author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Christopher KIRKLAND, Appellant.
    No. 42,397-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Louisiana Appellate Project, by Sherry Watters, New Orleans, for Appellant.
    Paul J. Carmouche, District Attorney, John F. McWilliams, Jr., Dhu Thompson, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

I,This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana where, after a jury trial, Christopher Kirkland was convicted as charged of second degree battery and sentenced to 10 years’ imprisonment at hard labor as a second-felony offender. Kirkland now appeals. For the following reasons, the conviction and sentence is affirmed.

FACTS

On October 12, 2005, the defendant, Christopher Kirkland, and his girlfriend were in the parking lot of H & H Grocery, a convenience store in Caddo Parish, owned by husband and wife, Bobby and Ruth Coleman. Bobby, a 70-year old man, was in the store keeping Ruth company.

At some point, Kirkland went to purchase something from the store for his girlfriend. One store patron, Marla Fah-erty, testified that she was putting gas in her car when she saw Kirkland arguing with a woman in the store’s parking lot. Faherty explained that she saw Kirkland head toward the store and “shove” the door open, nearly hitting her 11-year-old son who was already inside. Because Kirkland shoved the door open and nearly hit the child, Ruth testified she ordered Kirkland to leave the store, saying “we don’t want you coming in here like that.” When Kirkland did not leave the store, Ruth ordered him to leave a second time.

According to Bobby, when Kirkland did not leave the store, Bobby said “she told you to leave,” but Kirkland refused again. At this point Bobby put his hand under Kirkland’s arm and escorted him out of the store. Kirkland came back inside the store and Bobby escorted him out once again, j 2This last time, Bobby had turned around and was walking back into the store. Faherty testified that she then saw Kirkland come into the store a third time, but this time Kirkland “had one fist raised in the air when he came through the door.” Ruth shouted “No!,” and when Bobby turned back toward the door to see what was wrong, Kirkland hit Bobby in the face. Kirkland then walked away.

Ruth called the Caddo Parish Sheriffs Office (“CPSO”), and deputies Jackie Winston and Richard Porter responded. Deputy Porter found Kirkland at his trailer home located down the street from the H & H Grocery. Kirkland told Dep. Porter that Bobby had hit him three times before Kirkland hit Bobby; Kirkland claimed that he hit Bobby in self-defense the third time. In the meantime, Bobby was transported by ambulance to the hospital. As a result of being hit in the face, Bobby suffered numerous broken bones in his face, great pain, and the swelling around his left eye caused him to have a loss of vision in that eye because of nerve damage. Both the CPSO and Ruth took pictures of Bobby’s injuries after the incident.

The state charged Kirkland with second degree battery. The case was called for a jury trial on May 11, 2006. In addition to the witnesses listed above, two of Bobby’s doctors testified about the nature and extent of the his wounds. After the state rested its case, Kirkland elected to testify. Kirkland testified that he did not believe that Faherty or her son were in the store. He further testified that the deputies lied about the statements Kirkland made at the time of the incident. Kirkland gave details of the 1 aconvictions in his criminal history as reflected in the rap sheet provided by the state. He then gave his version of the incident. Kirkland said that the store’s door was hard to open, so that is why he pushed the door open “a little harder than what [he] should have had.” He stated that Bobby then looked at him and ordered him out of the store, which he did not understand because Kirkland felt Bobby had been friendly in the past. Kirkland said that Bobby then grabbed his arm from the door and pushed him away. Kirkland explained that he did not understand what was happening, so he attempted to go into the store again, at which point Bobby again grabbed Kirkland’s arm and pushed him down the steps going into the store. The last time, Kirkland said that he opened the door and made yet another attempt to enter the store when:

[Bobby] grabbed the door, jerked it open and raised his fist at me. I thought that he was going to punch me, and when I-I was up on the top step when I touched his door. When I stepped back my balance come back, and he was up over me with his fist raised, and that’s when I swung, because he was about to swing at me. He started jerking at me, and then that’s when I swung, and it made contact.

The jury of six unanimously voted to convict Kirkland of second degree battery. Kirkland filed a motion for post verdict judgment of acquittal and new trial. The state filed a habitual offender bill charging Kirkland as a second felony offender. On September 28, 2006, the trial court denied Kirkland’s motions. On that same day, Kirkland opted to plead guilty to the second felony offender bill and was then sentenced to 10 years’ imprisonment at hard labor. This appeal ensued.

I JAW AND DISCUSSION

Sufficiency of the Evidence

Kirkland urges that the evidence was insufficient to convict him. 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.04/02/97), 691 So.2d 347, writ denied, 1997-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson 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, 2005-0477 (La.02/22/06), 922 So.2d 517; State v. Robertson, 1996-1048 (La.10/04/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.08/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

|fiLouisiana R.S. 14:34.1 provides, in part:

Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.
For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

A conviction for this offense requires proof that the offender had the specific intent to inflict serious bodily injury. State v. Welch, 615 So.2d 300 (La.1993).

Viewing the evidence in the light most favorable to the prosecution, the testimony from Ruth, Marla Faherty, the victim and the detectives reflected that 25-year-old Kirkland deliberately hit the 70-year-old victim in the face with sufficient force to break the bones in the victim’s skull. According to the medical report, the injury was sufficiently severe as to require the transport of the victim to the hospital by ambulance and the provision of extended emergency care. Further, the blood loss and swelling associated with injury also caused the victim to lose the sight in one of his eyes for a period of time. The jury had the opportunity to view the victim and Kirkland and to weigh the evidence based upon their observation.

In similar circumstances, a punch to the face has been held sufficient to uphold a verdict of second degree battery. State v. Landry, 2003-1671 (La.App. 4th Cir.03/31/04), 871 So.2d 1235. The multiple broken bones in the victim’s face and the resulting vision loss demonstrate the tremendous force used by Kirkland and are sufficient evidence to show that he had the specific intent to inflict serious bodily injury.

Self-Defense

Kirkland claims that his actions were justified because he acted in self-defense. Louisiana R.S. 14:19 provides:

The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this Section shall not apply where the force or violence results in a homicide.

The standard of proof when a defendant claims self-defense in a non-homicide case is a preponderance of the evidence. State v. Robinson, 37,043 (La.App. 2d Cir.05/14/03), 848 So.2d 642.

The issue of self-defense requires a dual inquiry, an objective inquiry into whether the force used was reasonable under the circumstances and a subjective inquiry into whether the force was apparently necessary. Robinson, supra, citing State v. McClure, 34,880 (La.App. 2d Cir.08/22/01), 793 So.2d 454. A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:21; Id.

In this case, the victim, his wife and the unrelated witness, Faherty, all testified that the victim had escorted Kirkland out of the store and had turned away from Kirkland before Kirkland reentered the store and punched the victim in the face. This evidence shows that Kirkland, not the victim, |7was the aggressor. Apart from Kirkland’s own testimony, there was no evidence to show that the use of force by Kirkland was necessary. The jury chose to credit the testimony of the other three witnesses over that of Kirkland, and we do not find it to be manifestly erroneous. Therefore, the evidence is legally sufficient to uphold the conviction, and this assignment of error is without merit.

Sanctions and Motion for Mistrial

Kirkland argues that the state’s untimely provision of (1) photos of the victim and (2) his complete criminal history violated his due process rights. Specifically, Kirkland alleges that the trial court erred in denying the Motion for Mistrial after the state twice withheld information that was essential to his preparation for the case.

