author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. David D. COKER, Appellant.
    No. 42,818-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 19, 2007.

      James E. Beal, Jonesboro, for Appellant.
    Paul J. Carmouche, John F. McWilliams, Jr., Karelia A. Stewart, Assistant District Attorneys, for District Attorney Appellee.
    Before BROWN, WILLIAMS and MOORE, JJ.
   WILLIAMS, J.

pThe defendant, David D. Coker, was charged with driving while intoxicated (DWI)-fourth offense, a violation of LSA-R.S. 14:98. The defendant pled guilty as charged without any agreement as to length of sentence. The district court sentenced defendant to serve 12 years at hard labor with credit for time served and to pay a fine of $5,000. In addition, the trial court revoked defendant’s probation for a prior DWI conviction and ordered that the four-month sentence run concurrent with the sentence imposed for the present offense. Defendant’s motion to reconsider sentence was denied. Defendant appeals his sentence as excessive. For the following reasons, we affirm the defendant’s conviction, amend the sentence and affirm as amended.

DISCUSSION

On July 22, 2006, the defendant’s truck was stopped by Caddo Parish deputies after a citizen complained to them about his erratic driving and possible drunkenness. As a result of this traffic stop, the officers noticed a strong odor of alcohol on the defendant. His speech was slurred and he failed all of the field sobriety tests that were performed at that time. The defendant submitted to a chemical test and the results showed a blood alcohol content of .183g<%. This event was actually the defendant’s ninth DWI offense.

The defendant was charged with DWI-fourth offense and he pled guilty as charged. Defendant was sentenced to serve 12 years at hard labor and to pay a fine of $5,000 in addition to court costs. This appeal followed.

The defendant contends the district court erred in imposing an | ^excessive sentence. Defendant argues that the sentence imposed is excessive because he has never been afforded the benefit of home incarceration and inpatient substance abuse treatment contemplated by the 2001 amendment to the DWI statute.

In reviewing claims alleging the ex-cessiveness of a sentence, an appellate court applies a two-pronged test. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App. 2d Cir.6/24/98), 715 So.2d 641. The 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. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Bradford, supra.

Is As defendant points out in his brief, LSA-R.S. 14:98(E)(l)(a) was amended by the legislature in 2001 to provide that all but 60 days of the sentence imposed would be suspended on a fourth or subsequent conviction. The amended statute provided in pertinent part:

E. (l)(a) Except as otherwise provided in Subparagraph (4)(b) of this Subsection, on a conviction of a fourth or subsequent offense, ... the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. Sixty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The remainder of the sentence of imprisonment shall be suspended and the offender shall be required to undergo an evaluation to determine the nature and extent of the offender’s substance abuse disorder.

This enactment reflected the legislature’s intent to give those who were suffering from alcohol abuse a chance at recovery in lieu of imprisonment; the legislation was an attempt to provide treatment for alcoholism and give the offender a chance at a normal life. State v. Campbell, 2003-3035 (La.7/6/04), 877 So.2d 112.

However, LSA-R.S. 14:98(E) was further amended by Acts 2005, No. 497, which removed the language requiring suspension of all but 60 days of the sentence imposed for a DWI-fourth offense. This amendment became effective on August 15, 2005, prior to defendant’s commission of the present offense. Thus, LSA-R.S. 14:98(E) as amended in 2005 is the applicable law in this case and provides in pertinent part:

E. (l)(a) Except as otherwise provided in Subparagraph (4)(b) of this Subsection, on a conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten |4years nor more than thirty years and shall be fined five thousand dollars. Sixty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment. If any portion of the sentence is suspended, the offender shall be placed on supervised probation with the Department of Public Safety and Corrections, division of probation and parole, for a period of time not to exceed five years, which probation shall commence on the day after the offender’s release from custody.
* * *
(4)(a) If the offender has previously been required to participate in substance abuse treatment and home incarceration pursuant to Subsection D of this Section, the offender shall not be sentenced to substance abuse treatment and home incarceration for a fourth or subsequent offense, but shall be imprisoned at hard labor for not less than ten nor more than thirty years, and at least three years of the sentence shall be imposed without benefit of suspension of sentence, probation, or parole.
(b) If the offender has previously received the benefit of suspension of sentence, probation, or parole as a fourth offender, no part of the sentence may be imposed with benefit of suspension of sentence, probation, or parole, and no portion of the sentence shall be imposed concurrently with the remaining balance of any sentence to be served for a prior conviction for any offense.

To support his argument that the 2005 amendment to the DWI statute should not be interpreted to deprive an offender of the opportunity for intensive substance abuse treatment, defendant cites Campbell, swpra and State v. Wittcher, 41,981 (La.App. 2d Cir.5/9/07), 956 So.2d 769. However, the issues raised in those cases differ from the sentencing issue involved in this case. In Campbell, the supreme court addressed the apparent conflict between certain sentencing provisions of the DWI statute |Rand the Habitual Offender Law. In Wiltcher, supra, this court affirmed a 25-year sentence, imposed without benefit of probation or suspension of sentence pursuant to LSA-R.S. 14:98(E)(4)(b), for a DWI-fourth offender who had previously received the applicable sentencing benefits of the 2001 amendment. Thus, the cited cases do not support defendant’s argument.

In imposing sentence, the district court noted defendant’s extensive criminal history which dated back almost 20 years. The court stated that the present offense was committed while the defendant was on supervised probation for two counts of DWI-second offense, that were actually the defendant’s seventh and eighth DWI convictions.

Applying the Article 894.1 sentencing guidelines, the court found that there was an undue risk that defendant would commit another crime with a suspended sentence, that defendant was in need of correctional treatment and that a lesser sentence would deprecate the seriousness of his crime. As mitigating factors, the court noted that defendant admitted guilt and that his prior offenses were non-violent. Although the district court considered the defendant’s participation in Alcoholics Anonymous counseling while incarcerated, the court declined to sentence him to inpatient treatment, stating:

[T]his is just so bad and I just can’t emphasize enough how stunning it is and how shocking it is that there has been such a pattern of drunk driving for so long, with so many breaks given by the District Attorney. I think it’s just a little too late to now ask for inpatient treatment. I am a big believer in inpatient treatment; however, the severity of the crime, when you consider all of the facts and circumstances, it’s such that I cannot justify any sentence less than what I am going to impose.

| fiAfter reviewing the record, we conclude the district court provided adequate reasons for the imposition of this 12-year hard labor sentence, which is in the lower end of the statutory sentencing range for the offense of conviction. There is no showing that the district court abused its discretion in sentencing this defendant. Given the defendant’s repeated convictions for drunk driving over a lengthy period of time, the sentence imposed is neither grossly disproportionate to the severity of the offense committed nor shocking to our sense of justice. Thus, we cannot say that the sentence is constitutionally excessive. The assignment of error lacks merit.

Error Patent

Pursuant to LSA-C.Cr.P. art. 920, we have examined the record and note the presence of an error patent. The defendant received an illegally lenient sentence for a fourth DWI conviction due to the district court’s failure to impose 60 days of the sentence of imprisonment without benefit of probation, parole or suspension of sentence, in accordance with LSA-R.S. 14:98(E)(l)(a). A reviewing court has the authority to amend an illegally lenient sentence on its own motion. LSA-C.Cr.P. art. 882(A); State v. Decrevel, 2003-0259 (La.5/16/03), 847 So.2d 1197; State v. Sermons, 41,746 (La.App. 2d Cir.2/28/07), 953 So.2d 958. Therefore, we shall amend defendant’s sentence to require that 60 days of the imprisonment be served without the benefit of parole, probation, or suspension of sentence.

CONCLUSION

For the foregoing reasons, the defendant’s conviction is affirmed. [7The sentence is hereby amended to provide that 60 days of the imprisonment shall be served without the benefit of parole, probation or suspension of sentence. The sentence is otherwise affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Frederick BOYTE, Appellant.
    No. 42,763-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 19, 2007.

      Lavalle B. Salomon, Monroe, for Appellant.
    Jerry L. Jones, District Attorney, George D. Ross, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS and MOORE, JJ.
   MOORE, J.

