author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Audy MATERRE.
    No. 2009-KA-1666.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 2010.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Andrew M. Pickett, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for State of Louisiana.
    Dwight Doskey, Covington, Louisiana, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge DAVID S. GORBATY).
   JAMES F. McKAY III, Judge.

I,STATEMENT OF CASE

On August 2, 2007, the State charged the defendant with one count of second-degree murder, a violation of La. R.S. 14:30.1 (Count 1); one count of armed robbery, a violation of La. R.S. 14:64 (Count 2); and one count of attempted second-degree murder, a violation of La. R.S. 14:30.1 and 14:27 (Count 3). The defendant was arraigned on August 16 and October 16, 2007, and pled not guilty on both occasions.

On August 28, 2007, the defendant filed motions to suppress evidence, statement and identification. That same day, the court held a preliminary hearing.

On October 23, 2008, the court denied the motion to suppress identification, and the defendant filed an oral motion to sever the counts. On January 30, 2009, the defendant waived his outstanding motions to suppress.

On April 28, 2009, the State filed an oral motion to sever the counts.

On June 18, 2009, the jury found the defendant guilty of negligent homicide.

On July 9, 2009, the State filed a multiple bill of information charging the defendant as a fourth felony offender, and the defendant filed a motion for post verdict judgment of acquittal, which the court denied on July 16, 2009. That day |2the court sentenced the defendant to five years on count 1, and the defense moved for reconsideration of his sentence, which the court denied. Following the multiple bill hearing, the court adjudicated the defendant a quadruple offender, vacated the defendant’s original sentence and re-sentenced him to seventy-five years at hard labor with credit for time served.

On July 24, 2009, the State nolle prosed the remaining counts of the indictment.

STATEMENT OF FACT

NOPD Detective Regina Williams responded to a dispatch call on June 9, 2007, at 10:30 p.m. reporting the homicide of Albert Phillips, which occurred at the intersection of Spain and Marais Streets. By the time Detective Williams was able to relocate to the area, the initial scene investigation had been completed, so her supervisor directed her to the Fifth District Police Station to interview Arthur Price, a witness to the homicide. Based upon the statement given by Mr. Price, Detective Williams compiled a photographic lineup of suspects which included a picture of the defendant. Mr. Price identified the defendant’s picture as the killer and signed the back of the photograph. Based upon that identification, the detective obtained a warrant for the defendant’s arrest. During trial, Detective Williams identified the photo in the lineup from which Mr. Price identified the defendant. She placed the arrest warrant in the National Crime System Computer, and learned that the defendant was wanted for murder.

The day after the crime, Detective Williams took taped statements from the defendant’s girlfriend, Tabitha Phillips, her son, Garland Phillips, and a third person, John Patio, at Ms. Phillips’ house on St. Claude Avenue. Next, the detective received permission to process the victim’s rental car for evidence ^because it was where the victim was shot. On June 11, 2007, Detective Williams received a call advising her that the defendant had walked into West Jefferson Hospital stating that he had been shot at the intersection of Spain and Marais Streets. She relocated to the hospital, read the defendant his rights, and arrested him for the first-degree murder of Albert Williams. The defendant agreed to waive his rights and gave Detective Williams a taped statement while in the hospital. The detective entered the tape statement into Central Property and Evidence and identified the transcribed copy of that statement at trial.

In lieu of playing the tape for the jury in court because the defendant spoke of matters not pertinent to this case, the State and the defense agreed to have Detective Williams read to the jury, as it followed along from a copy, the redacted portions of the transcript of the defendant’s statement. In the portion of the statement read by Detective Williams, the defendant explained that he and the victim were friends. The defendant stated that he and the victim’s sister had been in a relationship some time before the victim’s death. The defendant said that on June 9, 2007, he was a passenger in the victim’s SUV. As the pair rode on Marais Street, the victim told the defendant that they were being followed by a burgundy BMW van. The van sped up beside the victim’s car and shot the victim in the side and chest and the defendant in the shoulder. The victim opened the car door and fell out. Although the victim kept a gun in his SUV, neither of them shot back at the assailants. The defendant was unable to place the victim back in the SUV, so the defendant drove the SUV to Tabitha’s house on St. Claude Avenue and told Garland Phillips to go see about the victim. Shortly thereafter, the defendant returned to the scene, where by that time people and the police had gathered. The defendant did not report to the police any facts of the shooting or that he had been |4shot. Instead, he returned to Tabitha’s house to find that police had arrived at that location. The defendant said that he decided to go to Walgreens to buy supplies to bandage his wounds, and he later sent friends to the hospital to check on the victim. He did not go to the hospital at that time. He added that he went to the hospital two days after the shooting to have his wounds tended, and he said that he had the detective’s number and was going to turn himself in because people were saying he had killed the victim, which he knew was not true.

Detective Williams further testified that she was present when the crime scene technicians processed Phillips’ SUV and took blood samples, pictures and retrieved a bullet from the backseat of the SUV. Comparison of the bullet found in the backseat of the SUV to the bullet retrieved during the autopsy indicated that both bullets were fired by the same weapon. She also attended the autopsy and noted that one of the victim’s eyes had been shot out.

On cross-examination, Detective Williams said that fingerprints, blood samples and glass fragments were recovered from the SUV. She acknowledged that certain items of clothing were taken from Tabitha Phillips’ house on St. Claude Avenue. Also, Detective Williams seized the victim’s cell phone and obtained cell phone records.

On re-direct, Detective Williams indicated that she spoke to Robert Chestnut August 16, 2007, who told her he did not witness the homicide but heard the shooting. Chestnut was near the shooting scene on June 9 and after hearing gunshots, he saw the victim on the ground and saw a vehicle pull away from the scene in the direction of St. Claude Avenue. He could not say whether he saw a second vehicle. Detective Williams confirmed that Garland Phillips identified the defendant because the defendant was dating his mother at the time of the homicide.

IsNOPD crime scene technician Betsy Johnson testified that she had worked in the crime lab for twelve years. Her duties include processing crime scenes — photographing the scene, dusting for fingerprints and otherwise collecting evidence. She did not process the scene of this crime but did inspect the victim’s black SUV at FBI storage and rendered a report of her findings on June 14, 2007. Technician Johnson photographed the SUV, lifted fingerprints from the SUV, and took pictures of the vehicle from various interior and exterior angles, which photos she identified and explained during trial. Johnson lifted eleven latent fingerprints from the SUV and deposited them in Central Evidence and Property (CEP) for testing.

NOPD detective and expert fingerprint examiner, George Jackson, testified that he was able to obtain two test-worthy fingerprints from the eleven latent prints lifted from the victim’s black SUV. He ran one of the prints through the system, and the system produced a match as belonging to the defendant. Detective Jackson stated that Orleans Parish Criminal District Court requires ten points of identification of fingerprints to make a match. The fingerprint attributed to the defendant exhibited seventeen points of identification.

Homicide Detective Eduardo Colmenero testified that he and Sergeant Caprera were dispatched to the scene of this shooting to assist in investigating the crime. In route to the scene they observed several vehicles at the intersection of Touro Street and St. Claude Avenue so they stopped there first. Lieutenant Rattler informed Detective Colmenero that the black SUV was found riddled with bullet holes at that location. Detective Colmenero also learned that the original shooting scene was at Spain and Marais. Detective Col-menero relocated to the shooting scene and found the dead victim face down with his arms tucked under his body. |G He documented the scene and located six .9 millimeter casings and eight .40 caliber spank casings there. Detective Regina Williams was actually in charge of the investigation; however, he arrived before Detective Williams because she was .investigating an unrelated matter. Detective Colmenero directed the crime scene technicians in taking photos and collecting evidence. During the trial, Detective Co-menero identified photos of the shooting scene including some showing the victim with a large amount of blood coming from his head. He also identified several photos of the victim’s SUV, which showed blood on the interior of the driver’s side as well as shattered glass caused by gunfire. On cross-examination, Detective Comenero testified that no firearms were recovered from either scene.

