text:
    STATE of Louisiana, Appellee v. Derek M. DOWDEN, Appellant.
    No. 41,939-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 28, 2007.

      Tommy K. Cryer, Shreveport, for Appellant.
    Paul J. Carmouehe, District Attorney, Ron Christopher Stamps, Tommy J. Johnson, Assistant District Attorneys, for Ap-pellee.
    Before WILLIAMS, STEWART & SEXTON (Pro Tempore), JJ.
   SEXTON, J.

11 Defendant, Derek Dowden, was charged with armed robbery, a violation of La. R.S. 14:64. Defendant waived trial by jury and, after a bench trial on December 12, 2005, was found guilty as charged. Following his conviction, the State filed a supplemental bill of information accusing him of being a second-felony offender under the provisions of La. R.S. 15:529.1; Defendant admitted to being a habitual offender. Defendant filed a motion for new trial in March 2006 that was heard and denied in July 2006. In August 2006, the court sentenced Defendant to 30 years at hard labor without benefits. Finding that Defendant was armed with a firearm during the robbery, the court, relying on the provisions of La. C. Cr. P. art. 893.3, added an additional 5 years to the sentence, to be served consecutively. Defendant now appeals. For the reasons set forth herein, Defendant’s conviction and sentence for armed robbery are affirmed. The additional 5-year sentence imposed for use of a firearm during the robbery is vacated.

FACTS

On or about November 19, 2004, Defendant, allegedly armed with a shotgun, robbed Brian Lane at his apartment. During the bench trial, Lane testified that he had met Defendant once previously for about an hour and a half when Defendant came to his house with one of Lane’s friends. Lane testified that, on the night of the robbery, around 9:00 or 10:00 p.m., Defendant approached Lane as he was arriving home and walking to his door. Another man accompanied Defendant. Lane testified that Defendant asked him for some prescription pain medication that Lane took, and Lane 1 ¡.told Defendant that he did not sell pain medication and asked him to step away from his front door. Then, according to Lane, when he started walking into his house, the two men “kind of forced their way in.” Lane testified that Defendant then pulled out a shotgun and “cocked it” to show Lane there was a shell in the gun. Lane then clarified that Defendant “pumped” the shotgun rather than cocked it. Lane stated that he did not know a lot about guns, but thought the gun was a “sawed-off’ and that the gun had “two barrels at the end of it.” Defendant’s accomplice then pulled out duct tape and duct taped Lane’s arms and legs. They then took Lane’s pain medication from his pockets, grabbed his keys and wallet, put on plastic gloves, pulled out some trash can bags that they had brought with them and proceeded to ransack Lane’s apartment. Defendant allegedly took Lane’s keys and opened a safe that was said to contain nothing but some cheap Mexican jewelry and Lane’s graduation tassel. According to Lane’s testimony, Lane’s wallet only contained about $6.

After allegedly taking a number of items, including DVDs, a Play Station II and an old video system, the robbers put the items into a trash bag and covered it with a comforter that belonged to Lane.

Lane testified that he pleaded with the robbers to give him back his keys, which they did after washing them in the sink. After they left, Lane hopped to his next door neighbor’s apartment and banged on the door with his head. The neighbor, Laura Powell, came to the door, cut off the tape and called 911.

13Also during his testimony, Lane identified an exhibit consisting of the prescription medications he had been taking, including Methadone, Oxycodone and Soma (a muscle relaxer). According to Lane, he had been on these medications for “a few years.” Lane then identified Defendant in the courtroom as one of the men who robbed him. He also indicated that he had previously picked Defendant’s picture out of a six-person lineup.

On cross-examination, Lane admitted that he told the police at the scene that Defendant and his partner initially asked if they could come in and use the phone and the bathroom, but he maintained that he told the two men that they could not come inside. Defendant’s attorney then questioned Lane as to whether he had told the police that whoever was at his house asked to use the bathroom and then washed then-hands in the sink. Lane then stated that he did not believe that that is what he had told the police. When asked about the gun, Lane affirmed that he had indicated the gun was a couple of feet long, that Defendant had kept it under his shirt before pulling it out and that he “only saw the gun for like a minute.... ”

Lane indicated that he was not on any pain medication at the present time because his insurance had run out; but, prior to that time, he had received medication via prescriptions from Dr. James T. Hill. Lane testified that he received his medication in one-month supplies and that the robbery had taken almost an entire month’s supply — 60 Methadone and 50 Percocet (Oxycodone). Lane admitted that Dr. Hill was giving him 90 Percocet per month at the time and 90 Methadone per month.

|4Pefendant’s attorney then asked Lane if he had not told the police that he had $60 in his wallet at the time of the robbery rather than $6. Lane responded, “[mjaybe I did have that much.” Lane also admitted that he had given a few of his pills to friends in the past and that he had a drug problem in the past. Finally, when asked if he had told Ms. Powell not to call the police because Lane was “going to take care of it” himself, Lane responded “something to that effect.” After a very brief redirect used to emphasize that Lane’s medications were prescribed to him for a painful disabling condition, Lane’s testimony was complete.

