text:
    STATE of Louisiana v. Joshua Derrick DAVIS.
    No. 10-909.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      James C. Downs, District Attorney, Brian Davis Mosley, Assistant District Attorney, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
    Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, William Jarred Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant/Appellant-Joshua Derrick Davis.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Elizabeth A. Pickett, Judges.
   THIBODEAUX, Chief Judge.

1 ,The State of Louisiana (State) charged the defendant, Joshua Derrick Davis, with possession with intent to distribute methamphetamine, a Schedule II, controlled dangerous substance (CDS). The jury found Mr. Davis guilty of the responsive offense of possession of methamphetamine, and Mr. Davis received a sentence of five years. The State filed a habitual offender bill seeking the imposition of an enhanced sentence against Mr. Davis as a third offender. The trial court adjudicated Mr. Davis a third felony offender, vacated its previously imposed five-year sentence, and imposed a sentence of seven years at hard labor. Mr. Davis brought this appeal. For the reasons more fully set forth below, we affirm the defendant’s conviction and sentence.

I.
ISSUES
We must decide:
(1) whether the State produced sufficient evidence against the defendant to support the jury’s verdict of possession of methamphetamine; and,
(2) whether the sentence imposed by the trial court was excessive for this offense and this offender.

II.

FACTS AND PROCEDURAL HISTORY

Deputy Kyle Sellers, a patrol officer with the Rapides Parish Sheriffs Department, saw Mr. Davis exit a gas station in a blue truck with an expired inspection sticker. The officer turned around to follow, and Mr. Davis sped up and turned into a driveway. Deputy Sellers activated his lights, pulled in behind Mr. Davis, and told him to step to the rear of the truck. Mr. Davis complied but refused | ¡.to make eye contact. He exhibited nervous behavior with shaky hands, attempted but could not produce a driver’s license, and could not provide the name of the person he allegedly was in route to visit. Deputy Sellers discovered that Mr. Davis had three outstanding warrants, advised him of the warrants, and placed him under arrest.

Deputy Sellers then asked Mr. Davis if anything illegal was in the vehicle. Still without making eye contact, Mr. Davis put his head down and moved it back and forth, indicating that there was not anything illegal in the vehicle. Suspecting that something was being hidden, Deputy Sellers presented Mr. Davis with a consent-to-search form, which Mr. Davis signed.

Deputy Sellers then made contact with the passenger in the truck and asked her to step out. She was crying, upset, could barely talk, and seemed nervous and scared. She said that she was Mr. Davis’ girlfriend. When Deputy Sellers asked her if anything illegal was in the truck, she responded that she believed there was, and she indicated that it was in the ashtray.

Deputy Sellers then searched the truck. In the ashtray underneath the radio was a glass pipe, wet with residue, and a folded paper towel containing five small plastic bags of crystal methamphetamine. Mr. Davis admitted the bags were his. The passenger denied that it was hers. Mr. Davis told Deputy Sellers that times were bad, that he was unemployed, that he planned to sell the methamphetamine to someone he knew, and that he had tested it to make sure that it was good before he sold it. At trial, Mr. Davis denied saying that he intended to sell the drugs.

Deputy Sellers had the passenger picked up and the truck towed. Mr. Davis’ truck could not be driven on the road. It was uninsured, and the plates were invalid, having been switched out for those of a tan truck of a different vintage.

JiH.

LAW AND DISCUSSION

Sufficiency of the Evidence

Mr. Davis contends that the State failed to produce sufficient evidence that would support a finding of constructive possession of the methamphetamine found in his truck. In support of his argument, Mr. Davis asserts that when Deputy Sellers stopped him in his vehicle and asked him if there were any drugs in the vehicle, he did not answer. Mr. Davis then asserts that it was the passenger who told the officer that there was something in the ashtray, resulting in the discovery of five bags of methamphetamine and a glass pipe. He contends that, because it was the occupant who provided the information to the officer regarding the location of the drugs, and because Mr. Davis was not in physical possession of the drugs, the evidence was insufficient to convict him. Thus, he contends on appeal that the State did not prove its case against him.

Standard of Review
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983).

State v. Freeman, 01-997, p. 2 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580.

LPossession of methamphetamine, a Schedule II CDS, is prohibited by La.R.S. 40:967. The evidence presented at Mr. Davis’ trial clearly establishes the essential elements of this offense.

Deputy Sellers testified that on July 24, 2009, he stopped Mr. Davis after noticing that the inspection sticker on his truck was expired. Mr. Davis could not produce a driver’s license, and he was found to have three active warrants. As a result of the active warrants, Deputy Sellers arrested Mr. Davis. When asked if there was anything illegal in the vehicle, Mr. Davis responded that there was not, and he consented to a search of his vehicle.

When Deputy Sellers made contact with the passenger of the vehicle, she indicated that she believed there was something illegal in the vehicle. A subsequent search of the vehicle revealed a glass pipe and what appeared to be crystal methamphetamine in the ashtray. Upon being questioned, Mr. Davis told Deputy Sellers that the drugs were his and that he was going to sell them to make a profit; the occupant confirmed to the deputy that the drugs did not belong to her.

As alleged by Mr. Davis, Deputy Sellers did testify that his family knew the passenger’s mother. However, when asked why he did not charge the passenger with an offense, he explained that Mr. Davis asked him not to do that because the drugs were not hers. It was stipulated at trial that the substance submitted for testing was indeed methamphetamine.

Mr. Davis testified at trial that prior to being stopped by Deputy Sellers, he had obtained about five grams of methamphetamine from a guy who owed him $400.00 for four tire rims. Mr. Davis accepted the methamphetamine in lieu of money because the guy said he would not have the money for a few more weeks. Mr. Davis testified that he was already in possession of the pipe. He admitted that he and his girlfriend, the passenger in the truck, smoked a little of the methamphetamine | ^before they were stopped by Deputy Sellers. Mr. Davis denied telling Deputy Sellers that he planned to sell the drugs and testified that he planned to smoke all of it himself.

Hence, the State clearly proved beyond a reasonable doubt that Mr. Davis possessed methamphetamine. Accordingly, there is no merit to this assignment of error.

Sentence Imposed

In Mr. Davis’ original brief, he argued that a five-year sentence for the offense of possession is excessive. Since this sentence was vacated when Mr. Davis’s habitual offender sentence of seven years was imposed, any claims concerning that first sentence are rendered moot. However, Mr. Davis submitted a supplemental brief contending that his seven-year sentence as a habitual offender is excessive. Mr. Davis argues that he is a young man with a serious drug problem and has the potential for rehabilitation.

Likewise, this argument has no merit. As a third habitual offender, Mr. Davis faced a minimum sentence of 3.33 years and a maximum sentence of ten years at hard labor. La.R.S. 15:529.1(A)(l)(b)(I-lit-tle I) and La.R.S. 40:967(0(2). The seven-year sentence that Mr. Davis received is not excessive as it is supported by the record and by the jurisprudence.

Standard of Review

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion |fiin the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert, denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Salameh, 09-1422, p. 4 (LaApp. 3 Cir. 5/5/10), 38 So.3d 568, 570 (quoting State v. Barling, 00-1241, 00-1591, p. 12 (LaApp. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331).

In determining whether a sentence imposed by the trial court would shock the sense of justice or fail to make a meaningful contribution to our acceptable penal goals, we have held that:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (LaApp. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Salameh, 38 So.3d at 570-71 (quoting State v. Smith, 02-719, p. 4 (LaApp. 3 Cir. 2/12/03), 846 So.2d 786, 789, urrit denied, 03-562 (La.5/30/03), 845 So.2d 1061).

In the present case, where the jury found Mr. Davis guilty of possession of methamphetamine, La.R.S. 40:967(C)(2) imposes a sentence of imprisonment with or without hard labor for up to five years and allows a fine of up to $5,000.00. At Mr. 17Pavis’s original sentencing for possession, the trial court considered Mr. Davis’ record of arrests and convictions, along with the sentencing guidelines and factors of Article 894.1 of the Louisiana Code of Criminal Procedure, and the court sentenced Mr. Davis to five years. The court gave the following reasons in support of the original five-year sentence: of suspended sentence or probation that you would commit another crime. You certainly do appear to be in need of correctional treatment. I think a lesser sentence would depreciate the seriousness of the crime based upon the continued criminal conduct. And based upon a further consideration of the others (sic) fac, the other factors set forth under Code of Criminal Procedure Article 894.1 and the sentencing guidelines generally, and from what I can tell I, I can’t ... I haven’t been presented with any mitigating factors, so, ah, I’mma sentence you to five years with the Department of Corrections.