The purpose of pretrial discovery procedures is to eliminate unwarranted prejudice to a defendant that could arise from surprise testimony. State v. Mitchell, 412 So.2d 1042 (La.1982). Discovery procedures enable a defendant to properly assess the strength of the state’s case against him in order to prepare his defense. State v. Roy, 496 So.2d 588 (La.App. 1st Cir.1986), writ denied, 501 So.2d 228 (La.1987). If a defendant is lulled into a misapprehension of the strength of the state’s case by the failure to fully disclose, such a prejudice may constitute reversible error. However, the failure of the state to comply with the discovery procedure will not automatically command reversal. State v. Ray, 423 So.2d 1116, 1118 (La.1982).

| x(l) Photos of the Victim

The day before trial, the state provided the defense with copies of the photos taken of Bobby right after the incident. Kirkland moved for sanctions against the state, asking the trial court not to allow the state to use the photos at trial. The state responded that the photos were given to the defense within “five minutes” of receiving them. In addition, the state noted that it was unaware of the existence of the photos taken by Ruth until the week prior to trial and that it had asked for a copy of these photos to give to Kirkland. The trial court expressed great concern over the timing of the disclosure but denied Kirkland’s motion for sanctions, explaining that it found no actual prejudice to Kirkland from the late provision of the photos. Kirkland objected to the trial court’s ruling.

On appeal, Kirkland argues that the state should have provided him with the photos of the victim sooner. The record reflects that the state asserted that it gave the photos to defense counsel shortly after receiving the photos on the day before trial. Kirkland asserts that if he had the photos in his possession prior to trial, he might have chosen to accept a plea offer rather than proceed to trial.

In State v. Marshall, 1994-0461 (La.09/05/95), 660 So.2d 819, 826, the supreme court explained:

Evidence is material only if it is reasonably probable that the result of the proceeding would have been different had the evidence been disclosed to the defense. A reasonable probability is one which is sufficient to undermine confidence in the outcome. This Court must provide a cumulative evaluation of the suppressed evidence, keeping in mind that [the defendant] does not have to show that, with the addition of the suppressed evidence, his trial would have resulted in acquittal or that there would be an insufficiency of the evidence to support a conviction. [The defendant] need only show that | ¡/‘disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable.” (Internal citations omitted).

The police report from this incident states that photos of the scene were taken. The record reflects that the state only received the photos shortly before trial, and the trial court accepted the state’s assertion that it provided the photos to the defense immediately after receiving them. In State v. Louviere, 2000-2085 (La.09/04/02), 833 So.2d 885, 896, cert. denied, 540 U.S. 828, 124 S.Ct. 56, 157 L.Ed.2d 52 (2003), the supreme court quoted Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), “[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.”

Here, the record does not show that the state suppressed the state-created photographic evidence, only that the prosecutor himself may or may not have been dilatory in obtaining the evidence. The photos taken by the victim’s family do not fall within the ambit of this rule because the family is not acting on behalf of the government. The record does not provide any further information about why the state-created photos were not produced earlier.

However, the record as a whole does not show that earlier disclosure of this evidence would have made a different result reasonably probable. The extent of the victim’s injuries was well documented in discovery; the state provided Kirkland with 108 pages of the victim’s medical records describing the victim’s injuries in complete detail. Because the medical evidence is extensive and was fully provided by the state, Kirkland was |infully apprised of the strength of the state’s case long prior to trial. Furthermore, the state explained, and the trial court agreed, that the photos were turned over to the defense promptly under the circumstances. This assignment of error is therefore without merit.

(¾) Rap sheet

The second alleged withholding of information came about during Kirkland’s cross-examination when the state went into some detail with him about his criminal history. In this exchange, the question of Kirkland’s complete criminal history arose. It was discovered during a bench conference that Kirkland had another conviction that was not included in the rap sheet provided by the state. This conviction, a 2004 simple battery offense, was apparently not known to the defense counsel. The state explained that the conviction was not known until the morning of trial and was received from the district attorney’s internal file tracking sheet. Kirkland made a motion for a mistrial, urging that the state had again violated its discovery obligation. The state countered by saying that no evidence about the simple battery conviction had been presented to the jury and that it would move on with its questioning and not mention the matter. Defense counsel argued that had she known about the conviction, she “probably would have developed a different strategy” and “may not have decided to put my client on the stand” because of the similarity between the prior offense of simple battery and the charged offense of second degree battery. The trial court again expressed its concern about the lack of disclosure by the state of the additional conviction, and observed that “it would have affected possibly how defense proceeded in its strategy in | presenting its side of the case or its case in chief in putting Mr. Kirkland on the stand.” However, the trial court denied the motion for mistrial, finding that the state’s agreement not to put the information before the jury cured the error. Kirkland objected to the trial court’s ruling.

The relevant statutes include La. C. Cr. P. art. 717 which provides, “upon motion of the defendant, the court shall order the district attorney or the appropriate law enforcement agency to furnish to defendant a copy of any record of his criminal arrests and convictions that is in their possession or custody.” Louisiana C. Cr. P. art. 729.3 provides:

If, subsequent to compliance with an order issued pursuant to this Chapter and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspection.

Finally, Louisiana C. Cr. P. art. 729.5(A) provides:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

The failure to provide the defendant with an accurate copy of his rap sheet may in some circumstances constitute reversible error. For example, Kirkland relies on State v. Meshell, 392 So.2d 433, 435 (La.1980), where the defendant was convicted of cruelty to a juvenile. In Meshell, the defendant, prior to trial, was told that the state had no rap sheet, but during trial and after the state had rested its case, the state disclosed to the defense |12that it knew the defendant had a conviction for child abuse. The defense counsel complained of the late disclosure and the defendant did not take the stand. On review, the supreme court reversed the conviction and remanded the case for a new trial, stating:

If the state had furnished defense counsel with a copy of defendant’s rap sheet prior to trial, counsel might have attempted to negotiate a plea bargain by pleading his client guilty.... Most important, we agree with defense counsel that the state’s belated compliance with his request for discovery effectively denied defendant the right to take the stand. Defense counsel stated that, pri- or to the state’s furnishing him with a copy of defendant’s rap sheet, he intended to place defendant on the stand as his sole witness; however, in view of this new development, he felt that he could not do so. He argues that had he known of defendant’s rap sheet prior to trial, he would have undertaken a different defense strategy.

Meshell, at 435.

In State v. DeMoss, 582 So.2d 964 (La.App. 2d Cir.1991), this court reached a similar conclusion and reversed the conviction of a defendant who had been impeached with evidence of prior convictions over the objection of his attorney that the state failed to provide and was unable to demonstrate that it had furnished the defendant with a copy of his rap sheet.

By contrast, in State v. Morris, 28,312 (La.App. 2d Cir.08/21/96), 679 So.2d 482, this court upheld a conviction distinguishing Meshell and DeMoss in a case where the defendant was convicted after a bench trial where the state failed to provide the defendant with his rap sheet. In Morris, after the state elicited from the defendant that the he was on probation, defense counsel objected to the lack of the requested rap sheet. The trial court ordered that no information about the defendant’s convictions be admitted and stated that it was not considering the | ^defendant’s prior criminal conduct in judging his credibility. On appeal this court stated:

The state’s failure to comply with discovery procedures which results in prejudice to the defendant constitutes reversible error. However, the state’s failure to comply with the discovery procedure will not automatically command reversal. The defendant must show prejudice in order for his conviction to be reversed. Sanctions for failure to comply with discovery motions are solely within the discretion of the trial judge and reversal is warranted only when there is an abuse of discretion and prejudice is shown. Mistrial is a drastic measure and is warranted only when substantial prejudice will otherwise result to the defendant sufficient to deprive him of a fair trial. Determining whether such prejudice has resulted is within the sound discretion of the trial judge. It is not mandatory that the trial court declare a mistrial when it is brought to the court’s attention that one of the parties has not complied with a discovery request. As stated above, a mistrial is only warranted if a party is prejudiced by the other party’s failure to comply with the discovery request. (Internal citations omitted).