Ms. Powell testified next. She described Lane coming to her apartment that night with tape on his face and hands and telling her that he was robbed at gunpoint. She testified that Lane was “frantic,” so she called 911 for him. Ms. Powell further explained that she did not really know Lane other than just to speak to him, that she was not aware he had any medical condition and that he “just seemed very shy, very closed in...,.'” On cross-examination, she could not remember telling the police investigator that Lane had told her not to call the police because he would “take care of it.” She admitted, however, that she could have made that statement. When asked if she remembered stating that there was a lot of activity at the apartment, a lot of foot traffic in and out and a lot of shady-looking characters, she did recall saying there were some “shady characters.” She did not remember saying there was a lot of foot traffic, but she did notice people at the apartment.

|fiThe last witness for the prosecution was Detective James Cromer, who had been assigned to investigate the case. Detective Cromer indicated that Lane had picked Defendant’s picture out of a lineup. On cross-examination, Detective Cromer affirmed that he had asked Lane during the investigation if the crime was “a drug deal gone bad” and that Lane had responded in the negative. Detective Cromer also indicated that Ms. Powell had told him on the night of the crime that Lane had told her not to call the police because he would take of it and that Ms. Powell had thought that that was odd. Detective Cromer also indicated that Ms. Powell stated she had no close contact with Lane and thought he was “you know, strange” and that “she had some concerns.” According to Detective Cromer, Ms. Powell also indicated that there was a lot of activity at the apartment and lots of foot traffic in and out. Similarly, she had told Detective Cromer there were a lot of shady-looking characters around the apartment.

When asked if Lane had told Detective Cromer that the two men forced their way into the apartment, the following colloquy took place:

A: My recollection is, is that his statement was, is that they asked to use the phone or the bathroom. He said yes, but then he hesitated and said no. At that point, they were all in — they were already inside the living room area.
Q. And they used the phone and the bathroom?
A. If I remember correctly one went to the bathroom. I think he said Mr. Dowden went to the sink which was over there and at that point is when he supposedly turned around and produced the shotgun.

Detective Cromer also indicated that Defendant had said he had $60 in his wallet, but the detective then stated that he was “old and hard of | (¡hearing” and that Lane could have said $6. Finally, Detective Cromer indicated that, when Lane came to do his interview, he presented Detective Cromer with a brown paper bag containing a Latex glove that Lane allegedly found at his apartment and believed to belong to Defendant. The glove was never tested for DNA.

On completion of the State’s evidence, a motion for directed verdict was made and denied. Defendant then took the stand to testify in his own defense. Defendant, 24 years old at the time, admitted that he had a serious drug problem when he robbed Lane and stated that, for a while, he had obtained drugs from Lane “quite frequently.” He admitted to having some prior convictions, but indicated they were all for drug problems and did not involve any violent crimes or crimes involving a gun. He denied owning a shotgun. According to Defendant, after becoming incarcerated, he had taken advantage of various programs offered for his drug abuse problem and had gotten that problem under control. He also had completed parenting classes.

According to Defendant, on the date of the crime, he went to Lane’s apartment to get drugs and Lane asked him about the ones that Lane had fronted to Defendant previously. Defendant testified that he told Lane that he did not have the money for him, but he wanted Lane to front him a few more because he had a buyer; however, Lane refused. Allegedly, the man whom Defendant took to Lane’s apartment was the person to whom Defendant intended to sell the drugs. Defendant stated that he only knew the man as “B J.” Defendant denied ever threatening Lane-with a gun and ^indicated that BJ had put the duct tape on Lane, although that was not what the two had come to the apartment to do. Defendant indicated that they had gone to Lane’s apartment for Xanax; and, although they had taken the drugs, they did not take anything else from Lane. Defendant also denied that BJ had a gun.

On cross-examination, Defendant stated that he had met Lane through a friend named Justin who had told Defendant that he knew where to get some Percocets. On the night of the crime, BJ went with him to Lane’s apartment because the two of them were trying to get high; Defendant and B J had gotten high together about ten times over the course of a few months. Defendant denied going through Lane’s things, but admitted taking the pills. He again denied bringing a shotgun to rob Lane and denied that BJ brought a shotgun. According to Defendant, Lane did not fight back when BJ placed the duct tape on him. Defendant admitted knowing that BJ had the duct tape with him when they went to Lane’s apartment, but he testified that he did not know BJ was going to use the tape; instead, he was hoping that Lane would go ahead and front a few more pills.

As previously stated, the trial judge found Defendant guilty of armed robbery as charged. The court also concluded that a firearm was used in the commission of the crime.

Defendant, with new counsel, filed a motion for new trial on March 22, 2006. The motion essentially alleged two grounds. First, although Defendant had candidly admitted to simple robbery, Defendant argues that the evidence failed to establish beyond a reasonable doubt that |Rany weapon, much less a firearm, was used in the robbery. The second ground was the existence of new and material evidence, i.e., testimony of two new potential witnesses, that, notwithstanding the exercise of reasonable diligence by Defendant, was not discovered before or during the trial. According to the motion, Jason Ross Spi-cer had informed Defendant that he was a close acquaintance of Lane and that Lane had indicated to Spicer that Lane did not know whether the robbers were armed or not. Additionally, Danielle Free had informed Defendant that she knew, by her own personal knowledge, that Lane was engaged in trafficking drugs, including Ec-stacy.

The hearing on the motion for new trial was held on July 17, 2006. Ms. Free testified that she was the mother of Defendant’s minor child. She also indicated that she was acquainted with Lane for about ten years. She stated that she had known Defendant to engage in the use of illicit drugs and that she had actively participated in those activities as well. When asked whether she knew of her own personal knowledge that Lane was involved in either the procurement or the production of illicit drugs, however, the State objected on the grounds that such evidence was easily discoverable given that Ms. Free was the mother of Defendant’s child. Defendant’s counsel indicated that he could not address whether the evidence was discoverable or not because he was not counsel of record until after the trial. He simply stated that there was no way that he could have discovered it beforehand and that he thought the court was entitled to hear the testimony. The trial judge, however, found the testimony inadmissible, stating that the evidence |gwould not be relevant because, even if Lane were trafficking drugs or using drugs, that would not be relevant to the question of Defendant’s guilt or innocence.

