author: PICKETT, Judge.

text:
    SUCCESSION OF Joseph Ames GUIDRY.
    No. 2006-1089.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.
    Randy P. Angelle, Bernard & Angelle, Lafayette,.LA, for Appellee, William Jerry Guidry, Jr.
    James L. Brazee Jr., Brazee, Cormier & Gallaspy, Lafayette, LA, for Appellant, Gail Guidry.
    Court composed of GLENN B. GREMILLION, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

111ntervenor, Gail Guidry, the only daughter of the deceased, Joseph Ames Guidry, appeals a judgment of the trial court sustaining an exception of no right of action and dismissing her intervention. We affirm the judgment of the trial court.

FACTS

Joseph Ames Guidry died on September 27, 2004. He had been married once, to Ruth Hebert Guidry, which marriage ended in divorce. One child was born of the marriage., the appellant, Gail Guidry. Before his death, Mr. Guidry executed three notarial testaments, the first on March 28, 2001, the second on December 19, 2002, and the third, the will at issue, on March 18, 2003. The first two testaments left the whole of his estate to the Navy-Marine Corps Relief Society. The third and final testament left the whole of his estate to his nephew, William Jerry Guidry Jr. That testament was submitted for probate, in these proceedings, on October 4, 2004.

Thereafter, on November 16, 2004, the intervenor/appellant, Gail Guidry filed a “Petition To Annul Probated Testament” in these proceedings alleging that at the time the third testament was executed, the deceased was in the advanced stages of Alzheimer’s disease and thus lacked the capacity to execute a new testament and/or that the universal legatee, William Jerry Guidry Jr., “exercised undue influence over the decedent so as to substitute his own volition for that of the decedent.”

William Jerry Guidry Jr. filed a peremptory exception of no right of action on February 17, 2006. The trial court sustained the exception and this appeal followed.

LAW AND DISCUSSION

Louisiana Code of Civil Procedure Article 681 states: “Except as otherwise provided by law, an action can be brought only by a person having a real and actual 1 ainterest which he asserts.” A persons who is not an heir of the testator can not maintain an action to annul the testator’s will. Succession of Gardiner, 366 So.2d 1065 (La.App. 3 Cir.), units denied, 369 So.2d 154, and 369 So.2d 156 (La.1979); Succession of Wilson, 210 So.2d 602 (La.App. 2 Cir.), writ refused, 252 La. 838, 214 So.2d 162 (La.1968), appeal dismissed, cer-tiorari denied, 394 U.S. 713, 89 S.Ct. 1465, 22 L.Ed.2d 673, appeal dismissed, certiorari denied, 394 U.S. 713, 89 S.Ct. 1470, 22 L.Ed.2d 764.

In Estate of Mallet v. Mallet, 527 So.2d 30 (La.App. 3 Cir.1988), writ denied, 528 So.2d 155 (La.1988) we stated the following:

C.C.P. art. 2972 provides:
“ART. 2972. OPPOSITIONS
An opposition to the petition, motion, or other application of a party to a succession proceeding for an order or judgment of the court shall be in writing and be filed within the delay allowed. It shall comply with the provisions of Articles 853 through 863; shall state the name, surname, and domicile of the opponent; shall allege the interest of opponent in filing the opposition, and the grounds for opposing the petition, motion, or other application; and shall conclude with a prayer for appropriate relief.”
For one to be allowed to oppose a succession proceeding, one must have a justiciable interest in doing so. One must therefore be able to benefit from the attack. Succession of Kilpatrick, 356 So.2d 1083 (La.App. 2nd Cir.1978), writ denied 359 So.2d 198 (La.1978), appeal after remand, 422 So.2d 464 (La. App. 2nd Cir.1982), writ denied 429 So.2d 126 (La.1983). The interest may come in the form of being named as executor of the estate, see Kilpatrick, supra, or as attorney for a succession, see Succession of Pope, 230 La. 1049, 89 So.2d 894 (La.1956), or gaining an interest as an heir or legatee.

In the case sub judice, Gail Guidry would neither inherit nor share in any inheritance from the testator, her father, even if the testament were annulled. The Louisiana Supreme Court discussed the exception of no right of action in Badeaux v. Southwest Computer Bureau, Inc., 05-0612, pp. 6-7 (La.3/17/06), 929 So.2d 1211, 1216-17:

[T]he focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit....
The function of an exception of no right of action is a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. La. C.C.P. art. 927; Turner v. Busby, 03-3444, p. 4 (La.9/9/04), 883 So.2d 412, 415. The exception of no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Id.

Inasmuch as she would not gain an interest as an heir of the legatee, she does not belong to “the class of persons that has a legal interest in the subject matter of the litigation.”

Accordingly, for the reasons stated, the judgment of the trial court is affirmed. All costs of this appeal are assessed against appellant, Gail Guidry.

AFFIRMED.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    STATE of Louisiana, in the Interest of J. M., Plaintiff-Appellee v. Theodore J. MALANT, Defendant-Appellant.
    No. 41,670-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      Michael David Cox, for Appellant.
    W. Eugene Golden, Shreveport, for Ap-pellee, J. M.
    David K. Handelman, Shreveport, for Appellee, Robin Brooks.
    Audie L. Jones, Shreveport, for Appel-lee, State of Louisiana, DOSS.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   WILLIAMS, Judge.

hThe father, Theodore Malant, appeals a juvenile court judgment finding that the minor child, J. M., is a child in need of care and maintaining custody of the child with the Louisiana Department of Social Services (“DSS”), subject to the parents’ right of unsupervised visitation every other weekend. For the following reasons, we affirm.

FACTS

Theodore Malant (“Ted”) and Robin Brooks (“Robin”) are the parents of the minor child, J. M., who was born on May 23, 2000. The parents were never married to each other and never lived together. The record shows that in 1991, Ted was convicted of sexual assault of a child in Texas and was sentenced to seven years’ probation with a deferred adjudication. The parents were originally granted joint custody, and Robin was awarded domiciliary parental status. Shortly after the original custody hearing, problems arose. J.M. told Ted that Robin had bitten him and the child began to act aggressively with other children. In November 2003, following the child’s visit with Robin, Ted took J.M. to Willis-Knighton Medical Center in Bossier City, Louisiana, because he had a large bruise on his forehead, which was diagnosed as a “closed head injury.”

In December 2004, J. M., who was four years old, told Ted that Robin and her brother, Brad Fairchild, had touched his private areas with their fingers and had hurt him. The child repeated these statements to staff members at the Gingerbread House. Ted filed suit seeking in-junctive relief (a protective order) against Robin, alleging sexual misconduct and asking for a change in the existing custody status. Shortly thereafter, the district | .¿court issued an interim order granting Ted custody and domiciliary status during the school year (75% of the time) and granting Robin the same during the summer months (25% of the time). Robin was restricted to “supervised visitation” at that point. In April 2005, the court rendered judgment in which Ted was designated the domiciliary parent during the school year and Robin was designated the domiciliary parent during the summer months. The non-custodial, non-domiciliary parent was given visitation with J.M. for three hours every Tuesday evening and weekends alternated between parents. In addition, the court ordered that Robin’s brother was to have no contact whatsoever with the child.

In July 2005, Ted filed a “motion for contempt” in Bossier District Court alleging that J.M. was being beaten by Robin and that she was “once again condoning her brother’s sexual molestation of the minor child.” Robin responded with motions for change of custody, contempt and sanctions. After a hearing, the court rendered judgment maintaining joint custody between the parties, declaring that neither parent was designated as the domiciliary parent and changing custody so that J.M. spent the school year with Robin and the summer with Ted. The judgment was silent on the issues of contempt and sanctions. On appeal, this court concluded that the trial court had erred in excluding the physician testimony offered by the father, reversed the court’s award of domiciliary custody to the mother and remanded for further proceedings. Malant v. Brooks, 41,133 (La.App.2d Cir.5/19/06), 929 So.2d 297 (unpublished).

In January 2006, while the prior appeal was pending, Ted filed a | ¡¡complaint with DSS, Office of Community Services in Caddo Parish, alleging additional physical and sexual abuse of the child by Robin. DSS filed an affidavit alleging physical abuse by the child’s mother and emotional abuse by the father. The juvenile court issued an instanter order placing J.M. in state custody. At the adjudication hearing, the parties stipulated that J.M. was a child in need of care.

After a disposition hearing in March 2006, the juvenile court ordered that the child remain in state custody, finding that both parents had abused the child, as defined in LSA-Ch.C. art. 603(l)(a). Specifically, the court found that the mother had repeatedly perpetrated physical abuse upon the child, including a severe head injury in November 2003, for which she failed to seek medical attention. The court further found that the father had inflicted emotional and mental abuse upon the child by alienating the child from his mother, coaching the child to exaggerate abuse by the mother, and subjecting the child to forensic examinations and interviews concerning allegations of abuse without the involvement of professionals skilled in examining or questioning children.