Officer Shantel Bangham testified that she participated in the investigation of this case. She conducted a walk through of the scene and preserved the evidence where it was found until the crime lab technicians arrived. The victim’s body was still on the scene at the time she arrived. Officer Bangham explained that while she was on the scene she heard a cell phone ringing. She located the phone about a half a block away from the scene on Marais Street toward St. Roch Avenue. She answered the phone and was questioned by the caller about how she came into possession of the cell phone. She asked the caller to come to the scene and retrieve his phone, which he did. The person who came to get the phone identified himself as Arthur Price. Officer Bangham detained Price so that Detective Colmenero could speak to him. After she surrendered Price’s cell phone to Detective Comenero, she had nothing further to do with the case.

The parties stipulated that, if called as a witness, NOPD Sergeant Gerard Winbush would testify, as a firearms examination expert, consistent with the lab |7report he produced in relation to his examinations of the shell casings found at the murder scene. The report was introduced into the record.

The parties also stipulated that, if called as a witness, Dr. Richard Tracey would testify, as a forensic pathology expert, that he performed the autopsy on the victim at 9:30 a.m. on June 10, 2007, and that he determined the cause of death to be a gunshot between the eyes. Further, Dr. Tracey would also have testified that he retrieved the fatal bullet from the victim’s brain and placed it in a Coroner’s Office evidence envelope, and that he prepared an autopsy protocol, a copy of which was entered into the record.

Arthur Price testified that he was presently incarcerated for attempted illegal possession of a firearm and assault on an officer with a gun. He further testified that the District Attorney had offered him a deal on other charges in exchange for testifying against the defendant, but Price refused the officer and was not testifying voluntarily. Price stated that he was drunk the night of the shooting and lost his cell phone. He said that he only remembered losing his cell phone because prosecutors showed him documentary evidence that it happened. He said he did not remember anything about that night, but did remember a female police officer talking to him that night. Price said he did not see anything on the night in question. Upon being shown a photographic line up from that night, Price identified his name and the date in his handwriting on the back of a picture.

The State moved to have Price declared hostile and, after being advised of his rights by the judge, Price elected to speak with an attorney before testifying any further. After consulting with an attorney, Price invoked his Fifth Amendment privilege. Thereafter, the State sought to have him declared hostile. The State then sought to admit Price’s prior taped statement to the police, which the court granted | swith the admonition to the jury that his prior statement was to be considered only for impeachment purposes and not for its substantive truth. After the statement was played for the jury, the court declared Price hostile, and he continued to invoke his Fifth Amendment rights in response to the State’s questions.

Price’s recorded statement indicated that on the night in question he came upon the defendant holding two men at gunpoint on Marais Street. As Price approached the location, he heard the defendant ask the men which one of them had spoken to his girlfriend. The defendant also included Price in the questioning. Both men and Price told the defendant they did not know what he was talking about and that none of them knew the defendant’s girlfriend. The defendant threatened to shoot the two men and Price if they did not answer his question. When the defendant placed his gun in his pants pocket, Price fled by jumping over a fence and hiding behind a building. As the other men fled, Price heard gunfire from two guns and theorized that one of the two men the defendant had threatened was armed. Price dropped his cell phone as he ran, so he returned to the area where he thought he had dropped it. When Price looked in the direction where the defendant was standing, he saw a flash from the defendant’s gun and heard the sound of breaking automobile glass. Price observed the defendant walk to a black SUV, which had been proceeding on Ma-rais Street, and pull the driver from the vehicle. As the defendant got into the SUV to leave the scene, Price noticed that the driver’s side window had been shot out. Price said that he did not know if the driver was dead. Price left the scene, and later that evening when he called his cell phone number, Detective Williams answered. Price explained that the cell phone belonged to him. The detective asked him to return to the scene to retrieve his 19phone. He did so, and at about 1:00 a.m. on June 10, 2007, he gave his taped statement to Detective Williams.

Thirteen year old Garland Phillips testified that his uncle, Albert Phillips, was killed on the night of June 9, 2007. Garland knew the defendant from hanging out with his cousin John at Garland’s house on St. Claude Avenue. Garland saw the defendant drive up to his house at 10:80 p.m. in his uncle’s car the night his uncle was killed. When the defendant exited the vehicle, Garland noticed that he had blood on his shirt and jeans. Garland said that the defendant’s clothes were not stained with blood when Garland saw him earlier that day. Garland asked the defendant what had happened, and the defendant went to call Tabitha Phillips, but never entered the house. Instead, the defendant walked up the outside stairs to a closet space near the entrance to the apartment. When the defendant exited the closet, Garland noticed that he had changed into a black tank top. The defendant left the house, and Garland and John followed him to the corner. When the defendant heard police sirens, he went in the other direction. Garland went home and called his mother to tell her that his uncle was dead. Garland said that when the defendant left his house, he did not observe the defendant in possession of a gun.

The parties stipulated that, if called as a witness, a member of 'the NOPD Communications Department would authenticate the 911 tape associated with NOPD item number F-11055-07 as reflecting a call for service made at 10:11 p.m. on June 9, 2007, relating to the shooting of Albert Phillips at the intersection of Spain and Marais Streets. The tape was played for the jury.

ERRORS PATENT

A review for errors patent on the face of the record reveals none.

^ASSIGNMENT OF ERROR NUMBER 1

In his first assignment, the defendant contends that the jury erred in finding the evidence sufficient to support his conviction of negligent homicide. The defendant argues that the jury improperly considered Arthur Price’s statement as substantive evidence, despite the district court’s instruction to the contrary.

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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2 Cir.8/30/02), 827 So.2d 508.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983).

|n 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. Allen, 36,180 (La.App.2 Cir. 9/18/02), 828 So.2d 622.

La. R.S. 14:32 provides in pertinent part that:

A. Negligent homicide is either of the following:
(1) The killing of a human being by criminal negligence.
(2) The killing of a human being by a dog or other animal when the owner is reckless and criminally negligent in confining or restraining the dog or other animal.
B. The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.
C. (1) Except as provided for in Paragraph
(2) of this Subsection, whoever commits the crime of negligent homicide shall be imprisoned with or without hard labor for not more than five years, fined not more than five thousand dollars, or both.

La. R.S. 14:12 defines criminal negligence as follows:

Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such a disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful person under like circumstances.

To convict a person of negligent homicide, the State must prove beyond a reasonable doubt that the defendant was criminally negligent and that a killing resulted from this misconduct. La. R.S. 14:32; State v. Taylor, 585 So.2d 655 (La.App. 4 Cir.1991).

The offense of negligent homicide is not an intentional crime, and intent is not an element of negligent homicide. State v. Guillot, 277 So.2d 146 (La.1973).

1 ^Jurisprudence shows that the common element in negligent homicide cases involving firearms is a finding that a defendant acted in an unreasonably dangerous or unsafe manner at the time of the discharge of his weapon. Evidence of negligent homicide was found to be sufficient in State v. McFerson, 583 So.2d 516 (La.App. 3 Cir. 8/6/91), where it was determined that the defendant acted below the standard of care expected to be maintained by reasonably careful persons under similar circumstances when he brought a loaded gun into a bar, pulled the gun out of his pants pocket, and the gun discharged killing an innocent victim.