Defendant further argued that there were inconsistencies in Lane’s testimony concerning the firearm. He submitted that there was no such thing as a shotgun that had two barrels and also was a pump shotgun. He also argued that it made no sense for two men who had the victim outnumbered to need a gun, suggesting that Defendant would not pump the shotgun, thereby ejecting one of the shells. Finally, Defendant attempted to make a plea for sympathy by pointing out that an error concerning guilt could result in Defendant going to prison for 55 years.

To the contrary, the State pointed out that the chamber that held extra shells in a shotgun could cause a victim to feel two “tubes” if a sawed-off shotgun were pointed in a victim’s back. Defendant later noted that there was no testimony that anybody put a gun in Lane’s back, but that Lane did testify he saw there were two barrels; and, furthermore, barrels, unlike magazine tubes, do not have caps on the end of them.

As noted, the trial court denied the motion for new trial and this appeal followed.

DISCUSSION

Assignments of Error I and III (Verbatim):

Appellant respectfully submits that the trial court erred in the following particulars, to-wit:
I. Finding defendant guilty as charged when the evidence adduced was insufficient to prove defendant’s guilt beyond any reasonable doubt;
|1(IIII. Denying defendant’s Motion for New Trial on the basis of La. C. Cr. P. Article 851(1).

Defendant admits to robbing Lane and states that the sole issue is whether the robbery was a simple robbery or an armed robbery. He emphasizes that no physical evidence of the presence or use of a gun was introduced. Thus, the sole evidence for conviction of armed robbery, as opposed to simple robbery, is Lane’s testimony. The defense argues that, although such testimony can be sufficient, it must be free of internal contradiction and irreconcilable conflicts with physical evidence. In this case, the defense queries why Defendant would arm himself to rob someone that he knew and could identify him. In addition, the defense notes that, because Defendant and Lane knew each other, it was of no importance that Lane could pick him out of a photographic lineup.

With respect to contradictions in Lane’s testimony, Defendant attempts to refer to a Shreveport Police Department narrative supplement found in the record. We note, however, that it does not appear that any of this material was introduced into evidence at the trial. Likewise, he attempts to rely on the narrative report to show that Lane had told the officer arriving on the scene that he was home when the two men came and knocked on his door. The same officer had indicated in the report that Lane had stated he let the two men into his apartment when they asked permission to use the phone and the bathroom. These items, as well as others from the narrative report, would indeed show inconsistencies but for the fact that the narrative report was not introduced into evidence, and the officer who made the report was not called as a witness. Defendant next attacks Lane’s In description of Defendant ejecting a round from a shotgun and Lane’s description of the gun itself.

In summary, Defendant argues that, under the familiar Jackson standard, the evidence is insufficient because the internal contradictions in Lane’s testimony would prevent a court from relying solely on that testimony to find Defendant guilty of armed robbery.

In contrast, the State argues that Lane’s testimony at trial was clear that he was robbed at gunpoint and that Ms. Powell, who cut the duct tape from him after the robbery, testified that Lane declared at that point and time that he had been robbed at gunpoint and that Lane was scared and upset. The State points out that no one questioned Lane in depth at the trial about the shotgun issue and that Lane admitted he did not know much about guns. The State further argues that, to someone who does not know much about guns, a pump shotgun can look like it has two barrels with the lower barrel being the ammunition chamber. According to the State, under the Jackson standard, credibility issues are present in this case and this court’s authority to review questions of fact in a criminal case is limited to sufficiency of the evidence rather than to credibility determinations made by the trier of fact. The State submits that there was sufficient evidence presented to sustain the conviction for armed robbery. We agree.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.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, unit denied, 02-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to 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.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App. 2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048.

In the case sub judice, Lane’s testimony was clear that a shotgun was used in the commission of the crime, and this testimony was corroborated to some extent by Ms. Powell’s testimony that Lane, who appeared very shaken, told her immediately after the robbery that he was robbed at gunpoint. As for the description of the firearm, while the defense makes a good point in this regard, it is possible that Lane simply mistook the sawedjoff13 shotgun as having two barrels because the barrel was sawed off to approximately the same length as the tube that held the shotgun shells. As a person unfamiliar with guns, Lane could have made this mistake, especially if there had been a magazine extension on the gun. Finally, although there are inconsistencies in Lane’s version of how the robbers entered his apartment, much of Defendant’s argument concerns inconsistencies with respect to the initial police report, which was not entered into evidence. We conclude that the trial court was well within its discretion in its determination to credit Lane’s testimony that a firearm was used and to discredit Defendant’s testimony in this regard. The evidence was sufficient to sustain the conviction.

Assignment of Error II. (Verbatim)

Appellant respectfully submits that the trial court erred in the following particulars, to-wit:
II. Sustaining the State’s objection to the introduction of newly discovered evidence at the hearing on Motion for New Trial when that evidence was clearly admissible, not only to impeach the testimony of the complainant, but would also have been corroborative of defendant’s testimony;

Defendant complains that the trial court should not have precluded him from asking Ms. Free about Lane’s drug dealing activity. He argues that this resulted in his being unable to demonstrate the time and manner of discovery of the witness’s knowledge. Defendant states that, where the evidence is so evenly balanced, with neither him or Lane having any corroborating evidence to support their version of the event, newly discovered evidence of relatively minor importance might be sufficient to create a reasonable doubt. We are not persuaded by Defendant’s arguments.