After a case review hearing in May 2006, the juvenile court issued findings that J.M. continued to be a child in need of care, that DSS had made reasonable efforts to finalize a permanent plan of reunification and that this plan was in the best interest of the child. In June 2006, the court rendered judgment maintaining custody of the child with DSS, approving the case plan for the parents and the child, and awarding the mother and father “unsupervised visitation with the child every other weekend from |4Friday 5:00 pm to Sunday 5:00 pm.” The father appealed this judgment.

On August 8, 2006, while this appeal was pending, the juvenile court held another case review hearing and rendered a “judgment modifying disposition,” vacating the state’s custody of J.M. and placing custody of the child with the father, subject to the mother’s visitation “every other weekend from Friday at 3:00 p.m. until the start of school Monday morning and Thursday on the week where there is no weekend visitation from 3:00 p.m. until the start of school Friday.” Subsequently, the state filed a motion to dismiss the appeal on the grounds that the May 2006 judgment was moot, since DSS no longer has custody of J.M. and the father is no longer obligated to complete a case plan.

DISCUSSION

In two assignments of error, the father contends the trial court erred in making certain evidentiary rulings. The father argues that the court should have granted his motion to strike any mention of his prior Texas conviction as irrelevant to the issue of the parents’ treatment of the child in this case.

In a case review hearing, the court shall consider all relevant evidence offered by the parties and may limit the admissibility or weight of any evidence which it deems unreliable or cumulative. LSA-Ch.C. art. 699. The Legislature has enacted special rules which provide for a relaxed eviden-tiary standard to be applied in child custody determinations in order to promote the purposes of the proceeding. LSA-C.E. art. 1101(B)(2); Folse v. Folse, 98-1976 (La.6/29/99), 788 So.2d 1040. In enacting Article 101(B), the Legislature has concluded that the best interests of children are not served by strict application of the rules of evidence. Thus, the trial judge has been given very broad discretion regarding the admissibility of evidence in order that the intended purpose of the proceeding might be served. Folse, supra.

In his brief, the father argues that evidence of his deferred adjudication in Texas should have been excluded because the information was irrelevant to the allegations of abuse against the parents in this case and was unduly prejudicial to the father. However, the trial court could reasonably have found that the father’s prior conviction was a relevant consideration in assessing whether returning custody to the parents would serve the best interests of the child. In addition, the father’s insistence during his testimony and psychological evaluation that he had done nothing wrong in Texas, despite having pled guilty to sexual assault of a child, was a relevant factor in the court’s evaluation of the father’s credibility. Thus, the father’s argument lacks merit.

The father also argues that he was denied a fair hearing by the court’s refusal to allow him to call the child as a witness to contradict the hearsay testimony of other witnesses. The trial court has discretion to admit or exclude witness testimony in furtherance of the public policy favoring the protection of children’s welfare. Folse, supra.

Here, Dr. Susan Vigen, a psychologist, testified that the repetitive questioning of the child by the father, his attorney and the state could have caused the child to doubt his own memory of what actually occurred and |fithat the parents’ contentious custody dispute had placed the child under heavy pressure to align himself with one parent or the other. Both Dr. Vigen and Dr. Deborah Brown, a certified counselor, opined that the previous interrogations by the father’s attorney had been psychologically abusive to the child and that requiring the child to testify in court would further impair the child’s emotional health. After hearing the testimony, the trial court found that having the child testify would cause irreparable and unreasonable harm to the child. Based upon this record, we cannot say the trial court abused its discretion in refusing to call the child as a witness. The assignments of error lack merit.

Emotional Abuse of the Child

In two assignments of error, the father contends the trial court erred in finding that he emotionally abused his son. The father asserts that the evidence does not support the court’s findings that he coached the child to exaggerate the physical abuse by the mother, repeatedly subjected the child to forensic examinations for alleged abuse and alienated the child from his mother.

In reviewing factual findings of the trial court, the issue for the appellate court is not whether the trier of fact was wrong, but whether the findings are reasonable in light of the record as a whole. Foster v. Clarendon National Insurance, 32,646 (La.App.2d Cir.3/1/00), 753 So.2d 968. In custody cases, the paramount consideration is always the best interest of the child. LSA-C.C. art. 134.

Initially, we note that the findings of fact which the father alleges as |verror were issued on April 24, 2006, pursuant to a judgment of disposition signed on April 3, 2006. The father failed to file a timely appeal of this judgment. Thus, the issues raised in the father’s brief are not properly before this court. Even if the assignments of error asserted by the father were considered on review, they would lack merit.

The record contains the psychological report of the father prepared by Dr. Daniel Lonowski, a psychologist, who administered personality tests and interviewed the father. Dr. Lonowski testified that the test results indicated that the father’s personality type tended to be immature, egocentric and self-centered, that he was deceptive in answering questions and gave defensive responses. Dr. Lonowski opined that the father “likely” had overreacted to some of the child’s injuries and had coached his son to make adverse comments about his mother to protect him from perceived abuse. Dr. Lonowski recommended that the father participate in insight-oriented counseling to gain understanding of the way his personality disorder affected his social decision-making.

In his testimony and brief, the father acknowledged that he often videotaped the child preparing for visits with his mother to show that the child did not want to go. The videotapes showed that the father often referred to the child’s mother as “Robin” and said that he could not prevent the child from going on the visits. The father stated that he began taking photographs of various bruises, scratches and marks on the child after almost every visit with the mother in an attempt to document possible physical abuse while in her care.

IsSandi Davis, the court-appointed counselor, testified that the father began to bring the child to her office on a regular basis to show alleged bruises or injuries, but that often such marks were minor. Davis stated that she had repeatedly asked the father to encourage the child to refer to his mother as “mom,” but the father did not cooperate. Davis testified that this behavior was alienating the child from the mother and was confusing the child. Davis opined that the extensive interviews conducted and numerous photographs taken of the child over a significant period of time had emotionally damaged the child.

As pointed out by the father, Dr. Vigen’s March 2006 psychological assessment of the child noted that the responses of the child’s foster mother and teacher in a behavioral questionnaire did not indicate that the child was having attentional, behavioral or emotional difficulties. However, Dr. Vigen also reported the child’s statements that his father had told him he could go to Six Flags and Disney World if the father received custody and that his father brought him something he wanted at every visit. Dr. Vigen wrote that the child’s statements suggested that he had been influenced in his preference to live with the father by the promises of trips and the items given to the child on visits. Dr. Vigen reported that when directly questioned about whether either parent had “touched him in a wrong way,” the child said they had not and denied being touched on his private parts by anyone else. Dr. Vigen concluded that the child remained upset by the continued conflict between his parents and that he needed counseling which provided emotional support.

13The juvenile court heard the extensive testimony in this case and weighed the credibility of the witnesses. Contrary to the father’s assertions, the record contains sufficient evidence to support the court’s findings that the father’s behavior contributed to the child’s emotional and psychological harm as described by the psychologists, that he alienated the child from his mother and that the father allowed his attorney to conduct several questionable interviews of the child without involving properly trained professionals.

Consequently, we cannot say that the juvenile court erred in concluding that J.M. was a child in need of care and in ordering that the child remain in state custody with visitation by the parents. The assignments of error lack merit.

CONCLUSION

For the foregoing reasons, the juvenile court’s June 2006 judgment is affirmed. Costs of this appeal are assessed to the appellant, Theodore Malant.

AFFIRMED.

      . This court denied the motion to dismiss the appeal. State in the Interest of J.M., 41,670 (La.App.2d Cir.9/26/06).


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Darryl F. HENDERSON, Appellant.
    No. 41,657-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      Peggy J. Sullivan, Monroe, for Appellant.
    Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Lea R. Hall, Jr., Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and SEXTON (Pro Tempore), JJ.
   WILLIAMS, J.

LA Caddo Parish Grand Jury returned an indictment charging the defendant, Darryl F. Henderson, with one count of forcible rape, a violation of LSA-R.S. 14:42.1, two counts of aggravated rape, in violation of LSA-R.S. 14:42, and three counts of aggravated kidnapping, in violation of LSA-R.S. 14:44. After a jury trial, the defendant was found guilty as charged on all counts. Thereafter, with regard to the forcible rape conviction, the trial court sentenced the defendant to serve a prison term of 40 years at hard labor without benefit of parole, probation or suspension of sentence. With regard to the aggravated rape convictions, the defendant was sentenced to serve the mandatory term of life imprisonment without benefit of parole, probation or suspension of sentence for each count. The defendant was also sentenced to serve the mandatory term of life imprisonment without benefit of parole, probation or suspension of sentence for each count of aggravated kidnapping. All six sentences were ordered to be served consecutively. The defendant has appealed. Finding no error, we affirm the defendant’s convictions and sentences.

