text:
    Randall Glen MATTHEWS, Plaintiff-Respondent, v. The CITY OF BOSSIER CITY, Kathy L. Powell, L. “Trey” Smith, III, and Brandon S. Huckabay, Defendants-Applicants.
    No. 42,202-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.
    Rehearing Denied Sept. 13, 2007.

      Lemle & Kelleher, LLP by Jerald N. Jones, Brian A. Cowan, Shreveport, for Defendants-Applicants.
    Smith & John by Kenneth C. Smith, Jr., Shreveport, for Plaintiff-Respondent.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell by Edwin H. Byrd, III, Shreveport, for Defendant-Respondent, Louisiana Riverwalk, LLC.
    Gaudry, Ranson, Higgins & Gremillion, LLC by Daniel A. Ranson, Gregory G. Gremillion, Gretna, for Defendants-Respondents, Securitas Security, Debra Harris, Shamika Harris, and Roberta Caldwell.
    Before BROWN, STEWART, and PEATROSS, JJ.
   BROWN, Chief Judge.

[ iDefendants, the City of Bossier City and six of its police officers, invoked this court’s supervisory jurisdiction to review the denial of their exception of prescription by the trial court. We granted the writ application and docketed the case. We now reverse and dismiss all of plaintiffs claims.

Facts

The underlying basis for this civil suit against, inter alia, the City of Bossier City (“the City”) and several of its police officers, was the ejection from and arrest at the Louisiana Boardwalk of plaintiff, Randall Glen Matthews, on June 19, 2005, and then again on June 21, 2005.

Acting pro se, on June 16, 2006, plaintiff filed suit against the City and three individual police officers, Kathy L. Powell, L. “Trey” Smith, and Brandon S. Huckaby. In his petition, Matthews asserted that these defendants, “along with other unnamed and/or unknown participants and/or co-conspirators, (were) liable to said plaintiff, jointly and severally,” for, among other things, violating his civil rights under federal and state law.

Matthews alleged that on June 19, 2005, while he was at the Boardwalk, private security officers asked him to leave. When he refused, the security officers called the Bossier City Police Department. Two officers arrived and arrested Matthews for disturbing the peace for using the words “bullshit” and “damn” and remaining after being forbidden at the shopping complex. Two days later, Matthews returned to the Boardwalk. On this date, security officers stopped him and informed him that by wearing his hat backwards, he was in violation of the Boardwalk’s posted | i>code of conduct. Plaintiff was given the. option of turning his hat around or leaving. When he refused to do either, the security officers called the Bossier City Police Department. The responding officers arrested Matthews for remaining after being forbidden. Matthews has been tried on all charges. He was acquitted of the disturbing the peace charge but convicted of the two charges of remaining after being forbidden.

In his June 19, 2005, petition, plaintiff specifically instructed the clerk of court: “Please withhold service of process on all defendants.” Ninety-five calendar days later, on September 19, 2006, Matthews, still appearing pro se, filed an amended petition for damages. In this amending petition, he maintained the suit against the previously named defendants and added three additional Bossier City police officers. He also added non-governmental parties as defendants. According to Matthews, all of the defendants were solidarily liable for his injuries. Finally, in the second petition, plaintiff instructed the clerk of court to serve the first and second petitions upon the defendants at their various addresses.

In response, the City and Officers Powell, Smith, and Huekaby filed a declinatory exception of insufficiency of service of process, and the City and all six police officers filed a peremptory exception of prescription. The district court sustained the exception of improper service as to the first lapetition and dismissed it without prejudice in accordance with La. R.S. 13:5107(D). However, the court overruled the exception of prescription on the grounds that this exception was premature as to the City and Officers Powell, Smith, and Huekaby, and overruled the exception on the merits as to the other three officers. The City and the individual officers (hereinafter referred to as “defendants”) sought supervisory review of the trial court’s ruling on their exception of prescription with this court. We granted the writ and docketed the case.

Discussion

Plaintiffs state tort law claims and his claims under 42 U.S.C. § 1983 for wrongful arrest and imprisonment are subject to a one-year prescriptive period. La. C.C. art. 3492; McCoy v. City of Monroe, 32,521 (La.App.2d Cir.12/08/99), 747 So.2d 1234, writ denied, 00-1280 (La.03/30/01), 788 So.2d 441.

La. R.S. 13:5107 provides, in part:

|4(P) (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party fíliny the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served. (Emphasis added).
(3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of prescription as to other persons shall continue. (Emphasis added).

According to defendants, the trial court erred in denying their exception of prescription because Matthews’ original petition, which was dismissed for failure to timely request service as required by La. R.S. 13:5107, can not be the basis for an interruption of prescription against them inasmuch as they are governmental parties. Defendants point out that Matthews’ amending petition was filed on September 19, 2006, which was more than one year after June 19 and 21, 2005, the dates of plaintiffs ejections from and arrests at the Boardwalk. Defendants further reason that because all of Matthews’ claims are subject to a one-year tort law prescriptive period, see La. C.C. art. 3492 and McCoy, supra, his claims |Bagainst defendants are untimely and their exception of prescription should be granted.

La. R.S. 13:5107(D)(3) clearly provides that an action that is dismissed as a result of a failure to timely request service “shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof.” In the instant case, the City of Bossier City and all six Bossier City police officers fall within the scope of this provision. As noted by the Fifth Circuit in Borrello v. City of Kenner, 99-420 (La.App. 5th Cir.11/30/99), 750 So.2d 230, once a governmental entity [or employee] is dismissed under La. R.S. 13:5107, the filing of the petition that is dismissed does not interrupt prescription. Furthermore, in Pylant v. Jefferson Parish, 05-148 (La.App. 5th Cir.06/28/05), 907 So.2d 807, writ denied, 05-1992 (La.03/17/06), 925 So.2d 537, the court held that the filing of a supplemental and amending petition does not cure the failure to timely request proper service of the original petition.

Therefore, because plaintiff failed to timely request service of his original petition, the one-year statute of limitations was neither interrupted nor suspended by that filing. See La. R.S. 13:5107(D)(3); Pylant, supra; Borrello, supra.

Furthermore, notwithstanding Matthews’ argument to the contrary, La. C.C. art. 2324 and La. R.S. 13:5107(D)(3) do not “save” his claim. As defendants point out, La. R.S. 13:5107(D)(3)’s savings clause does not inure to plaintiffs benefit. As noted above, La. R.S. 13:5107(D)(3) | ¿unequivocally prohibits plaintiff from relying upon his original petition in any manner for the interruption of prescription against the governmental defendants. La. R.S. 13:5107(D)(3) provides in part that “the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof.” See also Cali v. Cory, 04-1227 (La.App. 4th Cir.11/03/04), 886 So.2d 648, writ denied, 04-3155 (La.02/25/05), 894 So.2d 1153.

First, there were not any “other defendants” because plaintiff did not name any non-governmental defendants in his original petition. Therefore, there were no parties against whom claims remained after plaintiffs first petition was dismissed for failure to timely serve the governmental defendants. Furthermore, his naming of these non-governmental parties as defendants in the amended petition after prescription had run does not serve to resurrect his claim for wrongful imprisonment/arrest against defendants-applicants. Id.

Our inquiry does not end, however, with our finding that Matthews’ claims against the governmental defendants for wrongful imprisonment/arrest have prescribed. In his original and amending petitions plaintiff asserted a claim for wrongful prosecution, which also has a one-year prescriptive period. As noted by this court in Hampton v. Kroger Company, 27,073 (La.App.2d Cir.06/21/95), 658 So.2d 209, writ denied, 95-2140 (La.01/05/96), 666 So.2d 298, citing De Bouchel v. Koss Construction Company, 177 La. 841, 149 So. 496 (1933), a cause of action 17for false imprisonment, which includes a claim for false arrest, arises on the day upon which the plaintiff is imprisoned and released. On the other hand, a cause of action for wrongful or malicious prosecution does not arise until the termination of the prosecution. Walls v. State of Louisiana, 95-1133 (La.App. 3d Cir.01/31/96), 670 So.2d 382, unit denied, 96-0507 (La.12/13/96), 692 So.2d 368.