114Under the provisions of La. C. Cr. P. art. 851, a motion for new trial is based on the supposition that injustice has been done to the defendant; and unless such is shown to have been the case, the motion shall be denied, no matter upon what allegations it is grounded. Under Article 851(3), one ground for granting a new trial is the availability of new and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, and that, if it had been introduced at the trial, would probably have changed the verdict or judgment of guilty.

In the present case, Defendant failed to show that Ms. Free’s testimony could not have been discovered before or during the trial with the exercise of reasonable diligence. Instead, because Ms. Free was Defendant’s girlfriend and the mother of his child, it is difficult to imagine how Ms. Free’s knowledge of Lane’s drug dealing would not have been known to Defendant and have been easily discoverable for use at trial. Furthermore, the State pointed out this problem at the hearing on the motion for new trial and counsel for Defendant was unable to supply any justification or reason for not discovering the evidence prior to trial. Defense counsel stated only that the evidence was “newly discovered” as to him because he was not involved until after the trial.

Furthermore, defense counsel told the court that he had not explored with Ms. Free whether or not she had made the information known to Defendant’s former counsel or even to Defendant. Thus, it is difficult to understand how counsel could have properly verified the motion for new 11 Rtrial with respect to its truth and correctness as to discoverability. A defendant should not be able to get around the discoverability requirement by simply changing counsel.

Assignment of Error TV. (Verbatim)

Appellant respectfully submits that the trial court erred in the following particulars, to-wit:
IV. Imposing an unconstitutionally excessive sentence and imposing sentence without taking into consideration mitigating circumstances as required La. C. Cr. P. Article 894.1.

Defendant emphasizes that he is a 25-year old man sentenced to prison until age 60 for the first and only act of violence he ever committed and in which no one was injured. He argues that the trial court’s reasons for sentence reveal that the court failed to consider his close relationship with his small two-year-old son, the nature of his prior criminal record and the likelihood of rehabilitation.

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, 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 offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So.2d 747, unit denied, 04-2606 (La.6/24/05), 904 So.2d 728. 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, unit denied, 00-1467 (La.2/2/01), 783 So.2d 385.

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.

Under the provisions of La. R.S. 14:64(B), the ordinary sentencing range for armed robbery is not less than 10 and not more than 99 years |17without benefits; Under the provisions of La. R.S. 15:529.1(A)(l)(a), because Defendant was a second-felony offender, his sentence was required to be for a term of not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction. The statutory law, therefore, fixed the minimum sentence for this Defendant (who had a prior felony conviction for possession of Schedule IV, CDS) at 49½ years.

The trial court heard from both of Defendant’s parents, as well as Defendant himself. The court then stated that it had taken that testimony into consideration along with the testimony at trial. After noting the seriousness of armed robbery and noting that Defendant’s drug use was voluntary, the court also noted that it had taken into consideration the loss of Defendant’s aunt who was missing and with whom he apparently had a close relationship.

On this record, we conclude that the trial court adequately indicated its sentencing considerations and that the deviation down from 49½ years to 30 years does not leave a sentence that shocks the conscience or is constitutionally excessive.

We further conclude, however, that the trial court did err in adding the additional 5 years by relying on the provisions of La. C. Cr. P. art. 893.3(B) which states:

B. If the court finds by clear and convincing evidence that the offender actually used a firearm in the commission of the felony or specifically enumerated misdemeanor for which he was convicted, the court shall impose a term of imprisonment of five years; however, if the maximum sentence for the underlying offense is less than five years, the court shall impose the maximum sentence.

11sThe plain wording of this provision addresses the total term of imprisonment, not an “add-on” of time. See also State v. Lee, 02-1793 (La.App. 4th Cir.4/2/03), 844 So.2d 970, writ denied, 03-1247 (La.10/10/03), 855 So.2d 330. In contrast, the provisions of La. R.S. 14:64.3 do provide for an additional five years; but, significantly, Defendant was never charged under that statute. Accordingly, the additional five years is hereby removed from Defendant’s sentence.

DECREE

For the foregoing reasons, the conviction and sentence of Defendant Derek M. Dowden for armed robbery are affirmed. The portion of his sentence reflecting an additional five years’ imprisonment for use of a firearm is vacated.

CONVICTION AFFIRMED; SENTENCE AMENDED TO VACATE ADDITIONAL FIVE-YEAR SENTENCE AND, AS AMENDED, IS AFFIRMED.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Walter HOUSTON, Appellant.
    No. 41,743-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 28, 2007.

      Louisiana Appellate Project, by Annette Fuller Roach, Lake Charles, for Appellant.
    Paul Joseph Carmouche, District Attorney, Catherine Marion Estopinal, Laura Owen Wingate Fulco, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and DREW, JJ. ■
   DREW, J.

| falter Houston was charged by bill of indictment with three counts of aggravated rape and five counts of molestation of a juvenile. After a jury acquitted Houston on the rape charges, but convicted him on the five counts of molestation of a juvenile, he was adjudicated a third felony offender and sentenced on Count Four to serve 24 years at hard labor without benefit of parole, probation, or suspension of sentence. He received concurrent 15-year sentences at hard labor for each of the other four counts, along with payment of costs. He then filed a timely appeal of the convictions and sentences.

