, that he never knew his father and that he was raised by his grandmother, who was a very hardworking woman. The trial court noted Defendant’s educational and employment history, which included dropping out of high school in the eleventh grade without pursuing a GED and the fact that Defendant had only retained some part-time employment. The trial court recounted the facts of the case and the severe emotional trauma sustained by the victims. The trial court also recounted Defendant’s criminal history, which indicated that Defendant had a series of misdemeanor convictions, some of which were of a violent nature, and a prior felony conviction for aggravated flight from an officer. The trial court noted that Defendant did not successfully complete his felony probation. The trial court further noted that Defendant had previously been acquitted of second-degree murder and that the facts of that case were very similar to the facts of the present case.

The trial court related that the probation officer conducting the pre-sentence investigation recommended a maximum sentence, due in part to the fact that the victims now fear for their lives. In considering the aggravating circumstances listed in the sentencing guidelines of La. C. Cr. P. art. 894.1, the trial court noted that Defendant’s conduct threatened serious harm and caused severe emotional trauma to the victims; that Defendant was armed with a handgun and used it during his crimes; that thej^victims did nothing to provoke Defendant’s actions; that Defendant voluntarily ingested PCP; that Defendant would be unable to compensate the victims for their emotional trauma; that Defendant has a significant criminal history; that Defendant had been unsuccessful while on a previous felony probation; that Defendant’s actions were the result of conduct likely to recur; that Defendant had made excuses for his behavior in an effort to escape responsibility; and that incarceration would not adversely affect any dependents. Further, the trial court noted that it found no mitigating circumstances. As a result, the trial court found that there was an undue risk of Defendant committing another crime if given a suspended sentence or probation, that any lesser sentence would deprecate the seriousness of his conduct and that Defendant was in need of correctional treatment that would be best provided in a custodial environment. Thus, a review of the record indicates that the trial court was cognizant of the sentencing considerations of La. C. Cr. P. art. 894.1.

The sentencing range for attempted second-degree murder is imprisonment at hard labor for not less than 10 years nor more than 50 years without benefit of parole, probation, or suspension of sentence. La. R.S. 14:27(D)(1)(a) and 14:30.1. The sentencing range for armed robbery is imprisonment at hard labor for not less than 10 nor more than 99 years without benefit of parole, probation or suspension of sentence. La. R.S. 14:64(B). The trial court imposed a sentence of 45 years at hard labor for attempted second-degree murder and 70 years at hard labor for armed robbery all to be served without benefit of parole, probation or suspension l^of sentence, and the trial court ordered that these two sentences be served concurrently. Thus, the trial court did impose a sentence within the upper level of the sentencing range for those offenses. In regard to both counts of carjacking, the trial court imposed the maximum sentence of 20 years at hard labor without benefit of parole, probation or suspension of sentence and ordered that the carjacking sentences be served concurrently to each other and consecutively to the sentences for attempted second degree murder and armed robbery. La. R.S. 14:64.2(B).

Consecutive sentences under certain circumstances are not necessarily excessive. State v. Wilson, 42,075 (La.App. 2d Cir.5/9/07), 957 So.2d 345, citing State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980). Although La. C. Cr. P. art. 883 favors the imposition of concurrent sentences for crimes committed as part of the same transaction or series of transactions, a trial court retains the discretion to impose consecutive sentences in cases where the offender’s criminal history and other circumstances in his background justify treating him as a grave risk to the safety of the community. State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461; State v. Feaster, 36,868 (La.App. 2d Cir.3/5/03), 840 So.2d 675; State v. Johnson, 35,487 (La.App. 2d Cir.1/23/02), 806 So.2d 960. All factors in the case are to be considered in choosing whether to impose consecutive or concurrent sentences, including the defendant’s criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, and the potential for Defendant’s rehabilitation. State v. Yossett, 41,926 (La.App. 2d Cir.4/25/07), 956 So.2d 109, citing State v. Morgan, 40,976 (La.App. 2d Cir.4/12/06), 926 So.2d 822, State v. Maxie, 30,877 (La.App. 2d Cir.8/19/98), 719 So.2d 104.

Considering the circumstances the trial court noted at the sentencing hearing, which include the violent nature of the offenses, the trauma to the victims and Defendant’s criminal history, the consecutive sentences do not shock the sense of justice. These circumstances clearly indicate that Defendant is in need of correctional treatment in a custodial facility and that any lesser sentence would deprecate the seriousness of his actions. Thus, we conclude that the trial court did not abuse its discretion and that the consecutive sentences are not constitutionally excessive.

This assignment is without merit.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant, Tre-maine Taylor, are affirmed.

AFFIRMED.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

11 This defendant went on a bizarre random crime spree. When arrested, his strange behavior even led authorities to seek medical attention for him, and tests confirmed the drug PCP in his system.

The three crimes for which defendant was convicted are specific intent crimes. La. R.S. 14:10. Although defendant may have argued that his drugged condition was involuntary, it was irrelevant how he was drugged with PCP because La. R.S. 14:15(2) provides:

Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.