An appellate court may, on its own motion, notice the failure of a petition to state a cause of action. La. C.C.P. art. 927; Teachers’ Retirement System of Louisiana v. Louisiana State Employees’ Retirement System, 456 So.2d 594 (La.1984); Eubanks, v. State, DOTD, 620 So.2d 954 (La.App. 3d Cir.1993), writs denied, 629 So.2d 351, 353 (La.1993). One of the key elements in a suit based on malicious prosecution is a bona fide termination of the criminal proceedings in favor of the plaintiff. Banks v. Brookshire Brothers, Inc., 93-1616 (La.App. 3d Cir.06/01/94), 640 So.2d 680. In his pleadings, plaintiff alleged that he was convicted of two counts of remaining after being forbidden. Plaintiff further alleged that these convictions have been appealed and are pending resolution. This is not a termination of the criminal proceedings favorable to the plaintiff and therefore, his petition fails to state a cause of action for wrongful prosecution. See Montalvo v. Sondes, 93-2813 (La.05/23/94), 637 So.2d 127; Milling, Benson, Woodward, Hillyer, Pierson and Miller, L.L.P. v. American Marine Holding Company, 98-1462 (La.App. 4th Cir.03/03/99), 729 So.2d 139, writ denied, 99-0937 (La.05/28/99), 743 So.2d 678; Gardner v. Cornett, 506 So.2d 967 (La. App. 3d Cir.1987), writ denied 511 So.2d 1155 (La.1987).

Conclusion

For the reasons set forth above, we reverse that portion of the trial court’s judgment denying defendants’ exception of prescription and render judgment as follows. The exception of prescription as to plaintiffs claims against defendants-appli-eants, the City of Bossier City and officers (Kathy L. Powell, L. “Trey” Smith, Brandon S. Huckaby, April Culpepper, W.R. Scott, and Edward Joseph) for wrongful imprisonment and arrest is hereby sustained and these claims are dismissed. Plaintiffs petition fails to state a cause of action for malicious prosecution and this claim is dismissed as to these defendants as well. Costs of this writ are assessed to plaintiff-respondent, Randall Glen Matthews.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, PEATROSS and LOLLEY, JJ.

Rehearing denied.

GASKINS and PEATROSS, JJ., would grant rehearing.

      . In a supplemental opposition brief filed with this court, plaintiff's counsel has alleged that Matthews’ convictions were reversed on appeal on October 6, 2006, but we find no evidence in the record to support this assertion.

      . Officer April Culpepper, W.R. Scott, and Edward Joseph.

      . The Louisiana Riverwalk, L.L.C., owners and operators of the Boardwalk development, Securitas, the Boardwalk’s private security contractor, and three Securitas employees.

      . The proper procedural method was not an exception of insufficient service but a motion for involuntary dismissal pursuant to La. C.C.P. art. 1672(C). See Filson v. Windsor Court Hotel, 04-2893 (La.06/29/05), 907 So.2d 723, in which the supreme court distinguished the motion for involuntary dismissal under La. C.C.P. art. 1672 from the exception of insufficiency of citation or service, and held that a dismissal for failure to timely serve a governmental defendant under La. R.S. 13:5107(D) should only be made upon a proper motion pursuant to La. C.C.P. art. 1672(C), not on a declinatory exception of insufficiency of service.
      In the instant case, the City and Officers Powell, Smith, and Huekaby filed a declinato-ry exception of insufficiency of service of process instead of a motion to dismiss for failure to request service within 90 days as required by La. R.S. 13:5107(D)(2) and La. C.C.P. art. 1672(C). Clearly, defendants should have raised the issue of plaintiff's failure to timely serve the first petition upon them via an article 1672(C) motion to dismiss instead of a declinatory exception of insufficiency of service of process. However, this issue was not raised by plaintiff and, in the interests of judicial economy because the result would be the same regardless of the procedural vehicle used by defendants to assert this procedural defect, we turn to the issue raised by defendants in their writ application.

      .Matthews' claim for wrongful prosecution will be addressed separately.

      . The elements of a cause of action for malicious prosecution are: (1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff. Jones v. Soileau, 448 So.2d 1268 (La.1984); Hope v. City of Shreveport, 37,759 (La.App.2d Cir. 12/17/03), 862 So.2d 1139.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Brandon Lynn KENNEDY, Appellant.
    No. 42,258-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Peggy J. Sullivan, Monroe, for Appellant.
    Paul J. Carmouche, District Attorney, John F. McWilliams, Jr., Dhu Thompson, Assistant District Attorneys, for Appellee.

      Before WILLIAMS, GASKINS and MOORE, JJ.
   WILLIAMS, J.

11 The defendant, Brandon Lynn Kennedy, was charged by bill of information with possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1. Following a trial, a jury convicted the defendant of the responsive verdict of attempted possession of a firearm by a convicted felon. He was sentenced to serve seven years in prison at hard labor without benefit of probation, parole or suspension of sentence. We affirm the defendant’s conviction and sentence.

FACTS

On September 3, 2004, at approximately 2:10 a.m., Corporal Dan Sawyer, of the Shreveport Police Department, was on routine patrol when he pulled a vehicle over for having a broken taillight. As Cpl. Sawyer approached the vehicle, he observed two occupants in the vehicle. The driver, Travell Sanders, indicated that the vehicle belonged to the defendant, the passenger in the vehicle. Cpl. Sawyer observed an alcoholic beverage in the glove compartment when the defendant opened it to retrieve paperwork. Cpl. Sawyer asked the men to step out of the vehicle and asked if there were any weapons in the vehicle. Once the men exited the vehicle, Cpl. Sawyer patted them down to check for weapons. No weapons were found on their persons.

Cpl. Sawyer testified that Sanders’ demeanor “seemed normal,” while the defendant was “a little bit belligerent and a little bit nervous.” Cpl. Sawyer also testified that when he informed the men that he was going to conduct a search of the vehicle, the defendant “became very defensive” and was adamant in his refusal to allow the officer to search the vehicle. |2Cpl. Sawyer looked into the vehicle and observed a Tec 9 automatic weapon sticking out from beneath the front passenger seat where the defendant had been sitting. The weapon was fully loaded, and a bullet was in the chamber.

Cpl. Sawyer testified that he asked the defendant why he did not inform him that a gun was in the vehicle, and the defendant replied that he was not supposed to have a gun because he was a convicted felon. Cpl. Sawyer then placed the defendant under arrest and advised him of his Miranda rights. Cpl. Sawyer stated that the defendant indicated that he understood his rights, and he did not force or coerce the defendant to make a statement after giving him his rights.

After being advised of his rights, the defendant informed Cpl. Sawyer that he had been convicted of robbery. He also informed the officer that the gun did not belong to him and his uncle used the car at times. The defendant indicated that his uncle, who was out of town, might have left the gun in the vehicle.

Cpl. Sawyer testified that the defendant did not appear to be intoxicated to the point that he was unable to understand his rights. On cross-examination, Cpl. Sawyer admitted that the defendant had informed him that he was not driving because he had been drinking. He also admitted that he never saw the defendant handle the gun and that he did not know whether the defendant’s fingerprints were on the gun. He further testified that he had not interviewed anyone with regard to the ownership of the gun.

On redirect examination, Cpl. Sawyer stated that as soon as he looked in the vehicle, he saw the gun sticking out from under the seat. The | .¡following colloquy then occurred:

Q. So it’s fair to say from your vantage point if you were opening the door, you were getting in that vehicle, you would be able to see a gun of this size inside the car even if it was the uncle’s gun?
A. Yes, Sir.
Q. Was this gun — since you testified that it was almost immediately observable, did you have to reach all the way under the seat to get it as if someone had thrown it in the back to hide it?
A. No, Sir, it was right at the edge of the seat.

The defendant testified in his own defense. He testified that on the day of the incident, Sanders was driving the vehicle because he (the defendant) had been drinking. When asked whether he was intoxicated or “just drinking a little” he responded: “Had been drinking a little. Not physically impaired where, you know, I don’t understand what’s going on.” According to the defendant, after he exited the car, Cpl. Sawyer asked him if there were weapons in the car and he responded in the negative because he felt sure there were no weapons in the car. He stated that the first time he had any knowledge that the gun was in the vehicle was when Cpl. Sawyer pulled it out and showed it to him. The defendant denied telling Cpl. Sawyer that his uncle used the car. Instead, the defendant testified that the car belonged to his cousin and the cousin was the only other person who had been in the car. He stated that he knew the cousin owned a gun and that the cousin was the only other person that could have had a gun in the car.