FACTS

On January 30, 2002, the victim, E.S., was walking in her neighborhood, when the defendant approached her in a car. She knew the defendant from the neighborhood. After a brief conversation, the defendant offered E.S. a ride home and she accepted. E.S. soon noticed that the defendant was not driving in the direction of her home. She asked him where he was going, and he did not respond. The defendant then drove to a | gdark, isolated location where he forced E.S. to have vaginal intercourse with him. The defendant then drove E.S. home and offered her money. At the time of the incident, E.S. was 16 years old and the defendant was 35 years old.

On August 17, 2002, the victim, T.P., was waiting for a ride in front of her home when the defendant approached her in a car and demanded that she get into the car. When she refused, the defendant brandished a gun and ordered her to leave with him. The defendant drove T.P. to a secluded location where he forced her to have both vaginal and anal intercourse with him. The defendant threatened to kill T.P. and went to the trunk of his car to retrieve another weapon. When the defendant went to the trunk of the vehicle, T.P. fled and sought help. At the time of the assault, T.P. was 25 years old.

On April 20, 2003, L.S. was walking in her neighborhood when the defendant, armed with a gun, emerged from a trail, grabbed her from behind and forced her into his car. The defendant drove L.S. to a secluded area where he forced her to have vaginal intercourse with him. L.S. escaped from the moving car as the defendant was driving away from the area. At the time of the incident, L.S. was 14 years old.

At the conclusion of the trial, the jury found the defendant guilty as charged of the forcible rape of E.S. and the aggravated rape of T.P. and L.S. The defendant was also found guilty as charged of the aggravated kidnapping of all three victims.

With regard to the forcible rape conviction, the trial court sentenced |sthe defendant to serve a prison term of 40 years at hard labor without benefit of parole, probation or suspension of sentence. With regard to the aggravated rape convictions, the defendant was sentenced to serve the mandatory term of life imprisonment without benefit of parole, probation or suspension of sentence for each count. The defendant was also sentenced to serve the mandatory term of life imprisonment without benefit of parole, probation or suspension of sentence for each count of aggravated kidnapping. All six sentences were ordered to be served consecutively. The trial court denied the defendant’s motion for post-verdict judgment of acquittal and motion to reconsider sentence. The deten-dant now appeals his convictions and sentences.

DISCUSSION

Sufficiency of the Evidence

The defendant first contends the evidence at trial was insufficient to support his convictions. Specifically, the defendant asserts the state failed to prove that his encounters with the victims were not consensual.

The question of sufficiency of evidence is properly raised by a motion for post-verdict judgment of acquittal. State v. Price, 40,408 (La.App.2d Cir.12/16/05), 917 So.2d 1201, writ denied, 2006-0156 (La.6/16/06), 929 So.2d 1284; State v. Howard, 31,807 (La.App.2d Cir.8/18/99), 746 So.2d 49, writ denied, 1999-2960 (La.5/5/00), 760 So.2d 1190. LSA-C.Cr.P. art. 821 provides that a motion for post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty. This is La question of legal sufficiency. State v. Price, supra; State v. Combs, 600 So.2d 751 (La.App. 2d Cir.1992), writ denied, 604 So.2d 973 (La.1992).

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 1997-1203 (La.10/17/97), 701 So.2d 1333.

This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact-finder. State v. Robertson, 1996-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writs denied, 1996-1459 (La.11/15/96), 682 So.2d 1/760, 1998-0282 (La.6/26/98), 719 So.2d 1048.

LSA-R.S. 14:41 defines “rape” as follows:

The act of anal or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent, and any sexual penetration, however slight, is sufficient to complete the crime.

LSA-R.S. 14:42.1 defines “forcible rape” as follows:

[A] rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

LSA-R.S. 14:42 defines “aggravated rape” as follows, in pertinent part:

[A] rape committed ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) WTien the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.

The testimony of the victim alone in a sexual assault case is sufficient to convince a reasonable fact-finder beyond a reasonable doubt of a defendant’s guilt. State v. Rives, 407 So.2d 1195 (La.1981); State v. Price, supra; State v. Wade, 39,797 (La.App.2d Cir.8/09/05), 908 So.2d 1220; State v. Elzie, 37,920 (La.App.2d Cir.1/28/04), 865 So.2d 248, writ denied, 2004-2289 (La.2/4/05), 893 So.2d 83. Furthermore, such testimony alone is sufficient, even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by the defendant. Id.

LSA-R.S. 14:44 provides:

Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or apparent control:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

The abduction of a victim with the intent to commit rape constitutes an intent to force the victim to give up something of apparent or prospective value. State v. Hams, 2001-2730 (La.1/19/05), 892 So.2d 1238; State v. Arnold, 548 So.2d 920 (La.1989); See also, State v. Hill, 40,023 (La.App.2d Cir.9/21/05), 911 So.2d 379.

Victim E.S.

On the night of the incident, E.S. accepted a ride from the defendant. After initially driving in the direction of E.S.’s home, the defendant began driving in a different direction. When E.S. asked where they were going, initially, the defendant did not respond. E.S. continued to question the |7defendant with regard to their destination, and he replied that they were going to “the spot.” The defendant drove to Walker Road and eventually turned onto a dead-end street in a dark isolated area. The defendant stopped the car and told E.S. to get out of the car. E.S. refused to comply and made repeated requests for the defendant to take her home. The defendant attempted to physically remove E.S. from the car, and she made an effort to “brace” herself by pressing her feet onto the floorboard of the car and pushing her body into the seat. The defendant eventually dragged E.S. from the car by her arm and leg. He pushed her to the back of the vehicle where he penetrated her vagina with his penis. When the defendant stopped, he pushed E.S. back to the passenger side of the vehicle. He then opened the trunk of the car, removed a red cloth and wiped his penis. He re-entered the car and drove E.S. back to her neighborhood. As E.S. was exiting the car, the defendant offered to pay her, saying, “Do you want some money for that?” E.S. ran to her home and told her cousin and her grandmother about the attack, and the authorities were alerted. E.S. testified that she remained afraid throughout the experience.

Corporal Morgan King of the Shreveport Police Department was dispatched to E.S.’s residence to investigate the report of the rape. After interviewing E.S., Cpl. King drove her to the location of the scene of the crime, and E.S. identified the area where she had been assaulted and pointed out a discarded condom which Cpl. King collected as evidence. Because the crime scene was located outside of the city limits, Caddo Parish officials were contacted, and the matter was turned over to them. Cpl. King testified |sthat he delivered the evidence he had collected to Corporal John Hay of the Caddo Parish Sheriffs Office, who had been dispatched to meet with Cpl. King with regard to the report of the rape.

Cpl. Hay testified that he went to the crime scene, which he described as an “isolated” area. After interviewing E.S. and her grandmother, Cpl. Hay transported E.S. to Louisiana State University Health Sciences Center for a rape examination.

Although E.S. did not know the name of her assailant, she knew where he lived with his mother, and she provided the officers with a description of the vehicle he was driving. Deputy Marianna McClure, the lead investigator on the case, went to the defendant’s home and transported him to a sheriffs substation for an interview.

Prior to the interview, the defendant executed a waiver of rights form. During the interview, the defendant agreed to provide a deoxyribonucleic acid (“DNA”) sample by signing a consent form. According to Deputy McClure, during the interview, the defendant seemed unconcerned about the seriousness of the accusations. He denied the accusations, stating that he had been with his girlfriend and his sister shooting pool that evening. He was unable to provide the officers with his girlfriend’s name, and he could not provide either the location of the visit with his sister or the location of the pool hall. After the defendant’s DNA sample was collected, he was returned to his residence.

During the trial, E.S., Cpl. King, Cpl. Hay and Deputy McClure testified with regard to the above facts. The defense presented the 19testimony of two witnesses: the defendant and his mother, Peggy Jer-nigam According to Ms. Jernigan, the defendant and E.S. had been engaged in a boyfriend/girlfriend relationship, and E.S. had harassed the defendant on several occasions.

The defendant denied raping E.S., testifying that he and E.S. had engaged in consensual sex on several occasions. The defendant also denied the kidnapping, stating that E.S. had voluntarily entered his car on the night of the incident. He stated that E.S. may have accused him of raping and kidnapping her because she had become disgruntled after he had engaged in sexual relations with her aunt.

In addition to the testimony, the state introduced DNA evidence to prove its case. Jennifer Valentine, a DNA analyst of the North Louisiana Crime Lab, was accepted as an expert in DNA analysis. Ms. Valentine testified that she performed the DNA analysis on the evidence collected in E.S.’s case, and certified copies of the lab results were submitted as evidence. According to the DNA testing performed on E.S.’s rape kit samples, E.S. and the defendant could not be excluded as donors of the DNA. The results revealed that the DNA was 74 billion times more likely to be from the defendant and E.S. than from another African-American and E.S.

