author: DREW, J. STEWART, J.,

text:
    STATE of Louisiana, Appellee v. Leon WILLIAMS, Appellant.
    No. 46,674-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.

      Louisiana Appellate Project, by Douglas Lee Harville, Leon Williams, for Appellant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, John W. Montgomery, Marcus Ray Patillo, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and DREW, JJ.
   DREW, J.

| ] Leon Williams was convicted at jury trial for possession of cocaine. He was sentenced to five years at hard labor, consecutive with any other sentence. He appeals his conviction and sentence. We affirm.

FACTS

On December 12, 2006, Lucille Ferguson, working as a confidential informant (“Cl”) for Lt. Dan Weaver of the Minden Police Department, telephoned the defendant to arrange a $100 purchase of crack cocaine. The defendant met Ferguson in the parking lot of the Sheppard Heights Apartments. She entered the defendant’s car, and he showed her his drugs. She then called Weaver to let him know that The defendant was in possession of cocaine.

Lt. Weaver testified that:

• he had set up surveillance at the apartment complex;
• the defendant turned onto the property without giving a signal;
• he saw several people approach the defendant’s vehicle;
• the Cl then approached and entered the defendant’s vehicle;
• the Cl left the car and called him to tell him about seeing the cocaine;
• the defendant apparently saw Weaver and drove off at a fast speed;
• he activated the lights on his unmarked vehicle;
12* the defendant exited his car and ran to the apartment building;
• he was in close pursuit, “hollering” for the defendant to stop;
• he arrested the defendant in the backyard of the apartments;
• the defendant had left his car door open; and
• he saw a substance on the door handle of defendant’s car which field-tested as cocaine.

DISCUSSION

Prosecutor’s Closing Argument

The defendant contends that during closing arguments, the prosecutor improperly vouched for the credibility of two state witnesses, and further vouched that he was guilty based on the prosecutor’s personal knowledge.

La. C. Cr. P. art. 774 provides:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.

The argument shall not appeal to prejudice.

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841.

The contemporaneous objection rule applies to claims that the prosecutor made an improper closing argument. State v. Taylor, 98-2201 (La.2/28/96), 669 So.2d 864, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996).

| ^Commenting on the credibility of a witnesses can be proper and within the scope of closing argument. See State v. Lawrence, 40,278 (La.App.2d Cir.3/15/06), 925 So.2d 727.

Although references to personal experiences go beyond the proper scope of a closing argument, before a case will be reversed on this basis, it must be shown that the remarks influenced the jury and contributed to the verdict. State v. Car-than, 377 So.2d 308 (La.1979); State v. Minnifield, 475 So.2d 108 (La.App. 2d Cir.1985).

Williams acknowledges the failure to object to the prosecutor’s closing arguments. Accordingly, this issue is not properly preserved for appellate review. Assuming arguendo that Williams had preserved this claim for review, our analysis still finds that this issue still lacks merit.

Williams objects to five statements of the prosecutor.

[/The prosecutor did make improper and personal references to his relationships with Lt. Weaver, and with the family of the Cl. Even had objections been made to these comments, thereby affording the trial court an opportunity to remedy the situation, these comments are not so egregious that we can find any undue influence on the outcome of the trial.

Excessive Sentence

Williams argues that the maximum sentence violates his constitutional rights and is unnecessarily harsh, considering the small amount of drugs involved.

The state responds that the sentence imposed is not excessive considering:

• the circumstances of the case;
• defendant’s prior criminal history;
• the trial court’s close review of the pre-sentence investigation; and
• the trial court’s scrupulous compliance with La. C. Cr. P. art. 894.1.

|5Our law on the review of sentences is well settled.

At sentencing, the trial court reviewed the presentence investigation, providing sound reasons to justify this maximum sentence, including:

• defendant’s social history, family relationships, his previous employment and his lengthy criminal history, including convictions for burglary of an inhabited dwelling and distribution of cocaine; and
• defendant’s failure to abide by his previous probation and parole, resulting in revocation in both cases.

UThe record reveals that the trial court thoroughly reviewed and considered the appropriate factors in fashioning this sentence for this individual. The maximum sentence in this case is not an abuse of the trial court’s discretion. Defendant’s previous opportunities for rehabilitation failed miserably. This sentence is not grossly out of proportion to the seriousness of the offense, nor is it a purposeless and needless infliction of pain and suffering. This sentence does not shock the conscience.

Motion to Suppress

Williams argues that the trial court erred in denying his motion to suppress because the evidence seized arose from an illegal stop and an illegal search. He also argues that the officer who attempted to stop him did not give him an audible or visual signal to stop. The state did not respond.

La. C. Cr. P. art. 213 allows warrantless arrests.

La. C. Cr. P. art. 703(D) requires the state to bear the burden of proof when a defendant files a motion to suppress war-rantless seizures.

|7Our law is well settled relative to reviewing motions to suppress.

In support of suppression, the defendant argues that Weaver:

• lacked a reason to arrest him pursuant to La. C. Cr. P. art. 213;
• did not stop him until nine minutes after the alleged infraction; and
• gave no audible or visual signal to stop, as required by La. R.S. 14:108.1, making his arrest illegal.

lsWe find that the stop was justified by Weaver observing a traffic infraction, which provided the requisite reasonable suspicion of criminal activity required for a valid traffic stop. Additionally, Weaver was conducting surveillance at the time of the stop, immediately after getting extremely current information from a Cl that the defendant was possessing drugs in his car. Any premature attempt by Weaver to make a traffic stop and issue a misdemeanor citation could have jeopardized his felony drug investigation. The officer’s detention of the defendant was lawful, being predicated upon reasonable suspicion of the possession of cocaine and reasonable suspicion of a traffic infraction.

Weaver testified that he activated the lights on his unmarked vehicle. The defendant’s attempt to escape reveals his certain knowledge of the officer’s pursuit. The stop and the subsequent arrest were entirely lawful.

DECREE

The conviction and sentence of the defendant are AFFIRMED.

STEWART, J., concurs with written reasons.

STEWART, J.,

concurs.

Ill concur that this case should be affirmed because the failure to contemporaneously object to the prosecutor’s closing argument precludes our review of that issue. However, I disagree with the advisory and unnecessary conclusion that the issue and remarks were not so egregious that they unduly influenced the outcome of the trial.

I believe that the defendant has the right to raise this issue in the context of a post conviction relief claim for ineffective assistance of counsel. The totality of the circumstances could be reviewed at that time to determine whether the prejudicial effects of the improper comments had undue influence in a case that hinges on the credibility of a confidential informant with very little physical evidence.

I also add that the state’s brief improperly referenced evidence that was not introduced in this case which makes this case seem stronger than it actually was.

      . Coincidentally, this appeal involves the same defendant who was prosecuted by the same assistant district attorney, and defended by the same attorney, in a case involving the same type of drug, with two of the same issues, as a previous opinion rendered by this court [State v. Williams, 46,301 (La.App.2d Cir.5/18/11), 69 So.3d 556], with that opinion and this one being written by the same appellate judge, but with a different panel.

      . Ferguson, who had worked as a Cl on at least 20 prior occasions, testified that she reported the defendant because she "was tired of seeing it on the streets.”

      . Subsequent laboratory testing confirmed the analysis.

      . The defendant admits the lack of a contemporaneous objection at trial, but he still argues that the statements of the prosecutor violated his constitutional right to due process.