_|_¡After a bench trial, the defendant, Frederick Boyte, was convicted as charged of one count of malfeasance in office. The court sentenced Boyte to serve five years imprisonment at hard labor, a portion of which was suspended; and ordered him to pay restitution in the amount of $1,403.42 and a fine in the amount of $3,500.00. The defendant now appeals, urging nine assignments of error. After review, we affirm the defendant’s conviction and sentence.

FACTS

Defendant Frederick Leon “Bo” Boyte was the public works director for the Oua-chita Parish Police Jury (“OPPJ”) from February 1997 until the summer of 2001. As public works director, Mr. Boyte was in charge of the maintenance and operations of roads and drainage infrastructure in the parish.

On February 12, 2003, the Louisiana Legislative Auditor completed an investigative audit of the OPPJ. The audit revealed a number of areas where the funds or property of the OPPJ had been mismanaged by various OPPJ employees. As a result of the audit, the Ouachita Parish District Attorney’s office investigated the matter and subsequently charged several persons with the commission of crimes as a result of their conduct as public employees.

The defendant was charged by bill of indictment on June 23, 2003, in which the grand jury charged Boyte with one count of malfeasance in office, from January 1, 1999, through December 31, 2002, inclusive.

| ¡.Several months before the bill of indictment was filed, Boyte’s attorney, Johnny Carl Parkerson, negotiated an agreement with the district attorney, Jerry Jones, which was memorialized in a letter dated February 20, 2003, from the district attorney to attorney Parkerson. The letter reads, in part:

Dear Johnny:

I have spoken with the U.S. Attorney Joe Jarzebec [sic], who will honor our agreement regarding the above-listed individual. In the event that federal jurisdiction is revealed by this investigation or as a result of the cooperation of your client, he will be expected to cooperate with the Federal Authorities. Our agreement is that your client will be indicted for whatever charges are at the moment appropriate but will, in return for truthful testimony, be allowed to plead to one count of malfeasance in office with a suspended sentence. In the event that your client’s cooperation reveals criminal acts by superior elected or appointed officials, this will result in the changing of this agreement by reducing or eliminating your client’s criminal exposure.

The complete extent to which the defendant cooperated with authorities is not a part of this record. Boyte apparently testified before the Grand Jury on June 11 and June 17, 2003. It is undisputed that Boyte also testified at the February 21-23, 2006 trial of Mr. Woodson McGuffie, the assistant parish administrator. Mr. McGuffie was charged and convicted of | ^malfeasance for using parish equipment, funds and one of Boyte’s men, Stone, to trim trees on his Union Parish property. Boyte testified at the trial that McGuffie had authority over him and Stone, although McGuffie testified that neither Boyte nor Stone was under his authority. McGuffie was sentenced to serve five years imprisonment at hard labor, three years of which was imposed without suspension of sentence. This court affirmed McGuffie’s conviction but found the sentence constitutionally excessive and remanded the case to the trial court for resentencing. State v. McGuffie, 42,069 (La.App. 2 Cir. 8/1/07), 962 So.2d 1111. There was also argument that Boyte’s testimony led to the prosecution and conviction of one Daryl Berry, who was allegedly “higher in the political vacuum.”

On March 17, 2006, the defendant filed a Motion to Enforce Immunity Agreement and/or to Quash the Indictment and Amended Indictment Herein. In the motion, the defendant alleged that he had complied with the agreement evidenced in the February 20, 2003 letter by giving statements to investigators, the District Attorney and the Grand Jury. Boyte alleged that he had subsequently been charged with “several unrelated charges,” and that his malfeasance charge had been amended to include acts discovered through Boyte’s statements given in connection with the agreement. Boyte argued that these statements were not “voluntary” and asked the court to suppress all his statements made to all law enforcement members and enforce the “immunity grant” agreement since he had given up his right to incriminate himself.

|4The district court held a hearing on that motion on June 29, 2006, in which it held that the part of the plea agreement in which Boyte would be allowed to plead guilty to one count of malfeasance and receive a suspended sentence in exchange for his cooperation was contractually invalid due to failure of cause since the prosecutor did not have the authority to bind the court to a suspended sentence. Nevertheless, the prosecutor stated that it intended to comply with the agreement by charging the defendant with only one count of malfeasance. He also argued that the plea agreement granted only “use” immunity, and, anticipating that the defendant would seek to suppress all statements and testimony he had given, argued that all statements made by Boyte after the plea agreement were voluntary and it was prohibited from using only those statements by Boyte during the plea agreement negotiations. Once the agreement was confected, he argued, Boyte’s statements were “voluntary,” and these statements as well as any evidence obtained from other sources or information obtained prior to the negotiations of the plea agreement were admissible. The court did not rule on this issue in this hearing and set a date for a hearing on a motion to suppress Boyte’s statements and testimony.

Regarding that part of the agreement which stated that if Boyte’s “cooperation reveals criminal acts by superior elected or appointed officials,” it would “result in the changing of this agreement by reducing or eliminating your client’s criminal exposure,” the court’s ruling in this hearing is not altogether clear — the issue was apparently dropped. The state argued that this part of the plea agreement did not apply because none of |ñBoyte’s statements or testimony revealed any new suspects or superior elected officials who were not already “suspects.” He thus argued that the state’s only obligation was to offer the one count of malfeasance.

In response, Boyte’s attorney, who was not part of the plea negotiations that resulted in the agreement memorialized in the February 20, 2003 letter, apparently conceded that seeking enforcement of this aspect of the agreement by demanding a dismissal or reduced charge was untenable. He thus argued:

I wasn’t there for that. I assume maybe it indicated dismissal or perhaps a misdemeanor. We’re not-the State says that it didn’t lead to the indictment or conviction of individuals who are higher up in the food chain. That’s fine, your Honor. I’m interested in having them stick to the first part of their agreement which his [sic] pleading to one count of malfeasance and a suspended sentence[,][s]ince he’s complied with the other conditions as required. Any further conditions regarding people higher up in local government as it may be, uh would simply require — would result in some further reduction. And we’re not seeking that. We’re seeking the plea of malfeasance and our suspended sentence.

Boyte’s attorney thus acknowledged that the state was only prosecuting on one count of malfeasance but sought enforcement of the limitation on the sentence outlined in the agreement or, in the alternative, suppression of Boyte’s statements made in reliance on the agreement. Later, after conferring with Boyte, the defendant’s counsel informed the court that Boyte had provided testimony that led to the prosecution and conviction of one Darryl Berry “who was higher in the political vacuum if you will.” No further information was offered about that case. The court denied the defendant’s motion, finding that there was a failure of cause as to the agreement because the district attorney had no authority to bind the l^court regarding the sentence to be imposed.

The parties contemplated that, based on this ruling, Boyte would file a motion to suppress his statements. He filed that motion on July 10, 2006, and the court held a hearing on the motion on July 24, 2006. The prosecutor ultimately agreed that the defendant’s grand jury testimony and testimony to law enforcement officials given after the plea agreement should not be admitted into evidence, and the defendant agreed that evidence derived independently of his statements should be admissible. After hearing testimony from investigators, the court concluded that no additional evidence needed to be suppressed.

On July 28, 2006, the defendant filed a motion to recuse the trial judge, C. Wendell Manning. The defendant stated that he had recently testified in the case against Mr. Woodson McGuffie, cited above, where the same judge presided over trial. Boyte stated that he had made certain incriminating statements and admissions during the McGuffie trial. Boyte’s motion then stated:

5. It is asserted that the appearance of Defendant and the testimony given in that trial before this same division will interfere with the defense of his matters presently pending before the same division.
6. It is shown that the testimony heard by the Court will have a chilling and prohibitive effect on Defendant’s right to trial by judge alone should he choose. Indeed, it would be impossible to proceed in such a fashion.
7. It is further shown that within the context of sentencing or post-verdict but pre-sentence motions, Defendant would be hindered in both the production of evidence and testimony by the Court’s foreknowledge.

^Neither the motion nor the memo asked that the motion be assigned to a different judge for a ruling. Judge Manning presided at the hearing on the motion to recuse on August 8, 2006, and found no grounds to refer the motion to another judge or to recuse himself. Apart from an objection to the ruling itself, the defendant did not raise an objection to Judge Manning’s consideration of the motion.

Immediately thereafter, Boyte waived his right to a jury trial. The court put Boyte on the witness stand and determined that Boyte had made the decision to waive trial by jury voluntarily.