Morris, at 484.

In the instant case, after a review of the entire record, we are convinced that the late disclosure of this conviction, although a violation of La. C. Cr. P. art. 717, did not prejudice Kirkland or deprive him of a fair trial. Unlike Meshell, Kirkland was clearly allowed to testify on his own behalf without being subject to cross-examination for the offense that was not listed on the rap sheet. More importantly, Kirkland’s 2004 simple battery conviction was never put before the jury, and therefore jury taint was not an issue. Kirkland was never impeached nor could the jury have im-permissibly judged his character as a result of the conviction because the jury was not aware of it. We note that Kirkland had other convictions and opted to testify to tell his side of the story. Clearly, his right to take the stand in his defense was not compromised. The state should have provided 114the evidence to the defense as soon as the information was discovered, but the failure to do so did not deprive Kirkland of a fair trial.

Excessive Sentence

In his final assignment of error, Kirkland urges that his 10-year hard labor sentence is excessive and unjustified in light of the circumstances. Louisiana R.S. 14:34.1 provides, in part, “Whoever commits the crime of second degree battery shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both.” As a second felony habitual offender, Kirkland was sentenced under La. R.S. 15:529.1(A)(l)(a) which states:

If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction....

Kirkland was thus subject to a hard labor sentence between 2⅜ years and 10 years. His 10-year sentence is the maximum under the statute.

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.06/24/98), 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.01/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.03/11/05), 896 So.2d 57 and 2004-2380 (La.06/03/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 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.03/01/00), 754 So.2d 392, writ denied, 2000-1467 (La.02/2/01), 783 So.2d 385.

In this case, the record shows that the trial court considered a pre-sentence investigation (“PSI”) and took cognizance of Kirkland’s age, criminal history, the victim’s age, the severity of the victim’s injuries and the circumstances of the crime. Kirkland has a significant prior criminal history as reflected in the PSI, including a long history of misdemeanor offenses and two prior felony convictions. At least two of Kirkland’s prior probationary periods were terminated unsatisfactorily. The 25-year-old defendant hit the 70-year-old shopkeeper in the face, causing numerous broken bones and loss of vision. This is among the most serious consequences that may result from second degree battery.

^Second, a sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. 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.01/15/02), 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.04/02/97), 691 So.2d 864.

This defendant has a long history of violating the law and in this instance had several opportunities to simply turn and walk away from the volatile situation of his own making rather than resorting to violence. Nothing about the 10-year sentence is shocking to the conscience or grossly disproportionate.

Errors Patent

In accordance with La. C. Cr. P. art. 920, all appeals are reviewed for errors patent on the face of the record. A review of the record herein reveals that the trial court sentenced Kirkland immediately after denying his motion for new trial, technically a violation of La. C. Cr. P. art. 873. When the defendant makes no showing of prejudice, the trial court’s failure to observe article 873 is a harmless error, and there is no need to remand for resentencing. State v. Moossy, 40,566 (La.App. 2d Cir.03/10/06), 924 So.2d 485. Kirkland was not prejudiced by the trial court’s failure as he made l17no objection on appeal, and, further, the PSI was furnished at the time of sentencing.

CONCLUSION

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

AFFIRMED.

      . As an aside, there was another source for Kirkland's criminal history — Kirkland himself surely was aware of his own criminal record.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Darrell HOLLINGSWORTH, Appellant.
    No. 42,317-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.
    James E. Beal, Louisiana Appellate Project, Jonesboro, for Appellant.
    Paul J. Carmouche, District Attorney, John Ford McWilliams, Jr., Laura O. Ful-co, Philip J. House, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   GASKINS, J.

Following a bench trial, the defendant, Darrell Hollingsworth, was convicted of attempted second degree murder. After being found to be a third felony habitual offender, he was sentenced to 55 years at hard labor without benefit of probation, parole or suspension of sentence. He appeals. We affirm the defendant’s conviction and sentence.

FACTS

On January 25, 2005, the victim, Tyrone Chambers, sold gasoline to Dwayne Mosley in exchange for crack cocaine. The gas affected the ability of Mosley’s car to operate properly, and Mosley contacted the victim about the problem. Although the victim attempted to remove the gasoline from Mosley’s vehicle several times, Mosley became angry. Mosley, along with the defendant, began beating the victim. At one point, the victim attempted to flee the fight by entering the property of Don Foster. However, Foster refused to allow the victim in his house; his elderly, sick mother was inside and he was concerned about her welfare.

The victim was attacked again. The defendant struck the victim with an object, possibly a stick. The victim heard the defendant say, “Beat the bitch to death.” Foster saw the defendant standing close to the victim with a container. In less than a minute, the victim, who had been doused with gasoline, was on fire. The victim received burns over 80 percent of his body and was hospitalized for more than four months.

The defendant and Mosley were arrested and charged with attempted second degree murder. Following a bench trial, Mosley was acquitted after | ¡.the trial judge found that he had left the scene of the attack before the victim was set on fire. However, the defendant was convicted as charged. His motions for new trial and post verdict judgment of acquittal were denied.

The state filed a habitual offender bill of information against the defendant, asserting that the defendant had two prior convictions for possession of Schedule II controlled dangerous substances. Following a hearing, the trial court adjudicated him to be a third felony offender. As such, he was sentenced to 55 years at hard labor without benefit of probation, parole or suspension of sentence. His motion to reconsider was denied.

The defendant appealed.

SUFFICIENCY OF EVIDENCE

Law

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. 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.9/5/03), 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, 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. The reviewing court accords great deference to the judge or jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Morrison, 40,852 (La.App. 2d Cir.4/12/06), 927 So.2d 670.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.2/5/99), 737 So.2d 747.

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 to support a requisite factual conclusion. State v. Burd, 40,480 (La.App. 2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

|4In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App. 2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520; State v. Youngblood, 41,976 (La.App. 2d Cir.5/9/07), 957 So.2d 305. Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Davis, 27,961 (La.App. 2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12; State v. Zeigler, 40,673 (La.App. 2d Cir.1/25/06), 920 So.2d 949.

To sustain a conviction for attempted second degree murder, the state must prove that the defendant intended to kill the victim and committed an overt act tending toward the accomplishment of the victim’s death. State v. Davis, 41,245 (La.App. 2d Cir.8/9/06), 937 So.2d 5. To be guilty of attempted murder, a defendant must have the specific intent to kill; the mere intent to inflict great bodily harm is insufficient to convict a defendant of attempted first or second degree murder. State v. Hailey, 41,897 (La.App. 2d Cir.2/28/07), 953 So.2d 979. 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. 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. Dorsey, 41,418 (La.App. 2d Cir.9/20/06), 939 So.2d 608, writ denied, 2006-2686 (La.6/1/07), 957 So.2d 174.

| RUnder the provisions of La. R.S. 14:24, all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

Discussion

The defendant argues that the evidence failed to prove that he was guilty of the attempted second degree murder of the victim. He claims that it is unclear from the record whether he was a perpetrator or a good Samaritan trying to help the victim.