The defendant admitted telling Cpl. Sawyer that he had been convicted of a crime, and he stated that if he had known there was a gun in |4the car, he would not have been in the car because he knew he could not be around guns. He also testified that as he was being taken into custody, he was “telling them we need to get in touch with him [the cousin], so we can verify it was his gun and I did not know it was in there.” The defendant stated that he gave the officers his cousin’s name and contact information.

On cross-examination, the defendant indicated that Cpl. Sawyer was lying about him refusing to allow him to search the car. He stated that Sanders had consented to the search. According to the defendant, once Cpl. Sawyer found the bottle of alcohol and the defendant admitted that the alcohol belonged to him, Cpl. Sawyer “didn’t want to hear nothing else I had to say.” The defendant indicated that Cpl. Sawyer asked both Sanders and him for permission to search the car. Sanders replied, “Go ahead,” but he did not. Instead, he asked, “What’s the problem? What’s the call for all of this?” The defendant admitted that he did not give Cpl. Sawyer “full access,” but he denied telling Cpl. Sawyer that he could not search the vehicle. The defendant also denied that the gun could be seen when entering the vehicle, and he stated that he did not see the gun.

The defendant testified that he informed the officers who transported him to jail that the gun belonged to his cousin, Delan-dra Webb, and he told them that they should call his uncle in order to get in touch with the cousin because the gun belonged to the cousin. According to the defendant, he did not tell Cpl. Sawyer his cousin’s name because the officer did not want to hear anything that he had to say. The defendant indicated that he had told his lawyer early on in the proceedings about Webb, but stated that he did |snot tell the police about the cousin because he assumed that his lawyer “would take care of it.”

Delandra Webb also testified. When shown the weapon found in the vehicle, Webb testified that the gun belonged to him. He also testified that he put the gun in the car, but he did not tell the defendant the gun was in the car. When asked why he left the gun in the car when he was not using it, he responded that a lot of children were staying in the house where he lived and he did not want to leave the gun in the house with them. Furthermore, Webb testified that he was difficult to contact because he had been moving from place to place during the six months prior to the trial, and sometimes he did not have a phone. According to Webb, he did not receive the first two subpoenas, but his father told him about the second subpoena; Webb testified that he did not receive a third subpoena for the trial.

On cross-examination, Webb admitted that he and the defendant were close, and he would not like to see him get into trouble. Webb testified that he had bought the gun from a friend for $200. However, it was clear that Webb did not know how to load or unload the weapon, but only how to cock it. Webb admitted that he had never put a bullet into the chamber and indicated the bullet could have been put into the chamber by the person from whom he had bought the gun.

Webb admitted that he knew the defendant was a convicted felon and was not supposed to be around guns. He indicated that on the night in question, he gave Sanders the keys to his car to drive the defendant where he needed to go. According to Webb, he did not realize that the gun was in | Bthe car with the defendant until “like 30 to 40 minutes after he was gone.” He also admitted that he was “thinking irresponsibly” by putting the gun under the passenger seat rather than in the trunk. Webb indicated that he put the gun under the passenger seat because there was “an electronic box” under the driver’s seat. He testified that the gun was located under the seat where “you can reach and grab it,” but he also indicated that “you’re not just going to automatically put your hand down there and get the gun.”

The state repeatedly questioned Webb about why he did not contact the police, but allowed his cousin to remain in jail. Webb stated:

Well, Sir, actually I didn’t know I could call the police and do that. I don’t know too much about the law. I didn’t know I could call the police and have that ceased. I did not know that.

He also stated that he did not contact the police because he had not registered the gun. Furthermore, Webb admitted that he had never talked to defense counsel about the case, other than to give his name and address and talk about being subpoenaed for court.

Tommy Rachal, a corporal with the Shreveport Police Department Crime Scene Investigation Identification Unit, also testified at the trial. Cpl. Rachal qualified at trial as a fingerprint identification expert. His testimony simply established that the defendant’s fingerprints on the bill of information from a prior offense matched the fingerprints taken from the defendant by Rachal in open court that day. He also testified that he was familiar with how fingerprints are taken from guns. When asked how difficult it was to extract fingerprints from a handgun like the one found in the vehicle, he responded:

|7A lot of guns, areas that are mostly touched on firearms as far as trigger area of a hammer are small areas where it won’t leave enough ridge detail to get a print match. A lot of guns are plastic or most guns are textured or Parkerized to prevent rust.

When asked how often he had been able to extract fingerprints from firearms “such as that,” Cpl. Rachal responded that he had done it twice out of hundreds of instances.

At the conclusion of the trial, the jury found the defendant guilty of the responsive verdict of attempted possession of a firearm by a convicted felon. The trial court sentenced him to serve seven years in prison at hard labor without benefit of probation, parole or suspension of sentence. The trial court denied the defendant’s motion to reconsider sentence, and this appeal followed.

DISCUSSION

Sufficiency of the Evidence

The defendant contends the evidence adduced at trial was insufficient to support his conviction of attempted possession of a firearm by a convicted felon. He also argues that the trial court erred in ruling that he had constructive possession of a firearm, even though he denied knowledge of the presence of the gun in the vehicle.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a Irrational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165.

The 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, 2002-3090 (La.11/14/03), 858 So.2d 422.

LSA-R.S. 14:95.1(A) provides, in pertinent part:

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) ... to possess a firearm or carry a concealed weapon.

In this case, simple robbery, the defendant’s prior felony, is specifically listed in LSA-R.S. 14:2(B)(23) as a crime of violence.

A jury has the prerogative to compromise and render a lesser verdict whenever it could have convicted as charged. State v. Mitchell, 35,970 (La.App. 2d Cir.5/08/02), 818 So.2d 807; State v. Bryant, 33,078 (La.App. 2d Cir.3/1/00), 754 So.2d 387. Even if an offense is legislatively designated as responsive by LSA-C.Cr.P. art. 814, a defendant may timely object to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict. LSA-C.Cr.P. art. 814(C). State v. Mitchell, supra; State v. Johnson, 30,078 (La.App. 2d Cir.12/10/97), 704 So.2d 1269, writ denied, 98-0382 (La.6/26/98), 719 So.2d 1054. Absent a contemporaneous objection, however, a defendant cannot complain if the jury returns a legislatively-approved responsive verdict, even where there is insufficient evidence to support such a verdict, provided that the evidence is sufficient to support the charged offense. State v. Schrader, 518 So.2d 1024 (La.1988), cert. denied, 498 U.S. 903, 111 S.Ct. 265, 112 L.Ed.2d 221 (1990); State v. Mitchell, supra.

Constructive possession of a firearm occurs when the firearm is subject to the defendant’s dominion and control, even if only temporary; |inmoreover, constructive possession contains an element of awareness or knowledge that the firearm is there and general intent to possess. State v. Ball, 31,515 (La.App. 2d Cir.12/9/98), 733 So.2d 1, aff'd, 99-0428 (La.11/30/99), 756 So.2d 275. However, because the defendant was convicted of attempted possession in this case, the state had the burden of proving that the defendant specifically intended to possess the weapon.

Specific intent to commit a crime is an element of an attempted offense. LSA-R.S. 14:27. Hence, a conviction of an attempted offense must rest upon sufficient proof that the offender actively desired to cause the prescribed criminal consequences to follow his act or failure to act and that the offender committed or omitted an act for the purpose and tending directly • toward the accomplishing of his object. LSA-R.S. 14:10, 14:27. See State v. Parish, 405 So.2d 1080 (La.1981), on remand, 429 So.2d 442 (La.1983); State v. Cheatham, 38,413 (La.App. 2d Cir.6/23/04), 877 So.2d 164, writ denied, 2004-2224 (La.6/24/05), 904 So.2d 717.

Specific intent is a state of mind and need not be proved as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Kahey, 436 So.2d 475 (La.1983); State v. Wilhite, 40,539 (La.App. 2d Cir.12/30/05), 917 So.2d 1252. Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. State v. Davies, 35,783 (La.App. 2d Cir.4/05/02), 813 So.2d 1262, writ denied, 2002-1564 (La.5/9/03), 843 So.2d 389, citing LSA-R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. Ellis, 28,282 (La.App. 2d Cir.6/26/96), 677 So.2d 617, writ denied, 96-1991 (La.02/21/97), 688 So.2d 521.

The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Butler, 322 So.2d 189 (La.1975); State v. Dean, 528 So.2d 679 (La.App. 2d Cir.1988). In reviewing the correctness of such a determination, the Court should review the evidence in a light most favorable to the prosecution and must determine if the evidence is sufficient to convince a reasonable trier of fact of the guilt of the defendant beyond a reasonable doubt as to every element of the offense. Jackson v. Virginia, supra; State v. Huizar, supra.