It is clear that the jury found E.S.’s testimony credible and rejected the defendant’s assertion that the sexual intercourse was consensual. E.S. testified that the defendant drove her to a secluded area where he dragged her out of the car and forced her to have vaginal intercourse without her |1flconsent. She stated that she was afraid and believed that the defendant would hurt her if she resisted.

After reviewing the record and the relevant statute, we find that the evidence was sufficient to support the defendant’s conviction of the forcible rape of E.S. Pursuant to the statutory definition of forcible rape, the evidence revealed that E.S. was “prevented from resisting that act by force ... under circumstances where [she] reasonably believe[d] that such resistance would not prevent the rape.” Accordingly, the defendant’s argument is without merit.

The defendant also contends that the evidence was insufficient to support a conviction of aggravated kidnapping with regard to E.S. According to the defendant, no kidnapping occurred because E.S. got into his car voluntarily.

During her testimony, E.S. admitted that she accepted the defendant’s offer to drive her home and entered his car voluntarily. However, she further testified that when she noticed that the defendant was not driving in the direction of her house, she asked the defendant where they were going, and he did not respond. She objected to being driven to another location, and her repeated requests to be taken home were ignored.

After viewing the evidence in the light most favorable to the prosecution, we conclude that the evidence was sufficient to prove beyond a reasonable doubt that the defendant committed aggravated kidnapping. By taking E.S. to a place other than her home and refusing to take her home, the defendant imprisoned her and then raped her (took something of value). InTherefore, the elements required to prove aggravated kidnapping under LSA-R.S. 14:44(3) were satisfied. This argument lacks merit.

Victim T.P.

T.P. testified that on the day of her attack, she was sitting in her driveway waiting for a ride. A green car with a defective windshield approached her and the driver, armed with a gun, demanded that she get into the car. The driver told T.P. that he would kill her if she screamed. The assailant initially drove T.P. to Betty Virginia Park, but left that area and drove to a dead end street behind a church. The assailant stopped the car and ordered T.P. to get out of the car. He ripped her clothing off, told her to put her hands on the back of the car, and inserted his penis into her vagina. After he ejaculated, he inserted his penis into her anus. Thereafter, he ordered T.P. to the ground. He told T.P. that the gun he had was not big enough to kill her, and he went to the trunk of the car to retrieve another weapon. T.P. ran, naked, to a house across the street from the church. The resident of the house allowed T.P. to enter the house, gave her some clothing and called the police. T.P. was taken to a hospital, where she was examined and evidence was collected.

Chris Taylor was living at the house where T.P. ran following the attack. Ms. Taylor testified that a woman was beating on her door and windows, and she looked out and saw that the woman was nude. She let her into the home and gave her an oversized dress to put on. T.P., who was crying and appeared afraid and nervous, told Ms. Taylor that she had been raped. Ms. Taylor called 9-1-1.

| ^Detective Kim Rei of the Shreveport Police Department investigated the rape of T.P. Detective Rei took possession of the rape kit and transferred it to the crime lab for analysis. T.P. provided Detective Rei with a description of the vehicle her assailant was driving. It was later determined that the vehicle fitting the description was registered to the defendant’s mother. T.P. identified the defendant as her attacker in a photographic lineup and in open court.

The defendant’s mother, Ms. Jernigan, testified that she did not know T.P., but stated that she did not believe the defendant raped her. She stated that she did not believe that the defendant was capable of raping anyone. She stated, “There’s too many out there want him [sic]. He don’t [sic] have to rape nobody [sic]. All he got [sic] to do is be there, they come to him if that was the case.”

The defendant testified with regard to the incident involving T.P. According to the defendant, he and T.P. had an agreement whereby they exchanged sex for money. He stated, “We just had an agreement. I mean, I know she had kids, and when we met, you know, she merely explained to me that, you know, she had needs and she had bills to pay.” The defendant stated that he was not sure why T.P. would say that he raped her.

The DNA analysis of T.P.’s rape kit was performed by Michelle Collins. A certified copy of the lab results was introduced into evidence. The results revealed that the probability of finding the same DNA profile as obtained from the defendant was approximately one in 2.32 quadrillion.

11sWe conclude that the evidence was sufficient to support the convictions for the aggravated rape and aggravated kidnapping of T.P. According to T.P., the defendant forced her to enter his car at gunpoint and drove her to a secluded area where he forced her to have vaginal and anal intercourse with him without her consent. When the defendant went to the trunk of the vehicle, the naked T.P. managed to escape to a nearby house.

As stated above, T.P.’s testimony was corroborated by Ms. Taylor, who testified that T.P. knocked on her window and door on the date of the attack. Ms. Taylor testified that T.P. was naked, crying and appeared nervous.

Viewed in the light most favorable to the prosecution, the evidence was clearly sufficient to prove beyond a reasonable doubt that the defendant committed the aggravated rape and aggravated kidnapping of T.P. The evidence established that the defendant, while armed with a dangerous weapon, forcibly seized T.P. and carried her from one place to another with the intent to force her to give up something of value (sexual intercourse) in order to secure her release, and did, in fact, rape her at gunpoint. Consequently, the elements required to prove aggravated rape under LSA-R.S. 14:42(A)(3) and aggravated kidnapping under LSA-R.S. 14:44(1) were satisfied. This argument lacks merit. Victim L.S.

L.S., who was fourteen years old at the time of the offense, testified with regard to the details of her attack. She stated that on the' day in question, she was walking in her neighborhood when a man approached her 114from behind with a gun. He grabbed her by her shirt and pulled her down a trail to a car, which she described as a red “Alero.” He forced her into the car and drove past Bert Kouns Road. He eventually drove to a secluded area and parked behind a church. The assailant told L.S. that if she let him f* * * her, he would give her some money.

The assailant parked the car and opened the passenger door. When L.S. exited the car, the assailant threw her into the back seat. He pulled his pants down and asked L.S. to perform oral sex on him. L.S. refused and a struggle ensued. L.S. hit the assailant on the head with her cellular phone, and he took it away from her. He then grabbed his gun and pointed it at L.S. At this point, L.S. stopped struggling with him. He then forced his penis into her vagina. When he began to ejaculate, he removed his penis, got out of the car, and gave L.S. something to wipe herself with. When they re-entered the car, L.S. opened her door in an attempt to flee. The assailant grabbed her shirt, and her feet were dangling outside the car as she was dragged by the moving vehicle. L.S. hit the assailant’s hand until she was able to tumble to the ground. The assailant then sped away, and L.S. ran to the church. A woman came out of the church and assisted L.S. The woman called L.S.’s mother and alerted the authorities. L.S. was taken to the hospital and a rape kit was performed.

Sometime after the incident, L.S. received a telephone call at her home, during which an unidentified caller said, “B* * *h, I’m going to get you.” L.S.’s home telephone number was programmed into her cellular phone, which had been taken by her attacker. L.S. identified the defendant |1fias her attacker in a photographic lineup and in open court.

Detective Paula Moreno of the Shreveport Police Department testified that she investigated the rape of L.S. Detective Moreno took possession of the rape kit, and it was later tested by the crime lab. Photographs were also taken of the lacerations on L.S.’s feet which occurred when she was dragged by the vehicle. The photographs were presented into evidence during the trial.

Detective Moreno was able to determine that the defendant’s girlfriend, Jacqueline Roberts, owned a red Oldsmobile Alero. A search of the vehicle did not reveal any property belonging to L.S. An arrest warrant for the defendant was executed in California.

During the trial, the defendant denied raping and kidnapping L.S. He testified that he and L.S. had an agreement, stating, “She offered me something, and I offered her something.... She offered to give me sexual relations, and I paid her.” He further testified that L.S. may have become disgruntled when he refused to allow her to enter his vehicle after she had purchased two small pouches of marijuana.

Ms. Valentine performed the DNA analysis of the samples obtained from L.S.’s rape kit, and a certified copy of the results was admitted into evidence. The results revealed that the DNA was 10.3 trillion times more likely to have come from the defendant and L.S. than from another African-American and L.S.

We conclude that the evidence was sufficient to prove that the |1fidefendant committed the aggravated rape and aggravated kidnapping of L.S. L.S. testified that the defendant grabbed her at gunpoint, forced her into his vehicle and drove her to a secluded location where he forced her to have vaginal intercourse with him without her consent. After being dragged with her feet hanging out of the vehicle, she managed to escape from the moving car. Pictures were introduced into evidence which showed the lacerations to L.S.’s feet. Thus, the evidence was sufficient to establish that the defendant, while armed with a dangerous weapon, forcibly seized L.S. and carried her from one place to another with the intent to force her to give up something of value (sexual intercourse) in order to secure her release. While at the second location, the defendant had sexual intercourse with L.S. against her will at gunpoint. This argument lacks merit.