Trial commenced on August 9, 2006. Before trial, the state indicated that it would offer evidence of seven different acts of Boyte that it alleged to constitute malfeasance in office. These acts were:

1. The sale of a “thumb” attachment for a trackhoe, the proceeds of which sale were given to support Royce Calhoun’s political campaign;
2. The gift of a OPPJ-owned four-wheeler to another Ouachita Parish employee, Jerry Johnson;
3. The removal of equipment from a Parish-owned pickup truck prior to auction, which removal was allegedly designed to reduce the truck’s value at auction, and which equipment Boyte allegedly ordered reinstalled after Royce Calhoun bought the truck;
4. The placement . of Parish-owned pavement on the parking lot of a church where an OPPJ juror was a member;
5. The placement of Parish-owned paving material on the private driveway of Mr. Jerry Johnson in Union Parish;
6. The use of an OPPJ-rented bulldozer to improve his property and / or the property of former OPPJ member Grady Williams;
7. The trimming of trees on assistant Parish administrator Woodson McGuf-fie’s property in Union Parish.

|sAt trial, the state did not to introduce evidence regarding acts three and four. However, it offered documentary evidence and the testimony of several witnesses in support of the other alleged acts of wrongdoing. The court was convinced of Boyte’s guilt beyond a reasonable doubt on only three of the remaining five acts, namely number two (the four-wheeler), number six (the bulldozer), and number seven (the tree-trimming). The testimony and exhibits regarding these three acts is summarized as follows:

Tree Trimming

Mr. Cecil Janway, Jr., the public works director for the City of Monroe, testified that he had been the OPPJ’s public works director until Boyte got the job, and he (Janway) became the Parish Administrator in charge of all the departments, including Public Works. Janway explained that the director’s job was to oversee the maintenance and operation of the Parish’s roads and drainage systems as well as the oversight of subdivision development. Janway testified that the Parish never had a contract to work on any public works projects in Union Parish and in particular had no contract to do work on the property of Woodson McGuffie. He said that Boyte was never authorized to use public employees or equipment to improve the private property of other Parish employees. Jan-way also explained that the public works director had no authority to sell or give away a piece of Parish-owned equipment for any reason.

Mr. Earl Stone testified that he had been a surveyor and occasional tree-trimmer who worked for the OPPJ public works department while Boyte was the director. Stone said that in December 2000, Boyte called him | flinto his office and “said that he had someone that needed some ... tree work done at their place. The “someone” was Mr. Woodson McGuf-fie. Stone met with McGuffie who gave him directions to his house and what work he needed done. Stone visited the site and returned to the public works department; he said that when he told Boyte of the Parish equipment he would need for the job, Boyte told him “whatever I needed to do to get the job done and get what I needed[,] let him know....” Stone said that Boyte authorized the use of a Parish vehicle and parish equipment for this job. Stone testified that the OPPJ paid him to do this job at Mr. McGuffie’s property in Union Parish, the first and only time he had ever done work under those circumstances. The state also introduced Exhibits S — 1 and S-2 that reflected the time-sheets and overtime pay to Stone.

Yamaha Four-Wheeler

Jerry Dean Johnson was a shop foreman at the public works department when Boyte was the director. He testified that he picked up equipment from the recently-closed Ouachita Parish Mosquito Abatement program, including a Yamaha “Big Bear” four-wheeler / ATV and took it for the use of the OPPJ. Johnson believed that OPPJ purchased the equipment from Mosquito Abatement, but he admitted on cross-examination that he really did not know.

Records reflect that in 1992, the director of the Mosquito Abatement district purchased the ATV in his own name, not in the name of the district. Exhibit S — 13; other records (Exhibit S-14 in globo) indicate that the purchaser was the Mosquito Abatement district. Mr. Janway, the public Imworks director, recalled that the public works department of the OPPJ acquired the ATV when the police jury privatized mosquito control.

The ATV was stored at the public works department’s storage area, and Johnson thought that the ATV would be used for “beaver control,” but he testified that he had a conversation with Mr. Boyte about the ATV:

I think if I remember right it — he asked me did I want it. I said, you know, I had no purpose for it because I already had one. He said, “Well, just make it disappear.”

Johnson said that the machine was not on the OPPJ’s asset list, the list of all property owned by the police jury. He testified that he took “just make it disappear” to mean that Boyte was giving the machine to him, although the OPPJ had auctioned off another four-wheeler received from the same source. Johnson gave the four-wheeler to a friend of his. Johnson admitted that he pled guilty to malfeasance in office due to his conduct while at the OPPJ, and he had given numerous versions of the facts to authorities during the investigation.

OPPJ treasurer Brad Cammack explained that the mosquito abatement district that was the original owner of the four-wheeler was “a political subdivision of the police jury” and that the police jury acquired the assets of the district when the police jury started operating the district in 1996. Cammack said that the ATV was on the police jury’s asset list at one point (which lists were not available because they had been destroyed) but simply was not entered on the lists for 1998 and later (Exhibit D-l) when the OPPJ changed computer systems and the assets had to be manually re-entered. Cammack said that it was the job of the department heads, like Mr. Boyte, l^to ensure that the asset lists were accurate. The ATV was titled in the OPPJ’s name in 2004. Exhibit S-15.

Dozer Work

Former OPPJ Juror Grady Williams testified that he had been a police juror between 2001 and 2002. Mr. Williams owns property in Ouachita Parish adjacent to property owned by Mr. Boyte. Williams explained that his property was not developed and contained four “dilapidated houses ... [and] a lot of junk around it [and] trees on it I needed taken down.” He testified that in June 2001, he told Mr. Boyte that he needed somebody to clean the property, and Mr. Boyte performed the work himself using a bulldozer. The area where the work was done was not on a Ouachita Parish servitude.

The dates this work was done are critical to a finding of malfeasance. On June 26, 2001, about a week after their conversation, Mr. Williams paid Mr. Boyte $4,000.00 for doing the work. Exhibit S-9. Williams said both that he may have written the check on the day Boyte completed the work and also that Boyte may have completed the job in the days before the date of the check. June 26, 2001 was a Tuesday, and Mr. Williams recalled telling police that he had been to the property on the previous Saturday or Sunday and found that the work was completed. The state argues that:

... Grady Williams testified that when he paid defendant for the work done on his property on June 26, 2001 (a Tuesday), the rented bulldozer was still on his property.

We have not found testimony that supports this assertion. The defendant called his sister, Ms. Barbara Elliott, as a witness; she lived within a few 11smiles of the property and saw Boyte doing the dozer work. Ms. Elliott said that she remembered that the dozer work was completed on a Saturday, and she did not see the dozer at the site after that day. Also, the record contains Exhibit J-l, an invoice issued by an equipment company, Nortrax South, to Bo Boyte personally; this invoice does not mention the OPPJ. The invoice is for the rental of a piece of equipment, a “JD 750C,” for the period of June 15, 2001, through June 25, 2001, and is in the amount of $1,620.00. It has a checkmark indicating that the customer picked up and returned the equipment.

Exhibit S-10 is an invoice from Nortrax South, to the OPPJ. The invoice is dated July 24, 2001, and states that it covers the billing period from June 23, 2001, through July 24, 2001. Nortrax billed the OPPJ $4,700.00 for the use of a “750C LT” that was “ordered by Bo Boyte.” OPPJ treasurer Brad Cammack explained that this invoice was for the rental of a bulldozer to the OPPJ. The serial number on the dozer, although given only partially on the first document, appears to be the same on both invoices. According to Cammack, the legislative auditor determined that the bulldozer was being rented by the OPPJ at the time it was used on Mr. Williams’ land, and Mr. Williams later reimbursed the OPPJ $1,828.00. Exhibit S-ll.

Mr. Todd Dumas was employed in the construction department of the OPPJ in June 2001. He testified that Mr. Boyte asked him to pick up a bulldozer at Nor-trax sometime in June 2001 and take it to a location that proved to be Mr. Williams’ property. Mr. Dumas said that he did not use 11SQPPJ equipment to move the dozer (he borrowed the truck and trailer from the rental store) and that he was on his day off when he did the work for Boyte.

At the conclusion of testimony, the court charged itself with the applicable law and with La. R.S. 42:1461 dealing with the obligations of public officials and employees. Based on all of this evidence, the court was convinced beyond a reasonable doubt that Mr. Boyte was guilty of malfeasance in office. The court issued lengthy reasons for its ruling.