Pointing a loaded gun in the direction of another, who ultimately suffers a fatal wound as a result of the gun’s discharge, amounts to criminal negligence sufficient to establish a “classic case of negligent homicide.” State v. Barberousse, 480 So.2d 273, 276 (La.1985).

When circumstantial evidence forms the basis for the conviction, such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. The court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events; rather, when evaluating the evidence in the light most favorable to the prosecution, the court determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia, supra. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012.

The circumstantial evidence in this case included the defendant’s statement in which he placed himself on the scene at the time of the shooting, acknowledged that he knew the victim, and admitted that he witnessed the shooting and had access to a gun. Also, Detective Williams testified that when she presented Arthur 11sPrice with the photo lineup, he immediately identified the defendant’s picture and placed his signature on the back of the photo. Moreover, although the jury was instructed to consider the statement Price gave to Detective Williams the night of shooting for impeachment purposes only and not as substantive evidence of the defendant’s guilt, the jury witnessed Price identify his signature on the back of the defendant’s photograph, thus corroborating his identification of the defendant as the shooter. Further, Officer Bing-ham’s testimony that Price’s cell phone was found at the shooting scene further corroborated Price’s presence at the scene so as to have witnessed the crime. In addition, the jury heard the defendant’s statement to Detective Williams placing himself at the scene with access to a gun in the victim’s SUV. Furthermore, latent fingerprints lifted from the front and rear passenger side doors of the victim’s SUV confirmed the defendant’s presence in the vicinity of the SUV.

Other circumstantial evidence of the defendant’s guilt included the defendant’s statement that he avoided the police at both the scene and at Touro Hospital. Despite the defendant’s claim that he and the victim were good friends, the defendant did not return to the scene to check on the victim; instead the defendant asked other people to do so. Just as telling, the defendant did not tell police that he had been shot in an unprovoked ambush nor did he seek medical attention for his wounds for more than twenty-four hours after the shooting. Finally, the jury heard Garland Phillips testify that when the defendant arrived at 2001 St. Claude Avenue in the victim’s truck after the shooting, the defendant’s shirt had blood on it, prompting the defendant to change his shirt. Garland Phillips also stated that the defendant suspiciously avoided oncoming police vehicles when the defendant left the St. Claude Avenue residence. Consequently, it was not 114unreasonable for the jury to conclude from the evidence and the defendant’s strange behavior that he had a guilty conscience over the victim’s death and sought to avoid responsibility for the shooting.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for the factual conclusion notwithstanding that other witnesses testify to the contrary, and an appellate court is not in a position in such a case to say that the trier of fact erred in believing the one witness rather than the several. State v. Garlepied, 454 So.2d 1147 (La.App. 4 Cir.1984). In this case, the jury chose to credit the testimony of the State’s witnesses over the defendant’s exculpatory statement to the police. The jury’s verdict was not based on Price’s statement. This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 2

In his final assignment of error, the defendant argues that his seventy-five year sentence as a fourth felony offender is an unconstitutionally excessive sentence. He also maintains that even a twenty year sentence—the minimum under the habitual offender law—would be unconstitutionally excessive when applied to the crime of negligent homicide.

When a defendant fails to set forth specific grounds upon which his motion to reconsider is based, as occurred in this case, the defendant is entitled only to bare review of the sentence for constitutional excessiveness. U.S.C.A. Const.Amend. 8; La.C.Cr.P. art. 881.1, subds. B, E.

Article I, § 20 of the Louisiana Constitution of 1974 provides that “[n]o law shall subject any person ... to cruel, excessive or unusual punishment.” A sentence, although within the statutory limits, is constitutionally excessive if it is | TS“grossly out of proportion to the severity of the crime” or is “nothing more than the purposeless and needless imposition of pain and suffering.” State v. Caston, 477 So.2d 868, 871 (La.App. 4 Cir.1985). However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. State v. Brady, 97-1095 (La.App. 4 Cir. 2/3/99), 727 So.2d 1264.

Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Black, 98-0457, p. 8 (La.App. 4 Cir. 3/22/00), 757 So.2d 887, 892. 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 and, accordingly, 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. See State v. Landos, 419 So.2d 475, 478 (La.1982) (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. Davis, 448 So.2d 645, 653 (La.1984) (the trial court need not recite the entire checklist of article 894.1, but the record must reflect that it adequately considered the guidelines). If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case. State v. Caston, 477 So.2d at 871. The reviewing court must also keep in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982).

11frLa.C.Cr.P. art. 894.1 provides guidelines for sentencing. According to this article, the court must state for the record “the considerations taken into account and the factual basis therefor in imposing sentence.” However, even if the trial court fails to articulate considerations, a reviewing court needs simply to be able to discern the reasons of the trial judge, and the record itself may provide these reasons. State v. Green, 409 So.2d 563 (La.1982); State v. Day, 391 So.2d 1147 (La.1980).

The trial court has great discretion in sentencing within the statutory limits. State v. Trahan, 425 So.2d 1222 (La.1983). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La.C.Cr.P. art. 881.4(D).

It is well established that, “[t]he sources of information from which a sentencing court may draw are extensive, and traditional rules of evidence are not bars to consideration otherwise relevant information.” State v. Moss, 2008-1079, p. 27 (La.App. 4 Cir. 7/22/09), 17 So.3d 441, 457, writ den. 2009-1895 (La.4/9/10), 31 So.3d 382, citing State v. Washington, 414 So.2d 313 (La.1982). Evidence of other crimes which have not been adjudicated is relevant and probative evidence of the defendant’s character and propensities. Id. Sources of information relied on by the sentencing court may include hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Sepulvado, 44,764 (La.App. 2 Cir. 10/28/09), 25 So.3d 899, writ den. 2009-2590 (La.5/28/10), 36 So.3d 245.

The defendant in this case was charged with the second degree murder of the victim; however, the jury returned the verdict of guilty to the responsive offense of 117negligent homicide. The defendant was sentenced under Louisiana’s Habitual Offender Law as a fourth felony offender. As such, the sentencing exposure ranges from a term of not less than the longest period prescribed for a first conviction, but in no event less than twenty years and not more than natural life. La. R.S. 15:529.1 A(c)(i). Since the habitual offender law in its entirety is constitutional, the minimum sentences it imposes upon multiple offenders are also presumed to be constitutional. State v. Johnson, 97-1906 (La.03/04/98), 709 So.2d 672, 675. Although the trial judge in this case did not articulate the factual basis for the sentence, in light of the facts of this case, the imposition of the maximum sentence was not excessive, nor does the trial judge’s failure to enumerate the factors listed in La.C.Cr.P. 894.1 require remand. See State v. Martin, 400 So.2d 1063 (La.1981) on rehearing; State v. Hawthorne, 454 So.2d 285 (La.App. 4 Cir.1984); State v. Collins, 461 So.2d 384 (La.App. 4 Cir.1984).

The trial judge in this case imposed a seventy-five year sentence based upon the defendant’s prior convictions, which include first-degree robbery (which was reduced from an initial charge of armed robbery — a crime of violence) as well as possession of cocaine with intent to distribute and simple possession of cocaine. The defendant’s felony conviction history stretches back to at least 1992 — some fifteen years prior to the victim’s death— and includes a previous victim crime. Moreover, the defendant’s actions following the shooting demonstrated that he had less concern for his dying friend than for concealing the evidence of his own involvement in that friend’s death.

Although a search of the jurisprudence did not produce any cases of comparable sentences for a quadruple offender convicted of negligent homicide, the facts indicate that the defendant acted with such disregard of the interest of 11sothers that his conduct amounted to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances, and that, due to his criminal disregard, the victim was shot in the head and died. The trial court had ample reason to impose the sentence it did in light of the defendant’s extensive and violent criminal history.