As the trial court correctly found, the evidence presented at trial overwhelmingly demonstrated that the defendant was one of the victim’s attackers. The assault occurred after the victim sold bad gasoline to the defendant’s associate, Mosley. A female witness identified both Mosley and the defendant as being among the men beating the victim. She also testified that during the beating, she heard Mosley yelling at the victim that he had put bad gasoline in Mosley’s car. The victim testified that, before he was beaten into unconsciousness, he heard the defendant say, “Beat the bitch to death.”

Foster, a disinterested witness who lived near the site of the attack, testified at trial that he saw the defendant participate in the attack on the victim. While Foster’s trial testimony was less forceful than his testimony at the preliminary examination, it established the defendant’s role in the | (¡brutal assault on the victim. Foster observed the defendant standing in close proximity to the unconscious victim with a container. (A five-gallon gas can was later recovered at the scene by the police.) Another man whom Foster was unable to identify was standing with the defendant near the victim. Foster heard people saying, “No, no.” He then heard a “whooshing” sound and he saw that the victim was engulfed in flames.

Based upon the direct and circumstantial evidence — which showed that the defendant was standing over the unconscious victim holding a gas can just seconds before the victim was engulfed in flames and mere minutes after the defendant participated in a vicious beating of the victim and declared an intent to kill the man — we find that the state proved beyond a reasonable doubt that the defendant was guilty of the attempted second degree murder of the victim.

This assignment of error is without merit.

SENTENCE

The defendant contends that the trial court erred in denying him the benefit of parole eligibility when it imposed sentence upon him.

Law

A conviction of attempted second degree murder is punishable by imprisonment at hard labor for not less than 10 nor more than 50 years, without benefit of parole, probation or suspension of sentence. La. R.S. 14:30.1(B) and 14:27(D)(1)(a); State v. Small, 37,134 (La.App. 2d Cir.6/27/03), 850 So.2d 1019, writ denied, 2003-2202 (La.1/30/04), 865 So.2d 75.

|7As a third felony offender, the defendant faced a sentencing range of not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction, or 33 to 100 years. See La. R.S. 15:529.1(A)(1)(b)(i).

La. R.S. 15:529.1(G) provides that any sentence imposed under the statute’s multiple offender provision “shall be without benefit of probation or suspension of sentence.” However, the restrictions on parole eligibility imposed on multiple offender sentences under La. R.S. 15:529.1 “are those called for in the reference statute.” State v. Bruins, 407 So.2d 685, 687 (La.1981); State v. Tate, 1999-1483 (La.11/24/99), 747 So.2d 519; State v. Hill, 35,013 (La.App.2d Cir.9/26/01), 796 So.2d 127.

Since the reference statutes provide for the penalty for attempted second degree murder to be served without benefit of parole, probation or suspension of sentence, the trial court correctly denied the defendant the benefit of parole when it sentenced him as a third felony offender.

This assignment of error lacks merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Several other men were involved in the attack. At the time of trial, an arrest warrant was still outstanding for another suspect.

      . At the preliminary examination, he testified that the container the defendant was holding was a gas can and that he saw the defendant pour gasoline on the victim.


author: BROWN, Chief Judge.

text:
    Linda WILLIAMS, Plaintiff-Appellant v. CITY OF MANSFIELD, Defendant-Appellee.
    No. 42,319-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Davis Law Offices, LLC, by S.P. Davis, Sr., for Appellant.
    Stamey & Miller, LLC, by Joseph B. Stamey, Erika F. Cedars, Natchitoches, for Appellee.
    Before BROWN, STEWART, and DREW, JJ.
   BROWN, Chief Judge.

| plaintiff, Linda Williams, sued the City of Mansfield for injuries she received when she stepped into a hole while walking across a ditch. At the close of plaintiffs case, the trial court granted defendant’s motion for directed verdict (the proper motion in a case tried by the court is one for involuntary dismissal per La. C.C.P. art. 1672 B). For the following reasons, we affirm.

Facts

On December 11, 2004, Linda Williams took her children and grandchildren to the Mansfield Christmas parade. They walked to the parade from plaintiffs father’s house on Pea Street, turning on Van Burén and then up to Franklin Street where the parade would pass, a distance of about three blocks. The parade started at 11:00 a.m. When the parade ended plaintiff and the children walked east on Franklin Street to its intersection with Pea Street intending to turn left or north on Pea Street. There was no sidewalk or paved shoulder on Franklin Street and pedestrians would walk along a grassy area at the edge of Franklin Street. This grassy area declined into a ditch with concrete culverts. At the northwest corner of Franklin and Pea Streets two culverts had separated at the joint. Plaintiff, who was trying to catch up to her grandchildren, attempted to cross over the ditch and stepped into the separation/hole. A fire station is located across the street and Mansfield Fire Chief Lee Shavers assisted Ms. Williams in getting her foot out of the hole. No one actually testified as to whether the culverts were covered with dirt and grass; however, plaintiff testified that | ¡.she would have been able to see the separation/hole if she had been looking at the ground.

After the accident, Ms. Williams complained of neck pain. On the day of the accident, Ms. Williams sought treatment at the DeSoto Medical Center Emergency Room. Plaintiff claims that her leg was swollen for a week after the accident and had a “sink” in it. Ms. Williams underwent physical therapy and saw Dr. Dhar-am Gurwara.

The accident was witnessed by Ricky Patton, who lived on the northwest corner of Franklin and Pea Streets. Patton testified that when he mowed his yard he would also cut the grass up to the edge of Franklin and he never complained to the City about its failure to maintain the area. Further, Patton testified that he never noticed the separation/hole in the culvert before Ms. Williams’ accident. Patton also testified that the City, after Ms. Williams’ accident, repaired the culvert and began mowing the area.

James Ruffin, the Director of Public Works for Mansfield, testified that the City had no written plan for inspection of streets and drainage; however, all complaints received by the City would be logged in and all repairs made thereafter noted. Ruffin testified that the City had received no complaints concerning the area or culvert in question. In addition, Ruffin testified that, upon receiving notice of the accident, the City erected a barrier around the hole and repaired the hole within a few days after the accident.

IsMs. Williams sued the City, alleging that the City had custody of the area and was strictly and negligently liable for her injuries. Following the conclusion of Ms. Williams’ case, the City moved for an (involuntary dismissal), arguing that plaintiff failed to prove the City had actual or constructive notice, or that the culvert created an unreasonable risk of harm as required by La. R.S. 9:2800.

The trial court granted the City’s motion for (involuntary dismissal) stating in an oral opinion:

... one thing that neither of you talked about is the fact that this area is not an area that is maintained or designated for human passage.... This is not part of the street where people travel. This is not part of the sidewalk.... This is a ditch. This is not where people are supposed to go.

Discussion

In an action tried by the court, a motion for involuntary dismissal is appropriately made at the close of the evidence offered by the opposing party and requires the judge to evaluate the evidence and render a decision based on the preponderance of the evidence without any special inference in favor of the party opposing the motion. La. C.C.P. art. 1672 B; Sepulvado v. Time It Lube, Inc., 39,353 (La.App. 2d Cir.03/02/05), 895 So.2d 729.

