author: DREW, J.

text:
    STATE of Louisiana in The Interest of T.D.W.
    No. 45,907-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.
    Jonathan M. Stewart, District Attorney, for Appellant.

      James Henry Colvin, Jr., Assistant District Attorney, Shreveport, LA, Louis Charles Minifield, for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   DREW, J.

_JjThe State of Louisiana appeals from a judgment quashing a petition for delinquency against a juvenile, T.D.W. We reverse and remand.

FACTS

On August 13, 2008, a young woman in Homer, Louisiana, was attacked by a female juvenile, T.D.W., born on January 8, 1993. T.D.W. used a knife to stab the victim in the face, causing the victim to lose her left eye.

On September 9, 2008, a Homer police officer executed a verified complaint against her for the offense of aggravated second degree battery. She was taken into custody on Wednesday, September 17, 2008, and transported to Ware Youth Detention Center.

On Monday, September 22, 2008, the court held what can best be termed as a status conference, certainly not a continued custody hearing. Subject to an in-chambers discussion, the juvenile was released to her grandmother, with whom she usually lived. The court expressed reluctance in continuing the juvenile in custody at the detention center, since the event had occurred five weeks prior to the hearing and there had been no further violent action by the juvenile.

| ¿The court stated:

In order to prevent any further violent actions by this juvenile, I’m going to release her to her grandmother. I’m going to order that she be on strict house arrest which means she can have no contact whatsoever with anybody her age. They can’t come into the house to visit, period. I mean unless it’s a family member. Apparently, there was some use of a cell phone. She’s prohibited from having a cell phone. Telephone privileges are taken away during this period of house arrest. She’s allowed to go to school. She’s allowed to go to church. Those are the two places where she can go. If she goes anyplace else, she must be in the company of her grandmother. And, if these rules of the house arrest are broken, then she’ll be picked up and put in a detention center until the whole matter is resolved. Everybody understands that.
No cell phones, no visitors. She’s just at home. Can’t go out except to school, to church and with — in the strict company of her grandmother. No contact with the victim or anybody in the victim’s family, and that’s the condition of her release back to her grandmother’s home. (Our emphasis.)

The court allowed the prosecutor 30 days to file any petition and fixed November 7, 2008, as the date for answering the petition. However, neither a petition nor an answer was filed for about nine months.

On August 3, 2009, the District Attorney-filed a petition to take T.D.W. into custody and to have her adjudicated delinquent for the offense of aggravated second degree battery. There is no evidence that the trial court’s order of house arrest was ever lifted.

Apparently T.D.W. filed an answer denying the petition on September 11, 2009, but that answer is not in the appellate record.

On September 30, 2009, the juvenile filed an application for a bill of particulars and a motion for discovery.

|3On October 8, 2009, the juvenile filed a motion for a continuance, urging that her motions had not yet been fully answered and that the matter was set for trial on October 9, 2009. The trial court granted that motion and reset the case for November 6, 2009.

On November 6, 2009, the juvenile filed a motion to dismiss the matter based on prescription, alleging that the state failed to file the petition 90 days since she made an appearance, resulting in the expiration of the time limitations set by La. Ch. C. art. 877(B). The state responded that La. Ch. C. art. 877 had no application to these facts; rather, it argued that La. Ch. C. art. 843 governed the time limit for filing the petition. The state further argued that because it never had custody of T.D.W., it had four years to file the petition under the Code of Criminal Procedure.

The state then filed a supplemental memo in opposition to her motion to dismiss. The state discovered that T.D.W. had, in fact, been arrested in September 2008. However, the state argued that once T.D.W. was released from the juvenile detention center, she was “released from detention” and that she was not “in continued custody” so as to implicate the 90-day deadline for filing the petition required by La. Ch. C. art. 843.

T.D.W. filed another motion for a continuance on December 7, 2009, citing newly discovered information, and the matter was continued to January 6, 2010. Subsequently, she filed a motion to dismiss her earlier motion to dismiss, relating that the previous motion had been based on erroneous facts.

14 She then filed a motion to quash on January 4, 2010, alleging that her rights had been violated under the Sixth Amendment to the United States Constitution and under the Louisiana Constitution, Art. I, § 16, in that the state had not timely brought her to trial, despite the continuing order for her house arrest.

A hearing was held on February 5, 2010, at which the trial court concluded that its continuing house arrest order was analogous to continuing the child in custody, and thus the state was dilatory in filing and proceeding -with its petition. Accordingly, on May 6, 2010, the court signed a judgment, granting the motion to quash, thereby dismissing the adjudication petition. From this ruling, the state now appeals.

ASSIGNMENTS OF ERROR

The state posits that the trial court erred in ruling that:

1. the state’s filing of the petition was untimely;
2. the combination of Articles 843 and 877 was violated; and
3. the juvenile was denied a speedy trial.

The state further argues that its prosecution of T.D.W. as a juvenile delinquent was timely because the child was not continued in custody and it had four years to bring the child to trial pursuant to the Code of Criminal Procedure.

In support of its argument, the state cites State ex rel. C.M., 2005-0435 (La.App. 4th Cir.12/21/05), 922 So.2d 571, wherein a juvenile allegedly committed second degree battery on December 28, 2003. The juvenile was arrested that day but released from custody when the victim | flcould not be found. The appellate opinion does not indicate that the juvenile was under any sort of restrictive court order upon his release. On January 26, 2005, the state filed a petition seeking to have the juvenile adjudicated delinquent; apparently, the state had located the victim of the offense. The court dismissed the petition on its own motion for “good cause” under La. Ch. C. art. 876, finding that the state had been dilatory in pursuing the petition against the juvenile. The court of appeal reversed, stating:

La. Ch. C. article 843 provides that when a child is continued in custody prior to adjudication, “the delinquency petition shall be filed within forty-eight hours of the hearing to determine continued custody.” In this case, C.M. was not continued in custody. The Children’s Code, as currently written, is silent as to when a delinquency petition has to be filed if the child is not continued in custody, as in this case. La. Ch. C. articles 104 and 803 state that where procedures are not provided in the Children’s Code, the Code of Criminal Procedure controls in a delinquency proceeding.
C.M. was charged as delinquent for violating La. R.S. 14:34.1, relative to second degree battery. A conviction under that statute carries a possible penalty of a fine of not more than two thousand dollars or imprisonment, with or without hard labor, for not more than five years, or both. According to La. C. Cr. P. article 572(A)(4), the State had four years to institute prosecution in this case.
We find that the trial court erred in finding that the filing of the petition thirteen months after C.M.’s arrest violated the “spirit” of La. Ch. C. article 877. Section B of that article provides that if a child is not continued in custody, as in this case, “the adjudication hearing shall commence within ninety days of the appearance to answer the petition.” The petition in this case was filed on January 26, 2005, and the record does not reflect any answer or appearance between that date and the February 15, 2005 hearing date. La. Ch. C. article 877 provides a time period for commencing an adjudication hearing after the petition has been filed; it does not include a time period for the filing of a petition when a child is not continued in custody.
| We do not know if the Louisiana Legislature intentionally did not include a provision in the Children’s Code regarding a time limitation for the filing of a delinquency petition when a child is not continued in custody, or if this omission was an oversight. Whether or not such a provision is added to the Children’s Code is entirely within the province of the Legislature. The State filed the delinquency petition within the delays allowed under the Code of Criminal Procedure, which controlled the time limitations in this case according to La. Ch. C. articles 104 and 803. The trial court did not have good cause to dismiss the delinquency petition, and abused its discretion in doing so.

The state concludes that a similar result should obtain in this case because the trial court’s house arrest order should not be interpreted to mean that the juvenile was continued in custody.

DISCUSSION

T.D.W. was initially taken into custody on September 17, 2008. “Custody” is not a defined term in Title VIII (Delinquency) of the Children’s Code; see La. Ch. C. art. 804. La. Ch. C. art. 812 provides:

A. A child may be taken into custody pursuant to an order of the court under this Title or pursuant to the laws governing arrest.
B. The taking of a child into custody is not an arrest, except for the purpose of determining its validity under the Constitution of the United States or the Constitution of Louisiana.

Because T.D.W. was taken into custody following a verified complaint, La. Ch. C. art. 813 applies; that article provides, in part:

A. The court may issue an order directing that a child be taken into custody upon presentation to the court of a written statement of facts sworn to before an officer authorized by law to administer oaths, by a peace officer, probation officer, district attorney, or other person designated by the court alleging facts showing that there is probable cause to believe either that:
(1) The child has committed a delinquent act.