      . (1) We said that we were going to call Lucille Ferguson. She was our confidential informant. I’ve explained to you about her. She’s been steady consistent since the first day I ever talked to her that she saw the cocaine in his hand, she got out and called Lieutenant Weaver. Lieutenant Weaver approaches and finds cocaine in the door of the car. As far as why she did this, I knew her uncle, Jim Lee Stanfield, and they were a family that had a conscience about their community. And she said she was just tired of seeing this go on. She was tired of being a, being a victim of illegal narcotics and she was tired of seeing it going on in her community. So that’s why she helped.
      (2) And I really want you to know one thing, I do care what happens in this case, but I care more than that about what happens to Dan Weaver. He chases and fights out there in that street and I know about it because he’s constantly in contact with me. He didn’t come in here to hurt anybody. He did — he’s a professional police officer who keeps our streets and communities — if you’re going to do drugs, you better stay out of Minden, Louisiana. You're going to get caught here. And Lieutenant Weaver in a professional, honest, good fashion chased a fleeing criminal, threw him down on the ground, and captured him, went back to the door that was left open when this defendant jumped out of the car and found crack cocaine in the holder of the door where he got out.
      (3) You know, we consulted, always consult with officers throughout the — an investigation. And when we become persuaded that we have enough to go to trial, we say stop, don’t focus on something else, don’t keep chasing this one right here, we’ve got enough to convict this man. And that’s what I told him to do. I said we have enough to convict, go focus on another defendant.
      (4) The police department works closely with our department and when they get their investigation to a point they hand it to us and we tell them go back and get some more information or that’s enough. So when this investigation was concluded, the officers checked in with us and we said, “You’ve got enough, you can stop.’’ So it’s my case, I concluded that we had enough evidence to present to you as a jury.
      (5) In cases like this, over and over and over again when a defendant comes before the bar of justice and he doesn’t have anything else to do he always attacks the policeman, he always attacks the witnesses and he always attacks the investigation to say it could have been done differently, it could have been done — I would have done it this way, I would have done it that way or the other. But I bet you that everybody sitting in this box right here has had enough life experiences to know that when you’re faced with a situation you face it right up and you do the very best you can with it at that time. I’ve never tried a lawsuit that when I looked back on it I say I wish I would have done this instead of that. So to be critical of what has been done, that’s the last resort of a defendant. They all always do it and most of you I remember said you didn’t watch any crime shows. My wife watches them all and so I learn a lot from her. But even they — I mean even there I would look at what they present in a scripted situation and say I'd have done that a little bit different. We do the very best that we can and in every case that I prosecute so far it’s been sufficient. Every case I prosecuted so far the defendant always comes in says the police don’t like me, they didn’t do it right.

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267. 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. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.
      Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La. 1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir. 1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La. App.2d Cir.4/2/97), 691 So.2d 864.
      The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 2003-3514 (La. 12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir. 1/26/05), 892 So.2d 710. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. 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). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

      . La. C. Cr. P. art. 213 Arrest by officer without warrant; when lawful
      A peace officer may, without a warrant, arrest a person when:
      (1) The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor, it must be made immediately or on close pursuit;
      (2) The person to be arrested has committed a felony, although not in the presence of the officer;
      (3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer; or
      (4) The peace officer has received positive and reliable information that another peace officer from this state holds an arrest warrant, or a peace officer of another state or the United States holds an arrest warrant for a felony offense.
      A peace officer in close pursuit of a person to be arrested, who is making an arrest pursuant to this Article may enter another jurisdiction in this state and make the arrest.

      . D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.

      . The state bears the burden of showing that probable cause and exigent circumstances justified a warrantless search and seizure. State v. Hemphill, 41,526 (La.App.2d Cir. 11/17/06), 942 So.2d 1263, writ denied, 2006-2976 (La.3/9/07), 949 So.2d 441.
      Great weight is placed upon the trial court’s ruling on a motion to suppress in regard to the finding of facts because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Crews, 28,153 (La.App.2d Cir.5/8/96), 674 So.2d 1082.
      This court reviews the district court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, while applying a de novo review to its findings of law. State v. Hemphill, supra; State v. Jones, 36,553 (La.App.2d Cir. 1/29/03), 840 So.2d 7, writ denied, 2003-0956 (La.10/3/03), 855 So.2d 309.
      In reviewing the correctness of the trial court's pretrial ruling on a motion to suppress, the appellate court may review the entire record. State v. Young, 39,546 (La.App.2d Cir.3/2/05), 895 So.2d 753.
      A trial court’s denial of a motion to suppress is afforded great weight and will not be set aside unless a preponderance of the evidence clearly favors suppression. State v. White, 39,681 (La.App.2d Cir.5/11/05), 903 So.2d 580.
      The right of every person to be secure in his person, house, papers, and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. O’Neal, 44,067 (La.App.2d Cir.4/8/09), 7 So.3d 182, writ denied, 2009-1243 (La.2/12/10), 27 So.3d 841.
      The purpose of limiting warrantless searches to certain recognized exceptions is to preserve the constitutional safeguards provided by a warrant, while accommodating the necessity of warrantless searches under special circumstances. State v. O'Neal, supra.

      When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. La. C. Cr. P. art. 703(D); State v. O’Neal, supra. The plain view doctrine is an exception to the warrant requirement. State v. O’Neal, supra.

      The plain view doctrine renders a warrant-less search reasonable: (1) if the police officer is lawfully in the place from which he views the object; (2) where the object's incriminating character is immediately apparent; and (3) the officer has a lawful right of access to the object. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. O’Neal, supra.

      . La. R.S. 14:108.1 refers to the crime of flight from an officer, an offense not charged in these proceedings. The use of lights, siren, and a marked police unit are among the elements required for proof of the crime of flight from an officer. This statute, however, is totally irrelevant to this appeal.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Fernando Peralta DIAZ, Appellant.
    No. 46,750-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.
    Spencer Hays, II, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, R. Randall Smith, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS, and PEATROSS, JJ.
   BROWN, Chief Judge.

| defendant, Fernando Peralta Diaz, pled guilty to possession of more than 28 grams of a Schedule II controlled dangerous substance, cocaine, a violation of La. R.S. 40:967(F)(l)(a). He was sentenced to 10 years at hard labor and fined $50,000.00. Asserting that this sentence is excessive, defendant now appeals. We affirm.

Discussion

The penalty for possession of cocaine in excess of 28 grams is set forth in La. R.S. 40:967(F)(l)(a), and it states:

Any person who knowingly or intentionally possesses twenty-eight grams or more, but less than two hundred grams, of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars.

On April B, 2010, defendant, Fernando Peralta Diaz, an illegal alien from Mexico, was stopped by Bossier City Police Officer Randy Adams after he was observed driving in a reckless manner. Officer Adams noticed that Diaz appeared to be under the influence of a substance other than alcohol. Officer Adams sealed the vehicle and called for a K-9 unit. The K-9 immediately alerted the officers to the center ashtray and glove box of Diaz’s vehicle, where a bag of cocaine, seven smaller baggies of cocaine, and several empty baggies were located. In all, the search of Diaz’s car revealed approximately 36 grams of cocaine. Diaz was arrested. An amended bill of information was filed charging Diaz with violating La. R.S. | g40:967(F)(l)(a), possession of a Schedule II controlled dangerous substance, cocaine, with the weight being in excess of 28 grams.

Diaz did not speak English and an attorney was appointed to represent him. An interpreter always appeared in court to translate for Diaz. On June 29, 2010, Diaz, through the interpreter, pled not guilty to the charge. On July 21, 2010, however, Diaz changed his plea to guilty of possession of cocaine of over 28 grams. At the guilty plea hearing, the trial judge specifically asked defendant, through his interpreter, if the sentencing range had been discussed with him, and he replied that it had. The trial judge also asked Diaz if he understood that if he pled guilty the trial judge would determine the appropriate sentence, and defendant again indicated that he understood. The trial judge accepted defendant’s guilty plea and ordered a pre-sentence investigation report.

At sentencing on October 27, 2010, the trial judge stated that he had “reviewed that pre-sentence investigation in accordance with the guidelines set forth in Louisiana Code of Criminal Procedure Article 894.1.” In particular, the PSI revealed that Diaz was 30 years old; he was born in Mexico, but had lived illegally in the United States for eleven years; he had been arrested in Dallas, Texas, on misdemeanor theft; he used marijuana, cocaine and drank alcohol; he had a third grade education; he was not married and had no children; and he would occasionally work framing houses or building fences. The trial judge also noted that the PSI showed that there was a federal detainer on defendant because he is an illegal alien.

|o,The trial judge sentenced defendant to a term of imprisonment of 10 years at hard labor, and imposed the minimum fine of $50,000, which sentence was to be served consecutively to any sentence defendant was currently serving.