With regard to the four-wheeler, the court was convinced that Mr. Johnson was a credible witness when he testified that Boyte told him to make the ATV “disappear.” Regarding the dozer work, the court accepted Mr. Williams’ testimony that the work had been done within the four or five days leading up to June 26, 2001, and noted that the dozer had been rented by the police jury for part of this time. Finally, as to the tree trimming, the court accepted the testimony of the witnesses who said that Boyte had no authority to order such work in Union Parish on private property.

The court ordered a pre-sentence investigation, and the OPPJ prepared a restitution statement. The court sentenced Boyte on November 30, 2006. The court reviewed the pre-sentence investigation and, in accordance with La. C. Cr. P. art. 894.1, verbally recited extensive reasons for selecting the sentence for this defendant. This was Mr. Boyte’s second felony conviction.

The sentencing record reveals that Mr. Boyte has had numerous recent brushes with the law:

| uBoyte was arrested by the OPSO in July 2004 and charged with four counts of illegal possession of stolen things, one count of altering or defacing the vehicle identification number on a motor vehicle and one count of having an altered or fictitious registration. The four stolen things charges were later reduced to one count and referred to Mr. Boyte’s possession of a bulldozer; a jury acquitted Boyte on these charges in March 2006.

In August 2004, the district attorney in East Baton Rouge Parish charged Boyte with felony theft; that charge was later amended to one count of illegal possession of stolen things valued at $500.00 or more. This charge related to a bulldozer stolen from a construction company. Boyte pled guilty to that charge in April 2005 and was sentenced to serve five years imprisonment at hard labor, suspended, and was placed on three years supervised probation.

In October 2004, the prosecutor in the 10th Judicial District in Ashley County, Arkansas, charged Boyte with theft of equipment worth more than $2,500.00 from a timber company, and that charge remains pending. Finally, in January 2005, the Avoyelles Parish district attorney charged Boyte with felony theft related to the theft of a tractor from a construction company; that charge was still pending at the time of sentencing in the instant matter.

In reviewing the sentencing guidelines, the court found applicable La. C. Cr. P. art. 893.1(B)(3) (receipt of something of value for the offense), (4) (use of position or status to facilitate the offense) and (13) (offender was a leader or supervisor). In mitigation, the court found applicable La. C. Cr. P, |]Bart. 893.1(B)(29) (conduct unlikely to recur; Boyte was no longer employed by the OPPJ) and (30) (offender likely to respond affirmatively to probation based on statements by his probation officer in the PSI). The court also reviewed Boyte’s social history, noting that he was a 55-year-old man who had obtained his GED while serving in the National Guard. The defendant has twice been married and has children and grandchildren with whom he has a good relationship.

The court also discussed Boyte’s cooperation with law enforcement and prosecutors during the investigation into the irregularities at the OPPJ. The court noted that most of the evidence against the defendant had been developed through independent sources, not with the defendant’s cooperation, and also noted that a pending prosecution against one of the Ouachita Parish police jurors might have to be dismissed due to the lack of cooperation with prosecutors by Boyte. The court further discussed the many letters it had received in support of Boyte, some of which stated that Boyte had a positive impact on the operation of the OPPJ’s public works department, and noted that this information had a mitigating effect on the sentence.

However, the court expressed concern that Boyte has maintained that the criminal matter was all “a big misunderstanding” and had refused to take responsibility or show remorse for his actions. In particular, the court stated that it was important that the public have confidence and trust in its institutions, that the defendant’s conduct eroded that confidence and that he must be held accountable for his actions.

|1fiThe court sentenced Boyte to the maximum term of imprisonment for malfeasance in office, 5 years imprisonment at hard labor. The court ordered that Boyte serve the first 3½ years of the sentence and further ordered that the remaining 18 months be suspended, with the defendant to be placed on supervised probation for 3 years. The court ordered Boyte to pay restitution to the OPPJ in the amount of $1,403.42. Finally, the court ordered Boyte to pay a fine in the amount of $3,500.00 within the first two years of his supervised probation, in default of which he was to serve another year of imprisonment.

Boyte timely filed a motion to reconsider sentence, arguing that the sentence was excessive, that the court did not adequately consider a variety of mitigating circumstances, that the court provided inadequate reasons for the sentence and that the sentence was disproportionate to the sentences of other persons found culpable at the OPPJ.

In support of this last claim, the defendant supplied proof of conviction and sentence for several other persons involved in the irregularities at the police jury. The court denied the motion -with written reasons, noting that the conduct of the other culpable people in this matter was different from the defendant’s conduct, that the defendant could have been charged with seven counts of malfeasance in office and could have been convicted of “at least” three of those counts had they been brought separately, and reiterated that the defendant’s cooperation with authorities had been limited. Boyte now appeals, urging nine assignments of error.

J^DISCUSSION

Assignment of Error 4. The State failed to carry its burden of proof.

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 proven beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2 Cir. 4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert, denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2 Cir. 8/29/02), 827 So.2d 488, unit denied, 2002-2634 (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 11sto substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2 Cir. 8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Burd, 40,480 (La.App. 2 Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35; State v. Jones, 31,613 (La.App. 2 Cir. 4/1/99), 733 So.2d 127, unit denied, 99-1185 (La.10/1/99), 748 So.2d 434; State v. White, 28,095 (La.App. 2 Cir. 5/8/96), 674 So.2d 1018, unit denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048.

La. R.S. 14:134 provides, in part:

Malfeasance in office is committed when any public officer or public employee shall:
(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
(2) Intentionally perform any such duty in an unlawful manner; or
119(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.
Any duty lawfully required of a public officer or public employee when delegated by him to a public officer or public employee shall be deemed to be a lawful duty of such public officer or employee. The delegation of such lawful duty shall not reheve the public officer or employee of his lawful duty.

Under Louisiana law, prosecutions for malfeasance of office as defined by La. R.S. 14:134(1) and 14:134(2) presuppose the existence of “a statute or provision of the law which delineates an affirmative duty upon the official.” State v. Espejel, 38,071 (La.App. 2 Cir. 3/3/04), 867 So.2d 863, citing State v. Perez, 464 So.2d 737, 741 (La.1985); State v. Sehwehm, 98-1599 (La.3/19/99), 729 So.2d 548. This duty “must be expressly imposed by law upon the official because the official is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will subject him to criminal charges.” Espejel, supra, citing State v. Perez, supra.

La. R.S. 42:1461 provides, in part:

A. Officials, whether elected or appointed and whether compensated or not, and employees of any “public entity”, which, for purposes of this Section shall mean and include any department, division, office, board, agency, commission, or other organizational unit of any of the three branches of state government or of any parish, municipality, school board or district, court of limited jurisdiction, or other political subdivision or district, or the office of any sheriff, district attorney, coroner, or clerk of court, by the act of accepting such office or employment assume a personal obligation not to misappropriate, misapply, convert, misuse, or otherwise wrongfully take any funds, property, or other thing of value belonging to or under the custody or control of the public entity in which they hold office or are employed.

|¡>nIn order to convict Boyte of malfeasance in office, the state only had to prove one act by Boyte, coupled with the required intent, in violation of Boyte’s duties.

Our review of the record indicates that the state clearly carried that burden of proof regarding the tree trimming incident on Woodson McGuffie’s property in Union Parish. Testimony clearly showed that Boyte had no authority to order Stone to exert his labor and use OPPJ equipment to perform tree trimming services on private property in Union Parish. That act was plainly a violation of Boyte’s duty not to misuse public employees and property. Further, the evidence was sufficient to prove that Boyte intentionally ordered Earl Stone to perform this task in violation of the law and that he knowingly permitted Stone to intentionally perform his job in an unlawful manner.

Given the trial court’s acceptance of the testimony of the witnesses, the evidence was sufficient to show that Boyte also intentionally misappropriated or converted OPPJ property when he ordered his employee, Johnson, to make the Yamaha ATV “disappear.” Johnson testified that Boyte first asked whether Johnson wanted the ATV for himself prior to telling Johnson to make it disappear, evidence that clearly indicates Boyte’s intent to deprive the OPPJ of the use of the four-wheeler.