Motion to Sever

The defendant also contends the trial court erred in refusing to grant his motion to sever the counts with regard to each victim. According to the defendant, he was prejudiced by the joinder of the offenses. Specifically, he argues that the case of E.S. was different than the others, and combining the charges bolstered the state’s “weak” case. He further argues that the joinder had the effect of painting him as a person with a criminal disposition, and thus, inflamed the jury against him.

LSA-C.Cr.P. art. 493 provides:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting |17parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

In the instant case, although the offenses involved three different victims, all of the charged crimes were of similar character and each was triable by the same mode of trial. Moreover, the modus operandi of the offenses charged was strikingly similar. In two instances, the defendant approached the victims in a vehicle and drove them to a secluded area. In one instance, the defendant’s vehicle was located nearby. The most striking similarity is that in two instances, the defendant forced the victims into the vehicle at gunpoint and drove them to an isolated area located behind a church. Therefore, we find that the offenses were properly joined under LSA-C.Cr.P. art. 493.

Thus, we must determine whether a severance was mandated pursuant to LSA-C.Cr.P. art. 495.1, which provides:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

A motion for severance is addressed to the sound discretion of the trial court, and the ruling should not be disturbed on appeal absent a showing of abuse of discretion. State v. Demise, 1998-0541 (La.4/3/01), 802 So.2d 1224; State v. Wade, 39,797 (La.App.2d Cir.8/9/05), 908 So.2d 1220, writs denied, 2006-0109, 2006-1048 (La.6/2/06), 929 So.2d 1251. A defendant bears a heavy burden of proof when alleging prejudicial joinder of offenses as grounds for a motion to sever. Factual, rather than 11sconclusory, allegations are required. State v. Davis, 1992-1623 (La.5/23/94), 637 So.2d 1012; State v. Wade, supra.

In ruling on a motion to sever, the trial court must weigh the possibility of prejudice to the defendant against the important considerations of economical and expedient use of judicial resources. In determining whether joinder will be prejudicial, the court should consider the following: (1) whether the jury would be confused by the various counts; (2) whether the jury would be able to segregate the various charges and evidence; (3) whether the defendant would be confounded in presenting his various defenses; (4) whether the crimes charged would be used by the jury to infer a criminal disposition; and (5) whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. State v. Deruise, supra; State v. Brooks, 541 So.2d 801 (La.1989). There is no prejudicial effect from the joinder of two offenses when the evidence of each is relatively simple and distinct, so that the jury can easily keep the evidence of each offense separate in its deliberations. State v. Deruise, supra; State v. Brooks, supra.

In State v. Brooks, supra, the defendant was charged with the commission of a series of murders in connection with armed robberies which occurred between August 28 and December 28, 1986. After having been convicted of committing four murders, the defendant was later charged with two additional counts of murder, one which was committed on November 9,1986 and another on November 15, 1986. The defendant filed a motion to sever the counts, arguing that he would be prejudiced by the |iajoinder of the offenses. The Louisiana Supreme Court upheld the denial of the motion to sever, stating,

Under [LSA-C.Cr.P. art. 495.1.], severance need not be granted if prejudice can be effectively avoided by other safeguards. There is no prejudicial effect from the joinder of two or more offenses when the evidence of each offense is relatively simple and distinct, even though such evidence might not have been admissible in separate trials of the offenses because, with a proper charge, the jury can easily keep the evidence of each offense separate in its deliberations. State v. Celestine, 452 So.2d 676, 680 (La.1984) (citations omitted).
* * *
We find defendant has made no showing, under the standards of art. 495.1 and Celestine, supra, that the joinder of these two murder counts has prejudiced him. The state is not seeking to try a multiplicity of crimes together. The two offenses are relatively simple and the jury is unlikely to confuse the evidence and the charges.

State v. Brooks, 541 So.2d at 804-05.

In this case, our review of the record reveals that the trial court, prosecution and defense referred to the charges as separate offenses at all times during the proceedings. Additionally, both the prosecution and the defense compartmentalized their arguments according to the separate counts. Also, the evidence against the defendant on each count was not complex and was presented in an orderly fashion, allowing the jury to segregate the charges and the evidence. E.S. and Deputy McClure testified exclusively with regard to the rape and kidnapping of E.S.; T.P., Chris Taylor and Detective Rei testified exclusively to the rape and kidnapping of T.P.; and L.S. and Detective Moreno testified exclusively to the rape and kidnapping of L.S. The defendant, his mother and the DNA analyst were |j>nthe only witnesses to testify with regard to all three of the rapes.

Furthermore, the trial court specifically instructed the jury to consider the counts separately and render a verdict as to each count independently. After reading each count separately, the trial court stated:

When a defendant is charged with multiple criminal offenses, it is incumbent upon the jury to segregate the various charges and evidence. Guilt on one charge does not necessarily prove guilt on the other charges. The jury must consider each charge and evidence separately in reaching a verdict as to each charge.

Moreover, the defendant has not shown that he was prejudiced by the joinder of the offenses. This assignment lacks merit.

Sentences

The defendant also contends the sentences imposed were excessive. Specifically, he argues that the trial court erred in ordering the sentences be served consecutively. The defendant further argues that no serious or debilitating physical injuries were inflicted upon the victims during the commission of the offenses.

The test imposed by the reviewing court in determining the exces-siveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of LSA-C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. \mWhere the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C.Cr.P. art. 894.1. State v. Lanclos; 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57, 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 the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728.

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

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or | gaa.ll be served consecutively. LSA-C.Cr.P. art. 883; State v. Mack, 37,174 (La.App.2d Cir.6/27/03), 850 So.2d 1035, writ denied, 2003-2122 (La.1/16/04), 864 So.2d 628; State v. Pickett, 628 So.2d 1333 (La.App. 2d Cir.1993), writ denied, 1994-0348 (La.5/20/94), 637 So.2d 476. It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Mack, supra; State v. Robinson, 33,921 (La.App. 2d Cir.11/01/00), 770 So.2d 868. All factors in the case are to be considered in choosing whether to impose consecutive or concurrent sentences. State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980); State v. Mack, supra.

In the instant case, the trial court imposed the maximum sentence for the conviction of forcible rape and the mandatory-life sentences for the convictions of aggravated rape and aggravated kidnapping. The court ordered that all of the sentences run consecutively. The trial court reviewed the circumstances of each offense, noting that each victim was devastated by the violent acts committed by the defendant. The trial court stated:

I don’t think for one second Darryl Henderson gets it. This is not about sex, it’s about victim degradation. It’s about violence. I listened to Mr. Henderson’s testimony at trial. It becomes abundantly clear that he doesn’t get it. He doesn’t have a clue as to the fact that he is a predator and that he has sought out young ladies, some of whom may be disadvantaged or challenged in some respects either by virtue of their young ages or other conditions. And he has preyed upon them, degraded them, seized their dignity, and left them injured.... He is-a serial rapist. He is a predator. ■

With regard to the defendant’s argument that none of the victims suffered severe physical injuries, the trial court opined that the defendant caused [ 2!isevere emotional injuries, which would last a lifetime, to all of the victims.

The trial court also expressed his belief that the defendant could not be rehabilitated, specifically noting that the defendant, who was under the age of 40 at the time of trial, had four previous felony convictions, including one for sexual battery, reduced from an attempted simple rape charge (the victim in that case was 14 years old at the time of the assault). Notably, the trial court considered a packet of information provided by the state that included a chronology of the defendant’s previous sexual assaults and sexually deviant behaviors against both relatives and strangers, both in Louisiana and California. Some of'the cases are pending, while charges in others have never been formally filed.

la/The trial court reviewed the reports submitted by the state and referred to them during his remarks prior to sentencing the defendant. The court noted that generally the sentences imposed would be concurrent, but the defendant “clearly fits the exception to that rule.”

After reviewing the record, we find that the sentence for the forcible rape, the maximum allowable, was not excessive considering this defendant’s criminal history, his previous periods of incarceration, the seriousness of the offense, and the unlikelihood of rehabilitation. Moreover, the defendant’s background shows a continuous history of sexual assaults.

With regard to the statutorily mandated sentences imposed on all other counts, the defendant received sentences of life imprisonment without benefit of parole, probation or suspension of sentence. It is the legislature’s prerogative to determine the length of the sentence imposed for crimes classified as felonies, and the courts are charged with applying those punishments unless they are found to be unconstitutional. State v. Price, supra; State v. Stokes, 36,212 (La.App.2d Cir.9/18/02), 828 So.2d 631, writ denied, 2002-2807 (La.9/5/03), 852 So.2d 1023. The decision to assess mandatory life sentences for certain felonies is within the prerogative of the legislature. Id. The assertion that the mandatory life sentence for | ¡^aggravated rape is a violation of the prohibition against excessive punishment in the Louisiana Constitution has been repeatedly rejected. See, State v. Stokes, supra; State v. Ingram, 29,172 (La.App.2d Cir.1/24/97), 688 So.2d 657, writ denied, 1997-0566 (La.9/5/97), 700 So.2d 505.