Jl * *

B. The verified complaint shall be filed with the clerk of court. If it is filed after the child has been taken into custody, the complaint shall indicate whether the child was released to his parents or continued in custody.
C.An order directing that a child be taken into custody may be executed by a peace officer.... The officer shall promptly notify the child’s parents that their child has been taken into custody. The officer shall also promptly conduct the child to the appropriate facility in accordance with Article 815.

Under La. Ch. C. art. 813(C) and La. Ch. C. art. 815(B), T.D.W. was taken to a juvenile detention facility because she was accused of a felony-grade delinquent act.

On September 22, 2008, the court held a hearing to determine T.D.W.’s status. La. Ch. C. art. 817, entitled “Release from custody,” provides, in part:

A. As soon as practicable after a child is received by a juvenile detention center or shelter care facility, the court or a probation officer employed and authorized by the court, upon determining it to be appropriate, shall release the child to the care of his parents or other relatives upon their written promise to bring him to court at such times as may be fixed by the court. The court may also impose reasonable restrictions upon the child’s travel, place of abode, association with other people, or employment during the period of this release.
B. If the court finds that these conditions are insufficient to assure the presence of the child at later proceedings, the court may require the posting of bail in accordance with Chapter 6 of this Title.
C. If the court finds that release under neither Paragraph A or B of this Article is appropriate, it may authorize the continued custody of a child pending a hearing in accordance with Chapter 5 of this Title.

At the September 22, 2008, hearing, the court ordered the child released from the juvenile detention facility and further ordered that she live | swith her grandmother, under very severe and thoughtful conditions, pursuant to the authority granted the court by La. Ch. C. art. 817(A). No evidence was taken and no bail was required. The trial court never concluded that it would “authorize the continued custody” of T.D.W.

The continued custody provision of La. Ch. C. art. 817(C) is to ensure the juvenile’s presence in court for future hearings. In the instant case, the court opted not to continue T.D.W. in the custody of the state. If the court had decided not to release T.D.W. to her grandmother’s care, La. Ch. C. art. 819 would have been triggered; that article — the first article of Chapter 5 of Section VIII of the Children’s Code — provides:

If a child is not released to the care of his parents, a hearing shall be held by the court within three days after the child’s entry into the juvenile detention center or shelter care facility. If the hearing is not held, the child shall be released unless the hearing is continued at the request of the child.

The “hearing” described in this article is a continued custody hearing. Although the parties and the trial court called the September 22, 2008, hearing in this case a continued custody hearing, it was not such a hearing. Article 820 defines a continued custody hearing as one where “the state shall prove that there is probable cause that the child has committed a delinquent act or has violated a condition of his probation or release.” At the September 22, 2008, hearing, there was no determination that there was probable cause to believe that T.D.W. had committed a delinquent act, the child was not read her rights, and neither the state nor the child produced witnesses. La. Ch. C. art. 821. Hence, the hearing of September 22, 2008, |nwas not a “continued custody hearing” within the meaning of Chapter 5 of Title VIII of the Children’s Code.

Because there was never a determination in 2008 that there was probable cause to believe that T.D.W. had committed a delinquent act, the trial court would not have been empowered to keep the child in custody under La. Ch. C. art. 822. That article allows the court to keep juveniles in custody in a variety of settings, including “in a private home subject to the supervision of the court [.]”

Since there was never a determination of probable cause in 2008, the child’s status after that hearing was that she had been released from custody, subject to restrictions per La. Ch. C. art. 817(A), into the care of a relative.

La. Ch. C. art. 843, part of Chapter 9 of Title VIII, provides:

A. If a child is continued in custody prior to adjudication, the delinquency petition shall be filed within forty-eight hours of the hearing to determine continued custody.
B. If no petition is filed within the applicable time period, the child shall be released.

Because T.D.W. was not “continued in custody” within the meaning of Chapter 5 of Title VIII of the Children’s Code, La. Ch. C.art. 843 does not apply to her case. None of the other articles in Chapter 9 of Title VIII specify a time limit for filing a petition when the child is not continued in custody.

La. Ch. C. art. 877 provides:

A. If the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
|10B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
C. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.
D. For good cause, the court may extend such period.

This article governs the time period in which the adjudication hearing must be held subsequent to the filing of a petition for delinquency, but it does not address in any way the timing of the filing of that petition.

The question then is what is the applicable delay permitted for the state to institute prosecution after the initial taking of a child into custody under La. Ch. C. arts. 812 and 813. La. Ch. C. art. 104 provides, in part:

Where procedures are not provided in this Code, or otherwise by law, the court shall proceed in accordance with:
(1) The Code of Criminal Procedure in a delinquency proceeding and in a criminal trial of an adult.

La. Ch. C. art. 803 provides:

The provisions of this Title shall govern and regulate delinquency proceedings of courts exercising juvenile jurisdiction. Where procedures are not provided in this Title, or otherwise by this Code, the court shall proceed in accordance with the Code of Criminal Procedure.

La. R.S. 14:34.7, the felony delinquent act of which T.D.W. is accused, provides in part, with our emphasis added:

B. Whoever commits the crime of aggravated second degree battery shall be fined not more than ten thousand dollars or imprisoned, with or without hard labor, for not more than fifteen years, or both.

La.C.Cr.P. art. 572(A)(2), provides:

|nA. Except as provided in Articles 571 and 571.1, no person shall be prosecuted, tried, or punished for an offense not punishable by death or life imprisonment, unless the prosecution is instituted within the following periods of time after the offense has been committed: (2) Four years, for a felony not necessarily punishable by imprisonment at hard labor.

Thus, the state had four years from the date of the alleged delinquent act to file the petition accusing T.D.W. of delinquency. The reasoning and result in State ex rel. C.M., supra, apply to this case.

CONCLUSION

Because the release of the juvenile to her grandmother, even under restrictions allowed by La. Ch. C. art. 817(A), is a release from custody, we find that the prosecutor’s petition charging T.D.W. as a delinquent was timely filed. Accordingly, the judgment of the district court is reversed and the matter remanded for further proceedings.

DECREE

REVERSED AND REMANDED.

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules-Courts of Appeal, the initials of the juvenile involved in this matter will be used instead of her name.

      . Filed under Juvenile Docket No. 6848, Claiborne Parish, Louisiana.

      . Note this in-court comment of the assistant district attorney, at the September 22, 2008, proceeding, with our emphasis added:
      And, your Honor, at this time, this matter is before the Court for a continued custody hearing on the offense of aggravated second degree battery, and the State would recommend that we, at this time, dispense with any type of continued custody hearing, and we’d just ask that the Court release the juvenile to return home[.]

      . The petition was filed under Docket No. 7036-JD. On December 14, 2009, both docket numbers were combined under No. 6848-JD.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Fred D. KIDD, Sr., Appellant.
    No. 45,638-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      Paula Marx, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Neal G. Johnson, Assistant District Attorney, Monroe, LA, for Appellee.
    Before BROWN, STEWART, and LOLLEY, JJ.
   BROWN, Chief Judge.

| defendant, Fred D. Kidd, Sr., was charged with the attempted second degree murder of his girlfriend, Elizabeth Rayetta Robinson, violations of La. R.S. 14:27 and La. R.S. 14:30.1(1). Defendant shot Ms. Robinson at close range in the abdomen with a .357 caliber Magnum revolver just after 1:00 a.m. on May 12, 2006. Trial began on July 7, 2008. After being notified that the jury was deadlocked 9 to 3, the trial court declared a mistrial. A second trial began on June 22, 2009. The jury found defendant guilty of attempted second degree murder. Thereafter, on September 9, 2009, the court sentenced defendant to 18 years at hard labor without the benefit of parole. This appeal followed. We affirm.

Discussion

Sufficiency of the Evidence

At trial, defendant’s attorney asserted that the shooting was justified, that is, in self-defense. Thus, something must be said about the protagonists, the location and time of the shooting, and the evidence of what occurred that particular night.

The Protagonists

Defendant, Fred D. Kidd, Sr., and Elizabeth Robinson had been involved in a tumultuous, on-again, off-again relationship for over seven years. Defendant at the time of the shooting was 54 years old, stood 6' 2" and weighed 210 pounds. Ms. Robinson testified that, at the time of the shooting, she was 44 years old, stood 5' 11" and weighed 220 pounds. We note, however, that Ms. Robinson’s medical records of that night showed her weight to be 233 pounds. Obviously, both were heavyweights.

| ^According to much of the testimony at trial, the two fought frequently. Ms. Robinson testified to defendant’s physical abuse against her. Other witnesses testified to Ms. Robinson’s abuse of defendant and in particular, to two confrontations that occurred within three months of the shooting.