Finally, the defendant has failed to show how his sentence constitutes nothing more than the purposeless imposition of pain and suffering. In short, he has failed to show that his seventy-five year sentence as a fourth felony offender is constitutionally excessive.

CONCLUSION

After a careful review of the record before this Court, and the applicable jurisprudence, we affirm the defendant’s conviction and sentence.

AFFIRMED.


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge,

license: Public Domain

text:
    STATE of Louisiana v. Donald MONROE.
    No. 2010-KA-0194.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for Appellee.
    Kevin V. Boshea, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge PAUL A. BONIN).
   MICHAEL E. KIRBY, Judge,

h STATEMENT OF CASE

The State charged Donald Monroe with three counts of sexual battery in violation of La. R.S. 14:43.1. He pleaded not guilty at his arraignment. Following a trial a unanimous six-member jury found him guilty of one count of sexual battery.

Mr. Monroe pleaded guilty to the multiple bill of information charging him as a second felony offender, and the court sentenced him to ten years at hard labor. That same day, the court granted the defendant’s Motion for Appeal. Some three months after the appeal had already been granted, the defendant filed a Motion to Reconsider Sentence.

Finding no merit in any of defendant’s three assignments of error we affirm his conviction and sentence.

STATEMENT OF FACT

Ms. Rochelle Hartman testified that in 2007 she worked as a forensic interviewer at Children’s Hospital in the Children’s Advocacy Center. She explained the specialized training, educational and occupational qualifications 1 required for her position. She stated that her services are utilized to obtain information from children who are victims of crimes. Her technique involves interviewing the child one-on-one, in a private, non-threatening environment and foster a positive rapport between her and the subject to quell any fear and apprehension the child may have. The room is sequestered from other areas of the facility and is equipped with video and audio recording equipment. While interviewing a child, Ms. Hartman is able to communicate with the investigating officer or social worker assigned to the case to obtain information pertinent to the officer’s/social worker’s concern(s).

Ms. Hartman explained that she interviewed M. P., the victim, in October 2007. Prior to the interview, Ms. Hartman was not aware of any of the facts related to the case. The video and audio tape of her interview of the victim was played for the jury.

Following Ms. Hartman’s testimony, the State introduced the defendant’s birth certificate, and the court allowed the jury to view it.

Detective Corey Lymous of the NOPD Sex Crimes Unit testified that in October 2007, he became aware of the alleged sexual battery of M.P. that occurred sometime in 2006. M.P. referred to the defendant by the alias “Romeo Johnson.” Through investigation, the detective determined that the defendant’s real name was Donald Monroe. With this information, Detective Lymous compiled a photo lineup, which he showed to the victim. She immediately identified the picture of the defendant and signed and wrote on the back of the picture, “That’s the person I |shad sex with.” The detective identified the photo lineup in court and verified the victim’s name and information on the back of the defendant’s photo.

On cross examination Detective Lymous stated that he got involved with this case because a young girl was pregnant. That case, however, involved a man named Derrick Pierre. The victim in this case told Lymous that she had penile/vaginal sex with the defendant on three occasions — in her aunt’s house, at Motel 6 and at the defendant’s FEMA trailer in November and December 2006. He also interviewed the victim’s grandmother who told him that she believed she heard the defendant in the victim’s bedroom on one occasion, but when she entered the room, she did not see him. The State introduced and published to the jury copies of the victim’s and the defendant’s birth certificates.

The victim testified that she was fifteen at the time of trial and that she was in the ninth grade. Her aunt is her legal guardian because her mother is a drug addict, whom she rarely sees or hears from. The victim told the jury that she was thirteen years old in November 2006 when the defendant first contacted her. She referred to the defendant as “Romeo Johnson” and said that he got her telephone number from her mother. The victim received a telephone call from the defendant, and then he showed up at her aunt’s house and they spoke. Later that night, the defendant came to her house, and the two had sex. Her aunt was not at home that night.

The next time she had sex with the defendant was around Christmas 2006, again in her bedroom at her aunt’s house. That night the victim’s great-grandmother was in the house visiting for the holiday. The defendant entered her bedroom window, and they had sex. While the two were in the bedroom, her grandmother knocked on the door. The victim refused to open the door until her |4grandmother began fussing and demanding that she open the door. The defendant hid in her closet, so that when the grandmother opened the door, she did not see him. After that, the defendant and the victim left the house and went to a hotel where they had sex again for a few hours. The victim returned home in the early morning hours before her aunt returned from work about 7:00 a.m. On another occasion, the victim and the defendant had sex in the defendant’s trailer.

The victim stopped seeing the defendant in early January of the next year when she received an irate phone call from the defendant’s girlfriend, Jennifer. The victim said she became pregnant in 2007 and gave birth to her daughter on November 25, 2007. When her aunt discovered that she was pregnant, her aunt called the police and learned from the victim that she had been seeing the defendant. Her aunt confronted the defendant at his house in the presence of the defendant’s brother, a friend and another woman. Thereafter, the victim went to the Children’s Advocacy Center where she was interviewed by a counselor. The victim reported to the counselor that she was pregnant and had started seeing Derrick Pierre after her relationship with the defendant ended. Sometime in the summer of 2008, the victim viewed a photo lineup from which she identified the defendant. She identified her signature on the back of the defendant’s picture. She also identified the defendant in court as “Romeo,” the man she had sex with in 2006.

L.P., the victim’s aunt/guardian, testified that she found out that the victim was pregnant in the fifth month of the pregnancy. The victim gave birth to a daughter in November 2007. When L.P. learned of the pregnancy, she demanded | ¡¡that the victim give her details — what happened, when and with whom. L.P. said that the victim never sees either of her parents— her mother is a homeless drug addict and her father lives in Baton Rouge.

L.P. learned that the victim had had sex with the defendant. She had the victim direct her to the defendant’s home on America Street where L.P. confronted him, telling him that she had heard that he had sex with her thirteen year old niece. Initially, the defendant denied the allegation, but L.P. told him he might as “well fess up” because she had notified the police. The defendant admitted that he had been to L.P.’s house and had sex with the victim. The defendant pleaded with the victim to explain to her aunt how their relationship began — that the victim’s mother had given him the victim’s phone number and address. The defendant’s girlfriend, Jennifer, his younger brother and another relative were present when L.P. confronted the defendant. L.P. identified the defendant in court as the man she learned had had sex with the victim.

The year after the confrontation, L.P. noticed the defendant ahead of her in the check out line at Winn Dixie. Up to that time, the police had not been able to ascertain the defendant’s real name, so when she saw him at the Winn Dixie and recognized his tattoos, she called the police. When the defendant left the store, officers stopped and questioned him as a result of L. P.’s identification of him as the man who had sex with her niece. She did not hear the questioning, and the police did not arrest the defendant that day.

Jennifer Alexander, the defendant’s girlfriend, testified that she and the defendant began dating in November 2003, and that he has numerous tattoos on his body including her name on his chest and wedding ring finger. Since she has known him, the defendant and his father, Donald Monroe, Sr., and his godbrother, | (¡Louis, travel to Washington, D.C., a few days prior to Christmas to visit his mother for the holidays. Ms. Alexander testified that she was certain the defendant was visiting his mother for Christmas 2006, and that she spoke to both the defendant and his mother at his mother’s residence in Washington, D. C., on that day.