What is PCP? Was the amount in defendant’s system significant? With the predicate facts of defendant’s bizarre conduct and drug test, these two questions beg for answers. They raise scientific medical issues for which the trier-of-fact needs some assistance. La. C.E. art. 702. Any medical doctor has the scientific understanding of basic pharmacology so as to at least assist a lay jury in a general understanding of this dissociative drug. The fact that Dr. Marks had not treated many PCP users does not mean that he lacked the expertise to explain the established scientific body of knowledge concerning this well-known drug. Other than the treating physician, who observed the defendant in his drugged state, any medical doctor would be somewhat limited to providing only a general explanation of this drug’s neurological effects. Cf State v. Jarreau, 96-1480 (La.App. 1st Cir.3/27/97), 692 So.2d 33, writ denied, 97-1122 (La.10/13/97), 703 So.2d 612.

In State v. Dorsey, 34,977 (La.App. 2d Cir.9/26/01), 796 So.2d 135, writ denied, 01-2876 (La.8/30/02), 823 So.2d 941, and writ denied, 01-2963 (La.10/14/02), 827 So.2d 414, the state’s medical doctor’s expertise was challenged. This court found that the doctor’s testimony was admissible, noting that “generally, the fact that a medical doctor is not a specialist in a particular field applies only to the effect on the weight to be given such testimony, not to its admissibility.” Id. at 142. As an exaggerated example, a trained physician with a general understanding of rat poison’s effect on the human body should be able to share his medical training and knowledge of the harm from such poison to assist the trier-of-fact without ever having treated a rat-poisoned patient. Any deficiency in actual experience goes to the weight of the testimony of a medical doctor as one of our society’s most highly-trained scientific experts.

Dr. Marks has been a medical doctor for over twenty-five years. During his internship with the Air Force, he attended drug abuse patients on the base. His current employment at a hepatitis clinic involves problems with drug use and addiction. In the past, he worked in the pharmaceutical industry reporting to the FDA on the adverse effects of drugs on patients. Specifically regarding his experience with PCP, he testified as follows:

Q. Did you ever have occasion to research the adverse effects of PCP ingestion?
A. Yes. Well, after my residency I was assigned to do clinical research with the Army for four years at Letterman Army Research Institute in San Francisco. And I also had emergency | .-¡room responsibilities there. And we did have some occasion to have PCP toxicity cases come in. So I remember back then doing a fairly good review of PCP intoxication and how to handle it medically. And in the course and preparation for this case reviewing the medical records and the incident report from the police and also examining Mr. Taylor, I’ve had a chance again to review the issue of PCP intoxication.

Clearly, in my opinion, the question before the trial court was not whether this indigent defendant had picked the best medical doctor with the greatest experience with PCP patients. Dr. Marks was well qualified to assist the trier-of-fact -with the known and generally accepted body of scientific knowledge of the effects of PCP. The so-called.gatekeeper’s role in this case was improperly administered. The defendant was denied his right to present a defense. Accordingly, I respectfully dissent, would reverse the conviction and remand for a new trial.

      . The United States Supreme Court set out the following guidelines to consider as a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can be applied to the facts at issue: (1) whether the theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the methodology is generally accepted by the relevant scientific community. Daubert v. Merrell Dow Pharmaceuticals, Inc., supra.

      . According to La. R.S. 14:15(2), voluntary intoxication may be a defense to specific intent crimes "where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime.” Defendant did not argue at trial or on appeal that voluntary intoxication deprived him of the ability to form the specific intent to commit attempted second degree murder. Further, as discussed above, the evidence that Defendant was firing a handgun at the victim indicates that Defendant did possess the specific intent to kill.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Brady ALSUP, Appellant.
    No. 42,636-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Louisiana Appellate Project by Paula C. Marx, Lafayette, J. Chris Guillet, for Appellant.
    William R. Jones, District Attorney, Robert E. Bethard, Assistant District Attorney, for Appellee.
    Before STEWART, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

| defendant, Brady Alsup, was convicted of simple burglary of an inhabited dwelling, a violation of La. R.S. 14:62.2. He was sentenced to eight years at hard labor. Defendant now appeals his conviction and sentence. For the following reasons, Defendant’s conviction and sentence are affirmed.

FACTS

On April 16, 2006, Easter Sunday, Ralph Wilson went to church as usual at approximately 9:45 a.m. and did not return to his home until approximately 12:30 p.m. When Mr. Wilson returned home, he found his entry door unlocked; and, once inside, he found the door to his home office open. Mr. Wilson always kept the door to the office closed. Believing that his daughter had been in his home, Mr. Wilson contacted her to scold her for leaving the office door open. When his daughter stated she had not been in his home, Mr. Wilson simply gave no further thought to the matter at that time.

Several days later, a representative from his bank contacted Mr. Wilson inquiring about a check. He had not recently written a check for that particular amount; and, after investigating, he found checks missing from his office. Two accounts, a personal account and a business account, had checks missing from the check registers. A total of 15 checks were missing from the registers. The missing checks had been removed from the middle of the personal account checks and the end of the business account checks; therefore, it was not readily apparent that they were missing.

| ¡.Police investigating the incident found a broken window at the back of Mr. Wilson’s house. The police were unable to find any usable prints from the window or from within the office, but the police were subsequently able to determine that Defendant, a family friend of Mr. Wilson, was a prime suspect. Defendant had used the stolen checks to make several purchases in the area and was eventually arrested for the crime.