In State v. Houston, 40,642 (La.App. 2d Cir.3/10/06), 925 So.2d 690, we amended one of Houston’s convictions for molestation of a juvenile to attempted molestation of a juvenile, and remanded the amended conviction to the trial court for sentencing. The court then sentenced Houston to six years at hard labor, with credit for time served, and ordered that the sentence be served concurrently with his other sentences. Houston now appeals, assigning as error that the trial court:

• lacked jurisdiction to resentence him because he timely filed a writ application with the Louisiana Supreme Court,
• failed to comply with La. C. Cr. P. art. 894.1,
• did not provide him with a sentencing hearing, and
• imposed an unconstitutionally excessive sentence.

We affirm.

CHRONOLOGY

The facts underlying the charges against Houston, as well as the facts concerning the procedural history of his prosecution up through his prior | ^appeal in this court, are contained in our opinion in the prior appeal. After our opinion was rendered on March 10, 2006, and the matter remanded to the trial court for resentencing on the reduced conviction of attempted molestation of a juvenile, Houston appeared before the trial court for resentenc-ing on March 28, 2006. At that time, the court sentenced Houston to serve six years at hard labor, and this sentence was ordered to be served concurrently with any other sentence. Houston was given credit for time served and ordered to pay costs.

On April 7, 2006, the Louisiana Supreme Court received and filed an application by Houston for a writ of review. In that application, Houston asked the court to overturn our judgment and to either:

• find insufficient evidence was introduced at trial on each charge (including the lesser charge entered by this court on Count Eight), or
• find trial errors warranting a new trial.

On April 18, 2006, Houston filed a motion to reconsider his sentence. That motion was denied the same day. The instant appeal then was filed on May 9, 2006. On October 13, 2006, the Louisiana Supreme Court denied Houston’s writ application. State v. Houston, 2006-0796 (La.10/13/06), 939 So.2d 373.

DISCUSSION

Jurisdiction

Houston argues that under the provisions of La. C. Cr. P. art. 916, a trial court is divested of jurisdiction upon the entry of an order of appeal, except for limited matters. He further argues that under the provisions of La. C. Cr. P. art. 922, when a timely writ of review is sought with the ^supreme court, the judgment of the court of appeal does not become final until the supreme court denies the writ. At the .time Houston’s appellate brief was filed herein, the supreme court had not yet acted on his writ application, and Houston argues that until our judgment was final, it was not executable. Thus, he argues he should not have been resentenced because that action was premature. He requests that this court vacate the sentence imposed upon him on March 28, 2006, and keep the case in abeyance until the supreme court ruled on his writ application.

The state notes Houston’s argument under Article 922, finding some merit in Houston’s argument, but further notes that as a practical matter, there is no effect on Houston. The state’s brief, which also was filed prior to the supreme court’s writ denial, states that if the supreme court granted writs and reversed Houston’s convictions, the resentencing would be rendered moot. On the other hand, if the supreme court denied writs, there would be no change in the number of years that Houston would have to serve because'the sentences all run concurrently.

La. C. Cr. P. art. 922 states:

A. Within fourteen days of rendition of the judgment of the supreme court or any appellate court, in term time or out, a party may apply to the appropriate court for a rehearing. The court may act upon the application at any time.
B. A judgment rendered by the supreme court or other appellate court becomes final when the delay for applying for a rehearing has expired and no application therefor has been made.
C. If an application for a rehearing has been made timely, a judgment of the appellate court becomes final when the application is denied.
|4P. If an application for a writ of review is timely filed with the supreme court, the judgment of the appellate court from which the writ of review is sought becomes final when the supreme court denies the writ.

The facts of this case illustrate a peculiarity concerning Article 922. At the time the trial court resentenced Houston pursuant to our opinion, more than 14 days had passed and no application for rehearing had been made. Thus, this court’s judgment was final under Article 922(B). On the other hand, after the trial court resen-tenced Houston, his application for a writ of review to the supreme court was timely, and under Article 922(D), the timely-filed writ application kept the judgment of the appellate court from becoming final until the supreme court denied the writ application. As a practical matter, this problem seldom arises, in that most trial courts do not act on a remand until after the 30-day period to apply for a writ has expired.

As noted in the official revision comments to Article 922, there is no reason why the rules governing finality of judgments on appeal in criminal cases should be different from the rules in civil cases; therefore, Article 922 conforms with the provisions of La. C.C.P. arts. 2166 and 2167, with the exception that provisions dealing only with civil matters are omitted. See also State v. Bennett, 610 So.2d 120 (La.1992). It is not possible under the Code of Civil Procedure to have the same problem presented herein. However, in Overmier v. Traylor, 475 So.2d 1094 (La.1985), the Louisiana Supreme Court held that an appeal that was premature, but subsequently had its defect cured, should not have been dismissed. In that case, an appeal was granted before the signing of a final judgment, and the court noted that such a judgment is subject to dismissal until the final | ¿judgment is signed. The court held that once the final judgment had been signed, any previously existing defect was cured and that there was no useful purpose in dismissing the otherwise valid appeal. By analogy, any defect in the trial court’s jurisdiction to resentence Houston was cured when the Louisiana Supreme Court denied Houston’s application for a writ of review. Thus, even if Houston had filed his application for a writ of review prior to the trial court’s resen-tencing, there would be no reason to set aside the otherwise valid resentencing once the Louisiana Supreme Court denied the writ application.