In March 2006, Ms. Robinson came uninvited to the Matador Ball and called defendant to come outside where she tore off his bow tie and soiled his shirt. A security officer at the Ball testified that he required Ms. Robinson to leave. In April 2006, Ms. Robinson went to a bar where defendant was drinking and pointed a handgun in his face. Thereafter defendant sought a restraining order against her; however, this action was dropped before the shooting. Ms. Robinson admitted both incidents but justified this aberrant behavior by stating that defendant had beaten her prior to his leaving to go to the Ball in March 2006 and the bar one month later.

The Time and Location

Defendant’s house was located at the corner of Pine and 10th Streets in Monroe, Louisiana. A 911 call was received at 1:18 a.m. on May 12, 2006, concerning an alleged drive-by shooting outside of defendant’s house. The house sits off the ground on piers. On the 10th Street side, a door opens onto a porch enclosed with waist-high railing looking down onto 10th Street. There was no.yard, just the shoulder of the street. Ms. Robinson, who was standing on the shoulder of the street, was shot in the stomach by defendant, who was standing above her on the porch.

[ 3The Evidence

Significantly, the only testimony concerning what occurred the night of the shooting was from Ms. Robinson.

Ms. Robinson testified that she got off work at approximately 11:00 p.m. on May 11, 2006, and went home. After she had gone to bed, she returned a phone call from Jacqueline Kidd, defendant’s daughter. Jacqueline told Ms. Robinson that she heard some gunshots fired off near her father’s house. This was confirmed by Jacqueline Kidd’s testimony and the phone records. Then defendant phoned Ms. Robinson at 12:52 a.m. and asked her to come to his house because her nephew was there. Caller ID records confirmed the call and time. Ms. Robinson went to defendant’s house, but parked down the street. She testified that she was uneasy about the situation because the lights were not on at defendant’s house and because of what Jacqueline Kidd had said about gunshots being fired.

Ms. Robinson stated that she went to the door and rang the doorbell. Defendant came out onto the porch. He asked her why she was treating him badly. [We will revisit this statement later under “motive.”] After realizing that her nephew was not there, she left, telling defendant that she was not going to argue with him. Ms. Robinson then walked off the porch and heard defendant go back inside. She then heard him return to the porch. He called her name three times. After the third time, Ms. Robinson turned around and defendant shot her in the abdomen. When he shot her, she fell face down onto the street. Defendant approached her and put the gun to the back of her head. Defendant left and Ms. Robinson heard him up on the |4porch talking to a 911 operator on the phone. At this time, Ms. Robinson identified defendant’s voice on the 911 tape, which was played for the jury. The caller on the 911 recording stated that there had been a drive-by shooting.

After placing the call, defendant went back over to Ms. Robinson, turned her over, and looked at her gunshot wound. In the ambulance an officer asked Ms. Robinson if she knew the people in the maroon car who had shot her, and Ms. Robinson confided to the officer that defendant had shot her. Ms. Robinson testified that when she was lying in the street, defendant asked her to tell the police that she had been shot during a drive-by shooting.

A bullet was recovered from Ms. Robinson’s body and was determined to have been fired from the .357 caliber gun which was recovered from defendant’s home. Police officers testified that no weapon was found on Ms. Robinson or from the area where she was shot. The officers also found a half-empty bottle of Crown Royal inside defendant’s house, and one officer testified that defendant smelled of alcohol.

The only witness presented by the defense who had any knowledge about the actual shooting was Canary Henderson, who lived across the street from defendant at the time of the shooting. Ms. Henderson testified that she was sitting on her porch stairs that night (that is, at 1:00 a.m.). She saw defendant come out onto his porch, and he was talking to someone. Ms. Henderson could not identify that person nor could she hear what was said. Even though Ms. Henderson was looking at the back of the other | ..¡person, she said she saw the other person reach under his/her shirt. Ms. Henderson heard a gunshot and ran into her house. She did not report this to the police but told defendant a month later. Ms. Henderson was impeached by her prior inconsistent testimony at defendant’s first trial. Moreover, the State elicited rebuttal testimony from Thomas Jones, an investigator with the District Attorney’s Office, who stated that he put himself in the same situation as Ms. Henderson and it would have been extremely difficult, if not impossible, for Ms. Henderson to have viewed the interaction between defendant and Ms. Robinson on the night of the shooting.

Motive

After requesting that Ms. Robinson come to his house, defendant asked why she was treating him badly. Shortly before the shooting, Ms. Robinson had contacted an attorney who was representing defendant’s employer in a workers’ compensation suit filed by defendant. Ms. Robinson promised to testify that defendant had not injured himself on the job, but at home, and had fraudulently filed his claim for workers’ compensation benefits. The employer subsequently subpoenaed Ms. Robinson for a hearing on May 15, 2006. Defendant was mailed a copy of the subpoena. On May 12, 2006, three days before the compensation hearing was scheduled to take place, defendant called Ms. Robinson and asked her to come to his house. When Ms. Robinson refused to talk to him and was leaving, he shot her. We note that defendant’s attorney in the compensation | ficase testified that Ms. Robinson wanted money. When none was paid, she contacted the employer’s attorneys.

Other Crimes Evidence

On June 11, 2009, the State filed both a notice of its intention to use other crimes evidence and a motion for a Prieur hearing. The Prieur hearing was held on June 22, 2009, before jury selection. The State called Elizabeth Rayetta Robinson, the victim, to testify. Ms. Robinson testified that she and defendant were involved in a romantic relationship. She testified about a number of violent incidents wherein defendant would beat her and sometimes threaten her with a gun. She also testified to having threatened defendant with a gun and to a physical attack against defendant.

The trial court held that the evidence was admissible, finding that the State had proven by a preponderance of the evidence that the events had occurred, and that the prior acts were similar to the allegations in the instant charge. The trial court also held that the evidence was not unduly prejudicial and therefore admissible, as defendant would use self-defense as a justification for the shooting. Ms. Robinson testified the same at the trial.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). In the absence of internal 17contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App.2d Cir.05/09/07), 956 So.2d 769; State v. Burd, 40,480 (La.App.2d Cir.01/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/09/06), 941 So.2d 35. The appellate court does not assess the credibility of witnesses or reweigh evidence and accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442; State v. Hill, 42,025 (La.App.2d Cir.05/09/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

La. R.S. 14:27(A) defines attempt as:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

La. R.S. 14:30.1(A)(1) provides that second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. However, to be guilty of an attempt, the offender must necessarily have intended to kill.

Intoxication is an affirmative defense; the burden of proof by a preponderance of the evidence rests upon defendant. State v. Hall, 43,920 (La.App.2d Cir.02/25/09), 4 So.3d 295. If a defendant proves he was intoxicated at the time of the offense, the state has the burden of negating the defense by proof beyond a reasonable doubt. Id. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony |sof a witness in whole or in part as to issues regarding the question of intoxication. Id.

The record of this matter contains sufficient support for the jury’s verdict. The State elicited the testimony of the victim, Ms. Robinson, who identified defendant as the shooter. Ms. Robinson recounted for the jury the extensive history of domestic violence inflicted both on her by defendant and by her on defendant. She also testified that she had not provoked defendant the night of the shooting, but was attempting to leave his residence when he called her name, waited for her to turn around, and shot her in the abdomen. Defendant then lied to police, telling them that Ms. Robinson was shot during a drive-by shooting. Ms. Robinson’s uncontradicted testimony alone is sufficient to prove the commission of the offense by defendant. State v. Wiltcher, supra; State v. Burd, supra.

Additionally, because it was undisputed that defendant actually shot Ms. Robinson, the defense attempted to show that the shooting was justifiable, i.e., that defendant was acting in self-defense. As stated, there was no evidence that defendant, who asked Ms. Robinson to come to his house, was in fear of her. There was no evidence that Ms. Robinson threatened defendant. The issue is what occurred at the time of the shooting. The State proved its case, which included that the shooting was not in self-defense.

Defendant also failed to prove by a preponderance of evidence the affirmative defense of intoxication. The only testimony relating to defendant’s physical condition was that of Detective Napier, who stated that lflwhile defendant smelled of alcohol, he did not appear intoxicated. Based on the foregoing, a rational trier of fact could have concluded beyond a reasonable doubt that defendant was guilty of attempted second degree murder.