In State v. Storks, 2002-754 (La.App. 5th Cir.12/30/02), 836 So.2d 638, police officers conducted an investigatory stop of a vehicle in which the defendant was a passenger. After the driver of the vehicle was ordered to exit the vehicle, the officers discovered that a firearm was in the vehicle. Consequently, the three passengers were ordered to exit the vehicle one at a time. Once the vehicle was empty, the officers observed a loaded handgun in the middle of the seat where the defendant and another passenger had been sitting. The officers determined that the defendant was a convicted felon and placed him under arrest. The defendant was convicted of attempted possession of a firearm, a responsive verdict under LSA-R.S. 14:95.1. The appellate court affirmed the conviction, finding that the jury had sufficient evidence to conclude that the defendant was aware that the 112gun was in the vehicle and that the gun was under his dominion and control at the time the vehicle was stopped.

In the instant case, the evidence is sufficient to support the defendant’s conviction for attempted possession of a fireman by a convicted felon. The testimony showed that Cpl. Sawyer found the defendant to be very nervous after the routine traffic stop for a broken taillight, and the defendant denied Cpl. Sawyer permission to search the vehicle. Furthermore, when Cpl. Sawyer began to search the vehicle, he was able to see the gun almost immediately as he leaned into the doorway of the car. Furthermore, given the size of the weapon and the defendant’s position as the passenger in the vehicle, the evidence is sufficient to show that he had easy access to the weapon and could exercise dominion over it. Under these circumstances, the evidence was sufficient to find both specific and general intent.

Moreover, it is clear that neither the judge nor the jury believed Webb’s testimony. In State v. Paul, 2005-612 (La.App. 5th Cir.12/14/06), 924 So.2d 345, during a search of the defendant’s bedroom, a gun was found on the side of the defendant’s bed. The defendant’s father denied ownership of the gun at the time and denied awareness that the gun was in the defendant’s bedroom. However, during the trial, the father testified that his friend had loaned the gun to him (the father). He stated that he had been sleeping in the defendant’s bedroom with the gun in case the perpetrator who had burglarized his home returned. The father asserted that he did not claim the gun earlier because he was on probation at his job and he was afraid he 11swould lose his job if he got into trouble; the father admitted that he never told the officer that the gun belonged to him, but the father stated that he had told this information to the defendant’s lawyer. The appellate court affirmed the defendant’s conviction for possession of a firearm by a convicted felon.

As in State v. Paul, supra, the trier of fact in the instant case simply did not believe the testimony of the defendant’s relative concerning ownership of the weapon found. In Paul, the father did not claim ownership of the gun until the trial. In the instant case, Webb did not come forward to claim ownership of the weapon initially, but only on the day of trial. Finally, the state offered testimony to explain why the defendant’s fingerprints were not found on the weapon. Thus, viewing the evidence in the light most favorable to the prosecution, we conclude that the defendant’s conviction was supported by sufficient evidence. This assignment is without merit.

Admissibility of Defendant’s Statement to Cpl. Sawyer

The defendant also argues that the trial court erred in determining that his statement to Cpl. Sawyer prior to being advised of his Miranda rights was free and voluntary. According to the defendant, although Cpl. Sawyer did not believe that the defendant was too intoxicated to be questioned prior to being given his Miranda warnings, he was arrested on a violation of the open container law and had been drinking enough to ask his friend to drive the vehicle.

Intoxication may render a confession involuntary if it negates a 1 ^defendant’s comprehension and renders him unconscious of the consequences of what he is saying. Whether intoxication exists and to a degree sufficient to vitiate voluntariness are questions of fact. State v. Narcisse, 426 So.2d 118 (La.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983); State v. Bowers, 39,970 (La.App. 2d Cir.8/19/05), 909 So.2d 1038. However, the mere fact of drug or alcohol intoxication is insufficient, standing alone, to render a confession involuntary. See 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) (where the confession was voluntary although defendant had smoked three or four cocaine rocks the night before his 11:00 p.m. statement, as well as consumed several beers the day he confessed); State v. Bowers, supra.

In the instant case, the defendant did not file a motion to suppress his statements to Cpl. Sawyer, and he did not introduce any evidence at the free and voluntary hearing. Moreover, the defendant has not presented any evidence to indicate that his statements to Cpl. Sawyer were not free and voluntary. During his testimony at trial, the defendant was asked if he was intoxicated or had “just been drinking a little.” The defendant replied that he “had been drinking a little. Not physically impaired where, you know, I don’t understand what’s going on.”

Furthermore, the statements, which the defendant made before he was 115advised of his Miranda rights, rather than being confessions of guilt, made little difference in this case. Cpl. Sawyer testified that the defendant told him that he was the owner of the car and he was a convicted felon. He also stated that the defendant refused to allow him to search the car. However, Cpl. Sawyer had observed the open alcoholic beverage container in the glove compartment before the search of the vehicle. After the occupants exited the vehicle, Cpl. Sawyer informed them that he was going to conduct a search. The search, in turn, revealed the weapon under the passenger’s seat. Thus, even if the defendant had not made any statements, Cpl. Sawyer would have found the gun, which was protruding from under the seat.

Sentence

The defendant argues that in imposing the sentence, the trial court failed to comply with LSA-C.Cr.P. art. 894.1. The defendant specifically contends the trial court failed to order a presentence investigation and only reviewed the record in the instant case, the defendant’s juvenile records and city court records. Although the trial court stated that it had “considered all the considerations under Article 894.1,” none of the factors were discussed.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. 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 LSA-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 LSA-C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver; 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

In this case, at the sentencing hearing, the trial court noted that the |17defendant was 20 years old at the time of the offense, and he was 18 years old at the time of his previous conviction. The court also noted that the maximum penalty for attempted possession of a firearm by a convicted felon was 7½ years at hard labor without benefits, and a fine not to exceed $2,500. The trial court reviewed the facts of the case, including Webb’s testimony and noted that the first time Webb “ever surfaced” was on the day of the trial, even though the case had been pending approximately 17 months. The court opined that everyone in the courtroom believed that Webb had lied. The trial court also noted that the gun itself was a “huge item” when loaded, and the court did not believe that there was any way “from a common sense standpoint” that a passenger could not have known that the weapon was present.

With regard to the defendant’s prior offense of simple robbery, the court reviewed the fact that when two individuals went to purchase controlled dangerous substances, the defendant had jumped into their vehicle and demanded the car stereo. He also took a woman’s purse during the course of the robbery.

The trial court also had reviewed the defendant’s juvenile court record, noting that he was adjudicated a delinquent at age 13; there were additional entries at age 15 (being ungovernable) and at age 16 (possession of controlled dangerous substance). At age 17, there was an entry concerning loud music to which he pled guilty in city court, and a subsequent plea to false insurance records, also in city court. The next year there was another plea to loud music in city court, as well as a guilty plea inj^city court to simple assault while the instant matter was pending. The defendant was 21 years old at that point.

The trial court further reviewed docket numbers in Caddo District Court, where the records indicated that in 2001, the defendant failed to pay a fíne relating to possession of a controlled dangerous substance (marijuana) and a bench warrant was issued for his arrest. Records further showed a petition for revocation in May 2002, as well as a separate matter concerning possession of Schedule II controlled dangerous substances that was dismissed in May 2004. Another matter was dismissed in August 2005 concerning possession of a Schedule I drug.

After reviewing the defendant’s criminal history, the trial court concluded that there was a pattern of events that began when the defendant was 13 years old; the court found this had a lot to say about “character and propensities.” The court also found that the jury gave the defendant “a substantial break” by returning a responsive verdict, and the court believed that the defendant had committed perjury on the witness stand. After stating that it had considered all the factors under LSA-C.Cr.P. art. 894.1, the trial court expressed its belief that a lesser sentence would deprecate the seriousness of the offense. The trial court concluded that the defendant should be committed to a custodial environment, and that a more lenient sentence would result in further crime, the court imposed 7 years at hard labor without benefits.

After reviewing the record, we conclude that the trial court gave sufficient consideration to the factors set forth in LSA-C.Cr.P. art. 894.1. |1sThis sentence is neither shocking nor grossly disproportionate to the seriousness of the offense, given this offender’s criminal history. This assignment is without merit.