DISCUSSION

Defendant argues that the State failed to present sufficient evidence to establish the essential elements of the charged offense. Specifically, Defendant alleges that the State failed to establish the element of unauthorized entry into the victim’s residence, but relied upon the fact that Defendant was found to be in possession of the victim’s checks to establish the burglary. The State contends that the direct and circumstantial evidence presented was sufficient to support the conviction, including finding that Defendant had, in fact, entered the victim’s residence.

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. 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, unit 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 |ssubstitute its own appreciation of the evidence for that of the fact finder. 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.

Circumstantial evidence is defined as evidence of facts or circumstances from which one might infer or conclude the existence of other connected facts. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Lilly, 468 So.2d 1154 (La.1985); State v. Mims, 39,757 (La.App. 2d Cir.6/29/05), 907 So.2d 237; State v. Turner, 591 So.2d 391 (La.App. 2d Cir.1991), writ denied, 597 So.2d 1027 (La.1992).

In all cases where an essential element of the crime is not proven by direct evidence, the evidentiary rule on circumstantial evidence, La. R.S. 15:438, applies. It restrains the fact finder in the first instance, as well as the reviewer on appeal, to accept as proven all that the evidence tends to prove and then to convict only if every reasonable hypothesis of innocence is excluded. State v. Lilly, supra. Whether circumstantial evidence excludes every reasonable hypothesis of innocence presents a question of law. State v. Shapiro, 431 So.2d 372 (La.1982); State v. Hammontree, 363 So.2d 1364 (La.1978); State v. Van Sales, 38,138 (La.App. 2d Cir.3/3/04), 867 So.2d 849, unit denied, 04-1305 (La.4/22/05), 899 So.2d 569. The court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events; rather, when evaluating the evidence in the light most favorable to the prosecution, the court determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia, supra. State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78; State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, unit denied, 98-2723 (La.2/5/99), 737 So.2d 747.

When the conviction is based on both direct and circumstantial evidence, an appellate court reviewing the sufficiency of the evidence 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 juror to conclude beyond a reasonable doubt that a defendant was guilty of every ssential element of the crime. State v. Jacobs, 504 So.2d 817 (La.1987); State v. Adkins, 39,724 (La.App. 2d Cir.6/29/05), 907 So.2d 232, writ denied, 06-2514 (La.5/4/07), 956 So.2d 607; State v. Lott, 535 So.2d 963 (La.App. 2d Cir.1988).

|5To convict a defendant of simple burglary of an inhabited dwelling, the state is required to prove that a defendant entered an inhabited dwelling with the intent to commit a felony or theft therein. A defendant’s intent to commit burglary of an inhabited dwelling may be inferred from circumstances surrounding the commission of .the offense. State v. Jones, 38,579 (La.App. 2d Cir.8/18/04), 880 So.2d 962, writ denied, 05-0333 (La.5/13/05), 902 So.2d 1017.

In the case sub judice, the Staté presented the testimony of several witnesses at trial, including the victim, Mr. Wilson, who was “eighty-eight [years] and three days old” at the time of the trial. In addition to the events detailed above, Mr. Wilson testified that he had known both Defendant and his mother for all of their lives. Defendant had visited Mr. Wilson’s home periodically and was familiar with the layout of the house.

Mr. Wilson also identified several checks that had been written on both his personal account, as well as his business account. Mr. Wilson indicated that he had not written the checks, nor had he given anyone permission to write the checks. Mr. Wilson also testified that he had not given anyone permission to remove the checks from the checkbook. After the checks were found missing, Mr. Wilson closed the accounts.

| fiAfter finding that checks were missing from his office, Mr. Wilson searched to determine where a person may have entered his home. He found that a window pane in the back bedroom of his house had been cracked out and there was also a hole in the screen. The cracked pane and the hole in the screen were near the latch for the window, which was four feet from the ground. The window was large enough for a “pretty big man” to crawl through. On cross-examination, Mr. Wilson testified that he did not actually see anyone break into his home.

Detective Vernon Perrin of the Red River Parish Sheriffs office testified that he investigated the burglary of Mr. Wilson’s home. Mr. Wilson informed Detective Perrin that someone had been in his office, but he was unsure how the person may have entered. Mr. Wilson also told Detective Perrin that checks had been taken from his home. Detective Perrin confirmed that a window in the back bedroom of the house had been cracked and there was a small hole that allowed access to the window lock. Detective Perrin was able to use a pocket knife to unlock the window and open the window. The window and the office were dusted for fingerprints, but no identifiable prints were found.

Ms. Janette Mason, a store manager with Advance Auto Parts, testified that she was called to approve a check purchase involving Defendant. As a part of the ordinary practice of the store, checks over a certain amount must receive a manager’s approval. The check in the amount of $530.24 was tendered on April 17, 2006. While the date written on the check was “2005,” Ms. Mason pointed to the register stamp on the |7back of the check that contained a date stamp showing the “2006” date. Ms. Mason recalled that she checked Defendant’s driver’s license and it matched what was on the check. The check was one from Mr. Wilson’s account and the license also had that same name, Ralph Wilson. Ms. Mason identified Defendant in court as the person who presented the check and the driver’s license in the name of Ralph Wilson. Ms. Mason was able to remember “Mr. Wilson” because his truck leaked diesel in .the parking lot of the store, and “Mr. Wilson” assisted Ms. Mason and one of her employees in cleaning up the spill.