On November 22, 2010, defendant filed a pro se motion to reconsider sentence; that same day, his newly retained attorney also filed a motion to reconsider sentence. Defendant’s pro se motion to reconsider argued that he did not understand that by entering a plea of guilty he would be sentenced to 10 years at hard labor as a first offender. He stated that he can afford an attorney of his own, wanted a hearing to argue the merits of his claim that he did not understand the proceeding before the court, and that the court’s 10-year sentence was excessive. In his motion to reconsider, Diaz’s attorney alleged that the sentence was excessive considering the facts of the offense, defendant’s age, and other mitigating factors that “were considered or should have been considered” by the trial court. Both motions to reconsider were denied.

Diaz asserts that he is a first-time felony offender and he was not involved in a crime of violence. He did not contemplate that his conduct would cause or threaten serious harm and he was not engaged in the distribution or attempted distribution of the cocaine. Considering these factors, Diaz believes imposition of the minimum sentence of five years at hard labor would be sufficient to punish him for this offense.

|/Die record reflects that the trial judge reviewed the PSI and took cognizance of the factors expressed in La. C. Cr. P. Art. 894.1 prior to his sentencing defendant. The articulation of a factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982).

The trial judge sentenced Diaz to a prison term much less than the maximum allowed. The trial judge noted defendant’s illegal status and his belief that “without a period of incarceration ... Mr. Diaz would likely reoffend and remain in the United States illegally.” A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, this court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158; State v. James, 42,976 (La.App.2d Cir.02/13/08), 975 So.2d 801.

Considering the facts, the trial court’s wide sentencing discretion and the potential sentencing range of five years to 30 years, a sentence of 10 years is not grossly disproportionate to the crime, nor a shock to the sense of justice. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980).

Conclusion

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

AFFIRMED.

      . We note that a significant amount of the cocaine seized was found to be individually packaged in small baggies, which is common when cocaine is packaged for resale.


author: LOLLEY, J. PER CURIAM

text:
    Otis BLANSON, Plaintiff-Appellant v. TOWN OF RICHWOOD, Defendant-Appellee.
    No. 46,755-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.
    Amended on Rehearing Jan. 23, 2012.

      McNew, King, Mills, Burch & Landry, Monroe, LA, by A. Carter Mills, IV, for Appellant.
    Banks Nolen, by Jay Nolen, Monroe, LA, for Appellee.
    Before WILLIAMS, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

110tis Blanson appeals the judgment of the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, wherein the trial court ordered the Town of Rich-wood (“Riehwood”) to pay Blanson for two days of work; the trial court did not impose the payment of a penalty upon Rich-wood for its failure to pay Blanson timely. For the following reasons we affirm the portion of the trial court’s judgment that awarded Blanson wages for two days of work, reverse the portion that denied the assessment of a penalty upon Riehwood, and further order that Riehwood pay for Blanson’s reasonable attorney fees for this appeal.

Facts

After moving to Monroe due to Hurricane Katrina, Otis Blanson, a retired Louisiana State Police Officer, was employed as a security officer at the University of Louisiana at Monroe (“ULM”). In January 2007, Blanson applied to work at the police department in nearby Riehwood after learning of the need for leadership within the department. Blanson met with the now-deceased Chief of Police, Cornelius Gillis, who then offered Blanson a position. The terms of this position are disputed by the parties to this appeal. Blanson claims he was offered the position of patrol sergeant at a pay rate of $9.50 per hour. Blanson accepted the position under these terms and gave notice to his current employer, ULM.

On January 24, 2007, Blanson reported to work for the Riehwood Police Department. After completing all employment forms and being administered an oath of office, Blanson began training. He worked for 12seven hours that day as well as another seven hours the subsequent day, January 25.

The following day, January 26, Blanson received a phone call from Chief Gillis. He stated that he had changed his mind about offering Blanson the position of patrol sergeant and he was going to change his position to that of patrol officer at a pay rate of $9.10 per hour. Because this was not the employment offer he had agreed upon, Blanson told Chief Gillis he “wasn’t going to do it.”

Blanson could not go back to work for ULM because his position there had already been filled. After about a year of searching, he accepted employment as a corporal at the Grambling Police Department. He later retired from this position when he reached the age of 65.

Blanson was never paid for the two days he worked for the Riehwood Police Department, so he retained an attorney and filed suit. In its answer, Riehwood denied Blanson had applied for a job, been hired, been sworn in, or worked two days. A bench trial was conducted on the matter and the trial court awarded Blanson $133.00 for unpaid wages for two days of work at the rate of $9.50 an hour. The trial court decided not to impose penalties upon Riehwood for its failure to pay Blan-son timely, stating in its reasons for judgment that Blanson “was never terminated, nor did he ever resign,” and, thus, finding that the penalty provision of La. R.S. 23:632 did not apply.

| RBlanson now appeals the trial court’s decision not to impose the penalty upon Richwood. Blanson also prays for the costs of this appeal, including attorney fees, plus interest.

Law and Discussion

On appeal, Blanson argues that the trial court incorrectly interpreted and then misapplied La. R.S. 23:631, governing the payment of an employee after discharge or resignation. Blanson argues that the phone call he received from Chief Gillis clearly communicated that Blanson’s services as patrol sergeant were no longer necessary and would no longer be accepted. This, Blanson argues, constitutes a discharge and the trial court erred in not assessing penalties accordingly. In response, Richwood asserts that a court is not required to award penalty wages unless the employer is found to have acted in bad faith. Because Richwood did not act in bad faith here, it claims, the trial court did not err in failing to impose penalties.

Louisiana R.S. 23:631 governs the payment of an employee after discharge or resignation, and states, in pertinent part:

A. (l)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.
(b) Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday for the pay cycle during which the employee was working at the time of separation or no later than fifteen days following the date of resignation, whichever occurs first.
14(2) Payment shall be made at the place and in the manner which has been customary during the employment ...
B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section. The employee shall have the right to file an action to enforce such a wage claim and proceed pursuant to Code of Civil Procedure Article 2592.

Louisiana R.S. 23:632 governs the liability of the employer for its failure to pay, and states, in pertinent part:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

Under these provisions, upon the resignation or termination of any employee, the employer has a duty to pay within 15 days the undisputed amount then due under the terms of employment. La. R.S. 23:631. An employer who fails to comply with this duty shall be liable for penalty wages and attorney fees. La. R.S. 23:632.

The terms “termination” or “discharge” in relation to employment matters have been defined by Louisiana jurisprudence. The employment relationship may be terminated without an express notice by either party. Dunbar v. Orleans Metal Bed Co., 145 La. 779, 82 So. 889 (La.1919). Any Racts or words that reasonably lead an employee to believe that his services are no longer needed constitute discharge. Id.

An employee is entitled to recover penalty wages if he or she proves that the employer acted in an arbitrary or unreasonable manner. Smith v. Aeadiana Mortgage of Louisiana, 42,795 (La.App.2d Cir.01/30/08), 975 So.2d 143. Penalty wages are penal in nature and must be strictly construed. Wyatt v. Avoyelles Parish School Board, 2001-3180 (La.12/04/02), 831 So.2d 906; Smith, supra. Louisiana R.S. 23:632 was designed to compel prompt payment of wages upon an employee’s discharge or resignation. Id.

“It is clear from the statute that it is the failure to comply with the provisions of La. R.S. 23:631, not a finding of bad faith, that triggers the penalty provision of La. R.S. 23:632.” Hattaway v. Health Paradigm, LLC, 45,047 (La.App.2d Cir.03/03/10), 31 So.3d 1176. A claim for penalty wages under La. R.S. 23:632 may be defeated by an equitable defense. Beard v. Summit Institute for Pulmonary Medicine and Rehabilitation, Inc., 97-1784 (La.03/04/98), 707 So.2d 1233; Smith, supra. However, it is only “a good-faith, non-arbitrary defense to liability for unpaid wages, i.e., a reasonable basis for resisting liability,” which permits a court to excuse the employer from the imposition of penalty wages. Carriere v. Pee Wee’s Equipment Co., 364 So.2d 555 (La. 1978); Smith, supra. When a bona fide dispute exists over the amount of wages due, an employer’s failure to pay is not an arbitrary refusal and no penalties will be awarded. Hattaway v. Health Paradigm, LLC, supra.

| f,Deference is given to the trier of fact’s findings when those findings are based on determinations regarding the credibility of witnesses; only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Here, Blanson testified as to his version of the events and the trial court clearly found him to have been very credible, as evidenced when it stated, “This man [Blan-son] was credible. And nobody shake him. He didn’t — so what he said I believe. That’s why I believe what happened, happened, because that’s what he said happened.” The trial court found that Blan-son was telling the truth as to the events that took place and to the length of days he worked. We give due deference to the trial court and find no error in this assessment.