Evidentiary Rulings

Generally speaking, evidence of a defendant’s other crimes, wrongs or bad acts, other than the one with which he is currently charged, is inadmissible, when the only purpose of such evidence is to prove defendant’s character, and thus his subsequent disposition to break the law. La. C.E. art. 404(B); State v. Reed, 43,780 (La.App.2d. Cir.12/03/08), 1 So.3d 561. However, Article 404(B) provides an exception to this general rule, allowing the admission of evidence of other crimes or wrongs as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. Id.

The state must give pretrial notice of its intention to use other crimes evidence in order to comply with due process. State v. Prieur, supra; State v. Reed, supra. The state must establish that the accused committed the prior bad acts by a preponderance of the evidence. State v. Reed, supra. The erroneous admission of other crimes evidence is subject to harmless error review. Id. Additionally, a trial court’s decision regarding the admissibility of other crimes evidence will not be overturned in the absence of a clear abuse of discretion. Id.

The trial court did not err in admitting evidence of the prior acts of violence by defendant against Ms. Robinson. We first note that the defense 110did timely object to the introduction of this evidence by making a general objection to the trial court’s ruling at end of the Prieur hearing. La. C. Cr. P. art. 841.

Ms. Robinson testified at the Prieur hearing about each of the specific instances wherein she suffered domestic violence at the hands of defendant. This testimony was uncontradicted; therefore, the trial court correctly ruled that the State had met its burden of proving by a preponderance of the evidence that defendant committed the prior bad acts.

Furthermore, the evidence was relevant for purposes other than to depict defendant as having a bad character. As held by the trial court, the prior bad acts were similar to the instant crime. Ms. Robinson testified that on many of the prior occasions defendant would hold a gun to her and beat her. Therefore, because defendant asserted that he shot Ms. Robinson in self-defense, the evidence was relevant to prove motive, intent and absence of mistake. We also note that defendant put forth evidence of Ms. Robinson’s prior bad acts. See La. C.E. art. 404(A)(2). From all of this the jury could conclude that both parties acted badly. We find no error in the trial court’s determination that the probative value of this evidence outweighed its prejudicial effect. The trial court’s ruling allowing evidence of the pri- or bad acts of both defendant and victim was proper.

Defendant claims that the trial court erred when it sustained the State’s objection as to the relevancy of evidence that Ms. Robinson reported domestic violence committed by her ex-husband. According to defendant, this evidence was relevant to rebut a trait established by the State, i.e., that InRobinson.did not report acts of violence committed against her by persons with whom she was in love.

Defendant also alleges that the trial court erred in refusing to allow testimony by Jacqueline Kidd, defendant’s daughter, about phone conversations between her and Ms. Robinson. Defendant contends that the substance of these conversations was offered at trial to impeach Ms. Robinson’s earlier testimony that she did not call anyone after the Matador’s Ball to talk about what had occurred between her and defendant.

A trial court’s determination regarding the relevancy of evidence is entitled to great weight and will not be overturned on appeal absent a clear abuse of discretion. State v. Jordan, 31,568 (La.App.2d Cir.02/24/99), 728 So.2d 954, writ denied, 99-0893 (La.10/08/99), 750 So.2d 177.

Generally, evidence of a person’s character, or character trait, is not admissible to prove that the person acted in conformity therewith. However, La. C.E. 404(A)(2) makes an exception when the accused seeks to offer evidence of a character trait of the victim. So long as the character evidence does not concern the dangerous character of the victim (which requires a further showing), the accused may offer evidence that a victim has a certain character trait in an effort to show that the victim acted in conformity with that trait. See, e.g., Frank Maraist, 19 Louisiana Civil Law Treatise, Evidence and Proof, § 5.2 (2d Ed.2007).

The trial court should have allowed limited questioning of the victim regarding any previous report she may have made about domestic violence suffered at the hands of her ex-husband. Defendant offered this evidence in |12an effort to discredit the victim’s testimony that she would not report domestic violence committed by someone she loved. This was a “pertinent” trait of the victim’s character because of the extensive evidence of a pattern of domestic abuse between defendant and the victim. Defendant was trying to diminish the proof that he had, prior to the shooting, committed violence against the victim, and, perhaps more importantly, he was trying to prove that the victim was not a credible witness.

However, any error in this regard was surely harmless beyond a reasonable doubt. The jury heard abundant evidence from numerous witnesses regarding the volatile and abusive behavior of both Ms. Robinson and defendant. The evidence of the victim’s response to the violence by defendant was, likewise, fully presented to the jury, and the jury was free to judge the victim’s credibility based on this abundance of evidence. Further, the record does not make clear that the victim actually had a habit of calling the police on her ex-husband; defendant did not proffer evidence to that effect. The verdict in this case was surely unattributable to any error by the trial court on this issue.

Jury Selection

Defendant claims that he was denied a fair trial from a jury of his peers because the State improperly used peremptory strike backs to remove potential African-American jurors, specifically Gabrielle Elmore and Dennis Wasson, to create an all-white jury.

The State first points out that defendant, a black male, was tried and convicted by a jury composed of seven white females, two black females | wand three white males. This jury was seated from a jury pool which had only eight prospective black jurors in three jury panels. Furthermore, the trial court did not err in finding that the State had adequate nondiscriminatory reasons for striking both Elmore and Wasson.

The United States Constitution prohibits the state from engaging in purposeful discrimination on the grounds of race in the exercise of peremptory challenges. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); State v. Heard, 40,284 (La.App.2d Cir.12/14/05), 917 So.2d 658, writs denied, 06-0188 (La.06/16/06), 929 So.2d 1285 and 06-0781 (La.10/06/06), 938 So.2d 71. When a defendant makes a Batson challenge, claiming that the state has used peremptory strikes in a manner which violates the Equal Protection Clause, the defendant must first make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of a juror’s race. Id. If the defendant fails to make a prima facie case, the challenge fails. If a prima facie case is established, the burden shifts to the state to come forward with a race-neutral explanation for its peremptory challenges. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); Batson, supra; State v. Heard, supra.

If the state tenders a race-neutral reason, then the trial court must decide, in the final step of this three-part analysis, whether defendant has established purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam); State v. Heard, supra.

1 MThe trial court seemingly accepted that the defense had established a prima facie showing that the prosecutor exercised peremptory challenges on the basis of the jurors’ race simply because the State used two peremptory challenges to strike two African-American jurors. The State then came forward with a race-neutral reason for each strike. The prosecutor related that a peremptory challenge was used to strike Dennis Wasson because he was related to one of the defense witnesses and had read about the case in the newspaper. As for Gabrielle Elmore, the State pointed out that the jury had already been filled before Ms. Elmore would have been seated. Nonetheless, the prosecutor explained that they excluded her by peremptory challenge because, as a nursing student, Ms. Elmore had upcoming final exams and admitted that she would have trouble focusing on a trial. Ms. Elmore also had a cousin serving time in California for murder and knew the daughter of one of the defense witnesses. The trial court accepted the race-neutral explanations and denied Kidd’s Batson challenge. The procedure utilized by the trial court complies with the mandates of Batson, and we find no error on the part of the trial court in its ruling.

This assignment therefore has no merit. Excessive Sentence

According to defendant, his 18-year sentence is excessive because he has no prior criminal record, has two brothers and five sisters, raised his children as a single father and was a good neighbor and father. Further, the defense contends that Ms. Robinson played a major part in making their relationship a violent one.

|1SA 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 trial court has broad discretion in sentencing offenders. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Shorts, 42,854 (La.App.2d Cir.12/19/07), 973 So.2d 894.

The record of this matter reveals that the trial court addressed and considered several of the factors expressed in La. C. Cr. P. art. 894.1, including, specifically, the fact that defendant had no prior criminal history, that he used a dangerous weapon in the commission of the offense, the fact that impact of the offense on the victim was significant, and the fact that defendant attempted to cover up his crime by illegally reporting the crime as a drive-by shooting. The trial court sentenced defendant to 18 years at hard labor without the benefit of parole. Under La. R.S. 14:27(D)(1)(a), his possible exposure was anywhere from 10 to 50 years at hard labor without benefits. Defendant’s sentence of 18 years is well below the maximum sentence that could have been imposed. We cannot say that this sentence is excessive by constitutional standards.

This assignment therefore has no merit.