The evidence regarding the bulldozer is more equivocal, with Mr. Williams, perhaps understandably, having a poor memory of the dates of the work done five years prior to the trial. Nevertheless, the trial court accepted Williams’ statement that the work had been done in the days leading up to | aithe date of his check, and this time period includes days when the OPPJ was paying for the bulldozer.

The defendant also argues that there is no proof that he took an oath of office and, thus, the state’s proof of his duty must fail. Although an oath of office is one recognized way in which a duty can arise, see Espejel, supra, the provisions of La. R.S. 42:1461 impose various duties upon public employees simply “by the act of accepting such office or employment.” Boyte served for years as the director of public works for the OPPJ, clearly falling within the ambit of this statute, and the state’s proof of Boyte’s duties was sufficient.

This assignment of error is without merit.

Assignment of Error 1. The trial court erred in failing to recuse itself for trial of Appellant’s matter.

Assignment of Error 2. The trial court erred in failing to assign a separate division of court to hear Appellant’s motion to recuse.

In these assignments of error, Boyte argues that the trial court mishandled his motion to recuse.

La. C. Cr. P. art. 674 provides:

A party desiring to recuse a trial judge shall file a written motion therefor assigning the ground for recusation. The motion shall be filed prior to commencement of the trial unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after the facts are discovered, but prior to verdict or judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in Article 675.

The article provides that a judge shall recuse himself or refer the motion for a hearing before another judge when “a valid ground for recusation is set la!>forth in the motion.” Boyte argues that his motion to recuse the trial judge set forth a valid ground for recusation because the motion stated that the judge had presided over another trial in which Boyte testified and made certain incriminating statements. The trial judge found that this allegation “provide[d] no grounds for relief’ and declined to recuse himself or to refer the motion to another judge.

La. C. Cr. P. art. 671 provides, in part:

A. In a criminal case a judge of any court, trial or appellate, shall be recused when he:
(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
(2) Is the spouse of the accused, of the party injured, of an attorney employed in the cause, or of the district attorney; or is related to the accused or the party injured, or to the spouse of the accused or party injured, within the fourth degree; or is related to an attorney employed in the cause or to the district attorney, or to the spouse of either, within the second degree;
(3) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause;
(4) Is a witness in the cause;
(5) Has performed a judicial act in the case in another court; or
(6) Would be unable, for any other reason, to conduct a fair and impartial trial.

The defendant’s motion to recuse simply argued that the trial judge had presided over another criminal trial in which the defendant testified. He argued that having the same judge would have a chilling effect on his right |asto trial by judge and the defendant would be hindered in the production of evidence by the court’s foreknowledge. The defendant did not allege in his motion that the trial judge was biased or prejudiced against him or that the judge would be unable to conduct a fair and impartial trial. In its written reasons for ruling on the motion, the trial court correctly observed that the state had agreed not to use Boyte’s testimony from the McGuffie trial in Boyte’s trial. The trial court cited State v. Littleton, 395 So.2d 730 (La.1981), and noted that the mere fact that a judge has presided over other proceedings involving the defendant is not, alone, sufficient to show any grounds to recuse.

The defendant cites Santobeílo v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) for the proposition that the trial judge should not have presided over this case. In Santobeílo, a defendant entered into a plea agreement with the prosecutor to plead guilty to a lesser offense in exchange for a promise from the prosecutor not to make a sentence recommendation. After a delay caused by various motions, the defendant came before the court to be sentenced, at which time a new prosecutor made a recommendation for the maximum sentence, which the court imposed, albeit after stating that the recommendation had no impact on the sentencing decision. The defendant obtained no relief through the appellate process until he reached the United States Supreme Court, which vacated the decision below and remanded the case for further consideration by the state courts, stating in part:

[A] constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it | ¡>4can be said to be part of the inducement or consideration, such promise must be fulfilled.

Boyte notes that the Supreme Court remanded the case with instructions that the petitioner should be resentenced by a different judge if the state courts denied his motion to withdraw his plea, although the court noted:

We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.

This case and its progeny are inapposite. In Santobeílo, the court’s concern was due to the trial judge’s direct participation in a process that it found to be fundamentally flawed and was calculated to insure that the defendant received due process in the handling of this prosecution. No such concerns are present or even suggested in the instant case; the prior matters handled by this trial judge observed the letter of the law as it regards this defendant, and the fundamental fairness of these proceedings is not in question. As the trial court observed, our jurisprudence is replete with instances in which the same judge hears a defendant’s Prieur motion, motion to suppress or motion in limine presides over the defendant’s trial. Indeed, the defendant opted to waive trial by jury and elected to be tried by this same judge immediately after his motion to re-cuse was denied.

These assignments of error are without merit.

Assignment of Error 3. The trial court erred in failing to compel compliance of the plea agreement struck between the District Attorney and Appellant’s counsel.

Boyte argues that the court erred in failing to “require” or “compel” the specific performance of his plea agreement with the district attorney wherein Boyte would be allowed to plead guilty in exchange for a 1¡^suspended sentence.

A plea bargain is a contract between the state and a defendant. State v. Lewis, 539 So.2d 1199 (La.1989). The consent of both parties is required. Error, fraud, or duress may vitiate consent. Id. Error vitiates consent when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. Id.

In State v. Manchester, 545 So.2d 528 (La.1989), the supreme court explained that a trial judge has the right to reject a plea bargain even if the state and the defendant both concur as to its terms. However, a trial court may not deny a defendant the right to withdraw a guilty plea when the trial court rejects the agreement regarding the punishment to be imposed that is a part of the bargain that led to the guilty plea. In the instant case, the defendant did not plead guilty and there was nothing for the trial court to compel the prosecutor to do. Indeed, the prosecutor limited the charge against Boyte to a single count of malfeasance and maintained that limited charge even though he could have brought perhaps seven counts (or at least three).

After the trial court rejected the suspended sentence provision of the agreement, pursuant to the motion to suppress, the prosecutor and defendant’s counsel agreed that no evidence against the defendant that arose from his statements made in furtherance of the plea agreement would be admissible; the evidence presented at trial consisted of evidence developed without the defendant’s assistance. Although we are somewhat astounded | ar,that the state would offer a plea agreement that included a suspended sentence without involving the court, we find no error in the trial court’s exercise of its discretion to reject this plea agreement limiting the court’s sentencing options. Given the arguments presented at the hearing on the motion to enforce the immunity agreement and the resultant limitation of the evidence presented at trial, we find no violation of Boyte’s due process rights in the trial court’s handling of this matter. This assignment of error is without merit.

Assignment of Error 5. The sentence imposed is excessive and disproportionate and a needless imposition of pain and suffering, and, therefore, is in violation of Article 1 of the Louisiana Constitution of 1974, as amended.

Assignment of Error 6. The trial court did not adequately consider mitigating circumstances in this matter.

Assignment of Error 7. The trial court failed to articulate adequate reasons which would serve as a factual basis for the sentence imposed.

Assignment of Error 8. The trial court failed to adequately consider an alternative and/or significantly less harsh sentence.

Assignment of Error 9. The sentence is unconstitutional on its face as it exceeds the statutory maximum sentence that could be imposed.

The defendant finally claims that his sentence is too harsh. La. R.S. 14:134 provides, in part:

Whoever commits the crime of malfeasance in office shall be imprisoned for not more than five years with or without hard labor or shall be fined not more than five thousand dollars or both.

As noted, the defendant’s five-year sentence is the maximum permitted by the statute, although his $3,500.00 fine is less than the maximum.

127The test imposed by the reviewing court in determining the exces-siveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 438 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2 Cir. 2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2 Cir. 1/28/04), 865 So.2d 284, units denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2 Cir. 04/22/04), 873 So.2d 747, unit 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. 2 Cir. 3/1/00), 754 So.2d 392, unit denied, 00-1467 (La.2/2/01), 783 So.2d 385.

J^Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonan-no, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La. 1992); State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864.