On another occasion, Defendant was in the store attempting to return some of the items he previously purchased. Defendant had initially attempted to return the items to another Advance Auto Parts store; but, because of the policies of the store, the return had to be made at the original store where the items had been purchased. When Defendant appeared at Ms. Mason’s store again, she informed him that he would have to wait at least ten days from the date of the purchase, which had not elapsed, to receive a cash refund.

Shirley Dumas, another employee of Advance Auto Parts at a different location, testified that her store was equipped with a video surveillance camera that recorded individuals who entered the store. Ms. Dumas presented a DVD of images taken in her store in April 2006. An individual, identified in court as Defendant, attempted to return items to Ms. Dumas’ store. Since the items were valued in excess of $500 and the ten-day waiting period for the check purchase had not elapsed, Defendant |swas told that the return would have to be made at the store where the purchase was originally made. Defendant then left with the items he was attempting to return. The surveillance video was played for the jury. In the video, Defendant could be seen entering the store with a bag in his hands and later exiting the store with the same bag.

Belinda Alsup, Defendant’s former wife, testified on behalf of the State. At the time of the trial, Ms. Alsup was incarcerated after having pled guilty to several criminal charges, including accessory after the fact to the burglary of Mr. Wilson’s home. Ms. Alsup stated that she had not received any plea agreements or reduced sentence in exchange for her testimony in the instant matter. Ms. Alsup testified that she was acquainted with Mr. Wilson through Defendant and his family.

On Easter 2006, Ms. Alsup recalled that she was with Defendant in their RV near Defendant’s mother’s home. Defendant left the RV some time between 11:00 a.m. and 12:00 p.m. that day. Ms. Alsup was readying herself and the couple’s baby to meet with Ms. Alsup’s other child when Defendant returned to the RV. Upon his return, Ms. Alsup noticed that Defendant had what looked like cobwebs in his hair. After a brief conversation with Ms. Alsup, Defendant went to his four-wheeler and returned with some checks. Since Ms. Alsup could not be late to meet with her daughter, she told Defendant that they would talk later and left the RV. Ms. Alsup recalled that the checks belonged to Ralph Wilson. Ms. Alsup did not stay with Defendant on Easter night and did not see him again until April 19, 2006, when they went shopping. On the day of the shopping trip, |flMs. Alsup noticed- that Defendant had new tires on his truck and that the truck had been “jacked up.” There were also tools in the truck and Defendant had purchased a new computer.

The couple shopped at Abercrombie and Fitch where a check on Mr. Wilson’s account in the amount of $1,518.39 was presented for merchandise. Defendant presented the check for the items; Ms. Alsup’s items totaled $450. Defendant was asked for identification and produced a driver’s license bearing his picture and Ralph Wilson’s name and address.

On cross-examination, in responding to questions from defense counsel who was attempting to forward the theory that Ms. AIsup and her ex-husband, Kevin Bounds, had actually committed the burglary, Ms. AIsup acknowledged that she still maintained a close relationship with Mr. Bounds at the time of the commission of the burglary. Ms. AIsup stated that she maintained the relationship because she had a child with Mr. Bounds. When questioned about being offered any incentive to testify, Ms. AIsup stated that she had not received any incentive and had not told anyone that she had. As she was further questioned regarding this point, Ms. AIsup insisted that, because her five-year sentence involved multiple charges, her sentence was not affected by her testimony in the case sub judice.

Defendant’s mother, Mrs. Marsha Nelson AIsup Loftin, was caring for Ms. Als-up’s child during her incarceration and Ms. AIsup admitted she made collect calls to Defendant’s mother for the main purpose of discussing Ms. Alsup’s child. Anticipating conflicting testimony from Mrs. Loftin | inregarding statements Ms. AIsup purportedly made in those conversations, defense counsel questioned Ms. AIsup regarding several statements she allegedly made to Mrs. Loftin. Ms. AIsup denied that she entered the Wilson home to take the checks. She also denied telling anyone that she or Mr. Bounds entered the home. Ms. AIsup specifically denied giving this information to Defendant’s mother in any of their telephone conversations. After Ms. Alsup’s testimony, the State rested its case.

The defense called one witness, Mrs. Loftin, Defendant’s mother. Mrs. Loftin testified that, on April 15, 2006, the day before the burglary, Defendant called her asking if she had seen his wife. Mrs. Loftin indicated that she had not seen her and noted that Ms. AIsup frequently left without explanation. According to Mrs. Loftin, Defendant was working in Lake Charles at the time of the call. Mrs. Loftin stated that Defendant and his young child were to come to the property across from her house that evening and stay in his camper. When Defendant arrived, they discovered that the electricity had not been installed on the property, so Defendant and his son stayed at Mrs. Lof-tin’s house.

Mrs. Loftin stated that, on Easter Sunday, she did not go to church as usual so that she could spend time with Defendant and her grandson. They ate breakfast that morning and had an Easter egg hunt as it was her grandson’s first Easter. The group then had lunch before taking a nap. After the nap, Mrs. Loftin recalled spending more time visiting with her son after dark and then he and her grandson drove back to Lake Charles. I^Mrs. Loftin testified that Defendant did not leave her house anytime during that day before returning to Lake Charles.