Conclusion

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

AFFIRMED.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Thomas Payne HORN, Appellant.
    No. 45,706-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      Louisiana Appellate Project, by W. Jarred Franklin, for Appellant.
    Charles Rex Scott, District Attorney, J. Dhu Thompson Suzanne M. Owen, Assistant District Attorneys, for Appellee.
    Before CARAWAY, PEATROSS & MOORE, JJ.
   PEATROSS, J.

| defendant, Thomas Payne Horn, was convicted of second degree murder and sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Defendant now appeals. For the reasons stated herein, the conviction and sentence of Defendant are affirmed.

FACTS

On December 8, 2006, Defendant was at a house party at Daniel Ray Watlington’s residence located on Canal Street in Shreveport, Louisiana. Watlington informed Defendant and two other men at the party, Domanike J. Flores and Rocky J. Leone, that he had received information that Troy Killough, the victim, was coming to his house with the intention of robbing the occupants therein. Killough arrived shortly thereafter and an argument ensued in the front yard of Watlington’s residence, escalating into a physical altercation between Killough and the four other men.

After the fight, Killough agreed to take Watlington, Leone, Flores and Defendant to a house where the other people who were planning to help him rob Watlington were waiting. Leone drove the men in his white Chevrolet Tahoe to the house. The house was empty upon arrival, however, so Leone continued driving and ultimately entered 1-20, heading westbound toward Greenwood, Louisiana, with the other four men still in the vehicle.

During the drive toward Greenwood, the men riding as passengers in the vehicle began to beat Killough. At one point, Defendant and Killough got into an argument because Killough and a friend of his allegedly slept with Defendant’s girlfriend. While the other men continued to beat him, 12Killough lunged forward and grabbed the steering wheel of the Tahoe. This caused the Tahoe to collide with another vehicle on the interstate. Without stopping, the men turned around in the median and went back eastbound on 1-20. The men then drove to a wooded area off Elysian Fields Road where Killough, who was severely beaten by this time, was taken from the vehicle and dragged up a hill. Defendant then shot Killough twice in the head. Killough’s body was found the following day, December 9, 2006, by Larry Neal, a hunter who was checking the property on which he had a hunting lease.

Over the course of the investigation following Killough’s murder, Defendant was interviewed on two separate occasions, once on December 10, 2006, by lead criminal Detective Michael Escude of the Caddo Parish Sheriffs Office, and a second time on December 11, 2006, by Detective Terry Richardson of the Caddo Parish Sheriffs Office. During the second interview, Defendant admitted to shooting Killough and was subsequently arrested.

On January 18, 2007, a Bill of Indictment was filed charging Defendant with the first degree murder of Troy Killough in violation of La. R.S. 14:30. An amended indictment was subsequently filed on September 24, 2009, wherein Defendant was charged with the second degree murder of Troy Killough in violation of La. R.S. 14:30.1.

On May 29, 2008, Defendant filed a motion to suppress the statements made by him to Detectives Escude and Richardson during the interviews on December 10-11, 2006. An evidentiary hearing on ^Defendant’s motion to suppress was held on July 14, 2008. The State first called Detective Escude who testified that he conducted the interview with Defendant on December 10, 2006, at the Criminal Investigation Division office (“CID office”) after developing his name as a possible witness to the murder.

Detective Escude testified that Defendant told him that he had heard about Killough’s death through some friends and contacted the authorities when he heard they were asking about him. Defendant voluntarily went to the CID office to be interviewed and was not picked up in a police unit. Defendant was not advised of his Mirando rights at this time because he was not being viewed as a suspect, but rather he was being viewed as a witness. Detective Escude testified that he did not force or coerce Defendant into giving a statement, nor did he promise Defendant anything of value in exchange for giving a statement to the investigators. Defendant did not make any statements in reference to Killough’s death or the manner in which he was killed. Consequently, the interview was concluded and Defendant was advised that he was free to leave the CID office.

The State then called as a witness Detective Richardson who conducted a second interview with Defendant on December 11, 2006, after developing information that led detectives to believe that Defendant may have been involved with the murder. Detective Richardson located Defendant at approximately 2:00 a.m. at the Old Salem Apartments and |4asked him to accompany detectives to the CID office for questioning. Defendant voluntarily agreed to do so. Detective Richardson testified that Defendant appeared to be sleepy because the detectives had awoken him, but that he did not appear to be intoxicated or in any type of ill frame of mind.

Prior to conducting the interview, Detective Richardson advised Defendant of his Miranda rights by reading his rights from a “rights sheet” and Defendant signed the sheet indicating that he understood his rights. Detective Jason Morgan was also present during the interview. Detective Richardson testified that neither he nor Detective Morgan threatened or coerced Defendant into giving a statement, nor did they promise him anything of value or leniency in exchange for giving a statement. Detective Richardson also testified that Defendant did not invoke his right to counsel or ask that the questioning be stopped at any time during the interview. Defendant ultimately admitted during the interview to being present at the time Killough was killed, as well as to being the individual who shot Killough twice in the head.

The State did not call Detective Morgan at the hearing on the motion to suppress and the defense did not call any witnesses. On August 19, 2008, the trial judge rendered a ruling denying Defendant’s motion to suppress.

Jury selection began on October 19, 2009. Defense counsel asserted a Batson objection based on the State’s use of peremptory challenges against black jurors. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The State countered that defense counsel had not | ¿made a prima facie showing that the State was systematically excluding members of a particular race. Id. Relying on his own statistical calculations of the number of strikes and the number of tentative acceptances of jurors, the trial judge overruled defense counsel’s Batson objection. Id. During “strike backs,” defense counsel renewed its Batson objection and the trial judge overruled the objection, basing his ruling on the totality of the circumstances. Id.

Trial in the matter began on October 22, 2009. The State’s first witness was Larry Neal, the man who had discovered Kil-lough’s body. Neal had a hunting lease in and around the Elysian Fields Road area off Hwy. 80 in Greenwood. Neal testified that, on December 9, 2006, he drove out to check on the leased property because he had problems with trespassers in the past. Neal entered a log road leading off Hwy. 80 and discovered Killough’s body lying there with his pants down to his ankles and his shirt pulled over his head. Neal called 911 and officers from the Greenwood Police Department and the Caddo Parish Sheriffs Office arrived at the scene shortly thereafter.

The State called as its next witness Officer George Shaw of the Greenwood Police Department. Officer Shaw was the first officer to arrive at the scene on the day Killough’s body was found. Officer Shaw observed drag marks from where it appeared that a vehicle had pulled into a drive, stopped and from which Killough’s body was presumably dragged to where it was found. Officer Shaw testified that the Greenwood Fire Department then arrived and medics confirmed that Killough did not have a pulse. ^Officer Shaw secured the scene with crime tape and waited for deputies to arrive. Officer Shaw testified that, at this point, the Caddo Parish Sheriffs Office arrived to take over the investigation and the scene was released to its investigators.

The State also called as a witness William Young, the half brother of Watling-ton. Young testified that, on December 9, 2006, he had a conversation with Defendant during which Defendant told him that he shot Killough. When questioned about Defendant’s demeanor in making these statements, Young replied that Defendant appeared to be “[gjloating like he liked it. Like he did something for himself.”

The State then called Detective Michael Escude of the Caddo Parish Sheriffs Office, who conducted the first interview with Defendant at the CID office on December 10, 2006. As previously mentioned, Detective Escude testified that Defendant requested to speak to detectives because he had heard they were looking for him. When contacted by Defendant, Detective Escude asked him to come to the CID office and he arrived later that afternoon. At this time, Defendant told Detective Es-cude that the night before Killough’s body was discovered, Killough had contacted him because he was “looking to score some marijuana and what they refer to as an eight ball.” Detective Escude testified that, during this interview, he did not have any information linking Defendant to the murder of Killough and was only viewing him as a potential witness. For this reason, Defendant was told he was free to leave the CID office after finishing the interview.

Dr. Frank Peretti, a forensic pathologist from Little Rock, Arkansas, |7aIso testified as a witness for the State. Dr. Peretti performed the autopsy of Killough and recorded in his autopsy report that Kil-lough had sustained two gunshot wounds to the head. Dr. Peretti also noted abrasions on Killough’s back indicating that his body had been dragged. He further noted a black eye and a contusion on Killough’s nose, which he opined to be the result of blunt force injury arising from being beaten. In Dr. Peretti’s final opinion, he concluded that Killough died from a gunshot wound to the head.