There is nothing in the record of this case to suggest that the imposition of the statutorily mandated sentences are excessive, nor are they grossly out of proportion to the seriousness of the offenses. The sentences do not shock this court’s sense of justice. Where there is a constitutional mandatory sentence, there is no need for the trial court to justify, under LSA-C.Cr.P. art. 894.1, a sentence it is legally required to impose. State v. Hill, supra; State v. Koon, 31,177 (La.App.2d Cir.2/24/99), 730 So.2d 503; State v. Rose, 606 So.2d 845 (La.App.2d Cir.1992).

The fact that the sentences on each conviction were ordered to be served consecutively was within the sound discretion of the trial court. Considering the defendant’s criminal history and the seriousness of the offenses, these sentences clearly are not excessive.

The defendant also contends the trial court failed to advise him of the delays for filing an application for post-conviction relief. The Louisiana Supreme Court has held that LSA-C.Cr.P. art. 930.8(C), which requires the trial court to inform the defendant of the limitations period for filing an application for post-conviction relief, is supplicatory language which does not bestow an enforceable right on an individual defendant. State ex rel. Glover v. State, 1993-2330 (La.9/5/95), 660 So.2d 1189.

Nevertheless, in this case, the record reveals that the defendant wasj^properly advised of the delays during the sentencing hearing. The trial court expressly stated, “I’m also required by law to tell you that under Article 930.8 of the Code of Criminal Procedure, you have two years from the date of finality of your conviction of sentence to file any post-conviction relief application to which you may be entitled by law.” By this opinion, the defendant should be advised that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 or 922.

This assignment of error is without merit.

ERRORS PATENT

In accordance with LSA-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 two errors patent.

Sentencing Delays

The record reveals that the trial court denied the defendant’s motion for post-verdict judgment of acquittal in open court on November 20, 2005, the same day the sentences were imposed. There is no indication in the record that the defendant expressly waived the sentencing delay. LSA-C.Cr.P. art. 873, provides:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or [^pleads guilty, sentence may be imposed immediately.

When the defendant makes no showing of prejudice, the trial court’s failure to observe LSA-C.Cr.P. art. 873 is a harmless error, and there is no need to remand for resentencing. State v. Moossy, 40,566 (La.App.2d Cir.3/10/06), 924 So.2d 485, 488 (citing State v. White, 404 So.2d 1202 (La.1981); State v. Drane, 36,-230 (La.App.2d Cir.9/18/02), 828 So.2d 107, writ denied, 2002-2619 (La.3/28/03), 840 So.2d 566.)

In this case, the defendant has not objected to the trial court’s failure to observe the delay, and there was no showing of prejudice. Thus, the trial court’s failure to observe the statute was harmless error. Motion to Reconsider Sentence

The record before this court does not contain a copy of the defendant’s motion to reconsider sentence. Inconsequential omissions or slight inaccuracies in a record do not require reversal, as an incomplete record may nonetheless be adequate for appellate review. State v. Deruise, supra. A defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcripts. Id.

In this case, the record was adequate for appellate review, and there is no showing that the defendant has been prejudiced by the omission of the motion to reconsider sentence. The record contains the trial court’s ruling and reasons therefor on the motion to reconsider sentence. In the trial court’s reasons, it discussed the defendant’s claim that the sentences were excessive because they were imposed consecutively rather than ^concurrently. Moreover, the defendant also argued to this court that the sentences imposed were excessive because they were ordered to be served consecutively, as opposed to concurrently.

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . The victims’ initials are used because of victim confidentiality requirements applicable to the instant case under LSA-R.S. 46:1844(W).

      . At the time of the trial, Ms. Collins had relocated to Anchorage, Alaska.

      . The defendant had lived in California for various periods of time, including both before and after these crimes were committed.

      . The record contains a police report from the Los Angeles Police Department in which the mother of a 12-year-old girl reported that the defendant, who was attending a party at her house, entered her daughter’s bedroom and sexually assaulted her by penetrating her vagina with his finger. The alleged assault occurred on December 17, 1997.
      Another California police report indicated that on March 27, 2000, a woman was approached by a man in a vehicle. The man offered her a ride, and she accepted. The man drove her to an isolated area where he penetrated her anus with his penis. The defendant was identified as the rapist through a DNA match.
      The defendant has also been linked to another rape/kidnapping by DNA evidence. On August 8, 2000, a 16-year-old girl was walking down a street in California. The defendant approached her in a car and offered her a ride. She refused to get into the car, and the defendant continued to follow her and eventually persuaded her to get into the car. He drove her to an isolated parking lot and told her to get out of the car. The victim initially refused, but he forced her out of the vehicle. He attempted to penetrate her vagina with his penis but was unable to achieve an erection. Ultimately, the defendant managed to penetrate her three times with a semi-erect penis. He attempted to force the victim to perform oral sex on him, but she refused. He forced her to masturbate while he masturbated, and he ejaculated on her back and buttocks. The victim was examined and samples were taken from the dried secretions on the victim’s back.
      There have been other reports of sexually deviant behavior on the part of the defendant. On August 8, 1987, the defendant's mother, Ms. Jernigan, filed a police report, claiming that the defendant had touched her granddaughter’s crotch while babysitting'her.

        There was an additional police report, filed by the defendant's sister, in which she claimed that the defendant had raped her daughter on multiple occasions, from May 1999 through October 1999. The sister of that victim, who was also the defendant's niece, reported that the defendant had forced her to perform oral sex on him when she was four years old in exchange for food. She stated that he would also "grease” her inner thighs and rub his penis there.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Daniel. MORRIS, Appellant.
    No. 41,651-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.
    Louisiana Appellate Project, by Mary Constance Hanes, for Appellant.
    Paul J. Carmouche, District Attorney, Dale G. Cox, Assistant District Attorney, for Appellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   MOORE, J.

liThe defendant, Daniel Morris, was convicted of illegal possession of stolen things in a felony high-grade amount, and subsequently sentenced to one year at hard labor, suspended, with one year of active supervised probation with special conditions. The court denied defendant’s post-verdict judgment of acquittal but modified the verdict to guilty of middle-grade possession of stolen property. The sentence remained the same. Defendant appealed. For the reasons set forth below, we reverse the conviction and sentence.

FACTS

Around 10:30 or 11:00 in the morning on April 28, 2002, Linzola Winzer walked outside her home and noticed that her 1986 Chevy Caprice was missing. She reported the matter to the police.

Later the same day, Caddo Parish Sheriffs Deputy Steve Douglas was dispatched to a suspicious vehicle complaint on Moore Road. When he arrived at the scene, he saw a Honda Accord beside a Chevy Caprice in the middle of the street. The Caprice had an open hood. The defendant and another young man walked from the front of the Caprice to the Honda Accord. Deputy Douglas detained the two men until he could run a check on the license plate of the Caprice. After he learned the Caprice had been reported stolen, he patted the gentlemen down and found a pair of pliers on the defendant. Before the deputy could question him, hdwever, the defendant fled the scene.

The sheriffs office contacted Ms. Winzer to tell her that the car had been found. The trunk had been forced open, the steering column had been | ¡>broken, carpet had been ripped, and the CD player and other things had been removed. None of the missing items were ever recovered.

Two days later, the defendant went to the police substation. He told Deputy Douglas that he saw his friend’s car parked on the side of the road and decided to check on it. He did not name the friend. Dy. Douglas informed Morris that the officer had spoken to the owner of the vehicle and that the owner did not know him. Morris then changed his story and said that the other young man with him, Jeremy Hanson, knew the vehicle’s owner. Hanson never confirmed knowing the owner of the vehicle. Defendant told Dy. Douglas that he ran from him because he knew there was a bench warrant out on him from Red River Parish. Dy. Douglas verified that the bench warrant existed for failure to appear for DUS, passing in a no-passing lane, and illegal possession of stolen property. Defendant was subsequently charged with possession of stolen things valued between $300 and $500 in violation of La. R.S. 14:69.

Ms. Winzer testified at the trial that she did not know the defendant, Daniel Morris, and she stated that she had never given Morris permission to touch the vehicle, work on the vehicle, or be around the vehicle.

After Morris waived a jury trial and proceeded to a bench trial, the court found him guilty of illegal possession of stolen things “in a felony high-grade amount.” The court then sentenced defendant to one year at hard labor, suspended, with one year of active supervised probation with special conditions; Morris was given credit for time served.

| ¡¡Morris filed a Motion for Post-Verdict Judgment of Acquittal and/or a Modification of the Judgment, asserting that the bill of information charged him with middle-grade illegal possession of stolen things, but that he was found guilty of high-grade illegal possession of stolen things. The trial court granted the motion in part, modifying the judgment to reflect middle-grade illegal possession of things, but keeping the sentence the same; the trial court denied the motion with respect to acquittal. Additionally, a forgery charge was dismissed along with two misdemeanor charges. Morris requested and was granted an appeal. For the reasons below, we reverse the conviction and sentence.