When Blanson testified as to the telephone conversation he had with Chief Gil-lis, he stated:

He [Chief Gillis] said he had changed his mind about me being a sergeant and he was going to change my status to a patrolman and — and my pay would be nine dollars and ten cents an hour instead of nine dollars and fifty ... Well that wasn’t the agreement we had made. I had left my civil service position with the state, with ULM Police Department, plus I had took [sic] a pay cut over there to come over to Richwood and I was coming over there as a supervisor, not as a patrol officer. And I just felt like that wasn’t part of the deal and I just said I wasn’t going to do it.

The trial court found that this did not constitute a discharge or a resignation. We disagree. In Krison v. Texas Industries, Inc., 253 So.2d 614 (La.App. 2d Cir. 1971), the employer in that case asked the employee for his resignation by the end of the week; the resignation was never given. This |7court held that although not expressly stated, the employee was terminated as of the end of the week and that the employer “offering him [the employee] a face-saving opportunity to resign did not alter the fact that he was being terminated.... ” Similarly, in the case sub judice, although not expressly stated, Blanson was terminated from the position of patrol sergeant. It is clear that Chief Gillis’ words in the telephone conversation reasonably led Blanson to believe that his services as patrol sergeant were no longer needed and that constituted a discharge. Any reasonable person would have been led to believe the same thing. The fact that Chief Gillis offered Blanson an opportunity to accept a new position as patrol officer did not alter the fact that Blanson had been discharged from his current position as patrol sergeant. The trial court was clearly wrong and manifestly erroneous in its finding that Blanson was not discharged. Accordingly, we find that Blanson was discharged from his position as patrol sergeant and because he was not paid wages owed to him within the 15 days allowed by statute, the penalty provision of La. R.S. 23:632 was triggered.

In order for Richwood to then escape penalties, it must prove an equitable defense for its failure to pay Blanson. In Hattaway, a case involving a dispute over payment for vacation time, this court found that the employer was not in good faith because even though the exact amount of vacation payment owed was clearly in dispute, the employer failed to pay even the undisputed portion, as mandated by La R.S. 23:631(B). Hattaway, supra. This court found that this action was not indicative of good faith and failed to allow the employer to use that as a defense. Id. Similarly, here, |8Richwood claims Blanson’s position and pay rate were disputed; however, Richwood failed to pay Blanson even the undisputed portion of the payment owed. This failure to pay was not indicative of good faith; therefore, we find Richwood was in bad faith and is without a defense.

Based on the foregoing, we find that Blanson met his burden of proving that he was entitled to unpaid wages and that he was discharged from his position as patrol sergeant. We also find that Richwood failed to prove an equitable defense for its failure to timely pay Blanson these wages. Accordingly, we affirm the trial court’s judgment that awarded Blanson wages for two days of work. We also reverse the trial court decision in part and assess a penalty upon Richwood in the amount of $5,985.00. We further order that Rich-wood pay for Blanson’s reasonable attorney fees for this appeal in the amount of $2,500.00. See Bums v. National Communications, Inc., 2008-453 (La.App. 3d Cir.11/26/08), 998 So.2d 330.

Conclusion

For the foregoing reasons, the judgment of the trial court awarding Otis Blanson wages for two days of work is affirmed. The judgment of the trial court denying penalties upon The Town of Richwood is reversed and judgment is entered in favor of Otis Blanson. The Town of Richwood is bordered to pay a penalty in the amount of $5,985.00. It is also ordered that the Town of Richwood pay for Otis Blansoris reasonable attorney fees for this appeal in the amount of $2,500.00.

AFFIRMED, IN PART; REVERSED, IN PART.

ON REHEARING

Before WILLIAMS, GASKINS, DREW, LOLLEY and SEXTON (Pro Tempore), JJ.

PER CURIAM

ON REHEARING.

I,The Plaintiff, Otis Blanson, complains on rehearing that this court inadvertently omitted an award of costs of appeal and judicial interest. After reviewing the decree in the case sub judiee, we amend the decree to include an award to Plaintiff of costs of appeal in the amount of $614 and cost of filing for rehearing in the amount of $70, for a total additional award of $684. Plaintiff is further entitled to judicial interest on all sums awarded both at the trial and appellate levels, from the date of judicial demand until paid.

      . This total comes from calculating 90 days of work, seven hours each day, at a pay rate of $9.50 an hour.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Willie Carl JONES, Jr., Appellant.
    Nos. 46,758-KA, 46,759-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.

      Louisiana Appellate Project, by Douglas Lee Harville, for Appellant.
    Willie Carl Jones, Jr., Pro Se.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, R. Lane Pittard, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and MOORE', JJ.
   MOORE, J.

11Willie Carl Jones Jr. appeals his conviction on two counts of second degree murder and his consecutive sentences of life at hard labor without benefits. For the reasons expressed, we affirm.

Factual Background

The first victim, Mark Lioy, was a laborer who was working for Ocean Reef Pools in Bossier City. On Friday, March 20, 2009, he got a paycheck for $600, his biggest weekly paycheck ever. Early that afternoon someone gave him a ride to Cas-cio’s Market on Stoner Ave. in Shreveport, where he usually cashed his paychecks. A friend of Lioy’s, Lorrie Lee Phillips, testified that she often met Lioy at Cascio’s on Friday afternoons; they would do drugs and have sex together. Ms. Phillips testified that around 5:80 p.m. on March 20, after he cashed his check and gave her $20, Lioy got into a car with two people— Jones, whom she recognized from the “hood” as a drug dealer, and Amy Foster, a prostitute and drug user who was also a friend of Ms. Phillips’s. Lioy told Ms. Phillips he would be back in 30-45 minutes, but she never saw him again.

Surveillance video from Max’s Pawn Shop on East Washington at Youree Dr. showed that the trio came to the shop at 5:49 p.m., Lioy made a $6 payment on a pawned tool, and they left at 5:58. Phone records of calls and texts made from and received by Lioy’s, Jones’s and Ms. Foster’s cell phones showed that they left the Highland area, crossed the river into Bossier City, drove south on Hwy. 71, turned onto Sligo Road and went toward Lake Bistineau. The final calls made from Lioy’s cell were at 6:28 |ap.m., three calls to a woman named Amber Thorn, who testified that she did not know Lioy but admitted she was a regular drug customer of Jones’s. Ms. Thorn also testified that some days earlier, Jones told her that Lioy owed him money for drugs.

Later on the evening of March 20, Bossier Parish deputies received a call that passersby had spotted a body lying off Jerusalem Cemetery Road, a gravel road in southern Bossier Parish near Lake Bis-tineau. It was the body of a middle-aged man who had been shot seven times, including once in the right temple, once in the back, and several times to the hands and arms; no wallet, money, cell phone or ID of any kind was on his person. However, officers were able to lift the victim’s fingerprints; the next day they learned it was Mark Lioy.

Having ascertained Lioy’s identity, deputies contacted his family and employer, and then attempted to retrace his steps. When Ms. Phillips told them that Lioy had driven off with Jones and Ms. Foster, deputies wanted to question them. Early Monday morning, March 23, deputies located the car that Jones usually drove — a red Mitsubishi with a white hood — parked by a “shack” on Market Street near Stoner Ave. in Shreveport’s Highland area. The occupants of the shack, Amber Thorn and her aunt, Shelia Horton, told deputies that they had swapped cars with Jones so he could make a drug deal. The two women agreed to follow deputies to the Shreveport Police station for questioning. En route, Ms. Thorn attempted to call Amy Foster, but there was no answer; she also called Jones and told him the police wanted to question him, but he hung up on her. According to Jones’s cell | ¡¡phone records, he was in the Old Bossier area near Interstate 20 when he received this call at 3:48 a.m.

About 10 minutes later, Bossier City police received a report of gunshots being fired in the Old Bossier area. It was not until over three hours later, however, that officers received a call that a woman’s body was lying in front of a house on Wyche Street in Old Bossier. All valuables and forms of ID had been removed from the victim’s clothes, as had been done with Mark Lioy’s body. Detectives later determined this was the second victim, Amy Foster.