Well, by my count it’s a, a third felony conviction, based upon the information I have in front of me. And, ah, I certainly find that there is a risk during a period

While the record indicates that a presen-tence investigation report (PIR) was not ordered, Mr. Davis’s own trial testimony reveals that his criminal history began when he was a teenager. At the time of trial in 2009, he was twenty-seven years old and had two felony convictions prior to the subject incident on July 24, 2009. There were other arrests as well. Mr. Davis admitted to having been previously arrested for fighting and disturbing the peace; he denied that the charge included criminal damage to property. He also admitted to having been arrested for possession and distribution of Schedule II drugs. Mr. Davis was arrested in 2001 and subsequently charged with aggravated battery, sexual battery, attempted forcible rape, and simple kidnaping; he pled guilty to aggravated battery and to simple kidnap-ing. 18In 2005, he was arrested and subsequently pled guilty to unauthorized entry into an inhabited dwelling. Moreover, as noted by the trial judge, Mr. Davis was twice given a break by imposition of a probated sentence, but he managed to have his probation revoked both times.

Pursuant to the hearing on the State’s habitual offender bill, wherein the State sought an enhanced sentence, the trial judge heard testimony from the fingerprint expert confirming Mr. Davis’ identity on the two prior felony convictions (aggravated battery/simple kidnaping and unauthorized entry of inhabited dwelling) and on the methamphetamine possession felony of July 24, 2009. In adjudicating Mr. Davis a habitual offender, the trial court stated as follows:

And as a third felony offender, I’m gonna sentence you to seven years at hard labor. The basis for that decision is that, ah, you’ve previously in, ah, August of [’02], pled guilty to Aggravated Battery. You were placed on probation; you ended up gettin’ revoked. In addition, ah, you were in February of '07 placed on supervised probation for Entry of an Inhabited Dwelling, and you ended up getting revoked. And I did sit through the trial, and I believe, based upon what I heard at trial, that would be an appropriate sentence.

A seven-year sentence for a third felony is consistent with the habitual offender statute, La.R.S. 15:529.1(A)(l)(b)(i) which provides in pertinent part as follows:

A. (1) Any person who, after having been convicted within this state of a felony or adjudicated a delinquent under Title VIII of the Louisiana Children’s Code for the commission of a felony-grade violation of either the Louisiana Controlled Dangerous Substances Law involving the manufacture, distribution, or possession with intent to distribute a controlled dangerous substance or a crime of violence as listed in Paragraph (2) of this Subsection, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction.
Pursuant to the above, where the longest possible sentence for possession of methamphetamine under La.R.S. 40:967(C)(2) is five years, the third felony offender is subject to two thirds of five years, or B.33 years, as a minimum sentence, and two times five years, or ten years, as a maximum sentence. Hence, the seven-year sentence of the trial court in this case is a mid-range sentence.
In State v. Brown, 37,736 (La.App. 2 Cir. 3/12/04), 868 So.2d 289, writ denied, 04-2216 (La.6/3/05), 903 So.2d 445, the second circuit upheld an eight-year sentence imposed on a second felony habitual offender who had been convicted of possession of cocaine. Brown had three prior convictions and was released from prison one month prior to the subject offense. The court in Brown held that the eight-year sentence did not shock one’s sense of justice, and it affirmed that sentence.

Likewise, in the present case, the trial court’s imposition of a mid-range sentence of seven years upon Mr.- Davis does not shock one’s sense of justice and is not a needless imposition of pain and suffering. The trial court did not abuse its discretion, and this sentence is not constitutionally excessive.

_bV.

CONCLUSION

Based upon the foregoing, the State’s evidence in this case was sufficient to prove Mr. Davis’ guilt of possession of methamphetamine, a Schedule II controlled dangerous substance, and the sentence imposed upon Mr. Davis by the trial court is not excessive.

AFFIRMED.

      . Mr. Davis admitted at trial that he had previously pled guilty to three felonies (aggravated battery, simple kidnaping, and unauthorized entry of an inhabited dwelling), but he stated that "on paper” he was a second offender. The record indicates that the aggravated battery charge and the simple kidnap-ing charge were both brought on the same date and were both listed in a guilty plea dated August 19, 2002.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jamarcus Dewayne DORSEY.
    No. 10-1021.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      James C. “Jam” Downs, District Attorney, Michael W. Shannon, Assistant District Attorney, Alexandria LA, for Appel-lee, State of Louisiana.
    R. Shane McCormick, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Jamarcus Dewayne Dorsey.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

|] A jury convicted Defendant, Jamarcus Dewayne Dorsey, of attempted first degree murder, a violation of La.R.S. 14:27 and 14:30, and possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. He was subsequently sentenced to serve twenty years at hard labor without benefit of probation, parole, or suspension of sentence for attempted first degree murder and fifteen years at hard labor for possession of a firearm by a convicted felon. The sentences were ordered to run consecutively. Defendant now appeals his convictions. We affirm the convictions and instruct the trial court to amend the minutes of sentencing to correctly reflect the sentence imposed by the trial court for possession of a firearm by a convicted felon.

FACTUAL AND PROCEDURAL BACKGROUND

Following an incident on May 7, 2009, wherein the vehicle he was driving struck a police officer, Defendant was charged by bill of information with attempted first degree murder, a violation of La.R.S. 14:27 and 14:30, and possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. A jury convicted Defendant of the charged offenses, and he was subsequently sentenced to serve twenty years at hard labor without benefit of probation, parole, or suspension of sentence for attempted first degree murder and fifteen years at hard labor for possession of a firearm by a convicted felon. The sentences are to run consecutively. Defendant now appeals his convictions, arguing that the evidence was insufficient and that the trial court erred in denying his request that court be adjourned for one day in order to give a defense witness the opportunity to speak to the witness’s attorney prior to testifying. For the following reasons, we affirm Defendant’s convictions and instruct the trial court to amend the minutes of sentencing to correctly reflect the sentence imposed by the trial court for possession of a firearm by a convicted felon.

1 .DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are two errors patent. Additionally, the sentencing minutes require correction.

First, both sentences imposed by the trial court were illegally lenient. A sentence for attempted first degree murder of a peace officer is to be served at hard labor. La.R.S. 14:27(D). Although the court minutes reflect that the court imposed this sentence at hard labor, the sentencing transcript indicates the court did not do so. “[I]t is well settled that when the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (LaApp. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62 (citing State v. Webster, 95-605 (LaApp. 3 Cir. 11/2/95), 664 So.2d 624). In State v. hoyden, 04-1558, p. 6 (La.App. 3 Cir. 4/6/05), 899 So.2d 166, 171-72 (footnote omitted), this court explained:

This court recently considered a similar error patent, finding that the sentences imposed for aggravated battery and obstruction of justice, both of which were necessarily punishable at hard labor, were illegally lenient since the trial court failed to state that they were to be served at hard labor. State v. Vollm, 04-837 (La-App. 3 Cir. 11/10/04), 887 So.2d 664. Citing La.Code.Crim.P. art. 882 as our authority, we amended the sentences to indicate that they were to be served at hard labor. Id.
Similarly, we find that the sentences imposed for the defendant’s two aggravated rape convictions in this case are illegally lenient, because the trial court did not indicate that they were to be served at hard labor. Under the authority of La.Code Crim.P. art. 882, we amend the sentences imposed by the trial court to affirmatively indicate that the sentences for aggravated rape be served at hard labor. The district court is directed to make an entry in the minutes reflecting this amendment.

Consequently, the trial court’s failure to order the sentence for attempted first degree murder to be served at hard labor renders it illegally lenient.

Next, the trial court failed to impose the mandatory fine required by La.R.S. 14:95.1, rendering the sentence for possession of a firearm by a convicted felon illegally lenient. However, this court will not recognize the illegally lenient sentences since they are not raised as error.

jpNext, the court minutes of sentencing require correction to reflect the sentence actually imposed by the trial court. The sentencing transcript reflects that the trial court imposed Defendant’s fifteen year sentence for possession of a firearm by a convicted felon without the benefit of parole, probation, or suspension of sentence; however, this is not reflected in the court minutes. Thus, the trial court is hereby instructed to amend the court minutes of sentencing to correctly reflect the sentence imposed by the trial court. State v. Pemj, 08-1304 (La-App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La.6/25/10), 38 So.3d 352; State v. Blue, 09-1111 (LaApp. 3 Cir. 4/7/10), 34 So.3d 447.

Sufficiency of the Evidence

Defendant contends that the State failed to prove that he had the specific intent to kill Corporal Carla Whitstine. Defendant contends that he was simply trying to escape the scene because he had been shot and was terrified. He claims that there was no other visible way to escape and that the evidence presented does not support a finding that he purposely hit Whitstine in an attempt to kill her or to cause her great bodily harm.

Louisiana Revised Statutes 14:30(A)(2) provides:

A. First degree murder is the killing of a human being:

(2) When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman, peace officer, or civilian employee of the Louisiana State Police Crime Laboratory or any other forensic laboratory engaged in the performance of his lawful duties, or when the specific intent to kill or to inflict great bodily harm is directly related to the victim’s status as a fireman, peace officer, or civilian employee.

An attempt is defined in La.R.S. 14:27 as follows:

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.

“The crime of attempted murder, whether first or second degree, requires proof of the specific intent to kill and the commission of an overt act tending toward the 1 ^accomplishment of that goal.” State v. Girod, 94-853, pp. 5-6 (La.App. 5 Cir. 3/15/95), 653 So.2d 664, 668.