Ms. Alexander said that she was at the defendant’s house the day L.P. confronted the defendant. L.P. drove up to the house asking for “Romeo Johnson”, a name Ms. Alexander had never heard before, and not a name she or anyone else ever called the defendant. The defendant’s nickname is “Toot”. L.P. was combative, attempting to provoke an altercation, cursing at her and accusing her of calling the victim on the telephone. Ms. Alexander denied L. P.’s accusations and added that it was the victim who kept calling the defendant’s cell phone and harassing them. L.P. also yelled at the defendant, saying that he had had sex with the underage victim, and that she was going to notify the police. Ms. Alexander heard the defendant deny knowing the victim and saying he had never had sex with her. At the time this incident occurred, the victim was sitting in the back seat of L.P.’s car.

Louis Scott, the defendant’s twenty year old cousin, testified that it was customary for him, the defendant, the defendant’s father and other relatives to drive to Washington, D. C., to visit the defendant’s mother, Tawana Monroe, for the Christmas holidays. He specifically remembered being in Washington with the defendant and other family members on Christmas Eve 2006. They left New Orleans a few days before Christmas 2006 to drive to Washington. Mr. Scott corroborated Ms. Alexander’s testimony that the defendant has numerous tattoos on his body and that he goes by the nickname “Toot.” Mr. Scott denied knowing L.P. and the victim.

|7The defendant testified that he and Jennifer Alexander have been dating for several years. He said that he has always been loyal and faithful to her. He admitted having numerous tattoos on his body and even exhibited his back and chest for the jury to see. He testified that all of his tattoos pre-dated Hurricane Katrina, and that he has not gotten any more since that time. He explained that he was able to get tattoos before he turned eighteen because he was responsible for himself, even though he lived with his father. The defendant affirmed his cousin’s testimony that he and other family members always drove to Washington, D.C. to be with his mother for Christmas, and that the same was true for Christmas 2006. He and his family would routinely return to New Orleans just before New Year’s Day.

The defendant said that in the fall of 2006, he met the victim’s mother at a bus stop. He was in his car at the traffic light when the victim’s mother approached him and asked him to drive her to Winn Dixie to pick up a birthday cake. When she offered him $20.00 for gas, he agreed to her request because he wanted to help her. The woman did not look like a homeless or penniless drug addict. After she exited the store with the cake, he drove her to her house on Crowder Blvd. There he met the victim, who he could see was underage and much too interested in him. He gave the victim’s mother his telephone number as he left the house, and that is probably how the victim knew to call him on his cell phone. He categorically denied having sex with the victim at any time. The victim probably recognized him and his cousin, Louis Scott, from Livingston School, which she and his cousin attended. On many occasions, the defendant would drive his cousin to and from school. He had no idea why the victim would make up the stories of having sex with him on various occasions and places. He would never |8have sex with an underage girl, and he denied being known by the name “Romeo Johnson.” He said “Toot” is his nickname.

He remembered the day L.P. drove to his house on America Street and accused him of having raped the victim. L.P. was angry, screaming and yelling, threatening to turn him into the police. He assured L.P. that he had never been with the victim, and he could not understand why she would accuse him of a crime. In spite of L. P.’s threats to turn him into the police, he never left town to avoid prosecution. Even after the police detained and questioned him at Winn Dixie, and subsequently released him, he never feared being in trouble because he knew L. P.’s accusations were false.

ERRORS PATENT

A review for errors patent on the face of the record reveals one. The record does not indicate that the trial court ruled on the defendant’s Motion to Reconsider Sentence; however, there is no error because the defendant filed the motion more than thirty days after sentencing in derogation of C.CrJP. art. 881.1.

ASSIGNMENT OF ERROR NUMBER 1

The defendant’s first assignment of error argues that his conviction on count two is duplicitous of his acquittal on count one. Therefore, his conviction on count two violates the constitutional prohibition against double jeopardy.

| aThis assignment is without merit because the defendant herein was not subjected to double jeopardy.

The bill of information in this case charged the defendant with three counts of sexual battery upon the victim. Counts one and two of the bill of information both charged the defendant with committing the crime within the date range of November 1, 2006, through November 30, 2006. As such, the defendant contends, his acquittal on count 1 renders him ineligible for prosecution on count two because of double jeopardy.

Double jeopardy provisions protect an accused not only from a second prosecution for the same offense, but also multiple punishments for the same criminal act. U.S. Const. amend. V; La. Const. art. 1, § 15; La. C. Cr. P. art. 591; State v. Knowles, 392 So.2d 651 (La.1980).

The two tests used by Louisiana courts when examining double jeopardy claims are the “distinct fact” of the Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) test and the “same evidence test.” State v. Steele, 387 So.2d 1175 (La.1980). The Blockburger test determines whether each crime requires proof of an additional fact which the other does not. If multiple charges are double jeopardy under Blockburger, then the inquiry need go no further, since the constitutional prohibition against double jeopardy will have been abridged.

However, if there is not a finding of double jeopardy under the Blockburger test, then the court must look to Louisiana’s “same evidence” test to see if the state’s greater protection is implicated. The Louisiana definition of double jeopardy test is contained in La. C. Cr. P. art. 596, which states:

Double jeopardy exists in a second trial only when the charge in that trial is:
1 in(l) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.

The “same evidence” test is articulated as: if all the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial. State v. Steele, supra. The “same evidence” test is broader in concept than Blockburger, the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct. State v. Steele, supra.

In this case, the defendant was charged with one crime — sexual battery — but three counts of that crime, i.e. three distinct and separate events. Counts one and two are alleged to have been committed during the time frame of November 1, 2006, through November 30, 2006, even though the date range is not essential to the crimes charged and thus was not necessary. See La.C.Cr.P. 468. The victim testified that one of the November sexual encounters with the defendant occurred in the victim’s bedroom at her aunt’s house. The second episode, occurring |nsometime later in the month, began in the victim’s bedroom but concluded in a hotel room.

When different acts violate the same statute, the test of whether the offender has committed one or several offenses simply “ ‘is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. * * * If the latter, there can be but one penalty.’ ” Blockburger, 284 U.S. at 302, 52 S.Ct. at 181 (quoting Wharton’s Criminal Law (11th Ed.) § 34, n. 3) (citing by example prosecution on several counts of willfully tearing mail bags with intent to rob “... the offense as to each separate bag was complete when the bag was cut, irrespective of any attack upon, or mutilation of, any other bag.”) (internal quotation marks and citation omitted). State v. Murray, 2000-1258 (La.9/18/01), 799 So.2d 453.

Neither Blockburger nor the “same evidence” rule supports the defendant’s assertion of double jeopardy. The defendant was charged with committing the crime of sexual battery on three distinct occasions, each punishable separately. Mr. Monroe was never placed in double jeopardy. This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 2

In a second assignment of error, the defendant argues that the evidence is insufficient to support his conviction. He maintains that the victim made up her entire story as part of an elaborate fantasy-

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, in viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have lis-found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132. A reviewing court must consider the record as a whole, as would any rational trier of fact. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. State v. Mussall, 523 So.2d 1305 (La.1988). The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, supra. A reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So.2d 1319 (La.1992).

In order for the defendant’s convictions to be upheld, the record must establish that the State proved beyond a reasonable doubt all the essential elements of sexual battery, which La. R.S. 14:43.1 defines as:

A .... the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.
B. Lack of knowledge of the victim’s age shall not be a defense. However, where the victim is under seventeen, normal medical treatment or normal sanitary care of an infant shall not be construed as an offense under the provisions of this Section.