During the time Ms. AIsup was incarcerated, she would call Mrs. Loftin to check on the baby. As stated, at that time, Mrs. Loftin was raising the child while Defendant worked. According to Mrs. Loftin, during one telephone call with Ms. AIsup, Mrs. Loftin questioned Ms. AIsup about what “going on” with her. Mrs. Loftin testified, “I’m nosey, I wanted to get what I could get out of her. And, she offered it.” According to Mrs. Loftin, Ms. AIsup stated that she had been offered a deal. Mrs. Loftin did not receive any details on this comment as the call was interrupted when the baby started crying. On another call, Mrs. Loftin stated that she was questioning Ms. AIsup and asked what she and Kevin Bounds got for their crimes. Mrs. Loftin stated that Ms. AIsup began to explain her deal; then, when questioned about the Wilson burglary, Ms. AIsup said, “what if I was to tell you that Kevin and I went in there?” Mrs. Loftin tried to follow up on the comment and Ms. Alsup giggled; then this call was also interrupted by the baby crying.

On cross-examination, Mrs. Loftin again stated that Defendant went to Lake Charles on April 16, 2006. Defendant called that evening to confirm that he had reached Lake Charles. Mrs. Loftin did not hear from Defendant for several days after that evening, and she could not say whether or not Defendant was in Lake Charles on the days immediately following the burglary. Mrs. Loftin noted that her son’s picture was on the driver’s license with Mr. Wilson’s name and address. After viewing the Advance hj.Auto Parts video, Mrs. Loftin did not believe the person in the video was her son, but she could not say conclusively that her son had not entered the store on that day. Finally, when questioned about an alleged deal that Ms. Alsup may have received, Mrs. Loftin stated that someone receiving concurrent sentences might consider that a deal. The defense rested its case at the conclusion of Mrs. Loftin’s testimony.

The record reflects that the State presented sufficient direct and circumstantial evidence to convict Defendant of simple burglary. The evidence shows that someone entered Mr. Wilson’s home without permission, possibly through a back window, and removed checks from his home office. Mr. Wilson clearly stated that it was not readily apparent that anything had been disturbed in the home. One could infer, from those circumstances, that the person who entered was familiar with Mr. Wilson and his home and knew where to obtain the checks. One could also infer that the person then went directly to the checks, without disturbing any other items. The State presented circumstantial evidence to show that, because they were well acquainted, Defendant was likely familiar with Mr. Wilson’s home and his Sunday routine of attending church. The evidence links Defendant to the crime in that he left his RV during the time that Mr. Wilson was in church and returned sometime later with the checks and cobwebs in his hair. Later, Defendant altered his driver’s license to make purchases using the checks taken from Mr. Wilson’s home.

The defense attempted to establish alternate theories of the burglary, specifically that Defendant’s wife and her ex-husband entered the home, h .¿These theories apparently were not believed by the jury. As the State points out in its brief, the theory would not seem plausible because Defendant was the only person who had possession of the checks and received the majority of the benefits from the proceeds of the burglary.

The evidence presented establishes that Defendant entered Mr. Wilson’s home without permission, an unauthorized entry, and removed checks, an item of value, from his home office. Defendant later used the stolen checks to purchase items, including clothing, computers and auto parts. Considering the evidence in its totality, the State was able to present sufficient evidence to establish the essential elements of the charged offense. This assignment is, therefore, without merit.

Evidence of Other Crimes

Defendant alleges that the trial court erred in allowing prejudicial evidence of other crimes since the State did not establish an illegal entry into Mr. Wilson’s home, nor did it link any illegal entry to Defendant. The State counters that the other crimes evidence was presented at trial as part of the res gestae and, thus, were admissible during the trial.

Generally, evidence of other acts of misconduct is not admissible because it creates the risk that Defendant will be convicted of the present offense simply because the unrelated evidence establishes him or her as a “bad person.” La. C.E. art. 404(B)(1); State v. Jackson, 625 So.2d 146 (La.1993). This rule of exclusion stems from the “substantial risk of grave prejudice to Defendant” from the introduction of evidence regarding his unrelated criminal acts. State v. Prieur, 277 So.2d 126 (La.1973). 114Evidence of other crimes, however, may be admissible if the State establishes an independent and relevant reason, i.e., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. art. 404(B)(1); State v. Roberson, 40,809 (La.App. 2d Cir.4/19/06), 929 So.2d 789. Even when the other crimes evidence is offered for a purpose allowed under Article 404, the evidence is not admissible unless it tends to prove a material, fact at issue or to rebut a defense. The probative value of the extraneous crimes evidence must outweigh its prejudicial effect. La. C.E. art. 403; State v. Jacobs, 99-0991 (La.5/15/01), 803 So.2d 933, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002); State v. Hatcher, 372 So.2d 1024 (La.1979).

A trial court’s ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996); State v. Cooks, 36,613 (La.App. 2d Cir.12/4/02), 833 So.2d 1034; State v. Butler, 30,798 (La.App. 2d Cir.6/24/98), 714 So.2d 877, writ denied, 98-2217 (La.1/8/99), 734 So.2d 1222.