At trial, Whitstine, a corporal on the street team for the Alexandria Police Department, testified that she and her team patrol the streets in unmarked vehicles. They wear black t-shirts with white writing across the front that says “Police.” The back says “APD Street Team.” The area in which the incident occurred is a high crime area and is one of the main areas targeted. According to Whitstine, her vehicle is a common sight in that area and is well known to everyone.

At approximately 10:30 p.m. on the night of May 7, 2009, Whitstine was patrolling with Corporals Sellers, Wolf, and Thomas when they noticed an SUV with Mississippi tags stopped in the road. The vehicle was in the roadway close to the curb, and it had its headlights on. Whitstine testified that she saw two men walk up to the vehicle. Because this is something they watch for in that it is indicative of a drug transfer, the team decided to stop and interview the people involved. As Whitst-ine approached the driver’s side of the SUV, the driver started revving the engine, but the vehicle did not move. Whitstine testified that she saw the front passenger fumbling around with something. As Whitstine arrived at the window of the car, she saw the driver reaching for the gearshift to put the car in gear. She yelled “Stop, police” and then reached for the gearshift to prevent the driver from putting the vehicle in gear. At that point, she noticed that the driver had a black handgun in his lap. Whitstine yelled “gun” to alert the other officers. The driver grabbed the gun, and Whitstine grabbed the top of his hands; the two struggled over the gun. The driver was successful in getting control of the gun, and he handed it off to the passenger, who opened his door and took off running. Whitstine further testified that she took off running around the front of the vehicle to chase the person with the gun. When she got in front of the vehicle, the vehicle accelerated and hit her. Whitstine described the incident as follows:

IsQ And what happened — what did you hear when you got in front of that vehicle?
A The vehicle accelerated.
Q Did the vehicle move?
A Yes.
Q Did it come — did it suddenly come toward you?
A It started coming toward me. I mean, he stomped it. I mean, you could hear the accelerator. All I could do was put my hands up, holler stop, and it hit me at that time. I was not far in front of it when he started.
Q Was it continuing to move forward and accelerate?
A Yes.
Q Did you — what did you grab hold of?
A I ended up on the hood of the vehicle with it still going down the street. Uh, my feet were dangling, hitting the roadway, and all I could do was keep pushing up off the street to keep from going underneath the vehicle.
Q What do you think would happen to you if you’d gone under that vehicle?
A It would have ran [sic] over me.
Q Why [sic] you were on that vehicle, holding on, the vehicle’s continuing to move and accelerate?
A Yes.
Q Did you hear gunshots?
A Yes.
Q When you heard those gunshots, what movement did the vehicle make?
A When I heard the gunshots, the vehicle immediately swerved left. Like I say he’s going down Prospect toward Monroe Street, and when the gunshots went off he swerved left real hard causing me to tumble off the hood onto the sidewalk, on the other sidewalk.
Q So that — so you fell off to the side and not in front of the vehicle?
A Correct.
Q Because the vehicle ...
A Swerved.
|fiQ ... swerved.
A Yes.

Whitstine testified on cross examination that the vehicle traveled about halfway down the block with her on the hood. After Whitstine fell off the vehicle, the driver continued down the street and hit a fire hydrant or a light pole, then fled on foot. Whitstine was bruised across the chest, and her knees were sore from being hit by the SUV. She required treatment at the hospital for several hours and was unable work for three weeks. Whitstine identified Defendant as the driver of the vehicle when subsequently shown a photographic lineup.

Corporal Chad Sellers, another member of the Alexandria Police Department street team, testified that he approached Defendant’s vehicle right behind Whitst-ine. When the passenger, Lonnie Johnson, exited the vehicle with the gun, Sellers ran behind the vehicle toward the passenger. The passenger dropped the gun, and as he continued running, Sellers tackled him. A short time later, Sellers retrieved the gun.

On cross-examination, Sellers was asked about the direction he chose to run to chase the passenger:

A He ran towards the front of the vehicle on Prospect headed towards Monroe.
Q Okay. So, wouldn’t it have been more prudent for you to run toward the front of the vehicle as well too, if you were chasing him?
A No.
Q Okay. You were at — toward the front passenger’s seat as you said because you were looking in the vehicle, right? Well, watching the [sic].
A I was at the driver’s side.
Q The driver’s side?
A Yes.
Q You were looking in the vehicle?
A Yes.
|7Q Mr. Johnson jumps out of the passenger’s seat, front passenger’s seat, and runs, runs in a south, it would be a southeasterly direction according to what you said towards the front of the vehicle, is that correct?
A Yes.
Q Okay. But you said it was more prudent for you to run behind the vehicle and then chase him instead of going the direction that he was already heading in? That doesn’t make sense, Officer.
A That’s the direction I chose. We’re talking about something that happened within a few seconds. I guess maybe it’s generally safer for us to approach a vehicle from the back than it is to the front to keep from getting ...
Q But there was no one else — there was no one else in the vehicle was there?
A The driver was in the vehicle.
Q Yeah, but he was engaged with Officer Whitstine.
A Yes.
Q Okay.
A And he was also attempting to take off. The vehicle is in gear, and I didn’t want to get run over.
Q So he’d already started to take off in the vehicle, is that what you’re saying?
A No, I’m, I’m saying that I reacted to the situation and I ran around him behind the vehicle. Maybe it was just luck that I didn’t run in front of it.
Q Well, Officer, you just said he was attempting to take off in the vehicle. Was he attempting to take off in the vehicle?
A Yes.
Q Okay. Before you started running?
A Yes.

On redirect examination, Sellers explained that once the driver passed the gun to the passenger, his focus was on the passenger.

Corporal William Wolf testified that he heard no noise coming from the SUV as they initially approached it. After Whitst-ine’s struggle with Defendant, when she ran in front of the vehicle, Wolf said that he heard “maximum acceleration” and that he saw the vehicle lurch forward and hit Whitstine. Wolf testified that they all were | ¿yelling for the driver to stop. As the vehicle was still lurching forward and Whitstine was on the hood, Wolf made his way to the open passenger door and fired a shot at the driver because he was in fear for his partner’s life.

Wolf described the incident as follows:

A Um, I heard her a number of times saying he’s got the gun, gun, he’s got the gun, and then I believe she said that the passenger had the gun. Yeah.
Q Okay. When you heard that, what did you do?
A Uh, well, at this point in time, Corporal Whitstine had been, had ran [sic] toward the front of the car, and this all happened simultaneously. She ran toward the front of the car as the passenger exited out of the right side of this vehicle. Corporal Sellers was right behind him; Corporal Whitstine went around to the front of the vehicle towards, who, what I believe, she thought still had the gun, that suspect, the person that was running she thought still had the weapon.
Q Okay. And did the vehicle do anything at that point. When Whitstine comes around the front of the vehicle ...
A Yes, sir.
Q ... what did the vehicle do?
A That’s when the vehicle struck her.
Q When it what?
A When it struck her.
Q Okay. Describe the, the action of that vehicle.
A The best I can, and I don’t know what, any history of the vehicle [sic], but I heard maximum, maximum acceleration. I saw the vehicle ...
A Um, I saw the vehicle lurch forward, and I saw Corporal Whitstine go on top of the hood of the vehicle. At the same time this happened is when the passenger ran out at about a 45-degree angle from that vehicle and Corporal Sellers chased after him.
Q When you saw the vehicle going forward making noises of acceleration
A Yeah.
Q ... and Whitstine in front of it and/or on the hood ...
A Yes, sir.
|9Q ... what did you think?
A She’s immediately being run over by this car. There was, there was, I had to, you know, my, my attention had to stay there. This was ongoing and this is happening in a matter of seconds.
Q So, and what did you do?
A Uh, I started working my way around the open side passenger door of the vehicle. This was on the right hand side of the vehicle.
Q Is the vehicle still moving forward?
A Yes, it’s still lurching forward.
Q Is Whitstine still in front of/on the vehicle?
A Absolutely. I saw her with both, both her hands on the hood of the car hollering, hollering stop.
Q And this — all this is happening pretty quickly, right?
A Yes, sir, in a matter of seconds.
Q So what did you do?
A At, uh, I had worked around to the, um, ran up to the passenger side of the door, hollering, you know, we were all hollering stop. Carla was, uh, or Corporal Whitstine was starting to get a little — you could tell that this was getting to be a panic situation, and, uh, at that point I produced my, um, issued weapon and fired a shot.

On cross-examination, Wolf testified that when the passenger took off running, he went to the back of the vehicle and that is when the vehicle was in contact with Whitstine. In the report he wrote, Sellers said that he saw the vehicle lurch forward several times, and he testified that he believes it came in contact with Whitstine the first time it lurched forward.

After the shot was fired, the vehicle “sort of lulled” and veered to the left. At that point, Whitstine fell off the car and landed on the sidewalk on the right side of the vehicle. The vehicle subsequently hit a telephone pole, and Defendant fled the scene.