Meanwhile, however, Bossier deputies working Lioy’s case in Shreveport were unaware of these facts. At the police station, Ms. Thorn and Ms. Horton agreed to cooperate with deputies: Ms Thorn tried to call Amy Foster again at 4:19 a.m., but there was no answer. She then called Jones again, telling him to bring Ms. Horton’s car to them at Cascio’s, and repeating that the police wanted to talk to him about a murder. According to Ms. Thorn, Jones muttered, “Oh, shit”; remarkably, however, he drove Ms. Horton’s silver Toyota Camry to Cascio’s, meeting deputies there at 4:50 a.m., and then following them to the police station.

After receiving his Miranda rights, Jones admitted to deputies that he and Amy Foster had met Lioy at Cascio’s around 5:30 p.m. Friday and then taken him to Max’s Pawn Shop. He stated that he then drove them to the skateboard park on Clyde Fant Parkway for the real purpose of their meeting, oral sex. Jones said that after Ms. Foster did a “trick” on Lioy, he drove them back into town when Lioy suddenly told him to stop the car and |4Iet him out. Jones said that he let him out near Youree Drive at Stoner and never saw him again. After this, Jones and Ms. Foster went to Jones’s mother’s house on Kings Highway, near Byrd High School; they then rented a motel room on North Market Street. Later, he said, he drove Ms. Foster to a house on Trichel Street in Bossier Annex, where a group of Mexican migrant workers was staying, so she could do “tricks” on them. Deputies went to the house on Trichel Street and found it was indeed occupied by a group of Mexican workers with whom they were unable to communicate; however, they searched, and Ms. Foster was not there. With Jones’s consent, deputies then searched the motel room on North Market Street. Finding only two “dime” bags of marijuana in a dresser and no evidence related to Lioy’s murder, they released Jones about 7:30 a.m.

Later that day, deputies ascertained that the female body found on Wyche Street — some 2 ⅜ miles from the house where Jones said he had dropped her off— was that of Amy Foster. She had been shot five times, including once in the face and twice in the chest, and stabbed four times about the neck and thigh.

Deputy Charles Owens testified that when he consented to a search of the motel room, Jones also consented to a search of his car. Nevertheless, deputies obtained a warrant to search Jones’s mother’s house at 714 Kings Highway, including any outbuildings and motor vehicles. They searched Jones’s ear, a Dodge Intrepid, that was near the house but was actually parked on a vacant next door lot, 716 Kings Highway. In the trunk of the Intrepid, in the spare tire well, they found a plastic bag containing six live |s.357 semi-wadcutter rounds. Richard Beighley, a forensic analyst from the North Louisiana Crime Lab, analyzed these rounds and testified they were consistent with the badly deformed bullets recovered from Mark Lioy’s body. They were also distinctively similar to the semi-wadcutters recovered from Amy Foster’s body. Dep. Owens testified that the search yielded no other evidence connected to the case: no handgun that might have fired the .357 semi-wadcutter rounds, and no cell phones, wallets, jewelry or other personal effects that belonged to Mark Lioy or Amy Foster.

Procedural Background and Trial Evidence

A grand jury returned separate indictments against Jones for the first degree murders of Mark Lioy and Amy Foster, alleging that the homicides occurred while Jones was engaged in armed robberies of the victims. Shortly before trial, the state amended the bills to second degree murder.

Jones filed a motion to suppress the ammunition seized from the Dodge Intrepid on grounds that the car was parked at 716 Kings Highway while the search warrant described the premises at 714 Kings Highway. At a hearing held before jury selection began on September 13, 2010, Jones’s mother, Lucille Jones Taylor, testified that the Intrepid belonged to Jones, as she had recently “put it in his name.” She also testified that she owned the house and lot at 714 Kings Highway but not the vacant lot next door; she insisted that when the search warrant was executed, the Intrepid was not on her property. She admitted, however, that she had parked her car on the | fivacant lot on two occasions, and that other people in the neighborhood regularly parked cars there. The court denied Jones’s motion to suppress, finding the vacant lot was “basically for public use” with no expectation of privacy.

The state filed a notice of intent to offer other crimes evidence, namely a statement by Benito “Joey” Vasquez, an arrestee who was housed with Jones in Bossier Parish Maximum Security. Jones allegedly told Vasquez that Mark Lioy and Amy Foster “ain’t the only two people he’s killed.” Jones objected to this as improper under La. C.E. art. 404 B; at some point, the state agreed to edit the audio recording and transcript to remove the reference to other homicides. Still, in the portion played to the jury, Vasquez stated that Jones was “a pretty dangerous fellow,” “I wouldn’t mess with him,” and “wherever he was at, I’d try to get on the other side of town.” At trial, however, Vasquez retracted the whole statement, saying he made it only in an effort to get out of jail, he was merely repeating things he had heard on TV, and in fact Jones never said he committed any murders. Jones did not object to the introduction of Vasquez’s redacted statement.

The state also offered the testimony of Marcus Lige, a federal inmate who was housed with Jones at the Bossier Parish jail for “one or two days.” Lige stated that Jones came to him for legal assistance, confiding that he was “charged with two or three murders” and authorities were “looking at him for maybe a third or fourth murder.” Jones moved for a mistrial; however, after a recess, the court opted only to admonish the jury to disregard any reference to crimes other than the homicides of Mark Lioy |7and Amy Foster. Lige also testified that Jones said he “lost his temper” with the man, overreacted, and dumped his body in a cemetery; he later lost his temper with the lady, and dumped her body in front of a house.

The state also called Detective Cortez Bridges, whom it offered as an expert in cell phone technology and forensic data recovery. Jones objected, arguing that although the state had included Det. Bridges on its witness list, it had not disclosed that he was being offered as an expert; as a result, the defense had no chance to prepare for his testimony or examine his reports. After the court granted a recess, Jones objected that Det. Bridges had no degree credentials. The court declined to accept the witness as an expert in cell phone technology but accepted him in forensic data recovery and interpretation. He testified that records from cell phone providers indicated not only which cell tower received or sent a signal to a given cell phone, but also which general direction or sector the signal was in. He had analyzed Jones’s cell phone records from Metro PCS and the records of Mark Lioy, Amy Foster, Amber Thorn and Shelia Horton from AT & T. These confirmed that Jones, Lioy and Ms. Foster were together in the Highland area of Shreveport on Friday afternoon, and then together in south Bossier near Lake Bistineau, when Lioy’s phone activity ended at 6:28 p.m. This was near where his body was found on Jerusalem Cemetery Road, and Det. Bridges theorized that Jones stole Lioy’s phone to make the final three calls to Amber Thorn, whom Lioy did not know. Jones’s phone records also showed that he was in the Old Bossier area at 3:58 a.m. Monday, one minute before someone reported hearing gunfire in the vicinity; Amy |sFoster’s body was found on Wyche Street later that morning.

On the afternoon of the fourth day of trial, Juror No. 6 advised the court that she had overheard two other jurors “discussing the case” on a bathroom break that morning. On examination by the court, Juror No. 6 said the first juror remarked she was “disturbed by the blood and gore” on the video, and the second replied it “really upsets” her; the first rejoined that she had told her husband she could not sleep because of it. Juror No. 6 admitted she did not see who the chatting jurors were. The district court denied Jones’s motion for mistrial, finding only that the first juror told her husband about some evidence, and nothing more happened. Instead, the court admonished the whole jury not to discuss the case with anyone.

At the close of the state’s case, defense counsel announced that Jones would not testify; the defense rested. By a vote of 10-2, the jury found Jones guilty as charged on two counts of second degree murder.

After trial was completed, Jones filed a pro se motion for self-representation which the court denied as moot. Through counsel he filed motions for post verdict judgment of acquittal and new trial, which the court denied, noting the evidence was overwhelming. On both counts, the court imposed the mandatory sentence of life at hard labor without benefits and ordered them served consecutively.

Jones now appeals. Through counsel, he raises eight assignments of error; pro se, he raises five.