Of course, Houston did not file his application until after the trial court had resen-tenced him, and because our judgment already had become “final” by the passing of the 14-day rehearing period, we find that the trial court did in fact have jurisdiction. To the extent that the validity of the re-sentencing might have been called into question by the subsequent filing of the writ application, that question essentially became moot once the Louisiana Supreme Court denied the writ application. Any defect arguably present was erased once the writ application was denied.

SENTENCING

Houston argues that when he was resen-tenced on the attempted molestation conviction, the court said nothing regarding what factors it considered in determining a proper sentence to impose upon him. According to Houston, the failure to set forth any factors was compounded by the court’s refusal to allow him to speak at his resen-tencing hearing, even though he asked to be allowed to do so. Furthermore, Houston asserts that[fiat the original sentencing hearing, the trial court set forth very few factors on the record that were considered in reaching the sentences it imposed.

On the other hand, the state argues that despite the trial court telling Houston he would not be allowed to speak, Houston persisted and made himself heard. Furthermore, the state alleges that Houston said nothing that related to the length of his sentence and made no expression of any remorse or awareness that he had victimized those he should have protected. Instead, the state asserts that Houston’s complaint was directed at the reduction ordered by this court, as he stated that he was never tried for attempt and that the charge “wasn’t on the ballot.”

Our law on review of sentencing is clear. Because the trial court had already conducted one sentencing hearing for Houston and, as noted in our prior opinion, had considered the seriousness of the offense, Houston’s age, the likelihood that Houston would commit crimes again, and Houston’s prior record, there was no necessity for the trial judge, who was the same |7judge who initially fully complied with La. C. Cr. P. art. 894.1, to revisit the factual basis for sentencing this defendant on attempt of the same crime. Furthermore, the record clearly shows an adequate factual basis for the sentence imposed on this defendant, who had a' substantial prior criminal record and who had molested or attempted to molest his step-grandchildren.

Houston next argues that the sentencing provisions for molestation of a juvenile call for a sentence of not less than one nor more than 15 years. La. R.S. 14:81.2(C). Thus, an attempt sentence could be no longer than seven and one-half years. La. R.S. 14:27(D)(3). Houston was sentenced to six years, and the court provided no reasons at resentencing. Additionally, the court did not order a presentence investigation report either at the original sentencing or upon resentencing. Houston contends that although he has a prior record, none of these priors are “in the same crime family” as the current offense, and that it has been several years since his previous convictions. He asserts that in this case, there was no physical harm to his 14-year-old step-granddaughter and no overt sexual gestures; instead, the conviction involved his stating that he would buy a cell phone for the step-granddaughter in return for oral sex. Houston chillingly argues that “this act was minor” and did not justify an upper-range sentence. Conversely, the state argues that a man who systematically molests his entire family of step-grandchildren is one of the worst offenders, and these crimes warrant the maximum sentence. Furthermore, the state points out that as a practical matter, the sentence was ordered to run concurrently with the third felony offender 24-year sentence and the sentences for the other molestation ^convictions. The state submits that Houston preyed upon the children who had been placed in his charge and, rather than protect them, he subjected them to sexual abuse that likely will adversely affect them for the rest of their lives.

The imposition of the six-year sentence for the attempted molestation simply does not shock the sense of justice, for the following reasons:

• the seriousness of Houston’s pattern of molestations,
• the adverse impact his actions will have on these children in the future,
• his prior criminal record (adjudicated a third felony offender with 13 convictions),
• this court’s prior affirmance of the trial court’s maximum sentences on his other molestation counts, and
• the fact that the instant sentence will run concurrently with the other sentences.

CONCLUSION and DECREE

The defendant’s sentence is AFFIRMED.

      . There are two prongs to the test imposed by a reviewing court in determining the exces-siveness of a sentence. Under the 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 as long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La. 1983). The articulation of the factual basis for a sentence is the goal of Article 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 when there has not been full compliance with Article 894.1. State v. Landos, 419 So.2d 475 (La. 1982). The important elements that 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).
      Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in the light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La. 1985); State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.


author: SEXTON, J.

text:
    Gary L. DeMOSS, et ux., and Miss Crain School of Dance, Inc., Plaintiffs-Appellants v. PINE HILLS GOLF AND COUNTRY CLUB, INC., Defendant-Appellee.
    No. 42,033-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.

      Sedric E. Banks, Monroe, for Appellants.
    Crawford & Joyce, by Brian E. Crawford, Jefferson B. Joyce, Monroe, for Ap-pellee.
    Before CARAWAY, LOLLEY & ' SEXTON (Pro Tempore), JJ.
   SEXTON, J.

_JjThis case arises out of the sale of real estate in Ouachita Parish. The purchasers, Plaintiffs Gary and Sherry DeMoss and Missy Crain School of Dance, Inc., owned and operated by Gene and Missy Crain, purchased property from Pine Hills Golf and Country Club, owned and operated by John Smith (“Smith”). Five years after the sale, Plaintiffs discovered that the deed conveyed only one of two lots comprising the subject property (“Lot 1” and “Lot 2”). Plaintiffs had been consistently using and improving both lots since the sale. Mr. Smith, however, asserted ownership of Lot 2 and Plaintiffs filed suit to have the deed reformed, sale rescinded and/or for damages. Mr. Smith filed a motion for summary judgment, which was granted. Plaintiffs appeal. For the reasons set forth herein, we reverse the judgment of the trial court and remand for further proceedings.