We also note that the trial court failed to impose the mandatory fine in this case. As a result, the sentence constitutes an illegal sentence. An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. LSA-C.Cr.P. art. 882(A). However, this court is not required to take such action. See, State v. Haynes, 2004-1893 (La.12/10/04), 889 So.2d 224; State v. Griffin, 41,946 (La.App. 2d Cir.5/2/07), 956 So.2d 199; State v. Sims, 40,300 (La.App. 2d Cir.10/26/05), 914 So.2d 594. The state in this case has not noted the error, and the defendant has not been prejudiced in any way.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . At a hearing on a motion to suppress a confession, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills, 354 So.2d 186 (La.1977); State v. Roddy, 33,112 (La.App. 2d Cir.4/7/99), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288. It is the state’s burden to prove the admissibility of any evidence seized without a warrant. LSA-C.Cr.P. art. 703(D); State v. Traylor, 31,378 (La.App. 2d Cir. 12/9/98), 723 So.2d 497.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Bobby Neal WHALEN, Appellant.
    No. 42,260-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Louisiana Appellate Project by W. Jarred Franklin, Counsel for Appellant.
    Paul J. Carmouche, District Attorney, Brady O’Callaghan, Damon Kervin, John Ford McWilliams, Jr., Assistant District Attorneys, Counsel for Appellee.
    Before BROWN, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

| iDefendant, Bobby Neal Whalen, was charged with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. Following a jury trial, Defendant was convicted of the responsive verdict of attempted possession and was sentenced to 6 1/2 years at hard labor without benefit of probation, parole or suspension of sentence. Defendant appeals his conviction and sentence. For the reasons stated herein, Defendant’s conviction and sentence are affirmed.

FACTS

On August 19, 2005, Shreveport police responded to a “shots fired” complaint at a residence on Cook Street. Upon arrival at the residence, officers observed two males on the front porch who matched the description given by the complainant. One of the males was Defendant. There were fresh bullet holes in a tree in the yard. Police searched the residence and found two handguns under the mattress in one of the bedrooms, along with a Louisiana Purchase food stamp card and a compact disk. Also in the bedroom were school books and papers bearing Defendant’s name. The bedroom belonged to Defendant’s girlfriend, Hortensia Ruffins, who told the officers that Defendant had been staying with her in that bedroom. One of the responding officers was Defendant’s probation officer. It is not disputed that De-fondant was a convicted felon and was on probation at the time of this offense. Defendant was taken into custody and read his Miranda rights. Thereafter, he made a statement to officers that the guns were not his, but that “his boy” had brought the guns to him. He further | gstated that his fingerprints and DNA would be on one of the guns as he had handled the gun, but he maintained that the guns were not his.

As previously stated, after hearing the testimony, the jury convicted Defendant of attempted possession and the court sentenced him to 6½ years without benefits. This appeal ensued.

DISCUSSION

Assignment of error number one (verbatim): There is insufficient evidence to prove the guilt of defendant for the offense of [attempted] possession of a firearm bg a convicted felon.

When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La. App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

Specific intent to commit a crime is an element of an attempted offense. La. R.S. 14:27. Hence, a conviction of an attempted offense must rest upon sufficient proof that the offender actively desired to cause the proscribed criminal consequences to follow his act or failure to act and that the offender committed or omitted an act for the purpose and tending directly toward the accomplishing of his object. La. R.S. 14:10, 14:27. See State v. Parish, 405 So.2d 1080 (La.1981), appeal after remand, 429 So.2d 442 (La.1983); State v. Cheatham, 38,413 (La.App. 2d Cir.6/23/04), 877 So.2d 164, writ denied, 04-2224 (La.6/24/05), 904 So.2d 717.

^Specific intent is a state of mind and need not be proved as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Kahey, 436 So.2d 475 (La.1983); State v. Wilhite, 40,539 (La.App. 2d Cir.12/30/05), 917 So.2d 1252, writ denied, 06-1078 (La.11/9/06), 941 So.2d 35. Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the proscribed criminal consequences to follow his act or failure to act. State v. Davies, 35,783 (La.App. 2d Cir.4/5/02), 813 So.2d 1262, writ denied, 02-1564 (La.5/9/03), 843 So.2d 389, citing La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. Ellis, 28,282 (La.App. 2d Cir.6/26/96), 677 So.2d 617, writ denied, 96-1991 (La.2/21/97), 688 So.2d 521.

The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Butler, 322 So.2d 189 (La.1975); State v. Dean, 528 So.2d 679 (La.App. 2d Cir.1988). In reviewing the correctness of such a determination, the court should review the evidence in a light most favorable to the prosecution and must determine if the evidence is sufficient to convince a reasonable trier of fact of the guilt of the defendant beyond a reasonable doubt as to every element of the offense. Jackson v. Virginia, supra; State v. Huizar, supra.

The provisions of La. R.S. 14:95.1(A) state, in pertinent part, that it is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(13) to possess a firearm or carry a concealed weapon.

^Constructive possession of a firearm occurs when the firearm is subject to the defendant’s dominion and control, even if only temporary; moreover, constructive possession contains an element of awareness or knowledge that the firearm is there and a general intent to possess it. State v. Ball, 31,515 (La.App. 2d Cir.12/9/98), 733 So.2d 1, aff'd, 99-0428 (La.11/30/99), 756 So.2d 275. As previously noted, specific intent is required because we are dealing with attempted possession.

A jury has the prerogative to compromise and render a lesser verdict whenever it could have convicted as charged. State v. Mitchell, 35,970 (La.App. 2d Cir.5/8/02), 818 So.2d 807; State v. Bryant, 33,078 (La.App. 2d Cir.3/1/00), 754 So.2d 387. Even if an offense is legislatively designated as responsive by La. C. Cr. P. art. 814, a defendant may timely object to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict. La. C. Cr. P. art. 814(C). State v. Mitchell, supra; State v. Johnson, 30,078 (La.App. 2d Cir.12/10/97), 704 So.2d 1269, writ denied, 98-0382 (La.6/26/98), 719 So.2d 1054.

We note initially that Defendant’s prior felony is second degree battery, which is specifically listed in R.S. 14:2(13) as a crime of violence. We now turn to the testimony at trial in the case sub judi-ce, summarized as follows. First, Sergeant James Scott Dickard of the Shreveport Police Department testified that, on the date of the incident, he received a call from headquarters regarding shots fired. Sergeant Dickard related that the call gave a description of two people in the front yard of a house on Cook Street. When he arrived at that location, Sergeant Dickard saw two people in the | sfront yard who matched the description, one of whom was Defendant. Subsequently, back-up arrived, including a couple of probation and parole officers. Sergeant Dickard noticed fresh bullet holes in a tree by the house.

On cross-examination, Sergeant Dickard indicated that, when he came in contact with Defendant, Defendant did not have a gun, no one claimed to have seen him fire a gun and he was not charged with firing a gun.

Next, Corporal T.W. Adgate testified that, on the day of the incident, he also responded to a call concerning shots being fired. Corporal Adgate further testified that he was dispatched to a location at East Wichita and Cook Street and was given a description of two black males, one wearing orange shorts and one wearing blue jean shorts. When he arrived at the location, Corporal Adgate saw two suspects matching the description given by headquarters. One of the two suspects was Defendant. Both suspects were handcuffed and detained at that time.

Corporal Adgate testified that he searched the perimeter of the house for weapons, but did not go inside the house until arrival of the probation and parole officers and the homeowner, Hortensia Ruffins, who was also Defendant’s girlfriend. Corporal Adgate also testified to seeing fresh bullet holes in a tree in the front yard. According to Corporal Ad-gate, he had seen Defendant at that residence numerous times and thought that Defendant lived there. One of the probation and parole officers, however, recognized Defendant and indicated that the Cook Street address was not the one Defendant had listed with the probation office.

17According to Corporal Adgate, Ms. Ruffins indicated that Defendant stayed at the house. After learning this, Corporal Adgate went inside and searched the residence. In a bedroom, he found two handguns under a mattress, a .40 caliber handgun and a smaller caliber handgun. Ms. Ruffins indicated to Corporal Adgate that she shared that particular bedroom with Defendant. Corporal Adgate also testified that some of Defendant’s clothing was found there as well. Based on these findings, Defendant was arrested. Corporal Adgate testified that he advised Defendant of his rights and that Defendant signed a waiver of rights card. Corporal Adgate then testified as follows:

[Defendant] told us that we were going to find his prints and his DNA on the guns, that he handled them prior.