The State called as its next witness Do-manike J. Flores. Flores was one of the men present at Watlington’s house party and was also present during the course of events that ultimately led to Killough’s murder. Flores was initially charged with murder when arrested, but entered into a plea agreement with the State wherein he pled guilty to manslaughter. In exchange for his truthful and cooperative testimony, Flores received a sentence of 13½ years with credit for time served.

Flores is friends with Leone, the owner of the vehicle that Leone, Killough, Defendant, Flores and Watlington were riding around in on the night of December 8, 2006. Flores testified that there was a house party that evening at Watlington’s residence and that he and Leone had gone to the house in Leone’s Tahoe to pick up some money from Watlington. Flores testified that the first time he had met Defendant was that night at the party at Wat-lington’s house. Flores testified that there was a discussion among himself, Watling-ton and Defendant about the alleged plans of Killough and some other guys to rob Watlington.

Flores further testified that Killough arrived at Watlington’s house | swith one other person who left while Killough remained. Killough went into the house and asked to buy some “X pills,” at which time Watlington brought it to Leone’s attention that Killough had come to the house with plans to rob them. Flores, Watlington, Defendant, Leone and Killough then went outside and Leone and Killough got into a physical altercation. Soon thereafter, Watlington and Flores joined in the fight. When the fight ended, Killough offered to take Leone, Flores, Watlington and Defendant to the house where his alleged co-conspirators were waiting. The five men got into Leone’s Tahoe and drove to the house, but it was empty. At this point, before driving off, Flores suggested they put Killough out of the vehicle because he was already beaten up, but, instead, Leone continued to drive toward 1-20. Killough had a bloody nose and was in the back seat sitting between Watlington and Defendant.

Flores then testified that the men began heading down 1-20 toward Greenwood, during which time Killough and Defendant began arguing over a female. Defendant accused Killough of sleeping with his girlfriend, but Killough denied it. Defendant responded that he was going to “mere” Killough because Defendant was going to “marry that girl.” Flores testified that he was unaware of the incident that Defendant was referring to when he accused Killough of sleeping with his girlfriend.

Flores further testified that, at one point, Killough jumped up and grabbed the steering wheel causing the Tahoe to collide with another vehiclé on the interstate. Flores believed that Killough had grabbed the Iswheel in an attempt to escape from the vehicle. When Killough got back into his seat, Watlington grabbed him in a head lock and they began wrestling. Flores then began beating Killough in the side until Killough stopped fighting.

Flores testified that he recalled a conversation among the group in reference to taking Killough to Texas because the manslaughter laws there were a “lot less steep” than in Louisiana, but he could not recall who made the statement. According to Flores, Watlington then told Leone to táke the Love’s exit on 1-20 and the group ultimately pulled off near a wooded area where they stopped and pulled Killough out of the back seat. Defendant and Wat-lington brought Killough around to the back of the vehicle and Leone and Flores proceeded to pull Killough up a hill. Leone and Flores walked back down the hill and Defendant walked up the hill alone with a pistol in his hand. Flores testified that Killough was still breathing when he and Leone were dragging Killough up the hill. Flores testified that he then saw Defendant walk up the hill and “[tjhat’s when I heard the shots.” After the two shots were fired, Leone, Flores, Watling-ton and Defendant got back into the Tahoe and went back to Watlington’s house.

Flores testified that he did not realize that anyone had a gun in the vehicle until the Tahoe collided with the other vehicle on 1-20. Flores testified that, during the collision, he saw the gun fly up between the seats so he picked up the gun and handed it to Defendant. Flores testified that he was 100 percent positive that Defendant shot Killough and, further, that no one in the group pressured Defendant into shooting Killough.

hnThe State then called Detective Terry Richardson of the Caddo Parish Sheriffs Office. Detective Richardson first spoke with Defendant during the interview which took place at the CID office on December 10, 2006. Defendant was released after that interview, but it was later determined that he needed to be further interviewed to determine the truthfulness of his initial statements and to discern any other information relevant to the murder.

In the early morning hours of December 11, 2006, Detective Richardson attempted to reach Defendant by phone, but was unsuccessful, so he went to the Old Salem Apartments, woke up Defendant and asked him to accompany detectives back to the CID office to further discuss Killough’s murder. As previously discussed, Defendant agreed to do so and was transported to the CID office, but was left in possession of his phone and all of his belongings because he was not under arrest at that point.

Detective Richardson then advised Defendant of his Miranda rights and Defendant signed the CID office’s standard Miranda rights form acknowledging that he understood his rights. Detective Richardson testified that Defendant was not coerced in any way and no promises for anything of value were made in exchange for his giving a statement. It was during this interview that Defendant admitted to shooting Killough twice in the head. After Defendant admitted to the shooting, he was placed under arrest for the murder of Killough.

As previously stated, trial of the matter commenced in October 2009 and, at the conclusion of trial on October 26, 2009, a unanimous jury found | ^Defendant guilty as charged of the second degree murder of Troy Killough. Defendant did not file a motion to reconsider sentence; however, on November 6, 2009, he filed a motion for post verdict judgment of modification wherein he alleged that the evidence presented at trial did not support his conviction of second degree murder and, therefore, a conviction of manslaughter should be entered instead. On November 10, 2009, the trial judge denied the post verdict judgment of modification and subsequently sentenced Defendant to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. This appeal ensued.

DISCUSSION

Assignment of Error Number One (verbatim): There is insufficient evidence to prove the guilt of Defendant for the offense of second degree murder beyond a reasonable doubt.

In his first assignment of error, Defendant argues that the State did not prove the elements of second degree murder under La. R.S. 14:30.1, which requires a showing that Defendant killed Killough while possessing specific intent to kill or inflict great bodily harm. Defendant further asserts that the State was .required to, but did not, prove that he shot Killough in the absence of heat of blood and sudden passion.

The State argues that the evidence at trial was sufficient to support a jury verdict finding Defendant guilty of second degree murder. See La. R.S. 14:30.1. The State further contends that Defendant was not sufficiently provoked so as to justify the lesser included offense of manslaughter based on sudden passion or heat of blood. See La. R.S. 14:31; La. C. Cr. P. art. 821.

112The State points to the testimony of Flores who stated that he (Flores) had recovered from the provocation of the alleged intended robbery prior to Killough’s murder. Additionally, the State argues that Killough’s alleged involvement with Defendant’s girlfriend was sufficiently removed by the time Killough was shot and, further, that Killough’s act of lunging forward and grabbing the steering wheel of the Tahoe was an act of self-defense, not provocation.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ de nied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. |13A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913, cert. denied, — U.S. -, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010); State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, 43,786 (La. App.2d Cir. 1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. de nied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

Second degree murder is defined in La. R.S. 14:30.1, which states in pertinent part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm[.]

Manslaughter is defined in La. R.S. 14:31, which states in relevant part:

A. Manslaughter is:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall 114not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed!.] (Emphasis Added.)

“Sudden passion” or “heat of blood” immediately caused by provocation sufficient to deprive the average person of his self-control and cool reflection are not elements of the crime of manslaughter; rather, they are mitigatory factors in the nature of a defense exhibiting a degree of culpability less than that present when homicide is committed without them. State v. Lombard, 486 So.2d 106 (La.1986); State v. McCray, 621 So.2d 94 (La.App. 2d Cir.1993); State v. Ruff, 504 So.2d 72 (La.App. 2d Cir.1987), writs denied, 508 So.2d 64,65 (La.1987). Provocation and the time for cooling are questions for the jury to determine according to the standard of the average or ordinary person. State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007); State v. Deal, 00-0434 (La.11/28/01), 802 So.2d 1254, cert. denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002).

During the interview with Detective Richardson on December 11, 2006, Defendant admitted to shooting Killough. Defendant also indicated in his recorded statement that he believed Killough was dead before he shot him, but that he shot Killough anyway because he was pressured by the other men to do so. Additionally, Dr. Peretti testified that, in his final opinion, Killough died of a gunshot wound to the head. This finding contradicts Defendant’s alleged belief that Kil-lough was dead before he shot him. Furthermore, codefendant Flores testified that Killough was still breathing when Defendant pulled him out of the vehicle and as he was being |15dragged up the hill and that no one else in the group pressured Defendant into shooting Killough. Accordingly, we find the evidence sufficient to support the jury verdict finding Defendant guilty of the second degree murder of Troy Killough. See La. R.S. 14:30.1.

In this assignment of error, Defendant also argues that, should the evidence support a verdict of second degree murder, the court should enter a verdict for the lesser included offense of manslaughter because Defendant was sufficiently provoked by Killough and, thus, murdered him in sudden passion and heat of blood.