FACTS

Mr. Smith owns and operates Pine Hills Golf and Country Club in West Monroe. He developed a residential subdivision adjacent to the country club and owned two commercial lots (Lots 1- and 2) on Hwy 80 at the entrance to the country club. For years, a restaurant had been located on Lot 1, with a parking lot on Lot 2. The restaurant was abandoned in 2000 and the building was in disrepair when Mr. Smith decided to sell the property. He put a sign up and advertised the property for sale. It is disputed whether both lots were “for sale” or just Lot 1, where the building was located. Plaintiffs submit that the parcel (Lots 1 and 2 together) appears to be one lot and was advertised for sale and represented by Mr. Smith as one lot. Mr. Smith maintains that only Lot 1 was for sale and |2that he never advertised or represented that Lot 2 was for sale or was part of the sale to Plaintiffs.

The DeMosses and Crains were interested in the property for two separate family-owned businesses, a dance wear business, owned and operated by the De-Mosses, and a dance studio, owned and operated by the Crains. Mr. DeMoss and Mr. Crain looked at the property on their own and then Mr. DeMoss telephoned Mr. Smith to inquire about the property^ Shortly thereafter, the DeMosses and Mr. Crain met Mr. Smith at the property to inspect it. It is disputed how long the parties were on the property and what was discussed. The asking price was $125,000. It is also disputed when arid how the sales price of $115,000 was agreed upon. In any event, the parties reached a verbal agreement and proceeded to closing.

Allegedly at the urging of Mr. Smith and to minimize expenses, Plaintiffs elected to use Mr. Smith’s legal counsel and not seek representation for the sale. They did not have the property surveyed, nor did they examine the title. Plaintiffs signed the deed at closing and paid cash for the property so there was no mortgagor to require a title examination. A significant dispute in this case concerns the motivation for Plaintiffs to dispense with seeking their own legal counsel, a survey and title examination. Plaintiffs argue, and testified in deposition, that Mr. Smith encouraged them to forgo such safeguards and rely on his counsel for all details of closing in order to save expenses. Mr. Smith fervently denies that he made any such comments to Plaintiffs. In any event, the sale was closed and Plaintiffs began restoring the building. As Lpreviously stated, they operated the business for the next five years, openly using and improving both lots.

It is also disputed how Plaintiffs became aware of the fact that the deed did not convey both lots to them. According to Plaintiffs, in April 2006, an employee of Mr. Smith called Sherry DeMoss and told her that Mr. Smith had mistakenly received the tax notice for Lot 2. This created confusion as to who had been paying the property taxes for that lot and led to Plaintiffs’ discovery that the legal description on the deed covered only Lot 1, where the building was located, and not Lot 2, the parking lot. At this point, according to Plaintiffs, Mr. Smith asserted ownership of Lot 2. Mr. Smith, on the other hand, testified in deposition that he never intended to sell Lot 2 and, several months before suit was filed, he drove past the property and noticed a sign located on Lot 2. He states that he telephoned Plaintiffs’ business and informed a woman that the sign was on his property and must be removed.

As previously stated, Plaintiffs filed suit and Mr. Smith filed a motion for summary judgment. Depositions of all parties were taken and submitted. Apparently, a hearing was held on the motion, but the record indicates that neither party requested that the proceedings be transcribed. The trial court granted the motion for summary judgment and, in its reasons for judgment, explained its ruling as follows:

The court’s decision was based in (sic) determination of whether evidence was to be strong and convincing, which required the trial court to make credibility determinations and to weigh evidence. In this case the court felt it was simply a mistake of plaintiff for not doing the things mentioned above, as securing their own attorney, getting a survey and | ¿determining the value of the lots. Defendant was asking $125,000 and the plaintiffs (sic) offer was for $115,000 and that’s what the sale was for.
The court was not convinced there was any fraud, because a contract was formed by the consent of the parties. Fraud does not vitiate consent when the party that the fraud was directed (sic) could have ascertained the truth without difficulty, inconvenience or special skill.

DISCUSSION

The standard of review for the grant or denial of a motion for summary judgment is de novo. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002. Appellate courts review summary judgments de novo under the same criteria that govern a trial court’s consideration of whether or not a summary judgment is appropriate-(l) whether there exists a genuine issue of material fact and (2) whether or not the mover is entitled to judgment as a matter of law. Id. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A genuine issue is a triable issue on which reasonable persons could disagree. Jones, supra, citing Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730. Further, a fact is material when “its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Jones, supra, quoting Smith, supra.

In a motion for summary judgment, the burden of proof is on the movant. La. C.C.P. art. 966(C)(2). The movant’s burden does not require |5him to negate all essential elements of the adverse party’s claim; but, rather, the burden on the mov-ant at summary judgment is to demonstrate an absence of factual support for one or more elements essential to the adverse party’s claim. Then, if the non-movant fails to produce sufficient factual support to show he can meet his evidentia-ry burden at trial, there is no genuine issue of material fact. Id.

Plaintiffs seek reformation of the deed, reflecting Lot 2 as part of the property transferred. An action to reform a written instrument is an equitable remedy, lying only to correct mistakes or errors in the written instrument when such instrument, as written, does not express the true agreement of the parties. Fontenot v. Lewis, 215 So.2d 161 (La.App. 3d Cir.1968). The burden of proof rests on the party seeking reformation to establish mutual error by clear and convincing evidence and parol evidence is admissible. Id.