On cross-examination, Corporal Adgate admitted that not all of the calls that he had received concerning the Cook Street residence or that neighborhood involved Defendant, and Corporal Adgate admitted that he did not see anyone shooting at the tree. He further agreed that no one told him that they saw Defendant shooting at a tree, and he did not contest that the bedroom in which the guns were found was also Ms. Ruffins’ bedroom. When asked how many people were in the house, he responded that there were “some kids in the house I believe.” When asked how many adults were around, he responded: “They came from everywhere around. I have no idea.”

Corporal Adgate also stated on cross-examination that an incident report made by Parole Officer Sherry Cone indicated that ^Defendant made a post-Miranda statement that was taped. Corporal Ad-gate indicated that Defendant’s statement should have been recorded on his mobile visions systems (MVS) videotape. He further indicated, however, that he did not have the tape with him because he was not asked to bring it. He explained that such tapes were kept “like three to six months” and then usually recorded over. When asked why this was done, he responded: “Cost prohibitive.”

Officer Mark Hutchinson, a probation parole officer, testified next. Officer Hutchinson testified that he and another parole officer happened to be going by Cook Street at the time of the incident and stopped to offer assistance. He recognized Defendant, because he was handling his case on probation. Officer Hutchinson verified that the owner of the house (Ms. Ruffins) gave permission for a search and testified that Defendant stayed at the house with her. Officer Hutchinson further indicated that, during the search of the house, weapons were located in a corner bedroom. They also found male clothing in the bedroom, as well as books with Defendant’s name inside. Officer Hutchinson testified that in between the mattress and the box spring of the bed where the guns were located was an identification card for food stamps with Defendant’s name on it. Ms. Ruffins denied knowing that the guns were there, while Defendant, after being Mirandized and asked if he knew the guns were there, responded that “his boy” had “brought the guns by.” According to Officer Hutchinson, Defendant indicated that he had touched the guns, but that the guns did not belong to him.

| gParole Officer Paula Powell was accompanying Officer Hutchinson on the day of the incident. Officer Powell testified that she participated in the search of the residence and was present when the other officers found the weapons. Officer Powell talked with Ms. Ruffins and indicated that, when asked if Defendant was her boyfriend, Ms. Ruffins responded, “Yes.” Ms. Ruffins also indicated that some paperwork and clothing found in the bedroom belonged to Defendant and that he slept there.

Officer Cone testified next, corroborating the location of the guns and other items. She further testified that she photographed the exterior of the residence and the bedroom where the guns were found.

Finally, Amy Muller of the Shreveport Police Department’s crime scene unit was qualified as an expert in fingerprint identification and analysis before she testified. Ms. Muller’s testimony established Defendant’s prior felony.

The only witness called by the defense was Sergeant Dickard who testified that, when he arrived at the residence, he could only remember two people on the premises, both of whom were on the porch. One was Defendant, but Defendant did not have a gun.

Defendant argues that no one saw him shoot a weapon and no gunshot residue test was conducted on his person or clothing. He further argues that the weapons he allegedly attempted to possess were located between two mattresses in a bedroom that was shared with his girlfriend, that there were no locks on the bedroom door and that there were children in the house. Defendant also adverted to the testimony of Officer Adgate that |1flthere were a number of adults who “came from everywhere around.” According to Defendant, the State failed to exclude the reasonable possibility that any of the other individuals present had placed the guns between the mattresses on that date or a prior date. Furthermore, Defendant pointed out that he never denied that he used the bedroom where the guns were found; and, thus, it would be expected that some of his personal belongings would be found there, such as school books, identification cards and clothing.

As for his post-Miranda statement that the police would find his fingerprints and DNA on one of the guns because he had handled it, Defendant points out that there was no tape of his “alleged confession” even though Officer Adgate had a mobile system that should have captured Defendant’s statement.

On the other hand, the State argues that there was sufficient evidence to show that Defendant had specific intent, as well as general intent, to constructively possess the two firearms. The State points to the fresh bullet holes in the tree in the yard of the Cook Street house where Defendant often stayed and had spent the previous night. The State further notes that the guns and Defendant’s food stamp card were found under the mattress in the bed in which he had spent the previous night with Ms. Ruffins and that Ms. Ruffins told the police that the guns found under the mattress did not belong to her. In addition, the State emphasizes that Officer Ad-gate testified that Defendant admitted to him that he had handled one of the Inweapons and that Officer Adgate would likely find his DNA and fingerprints on the weapon.

We find the evidence in this case to be sufficient to support the conviction of aat-tempted possession of a firearm by a convicted felon. In so concluding, we find the following cases to be instructive. In State v. Paul, 05-612 (La.App. 5th Cir.12/14/06), 924 So.2d 345, the defendant’s father allowed officers inside the home, and defendant’s probation officer went into the bedroom that the defendant had identified as his on a prior visit. The officer saw a gun barrel protruding from between two pillows on the side of the defendant’s bed; personal documents also were found in the room, including a checkbook, a framed certificate and a paycheck stub all bearing the defendant’s name. The father denied at the time that the gun was his and further denied awareness that the gun was in the bedroom. The father acknowledged that the bedroom where the gun was found was the bedroom where his son slept, but said that his son only stayed there two to three times a week and was really staying at his grandmother’s house. The appellate court affirmed the conviction for possession of a firearm by a convicted felon, despite the fact that the father later testified that his friend had loaned the gun to him (the father) after the house had been burglarized and that the father had been sleeping in the son’s bedroom with the gun when the son was not home in case the perpetrator returned. The father asserted that he did not claim the gun earlier because he was on probation at his job and he was afraid he would lose his job if he got into trouble; the 112father admitted that he never told the officer that the gun belonged to him, but the father stated that he had told this information to his son’s lawyer.

In State v. Jackson, 97-1246 (La.App. 5th Cir.4/13/98), 712 So.2d 934, writ denied, 98-1454 (La.10/16/98), 726 So.2d 37, the appellate court affirmed the defendant’s conviction for possession of a firearm by a convicted felon where a handgun was found under the mattress of the defendant’s bed in his mother’s home. The defendant was convicted despite the fact that his mother had testified that, shortly before the officers’ search, several relatives had stayed as guests in her home and that some of the relatives stayed in the defendant’s bedroom.

In the case sub judice, Ms. Ruffins denied that the weapon belonged to her. She also admitted that Defendant was staying in the bedroom with her. The presence of Defendant’s clothing and books in the bedroom supports the fact that the two shared the room. Defendant had easy access to this area, and the presence of his food stamp card in close proximity to the guns in the hiding place suggests Defendant’s knowledge of the presence of the guns. Furthermore, Defendant admitted that his fingerprints and DNA likely would be found on one of the weapons. Thus, a jury could reasonably have concluded that Defendant had the specific intent to possess the guns.

The mere fact that there were children staying in the home does not defeat sufficiency. The officer’s testimony that there were adults who “came from everywhere” does not seem to indicate that these adults were present before the police began to investigate, but, instead, that they | ^gathered after it was apparent that an investigation was underway. Finally, despite the defense’s attempt to cast some doubt on the voluntariness of Defendant’s post -Miranda statement, voluntariness was not raised as an issue vis-a-vis admissibility, and the mere fact that the State did not produce a tape recording of the statement has very little weight where the witnesses all indicated that the statement was voluntary. On this record, we conclude that the evidence is sufficient to support the conviction even without Defendant’s statement.

Assignment of error number two (verbatim): The sentence imposed is excessive for this offender and offense.

As stated, Defendant was sentenced to 6½ years at hard labor without benefit of probation, parole or suspension of sentence. His probation in the previous matter was revoked and that sentence was ordered to be served concurrently with the sentence in this matter. While the judge mentioned at one point that the maximum penalty was 7½ years and a fine of not more than $2,500, the judge did not assess any fine to Defendant.

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 judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. 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 114the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2d Cir.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 the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728.

Second, 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.

Defendant’s claim of excessiveness is meritless. The trial court clearly articulated its reasons for the sentence imposed. At the sentencing hearing, the trial judge reviewed the facts of the present incident, as well as 11Bthe facts of Defendant’s prior conviction when, at age 17, he struck his victim in the head with a brick. Defendant was almost 19 at the time of sentencing for the current offense. The judge noted the very short period of time between being placed on probation for the former offense and commission of the instant . offense. The judge also reviewed Defendant’s juvenile court record, which was extensive and included 12 different entries such as misdemeanor theft, illegal possession of stolen property, disturbing the peace, traffic violations, discharge of a firearm and criminal trespass. The judge concluded that Defendant had a pattern of misconduct and lawbreaking and that, while most of it consisted of “low level misdemeanors,” the pattern indicated that Defendant “doesn’t take any of this very seriously....”