In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Russell, 40,526 (La.App. 2 Cir. 1/27/05), 920 So.2d 866, unit denied, 2006-0478 (La.9/29/06), 937 So.2d 851; State v. Jackson, 612 So.2d 993 (La.App. 2 Cir.1993). The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof that the defendant committed the other offenses. State v. Jones, 31,569 (La. App. 2 Cir. 12/9/98), 724 So.2d 810; State v. Anderson, 30,060 (La.App. 2 Cir. 10/29/97), 702 So.2d 40, 42.

|gsAs a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Woods, 41,420 (La.App. 2 Cir. 11/1/06), 942 So.2d 658; State v. Brisco, 33,179 (La.App. 2 Cir. 4/5/00), 756 So.2d 644, unit denied, 2000-1478 (La.5/25/01), 792 So.2d 749; State v. Grissom, 29,718 (La.App. 2 Cir. 8/20/97), 700 So.2d 541. However, a trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App. 2 Cir. 5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App. 2 Cir. 1/28/04), 865 So.2d 280, writ denied, 2004-0597 (La.9/24/04), 882 So.2d 1165.

In this case, the record reflects that the trial court gave thorough, detailed and accurate consideration to those factors important in the determination of a proper sentence for Boyte. The defendant exhibited a pattern of conduct as the director of public works that, as the trial court stated, “he treated the office as though it was his own private company doling out favors to those of his choosing.” The defendant received a significant reduction in his maximum sentence exposure due to the prosecutor’s decision to charge him with only a single count of malfeasance in office. The defendant’s actions were not justified by any need or reason, and perhaps most importantly the defendant has a felony conviction and other criminal involvement for events that occurred after the auditor’s report of his conduct at the OPPJ came to light. There is no valid comparison with the conduct of others involved with the OPPJ scandals as each of those |3ncases is unique. This defendant’s five-year sentence, with eighteen months suspended, is justified by the facts, was adequately supported by the trial court’s reasons, and is not constitutionally excessive.

Additionally the defendant complains that the trial court erred in imposing an additional year of imprisonment should he fail to timely pay the fine imposed. La. C. Cr. P. art. 884 provides, in part:

If a sentence imposed includes a fine or costs, the sentence shall provide that in default of payment thereof the defendant shall be imprisoned for a specified period not to exceed one year....

The record does not reflect that the defendant is indigent; accordingly, the additional “default time” may legally be imposed. State v. Lukefahr, 363 So.2d 661 (La.1978), cert, denied, Lukefahr v. Louisiana, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979).

These assignments of error are without merit.

CONCLUSION

For the above reasons, we affirm Boyte’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Casandra Pratt NEWTON a/k/a Cassandra J. Pratt, Appellant.
    No. 42,743-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 19, 2007.

      Hugh Cameron Murray, for Appellant.
    Jerry L. Jones, District Attorney, Madeleine M. Slaughter-Young, Assistant District Attorney, for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   DREW, J.

|, Cassandra Pratt Newton was convicted of obstruction of justice, La. R.S. 14:130.1. Adjudicated as a third felony offender, she was sentenced to 15 years at hard labor without benefit of probation or suspension of sentence. We affirm.

FACTS

In the early morning hours of August 23, 2003, the Monroe Fire Department was dispatched to a fire at 804 South 4th Street, where a body was found inside the smoldering ruins of the home. The corpse was that of Ivory Latron Newton, Cassandra’s husband, who shared the rental home with his wife and children.

Cassandra arrived at the blaze, claiming she had heard that Ivory had perished in the fire. She indicated that the two of them had rented a motel room for the night and she had not been home when the fire erupted. She agreed to meet with investigators, who found that an accelerant had been used to ignite the fire.

About five months before the fire, Cassandra obtained insurance policies covering the contents of the rent house. She also bought a life insurance policy on Ivory’s life, with a rider allowing for additional benefits in the event that he died as a result of a fire at that location. Cassandra was the sole beneficiary of the policies.

The investigation revealed that Ivory and Cassandra had been searching for an arsonist to destroy the structure in exchange for the insurance proceeds relative to the contents of the home.

LA matter of hours before the fire, the Newtons rented a truck to move some of their new furniture from their home to a storage facility. They also moved some of their newer furniture to her sister’s home, in exchange of some of her old furniture, which they moved to the house that burned hours later. The owner of the truck thought it strange that the Newtons were so insistent that the furniture be moved that very evening. At the time of the fire, the house did not contain much at all.

Investigators found that the fire had been intentionally set, as evidenced by the strong odor of gasoline present in the home as well as a water can containing gasoline found within the house. An autopsy revealed that Ivory died from smoke and soot, inhalation, meaning that he was alive when the fire began.

The water can was the only one of its kind sold by the local Wal-Mart within the month before the fire. The store’s security tape showed Ivory arriving in Cassandra’s car with another person sitting in the front seat. Inside the store, Ivory purchased the water can and a pair of black gloves identical to the ones found at the scene of the fire. The defendant was observed later that evening with an unidentified male at a Texaco gas station, where she purchased gas and other items.

Shortly after the fire was discovered, Cassandra asked Shameka Coleman for a ride to her home from the motel, advising that the house was on fire and she needed to go there but could not continue to pass the scene in her own vehicle. Shameka never picked Cassandra up, but later saw the 1 .¡defendant, whereupon Cassandra told her things were not supposed to happen the way they did.

Cassandra was charged with second degree murder, obstruction of justice, and arson with intent to defraud. A jury convicted her of obstruction of justice but found her not guilty of the other crimes. Initially sentenced to 10 years at hard labor, she received the 15-year sentence after her adjudication as a third felony offender.

DISCUSSION

Responsive Verdict

Defendant assigns as error the trial court’s failure to list attempted obstruction of justice as a proper responsive verdict to the charge of obstruction of justice.

The state responds that defendant:

• actually objected to attempted offenses being included on the verdict form for any of the charges faced by the defendant; and
• failed to object to the charges and thus cannot now raise the issue on appeal.

Unless objected to contemporaneously, an irregularity or error in the charge to the jury may not be asserted on appeal. La. C. Cr. P. art. 841; State v. Belgard, 410 So.2d 720 (La.1982); State v. Wilson, 28,408 (La.App. 2d Cir.8/21/96), 679 So.2d 963. There are no statutory responsive verdicts provided in Article 814 for obstruction of justice, and the matter is therefore controlled by La. C. Cr. P. art. 815, which provides:

In all cases not provided for in Article 814, the following verdicts are responsive: (1) Guilty;

L(2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense is a misdemeanor; or
(3) Not guilty.

Our law on responsive verdicts in jury trials is clear.

Attempted obstruction of justice is a proper responsive verdict to a bill of information charging obstruction of justice. State v. Butler, 41,985 (La.App. 2d Cir.6/20/07), 960 So.2d 1208.

After each side rested its case, the court conducted a thorough hearing as to the appropriate language of the jury charge. At one point, attempt as a responsive ver-diet was discussed, but no specific request to include an attempt was made; neither was there any ruling on the subject. The trial court posed a question as to whether attempt should be included as a responsive verdict to the obstruction of justice charge. The dialogue went as follows:

The Court: Seems to me what’s the obstruction of justice case? The concealment of—
The State (Mrs. Slaughter): Moving, concealing, just moving is sufficient.
|sThe Court: Y’all want attempt in there or just leave it? Let me look at the definition first.
Defense (Mr. Scott): I think that attempt would ... unless attempt is included in the definition then attempt would be added if it reasonably could be found based upon the facts presented.
The Court: What’s your conclusion? Of course being a defense attorney you’re saying no jury can reasonably conclude that my client is guilty but it’s to your advantage or disadvantage to have it in there? This is what the instruction would be — ...

Before the trial court received an answer to this query, the discussion moved to another topic, resulting in the issue never being revisited. Importantly, when the jury retired, no objection was made as to the charge.

In a motion for new trial, the defense raised the issue that the trial court failed to give a responsive verdict to the jury on the obstruction of justice charge, but focused upon the trial court’s failure to include the penalty in the charge. The trial court properly ruled that the defendant failed to make a contemporaneous objection to the alleged omission, and waived any right to preserve this issue on appeal.

We agree. Discussion was had on the issue, but the defendant failed to request the possible additional charge.

La. C. Cr. P. art. 803 mandates that the trial court shall charge the jury as to the law applicable to the charged offense and to any other offenses of which the accused could be found guilty under the provisions of La. C. Cr. P. arts. 814 or 815. No one pursued this issue at trial and it is not properly preserved for our review.

| Sentencing

Defendant argues that the trial judge improperly increased her potential maximum penalty by making a factual determination regarding the underlying criminal proceeding involved with the obstruction of justice charge, a determination which, she urges, should have been decided by the jury.