Evidence of other crimes, wrongs or acts may be introduced when it relates to conduct that forms an integral part of the act or transaction that is the subject of the present proceedings. La. C.E. art. 404(B)(1); State v. Colomb, 98-2813 (La.10/1/99), 747 So.2d 1074; State v. Coates, 27,287 (La.App.2d Cir.9/27/95), 661 So.2d 571, writ denied, 95-2613 (La.2/28/96), 668 So.2d 365. Such evidence of integral acts, or res gestae, is admissible under La. CJE. art. 404(B)(1) without requiring the State to give Prieur notice or the trial court conducting a Prieur hearing. State v. Boyd, 359, So.2d 931 (La.1978); State v. Mandosia, 36,827 (La.App. 2d Cir.4/9/03), 842 So.2d 1252. The test of integral act evidence is not simply whether the State might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive its case of narrative momentum and cohesiveness, with power not only to support conclusions, but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. State v. Colomb, 98-2813 (La.10/1/99), 747 So.2d 1074; State v. Gaddis, 36,661 (La.App. 2d Cir. 3/14/03), 839 So.2d 1258, writ denied, 03-1275 (La.5/14/04), 872 So.2d 519, cert. denied, 544 U.S. 926, 125 S.Ct. 1649, 161 L.Ed.2d 487 (2005).

Prior to the trial in this matter, the State filed notice of its intent to use evidence of Defendant’s use of cheeks stolen from Mr. Wilson’s home as well as a driver’s license bearing the name and address of Mr. Wilson with a picture of Defendant. The defense filed a motion in limine seeking to exclude this evidence. The trial court denied Defendant’s motion just prior to the beginning of the trial.

Thus, this evidence was presented at trial, along with evidence establishing that Defendant used several of Mr. Wilson’s checks to purchase merchandise after the burglary. These acts by Defendant formed an integral Impart of the charged offense of simple burglary of an inhabited dwelling. The evidence tended to prove that Defendant, after entering Mr. Wilson’s home for the purpose of taking the checks, altered a driver’s license and then passed the checks as if the checks were his own. Without this evidence, the State would not have been able to present a complete and cohesive narrative of Defendant’s crime. The jury’s ability to reach conclusions in this instance would have been limited without the full details of Defendant’s acts after the burglary. The actions after the burglary constituted continuous acts by Defendant that should be viewed in tandem with the burglary itself for the purposes of providing a complete view of the charged offense. We conclude that the trial judge’s ruling in allowing the admission of the testimony was proper in accordance with La. C.E. art. 404(B).

In considering the balancing test, the probative value of the evidence outweighed the prejudicial effect of the evidence. The evidence of the subsequent criminal acts of passing the stolen checks completes the narrative of what material benefit Defendant attempted to gain from his burglary. The probative value of the subsequent crimes, therefore, outweighs any prejudicial effect. This assignment of error is without merit.

Excessive Sentence

Defendant contends that the sentence imposed is excessive considering his first nonviolent offender status. Additionally, Defendant submits that the trial court failed to give proper consideration of the mitigating factors, including the fact that his incarceration will create undue hardship on his family as his mother is now caring for his children without 117his financial support. The State argues that the eight-year sentence for this offender is not excessive considering the circumstances of the crime and Defendant’s apparent “turn to a life of crime,” which included offenses committed after the instant offense.

The test imposed by the reviewing court in determining the exces-siveness 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 court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App. 2d Cir.6/24/98), 715 So.2d 641. 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.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57 and 04-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are Defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728.

11RSecond, 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, 01-2574 (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, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385. Prior to sentencing, a pre-sentence investigation was ordered; and, at Defendant’s request, a sentencing hearing was held. Defendant also submitted a sentencing memorandum for consideration.

During the sentencing hearing, several witnesses testified on Defendant’s behalf. Ronald Guin, a retired railroad engineer who worked with Defendant, testified that he knew Defendant to be a good, hard worker who had always been “straight up” and a good guy. Mr. Guin opined that Defendant is “a good guy that’s made some bad decisions” and, thus, is deserving of a second chance.

Mr. C.L. Hicks, Jr. testified that he had known Defendant for all of his life. Mr. Hicks noted that Defendant’s incarceration was causing a | ^hardship on Defendant’s children and his mother. Mr. Hicks also echoed the sentiment that Defendant had made some bad decisions because of some bad influences of the wrong people and wrong crowds.

Pastor Cary Munyon of the First United Methodist Church testified that he was acquainted with Defendant’s family as Defendant’s mother had been a member of his church for about four years. Pastor Munyon stated that Defendant’s mother had been thrust into a position of caring for young children and was having a difficult time with the task. Pastor Munyon noted that Defendant’s mother was prepared for the task, but it was hard on her. Echoing the familiar theme, Pastor Mu-nyon stated that he believed that Defendant made a mistake and that there was hope for him. The pastor indicated that Defendant should be responsible for his actions, but that he was deserving of a second chance.