Corporal Kenneth Thomas testified that after Whitstine yelled that there was a gun, she ran around the front of the vehicle. The vehicle moved forward and hit her, and she fell onto the hood. When asked if the vehicle continued to move forward, ImThomas responded that “It would lunge at times, yes.”1 His concern was that Whitstine would get caught underneath the vehicle or get hit by a tire and would be killed. Because he felt that Whitstine was in danger and needed assistance, Thomas fired a round at the driver. According to Thomas, after the shots were fired at the driver, the vehicle went through an intersection and crashed into a fire hydrant. He estimated that just a few seconds lapsed between the time that Whitstine yelled “gun” until he fired his weapon. On cross-examination, Thomas testified that the driver was revving the engine at the time Whitstine ran around the vehicle. According to Thomas, the driver took off “faster than normal.”

Defendant testified that after Whitstine ran around the car to chase the passenger, he put his hands up and stayed in the parked vehicle. As the officers approached the vehicle after chasing Johnson, Defendant saw a gun facing him. Defendant claims that he panicked and took off in the vehicle after he was shot in the leg. Defendant denied hitting Corporal Whitstine with the vehicle, and he denied that she was ever on the vehicle.

In State v. Taylor, 96-820, pp. 9-10 (La. App. 3 Cir. 11/6/96), 683 So.2d 1309, writ denied, 96-2828 (La.6/20/97), 695 So.2d 1348, 1314-15, this court upheld the defendant’s conviction for attempted manslaughter reasoning as follows:

Officers Stelly and Mosely identified Taylor as the driver. The officers, along with Menard and Cahee, indicated that Taylor had room to drive away without turning the car toward Officer Mosely. The victim testified that he saw Taylor look straight at him as Taylor drove the car in his direction. After Officer Mosely landed on the car’s hood, Taylor continued to accelerate and swerve the car against the express orders of Officer Mosely, whose only protection from falling off the front of the car was his one-hand grip on the car’s windshield wiper. Taylor then took a sharp right turn at approximately forty miles per hour, which threw Officer Mosely to the street pavement. Taylor then sped off.
This evidence was sufficient to infer from the circumstances that Taylor intended to kill Officer Mosely. The overt act of driving toward a person straddling a bicycle, carrying that person 253 feet on the car’s hood in a zigzagging manner at a high rate of speed, then turning the car sharply and throwing the person from the car, when reviewed in a light |nmost favorable to the prosecution, manifests an intent to kill. This assignment of error is without merit.

In State v. Austin, 04-993 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, unit denied, 05-830 (La.11/28/05), 916 So.2d 143, the defendant’s convictions for attempted first degree murder of Detectives Jewell and Piz-zolato were upheld. The pertinent facts of the case are as follows:

Upon receiving the takedown order, Troopers Bergeron and Baron moved in and parked their undercover vehicle at an angle behind the defendant’s Yukon. Detective Jewell ran from his undercover vehicle and positioned himself on the median in front of the Yukon, facing the passenger’s side headlight. Troopers Bergeron and Baron got out of their vehicle and stood behind the Yukon.
All the officers repeatedly ordered the defendant to stop and surrender, but instead the defendant backed out of his parking space. According to Troopers Bergeron and Baron, the defendant backed toward them, but they moved out of the way. The Yukon ultimately collided with the undercover vehicle. Trooper Derrick Stewart, who was on foot in the parking lot, testified that he fired at the Yukon when it narrowly missed Trooper Bergeron.
At that point, Detectives Jewell, Piz-zolato and Boilan were on foot in front of the Yukon, wearing marked police clothing. They too repeatedly ordered the defendant to stop. However, the defendant placed the vehicle in gear and accelerated forward. All three officers fired their weapons at the defendant: Detective Boilan, who had moved away from Detectives Jewell and Pizzolato and was in the clear, fired in defense of the two detectives, while Detectives Jewell and Pizzolato fired in defense of their own lives.
Detective Pizzolato testified that he moved out of the way. Detective Jewell testified that he was watching the defendant through the window and saw him violently jerk the wheel and turn his body, causing the Yukon to swerve to the right. The Yukon missed Detective Jewell by approximately eighteen inches. As Detective Jewell followed alongside the Yukon, he heard the vehicle’s RPMs increase. He fired another shot into the Yukon to divert the defendant from “going at” Detective Davis.
Detective Davis testified that the Yukon proceeded straight, but then accelerated toward him. Detective Davis did not discharge his weapon at the Yukon, and he was able to move to safety. The Yukon then passed through an outlet in Chevy’s parking lot, ran over the median, and crashed into a light pole in the Palace Theatre’s parking lot. Detective Boilan was beside the vehicle after it crashed. He heard a loud explosion, which he thought was gunfire, and fired into the driver’s side window of the Yukon. The officers subsequently determined, however, that the defendant was unarmed.

Id., 873-74 (footnotes omitted).

|l2In upholding the defendant’s convictions, the fifth circuit reasoned as follows:

In State v. Jones, 03-180 (La.App. 3 Cir. 9/10/03), 855 So.2d 408, writ denied, State ex rel. Hancock v. State, 04-0409 (La.1/14/05), 889 So.2d 262, the court found the evidence was sufficient for the jury to infer that the defendant had the specific intent to kill a deputy sheriff and affirmed the defendant’s conviction of attempted second-degree murder. In Jones, the officer pursued the defendant’s vehicle on to a dead end street as it fled from a house that the defendant had burglarized. The vehicle came to a stop near a large fence located at the end of the street. The officer parked his vehicle on the road, got out of the car with his weapon drawn, and ordered the occupants of the truck to surrender. The officer said it appeared that the defendant looked in his rear view mirror and observed the officer standing on the road to the left of the driver’s side door. However, the truck’s engine revved and the vehicle backed toward the officer at a high rate of speed. The officer jumped on the trunk of his car to avoid being struck by the defendant. Jones, 03-180 at p. 2, 855 So.2d at 410.
The third circuit concluded that the circumstances indicated the defendant had the specific intent to kill the officer because the defendant drove straight at him while accelerating. The court noted that alternate routes were available to the defendant to avoid the officer. Jones, 03-180 at p. 6, 855 So.2d at 412.
In contrast, in State v. Amos, 550 So.2d 272 (La.App. 4 Cir.1989), the court concluded the evidence was insufficient to prove the defendant had the specific intent to kill to support his attempted manslaughter conviction. In that case, police officers were in pursuit of the defendant’s vehicle, when two other officers parked their unmarked police car across the street, completely blocking the path of the defendant’s vehicle. There was no way the defendant could avoid hitting the unmarked police vehicle, and the officers left the vehicle when they realized a collision was imminent. As the defendant approached the officers’ car, he accelerated and veered to one side of the officers’ car, toward an embankment where Officer Hacker was standing. The defendant hit the officers’ car and the embankment, while narrowly missing Officer Hacker. 550 So.2d at 276.
In Amos the court concluded that the evidence did not support an intent to kill, as follows at 276:
The facts do not support a determination that Jackson [defendant] had a specific intent to kill Officer Hecker. It is much more probable that Jackson was merely trying to avoid hitting the police car head-on by veering towards one side. There is no evidence to suggest that he chose to veer to the side where Hecker was standing for any reason other than by chance.
In the present case, the defendant contends that he was merely trying to escape, not to kill any of the officers. However, we find that the State proved the defendant had the intent to kill Detectives Jewell and Pizzolato. The officers were visibly attired as police officers, had their weapons drawn, and were ordering the defendant to surrender. Detective Jewell was approximately four feet in front of the defendant’s vehicle and Detective Pizzolato was within arm’s length to the right of 11sDetective Jewell. According to Detective Jewell, the defendant looked at him, placed the vehicle in drive, revved the engine, and drove right at him. Detective Pizzolato similarly testified that the vehicle accelerated, the tires “chirped,” and the defendant drove right at him. Both officers testified that they would have been struck had they not moved, and they both fired their weapons at the defendant’s vehicle in self-defense.
According to Detective Boilan, both officers were in danger, and he fired his weapon at the Yukon to defend them. Although Detective Jewell admitted on cross-examination that the only path available to the defendant was to go forward because the troopers’ car was behind the defendant, he acknowledged on re-direct examination that the defendant could have backed up and driven in another direction. Thus, this case is more similar to State v. Jones, where the defendant accelerated directly at the officer, than to State v. Amos, where the defendant landed in the officer’s location by chance.
In closing argument the defendant vigorously argued that he was merely trying to evade arrest. By returning the guilty verdicts as to Detectives Jewell and Pizzolato, the jury obviously rejected the defendant’s alternative hypothesis.

Id. at 876-77 (footnotes omitted).