The state contends that the jury made all factual determinations, and the only issue determined by the trial judge was sentencing, which was within its discretion.

This recent jurisprudential holding is instructive:

[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,147 L.Ed.2d 435 (2000).

This case is distinguishable from the Apprendi situation, where, after conviction but before sentencing, the district attorney filed a motion for enhanced penalties under a separate statute. After conducting a hearing, the trial judge found that the defendant had indeed acted with a biased purpose, and thus the enhancement statute could be used to increase the defendant’s sentence. The Supreme Court held that penalty enhancing findings cannot be made by the trial judge, but the determinations of fact must be submitted to the jury. Apprendi, supra. In the instant case, the trial court made no factual determinations that would lead to an increase in the maximum sentence imposed upon the defendant.

17Count Three of the bill of indictment charged the defendant as follows:

On or about 23 of Aug 2003 intentionally, wilfully and unlawfully commit the crime of obstruction of justice by the following, to-wit: attempting to remove and conceal evidence of arson with intent to defraud and aggravated arson, contrary to the provisions of R.S. 14:130.1.

(Our emphasis.)

The penalty provision of La. R.S. 14:130.1 provides as follows:

B. Whoever commits the crime of obstruction of justice shall be subject to the following penalties:
(1) When the obstruction of justice involves a criminal proceeding in which a sentence of death or life imprisonment may be imposed, the offender shall be fined not more than one hundred thousand dollars, imprisoned for not more than forty years at hard labor, or both.
(2) When the obstruction of justice involves a criminal proceeding in which a sentence of imprisonment necessarily at hard labor for any period less than a life sentence may be imposed, the offender may be fined not more than fifty thousand dollars, or imprisoned for not more than twenty years at hard labor, or both.
(3)When the obstruction of justice involves any other criminal proceeding, the offender shall be fined not more than ten thousand dollars, imprisoned for not more than five years, with or without hard labor, or both.

La. R.S. 14:53, arson with intent to defraud, provides, “Whoever commits the crime of arson with intent to defraud shall be fined not more than ten thousand dollars, imprisoned with or without hard labor for not more than five years, or both.”

La. R.S. 14:51 provides, in part, whoever commits the crime of aggravated arson shall be imprisoned at hard labor for not less than six nor more than 20 years, and shall be fined not more than $25,000. Two years of |ssuch imprisonment at hard labor shall be without benefit of parole, probation, or suspension of sentence.

La. R.S. 15:529.1 A(l)(b)(i) provides if the third 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 person shall be sentenced to imprisonment for a determinate term 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.

The law on the rule of lenity is well established.

The existence of dual sentencing schemes did not change the maximum penalty provided. The trial court was only required to make a determination of the underlying criminal proceedings (as charged in the bill) that were the basis for the obstruction of justice charge. The trial court concluded that the jury convicted the defendant of obstructing the investigation of both offenses (aggravated arson and arson with intent to defraud). We agree. The conjunctive listing of the crimes in Count Three of the bill subjects the defendant to the penalty provisions for either crime, as it appears that the jury decided that the defendant tried to impede the investigations as to each type of arson. No objection was made below [ 3seeking to quash Count Three. The defendant was lawfully and appropriately sentenced.

The trial court is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App. 2d Cir.1/26/05), 892 So.2d 710.

This defendant has a record which includes 21 arrests, and six convictions. For whatever reason, she received great leniency from this particular jury.

We affirm the very reasonable sentence imposed by the trial court.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . Defendant is referred to as “Casandra Pratt Newton” and "Cassandra J. Pratt” in the record; she is referred to as “Cassandra” in this opinion.

      . The statutory requirement that the trial judge charge the jury as to the law that is applicable to the case includes all other offenses of which the defendant may be convicted by responsive verdict. State v. Wilson, 315 So.2d 646 (La. 1975). When a defendant requests and is refused a jury instruction on a lesser and included offense, or when the defendant timely objects to the trial court's failure to give a responsive verdict instruction to which he is statutorily entitled, the conviction may be reversed. State v. Wright, 598 So.2d 493 (La.App. 2d Cir. 1992).
      Lesser and included offenses are those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged. State v. Porter, 93-1106 (La.7/5/94), 639 So.2d 1137; State v. Dufore, 424 So.2d 256 (La.1982); State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982).
      If there is no evidence reasonably supporting a verdict, then such a verdict may be excluded as a possible responsive verdict. La. C. Cr. P. art. 814(A); State v. George, 26,867 (La.App.2d Cir.4/5/95), 652 So.2d 1382, writ denied, 95-1151 (La.9/29/95) 660 So.2d 855; State v. Harris, 25,539 (La.App. 2d Cir. 12/1/93), 627 So.2d 78[788], writ denied, 93-3188 (La.3/18/94), 634 So.2d 851.

      . It is a well-established tenet of statutory construction that criminal statutes are subject to strict construction under the rule of lenity. Thus, criminal statutes are given a narrow interpretation and any ambiguity in the substantive provisions of a statute as written is resolved in favor of the accused and against the State. State v. Carr, 1999-2209 (La.5/26/00), 761 So.2d 1271. In the absence of express legislative intent, principles of lenity require that any ambiguity in a sentencing statute be resolved in favor of the defendant. State v. Bums, 29,632 (La.App. 2d Cir.9/24/97), 699 So.2d 1179.
      The rule of lenity applies not only to interpretations of the substantive ambit of criminal laws, but also to the penalties imposed by those laws. When a criminal statute provides inconsistent penalties, the rule of lenity directs the court to impose the least severe penalty. State v. Campbell, 2003-3035 (La.7/6/04), 877 So.2d 112.


text:
    LOUISIANA DEPARTMENT OF AGRICULTURE AND FORESTRY, et al., Plaintiff-Appellee, v. Eugene HARPER, Defendant-Appellant. Eugene Harper, Plaintiff-Appellant, v. Louisiana Department of Agriculture, et al., Defendant-Appellee.
    Nos. 42,597-CA, 42,598-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 19, 2007.

      Eugene Harper, In Proper Person.
    Charles E. Herring, Jr., Special Assistant Attorney General, for Appellee, Charles C. Foti, Jr.
    James M. Montgomery General Counsel, Charles E. Herring, Jr., Special Assistant Attorney General, for Appellee, State of Louisiana, Department of Agriculture and Forestry, Bob Odom, Commissioner of Agriculture of the State of Louisiana and Louisiana Sweet Sweet Potato Advertising and Development Commission.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   WILLIAMS, J.

I,The appellant, Eugene Harper, appeals judgments in favor of the appellee, Louisiana Department of Agriculture and Forestry (“the Department”). The trial court rendered judgment denying Harper’s motion for injunctive relief and granting the Department a permanent injunction prohibiting Harper from engaging in the commercial sale of sweet potatoes until his payment of all taxes and fees owed. Additionally, the court rendered judgment sustaining the Department’s exception of no cause of action. For the following reasons, we affirm.

FACTS

Eugene Harper is a sweet potato farmer in Morehouse Parish, Louisiana. Two statutory programs concerning the commercial growing and selling of sweet potatoes are at issue in this case. One program provides for advertising and promoting the use of sweet potatoes and the other concerns the control of sweet potato insects. Under the advertising program, the Department levies a tax of four cents per 50-pound bushel that is collected from sweet potato shippers to fund the Louisiana Sweet Potato Advertising and Development Commission (“Commission”). The regulations governing the insect program are set forth in the Louisiana Administrative Code (LAC), Title 7, Part XV, Chap. 1(C), sec. 133-147, entitled “Sweet Potato Weevil Quarantine.” To fund the program, the Department charges a fee of six cents per bushel of sweet potatoes shipped within the state. Under the regulations, all farmers who commercially grow and sell sweet potatoes must obtain a Sweet Potato Dealer’s Permit. Since 2001, Harper has continued his farming activity, but has not paid the sweet potato fees and he failed to renew his dealer’s permit.

lain January 2006, the Department held an adjudicatory hearing concerning Harper’s alleged failure to pay the fee assessment required under the sweet potato program. The hearing officer found that Harper had failed to pay the required fee assessment in violation of LSA-R.S. 3:1734 and had failed to obtain a valid Sweet Potato Dealer’s Permit, in violation of LAC 7-.XV.147. Based upon these findings, the Commissioner of Agriculture imposed penalties and fees of $11,358 against Harper, who neither appealed the decision nor paid the penalties and fees.