113In this case, the victim testified that she had consensual sexual intercourse with the defendant on three occasions in 2006, when she was only thirteen years old. The State introduced a copy of the defendant’s birth certificate, which proved that he was more than three years older than the victim at the time of the offenses. Moreover, the fact that the victim and the defendant were not married was proven by circumstantial evidence. Therefore, the testimony at trial was sufficient to prove that the defendant intentionally engaged in acts wherein his genitals touched the thirteen year old, non-spouse victim. This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 3

In his final assignment, the defendant complains that his ten year sentence is excessive.

There was no objection when sentence was imposed, and counsel untimely filed the Motion to Reconsider of Sentence. Accordingly, we find that this assignment was not preserved for appeal. However, for the sake of judicial economy and in the interest of justice we have considered it and find it, likewise, to be without merit.

In State v. Smith, 2001-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4, the Court set forth the standard for evaluating a claim of excessive sentence:

Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to ••• excessive ••• punishment.” Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.1980). A trial judge has broad discretion when 114imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; cf. State v. Phillips, 02-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906.

An appellate court reviewing a claim of excessive sentence must determine whether the trial court adequately complied with the statutory guidelines in La.C.Cr.P. art. 894.1, as well as whether the facts of the case warrant the sentence imposed. State v. Landry, 2003-1617 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235; State v. Trepagnier, 97-2427 (La.App. 4 Cir. 9/15/99), 744 So.2d 181. However, as noted in State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813:

The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Landos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D).

If the reviewing court finds adequate compliance with La.C.Cr.P. art. 894.1, it must then determine whether the sentence the trial court imposed is too severe in light of the particular defendant as well as the circumstances of the case, “keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” State v. Landry 2003-1671 at p. 8, 871 So.2d at 1239. See also State v. Bonicard, 98-0665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184.

The defendant was sentenced as a second felony offender and as such faced a sentencing range of five to twenty years. The trial court imposed a ten year | ^sentence. In sentencing the defendant, the trial judge noted that he was an adult taking advantage of an impressionable thirteen year old child. The judge further noted that the defendant “had a girlfriend at home, a very beautiful self possessed, self-employed person living with [him]” and that there was no excuse for his behavior. Moreover, the judge described the victim as “a lost soul”, who the defendant “picked up and abused.”

This circuit and others have upheld ten year sentences for sexual abuse. See State v. Burt, 2002-0258 (La.App. 4 Cir. 10/9/02), 828 So.2d 717 (ten year sentence for first time offender); State v. Badeaux, 01-406 (La.App. 5 Cir. 9/25/01), 798 So.2d 234 (ten year sentence for sexual battery even though the defendant had no prior felony convictions); State v. Neal, 535 So.2d 757 (La.App. 2 Cir.1988); State v. Touchet, 2006-0281 (La.App. 3 Cir. 5/31/06), 931 So.2d 1264.

Based upon the facts of this case, the trial court did not impose an excessive sentence. This assignment has no merit.

CONCLUSION

For these reasons we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . In order to protect the victim's identity, she and her family will be referred to by their initials.

      . The record does not contain a transcribed copy of the video/audio taped recording of the interview.

      . The defendant is not the father of the victim's child.

      . La.C.Cr.P. art. 881.1 provides in pertinent part:
      Motion to reconsider sentence
      A. (1) In felony cases, within thirty days following tire imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.

      . La.C.Cr.P. art. 468 provides:
      Date and time
      The date or time of the commission of the offense need not be alleged in the indictment, unless the date or time is essential to the offense.
      If the date or time is not essential to the offense, an indictment shall not be held insufficient if it does not state the proper date or time, or if it states the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day.
      All allegations of the indictment and bill of particulars shall be considered as referring to the same date or time, unless otherwise stated.


author: PATRICIA RIVET MURRAY, Judge. TOBIAS, J.,

text:
    Licia DUFFY, Wife of/and Terrence Duffy v. PENDLETON MEMORIAL METHODIST HOSPITAL and Strato Medical Corporation, d/b/a Pfizer Hospital Products Group.
    No. 2010-CA-0660.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 8, 2010.

      Jack H. Tobias, New Orleans, LA, for Plaintiffs/Appellants.
    Dwight C. Paulsen III, Natalie J. Par-tía, Bradley Murchison Kelly & Shea, LLC, New Orleans, LA, for Defendant/Ap-pellee Pendleton Memorial Methodist Hospital.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR.).
   PATRICIA RIVET MURRAY, Judge.

| plaintiffs, Licia and Terry Duffy, appeal the trial court’s judgment dismissing their claims against one defendant, Pendle-ton Memorial Hospital [“PMH”], as a sanction for the plaintiffs’ failure to comply with court-ordered discovery. For the reasons that follow, we reverse.

FACTS AND PROCEEDINGS BELOW

The plaintiffs allege that Licia Duffy appeared at PMH on February 28, 1996, for the implantation of a venous access device, also known as a Life Port, at the recommendation of her oncologist, Dr. Leonard C. Thomas. Although Strato Medical Corporation [“Strato”] manufactured the Life Port, the plaintiffs claim that PMH was a non-manufacturer seller of the device. Dr. James E. Brown, a general surgeon, performed the necessary surgery for the implantation of the Life Port.

Licia Duffy began to experience pain in October 1996, and was monitored by Dr. Thomas. When the pain worsened, Dr. Thomas referred Ms. Duffy back to the surgeon, Dr. Brown. Dr. Brown determined that the catheter to the Life Port had fractured and that a fragment of the catheter had been retained in Ms. Duffy’s | gpulmonary artery. Ms. Duffy then underwent further surgical procedures to have the Life Port and the fragment removed. Plaintiffs allege that Ms. Duffy-sustained permanent cardiac damage as a result of the fracture of the catheter.

On February 6, 1998, the plaintiffs filed a Complaint of Medical Malpractice with the Louisiana Patient’s Compensation Fund against PMH, Dr. Thomas, and Dr. Brown. On that same day, the plaintiffs filed a petition in Civil District Court for the Parish of Orleans against Strato and PMH. The medical review panel issued an opinion on March 16,1999, finding that the standard of care owed to Ms. Duffy was not breached by PMH, Dr. Brown, or Dr. Thomas. Thereafter, the plaintiffs amended their district court petition to add Dr. Brown and Dr. Thomas as defendants.

During the course of the litigation, Stra-to settled the matter and was dismissed from the lawsuit.

On April 22, 2004, the plaintiffs sought to move the litigation forward by filing a motion to establish cut-off dates. Pursuant to that motion, a trial date was set but was later continued on the plaintiffs’ motion, with the consent of the defendants, as discovery was not complete. The motion to continue contained a request for the court to set a status conference to select a new trial date. At the status conference, a new trial date of November 28, 2005, was selected. Due to Hurricane Katrina, Dr. Brown and Dr. Thomas filed a motion to continue the November 28, 2005 trial date with the consent of the plaintiffs. Thereafter, the |splaintiffs filed another motion to establish cut-off dates and a trial date. On June 4, 2008, the court set a trial date of April 6, 2009. The parties resumed discovery.

On December 30, 2008, PMH issued requests for admissions and first supplemental interrogatories and requests for production of documents to the plaintiffs. On January 29, 2009, PMH filed a motion to compel responses to this discovery, which motion was served on counsel for the plaintiffs. Thereafter, through counsel, the plaintiffs responded to the discovery. However, the plaintiffs themselves did not sign the discovery responses; only the plaintiffs’ counsel signed.

Believing the responses to the discovery were deficient, counsel for PMH sent the plaintiffs’ counsel a six-page letter, dated March 19, 2009, detailing the problems PMH had with the responses. The letter also stated that the required Rule 10.1 conference had been scheduled to discuss the deficient responses and that PMH intended to ask the court to reset its original motion to compel if the plaintiffs failed to cure the defects in the discovery responses. When the plaintiffs failed to respond, the April 6, 2009 trial date was continued, and PMH requested that the court reset its motion to compel discovery.