In State v. Mitchell, 39,805 (La.App. 2 Cir. 2/17/05), 894 So.2d 1240, writ denied, 05-741 (La.6/3/05), 903 So.2d 457, the second circuit upheld a conviction for attempted manslaughter where the officers testified that as they approached the defendant’s vehicle and ordered the occupants to stop, the car accelerated towards one of the officers, and he feared being hit. After both officers shot into the vehicle, it decelerated and came to a stop. An eyewitness testified that despite the officers’ attempts to stop the vehicle, he saw the vehicle speed up toward one of the officers as they fired at it. Another eyewitness testified that he saw the vehicle hesitate and move forward in the direction of the officer, who was on the sidewalk in front of the vehicle yelling for the vehicle to stop. One of the occupants of the vehicle testified that he exited the car when ordered to do so by the officers and that he recalled the car rolling forward despite police officers screaming for them to stop. The second circuit concluded that the evidence was sufficient to show that the defendant had the specific intent to kill the officer:

Here, the jury heard the testimony of Officer Presley and three eyewitness accounts of the events which showed that as the officer approached the white Mercedes, the driver accelerated toward the officer and almost hit him. Unlike Christaw, who heard the officers’ commands and exited the vehicle, Mitchell instead attempted to run over 114the officer. From this evidence, a rational jury could have reasonably concluded that Mitchell’s actions in attempting to run over the police officer with the car, demonstrated that Mitchell possessed the specific intent to kill the officer.

Id. at 1252.

Viewing the evidence pursuant to the Jackson standard in the light most favorable to the State, we find that the evidence was sufficient to support the conviction for attempted first degree murder. The evidence supports the conclusion that Defendant accelerated the vehicle directly toward Whitstine, hit her, and drove with her on the hood of the vehicle despite multiple orders for him to stop. The testimony presented by the prosecution established that Defendant was not shot until after he hit Whitstine, which refutes his allegation on appeal that he panicked from being shot and was simply trying to escape.

Next, Defendant claims that the evidence does not support his conviction for being a felon in possession of a handgun. He contends that Johnson was found in possession of the handgun and that he had no knowledge of the handgun being in or around Johnson’s person. While it is true that Johnson was ultimately found in possession of the handgun, Whitstine testified that the gun was in Defendant’s lap before he passed it to Johnson. By convicting Defendant of this crime, the jury chose to believe Whitstine’s testimony that Defendant was in possession of the gun. The State presented sufficient evidence to prove this offense beyond a reasonable doubt. Thus, we find that this assignment of error lacks merit.

Denial of Defendant’s Request for Adjournment

Defendant contends that the trial judge erred in denying his request that the court adjourn for the day to give a defense witness the opportunity to speak with the witness’s attorney prior to testifying. Defendant argues that this deprived him of the right to present his full defense.

Both the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution (1974) guarantee a criminal defendant the right to compulsory process and to present a defense. A defendant’s right to compulsory process is the light to demand subpoenas for witnesses and the right to have 11Bthose subpoenas served. State v. Gordon, 01-734 (La.App. 5 Cir. 11/27/01), 803 So.2d 131, 148, units denied, 2002-0362 (La.12/19/02), 833 So.2d 336 and 2002-0209 (La.2/14/03), 836 So.2d 134.

State v. Jackson, 07-84, p. 9 (La.App. 5 Cir. 6/26/07), 963 So.2d 432, 438, writ denied, 07-1666 (La.1/25/08), 973 So.2d 754.

The trial court has great discretion in deciding whether to grant a continuance, and its ruling will not be overturned absent an abuse of discretion. State v. Bourque, 622 So.2d 198 (La. 1993); State v. Champion, 412 So.2d 1048 (La.1982); La.C.Cr.P. art. 712. Further, we generally will not reverse a conviction due to an improper ruling on a continuance unless there is a showing of specific prejudice to the defendant as a result of the denial of the continuance. State v. Strickland, 94-0025 (La.11/1/96), 683 So.2d 218; State v. Knighton, 436 So.2d 1141 (La. 1983).
State v. Castleberry, 98-1388, p. 11 (La.4/13/99), 758 So.2d 749, 759-60, cert, denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999).

State v. D.T., 08-814, p. 34 (La.App. 3 Cir. 12/11/08), 998 So.2d 1258, 1281, writ denied, 09-624 (La.l1/25/09), 22 So.3d 171.

“In order to show prejudicial error sufficient to warrant reversal, the defendant must show that the testimony the witness would have given would have been favorable to the defense and would indicate the possibility of a different result.” State v. Landry, 03-1632, p. 11 (La.App. 4 Cir. 5/19/04), 876 So.2d 146, 153, writ denied, 04-1586 (La.11/15/04), 887 So.2d 474 (citing State v. Stevenson, 02-79 (La. App. 5 Cir. 4/30/02), 817 So.2d 343).

State v. Tolliver, 08-1486, p. 40 (La.App. 3 Cir. 5/13/09), 11 So.3d 584, 607-08, writ denied, 09-1441 (La.2/26/10), 28 So.3d 269. “A motion for recess is evaluated by the same standards as a motion for a continuance.” State v. Williams, 07-1407, p. 30 (La.10/20/09), 22 So.3d 867, 889, cert, denied, — U.S. -, 130 S.Ct. 3278, 176 L.Ed.2d 1184 (2010).

Defendant called Chadwick Rachal as a witness at trial. Rachal was incarcerated at the time, as he had been arrested for armed robbery. Rachal wanted to discuss the matter with his own attorney prior to testifying at Defendant’s trial. Rachal’s attorney lived “[o]n the other side of New Orleans.” Defense counsel asked for an adjournment to give Rachal an opportunity to speak with his own attorney. The trial court denied the request, finding that the matter should have been taken care of before trial. The trial court then stated the following:

Jilt’s 3:30 in the afternoon and his attorney’s [sic] in New Orleans and he’s here. So, he’s not going to testify. He’s not available to you, so, you’re not going to be able to call him. Well, you can call him, but he’s not going to testify, and I’m not going to allow him to take his privilege in the presence of the jury either for obvious reasons.

The State asserts that Defendant did not proffer the testimony of Rachal nor did appellate counsel give any indication of the nature of the testimony Rachal would have given. Therefore, there is nothing for this court to review. In support of this argument, the State cites State v. M.M., 00-1296 (La.App. 3 Cir. 8/29/01), 802 So.2d 43, writ denied, State v. Morris, 01-3370 (La.10/4/02), 826 So.2d 1121.

In M.M., the defendant called Malloy as a witness, and Malloy asserted his Fifth Amendment privilege. Defense counsel requested that Malloy be given immunity so that he would testify. The trial court denied the request. On appeal, the defendant argued that because the trial court denied him the opportunity to secure Mal-loy’s testimony, the trial court erred when it denied his “Motion to Use Hearsay Statements of Mark Harris.” The motion alleged that Malloy had told Murray, an attorney, that Harris confessed to the murders of the defendant’s parents. It further alleged that Harris was dead and that Malloy was unavailable to testify because of the State’s refusal to grant him immunity. At a pre-trial hearing, the trial court held the information which Malloy gave Murray was privileged.

This court noted that the defendant failed to re-urge his motion at trial. Additionally, there was no indication that Mal-loy was called as a witness at trial and asserted his Fifth Amendment privilege. This court further stated:

Accordingly, to preserve for review the issue regarding Mr. Murray’s testimony exclusion, the Defendant should have called Mr. Malloy as a trial witness and upon Mr. Malloy’s supposed eventual invocation of his Fifth amendment rights, he should have re-urged his motion to present Mr. Murray’s testimony. Then, had the trial court denied the motion again, he should have proffered his testimony. Although this procedure appears fastidious and somewhat repetitive, it is designed to allow proper appellate review. Indeed, absent a record of Mr. Murray’s testimony, we have nothing to review on appeal.

Id. at 67.

Defendant did not proffer the testimony of Rachal or indicate in any way to what Rachal would have testified. Therefore, Defendant cannot prove he was | ^prejudiced by the trial court’s failure to adjourn. Accordingly, we find that this assignment of error lacks merit and that Defendant is precluded from raising the issue on appeal. See M.M., 802 So.2d 43; State v. Guillory, 97-179 (La.App. 3 Cir. 3/11/98), 715 So.2d 400, writ denied, 98-955 (La.10/9/98), 726 So.2d 17; State v. Ayo, 08^68 (LaApp. 5 Cir. 3/24/09), 7 So.3d 85, writ denied, 09-1026 (La.3/5/10), 28 So.3d 1006.

DECREE

For all of the foregoing reasons, Defendant’s convictions are affirmed. However, the trial court is hereby instructed to amend the court minutes of sentencing to correctly reflect that the fifteen year sentence imposed by the trial court for possession of a firearm by a convicted felon is to be served without the benefit of parole, probation, or suspension of sentence.

AFFIRMED WITH INSTRUCTIONS.

      . Whitstine testified without objection that "everybody” knows their vehicle.

      . Sellers testified that he observed the Defendant toss the gun to the passenger.

      . Defense counsel's .theory of defense advanced in his closing argument is consistent with what is being argued on appeal.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. J.P.F.
    No. 10-1052.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      S. Christie Smith, IV, Elizabeth Brum-met Carr, Smith Bush, LLP, Leesville, LA, for Defendant/Appellant, J.P.F.
    Asa A. Skinner, District Attorney-Thirtieth Judicial District Court, Terry W. Lambright, Assistant District Attorney, Leesville, LA, for Appellee, State of Louisiana.
    Court composed of BILLY H. EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln this criminal case, Defendant, J.P.F., appeals the two eighteen-year concurrent sentences he received pursuant to resentencing upon his “Alford plea” convictions on two counts of attempted oral sexual battery. He claims excessive sentences. For the following reasons, we affirm- Defendant’s sentences in all respects.