In May 2006, the Department filed a petition for preliminary and permanent injunction seeking to prohibit Harper from engaging in the commercial growing, distribution or sale of sweet potatoes until he obtained a valid Sweet Potato Dealer’s Permit. The Department also sought to make the imposed fine of $11,358 executo-ry in Morehouse Parish. After a hearing in June 2006, the trial court issued an order finding that Harper had failed to pay the sweet potato fees and instructing Harper to contact the Department to establish a plan for payment of the taxes, fees and civil penalties owed and to comply with the statutory fee requirements.

In August 2006, Harper filed a petition against the Department and the Commission alleging that the taxes and fees imposed by the state were unconstitutional and seeking injunctive relief prohibiting the collection of those assessments. He also sought monetary damages for the Department’s alleged failure to issue a USDA grade for his sweet potatoes. In October 2006, the Department filed a petition for permanent injunction on the grounds that Harper had failed to comply with the June 2006 court order and filed a motion to | ¡¡consolidate the two actions. The Department also filed an exception of no cause of action as to Harper’s claim for damages.

After a hearing, the trial court rendered judgment granting the permanent injunction prohibiting Harper from engaging in the commercial growing and sale of sweet potatoes until he obtained a valid dealer’s permit and denying the injunctive relief sought by Harper. The court rendered a separate judgment sustaining the exception of no cause of action. Harper appeals the judgments.

DISCUSSION

Harper contends the trial court erred in granting a permanent injunction prohibiting him from commercially growing or selling sweet potatoes on the basis of his failure to pay fees assessed by the Department. Harper argues that as a farmer he is exempt from paying license taxes under the Louisiana Constitution.

The state levies a tax at the rate of four cents per bushel of 50 pounds on all Louisiana sweet potatoes shipped in the state. LSA-R.S. 3:455. The Department shall collect this tax from the shipper with the proceeds to be disbursed for advertising sweet potatoes. LSA-R.S. 3:456. The tax imposed by Section 455 is collected from the shipper without regard to whether or not he is the grower or producer. The Louisiana Supreme Court has found that the tax imposed pursuant to Section 455 is a license tax as opposed to a tax on property. Stanford v. La. Sweet Potato Advertising & Development Commission, 255 La. 96, 229 So.2d 712 (1969).

Harper argues that under La. Const.1921, art. X, sec. 8, he is exempt from the tax because he is engaged in agricultural pursuits. To support his ^argument, Harper cites Stanford, supra, which held that the tax on sweet potatoes shipped by the grower violated the Louisiana Constitution. However, when the cited case was decided, Article X, sec. 8 specifically prohibited the imposition of a tax on the privilege of pursuing the occupation of farming. Significantly, this prohibition was not carried over in the subsequent Louisiana Constitution of 1974. Dozier v. Burleigh, 380 So.2d 197 (La. App. 3rd Cir.1980). Thus, the 1974 Constitution, which is the applicable law in this case, does not prohibit the state legislature from imposing a tax on the right to pursue the occupation of farming. Dozier, supra. Consequently, Harper is required to pay the tax imposed on shipments of sweet potatoes.

To support his argument that a license tax may not be imposed on farmers, Harper also cites LSA-R.S. 47:360(E), which provides for exemptions from occupational license taxes imposed by a municipality or parish. Additionally, he cites La. Const. 1974, art. 6, sec. 28, which provides that a local government may impose an occupational license tax not greater than that imposed by the state. However, these provisions are not applicable to Harper’s situation, since the sweet potato tax is imposed by the state, not by a parish or municipality. The assignment of error lacks merit.

Harper contends the trial court erred in granting an injunction prohibiting him from commercially growing and selling sweet potatoes. LSA-R.S. 3:1732 gives the Commissioner of Agriculture the authority to promulgate and enforce the rules and regulations to control or prevent the introduction of diseases and insect pests. To carry out this program the Department was authorized to charge a fee of not more than six cents per bushel of sweet potatoes shipped in [Kthe state, as established by administrative rule. LSA-R.S. 3:1734. Accordingly, the Department established a fee of six cents per bushel of sweet potatoes shipped in the state. This fee is assessed based on the average marketable yield of bushels per acre of sweet potatoes planted. LAC 7:XV.143. All persons, including sweet potato farmers, who commercially grow and sell sweet potatoes must possess a valid Sweet Potato Dealer’s Permit. LAC 7:XV.147.

In the present case, the record shows that Harper failed to comply with the district court’s June 2006 order to establish a schedule for paying all of the taxes and fees owed. Subsequently, the Department sought a permanent injunction prohibiting Harper from commercially growing or selling sweet potatoes until he paid all fees and fines due and obtained a valid Sweet Potato Dealer’s Permit. Pursuant to LSA-R.S. 3:1736(E), the Department may institute civil proceedings seeking injunctive relief to restrain and prevent the violation of the statutory and regulatory provisions of the sweet potato pest-control program. Thus, contrary to Harper’s contention that the Department did not have a legal basis for an injunction, Section 1736(E) provided the statutory authority for the Department to seek injunctive relief to prevent Harper from continuing to violate the applicable provisions of the sweet potato weevil quarantine program. The assignment of error lacks merit.

Harper contends the trial court erred in failing to provide reasons for the judgment rendered. An appeal is taken from an adverse judgment, not from the opinion of the court. The trial court’s reasons for judgment, while explaining the principles upon which the court is deciding a case, are not a part of the signed judgment being appealed. Alvarez v. Ciasen, 06-304 (La.App. 5th Cir.| ,10/31/06), 946 So.2d 181.

In the present case, the judgment granting the Department a permanent injunction states the trial court’s findings that Harper had violated the provisions of LSA-R.S. 3:1731-1736 and had failed to comply with the court’s prior order directing Harper to pay the fees and penalties owed. Thus, the basis for the trial court’s decision is expressed in the judgment. A party has ten days after the notice of judgment has been mailed to request that the trial court issue written reasons for judgment, but Harper failed to do so. LSA-C.C.P. art.1917. The assigned error lacks merit.

Harper also alleges as error the Department’s failure to produce documentation of the amount of fees he allegedly owes. We note that the Department’s petition for permanent injunction is not based on the amount of fees and penalties owed by Harper. The determination of the total amount owed by Harper will be addressed in the Department’s pending action to collect unpaid fees and penalties and that issue is not before this court on appeal. The assignment of error lacks merit.

Harper contends he is entitled to injunc-tive relief to prevent the department from collecting the sweet potato tax and to damages for the time that the Department’s permanent injunction has been in effect. As previously discussed, Harper is not exempt from payment of the sweet potato fees and taxes and must abide by the applicable statutory provisions if he wishes to continue his activity as a Louisiana commercial sweet potato farmer. Based upon this record, Harper has not established a basis for injunctive relief and has not shown that he has been damaged by the Department’s implementation of the |7sweet potato program. The assignment of error lacks merit.

Harper also contends the Department does not have authority to enforce payment of the sweet potato tax. Harper cites LSA-R.S. 3:458, which provides that a shipper who fails to pay the sweet potato tax levied under Section 455 shall be liable to a penalty and the attorney general shall enforce payment of the tax and penalty. As previously stated, the judgment at issue in this appeal granted injunctive relief to the Department pursuant to Section 1736(E), based upon Harper’s non-compliance with a prior order of the district court. Thus, enforcement of the tax levied for advertising sweet potatoes is not an issue in this appeal. The assigned error lacks merit.

Harper alleges as error the trial court’s consolidation of his lawsuit with that of the Department. LSA-C.C.P. art. 1561 provides that a court in which two separate actions are pending may order consolidation of the actions for trial when common issues of fact and law predominate.

Here, the record shows that both lawsuits arise from Harper’s activities as a commercial sweet potato farmer and the Department’s implementation of the fee assessment program. Both lawsuits involve predominately common issues of fact and law and Harper has not shown that consolidation prevented a fair trial or prejudiced his rights. Thus, we cannot say the court erred in ordering consolidation in this case. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgments are affirmed. Costs of this appeal are assessed to the appellant, Eugene Harper.

AFFIRMED.