DISCUSSION

On appeal, defendant raises the single issue of whether the evidence was sufficient to support Daniel Morris’ conviction for possession of a stolen vehicle. He argues that the evidence presented proves that Morris did nothing more than stop to look at a car which was parked in the middle of the street. Morris was not found in possession of any of the numerous items that had been taken from the car, nor were these items recovered from the other vehicle that was at the scene. The defense further argues that from Ms. Win-zer’s testimony, it can be deduced that the person or persons who damaged and stole parts from the vehicle had already left the scene before Dy. Douglas saw Morris looking at the vehicle. According to the defense, the state failed to prove the element of possession by excluding every reasonable hypothesis of innocence.

|4The state contends the element of possession was proven through constructive possession. Morris was found looking under the hood of the stolen car, pliers were found on Morris’ person, and Morris ran from the deputy after the pliers were discovered. The state cites three cases, discussed below, for the proposition that the evidence presented against Morris was legally sufficient to prove every element of the offense of illegal possession of stolen things.

The pertinent provisions of La. R.S. 14:69 state:

A. Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.
B.(2) When the value of the stplen things is three hundred dollars or more, but less than five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than $2,000.00 or both.

The constitutional standard for testing sufficiency of the evidence is enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); that standard requires a conviction to be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998). When circumstantial evidence is used to prove the commission of an offense, the provisions of La. R.S. 15:438 mandate that, assuming every fact to be proved that the evidence tends to prove, every reasonable | ¡(hypothesis of innocence must be excluded in order to convict. The provisions of La. R.S. 15:438 do not establish a separate standard from the Jackson standard, but rather provide a helpful methodology for determining the existence of reasonable doubt; ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Ortiz, supra.

There are four essential elements for the crime of possession of a stolen thing: (1) the item was stolen; (2) the item was of value; (3) the defendant knew or should have known that the property was stolen; and (4) the defendant intentionally possessed, procured, received, or concealed the property. State v. Walker, 350 So.2d 176 (La.1977). Illegal possession of stolen property is a general intent crime. State v. Bounds, 38,330 (La.App. 2 Cir. 5/12/04), 873 So.2d 901.

The prosecution does not need to prove actual possession in order to obtain a conviction. Instead, a conviction may be supported by a showing of constructive possession. Such possession exists when the item is within the defendant’s dominion or control. State v. Skipper, 527 So.2d 1171 (La.App. 3 Cir.1988); State v. Mercadel, 503 So.2d 608 (La.App. 4 Cir.1987).

In the instant case, the first two essential elements of illegal possession are satisfied. There is no question that the item was stolen, and appellant is not contesting the value of the item. The appellant is not challenging that he knew or should have known that the property was stolen. After all, the vehicle was sitting in a public road and obviously had been stripped. Thus, the question is whether the defendant intentionally | (¡possessed the stolen vehicle. Because the crime at issue is a general intent crime, Morris must have at least adverted to the prescribed criminal consequences as reasonably certain to result from his actions. Viewing the evidence in the light most favorable to the prosecution, Morris must have turned his attention to criminal consequences as reasonably certain to result from his standing in front of the stripped vehicle and looking under its hood while having a pair of pliers in his pocket. After review of the evidence in this case, we conclude that the state did not prove its case because the state did not prove intentional possession beyond a reasonable doubt even when the evidence is viewed in the light most favorable to the prosecution.

The state cites three cases in support of a finding that the defendant had constructive possession of the vehicle. These cases are not persuasive.

In State v. Ferrand, 2003-1746 (La.App. 4 Cir. 1/14/04), 866 So.2d 322, a patrolling officer noticed a parked truck with its windshield wipers on and its engine running. The driver’s side door was ajar, and as the officer turned into a nearby driveway, she saw the defendant’s head “pop up” over the truck. As the officer began to turn, the defendant walked away from the truck. The officer detained him and conducted an interview; she was suspicious because no one was usually out at that time of the morning in the little strip mall where the defendant was parked. When the officer looked into the truck, she saw the steering column had been broken, and when she checked on the vehicle, she learned it had been stolen. The defendant told the officer that another man had been at the scene and left; the defendant also told the officer that he was a mechanic and had driven the |7truek there to make repairs on the car parked next to the truck.

Ferrand is distinguishable on its facts. The defendant was standing in the open door of the driver’s side of the truck with the windshield wipers and engine running; the vehicle’s steering column was broken, and the defendant began to walk away as the officer approached. No one else was seen in the vicinity.

By contrast, the Caprice in the instant case was not running and the doors were closed. Although the hood was up on the vehicle, the testimony from Dy. Douglas is far from conclusive regarding whether the defendant was under the hood of the vehicle. He téstified that when he arrived at the location he observed the following:

When I got there, when I rounded the corner, I saw two vehicles sitting in the middle of the street. And the closer I got, I saw two young men coming away from the vehicle. I detained them until I could find out what was going on, ran the plates to the car. The car eventually came back stolen. I patted the gentlemen down, handcuffed them for my protection. One of them didn’t give me any problems, he stayed right there. The other one took off running, Mr. Morris.

The vehicle the two young men were coming away from was the stolen Chevy Caprice; the other car present was a Honda Accord. Dy. Douglas did not see the young men in actual possession of the vehicle. He said the two men were “near the hood of the Chevy Caprice.” When asked if he ever saw them inside the hood he responded: “Yes. They were coming from the hood when I drove up.” However, when asked if he saw them underneath the hood or saw them coming “from that direction,” he responded: “Coming from that direction.”

In State v. Brooks, 2001-1073 (La.App. 5 Cir. 2/26/02), 811 So.2d 1066, two police officers were investigating a parking lot in Kenner where several stolen vehicles had recently been recovered. As the officers approached a Chevy Blazer in the parking lot, they saw a man exit the driver’s side and walk toward the courtyard area between the apartment buildings. After running a computer check of the license plates, they determined that the vehicle was reported stolen the previous day. They detained the man, read him his rights, and told him that the vehicle had been reported stolen. The defendant indicated that he was going home, but he lived more than three miles away from the apartment complex. When asked why he was walking instead of driving the car if he was going home, the defendant did not respond. The steering column in the vehicle had been “defeated” so that it could be started with a screwdriver, the radio had been removed from the dashboard and the latch on the glove compartment had been destroyed causing the glove compartment to hang open.

Brooks, like Ferrand, has much stronger facts. In Brooks, the facts indicate that the defendant actually stole the vehicle. He was observed inside the vehicle which had its steering column broken so that it could be started without a key. Furthermore, the defendant gave an implausible story concerning the vehicle and had no explanation as to how he had arrived in Kenner when he lived several miles away in St. Rose. There is a much stronger showing of possession in Brooks than in the instant case.

Finally, in State v. Mercadel, 503 So.2d 608 (La.App. 4 Cir.1987). officers investigated a complaint of someone stripping a car. As they [sapproached a vacant house, they noticed a car backed into the driveway with its trunk lid raised. As the officers approached the car, they noticed a man look out from behind the trunk lid and then duck down out of sight. The man fled carrying various items in his hands. After being apprehended, officers retrieved a pair of pliers, a ring of keys, and a ear stereo speaker. A computer check verified the car had been stolen and the defendant subsequently was convicted of illegal possession of stolen things with a value of over $500.00. This case is easily distinguishable from our facts because the defendant was actually in possession of items from the car when he was spotted by the officers. The car stereo speaker was one that the owner testified that had been installed in the trunk, and the ring of keys included keys to the car that was stolen. In the instant case, although the vehicle had been stripped, defendant was not in possession of any items from the vehicle. The only indication that he was probably up to no good was the fact that he had a pair of pliers in his pocket.

We conclude that the state’s evidence, even when viewed in the most favorable light, does not show that the defendant had dominion and control over the vehicle so as to constitute constructive possession. Such possession requires more than standing near the vehicle. See, e.g. State v. Lampton, 1997-2616 (La.App. 4 Cir. 3/10/99), 729 So.2d 754; State v. Howkins, 516 So.2d 188 (La.App. 4 Cir.1987). Although Morris was in close proximity to the vehicle, there is no evidence that he took any step to remove any items from the vehicle.

LoWhile it is plausible that Morris’s running away is indicative of criminal intent, he had a good reason for running because there was a warrant for his arrest in Red River Parish, Louisiana. Thus, while flight and attempt to avoid apprehension are circumstances from which a trier of fact ordinarily may infer a guilty conscience, that inference has much less weight in the instant case due to the outstanding warrant.

CONCLUSION

Hence, after reviewing the evidence under the prescribed sufficiency standard, we conclude that the state did not meet its burden of showing that the defendant had possession or constructive possession of the stolen Caprice. For this reason, the defendant’s conviction and sentence are reversed.