The effect of La. R.S. 9:2800 is to eliminate the distinction between strict liability and negligence claims against public entities by requiring proof of either actual or constructive notice of a defect before a public entity can be held liable for damages caused by the defect. Jones v. Hawkins, 98-1259 (La.03/19/99), 731 So.2d 216. Liability is limited to cases in which the plaintiff can show that the public entity: (1) exercised care and |4custody of the defective thing; (2) had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence; (3) had a reasonable opportunity to remedy the defect; and (4) failed to remedy the defect. Cunningham v. City of Shreveport, 39,873 (La.App. 2d Cir.08/09/05), 908 So.2d 1214, writ denied, 05-2391 (La.04/17/06), 926 So.2d 510. The district court’s findings pursuant to La. R.S. 9:2800 are subject to manifest error review. Graves v. Page, 96-2201 (La.11/07/97), 703 So.2d 566. Under the manifest error standard, the appellate court reviews the entire record to determine whether the trial court’s findings were manifestly erroneous or clearly wrong. Stobart v. State through DOTD, 617 So.2d 880 (La.1993).

The issue in this case is whether the city had actual or constructive notice of the defect. Under La. R.S. 9:2800, constructive notice is defined as the existence of facts which infer actual knowledge. This definition allows for the inference of actual knowledge to be drawn from the facts demonstrating that the defective condition had existed for such a period of time that it should have been discovered and repaired if the public body had exercised reasonable care. Whitaker v. City of Bossier City, 35,972 (La.App. 2d Cir.04/05/02), 813 So.2d 1269; Hammons v. City of Tallulah, 30,091 (La.App.2d Cir.12/10/97), 705 So.2d 276, writs denied, 98-0407, 98-0440 (La.03/27/98), 716 So.2d 892, 894; Lutz v. City of Shreveport, 25,801 (La.App. 2d Cir.05/04/94), 637 So.2d 636, writ denied, 94-1487 (La.09/23/94), 642 So.2d 1294.

| sIn Jones, supra, the supreme court held that a city’s lack of a methodology to inspect its property does not impute constructive knowledge of defects. However, Ms. Williams argues that the present fact pattern more closely resembles St. Paul v. Mackenroth, 246 La. 425, 165 So.2d 273 (1964), wherein the supreme court held the City of New Orleans liable because the defect had existed for so long that the city should have discovered it through the exercise of its duty of reasonable care and prudence, not because the city had no plan for inspection. In the instant case, Ms. Williams argues that the City failed to exercise any responsibility for the area surrounding the hole and that the grass obscured the hole, thus creating a hidden danger.

We note that Ricky Patton testified that, before the accident, he mowed the area in question and there was no evidence that grass actually covered the culverts. In addition, Ms. Williams testified that she would have been able to see the hole had she been looking at the ground. We also note that St. Paul, supra, was decided by the supreme court 43 years ago, before critical changes to Louisiana’s tort laws, particularly in the area of strict liability, were made.

Upon a full review of the record, we cannot find any error on the part of the trial court. Ms. Williams offered no evidence to contradict the trial court’s finding that this was a ditch and “not where people are supposed to go.” The City received no complaints on the condition of the culvert. These facts being undisputed, the trial court committed no error in holding that Ms. Williams failed to prove that the City had actual or constructive | ^knowledge of the separation in the culvert as required by La. R.S. 9:2800. Failure to meet any one element of La. R.S. 9:2800 is fatal to a negligence claim against a public entity. Netecke v. State, ex rel. DOTD, 98-1182 (La.10/19/99), 747 So.2d 489.

Conclusion

For the reasons set forth above, the trial court’s judgment dismissing plaintiffs action is AFFIRMED. Costs are assessed to plaintiff-appellant, Linda Williams.

      . A motion for a directed verdict under La. C.C.P. art. 1810 applies in a civil jury trial.


author: PEATROSS, J. BROWN, C.J.,

text:
    STATE of Louisiana, Appellee, v. Ryan SMITH, Appellant.
    No. 42,302-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.
    Rehearing Denied Sept. 13, 2007.
    Opinion Dissenting from Denial of Rehearing Sept. 13, 2007.

      Margrett Ford, for Appellant.
    Paul J. Carmouche, District Attorney, Lea Hall, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS & MOORE, JJ.
   PEATROSS, J.

hA jury found Defendant, Ryan Marie Smith, guilty of armed robbery. The trial court sentenced Defendant to 12 years at hard labor without benefit of parole, probation or suspension of sentence. Defendant now appeals. For the reasons set forth below, we modify Defendant’s conviction and remand for resentencing.

FACTS

On August 9, 2005, during heavy rain, Tammy Rogers pushed her shopping cart to her car at the Mansfield Road Wal-Mart in Shreveport. She testified that, as she was placing bags in her vehicle and while holding an umbrella, a Hispanic man got out of a small, white, four-door vehicle and approached her. The man grabbed Ms. Rogers’ purse from the shopping cart, ran back to his vehicle and then sped away. Ms. Rogers was able to see at least two other people in the vehicle, but was unable to give a more complete description of the suspect because the incident happened so quickly. She also was unable to tell if the man was holding anything because his hands were down at his side.

On August 11, 2005, detectives in the white collar crime division of the Shreveport Police Department received a telephone tip informing them that a white female and a Hispanic male, driving a white Kia Rio, were responsible for passing stolen checks at a local Kentucky Fried Chicken (“KFC”) restaurant. In a subsequent call, the detectives received an address (8953 Twelve Oaks Drive) of where the car could be found. Detectives located the vehicle at the address and, after questioning the homeowner, |2were informed that the car was being driven by the homeowner’s niece, Ryan Marie Smith and her boyfriend, Raul Jorge Castro (“Castro”).

While on the scene, the detectives learned that the vehicle had been reported stolen from Glen Forest, Arkansas on August 4, 2005. Once the detectives learned that the vehicle was stolen, it was searched and property belonging to Tammy Rogers was discovered in the vehicle, in addition to several guns. Defendant and Castro were initially arrested for possession of stolen property. After continued investigation, the detectives were able to verify the robbery of Tammy Rogers. Both Defendant and Castro were subsequently charged with the armed robbery of Ms. Rogers.

Castro pled guilty as charged to armed robbery, while Defendant pled not guilty and elected to proceed to a jury trial in the matter. A jury found Defendant guilty as charged. As stated, the trial court sentenced her to 12 years at hard labor without benefit of probation, parole or suspension of sentence.

DISCUSSION

Defendant attacks her conviction on two grounds. In her first assignment of error, she asserts that the evidence was insufficient to support a conviction of armed robbery because the State failed to prove that the perpetrators used force or intimidation. In her second assignment of error, Defendant submits that the evidence was insufficient to convict her as a principal to armed robbery. For reasons discussed below, we find that Defendant was a principal, but only to the crime of simple robbery, and find |3that the evidence is sufficient to support a finding of use of force or intimidation. We, therefore, initially discuss the second assignment of error first.

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, writ denied, 02-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.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.

| ¿Principal to the Crime

Defendant argues that the jury was not presented with evidence beyond a reasonable doubt to prove that she was a principal to armed robbery. Defendant alleges that she had no knowledge that a weapon would be used in the commission of the offense. The State alleges that Defendant’s claim that she was unaware that Castro would use a gun in the commission of the robbery was a determination to be made by the jury in evaluating the credibility of the witnesses. Additionally, the State argues that Defendant did not protest Castro’s use of the weapon and that Defendant actively used the proceeds from the robbery.

La. R.S. 14:24 provides that:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

All principals to a crime are not necessarily guilty of the same grade of offense. State v. Doucet, 93-1523 (La.App. 3d Cir.5/4/94), 638 So.2d 246. An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427; State v. King, 06-554 (La.App. 5th Cir.1/16/07), 951 So.2d 384. To be a principal to armed robbery, the State must prove beyond a reasonable doubt that a defendant knew that her co-offender would arm himself with a dangerous weapon. State v. Doucet, supra.

|sThe State argues that its witnesses established that Defendant was sufficiently involved in the planning and execution of the robbery to be properly held as a principal.