Plaintiffs further allege fraud on the part of Mr. Smith and seek relief under La. C.C. art. 1953, et seq., arguing that Mr. Smith’s silence and/or misrepresentations caused them to consent to a sale that they otherwise would not have. Specifically, La. C.C. art. 1954 provides:

Fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill.
This exception does not apply when a relation of confidence has reasonably induced a party to rely on the other’s assertions or representations.

|fiNot surprisingly, Mr. Smith emphasizes the first paragraph of article 1954, arguing that Plaintiffs had access to the public records and could have easily ascertained the property described in the deed and that there were actually two lots rather than just one. On the other hand, Plaintiffs point to the second paragraph of the article which allows a cause of action in fraud, even where the complainant could have easily ascertained the truth, if a “relation of confidence has reasonably induced” the reliance of the complaining party.

Plaintiffs also cite La. C.C. art. 1948, et seq., complaining that Mr. Smith’s misrepresentations vitiate their consent to the sale. Consent may be vitiated by error, fraud or duress. La. C.C. art. 1948. Relief is available where the error concerns a cause without which the obligation would not have been incurred and that cause was or should have been known to the other party. La. C.C. art. 1949. Plaintiffs state that they would never have purchased only Lot 1, as Lot 2 was integral to the operation of the restaurant.

Factually, Plaintiffs contend that, when Mr. Smith met them on the property, they specifically told him that parking was a huge factor in their minds and he was well aware that parking was an important factor in their decision to purchase the property, as was the service entrance accessed on Lot 2.

Mr. DeMoss testified in deposition that the boundaries of the property were specifically discussed and included both lots. Mr. and Mrs. DeMoss testified that, at the inspection, the group was standing in the parking lot on 17Lot 2 and Mr. Smith clearly indicated that the parking lot was part of the property that would be “theirs.” According to Plaintiffs’ testimony, Mr. Smith pointed out the general boundary lines as the edges of the parking lot (Lot 2), the fence line along the back of the property and the highway frontage. Further, Mr. DeMoss testified that Mr. Smith represented to them that the parking lot was sufficient for 60-70 restaurant patrons, indicating his awareness that they were interested in purchasing both lots. Finally, Plaintiffs note, and Mr. Smith admitted, that he drove by the property frequently and had observed their continued and uninterrupted use and improvement of both lots for five years, never asserting ownership of, or asking for rent for, Lot 2.

In addition, Plaintiffs presented testimony that Mr. Smith led them to believe that they did not need legal counsel, as his attorney had worked for him for years, was familiar with the property and could “take care of everything.” Plaintiffs assert that they trusted Mr. Smith that the documents would accurately reflect the agreed-upon sale and property. Moreover, they trusted Mr. Smith’s representation of the visible property lines during the physical inspection of the property. There is some differing testimony among Plaintiffs as to each individual’s belief on whether Mr. Smith knew at the time of the sale that he was tricking them by only selling Lot 1 or if it was an “honest mistake” at the time of the sale that, when discovered by Mr. Smith, led him to assert ownership of Lot 2. Plaintiffs may be entitled to relief under either scenario, one via the theory of fraud and the other by |svirtue of mutual mistake justifying reformation of the deed. See Fontenot v. Lewis, supra.

Mr. Smith testified that he did not make reference to Lot 2 during any conversation with Plaintiffs. He denies pointing out boundary lines and could not recall any specifics of the conversations that took place at the site. He further denies advising Plaintiffs not to seek independent legal counsel and testified that he never spoke to Plaintiffs about legal counsel, the legal description of the property or anything related to closing the sale.

Mr. Smith acknowledges that there are disputed facts in this case, but claims they are not material. Mr. Smith characterizes the above described differences in the testimony as “minor discrepancies,” “minor inconsistencies” and “differences in minor points of testimony” that should not preclude summary judgment. We disagree. Our de novo review of the deposition testimony in this case reveals factual disputes central to the determination of whether the deed as written does not express the true intent of the parties or whether there were actionable misrepresentations on the part of Mr. Smith. We express no opinion on the merits of these potential claims. Rather, we simply hold that there are material issues of fact created in the differing testimony that are more appropriately decided by a trier of fact than on summary judgment.

Plaintiffs emphasize that the trial court’s reasons for judgment expressly state that it made credibility determinations and weighed the evidence, which is inappropriate on summary judgment. On a motion for summary judgment, the district court cannot make credibility determinations [sor weigh conflicting evidence. Sharp v. Parkview Care Center, Inc., 41,-341 (La.App. 2d Cir.9/27/06), 940 So.2d 724, citing Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226. While we are cognizant that our review is from the judgment, not the reasons for judgment, we agree with Plaintiffs that credibility calls and the weighing of evidence is essential for resolution of this suit. Furthermore, the determination of whether the evidence is strong or convincing is one which requires the trial court to make credibility determinations and to weigh evidence, both of which are inappropriate in a summary judgment proceeding. Britton v. Williams, 40,341 (La.App. 2d Cir.10/26/05), 914 So.2d 1151. Accordingly, we conclude that summary judgment was improper in this case.

DECREE

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Pine Hills Golf and Country Club, Inc., is reversed and the matter is remanded for further proceedings. Costs of this appeal are assessed to Pine Hills Golf and Country Club, Inc.

REVERSED AND REMANDED.

      . In Lewis, the court of appeal reversed the trial court’s grant of summary judgment where material issues of fact existed as to whether the parties intended a sale of real property to include a certain amount of acreage that was not reflected in the deed.