FACTS AND PROCEDURAL HISTORY

At the plea hearing in this ease, the State maintained that in 2007, while J.P.F. was watching movies with C.B., his nine-year-old step-daughter, J.P.F. had C.B. rub her face on his “private area.” The State also asserted that J.P.F. engaged in the same conduct with his eleven-year-old daughter, J.F.
In the record, the investigative progress report contains more detailed allegations of J.P.F.’s conduct.... J.F. reported that J.P.F. had her play “horsey” with him whereby she would have to get on top of him and ride him like a horsey, usually without clothes or underwear. J.F. also stated that J.P.F. “would try to put his personal place inside of her.” The same report contains C.B.’s statement that J.P.F. “did touch her on her forehead with his penis.”

State v. J.P.F., 09-904, pp. 1-2 (La.App. 3 Cir. 3/3/10), 32 So.3d 1016, 1018 (footnote omitted).

The defendant, J.P.F., entered an “Alford plea” to two counts of attempted ... oral sexual battery pursuant to La. R.S. 14:27 and La. R.S. 14:43.3. The trial court sentenced J.P.F. to two concurrent sentences of twenty years at hard labor. The trial court denied J.P.F.’s motion to reconsider sentence, and J.P.F. appealed.

Id. at 1018 (footnotes omitted).

On appeal, this court vacated Defendant’s sentences and remanded the matter for resentencing, ruling that the trial court’s failure to allow Defendant an “opportunity to deny, explain, or rebut allegations of [his] prior similar conduct with other persons” constituted a violation of his due process rights. Id. at 1020.

12At resentencing, Defendant was sentenced to serve eighteen years with the Louisiana Department of Corrections on each count, to run concurrently. A Motion to Reconsider Sentence was filed and denied. Defendant is now and again before this court, appealing his sentences as being excessive.

ERRORS PATENT

In accordance with La. Code Crim.P. art. 920, we have reviewed this appeal for errors patent on the face of the record. After reviewing the record, we find that there are no actionable errors patent.

ASSIGNMENT OF ERROR

In his only assignment of error, Defendant contends that the sentences imposed by the trial court are constitutionally excessive when considered in light of the nature of the offenses, the circumstances of the offender, the legislative purpose behind the punishment, and a comparison of sentences imposed for similar crimes.

Defendant was convicted of two counts of attempted oral sexual battery. Defendant was sentenced to serve eighteen years at hard labor on each count.

The Eighth Amendment to the United States Constitution and La. Const, art. 1, § 20 prohibit the imposition of cruel or excessive punishment, and the law is well settled with regard to what constitutes cruel or excessive punishment. An excessive sentence is a penalty that is so grossly disproportionate to the severity of the crime that it shocks our sense of justice or it makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). Additionally, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, the reviewing court should not deem as excessive a sentence imposed within statutory limits. State v. Howard, 414 So.2d 1210 (La.1982); State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. Still, a sentence that falls within the statutory limits may be excessive under the particular circumstances of a given case. State v. Sepulvado, 367 So.2d 762 (La.1979). Additionally, “[m]aximum sentences are reserved for the most serious violations and the worst offenders.” State v. Far-hood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only | .^relevant question for the reviewing court to consider is not whether another sentence would be more appropriate, but rather whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert, denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
Louisiana Code of Criminal Procedure Article 894.1(A) provides that the trial court should impose an imprisonment sentence if any of the following are established by the record:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime.
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution.
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
Additionally, the trial court must “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” La. Code Crim.P. art. 894.1(C). However, in complying with this article, the trial court “need not articulate every circumstance or read through a checklist of items.” State v. Anderson, 95-1688, p. 4 (La.App. 3 Cir. 5/8/96), 677 So.2d 480, 483.
Citing the supreme court in State v. Telsee, 425 So.2d 1251 (La.1983), the fifth circuit, in State v. Lisotta, 98-648, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58, writ denied, 99-433 (La.6/25/99), 745 So.2d 1183, suggested that:
The court should consider three factors in reviewing a judge’s sentencing discretion:
1. the nature of the crime,
2. the nature and background of the offender, and
3. the sentence imposed for similar crimes by the same court and other courts.

State v. Fontenot, 09-1044, pp. 4-6 (La.App. 3 Cir. 5/12/10), 38 So.3d 1122, 1125-26.

At the sentencing hearing, the trial court noted that there was economic harm Lin that the victims had to undergo counseling, there was emotional and psychological harm to the victims, and there were no grounds to excuse Defendant’s conduct. The trial court also noted that Defendant was thirty-four or thirty-five years old, had one child, was in excellent health, had a high school education, and was employed in the computer field. Defendant may have abused alcohol, but had not sought any type of treatment, and he had no prior criminal record other than a conviction for driving while intoxicated. The trial court found that Defendant was in need of correctional treatment and that he was given a break by the State when he was allowed to enter his plea rather than go forward with his original charges of aggravated incest.

Defendant contends that his sentences are excessive in light of the offenses to which he actually pled. Defendant argues that his sentences “appear[ ] to persist in attempting to punish [him] either for more serious crimes not the subject of prosecution or for the offenses as originally] charged.” Defendant also contends that his “circumstances” indicate his sentences are excessive. Further, Defendant alleges that his “sentences appear to push beyond the scope of the legislative purpose behind the punishment for the crimes for which [he] was sentenced.” Defendant then states that although oral sexual battery of a victim under the age of thirteen is a serious crime with a penalty of twenty-five to ninety-nine years, he was convicted only of attempt. Defendant asserts that while he “is not subject to the mandatory minimum of the completed crime, his sentences are close to said minimum.” Therefore, Defendant contends that his sentences “are contrary to the legislative intent of punishing attempts significantly less severely than completed offenses.” Defendant also asserts that his “sentences are disparate when viewed in light of other sentences ... for similar crimes.”

lfiThe Defendant requests that this court compare his sentences to those handed down in State v. McDuffey, 42,167 (La. App. 2 Cir. 6/20/07), 960 So.2d 1175, writ denied, 07-1537 (La.1/11/08), 972 So.2d 1163, and State v. J.T.S., 03-1059 (La.App. 3 Cir. 2/4/04), 865 So.2d 1032. In McDuf-fey, 960 So.2d 1175, the second circuit found that a sentence of three years for attempted oral sexual battery of a victim under the age of fifteen was not excessive. In J.T.S., 865 So.2d 1032, this court found that a sentence of five years for an offense committed against a victim while between the ages of five and twelve was not excessive.

Defendant asserts that “[w]hile there should [be] some reflection that the law has changed with regard to punishment for the completed offense, it is patently unfair to impose a sentence more than three times harsher on a defendant for the attempt, simply because he had the misfortune of being convicted for acts” that occurred years after those in the cases he cites.

In 2006 La. Acts No. 103, § 1, the sentencing provisions for sexual battery, La.R.S. 14:43.1(C); second degree sexual battery, La.R.S. 14:43.2(0); oral sexual battery, La.R.S. 14:43.3(0); pornography involving juveniles, La.R.S. 14:81.1(E); and molestation of a juvenile, La.R.S. 14:81.2(E), were amended or enacted to provide for a mandatory minimum sentence of twenty-five years at hard labor, with at least twenty-five years of the sentence to be served without benefit of parole, probation, or suspension of sentence, when the victim of the offense is under the age of thirteen and the offender is seventeen years of age or older. This act was known as the Mary Jean Thigpen Law and within that act, the legislature also provided that the penalty for indecent behavior with a juvenile under the age of thirteen by an offender seventeen years of age or older would be imprisonment for not less than two nor more than twenty-five years, with at least two years of the sentence to be served without benefit of parole, probation, or suspension of sentence. La.R.S. 14:81.
In 2006 La. Acts No. 325, § 2, the legislature provided for a mandatory minimum sentence of not less than twenty-five years at hard [labor], with at least twenty-five years of the sentence to be served without benefit of probation, parole, or suspension of sentence, for the commission of aggravated incest and molestation of a juvenile by an | ^offender seventeen years of age or older against a victim under the age of thirteen. La.R.S. 14:78.1(D); La.R.S. 14:81.2(E).
Additionally, in 2006 La. Acts No. 325, § 1, the legislature stated the following:
The Louisiana Legislature has long recognized the need to protect our most innocent and defenseless citizens and has enacted statutory provisions to protect children from sexual offenders and predators. Louisiana has some of the strictest penalties for sex offense violations and some of the most extensive provisions for sexual offender and sexual predator registration and notification in the United States. The Louisiana Legislature recognizes the tragedy associated with the story of Jessica Lunsford who at the age of nine was abducted, abused, and murdered by a convicted sexual offender. Motivated by the tragedy associated with Jessica Lunsford, the Florida Legislature enacted the Jessica Lunsford Act which provided for a minimum twenty-five-year sentence for child molesters and lifetime monitoring following incarceration. The Louisiana Legislature in enacting the provisions of this Act seeks to incorporate those provisions into the Louisiana Law.