Defendant also made a statement during the hearing. He stated that he was the father of three children, that he had made some mistakes and that his children were suffering emotionally and financially as a result of his actions. He also wanted the court to be aware that he had been a hard worker and supporter of his family in the past. He discussed his two-year-old son, of whom he had sole custody. According to Defendant, his son lost his mother to drugs and a life of crime at the age of six months. Defendant indicated that he got involved with some people and made some bad decisions and stupid mistakes. In addition, Defendant filed a sentencing memorandum for the judge’s consideration. After the sentencing hearing, the trial court sentenced Defendant to eight years at hard labor with credit for time served.

I ?,nThe record clearly shows that the trial court took cognizance of the appropriate factors set forth in La. C. Cr. P. art. 894.1. Regarding Defendant’s criminal history, the trial court noted that Defendant was a first-felony offender with several misdemeanor convictions. The trial court also noted that Defendant had several pending charges as a result of arrests while he was out on bond for the instant charges. After being released on bond for the instant charges, Defendant was arrested in Caddo Parish for forgery and again in Red River Parish for criminal conspiracy associated with a methamphetamine lab and for possession of methamphetamine. In reviewing Defendant’s social history, the trial court noted that Defendant was raised in a “normal family,” graduated from high school and had been employed by the Kansas City Southern Railroad for the past 14 years. Prior to pronouncing sentence, the trial court noted that the victim, who was 88 years old, made a statement that was included in the pre-sentence investigation. The victim was quoted as saying, “I hope he gets what he deserves.” The victim wanted Defendant to receive more time than his co-defendant, who received five years, and wanted restitution. At the time of the 'sentencing, restitution had in fact been made.

In further consideration of the sentencing factors articulated in Article 894.1, the trial court found that there is an undue risk that, during the period of a suspended sentence or probation, Defendant will commit another crime and that Defendant was in need of correctional treatment or a custodial environment that could be provided most effectively by his commitment to an institution. The trial court found that a lesser sentence would deprecate the seriousness of Defendant’s crime.

_[2jOther factors considered by the trial court were the age of the victim and that Defendant knew or should have known that the victim was vulnerable because of his advanced age. Also, the trial court found that Defendant used his position as a friend of the victim to facilitate the commission of the offense. The fact that there were other incidents after the commission of the instant offense, for which separate sentences had not yet been imposed, was also considered. According to the trial court, Defendant committed several other crimes, including forgery, identity theft and attempted theft in connection with the burglary of Mr. Wilson’s home. In mitigation, the court noted that this was Defendant’s first offense and that he had small children.

The trial court more than adequately reviewed the appropriate factors in tailoring this sentence to Defendant. It specifically considered the factors that Defendant now indicates should have earned him a lesser sentence. It is not necessary that the trial court give any factor a particular weight in fashioning Defendant’s sentencing. This mid-range sentence is not grossly out of proportion to the seriousness of the offense, nor is it nothing more than a purposeless and needless infliction of pain and suffering. This sentence does not shock the sense of justice The trial court, therefore, did not abuse its discretion in fashioning this sentence.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Brady Alsup, are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . La. R.S. 14:62.2 states in part:
      Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the ■intent to commit a felony or any theft therein, other than as set forth in Article 60.


author: AMY, Judge.

text:
    STATE of Louisiana v. J.M.
    No. 07-453.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      John F. DeRosier, District Attorney, Carla S. Sigler, Stephanie Cochran, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.

      Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, J.M.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

hThe defendant, J.M., was convicted of two counts of aggravated incest in violation of La.R.S. 14:78.1 and one count of attempted aggravated incest in violation of La.R.S. 14:27 and La.R.S. 14:78.1. His convictions were affirmed on appeal in State v. J.M., 06-624 (La.App. 8 Cir. 11/2/06), 941 So.2d 686. However, the defendant’s sentences were vacated, and the matter was remanded to the trial court for resentenc-ing because the record was unclear as to whether the sentences were to run concurrently or consecutively.

On remand, the defendant was sentenced to serve ten years in the custody of the Department of Corrections for each count of aggravated incest, with six years suspended. For the attempted aggravated incest conviction, the defendant' was sentenced to five years with the Department of Corrections, three years of which were suspended. All sentences were ordered to run consecutively. Furthermore, upon his release from incarceration, the defendant will be placed on supervised probation for five years on each count, with that time to run concurrently.

Following the denial of his motion for reconsideration, the defendant filed this appeal, arguing the excessiveness of his sentence. For the following reasons, we affirm and remand with instructions.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent and an error in the minutes of resentencing.

|2We note that the trial court failed to impose the conditions of probation pursuant to La.R.S. 15:538. That statute requires that certain probation conditions be imposed in order for a sexual offender to be eligible for probation. These conditions include limitations on business and volunteer work activities, limitations on a defendant’s proximity to certain facilities, and in certain circumstances, mandatory treatment plans. Because probationary conditions are not valid unless imposed by the trial court, we remand the case and instruct the trial court to impose the applicable conditions of probation mandated by La.R.S. 15:538. See State v. Fontenot, 06-226 (La.App. 3 Cir. 7/12/06), 934 So.2d 935.

Additionally, the minutes of the re-sentencing hearing do not state that the trial court denied the defendant diminution of sentence for good behavior. Therefore, the trial court is instructed to amend the minutes of resentencing to reflect that diminution of sentence for good behavior is not available on the defendant’s sentences for aggravated incest and attempted aggravated incest.