1 ¡¡Discussion: Sufficiency of the Evidence

By his first two assignments of error, Jones urges the evidence at trial failed to establish beyond a reasonable doubt that he committed the murders of Mark Lioy and Amy Foster. In essence, he argues that the entire case was circumstantial. With respect to Mark Lioy, Jones concedes that Det. Bridges testified that the victims’ cell phones were used in the vicinity of a cell phone tower near the cemetery where Lioy’s body was found, but he counters (1) there was no physical evidence to prove that he was present when Lioy was killed, (2) none of Lioy’s personal effects were found in his house, motel room or any of the vehicles he was driving, and (3) none of Lioy’s blood was found in any of those places. He suggests that the evidence does not exclude the reasonable hypothesis that somebody else actually killed Lioy. As for Amy Foster, Jones raises similar arguments, with special emphasis on the fact that despite intensive searches, the state found no blood on Jones’s clothes or the car he was driving when he allegedly shot, stabbed and carried her body to Wyche Street. He contends that between the homicide and when he drove Ms. Horton’s car to Cascio’s, there was nowhere near enough time for him to change clothes and clean the car. He suggests that this evidence leaves open a reasonable hypothesis of innocence.

The state responds that Jones was with Lioy and Foster when Lioy cashed his $600 check, and the cell phone records showed they were all together in south Bossier Parish near the time Lioy was robbed and shot. Also, the cell phone records and the testimony of Amber Thorn show that | iqMs. Thorn called him Monday morning to warn him that police were looking for him; he killed Amy Foster moments later because she could link him to Lioy’s murder. The state adds that the bullets found in both victims were fired from the same gun. Finally, the state submits that a rational jury could accept Det. Bridges’s analysis of the cell phone records which placed Jones at the time and location of each homicide.

The standard of appellate review for sufficiency of the evidence 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). 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 factfinder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Dorsey, 2010-0216 (La.9/7/11), 74 So.3d 603; State v. Knight, 45,231 (La.App. 2 Cir. 5/19/10), 36 So.3d 1163, writ denied, 2010-1425 (La.1/14/11), 52 So.3d 899. A reviewing court pays great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Williams, 2007-1407 (La.10/20/09), 22 So.3d 867; State v. Hill, 42,025 (La.App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

Generally, direct evidence consists of testimony from a witness who actually saw or heard an occurrence, proof of the existence of which is at issue. State v. Lilly, 468 So.2d 1154 (La.1985). Circumstantial evidence, by contrast, consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. Id.; State v. Bounds, 38,330 (La.App. 2 Cir. 5/12/04), 873 So.2d 901. When circumstantial evidence forms the basis of the conviction, such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. On appeal, the reviewing court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994). Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. Id.; State v. Henry, 46,406 (La.App. 2 Cir. 8/10/11), 73 So.3d 958.

Second degree murder requires proof that the defendant killed a human being either (1) with the specific intent to kill or inflict great bodily harm or (2) while engaged in the perpetration or attempted perpetration of an enumerated offense, including armed robbery. La. R.S. 14:30.1 A(l), (2). Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences 112to follow his act or failure to act. La. R.S. 14:10(1); State v. Harrison, 46,325 (La. App. 2 Cir. 5/18/11), 69 So.3d 581. Specific intent need not be proved as a fact, but may be inferred from the circumstances of the transaction and the conduct of the defendant. State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1; State v. Harrison, supra. Specific intent to kill may be inferred from the act of pointing a gun and firing at a person in close proximity. State v. Lewis, 2009-1404 (La.10/22/10), 48 So.3d 1073; State v. Brown, 42,054 (La.App. 2 Cir. 8/29/07), 965 So.2d 580, writ denied, 2007-1939 (La.2/15/08), 976 So.2d 174. Armed robbery is defined as the taking of anything of value belonging to another, from the person of another or that is within his immediate control, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64.

Direct evidence placed Lioy with Jones and Ms. Foster shortly before the homicide. The testimony of Lioy’s office manager and a copy of his paycheck proved that he received a check for $600 on the afternoon of March 20; the testimony of his frequent partner in recreational drugs and sex, Ms. Phillips, proved that he cashed the check at Cascio’s, got in a car with Jones and Ms. Foster, and drove away; video surveillance and the pawn ticket showed that the trio went to Max’s Pawn Shop, where Lioy made a payment, and then they left together.

Beyond this, the evidence is admittedly circumstantial. The bullets later recovered from the car parked next to Jones’s house were consistent with those that shot Lioy. Amber Thorn, one of Jones’s drug customers, testified that Lioy owed Jones money for drugs. Even though Lioy’s body 113was stripped of all valuables, none of these were found in Jones’s possession, so the evidence might not support a finding that Jones robbed Lioy. Nonetheless, the doctor who performed the autopsy on Lioy testified that the victim sustained seven gunshot wounds, including one to the head, from a sufficient distance that no soot or powder was present on the skin. This is a circumstance from which a jury could rationally find a specific intent to kill. State v. Lewis, supra. Notably, nobody ever saw Lioy alive after he left Max’s Pawn Shop with Jones and Ms. Foster. Cell phone records show that after they left Max’s, the trio went to south Bossier near Lake Bistineau, the area where Lioy’s body was later found by Jerusalem Cemetery Road.

The direct evidence that Lioy left Shreveport with Jones and Ms. Foster, coupled with the circumstantial evidence of the cell phone records that put them together in the area where the body was found, and that the bullets found in Jones’s trunk were consistent with those that shot Lioy, all support a finding beyond a reasonable doubt that Jones killed Lioy, with a specific intent either to kill or inflict great bodily harm. The suggestion that somebody else might have intervened in this sordid sequence of events and shot Lioy is simply not sufficiently reasonable to dissuade a reasonable jury from its finding of Jones’s guilt. This assignment of error lacks merit.

With respect to Amy Foster, the evidence shows that other than Jones, she was the only other person who might have known the facts of Lioy’s murder. Early Monday morning, Amber Thorn called Jones and tipped him off that the police wanted to question him about Lioy. Ten minutes later, ||4neighbors reported hearing gunfire in Old Bossier; cell phone records again confirmed that Jones was in that area at the time. Jones coolly drove Ms. Horton’s car to Cascio’s parking lot, and then accompanied police to the station. He gave a statement that he was with Ms. Foster until shortly before her death, changing it only enough to say he dropped her off to do “tricks” on Mexicans in Bossier Annex, a place where the cell phone records did not put him. Ms. Foster’s body was found in Old Bossier, where the shots were heard. The bullets seized from Jones’s car were distinctively similar to those recovered from Ms. Foster’s body. In our view, these circumstances would convince a rational jury beyond a reasonable doubt that Jones killed Ms. Foster lest she implicate him in Lioy’s murder.

As an alternative hypothesis, Jones argues that between the reported shooting, at 8:59 a.m., and when he met police at Cascio’s, at about 4:50 a.m., there was not enough time for him to haul Ms. Foster’s body to Wyche Street, dump it on someone’s lawn, and remove all traces of blood from his clothes and the car. This thesis might be tenable, if the record showed that the victim was killed elsewhere, hauled and dumped. However, the crime scene photos show a large amount of blood on the ground where her body lay, suggesting that she was put out of the car on Wyche Street, shot and stabbed, and left to bleed to death on the patchy lawn. The limited time frame is not sufficiently reasonable to dissuade a rational juror from its finding of Jones’s guilt. This assignment of error lacks merit.

11,Motion to Suppress

By his third assignment of error, Jones urges the court erred in denying his motion to suppress. He argues that the search warrant, which was not introduced into evidence, described 714 Kings Highway, while the police actually searched a car parked next door, at 716 Kings Highway. His mother, Mrs. Taylor, testified that she did not own the vacant lot next door; the car was parked there only because it had broken down and the towing service put it there; she parked there the day of the search only because police officers had blocked her own driveway. Citing State v. Jewell, 338 So.2d 633 (La.1976), Jones argues that a search may exceed the scope of the warrant only in limited, specified circumstances, none of which were shown in this case. He specifically contends that there was nothing in plain view that would have supported a search, and no evidence that officers conducted an inventory search of the car.

The state responds that the vacant lot at 716 Kings Highway was a “common area” often used by other people in the neighborhood, and Jones had no expectation of privacy when he parked the Intrepid there. Also, there was no fence or any other marker to indicate the exact property line, so officers acted reasonably in treating the driveway next door to Mrs. Taylor’s house as part of the curtilage subject to the umbrella of the search warrant.