On June 19, 2009, the court heard the motion. At the hearing, the plaintiffs’ counsel indicated that his answers to the discovery request had not changed; nevertheless, he stated, “I will respond to his six-page letter and I will endeavor to obtain the name of the manufacturer’s representative who will testify.” The trial court then granted the motion to compel, ordering the plaintiffs’ counsel to submit |4the indicated responses within forty-five days. The court also rendered a written judgment ordering that the plaintiffs submit their responses to PMH by August 3, 2009.

On August 10, 2009, PMH issued a letter to plaintiffs’ counsel noting that the due date for the responses had passed without PMH’s having received them. The letter also stated that PMH would file a motion to dismiss if it had not received the responses by August 12, 2009.

When PMH’s counsel again did not receive anything from the plaintiffs, PMH filed a motion to dismiss the plaintiffs’ claims against it on account of the plaintiffs’ failure to comply with court-ordered discovery. The trial court heard the matter on October 2, 2009, and granted the motion to dismiss. On October 8, 2009, the court rendered a written judgment to that effect. After the trial court denied the plaintiffs’ motion for rehearing, the plaintiffs timely filed a motion for appeal.

ISSUES

The sole issue on appeal is whether the trial court abused its discretion by granting the motion to dismiss the plaintiffs’ claims against PMH.

APPLICABLE LAW

Trial courts are granted wide discretion in determining appropriate sanctions for a party’s failure to comply with discovery orders. At Your Service Enterprises, Inc. v. Swope, 2007-1620, p. 4 (La.App. 4 Cir. 1/14/09), 4 So.3d 138, 141, citing 5Magri v. Westinghouse Elec., Inc., 590 So.2d 830, 831 (La.App. 4th Cir.1991). Appellate courts will not reverse a trial court’s decision in that regard absent a clear showing of an abuse of that discretion. Id.

The law permits the imposition of sanctions for a party’s failure to comply with a court order compelling discovery. See La. C.C.P. art. 1471. Moreover, there is a distinction between the sanctions available for the failure to comply with discovery and those available for disobedience of court-ordered discovery. Swope, p. 7, 4 So.3d at 143 (quoting Medical Review Panel Proceedings of Peter v. Touro Infirmary, 2005-0317, p. 4 (La.App. 4 Cir. 7/6/05), 913 So.2d 131, 134). La. C.C.P. art. 1471(A) provides, in pertinent part:

If a party ... fails to obey an order to provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

Although the article provides that dismissal is a remedy available to courts for a party’s failure to comply with court-ordered discovery, the Louisiana Supreme Court has acknowledged that dismissal is a draconian penalty and is thus reserved for extreme circumstances and only the most culpable conduct. Horton v. McCary, 93-2315, p. 10 (La.4/11/94), 635 So.2d 199, 203. In Horton, the Supreme Court adopted from the federal district courts four factors to be considered when evaluating whether a failure to comply with discovery mandates | (¡dismissal. Those factors are: (1) whether the violation was willful or resulted from inability to comply; (2) whether less drastic sanctions would be effective; (3) whether the violation prejudiced the opposing party’s trial preparation; and (4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney. Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199, 203; see also Hutchinson v. Westport Ins. Corp., 2004-1592, p. 3 (La.2004), 886 So.2d 438, 440. Recently, this court stated:

Dismissal is generally appropriate when the client, as well as the attorney, is at fault, and the record must evidence that the failure was due to willfulness, bad faith, or fault of the noncompliant party.... Furthermore, this Court has held that the ultimate sanction of dismissal should be imposed only when the non-compliant party is clearly aware that his failure to comply will result in dismissal. See Medical Review Panel Proceedings of Peter v. Touro Infirmary, 2005-0317, p. 5 ,(La.App. 4 Cir. 7/6/05), 913 So.2d 131, 134; LeBlanc v. GMAC Financial Services, 97-0131 (La.App. 4 Cir. 5/28/97), 695 So.2d 1106, 1108.
Cantuba v. American Bureau of Shipping, 2008-0497, p. 7 (La.App. 4 Cir. 6/3/09), 31 So.3d at 397, 413, on rehearing (1/13/10).

In Cantuba, the plaintiffs were the relatives and personal representatives of Filipino and Greek seamen who had been aboard a vessel that had disappeared while in international waters. The plaintiffs sued multiple defendants, including the shipbuilder, Mitsubishi Heavy Industries [“MHI”] in Orleans Parish Civil District Court. The Filipino plaintiffs were ordered to appear in New Orleans in July of 2003 for depositions scheduled by counsel for MHI. However, they were unable to secure visas due to the more stringent restrictions on travel following September 11, 2001. Counsel for the Filipino plaintiffs suggested taking the | ydepositions by video teleconferencing, but this option was rejected by MHI. MHI then filed a motion to dismiss the claims of the Filipino plaintiffs, but the trial court on February 4, 2005, instead ordered the Filipino plaintiffs to re-apply for visas to travel to the United States. Id., p. 4, 31 So.3d at 411. Thereafter, MHI filed supplemental interrogatories to determine whether the applications for visas had been re-filed. The answers failed to show that any applications for visas had been re-filed. MHI filed a second motion to dismiss the Filipino plaintiffs’ claims in June of 2007, which the trial court granted. Id., p. 5, 31 So.3d at 411.

Counsel for the Filipino plaintiffs moved for a new trial on the grounds that problems due to Hurricane Katrina in Louisiana and Typhoon Durian in the Philippines had made communication with the Filipino plaintiffs difficult. The motion also indicated that the applications for visas had been re-filed on July 14, 2007. The trial court denied the motion for new trial, and the Filipino plaintiffs appealed. Id., pp. 5-6, 31 So.3d at 412.

After initially affirming the trial court’s dismissal of the claims, on rehearing this court considered the four Horton factors and determined that the trial court had abused its discretion. Id., p. 8, 31 So.3d at 413. In so concluding, this court noted that the record was devoid of any evidence that the Filipino plaintiffs had ignored the trial court’s orders willfully or in bad faith; rather, we indicated that forces beyond the plaintiffs’ control had created obstacles to their obtaining of the visas. Additionally, we noted that there was no evidence that the Filipino plaintiffs had been made aware that dismissal could result from their failure to comply with the |scourt order. Id. Therefore, this court reversed the trial court’s dismissal of the claims of the Filipino plaintiffs. Id., pp. 8-9, 31 So.3d at 413-414.

Similarly, in Raspanti v. Litchfield, 2005-1512, 2006-0331 (La.App. 4 Cir. 11/21/06), 946 So.2d 234, this court held that the trial court’s dismissal of the plaintiffs action on account of the plaintiffs failure to comply with a discovery order was an abuse of discretion. In that case, the plaintiffs counsel had received a request for discovery, but had not forwarded the information to plaintiff, believing the plaintiff had also been served. Defendant filed a motion to compel, which the trial court granted. 2005-1512, pp. 3-4, 946 So.2d at 244. However, the order compelling discovery did not provide that noncompliance would result in dismissal.

After reviewing the record and applying the four Horton factors, this court concluded that there was no evidence showing the plaintiffs actions were willful, in bad faith, or through his own fault. Id., p. 16, 946 So.2d at 244. We also noted that the record was devoid of any evidence indicating that the plaintiff had been aware that his failure to comply would result in dismissal of his case. Id., p. 15, 946 So.2d at 244.