Excessive Sentence

In his sole assignment of error, the defendant argues that his “sentences amount to the needless imposition of pain and suffering and should be considered constitutionally excessive.” Specifically, he argues that his sentences should have been ordered to run concurrently rather than consecutively insofar as he is an “elderly man in poor health” and “has led a law abiding life with no past criminal history.”

In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331, this court articulated the standard for reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive | ¡¡sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Pursuant to La.R.S. 14:78.1(D)(1), the penalty for aggravated incest is a fíne of not more than fifty thousand dollars or imprisonment, “with or without hard labor, for a term not less than five years nor more than twenty years, or both.” The penalty for attempted aggravated incest is a term of imprisonment not to exceed ten years. See La.R.S. 14:27(D)(3).

Louisiana Code of Criminal Procedure Article 883 provides: “If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively.” In State v. Brown, 627 So.2d 192, 199-200 (La.App. 3 Cir.1993), writ denied, 93-3101 (La.3/18/94), 634 So.2d 850, this court stated that, “in cases involving offenders without [a] prior felony record, concurrent rather than consecutive sentences should be imposed, particularly where the convictions arise out of the same course of conduct.”

However, the Louisiana Supreme Court explained in State v. Walker, 00-3200, p. 1 (La.10/12/01), 799 So.2d 461, 461-62, that “a trial court retains the discretion to impose consecutive penalties in cases in which the offender’s past criminality or 14other circumstances in his background or in the commission of the crimes justify treating him as a grave risk to the safety of the community.” When imposing a consecutive sentence, the “trial court must articulate particular justification for such a sentence beyond a mere articulation of the standard sentencing guidelines set forth in La.C.Cr.P. art. 894.1.” State v. Hawkins, 06-1599, p. 2 (La.App. 3 Cir. 5/2/07), 956 So.2d 146,149 (quoting State v. Dempsey, 02-1867, p. 5 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037, 1040), writ denied, 03-1917 (La.6/25/04), 876 So.2d 823.

At the defendant’s original sentencing hearing, the trial court found that the defendant was in need of correctional treatment and that a lesser sentence would deprecate the seriousness of the offense. It was uncertain, however, whether the defendant would commit another offense during the period of a suspended sentence or probation.

The trial court set forth several aggravating factors. It found that the defendant’s conduct manifested cruelty to the victims, as the victims indicated that they were placed in “scary” situations by someone they trusted. The trial court emphasized that not only did the defendant use “his position or status to facilitate the commission of the offense[s,]” he used his position of authority to attempt to perpetuate the victims’ silence. It noted that the victims were vulnerable due to their ages and that they experienced significant emotional distress and psychological scarring.

The trial court found some mitigating factors. It recognized that the defendant had no prior criminal record and that he would likely respond to probationary treatment. The trial court was also cognizant of the fact that the defendant was | ¿married for several years, had medical problems, and took care of his ailing mother and her husband.

The trial court stated that it imposed consecutive sentences because “there have been three individual victims that have been abused on different occasions!.]”

After hearing arguments from both sides at the resentencing hearing, the trial court explained:

I did spend a lot of time, Mr. Rubin [defense counsel], on this, and I don’t see any reason why I would deviate. I do understand that I may have misstated a couple of statements in order to make it indeterminate and I planned on clarifying that, but I do not plan on changing the sentence as was originally given.
The Court would note originally in reference to Code of Criminal Procedure Article 883 that there were three separate individuals involved in this that had been abused or traumatized on different occasions, some involving more than one, sometimes individually; but because of those three separate individuals three separate sentences were imposed by the Court.

The trial court proceeded to sentence the defendant to the same terms of incarceration previously imposed and ordered the sentences to run consecutively.

After reviewing the récord, we find that the defendant’s sentences are not excessive. Even given the consecutive nature of the penalties imposed on all three counts, the defendant’s total term of imprisonment only amounts to one-fifth of his potential maximum exposure for the offenses. Because the defendant received the same sentences previously imposed, we cannot say that the trial court did not consider the same mitigating factors. Nevertheless, considering the circumstances of the instant offenses, particularly, the ages of the victims, their relationship to the defendant, and the permanent effect that the offenses will have on them, we find that the trial court did not abuse its discretion in imposing sentence.

IfiNcm do we find that the trial court abused its discretion in ordering that the defendant’s sentences run consecutively insofar as there were three victims and the offenses occurred on different occasions. See La.Code Crim.P. art. 883 and State v. H.B., 06-1436, p. 10 (La.App. 3 Cir. 4/4/07), 955 So.2d 255, 262 (wherein this court found that the trial court did not abuse its discretion in imposing consecutive sentences where “each of the three charged offenses all had separate victims and that the abuse forming the basis of the charge happened on at least three different dates and time periods”).

Accordingly, this assignment has no merit.

DECREE

For the above reasons, the defendant’s sentences are affirmed. We remand the ease to the trial court with the instruction that the court impose the applicable conditions of probation mandated by La.R.S. 15:538. The trial court is also instructed to amend the minutes of resentencing to reflect that diminution of sentence for good behavior is not available.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . Pursuant to La.R.S. 46:1844, the initials of the defendant have been used.

      . The victims were the defendant's granddaughters and step-granddaughter.