The judge also recalled that, during jury selection, one of the prospective jurors was a school bus driver who remembered Defendant as one of the students who rode her bus. She related to the judge several incidents of misconduct on the bus involving Defendant, including cussing, being disrespectful and, on one occasion, trying to push another child through the window of the bus.

After stating that he had considered all the circumstances and factors under article 894.1, the judge concluded that there was an undue risk that, during any period of suspended sentence, Defendant would commit other crimes. He further found Defendant to be in need of correctional treatment in a custodial environment and that a lesser sentence would deprecate the seriousness of the offense. The most significant mitigating circumstance Incited by the judge was Defendant’s youth. The judge stated that, if Defendant had no juvenile history and had a non-violent previous felony conviction, a lesser sentence would have been imposed. Finally, the judge noted that the jury gave Defendant a substantial break by returning the responsive verdict. On this record, we conclude that the sentence imposed in no way shocks the conscience.

CONCLUSION

For the reasons stated herein, the conviction and sentence of Defendant, Bobby Neal Whalen, are affirmed.

AFFIRMED.

      . Miranda v. Arizona, 396 U.S. 868, 90 S.Ct. 140, 24 L.Ed.2d 122 (1969).


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Melvin Wayne LUBOM, Appellant.
    No. 42,297-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Melvin Wayne Lubom, Pro Se.
    Louisiana Appellate Project, by Mark 0. Foster, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Lea R. Hall, Jr., Damon D. Kervin, Assistant District Attorney, for Appellee.
    Before WILLIAMS, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

11 This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Melvin Wayne Lubom, was convicted of aggravated rape, La. R.S. 14:42(A)(4), and sentenced to a term of life imprisonment without benefit of probation, parole or suspension of sentence. Lubom appeals his conviction and for the following reasons, we affirm.

Facts

In February 2004, eight-year-old M.L. was referred by her teacher to school-based social worker Orleace Aubrey because M.L. had a problem with feminine odor. During the process of taking a routine psycho-social history, Aubrey asked M.L. if she had ever been touched in a place that was uncomfortable or that made her feel uncomfortable. M.L. initially replied, “No.” However, after two or three follow-up visits during which Aubrey developed a rapport with M.L., the child disclosed that she was being touched by her father, the defendant. Using rag dolls, M.L. demonstrated to Aubrey where her father had touched her by putting the dolls into positions suggesting sexual contact, including one suggestive of rear-entry intercourse. M.L., who called her father “Daddy” and also by both of his names— Melvin and Wayne — told Aubrey that the activity had occurred as recently as within the past week. Aubrey alerted the authorities.

Beverly Paxon, an investigator with the Child Protection Services, the Louisiana Office of Community Support, and Detective Paula Vasquez (now Marino) interviewed Aubrey and M.L. at the school. Paxon testified at Lubom’s trial that M.L., who appeared nervous and scared, made no | ¡..disclosures at that time. After the initial interview with M.L., Paxon and Det. Marino went to the Lubom residence and spoke to M.L.’s mother, Nicole Lubom. Nicole complied with their request to take M.L. and her older stepsister, S.R., to the Kara Center where they were examined by Dr. Ann Springer, whose positive findings of sexual abuse were reported to Det. Marino.

As part of the investigation, Det. Marino also interviewed Lubom, who denied ever molesting his daughter. Detective Marino testified that the defendant showed no surprise at the allegations of abuse and offered no explanation for M.L.’s accusations.

Subsequently, M.L. was brought to the Gingerbread House for two successive interviews. M.L. did not reveal any information during the first Gingerbread House interview, but afterwards, the parents were asked to remove all of the children from the home and place them with their maternal grandmother, Dorothy Harvey. The second Gingerbread House interview was conducted on March 3, 2004, by a Gingerbread House interviewer. Only M.L. and the interviewer were in the interview room, and Det. Marino was able to contact the interviewer electronically by ah earpiece so as to suggest questions. Nicole and Harvey were present at the Gingerbread House, but both stayed in the lobby during the interview. It was during this second interview that M.L. stated again that she had been abused by her father.

In April 2004, Lubom was indicted for the aggravated rape of M.L., who was born in May 1995, pursuant to La. R.S. 14:42(A)(4). Following |shis trial, a unanimous 12-person jury found Lubom guilty as charged. He filed motions of post verdict judgment of acquittal and new trial, which were denied. The trial court sentenced Lubom to serve a term of life imprisonment without benefit of probation, parole or suspension of sentence. This appeal ensued.

Discussion

Lubom brings two related assignments of error, first arguing that the trial court erred in finding the evidence sufficient to convict him of aggravated rape. We disagree.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 1995-1377 (La.02/28/96), 668 So.2d 1132. It is the role of the fact finder to weigh the respective credibility of the witnesses and, therefore, an appellate court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.08/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422. In the absence of internal contradiction or irreconcilable conflict with other evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App. 2d Cir. 105/08/96), 674 So.2d 1018, writ denied, 1996-1459 (La.11/15/96), 682 So.2d 760, writ denied, 1998-0282 (La.06/26/98), 719 So.2d 1048.

Louisiana R.S. 14:42(A)(4) provides that aggravated rape is where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed when the victim is under the age of 13 years. Here, the evidence adduced at trial was more than sufficient to support Lubom’s conviction of aggravated rape.

At the trial, perhaps the most significant in the line-up of witnesses against Lubom was the victim, M.L., who was eleven years old at the time of trial and who appeared and testified against her father. From the witness stand, she identified Lubom as her father. Her second videotaped interview from the Gingerbread House was played for the jury. M.L. testified that her father did the things that she described in the videotaped interview, including putting his “privacy” inside her behind. M.L. testified that her father touched her in the wrong way. She admitted that she once put her parents’ sex toy on the outside of her behind, but denied ever putting it inside her body. On cross-examination, M.L. stated that she did not tell the truth during an interview at the defense attorney’s office when she said that no abuse occurred. She said she also did not tell the truth to the “lady detective” and Paxon when she said that nothing happened. Finally, M.L. stated that she did not tell the truth in the first videotaped interview when she said that nothing happened. She admitted that she had gotten mad at her father when he bought her twin siblings bicycles and did not buy her one; however, she denied that this made her so mad that she would make up |Bthese stories about him. On redirect examination, M.L. confirmed the truth of her statement that her father, the defendant, had penetrated her anally.

Dr. Springer testified concerning her physical examination of M.L. and provided evidence concerning the physical trauma sustained by M.L. Dr. Springer, a clinical assistant professor of pediatric medicine and psychiatry at Louisiana State Medical Center in Shreveport, Louisiana, is also the medical director at the Kara Center, a medical facility designed for the diagnosis and treatment of all forms of child abuse. Dr. Springer was qualified by the court as an expert medical doctor in the field of pediatrics with a special expertise in child abuse medicine.

Significantly, Dr. Springer noted that M.L. had no hymen. She stated that at the time of the examination, there were fresh abrasions on the right and left of the entrance to the vagina, in her opinion obviously indicating a fairly recent injury. Dr. Springer explained that children tend to heal quickly (even within a few days), especially in these areas. Upon the anal exam, Dr. Springer documented stellate (star-shaped) deep Assuring (cracks/scarring) throughout the circumference of the anus and down through the mucosa to the muscle — the type of Assuring characteristic of children who have been anally penetrated. Dr. Springer explained that for such Assuring, the penetration would be forceful, violent and repeated. Dr. Springer’s diagnosis was that M.L. had suffered sexual abuse with vaginal and anal penetration.

|fiDr. Springer also examined the photograph of the victim’s mother’s sex toy, and opined that it was very unlikely that M.L. used the object to injure herself because of the magnitude of pain that would be involved, and she was unsure that a child could generate the amount of force necessary to cause M.L.’s injuries. Finally, and of significance, Dr. Springer opined that it was not unusual for sexually abused children to suffer from post-traumatic stress, causing them to lack the ability to recall the event, and she was therefore not surprised that M.L.’s story had changed over the course of the proceedings.