Ms. Rogers testified she was in the parking lot of Wal-Mart on August 9, 2005, loading bags into her SUV. Since it was raining quite heavily, she was holding an umbrella as she placed her items in the vehicle. When a small white vehicle pulled up near her, Ms. Rogers initially believed the person might need her shopping cart. A Hispanic male jumped out of the vehicle, grabbed Ms. Rogers’ purse from her shopping cart and ran back and jumped into the waiting vehicle, which then sped off. Ms. Rogers noted that there were others in the vehicle, but was unable to give any further description of the robber as the incident happened so quickly. Ms. Rogers testified that she saw the robber holding his hand down, but she was unable to tell if he was holding anything.

According to her testimony, Ms. Rogers’ stolen purse contained a small amount of cash (probably less than $10), her wallet with a debit card, and at least two credit cards, her checkbook, social security cards, a cell phone and other various items. Some of the stolen items were later returned to Ms. Rogers. Several checks were written on Ms. Rogers’ account; however, she incurred no financial loss as a result of the forgeries. She identified photocopies of various documents as items that were in her purse at the time of the robbery. She also identified a picture of the stolen Kia Defendants were driving as resembling the getaway car.

| fiCody Duos, Defendant’s 17-year-old cousin, testified that Defendant and her boyfriend, Castro, were staying at his house on August 9, 2005. Sometime in the early evening, Cody and his younger brother Dillon rode to Wal-Mart with Defendant and Castro “to get some stuff to eat or some groceries.” According to Cody, he and Dillon sat in the back seat of the car while Defendant drove with Castro sitting in the passenger seat. Prior to leaving Cody’s house, Castro talked about taking the license plate off of the car in which they were riding.

Cody testified that, once they arrived at Wal-Mart, they began driving up and down the aisles of the parking lot. After a while, Castro got into the back seat of the car. As they rode around, both Defendant and Castro discussed looking for people with umbrellas. After circling the parking lot for another minute or two, they spotted the victim and noted that she would be an easy snatch. According to Cody, Defendant stopped the vehicle and both Defendant and Castro got out of the vehicle and took the victim’s purse. Cody noticed Castro had a gun in his hand at the time he got out of the car.

Also, according to Cody, Castro pointed the gun at the victim “like a little above her head just a little bit” as the bag was snatched. Once Defendant and Castro returned to the vehicle, Defendant drove away. Defendant then drove to an area near Colquitt Road where the purse was thrown into a wooded area. Cody testified that Defendant asked both him and his younger brother to throw the purse into the woods, but both of them 17refused to do so. After leaving the wooded area, Defendant drove around and got lost before stopping to ask for directions.

Prior to returning home, Cody recalled making stops at a KFC where one of the checks from the victim’s purse was used to purchase chicken. The group also went to AutoZone and then to a bank where Defendant attempted to use the victim’s cards. Defendant then drove back to Cody’s home. At some point after the robbery, Defendant and Castro both threatened to harm Cody, Dillon and their family if they told about the incident.

Detective Alan Davidson of the Caddo Parish Sheriffs Office testified that he was assigned to the white collar crime division when his sergeant received an anonymous phone call regarding stolen checks being issued at KFC. The caller described the individuals involved as a Mexican male and a redheaded female and the car as a white Kia. Along with others, Detective Davidson went to the address given by the tipster where they made contact with the homeowner, Calla Anderson, Defendant’s aunt. During the search of the white Kia, several guns were found, as well as a “Crown Royal bag” containing documents bearing the name “Tammy Rogers.”

Detective Chris Knighton, also of the Caddo Parish Sheriffs white collar crime task force, testified that he was involved in the investigation of the robbery. According to Detective Knighton, he and other detectives made contact with Defendant at 8953 Twelve Oaks. Detective Knighton was responsible for obtaining information on the stolen Kia and |sinterviewing Cody. Detective Knighton was also responsible for recovering the victim’s stolen purse based on the information he had obtained from Cody.

The State also called Castro to testify. In addition to his testimony, the parties entered into evidence by stipulation an affidavit of acknowledgment executed by Castro. Neither party attested to the veracity of the document. The document essentially states that Castro acted alone in the commission of the crime and that Defendant was not involved. The parties also entered into evidence by stipulation a copy of the guilty plea transcript wherein Castro pled guilty to the instant charge.

Although called by the State, Castro testified that Defendant was unaware that he was planning to rob the victim, despite the fact that he had indicated that Defendant was involved when he pled guilty to the charges the day prior. Castro maintained that he was unsure of what he had admitted to during his guilty plea and stated, “I wasn’t getting any counsel to the best of my ability.” Castro also testified, “I had no use of force, intimidation, or nothing toward the victim.” After a lengthy direct examination, Castro admitted that Defendant was involved in the offense, that she knew the robbery would take place and that a gun was used during the commission of the offense. Later, Castro stated that Defendant’s only involvement was being in the vehicle, but he was the one who actually took the purse. On cross-examination, Castro again admitted his guilt in the offense and reiterated that he executed the affidavit of acknowledgment denying Defendant’s involvement.

| flDetective Michael McDaniel testified regarding his involvement in the investigation of the offense. Detective McDaniel basically reiterated the testimony of the other investigating officers that, after receiving a tip, Defendant and Castro were found at a residence in possession of several guns and the victim’s property, in addition to a stolen vehicle. Detective McDaniel also testified that he interviewed Defendant at his office, which was recorded by hidden camera and was played for the jury.

As seen in the recording, after Defendant was advised of her Miranda rights, she was questioned regarding the robbery. Defendant initially denied her involvement in the crime, but later acknowledged that she was involved. Defendant indicated that the car she traveled in was not stolen, but was lent to them by a friend, Tracy Kennedy. After several minutes of questioning, however, Defendant admitted that a purse was stolen from a lady at Wal-Mart. Defendant stated, “We took a lady’s purse.”

When further questioned, Defendant denied using a gun during the robbery or having any knowledge that a gun was used. Defendant indicated that, at the time the purse was stolen, her cousin Cody was driving and his brother Dillon was in the front passenger seat. According to Defendant, everyone in the car knew that the robbery was going to take place. Defendant stated that Castro exited the vehicle, went around to the back of the car and removed the purse from the shopping basket. Defendant heard the victim scream, “Give me back my purse.” After driving away from the scene, Defendant recalled Cody driving to a neighborhood where the purse was dumped.

11f)After the presentation of the State’s case in chief, Defendant testified on her own behalf. On the day of the robbery, Defendant and Castro, along with Defendant’s cousins, Cody and Dillion, left her aunt’s house traveling to Wal-Mart. She drove until they got to Wal-Mart when she let Cody drive at his request. She did not remember a discussion or planning of the robbery, but “it happened.”

Defendant’s account of the event was, “We stopped the vehicle. Castro got out with the gun in his hand, stole the purse out of the lady’s buggy, jumped back in the car and we took off.” Cody then drove to a neighborhood where either Cody or Dillon got out of the car and threw the purse into the woods. According to Defendant, she only handed the victim’s check to the cashier at KFC, but she did not write the check. Defendant testified that she never intended that anything happen other than going to Wal-Mart for food.

On cross-examination, Defendant testified that she saw Castro with a silver gun during the robbery of Ms. Rogers. Defendant explained that she initially lied to police because she knew the consequences of being in the vehicle at the time the robbery was committed. Defendant also acknowledged, “I was coming off of ice,” at the time she made statements to the investigating officers. Defendant consistently denied intentionally robbing the victim.