Just as in Cantuba and Raspanti, the plaintiffs in the instant case contend that the trial court abused its discretion by dismissing them action against PMH even though the failure to respond to discovery was not their own fault, but the fault of their counsel. In addition, the plaintiffs argue the dismissal was improper 19because they were never made aware that dismissal would result from noncompliance with the court’s order regarding discovery. Conversely, PMH relies upon this court’s decision in At Your Service Enterprises, Inc., v. Swope, supra. In Swope, the plaintiff was a contractor that filed suit seeking payment for renovations made to Mr. Swope’s home. Mr. Swope filed a reconventional demand. 2007-1620, p. 1, 4 So.3d at 139. The plaintiff propounded discovery, which went unanswered. The plaintiff filed a motion to compel, which was heard approximately five weeks prior to the scheduled trial date. After hearing the motion, the trial court ordered counsel for Mr. Swope to provide discovery responses within fourteen days and advised the plaintiffs counsel that he could pursue sanctions if the responses were not timely received. The court and counsel for both parties signed a consent judgment to that effect in open court. However, no responses were tendered, and neither Mr. Swope nor his counsel appeared at the pretrial conference or the trial. At trial, the trial court allowed the plaintiff to put on evidence, then granted judgment in favor of the plaintiff, and dismissed Mr. Swope’s recon-ventional demand. Mr. Swope filed a motion for new trial, but again neither he nor his counsel appeared at the hearing on the motion, which was denied. Id., p. 2, 4 So.3d at 140.

On appeal, this court affirmed, noting that Mr. Swope had been granted multiple opportunities to be heard but had repeatedly failed to appear. Id., pp. 8-9, 4 So.3d at 144. In addition, we found that Mr. Swope’s violations were willful; that less drastic sanctions would not be effective considering Mr. Swope’s repeated | ^failure to appear or to comply with court-ordered discovery; and that Mr. Swope’s actions unequivocally had prejudiced plaintiffs trial preparation. Id., p. 12, 4 So.3d at 146.

In the instant matter, PMH argues that like Mr. Swope, the Duffys were provided with not just one, but with three opportunities to be heard. However, we find the instant case to be clearly distinguishable from Swope. In Swope, this court noted that, although the record failed to reveal whether the noncompliance was attributable to Mr. Swope himself or to his counsel, the case presented “an unusual set of facts” because Mr. Swope not only had failed to answer court-ordered discovery, but also had failed to appear for trial. Id., p. 9, 4 So.3d at 144. Therefore, this court relied partially on La. C.C.P. art. 1672, which provides that a party’s failure to appear on the date of trial shall result in the dismissal of his claims. Significantly, this court noted that “a different result might be reached had Appellant [Mr. Swope] merely failed to answer the court-ordered discovery....” Id., p. 12, 4 So.3d at 146.

In the instant case, unlike in Swope, the trial court never informed counsel for the plaintiffs that sanctions would result from noncompliance. Moreover, as in Raspanti and Cantuba, there is no evidence in this record showing that either the Duffys or their counsel were notified by the coui't that their claims against PMH would be dismissed in the event of their noncompliance with the court order. | 1¶ Additionally, we find that the application of the Horton factors to this case warrants a reversal of the trial court’s dismissal of the plaintiffs’ claims against PMH. Regarding the first factor, we note that the record is devoid of any evidence indicating the plaintiffs’ counsel notified the Duffys of the issuance of the requests for admissions, first supplemental interrogatories, or requests for production of documents. The responses were signed by counsel for the Duffys, not the Duffys themselves. Similarly, the record does not show that the Duffys were aware that the motion to compel was filed and/or granted. There is no indication that they were personally served or appeared at the hearing on the motion to compel. We therefore find no evidence that the plaintiffs were willful or acted in bad faith by failing to respond to the court-ordered discovery.

Regarding the second Horton factor, the record demonstrates that less drastic sanctions would be effective. At the hearing on the plaintiffs’ motion for rehearing of the dismissal, the plaintiffs’ counsel indicated that he had not responded to the discovery as he had been ordered to do because he did not have an expert regarding PMH’s duty to supply Ms. Duffy with the instructive pamphlet included with Life Port. As noted by the trial court, that oral recitation did not relieve plaintiffs’ counsel of the obligation to respond in writing to PMH’s discovery request. However, citing this court’s opinion in Raspanti, the plaintiffs’ counsel stated that any sanction imposed should fall upon him rather than upon the Duffys. We | ^therefore find that the less drastic sanctions provided for by La. C.C.P. art. 1471(C) would be effective if imposed upon the plaintiffs’ counsel in this case.

With regard to the third Horton factor, PMH argues that its trial preparation has been prejudiced because the plaintiffs’ counsel has asserted a whole new theory of the case. We reject this argument as the record fails to reveal that it was a basis for the trial court’s decision to dismiss. We do note, however, that the trial court seemed to place heavy emphasis on the fact that this suit was filed in 1998. Nevertheless, just as in the Cantuba case, which had a similar duration, not all of the delays were the fault of the Duffys. PMH’s codefendant, Strato, had difficulty locating evidence and documents. The current counsel for the Duffys became more involved in the case after the illness of his co-counsel. Hurricane Katrina delayed an earlier trial setting. Therefore, to the extent that PMH may have been prejudiced, we find that such prejudice did not warrant dismissal of the plaintiffs’ claims considering the presence of other delay-causing factors not attributable to the Duffys.

Finally, with regard to the fourth Horton factor, there is no evidence that the Duffys participated in the violation of the court order or even were aware of the court order. The fault lies with their counsel. As such, we conclude that the draconian penalty of dismissal was not warranted in this case.

| ^CONCLUSION

Accordingly, we find the trial court abused its discretion by dismissing the plaintiffs’ claims against PMH on account of the failure to comply with court-ordered discovery. The judgment of the trial court is therefore reversed, and the matter is remanded to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

TOBIAS, J.,

Concurs and Assigns Reasons.

Ill respectfully concur.

I write separately to emphasize that under our jurisprudence an order of dismissal or another draconian sanction for failure to comply with court-ordered discovery is only allowed when the client, as distinguished from the client’s lawyer alone, has been notified in advance that the client’s case will be dismissed or other draconian sanction imposed if the discovery order is not complied with. See Horton v. McCary, 93-2315, p. 10 (La.4/11/94), 635 So.2d 199, 203. This can present a party’s counsel seeking the discovery in a difficult position because he/she may not have a way of notifying his/her opponent’s client directly without violating the Rules of Professional Conduct for communicating with his/her opponent’s client directly. The only practical way around the conundrum is for the party seeking compliance with a discovery order to obtain an order of court, preferably written, directing that service of the order requiring discovery be served upon the party from whom the discovery is sought. See Raspanti v. Litchfield, 05-1512, 06-033, p. 1 (La.App. 4 Cir.11/21/06), 946 So.2d 234, 245 (Tobias J., concurring).

      . Although the plaintiffs captioned their motion as one for rehearing, in substance it was a motion for new trial. Procedurally, Louisiana law does not provide for a "rehearing” by the trial court of its own final judgment.

      . However, finding that sanctions were warranted against counsel for the Filipino plaintiffs, this court remanded the matter to the trial court for the imposition of sanctions against counsel pursuant to La. C.C.P. art. 1473, which addresses the failure to attend depositions. Id., pp. 9-10, 31 So.3d at 414-415.

      . La. C.C.P. art. 1672 A(l) states “A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case, the court shall determine whether the judgment of dismissal shall be with or without prejudice.”

      . The transcript reflects that counsel indicated he did not believe he needed such an expert to prove his case, but the trial court disagreed.

      . La C.C.P. art. 1471(C) provides, in pertinent part: "In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney fees, caused by the failure.... ”