State v. D.S.J., 08-1555, pp. 6-7 (La.App. 3 Cir. 6/24/09), 15 So.3d 1188, 1193 (footnote omitted).

We find that the intent of the legislature in amending these statutes was to punish offenders who commit sex offenses against victims under the age of thirteen. Thus, this court need not consider the cases cited by Defendant, as the offenses therein occurred before the 2006 enactment of the stricter penalties discussed herein.

There are no published cases occurring after the 2006 amendments wherein a defendant claims his sentence for attempted oral sexual battery of a victim under the age of thirteen is excessive. Based on the legislative purpose behind the 2006 amendments, the fact that the Defendant entered into a plea agreement wherein he pled guilty to lesser offenses with the State recommending concurrent sentences, and the fact that this court’s role is to determine whether the trial court abused its broad |7discretion at sentencing, we do not find that the trial court abused its discretion or that Defendant’s sentences are excessive. Accordingly, we find Defendant’s assignment of error lacks merit.

DISPOSITION

Defendant’s sentences are affirmed in all respects.

AFFIRMED.

      . An Alford plea is a guilty plea accompanied by a claim of innocence made pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).


text:
    STATE of Louisiana v. Perry M. STOKES.
    No. 10-1072.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      Paula C. Marx, Louisiana Appellate Project, Lafayette, Louisiana, for Defendant/Appellant, Perry M. Stokes.
    J. Phil Haney, District Attorney-Sixteenth Judicial District, Jeffrey J. Tros-clair-Assistant District Attorney, Franklin, Louisiana, for Appellee, State of Louisiana.
    Court composed of BILLY H. EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

11 Defendant, Perry M. Stokes, appeals his fifteen-year, hard labor sentence as a result of his guilty plea to the crime of carjacking. For the following reasons, we affirm his sentence as imposed.

FACTS AND PROCEDURAL HISTORY

Defendant, Perry M. Stokes, was charged on March 17, 2009, by bill of information with one count of carjacking, a violation of La.R.S. 14:64.2, and one count of armed robbery with a firearm, a violation of La.R.S. 14:64.3. He pled guilty to one count of carjacking pursuant to a plea agreement. The trial court ordered a pre-sentence investigation report, and, on April 26, 2010, he was sentenced to fifteen years at hard labor.

As set forth in the record, the State elucidated the following facts as the factual basis of the crime:

Mr. Stokes, as well as Christian Decuir, Dwayne Laviolettef,] and another co-defendant were riding around Iberia Parish in the early morning hours. They encountered Mr. Edward Barrideau who was driving a pickup truck. Mr. Barri-deau owed Mr. Stokes money. Mr. Stokes and one of the co-defendants exited the vehicle they were riding around in, produced pistols[,] and took the pickup truck from Mr. Barrideau at [gunpoint], They drove off with the pickup truck[,] obviously! ] without Mr. Barri-deau’s permission and/or authority. They were subsequently arrested after leaving St. Martin Parish where there was another robbery which had occurred that all four of them were involved in. When they were stopped and arrested[,] three pistols were recovered, one of which was stolen.

At the sentencing hearing, Defendant objected to the sentence without reason; however, he did file a timely pro-se Motion to Reconsider Sentence, asserting that the sentence was excessive under the circumstances of the case. The trial court denied Defendant’s motion without reasons.

12Pefendant has timely perfected an appeal, alleging as his only assignment of error that his sentence of fifteen years at hard labor is excessive under the circumstances of his case.

ERRORS PATENT

In accordance with La. Code Crim.P. art. 920, we have reviewed the record for errors patent and have found none.

ASSIGNMENT OF ERROR

Defendant argues that his sentence of fifteen years at hard labor was excessive considering his first felony status and youth. Defendant also asserts that the trial court did not comply with the mandates of La.Code Crim.P. art. 894.1 in particularizing a sentence to this offender.

In State v. Brown, 41,888, p. 9 (La.App. 2 Cir. 4/4/07), 956 So.2d 53, 57-58, the second circuit noted:

Our state constitution prohibits excessive punishment. La. Const, art. I, § 20 (1974). The test imposed by the reviewing court in determining the ex-cessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set fourth 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, 483 So.2d 688 (La. 1983); State v. Gann, 40,058 (La. App.2d Cir.09/21/05), 911 So.2d 384. 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 art. 894.1. State v. Landos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.01/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.03/11/05), 896 So.2d 57, 2004-2380 (La.06/03/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. \%Haley, 38,258 (La.App.2d Cir.04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728.

See also State v. Barling, 00-1241, 01-1591 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

Defendant pled guilty to carjacking, which provides for a range of imprisonment of not less than two years and no more than twenty years, without the benefit of parole, probation, or suspension of sentence. In exchange for his guilty plea, the State dropped the armed robbery charge and agreed not to multi-bill him. Defendant was sentenced to fifteen years at hard labor, three quarters of the sentence he could have received.

At the sentencing hearing the trial court noted for the record:

I have reviewed the pre-sentence report prepared by [the] Division of Probation and Parole. I note the fact that the defendant was charged with two crimes, [carjacking] and armed robbery, armed robbery with [the] use of a firearm, and that that particular crime, charge [sic] was dismissed as I understand it in exchange for the plea to [carjacking]. Is that how it happened?
And of course, Mr. Barrideaux was an innocent guy. He was stopped at a store to by [sic] a cold drink and was approached and held up. He thinks the defendant ought to get the maximum sentence.
The offender says he regrets his involvement in the commission of the crime. And anybody who is facing a sentence of twenty (20) years at hard labor, I think would be a fool if they didn’t regret being a part of that crime. Nevertheless, he voluntarily participated in it.
He is a fírst[-]time felony offender. He only went to school to, I believe, the ninth grade. And [he] has only had one job in his [lifetime], that being at Todd’s Car Wash. So even though he is a rather young offender, he apparently quit school and hasn’t worked, which indicates to the [c]ourt that people who do that generally windup [sic] getting in trouble as this defendant did.
It was a serious crime. The victim certainly could have been 14seriously hurt or killed as a result of it. I think it’s his great fortune that that did not occur.
I think that the fact that the defendant has shown no inclination toward any kind of useful like [sic] thus far is a factor that goes against any kind of real leniency in this case....
The [c]ourt, of course, takes into consideration the sentencing guidelines, the fact that the law does not permit a split sentence, does not permit any kind of probation, the fact that this was a serious crime, the individual could have been seriously hurt or killed[,] and the defendant[’]s social history of doing basically nothing useful, the [c]ourt finds that this is an appropriate sentence.

Defendant argues that the trial court failed to take into consideration his youth and that he was only a first-time felony offender. Moreover, he alleges that the trial court erroneously concluded that he had not done anything useful in his life. Additionally, he argues “that the carjacking in this case occurred under circumstances unlikely to recur. The victim [owed] the defendant money.” Finally, Defendant argues that there was no injury incurred by the victim.

In Brown, 956 So.2d 53, a nineteen-year-old defendant had pled guilty to second degree kidnapping and carjacking. He was sentenced to twenty years imprisonment for the offense of kidnapping and fifteen years at hard labor for the offense of carjacking. The second circuit did not find the sentences excessive, even in light of his youthfulness and first-offender status. The second circuit also noted that in exchange for the guilty plea, the State dismissed an armed robbery charge. The second circuit noted: “Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for pled offense.” Id. at 58.

|fiSimiIarly, in the instant case, Defendant was also charged with armed robbery with a firearm. Defendant and three other men robbed the victim at gunpoint. While Defendant claims that the victim was not injured, the situation was such that the victim could have been seriously hurt. Additionally, though there was no physical injury, it cannot be said that the victim, who was robbed at gunpoint, did not endure fear and mental anguish as a result of this frightening occurrence, which can be just as injurious. Furthermore, an offense of armed robbery carries a potential penalty of up to ninety-nine years imprisonment. Defendant received a substantial benefit when he was allowed to plead guilty to carjacking in exchange for the State dismissing the armed robbery charge and agreeing not to file an habitual offender bill against him.

Finally, Defendant attempts to explain his behavior by the assertion that he was trying to collect money the victim owed him, and, therefore, the criminal activity was unlikely to recur. However, the record before the trial court indicated that Defendant and his accomplices were apprehended in the carjacked truck a short time after having committed another offense of armed robbery.

The record before this court clearly shows that the trial court complied with the mandates of La.Code Crim.P. art. 894.1 when it considered an appropriate sentence. Furthermore, considering the facts of the case, the sentence imposed is not such that would shock this court’s sense of justice. We do not find that the trial court abused its vast discretion when it sentenced Defendant to fifteen years imprisonment at hard labor for the lesser offense of carjacking. We find no merit to Defendant’s assignment of error.

DISPOSITION

Defendant’s sentence is affirmed as imposed.

AFFIRMED.


author: DECUIR, Judge.

text:
    Barbara Escude LEMOINE v. Jon Oliver DOWNS.
    No. 10-1073.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.
    Rehearing Denied April 20, 2011.