A search warrant must particularly describe the person or place to be searched. U.S. Const., Amend. IV; La. Const. Art. 1, § 5; La. C. Cr. P. art. 162 C. The purpose of the particularity requirement is to assure that the search “will be carefully tailored to its justifications, and will not take on | lfithe character of the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1016, 94 L.Ed.2d 72 (1987); State v. Sterling, 99-2598 (La.4/25/00), 759 So.2d 60. The description contained in the search warrant is adequate if it is sufficiently detailed to allow officers to locate the property with reasonable certainty and avoid searching the wrong premises. State v. Sterling, supra; State v. Korman, 379 So.2d 1061 (1980). The courts have frequently held that when the warrant describes one address, and officers search the adjacent address, this discrepancy will not invalidate the warrant. State v. Alonzo, 95-2483 (La.5/31/96), 675 So.2d 266; State v. Sterling, supra; State v. Grant, 10-83 (La.App. 5 Cir. 10/26/10), 52 So.3d 149, and cases cited therein. Officers may rely on the outward appearance of the property. State v. Grant, supra. They may also rely on the “physical layout of the premises and their use,” United States v. Prout, 526 F.2d 380 (5 Cir.1976), cert. denied, 429 U.S. 840, 97 S.Ct. 114, 50 L.Ed.2d 109 (1976). Courts extend some latitude to officers “in the dangerous and difficult process of making arrests and executing search warrants.” Maryland v. Garrison, 480 U.S. at 87, 107 S.Ct. at 1018. When evidence has been seized pursuant to a facially valid warrant, the burden of proof in a motion to suppress is on the defendant. La. C. Cr. P. art. 703 D; State v. Porche, 2006-0312 (La.l1/29/06), 943 So.2d 335.

Officers investigating Lioy’s murder wanted to search the residence and vehicle of one of the last two people who saw him alive, Jones. They obtained a warrant for 714 Kings Highway, where Jones lived with his |17mother. At the time, they had no reason to expect that Jones, his mother and other visitors frequently parked their cars in the vacant lot next door, 716 Kings Highway. Photos taken at the time of the search showed a short, chain-link fence virtually straddling half the length of the house. The purpose of this fence is not apparent, and there is nothing else to indicate a property boundary. The layout of the two lots supports the officers’ reasonable inference that the Intrepid was parked on a portion of the property described in the warrant. This search was “consistent with a reasonable effort to ascertain and identify the place intended to be searched within the meaning of the Fourth Amendment.” Maryland v. Garrison, supra. The district court did not err in denying the motion to suppress, and this assignment of error lacks merit.

Other Crimes Evidence

By his fourth and fifth assignments of error Jones urges the district court erred in denying his motions for mistrial when the state’s witness Marcus Lige referred to other crimes committed by Jones, in violation of the district court’s order, and when the state’s witness Benito Vasquez testified that Jones was “a murderous person.” Jones argues that these comments did not satisfy any of the criteria by which other bad acts may be admitted under La. C.E. art. 404, outweighed any possible probative value, and surely contributed to the guilty verdicts. State v. Blank, 2004-0204 (La.4/11/07), 955 So.2d 90; State v. Crandell, 43,262 (La.App. 2 Cir. 6/18/08), 987 So.2d 375, writs denied, 2008-1582, 2008-1659 (La.3/27/09), 5 So.3d 139, 140, cert. denied, — U.S.-, 130 S.Ct. 183, 175 L.Ed.2d 115 (2009).

|1sThe state responds that even though the court denied the motion for mistrial with respect to Lige, it admonished the jury to disregard his reference to other crimes, a remedy which was within the court’s discretion for conduct which did not warrant a mandatory mistrial under La. C. Cr. P. art. 770. State v. Narcisse, 426 So.2d 118 (La.1983). The state does not respond to the motion for mistrial with respect to Vasquez.

Evidence of other crimes, wrongs or acts is generally inadmissible. La. C.E. art. 404 B(l). A mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during trial or in argument, refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. La. C. Cr. P. art. 770(2). However, when such a remark or comment is made by someone other than the judge, district attorney, or a court official, the court shall promptly admonish the jury to disregard the remark or comment. La. C. Cr. P. art. 771(2). The court may also grant a mistrial if there is a legal defect in the proceedings that would make any judgment entered upon a verdict reversible as a matter of law. La. C. Cr. P. art. 775(3).

Mistrial is a drastic remedy which should be declared only on a clear showing of prejudice by the defendant. State v. Leonard, 2005-1382 (La.6/16/06), 932 So.2d 660; State v. Kemp, 39,358 (La.App. 2 Cir. 3/11/05), 896 So.2d 349, writ denied, 2005-0937 (La.12/09/05), 916 So.2d 1052. The determination of whether actual prejudice has occurred lies within the sound discretion of the trial court and will not be disturbed on appeal absent 119an abuse of that discretion. State v. Weary, 2003-3067 (La.4/24/06), 931 So.2d 297, cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006); State v. Smith, 43,136 (La.App. 2 Cir. 4/23/08), 981 So.2d 200.

Lige and Vasquez were jailhouse companions of Jones’s. Because they were not court officials, their references to other bad acts allegedly committed by Jones did not warrant mandatory mistrial under Art. 770(2). Jones moved for mistrial when Lige, a federal inmate temporarily housed in Bossier, testified that Jones told him he was being investigated for "maybe a third or fourth murder”; after a recess, the court denied the mistrial but admonished the jury to disregard any reference to other crimes, in accord with Art. 771(2). Lige then stated what Jones had told him about the Mark Lioy and Amy Foster homicides, testimony that seems cumulative of the other trial evidence. Given Lige’s credibility issues and the limited substance of his testimony, we find no clear showing of prejudice.

As for Vasquez, a Bossier Maximum inmate, the state agreed that his recorded statement referred to other bad acts; by agreement, these were edited out, and Jones did not object to the redacted version. The unedited portion referred to Jones as “a pretty dangerous fellow,” but this was not a reference to other bad acts committed by Jones; it was plainly Vasquez’s commentary on the charged offenses. Moreover, Vasquez testified emphatically that his statement to Det. Griffith was totally false, made only in an effort to curry favor with authorities. The statement could not have affected the verdict; the district court did not err in denying the mistrial. These assignments of error lack merit.

120Alleged Juror Misconduct

By his sixth assignment of error, Jones urges the court erred in denying a mistrial when jurors were influenced by external sources or failing to inquire into those external influences. As noted, based on its examination of Juror No. 6, the court found only one violation in that a juror had discussed the case with her husband; it admonished the whole jury not to discuss the case. Jones argues that he established an “extraneous influence,” a form of unauthorized communication which he contends is “presumptively prejudicial.” State v. Sanders, 33,778 (La.App. 2 Cir. 10/4/00), 769 So.2d 183. He concludes the court committed reversible error in not allowing him to interrogate the juror or jurors involved and determine the extent of the extraneous influence.

The state responds that Juror No. 6 could neither identify which jurors were chatting in the ladies’ restroom nor that any external influence occurred. The state submits that on this showing, the court’s admonition to the jury was entirely sufficient.

Any private communication, direct or indirect, with a juror after the beginning of trial is deemed presumptively prejudicial, if not made with full knowledge of all parties and pursuant to court order or rule. State v. Bates, 508 So.2d 1346 (La. 1987); State v. Sanders, swpra. The presumption is not conclusive, but a heavy burden rests upon the state to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. State v. Sinegal, 393 So.2d 684 (La.1981); State v. Sanders, supra. Prejudice may be shown by evidence that an [21 extrinsic factual matter tainted the jury’s deliberations. State v. Day, 414 So.2d 349 (La.1982); State v. Sanders, supra.

Juror No. 6 testified that she did not see which jurors were talking, so there was no reasonable way to accommodate Jones’s request to examine those jurors. Moreover, even taking at face value Juror No. 6’s account of their conversation, the two jurors addressed no details of Jones’s guilt or innocence and showed no intent to influence each other. Finally, one of the jurors may have told her husband that some of the evidence was gory, but there is absolutely no evidence that the husband, or any other extraneous source, attempted to influence her. Simply put, there is no showing of influence. State v. Day, supra. On this record, the court did not abuse its discretion in denying the motion for mistrial and admonishing the jury not to discuss the case with anyone. This assignment lacks merit.