Defendant relies on three events in support of this assertion: (1) Killough went to Watlington’s residence with the alleged intent of robbing the occupants therein; (2) Killough allegedly slept with Defendant’s girlfriend; and, (3) Killough grabbed the steering wheel of the vehicle in which he, Defendant, Watlington, Leone and Flores were riding, which caused a collision with another vehicle and endangered the safety of the occupants in the vehicle. Defendant argues that his act of shooting Killough was sufficiently provoked as a result of these actions of Killough; and, therefore, a judgment should have been rendered for the lesser included offense of manslaughter pursuant to La. R.S. 14:31 and La. C. Cr. P. art. 821.

As pointed out by the State, Flores testified that, prior to Defendant’s decision to shoot Killough, he (Flores) had recovered from the provocation of Killough’s alleged intended robbery because the beating had already taken place, such that Flores argued in favor of releasing Killough prior to 11fidriving to Greenwood. In addition, Defendant admitted in his recorded statement to Detective Richardson that the argument with Killough over the girl had taken place more than two weeks prior to the night he shot Killough. Defendant explained that, after the two ended them argument about Defendant’s girlfriend, he (Defendant) and Killough “made up and we hugged right there.” Finally, it is clear from the record that Killough’s act of lunging forward and grabbing the steering wheel of the Tahoe was in self-defense. Killough had already been beaten by the men once at Watlington’s house and was being beaten continuously as the men rode in the Tahoe toward Greenwood. Flores testified that it appeared that Killough was attempting to escape from and clearly did not want to be in the Tahoe. Furthermore, the vehicle that was damaged as a result of Killough’s act of causing the collision did not belong to Defendant, but was owned by Leone.

Accordingly, the facts and circumstances of this case, Flores’ testimony and Defendant’s own statements to Detective Richardson do not support Defendant’s argument that he shot Killough as a result of sudden passion or heat of blood arising from being sufficiently provoked by the actions of Killough; therefore, the evidence does not support a verdict for the lesser included offense of manslaughter. See La. R.S. 14:31; La. C. Cr. P. art. 821.

This assignment is without merit.

Assignment of Error Number Two (verbatim): The trial court erred in denying Defendant’s challenge of the State’s exclusion of jurors based solely on race.

In his second assignment of error, Defendant argues that the trial |17judge erred in ruling that Defendant did not make a prima facie showing in his Batson challenge that the State excluded venire members on the sole basis of race during jury selection. Defendant contends that the State used peremptory strikes to remove African-American prospective jurors from the jury; therefore, the State should have been required to provide race-neutral reasons for their exclusion. Batson v. Kentucky, supra. In particular, Defendant objected to the State’s removal of venire members Hall, Jones, Pullman and Brown.

The State points out that the court gave consideration to the pattern of peremptory strikes by the State and concluded that Defendant did not make a prima facie showing that the State excluded the venire members on the basis of race. Batson v. Kentucky, supra. The State also notes that it excused a white female venire member and accepted as venire members a black female and a black male, who were then challenged by Defendant. In addition, the State provides race-neutral reasons for the peremptory challenges used on Hall, Jones, Pullman and Brown.

It is well settled that the use of peremptory challenges based solely on a juror’s race is prohibited. Batson v. Kentucky, supra. The Batson decision is codified in our law in La. C. Cr. P. art. 795.

In State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007), the Supreme Court set forth the process for reviewing a Batson claim:

A Defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine |iswhether the Defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, “[t]he second step of this process does not demand an explanation that is persuasive, or even plausible”; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (Internal citations omitted).

In State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272, the Louisiana Supreme Court held that the sole focus of the Bat-son inquiry is on the intent of the prosecutor at the time he exercised his peremptory strikes. Batson v. Kentucky, supra; see also State v. Juniors, 03-2425 (La.6/29/05), 915 So.2d 291, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006). The trial court plays a unique role in the dynamics of a voir dire, for it is this court that observes firsthand the demeanor of the attorneys and venire persons, the nuances of questions asked, the racial composition of the venire and the general atmosphere of the voir dire that simply cannot be replicated from a cold transcript. State v. Juniors, supra; State v. Myers, 99-1803 (La.4/11/00), 761 So.2d 498.

The purpose of voir dire is to determine the qualifications of prospective jurors by testing their competency and impartiality and to assist counsel in articulating intelligent reasons for the exercise of for cause and peremptory challenges. State v. Ball, 00-2277 (La.1/25/02), 824 So.2d 191089, cert. denied, 537 U.S. 864, 123 S.Ct. 260, 154 L.Ed.2d 107 (2002); State v. White, 39,745 (La.App.2d Cir.6/29/05), 907 So.2d 228. The scope of voir dire examination lies within the sound discretion of the trial judge, whose rulings will not be disturbed absent a clear abuse of that discretion. La. C. Cr. P. art. 786; State v. Ball, supra.

Defendant objected to the State’s removal of African-American venire members Hall, Jones, Pullman and Brown; however, the State provided race-neutral reasons for exercising its peremptory challenges over these four venire members.

Venire member Hall had difficulty accepting the concept of “principals.” The State explained to venire members that “principals” were “all persons concerned in the commission of a crime whether present or absent and whether they directly commit the act constituting the offense, aid and abet in its commission or directly or indirectly counsel or procure another person to commit the crime.” Hall stated that she had a problem with the concept of “principals” because she has a brother serving time for murder and she feels like the prosecutors in his case did not treat him fairly.

Venire member Jones stated that she would be devastated if she was selected to be a member of the jury because she did not want the responsibility of holding someone’s future or life in her hands. Ve-nire member Pullman would only say that she could probably vote for a life sentence and the she was upset about her jury summons because of difficulties in obtaining child care. Finally, venire member Brown stated that she could not live with making a decision to send someone to jail for 12flthe rest of his or her life.

Given the responses of these venire members, which constituted the State’s purported nondiscriminatory reasons for their exclusion, we do not find that the trial judge erred in finding that Defendant did not make a prima facie case of discriminatory intent in support of his Baton challenge. Batson v. Kentucky, supra.

This assignment is without merit.

Assignment of Error Number Three (verbatim): The trial court erred in denying Defendant’s Motion to Suppress.

In his third assignment of error, Defendant argues that he was never advised of his Miranda rights prior to or during the interview which took place at the CID office on December 10, 2006. Defendant further contends that the manner in which he was tracked down and ordered to go to the CID office for a subsequent interview on December 11, 2006, vitiated the volun-tariness of his statements, despite his having been read his Miranda rights prior to the interview.

At a hearing on a motion to suppress a confession, the State bears the burden of proving the free and voluntary nature of the confession beyond a reasonable doubt. State v. Hills, 354 So.2d 186 (La.1977); State v. Roddy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 00-1427 (La.5/11/01), 791 So.2d 1288.

In reviewing the correctness of the trial court’s pretrial ruling on a motion to suppress, the appellate court may review the entire record, including testimony at trial. State v. Green, supra; State v. Brooks, 92-3331 (La.1/17/95), 648 So.2d 366, State v. Martin, 595 So.2d 592 (La.1992); |21State v. Young, 39,546 (La.App.2d Cir.3/2/05), 895 So.2d 753.

Great weight is placed upon the trial court’s ruling on a motion to suppress in regard to the finding of facts because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Crews, 28,153 (La.App.2d Cir.5/8/96), 674 So.2d 1082. Accordingly, on appeal, the trial court’s ruling on a motion to suppress is reviewed under the manifest error standard with regard to factual determinations, while its findings of law are subject to de novo review. State ex rel. Thibodeaux v. State, 01-2510 (La.3/8/02), 811 So.2d 875; State v. Hemphill, 41,526 (La.App.2d Cir.11/17/06), 942 So.2d 1263, writ denied, 06-2976 (La.3/9/07), 949 So.2d 441.

Before a confession can be introduced into evidence, the State must show that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. See La. R.S. 15:451; La. C. Cr. P. art. 703(D); State v. Bowers, 39,970 (La.App.2d Cir.8/19/05), 909 So.2d 1038; State v. Roddy, supra. The State must also establish that an accused who makes a statement during a custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, supra; State v. Bowers, supra; State v. Franklin, 35,268 (La.App.2d Cir.12/19/01), 803 So.2d 1057, writ denied, 02-0352 (La.2/7/03), 836 So.2d 85; State v. Roddy, supra.