By the testimony of Cody, the State established that Defendant drove to the scene of the offense and cruised the parking lot looking for an “easy” | nvictim. The testimony established that Defendant suggested that they look for an easy victim to rob. If believed by the jury, the testimony of the witness indicates that Defendant was the driver of the getaway vehicle and that Defendant was involved in the planning, commission and, later, an attempted coverup of the offense. By all aspects of the definition of principal to the offense, Defendant could be found guilty as a principal based on any of her actions before, during and after the offense.

In addition to the testimony of the witnesses, the jury was also presented with the taped confession of Defendant wherein she acknowledged her participation in the offense. During her trial testimony, Defendant denied her involvement in the commission of the offense. She indicated that she had been under the influence of drugs for several weeks prior to making the Statement and that she was unaware of what she was saying at the time of the confession. Defendant also testified that she was unaware of the fact that a weapon would be used during the crime.

The jury chose to further disregard Castro’s testimony that Defendant did not participate in the commission of the offense or that she lacked any knowledge that the offense would be committed. During Defendant’s trial, Castro initially testified that Defendant had not participated in the commission of the offense; and, when queried about this change from his statement at his guilty plea hearing the previous day, he indicated he had not understood what he was saying when he positively indicated that both he and Defendant committed the robbery. Later in his testimony, Castro acknowledged that Defendant had in fact participated in the robbery.

|1?,The trier of fact was responsible for determining the credibility of the witnesses in this case; and, apparently, the jury chose to believe the testimony of Defendant’s young cousin, Cody, as opposed to Defendant and Castro. Such credibility determinations are within the province of the jury and should not be disturbed by this court. The fact that Castro’s testimony vacillated on numerous occasions does not negate the other evidence presented that established Defendant’s participation in the planning and commission of the offense. We find, therefore, that Defendant was a principal to the robbery.

The evidence is insufficient, however, to establish that Defendant had any knowledge or intent that Castro would arm himself with a dangerous weapon. In her testimony, Defendant denied that she had any knowledge that Castro planned to arm himself with a weapon or that a weapon was even present in the car before the event, nor do any of the other witnesses provide any evidence that Defendant knew or anticipated that Castro would arm himself with a weapon. She did not have the requisite mental state, therefore, to be a principal to armed robbery.

Defendant did knowingly participate in planning all other aspects of the robbery. As explained below, the evidence supports a conviction of simple robbery for this offense as it concerns Defendant. In accordance with La. C. Cr. P. art. 821, this court, therefore, modifies the verdict rendered by the jury and renders a conviction on the lesser included 11sresponsive offense of simple robbery. We remand this case to the trial court for resentencing in accordance with La. R.S. 14:65.

Force or Intimidation

Defendant contends that the State failed to present sufficient evidence to prove all of the essential elements of the charged offense, specifically, Defendant alleges that the State failed to prove that the robbery was committed through the use of force or intimidation. Force or intimidation is an element of the amended conviction of simple robbery requiring us to address this point of error.

To convict a defendant of simple robbery, the State is required to prove: (1) a taking (2) of anything of value (3) from a person or in the immediate control of another (4) by the use of force or intimidation (5) but not armed with a dangerous weapon. La. R.S. 14:65. Through testimony of the witnesses, the State was able to prove that there was a “taking” as the victim of the robbery testified that her purse and its contents were removed from her basket in the Wal-Mart parking lot. The victim testified that her purse included various personal items including cash. Thus, the element of “any thing of value” was established. The victim also testified that her purse was sitting in her shopping basket as she removed bags from it to place in her vehicle. This testimony standing alone is sufficient to establish the element of taking “from a person or in the immediate control of another.”

The remaining element is “the use of force or intimidation.” Oxford University Press dictionary defines force as “achieve or bring about by |14effort” or “make (someone) do something against their will.” The dictionary also defines intimidate as “frighten or overawe, especially so as to coerce into doing something.” The victim in this case did not give up the purse of her own will, nor was it merely taken secretly. The victim, instead, was openly and quickly approached by a man in the heavy rain who grabbed her purse, which was in her close proximity. We find that the jury was reasonable in finding that such a situation was, at the very least, intimidating. This assignment of error is meritless.

DECREE

For the foregoing reasons, Defendant’s conviction for armed robbery is modified and a conviction for simple robbery is entered. The matter is remanded to the trial court for resentencing in accordance with La. R.S. 14:65.

CONVICTION MODIFIED AND REMANDED FOR RESENTENCING.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, PEATROSS and MOORE, JJ.

Rehearing denied.

DISSENT FROM THE DENIAL OF REHEARING

BROWN, C.J.,

dissenting from the denial of rehearing.

L Defendant was a principal to the offense. She drove the car, specifically looked for and identified a victim and immediately after the robbery passed the victim’s check at KFC. The police found both defendant and her boyfriend at their residence. The opinion states that they were in possession “of several guns and the victim’s property.”

On cross-examination, defendant admitted that she saw her boyfriend with a “silver gun.” Defendant’s nephew, who was riding in the car, testified that the gun was large, i.e., a “hog leg.” Defendant as well as her boyfriend gave several different accounts attempting to minimize their guilt.

The circumstances support the jury’s verdict beyond a reasonable doubt. The majority simply reweighed the evidence which is constitutionally prohibited and reduced the conviction.

I would grant a rehearing.

      . Castro also pled guilty to simple burglary in connection with the theft of a briefcase from a vehicle. That crime was committed on August 10, 2005.

      . "Ice” is methamphelamine in crystal form.

      . La. C. Cr. P. art. 821(E) provides, "If the appellate court finds that the evidence, viewed in a light most favorable to the State, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.”


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Barry BAKER, Appellant.
    No. 41,555-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Louisiana Appellate Project by James E. Beal, Jonesboro, for Appellant.
    Walter E. May, Jr., District Attorney, H. Russell Davis, Kenneth P. Haines, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   MOORE, J.

11 Barry Baker appeals his conviction of second degree murder arising from the shooting death of his wife, Melanie Baker. He contends that the evidence supports only a verdict of manslaughter. We affirm.

Factual Background

In November 2003, Baker and Melanie were physically separated; according to Baker’s cousin, Tanisha Baker, they were “going through some problems.” On the afternoon of November 15, Baker was driving around the area of Gibsland, Louisiana, with Darmekus Clark, a friend. Baker’s car broke down, so he borrowed a beige Pontiac Grand Am that belonged to his aunt, Sarah Baker, with whom Baker was living during the separation. According to Clark, they saw Melanie’s car broken down on the side of the road near Homer. They drove to the couple’s former marital home .to pick up some work clothes, and then to Melanie’s mother’s house, but she was not at either place.

Crossing the Blue Goose Bridge on Hwy. 80, Baker spotted Melanie driving a maroon Mustang which did not belong to the couple. Tanisha Baker testified that Melanie had borrowed the car from Paul Kingsby, a man in Arcadia. Upon seeing Melanie in the Mustang, Baker said, “There’s my wife right there.” Melanie was driving her six-year-old son, Matthew; Baker’s cousin, Tanisha; and the couple’s friend, Toria Coleman. Baker began to pursue them through Gibsland; Toria testified that Melanie “smashed the gas” in the vain effort to elude him.

| ¡Although the witnesses’ accounts vary slightly, Melanie came to the corner of Third and Mill Streets, where the car either struck a curb or ran off the road. Baker then swerved the Grand Am diagonally in front of the Mustang. He got out, walked to the driver’s door of the Mustang and confronted his wife with a handgun. The other occupants fled the Mustang except for Matthew, who stood by the passenger door.