M.L.’s mother, Nicole, testified that whereas she had no idea how M.L. had gotten her injuries, she believed some abuse occurred. Nicole testified that she believed M.L. Importantly, Nicole confirmed that her work schedule and Lu-bom’s work schedule were made so that only one parent would be home with the children at a time, verifying that he would have been home alone with M.L.

Here, we believe the evidence against Lubom was more than sufficient to support his conviction. The jury heard directly from M.L., who identified her father in the courtroom and repeated the accusations in his presence. Obviously, the jury was in a superior position to observe M.L.’s demeanor and assess her credibility. Notably, the testimony of the victim that her father had vaginal and/or anal sex with her was alone sufficient to support the conviction. State v. Robinson, 2002-1869 (La.04/14/04), 874 So.2d 66, cert. denied, 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499; State v. Ponsell, 33,543 (La.App. 2d Cir.08/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490. Even so, M.L.’s testimony was corroborated by the physical examination conducted by Dr. Springer, a pediatrician with special expertise in child abuse medicine. We find it significant, as the jury surely did as well, that M.L. originally reported to Aubrey that the latest incident had occurred within the past week-a report which was corroborated by Dr. Springer’s physical examination of the young child. Moreover, Dr. Springer’s physical findings corroborate M.L.’s specific description of the nature of her abuse.

The jury heard the testimony discussed herein. Notably, the jury had the opportunity to hear from the victim and observe her demeanor, as well as her cross-examination. Viewing the evidence in the light most favorable to the prosecution, it was reasonable for the jury to find that the state proved the elements of aggravated rape beyond a reasonable doubt. Lubom’s conviction for this heinous crime, as well as his life sentence which he does not appeal, were just and deserved. This assignment of error is without mérit.

Lubom also argues that the trial court erred in denying his objection at trial regarding Paxon’s testimony, which was elicited by the state regarding M.L.’s vacillating account of her story. Lubom maintains that Paxon, a lay witness, offered “expert” opinion testimony and that said evidence was instrumental to his conviction. Without making a determination as to whether the trial court acted improperly and simply accepting Lubom’s assertion as true, we consider the inclusion of the testimony as harmless error for the following reasons.

[¿¡Harmless error analysis begins with the premise that the evidence is otherwise sufficient to sustain the conviction if viewed from the perspective of a rational factfinder and asks whether beyond a reasonable doubt the error could not have contributed to the verdict actually returned by the defendant’s jury. State v. Hill, 41,031 (La.App. 2d Cir.05/17/06), 930 So.2d 336, citing State v. Haddad, 1999-1272 (La.02/29/00), 767 So.2d 682, cert. denied, 531 U.S. 1070, 121 S.Ct. 757, 148 L.Ed.2d 660 (2001). The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

When considering the cumulative evidence at trial in this case, it is incontestable in our view that the guilty verdict against Lubom was unattributable to the error claimed by Lubom. Paxon’s testimony that Lubom found objectionable was of minuscule significance when compared to the volume of other evidence presented at his trial. As we have discussed, there was unquestionable physical evidence that M.L. was horribly abused — evidence which the jury heard and carefully assessed in reaching its guilty verdict. The jury heard from Dr. Springer, an eminently qualified expert in the field of child sexual abuse. She opined regarding the physical evidence of M.L.’s abuse, as well as gave her opinion that it was not unusual for sexually abused children to suffer from post-traumatic stress, causing them to lack the ability to recall • the event; thus, Dr. | ^Springer’s opinion provided a reasonable explanation for M.L.’s vacillation between denying her abuse and her claims against her father. Clearly, Dr. Springer’s testimony was sufficient to provide, an explanation to the jury regarding M.L.’s variance. Moreover, Harvey, M.L.’s maternal grandmother, whom M.L. lived with for a short time after her accusations and to whom she opened up about the abuse, felt that Nicole had pressured M.L. to change her story. Notably, as a family member, Harvey would have been privy to the family dynamics involved in this matter, and her view of the situation was obviously significant.

Therefore, we conclude that even if the trial court improperly allowed Paxon’s testimony, said error was harmless and unattributable to Lubom’s conviction in light of the other evidence on the same issue, as well as the ample evidence necessary to convict Lubom of aggravated rape. This assignment of error is without merit.

Conclusion

For the stated reasons, the conviction and sentence of Melvin Wayne Lubom is affirmed.

AFFIRMED.

      . We note that Lubom's appellate counsel erroneously states in brief that M.L. repeatedly testified at trial under oath that her father did not ever touch her inappropriately. This is patently untrue — her trial testimony was consistent and supportive of the charges against Lubom.

      . We find it telling that M.L.'s account varied in only one way: the claim against her father and a complete denial of the occurrence of any abuse (which is obviously not true as shown from her physical examination). Significantly, she never accused anyone else of abusing her.


author: DREW, J.

text:
    STATE of Louisiana, Appellee, v. Barbara Augusta PRUDHOMME, Appellant.
    No. 42,410-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 2007.

      Louisiana Appellate Project by Peggy J. Sullivan, Richard C. Goorley, Shreveport, for Appellant.
    Richard Christopher Nevils, District Attorney, for Appellee.
    Before PEATROSS, DREW and LOLLEY, JJ.
   DREW, J.

|-¡The defendant, Barbara Augusta Prud-homme, was charged by grand jury indictment with first degree murder, pled guilty to the responsive charge of manslaughter, and was sentenced to 20 years’ imprisonment at hard labor. She now appeals, assigning as error that her sentence is excessive and that the trial court failed to adequately comply with La. C. Cr. P. art. 894.1.

We affirm.

FACTS

Prudhomme and Floyd Powell entered the Winn Parish home of Floyd Weems, without authorization and with the intent to steal. Prudhomme knew that Powell was armed before entering. Powell viciously beat Mr. Weems and left him for dead. The 75-year-old victim died of these injuries less than a month later.

The victim’s daughter was allowed to make a statement at the sentencing hearing. She asked that the defendant be given the maximum sentence because of the particularly brutal beating her father received, noting that her father’s ill health would have allowed them to simply push her father down. Instead, he was brutally beaten while the two intruders callously ransacked his house. Prudhomme shared in the proceeds of the crime.

Defendant’s attorney noted that:

• the trial court had reviewed the presen-tence investigation report and was therefore familiar with the defendant’s background;
• Prudhomme’s willingness to testify at Powell’s trial was a significant factor in Powell’s decision to plead guilty; and
12* this defendant’s participation in the instant crime was more along the lines of being an accessory because Powell actually committed the homicide.
Prudhomme apologized to the victim’s family, expressing her sorrow and accepting responsibility for her part in the crime. The trial court noted that:
• in considering this matter, its research and preparation confirmed that Prud-homme’s hands never touched the weapon used by Powell;
• Prudhomme knew that a robbery would take place;
• Prudhomme’s willingness to cooperate was a significant factor in Powell’s decision to plead guilty and receive a 40-year sentence; and
• a sentence of 20 years at hard labor would be appropriate.

A timely motion to reconsider sentence was denied.

Our law on sentencing is well settled.

■ | ^Considering the totality of the record, the defendant’s hard labor sentence of 20 years’ imprisonment is not constitutionally excessive. The trial court took minimal, but adequate, cognizance of the guidelines in La. C. Cr. P. art. 894.1.

This record clearly reflects that the trial court studied defendant’s PSI report. Although the PSI reflects that the defendant is a first felony offender with no juvenile record, her adult criminal record is not pristine. The report contains background information regarding the defendant’s personal history, including her age, family ties, marital status, self-reported poor health, limited education, and lack of employment. We do not find that the sentence imposed is grossly disproportionate to the severity of the offense, nor is it shocking to the sense of justice. This is especially true in light of the substantial advantage obtained by means of the defendant’s plea bargain whereby her charge was reduced to manslaughter from first degree murder. This is a just sentence.

DECREE

Defendant’s conviction and sentence are AFFIRMED.

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. 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. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57, and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004 — 2606 (La.6/24/05), 904 So.2d 728. The record confirms that such elements were in fact considered in the case sub judice.

      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.
      Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La. 1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.
      A substantial advantage obtained by means of a plea bargain, such as a reduction of the charge where the evidence shows the offender is guilty of the more serious offense originally charged, is a legitimate consideration in sentencing. State v. Smack, 425 So.2d 737 (La.1983); State v. Ross, 35,552 (La.App.2d Cir.2/27/02), 811 So.2d 176.