Detective Escude testified that, on December 10, 2006, Defendant initially contacted the investigators and went voluntarily to the CID office to 122give a statement. At that time, Defendant was not in custody, was not a suspect, and the only interest investigators had in him was as a possible witness, so he was not advised of his Miranda rights. Detective Escude did not force or coerce Defendant into giving a statement, nor did he promise Defendant anything of value in exchange for giving a statement to the investigators.

On December 11, 2006, Detective Richardson conducted the second interview with Defendant and testified that, when Defendant proved to be unreachable on the phone, detectives located him at the Old Salem Apartments. Defendant was asked to accompany detectives to the CID office and he voluntarily agreed to do so. Defendant was transported to the CID office by Detectives Richardson and Morgan, but was not under arrest. Before commencing the interview, Defendant was advised of his Miranda rights and he signed a “rights sheet” indicating that he understood his rights. At no time did Detectives Richardson or Morgan threaten or coerce Defendant into giving a statement, nor did they promise him anything of value or make any promises of leniency in exchange for him giving a statement. Defendant did not invoke his right to counsel or ask that questioning be stopped at any time during the interview and he voluntarily admitted to shooting Killough.

Accordingly, we find that the State carried its burden of proving that Defendant was apprised of his Miranda rights and, furthermore, that Defendant’s confession was free and voluntary. La. R.S. 15:451; La. C. Cr. P. art. 703(D); Miranda v. Arizona, supra; State v. Bowers, supra. The trial | ¡.¿judge, therefore, did not err in denying Defendant’s motion to suppress.

This assignment is without merit.

Assignment of Error Number Four (verbatim): The sentence imposed is excessive for this offender and offense.

On November 10, 2009, the trial judge imposed upon Defendant the mandatory sentence for a second degree murder conviction, i.e., life imprisonment without benefit of probation, parole or suspension of sentence. See La. R.S. 14:30.1(B). Defendant alleges that this sentence is grossly disproportionate to the crime committed and. represents nothing more than the needless imposition of pain and suffering. Defendant further alleges that nothing in the record indicates that such a sentence is necessary to avoid further criminal activity by Defendant or damage to society.

La. R.S. 14:30.1(B) provides:

Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not re-qnired to list every aggravating or mitigating factor 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. Lathan, 41,-855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297.

The goal of La. C. Cr. P. art. 894.1 is the articulation of the factual basis for a sentence, not the rigid or mechanical compliance with its 1 ^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. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s prior criminal record, the seriousness of the offense, the likelihood of rehabilitation and his per sonal history, including his age, family ties, marital status, health and employment record. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, unit denied, 07-0144 (La.9/28/07), 964 So.2d 351.

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. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir] 254/2/97), 691 So.2d 864.

The record reveals that Defendant did not file a motion to reconsider sentence; therefore, he is relegated to a bare claim of constitutional excessiveness. La. C. Cr. P. art. 881.1; State v. Mims, 619 So.2d 1059 (La.1993). Furthermore, there is no need for the trial judge to justify a sentence under La. C. Cr. P. art. 894.1 when he is legally required to impose that sentence, such as the mandatory sentence of life imprisonment without benefit of probation, parole or suspension of sentence required for a conviction of second degree murder. See La. R.S. 14:30.1(B); State v. Wright, 42,956 (La.App.2d Cir.3/5/08), 978 So.2d 1062, writ denied, 08-0819 (La.10/31/08), 994 So.2d 532.

Mandatory sentences under La. R.S. 14:30 have been consistently upheld as constitutional and consistent with the federal and state constitutional provisions prohibiting cruel, unusual or excessive punishment. State v. Wright, supra; State v. Sims, 32,461 (La.App.2d Cir.10/27/99), 745 So.2d 151, writ denied, 99-3384 (La.5/12/00), 762 So.2d 11. The trial judge may only depart from the minimum mandatory sentence if he finds that the defendant presented “clear and convincing evidence” to rebut that presumption of constitutionality, which requires a showing that “[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign [a sentence that is] meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672.

| ¡.^Defendant has failed to present clear and convincing evidence demonstrating that he is “exceptional” and that the circumstances of this case warrant a downward departure from the mandatory minimum sentence pursuant to the statute. La. R.S. 14:30.1(B); State v. Wright, supra.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Thomas Payne Horne, are affirmed.

AFFIRMED.

      . Detective Terry Richardson also participated in the interview that day.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

      . Flores later testified that "mere” is slang for "kill.”


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Kristi BURTON, Appellant.
    No. 45,640-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.
    Mark O. Foster, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, John W. Montgomery, Assistant District Attorneys, for Appellee.
    Before PEATROSS, DREW and LOLLEY, JJ.
   LOLLEY, J.

| ]The defendant, Kristi Burton, pled guilty to driving while intoxicated (DWI), fourth offense, pursuant to a plea agreement in which the state agreed to dismiss various other traffic charges. She received a sentence of 15 years at hard labor. This appeal by Burton ensued.

Burton’s appellate counsel has filed a motion to withdraw, together with an An-ders brief in support of the motion. The state concurs that there are no nonfrivo-lous issues to raise on appeal. On June 3, 2010, this Court rescinded the previously fixed pro se briefing deadline and notified Burton that she could file a brief in this appeal within 30 days, and request to view the appellate record within 10 days, of the date of this order. Burton has not requested the record and has not filed any brief. The motion to withdraw is granted, and Burton’s conviction and sentence are affirmed.

Facts

Burton was charged by bill of information with one count of DWI, fourth offense, a violation of La. R.S. 14:98(E), and on September 4, 2009, as part of a plea agreement, she pled guilty as charged. There was no agreement as to Burton’s sentence.

The factual basis for the charge of DWI, fourth offense, was stated on the record at the guilty plea. On May 16, 2009, Burton was pulled over by a Louisiana State Trooper after running a red light. The trooper observed her move a white plastic cup from the front driver’s side area to the rear passenger side area and detected a strong alcoholic beverage odor when he approached the vehicle. Burton’s eyes were bloodshot and watery, and she was unable to satisfactorily complete the Horizontal Gaze Nystagmus test. LShe was unable to walk heel-to-toe during the walk- and-turn test and had to place her hand on the car for support three different times. Burton was also unable to perform the one-leg stand test. She consented to a Breathalyzer test on which she registered a blood alcohol content of .144 percent. Notably, at the time of the offense, it was criminal to operate a motor vehicle with a blood alcohol concentration of .08 percent or higher; thus Burton was almost twice the legal limit. She then admitted that she had consumed two whiskey drinks and that the drink in the vehicle was also a mixed alcoholic beverage.

On November 30, 2009, Burton was sentenced to 15 years of imprisonment at hard labor and a $5,000 fine. In imposing sentence, the trial court reviewed the presen-tence investigation report which showed the defendant as having two DWI-first offense convictions, one DWI-second offense conviction and one DWI-third offense conviction. In addition to the DWI-third offense conviction, Burton had prior felony convictions for criminal damage to property and simple burglary of a vehicle. Her criminal history also included misdemeanor convictions for trespassing, disturbing the peace and arrests for aggravated battery, simple assault, and child desertion charges. She had also received the benefit of probated sentences on three of her felony convictions, all of which were revoked on September 11, 2006. Burton filed a motion to reconsider sentence which was denied by the trial court. This appeal followed.

Burton’s appellate counsel has filed an Anders brief seeking to withdraw from representing Burton, which brief alleges that he could find |3no nonfrivolous issues to raise on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 1996-2669 (La.12/12/97), 704 So.2d 241, 242; State v. Mouton, 1995-0981 (La.04/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlines the procedural history and the Boykin compliant plea colloquy leading to the defendant’s conviction. The brief also contains “a detailed and renewable assessment for both Burton and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra. Defense counsel further verifies that he has mailed copies of the motion to withdraw and his brief to the defendant, in accordance with Anders, Jyles, Mouton, and Benjamin, supra. This court held the motion to withdraw in abeyance and advised Burton of her right to file an appellate brief within 30 days of this court’s June 3, 2010, order. As of this date, Burton has not responded to the notice.

We have conducted an error patent review of the appellate record and no errors patent were found. The bill of information and arraignment were correctly done. There were no errors patent found in the guilty plea or sentencing proceedings. Furthermore, the record supports Burton’s sentence of 15 years at hard labor and a $5,000 fine.

So considering, the motion to withdraw is granted, and Kristi Burton’s conviction and sentence are affirmed.

AFFIRMED.