      Jerold Edward Knoll, The Knoll Law Firm, LLC, Marksville, LA, for Plaintiff/Appellee, Barbara Escude Lemoine.
    Philip H. Boudreaux, Attorney at Law, Lafayette, LA, Rodney M. Rabalais, Attorney at Law, Marksville, LA, for Defendant/Appellant, Jon Oliver Downs.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   DECUIR, Judge.

|;Barbara Escude Lemoine sued Jon Oliver Downs seeking to be declared owner of certain immovable property located in Avoyelles Parish. The trial court granted partial summary judgment in Lemoine’s favor, and this appeal ensued. For the following reasons, we reverse and render judgment in favor of Downs.

On April 1, 1995, John Lemoine, husband of the plaintiff, Barbara Lemoine, donated the property at issue to Barbara’s twelve-year-old unemancipated grandson, the defendant, Jon Downs. Downs lived with the Lemoines at the time of the donation. He was the son of Barbara’s daughter and was not biologically related to John Lemoine. The act of donation, filed in the public records of Avoyelles Parish, was in authentic form and was signed by John Lemoine as donor and by Jon Downs as donee. John Lemoine reserved the usufruct over the property for life, and he continued to live on the property with his wife Barbara until his death on April 24, 2009.

After his death, Barbara moved away from the property and listed it for sale. She believed that she had inherited the property as part of John’s separate property left to her in his will. When an offer to purchase the property was made, however, a title search revealed the 1995 donation to Jon Downs. He refused to sign a quitclaim deed, the proposed sale of the property fell through, and Barbara filed suit against her grandson for declaratory judgment.

Barbara’s claim to ownership is based on three allegations. First, she contends the acceptance by Downs of the 1995 donation was “without effect” because he was a minor. She characterizes the donation as an “offer” to donate which John formally withdrew by authentic act in 1997. Second, she asserts the property was transferred to her on two separate occasions: In 1999, by donation inter vivos, John attempted |?to transfer a one-half interest in the property to Barbara; again in 2009, by donation mortis causa, as John bequeathed the property to her in his will. Third, Barbara contends she acquired the property via acquisitive prescription after good faith possession for ten years.

Jon Downs answered the suit and filed a reconventional demand to be declared owner of the property. His claim is based on the 1995 donation, as well as codal articles and jurisprudence which provide that although a minor cannot contract, any contract entered into by a minor is merely relatively null, not absolutely null, and may be attacked only by the minor or his legal representative, neither of which occurred in this case. Downs also filed an exception of no right of action asserting that Barbara Lemoine has no right under the law to bring this suit. He relied on La.Civ.Code art.1919, which provides that “a contract made by a person without legal capacity is relatively null and may be rescinded only at the request of that person.” Downs also filed an exception of prescription pursuant to La.Civ.Code art.2032, which provides for a five-year prescriptive period for actions on contracts which are relatively null.

The trial court overruled the exceptions filed by Downs. The trial court also denied a motion for summary judgment filed by Downs on the merits but granted Lemoine’s partial motion for summary judgment on the merits. Downs appealed, asserting error in the partial summary judgment and also alleging error in the denial of summary judgment in his favor and in the overruling of his exceptions.

On appeal of a summary judgment, an appellate court reviews the record de novo to determine whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Harrah’s Bossier City Inv. Co., LLC v. Bridges, 09-1916 (La.5/11/10) 41 So.3d 438; La. Safety Ass’n of Timbermen Self Insurers Fund v. La. Ins. Guar. Ass’n, 09-0023, (La.6/26/09), 17 So.3d 350. Our review of the facts and the law lead to the inescapable conclusion that the trial judge erred as a matter of law.

“All persons have capacity to contract, except unemancipated minors, interdicts, and persons deprived of reason at the time of contracting.” La.Civ.Code art.1918. “A contract made by a person without legal capacity is relatively null and may be rescinded only at the request of that person or his legal representative.” La.Civ.Code art.1919. Comments to this article reveal the following:

(b) Under this Article, only the incapable person or his legal representative is allowed to raise the former’s lack of capacity as a basis for rescinding a contract. See Litvinoff & Téte, Louisiana Legal Transactions: The Civil Law of Juridical Acts 102-103 (1969)....
(c) This Article eliminates the previous uncertainty as to the absolute or relative nature of the nullity caused by lack of legal capacity.

The Civil Code further explains the relative nullity of certain contracts in Article 2031:

A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made. A contract that is only relatively null may be confirmed.
Relative nullity may be invoked only by those persons for whose interest the ground for nullity was established, and may not be declared by the court on its own initiative.

In 1994, the Louisiana Supreme Court wrote, “Because of the relative nullity of contracts when a minor is a party thereto, persons who contract with minors do so at their own peril.” Deville v. Federal Sav. Bank of Evangeline Parish, 93-1853, p. 4 (La.4/11/94), 635 So.2d 195, 197. Courts have long recognized that minors can annul otherwise binding contracts solely on the basis of their minority:

|4We believe the tenor running through the articles, cases and various commentaries is that the contracts of minors, although susceptible to annulment by the minor or his representative, nevertheless create certain legal effects binding on the party contracting with the minor as well as persons who are strangers to the immediate transaction. In other words, minority is a cloak or a weapon only in the hands of the minor or his representative which is available for [h]is own protection and, so long as the agreement or contract has not been disavowed or annulled, it has the same effect as the contract of a person fully capable of contracting.

Harris v. Ward, 224 So.2d 517, 521 (La. App. 2 Cir.1969) (emphasis added.)

In written reasons for judgment, the trial court held that the donation to Downs was a nullity because of Downs’ failure to accept the donation through a legal representative, either at the time he reached the age of majority or at some point during the lifetime of the donor. That holding is incorrect. Downs did in fact accept the donation. He accepted “with gratitude” and signed the document entitled “Donation Inter Vivos” on April 1, 1995 at the same time as John Lemoine and before the same notary and witnesses. Downs was not required to later ratify or further accept the donation. And only Downs, by virtue of his minority, had the right to later rescind his acceptance.

Our de novo review of the record exposes clear error in the judgment of the trial court. The body of law which sets forth, explains, and interprets the legal concept of relative nullity leads to the necessary conclusion that the 1995 donation to Downs is valid, as he himself has not sought to nullify the transaction. Downs has owned this property since 1995, subject to his step-grandfather’s usufruct, and neither an attempted rescission of the donation itself by the donor, nor the plaintiffs occupancy of the land with her husband pursuant to his usufruct, can serve to invalidate that ownership. Were we to find otherwise, we would be in disregard of the law defining the term “relative nullity.” La.Civ.Code art.2031.

| ^Consequently, none of Barbara’s claims to ownership have merit: the 1997 rescission of the donation, the 1999 donation inter vivos to Barbara, and the 2009 donation mortis causa to Barbara all are ineffective, and Barbara, as the spouse of a usufruct owner, could not have acquired the property through prescription. Barbara’s acquisitive prescription claim, added by amended petition immediately before the summary judgment hearing, was not specifically addressed by the trial court. To be successful, Barbara’s claim must include good faith possession for ten years and just title. She can show neither. The property was donated to Downs in 1995. A donation is irrevocable. La.Civ. Code art. 1468. Nonetheless, John attempted to unilaterally revoke the donation in 1997, in contravention of Civil Code Article 1919, and Barbara signed as a witness. Barbara cannot rely on this document as a basis for good faith acquisitive prescription because it is an act that is declarative rather that translative of rights under La. Civ.Code art. 3483. It simply constituted a declaration by John that he now owns the property because Downs did not properly accept it. John later attempted to donate a one-half interest to Barbara in 1999, even though he owned no interest in the property at that time, and Barbara had knowledge of that because she was a witness to the attempted revocation in 1997. Then, upon his death in 2009, she purportedly received the remaining one-half interest pursuant to John’s will.

To say that John’s 1997 attempted unilateral revocation of a donation to a minor, with no notice to the minor, somehow evidences just title “sufficient to transfer ownership” as required by Civil Code Article 3483 is simply not tenable. To say that John, and by extension Barbara, may have been in good faith because he may have believed in the validity of the 1997 revocation does not give rise to a factual | ^dispute: The revocation was unilateral. It withdrew an “offer,” even though the act referenced was a donation, not an offer, and a donation is irrevocable. The fact that Barbara was a witness to the revocation shows that she was aware of the circumstances of the donation. And the revocation was not a juridical act translative of ownership. Accordingly, Barbara did not have just title. At no time did she possess with just title or good faith.

These are facts already in the record before us. Therefore, no remand is necessary to determine good faith or just title, as the undisputed facts speak for themselves.

Accordingly, we reverse the summary judgment rendered in favor of Barbara Lemoine, reverse the denial of summary judgment rendered against Jon Downs, and reverse the ruling rendered on the exception of no right of action. The exception of prescription is moot. Jon Downs is hereby declared to be the owner of the property described with specificity in Act No. 952507, filed and recorded in Conveyance Book 421, folio 195, of the records of Avoyelles Parish, Louisiana.

For the above and foregoing reasons, the judgment of the trial court is reversed and rendered. Costs of the appeal are assessed to Barbara Lemoine.

REVERSED AND RENDERED.