CONVICTION AND SENTENCE REVERSED.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Cameron C. CHRISTAW, Appellant.
    No. 41,641-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      Paula Corley Marx, Louisiana Appellate Project, Mary L. Harried, Assistant Indigent Defender, for Appellant.
    Paul J. Carmouche, District Attorney, Lea R. Hall, Jr., Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and CARAWAY, JJ.
   GASKINS, J.

hThe defendant, Cameron C. Christaw, pled guilty to armed robbery and was sentenced to 30 years at hard labor without benefit of parole, probation or suspension of sentence. He appeals, asserting that the sentence is excessive. We affirm.

FACTS

On November 30, 2004, the 17-year-old defendant participated in the robbery of a Johnny’s Pizza restaurant in Caddo Parish. The defendant and another man entered the restaurant; the defendant was armed with a handgun and demanded money from an employee. The restaurant employees were ordered to lie down on the floor. A sergeant with the LSU Medical Center police witnessed the robbery. As the robbers exited the restaurant, the uniformed officer ordered them to stop. The defendant discharged his gun at the officer. The sergeant then fired once, hitting the defendant in the leg. The robbers fled.

The defendant later sought treatment of his gunshot wound at LSU Medical Center. When questioned by the police, the defendant admitted his role in the robbery.

The defendant was initially charged with armed robbery with a firearm, in violation of La. R.S. 14:64 and 14:64.3. Pursuant to a plea bargain, he pled guilty to one count of armed robbery, without the use of a firearm enhancement provided in La. R.S. 14:64.3. Another unrelated count of armed robbery was dismissed. Prior to sentencing, the defendant attempted to withdraw his guilty plea; the motion to set aside the guilty plea 1 ?was denied. The trial court sentenced the defendant to 30 years at hard labor without benefit of parole, probation or suspension of sentence.

The defendant filed a motion to reconsider sentence. He argued that the trial court failed to consider mitigating factors such as his age and his lack of prior adult felony convictions. He also maintained that the trial court should consider that he recanted his false accusation implicating someone else, that he pled guilty, and that his codefendant was sentenced to only 14 years at hard labor. The motion was denied.

The defendant appealed.

LAW

Armed robbery is punishable by imprisonment at hard labor for not less than 10 years and for not more than 99 years, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. A trial judge shall exercise his sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829 (La.1981). In tailoring the sentence to the individual, 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 Islikelihood 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.

There is no requirement that co-defendants be treated equally by the sentencing judge. State v. Rogers, supra; State v. Taylor, 485 So.2d 117 (La.App. 2d Cir.1986). The disparity of sentences between codefendants is only a factor to be considered along with all other appropriate considerations in evaluating a contention that a sentence is excessive. State v. Quimby, 419 So.2d 951 (La.1982); State v. Jackson, 30,473 (La.App.2d Cir.5/13/98), 714 So.2d 87, writ denied, 1998-1778 (La.11/6/98), 727 So.2d 444.

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

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, 1999-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.

LPISCUSSION

At the sentencing hearing, the defendant presented the testimony of his mother who asked for leniency for her son. She asserted that he was a “good child” who “just hung out with the wrong crowds.” The defense also submitted letters from his mother and his aunt on his behalf.

The trial court stated that its original inclination was to impose a sentence of 40 years; however, in view of a codefendant’s 14-year sentence, the court chose to lower the defendant’s sentence to 30 years. The court noted that the presentence investigation (PSI) report was “one-sided” with nothing in the defendant’s favor. The defendant had a significant juvenile record. A high school dropout, he had no job skills. He initially attempted to blame his role in the instant crime on a relative. He endangered the lives of the restaurant employees when he robbed them at gunpoint. He fired his gun at a law enforcement officer. There was a significant economic loss to the restaurant. As mitigating factors in the defendant’s favor, the court considered the defendant’s age and the fact that he pled guilty instead of going to trial. The court observed the great benefit the defendant received from his plea bargain which removed the firearm enhancement for the instant offense and dismissed another armed robbery charge.

The trial court adequately considered the mitigating and aggravating factors in this case. A review of the sentencing transcript shows that the court gave due consideration to each of the factors enumerated by the defendant in his motion to reconsider — age, guilty plea, criminal history, initial accusations against another, and codefendant’s sentence. The trial Iscourt thoroughly articulated the basis for the sentence imposed upon this defendant. Furthermore, the sentence does not shock our sense of justice. The defendant participated in an armed robbery in which he took more than $3,000 in cash and forced restaurant employees to the floor at gunpoint. When a uniformed officer ordered him to stop, he fired his weapon at the officer. He originally tried to implicate his own cousin to the police to make himself appear less culpable. These acts demonstrate the defendant’s complete disregard for the safety and lives of others. The plea bargain not only reduced the defendant’s exposure on the current offense by removing the use of a firearm enhancement under La. R.S. 14:64.3, but it also dismissed another charge arising from the armed robbery of another restaurant. The sentence of 30 years at hard labor without benefits was tailored to this defendant.

This assignment of error lacks merit.

ERROR PATENT

The trial court failed to advise the defendant at sentencing that he has two years from the time his conviction and sentence are final to seek post-conviction relief as required by La. C. Cr. P. art. 930.8. Although the trial court did inform the defendant at the time his guilty plea was accepted, La. C. Cr. P. art. 930.8 requires the trial court to inform the defendant of this information at sentencing. The statute contains supplicatory language which does not bestow an enforceable right on an individual defendant. State v. Hunter, 36,692 (La.App.2d Cir.12/20/02), 834 So.2d 6. Furthermore, this defect has no bearing on whether the sentence is excessive | fiand, thus, is not grounds to reverse the sentence or to remand the case for resentencing. State v. Ferrell, 26,649 (La.App.2d Cir.12/07/94), 647 So.2d 427. We now advise the defendant by this opinion 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 have become final under the provisions of La. C. Cr. P. arts. 914 or 922.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: SEXTON, J.

text:
    STATE of Louisiana, Appellee, v. Antonio D. GAY, Appellant.
    No. 41,609-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      Louisiana Appellate Project by Mary Constance Hanes, for Appellant.
    Paul J. Carmouehe, District Attorney, J. Dhu Thompson, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY & SEXTON (Pro Tempore), JJ.
   SEXTON, J.

| defendant, Antonio D. Gay, seeks review of his sentence for simple robbery under La. R.S. 14:65. The court imposed a five-year hard labor sentence, suspending all but two years, and placing Defendant on two years’ active supervised probation with special conditions. Defendant appeals his sentence as unconstitutionally excessive. We affirm.

FACTS

The trial testimony of the 12-year-old victim established that the victim was riding a bicycle in the alley of a Cedar Grove neighborhood on May 24, 2005, when Defendant, who was well known to the victim, approached him from behind. Defendant put a gun to the victim’s side and demanded that he get off the bicycle. He also choked the victim by putting one arm across his throat. After he took $2 and some change from the victim’s pants pocket, Defendant rode the bike through the alley and threw it over his gate. The victim ran to tell his neighbor, who actually owned the bike, and the robbery was reported to the police. The victim positively identified Defendant as the perpetrator. The bicycle, which was later returned, had been stripped of its tires. At the trial’s, conclusion, the trial court found Defendant guilty of the responsive verdict of simple robbery.

At sentencing, the trial court stated that it was taking into account Defendant’s age (17 years old) and his lack of prior criminal history, both factors advanced by defense counsel in mitigation. It noted that it had reviewed the sentencing guidelines in La. C. Cr. P. art. 894.1, including the gravity of offense and the impact on the victim. The trial court expressed its belief that Defendant would benefit from incarceration and the subsequent |2period of probation. It concluded that a lesser sentence would deprecate -the seriousness of Defendant’s crime. The trial court imposed a sentence of five years at hard labor. All but two years of the sentence were suspended, and Defendant was placed on two years’ active supervised probation with special conditions. He was given credit for time served. Defendant’s timely filed motion for reconsideration of sentence was denied.

Defendant now appeals his sentence as constitutionally excessive. Defendant argues that the trial court should have made a more thorough investigation into his background. Defendant also notes that the trial court failed to consider whether he has ever been given an opportunity to reform.

DISCUSSION

The reviewing court employs a two-prong test in determining the excessiveness of a sentence. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary, even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57 and 04-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are Defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728. In the case sub judice, the record reflects that the trial court took these factors into consideration in sentencing Defendant. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

On this record, we do not find that Defendant’s sentence is constitutionally excessive. Defendant’s mid-range and partially suspended sentence for this offense is lawful and is neither grossly disproportionate to |4the severity of the offense of conviction, nor is it shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence.

CONCLUSION

For the foregoing reasons, the sentence of Defendant, Antonio D. Gay, is affirmed.

AFFIRMED.