Baker accused Melanie of “playing games” with him: he was giving her all his money and was going to kill her. Matthew screamed at him, “Don’t do it!,” but Baker shot her twice at close range, once in the chest and once in the head. He then pointed the gun at Tanisha, who had taken refuge beside a nearby abandoned house, and said, “I should kill you too,” but he did not fire any more shots. He told Matthew, who was still standing by the Mustang, “I’m sorry, boy, sorry I did it.”

Baker then got back in the Grand Am. Clark told him what he just did was wrong, but Baker replied, “Shut up, I’m gone.” Baker dropped off Clark, returned to Sarah Baker’s house and told her to call 911 because Melanie was dead. He also told a neighbor he had shot Melanie; he loved her, but she was “messing with” him, taking all his money and letting other men drop her off at home. The Gibsland police chief, William Cato, took him into custody without incident. Investigating officers never recovered the murder weapon.

Paramedics called to the scene of the shooting found Melanie’s body slumped in the driver’s seat of the Mustang without a pulse or any other | ¡¡vital signs. The coroner’s report confirmed that she died from multiple gunshot wounds.

Baker was indicted for the second degree murder of Melanie and for possession of a firearm by a convicted felon. The counts were severed and Baker proceeded to jury trial on the homicide charge in November 2005.

The witnesses described the shooting as summarized above. In addition, Darme-kus Clark, Baker’s friend and passenger on the day of the crime, insisted that he never saw Baker with a gun. He described Baker as calm before and after the shooting, but he would not speculate “what was going through that man’s head.” He denied knowing anything about Paul Kingsby, the owner of the Mustang.

Tanisha Baker testified that the day before the shooting, she and Melanie had been riding in Melanie’s car until it broke down. When Tanisha woke up the next morning, Melanie was not at home; Tanisha assumed that Paul Kingsby had picked her up late that night. Around midmorn-ing, Melanie returned home, driving Kingsby’s Mustang. Tanisha recalled that while Melanie was out, Baker had phoned twice; she (Tanisha) had no idea that seeing Melanie in another man’s car would upset him so.

Sarah Baker testified that Baker came to borrow her car that day and was gone only about half an hour. She did not know Paul Kingsby, but testified that Baker said Kingsby was threatening to kill him.

By a vote of 11-1, the jury found Baker guilty as charged of second degree murder. The court imposed the mandatory life sentence without benefits, and this appeal followed. The only issue is sufficiency of the evidence.

[ ¿Applicable Law

The constitutional standard of appellate review for sufficiency of the evidence 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 beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921. 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, 2005-0477 (La.2/22/06), 922 So.2d 517. It is not the function of a reviewing court to assess credibility or reweigh the evidence. State v. Marcantel, 2000-1629 (La.4/3/02), 815 So.2d 50.

Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’s testimony, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall, 2004-3139 (La.11/29/06), 943 So.2d 362; State v. White, 28,095 (La.App. 2 Cir. 5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760.

Specific intent is a state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow from his acts or omissions. La. R.S. 14:10(1). Specific intent may be inferred from the circumstances of the transaction and actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Davis, 40,382 (La.App. 2 Cir. 10/26/05), 914 So.2d 1129, writ denied, 2005-2419 (La.4/17/06), 926 So.2d 512. Deliberately pointing and | .¡firing a deadly weapon at close range are circumstances which will support a finding of specific intent to kill. State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1; State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997).

Second degree murder is defined as the killing of a human being “when the offender has a specific intent to kill or to inflict great bodily harm.” La. R.S. 14:30.1 A(l). Manslaughter is defined as a “homicide which would be first or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La. R.S. 14:31 A(1); State v. Quiambao, 36,587 (La.App. 2 Cir. 12/11/02), 833 So.2d 1103, writ denied, 2003-0477 (La.5/16/03), 843 So.2d 1130. The elements of “sudden passion” and “heat of blood” are mitigatory factors in the nature of a defense, and when such factors are established by a preponderance of the evidence, a verdict for murder is inappropriate. State v. Leger, 2005-0011 (La.7/10/06), 936 So.2d 108; State v. Deal, 2000-0434 (La.11/28/01), 802 So.2d 1254, cert. denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002). Provocation and time for cooling are questions for the jury to be determined under the standard of the average or ordinary person, one with ordinary self-control; if a man unreasonably permits his impulse and passion to obscure his judgment, he will be fully responsible for the consequences of his act. State v. Leger, supra, and citations therein.

| (Discussion

By his sole assignment of error, Baker contends the evidence supported only a conviction of manslaughter, as “the defendant went into a rage when he saw his wife driving his enemy’s automobile. He lost all sense of cool reflection and, within minutes, she was dead.”

The state responds that the record does not show that Kingsby was Baker’s “enemy” and, at any rate, seeing Melanie in his car comes nowhere near the level of provocation required to reduce criminal liability from murder to manslaughter. The state contends that even catching an estranged wife with another man has been found insufficient provocation to support a reduced verdict of manslaughter. State v. Hamilton, 99-523 (La.App. 3 Cir. 11/3/99), 747 So.2d 164.

After careful review, we find the evidence simply does not support the hypothesis that Kingsby was Baker’s “enemy.” Baker’s aunt, Sarah Baker, testified that “more than once,” Baker told her Kingsby “had been threatening to kill him,” but this was obviously hearsay and the point was not developed by further examination. Baker’s friend, Clark, and cousin, Tanisha, presumably would have been in a good position to know of any animosity between Baker and Kingsby, but even under close cross-examination they could not confirm this; they recognized Kingsby only by name and had never met him. Viewed in the light most favorable to the state, this testimony does not show that Kingsby was Baker’s enemy or adversary. The jury could fairly conclude that no reasonable person would fly into a sudden rage simply upon seeing his estranged wife driving the other man’s car.

|70n the contrary, the record shows that earlier in the day, Baker phoned twice looking for Melanie; he went to two different places where she might have been, but still could not find her; he spent the better part of the day driving around (first in his own car, and then in his aunt’s), armed with a handgun that he concealed from his passenger. These facts strongly suggest that Baker was on a mission to locate his wife with the intent to shoot her. When he found her, he pursued her at high speed, ran her off the road and blocked her egress. Before firing the gun, he told her, “I told you I was going to kill you” or “I told you about playing games with me.” These facts strongly suggest that the plan was preformed and did not result from seeing her driving another man’s car.

Viewed in the light most favorable to the state, this evidence supports the essential element of specific intent to kill or inflict great bodily harm. A reasonable juror could have rejected the theory that the shooting came from sudden passion or heat of blood. The assignment of error lacks merit.

Error Patent Review

At sentencing, the district court did not advise Baker of the time period in which to apply for post conviction relief, as required by La. C. Cr. P. 930.8 C. By this opinion, the court now advises him that no application for post conviction relief shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under La. C. Cr. P. art. 914 or 922. See State v. Price, 40,437 (La.App. 2 Cir. 1/25/06), 920 So.2d 389. We find nothing else we consider to be error patent.

| ^Conclusion

For the reasons expressed, the conviction and sentence are affirmed.

AFFIRMED.

      . The state’s brief refers to Sarah Baker as defendant’s mother, but she testified that she was his aunt; Tanisha Baker confirmed that she (Tanisha) was Sarah’s daughter and defendant's cousin.

      . There was some testimony that Baker objected to Melanie’s socializing with Tanisha.