Nonunanimous Verdict

By his seventh assignment of error, Jones urges the court erred in instructing the jury that it did not have to reach a unanimous verdict in order to convict. He concedes that La. C. Cr. P. art. 782 A authorizes a felony trial “by a jury composed of twelve jurors, ten of whom must concur to render a verdict.” He contends, however, that only one other state (Oregon) allows a 10-2 vote to convict or acquit in noncapital felony cases, and that numerous recent Supreme Court cases have “reexamined” the application of unanimity in jury verdicts. Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 148 L.Ed.2d 311 (1999); Apprendi v. New Jersey, 580 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

The state responds that the Louisiana Supreme Court has repeatedly upheld Art. 782 A against constitutional challenges. State v. Bertrand, 2008-2215 (La.3/17/09), 6 So.3d 738; State v. Edwards, 420 So.2d 663 (La.1982); State v. Jones, 381 So.2d 416 (La.1980).

At Jones’s request, the court polled the jury and found that 10 of 12 jurors concurred to find him guilty on both counts, satisfying Art. 782 A. As the state has shown, the Louisiana Supreme Court has upheld the constitutionality of Art. 782 A, as has this court. State v. Divers, 38,524 (La.App. 2 Cir. 11/23/04), 889 So.2d 335, writ denied, 2004-3186 (La.4/8/05), 899 So.2d 2, cert. denied, 546 U.S. 939, 126 S.Ct. 431, 163 L.Ed.2d 327 (2005). We see no basis to reconsider this issue and deviate from established jurisprudence. We also note that in the federal case most precisely on point, a plurality of the U.S. Supreme Court approved Oregon’s minimum requirement of a 10-2 vote to sustain a criminal conviction. Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). This assignment lacks merit.

Excessive Sentence

By his eighth assignment of error, Jones urges the court imposed an unconstitutionally harsh and excessive sentence. He argues that consecutive life sentences without benefits constitute nothing more than purposeless and needless imposition of pain and suffering in violation of La. Const. Art. 1, § 20. State v. Telsee, 425 So.2d 1251 (La.1983); State v. Sims, 410 So.2d 1082 (La.1982).

| gjThe state responds that the court properly considered Jones’s presentence investigation report (“PSI”), his two prior felony convictions and the fact that these two murders occurred just a few months after his release from prison.

The courts have repeatedly upheld the mandatory sentences under R.S. 14:30.1 as constitutional and consistent with the federal and state provisions against cruel, unusual or excessive punishment. State v. Daniel, 378 So.2d 1361 (La.1979); State v. Small, 46,632 (La.App. 2 Cir. 11/16/11), 78 So.3d 825, and citations therein. A court may depart from a mandatory minimum sentence only upon finding “clear and convincing evidence” to rebut the presumption of constitutionality, which requires a showing that the defendant is exceptional, in that “because of unusual circumstances, this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Small, supra.

The district court reviewed the PSI, noting Jones’s social and criminal history. Jones pled guilty in 1995 to attempted second degree murder, in an incident arising from a failed carjacking at Byrd High School, just behind his mother’s house on Kings Highway. For this he drew a 25-year sentence, during which he was convicted of possession of contraband in a penal institution. He was paroled on good time in August 2008; the instant offenses occurred only seven months later. Testimony at trial showed that in his seven months of freedom, he was known in the Highland area for his | ^involvement in the drug and prostitution trade. The killing of Mark Lioy appeared to stem from Jones’s illegal enterprise, and the killing of Amy Foster from an intent to silence her. The record does not show that Jones is “exceptional” under State v. Johnson, supra. This assignment lacks merit.

Pro se Assignments

Jones also filed a pro se brief raising five assignments of error to which the state has not responded. Because they are insubstantial, we will address them only briefly.

(1) The court erred in imposing a sentence based upon facts not decided by jurors. Jones contends that at sentencing, the court mistakenly stated that Ms. Foster had been shot four times and stabbed 10 or 12 times, when in fact witnesses testified that she was shot five times and stabbed four. However, the number of shots or stabs is not an element of second degree murder and has no bearing on the mandatory life sentence prescribed by R.S. 14:30.1 B. There was no effect on the sentence.

(2) The court erred by not addressing Jones’s motion for self-representation until four days after he was convicted. Jones’s handwritten motion was dated August 30, 2010; trial began on September 13 and ended on September 17. However, the motion was not file-stamped by the clerk of court until September 21, four days after trial. The record neither explains Jones’s delay in properly filing his motion nor shows that when trial began with counsel, he called the pending motion to the court’s attention. The court did not err in denying this untimely motion. State v. Hegwood, 345 So.2d 1179 (La.1977); State v. Lee, 39,969 (La.App. 2 Cir. 8/17/05), 909 So.2d 672, writ denied, 2006-0247 (La.9/1/06), 936 So.2d 195.

(3) The court erred when it did not make a timely disclosure to Jones of all available exculpatory evidence known to the prosecutor (the fact that Det. Bridges was an expert witness). Jones contends that the state did not reveal that it intended to use Det. Bridges as an expert until “just minutes” before he took the stand to be qualified. He submits that this was an untimely disclosure of exculpatory evidence. The state is indeed required to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and La. C. Cr. P. art. 718. However, Jones has not shown, and we cannot perceive, that Det. Bridges’s testimony was in any way exculpatory. Without such a showing, there is no violation of discovery. State v. Hawkins, 96-0766 (La.1/14/97), 688 So.2d 473; State v. Hopkins, 39,258 (La.App. 2 Cir. 3/2/05), 897 So.2d 854, writ denied, 2005-1238 (La.12/16/05), 917 So.2d 1107.

(4) The court erred in allowing Det. Bridges to testify as an expert witness. Specifically, he contends Det. Bridges never stated the facts upon which his opinion was based, in violation of La. C.E. art. 705 B. However, the state introduced printouts of the cell phone records of Mark Lioy, Amy Foster and Amber Thorn from AT & T Mobility, verified by that provider’s radiofrequency engineer, Robert Weir, and of Jones from Metro PCS, verified by that provider’s custodian of records, Timothy Lowndes. Both these experts confirmed that the records identified the tower and sector that sent or received each signal, and that this information could be used to locate where the customer was when he sent or received a call or text. Det. [^Bridges methodically referred to these records in his testimony. The assertion that he failed to state facts to support his opinion under Art. 705 B is completely without basis. Moreover, the legislature has recognized the validity of cell phone tracking, La. R.S. 38:9109 A, and the courts have utilized it. State v. Hampton, 46,368 (La.App. 2 Cir. 5/18/11), 69 So.3d 614; State v. Richards, 2010-0247 (La.App. 4 Cir. 8/18/10), 47 So.3d 598, writ denied, 2010-2372 (La.10/7/11), 71 So.3d 305.

(5) The court erred when it did not make a timely disclosure to Jones of all the evidence or information known to prosecutors (the Amy Foster crime scene report). Jones argues that if the state had given him this report sooner than three days before trial, the outcome of the proceedings would have been different. He admits, however, that the Bossier Police Department finished transcribing the 123-page report only on September 9, 2010, and gave it to defense counsel on September 10. Neither the six-month delay for completing this lengthy report nor the one-day delay in forwarding it to counsel appears unreasonable.

Conclusion

In addition to the assignments of error, we have reviewed the entire record pursuant to La. C. Cr. P. art. 920(2) and find nothing we consider to be error patent. For the reasons expressed, Willie Carl Jones Jr.’s convictions and sentences are affirmed.

AFFIRMED.

      . Ms. Phillips did not recognize the car Jones was driving; based on the surveillance video, it was a small, light-colored car, and not any of the other cars described in this record.

      . Inexplicably, the state did not offer the search warrant into evidence. However, Jones’s motion to suppress alleged that it described "714 Kings Highway, City of Shreveport, Parish of Caddo, and all outbuildings and motor vehicles.”

      . These were actually still photos. There was no video of the deceased victims.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Gregory D. DIXON, Appellant.
    Nos. 46,766-KA, 46,767-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.

      Louisiana Appellate Project, by Douglas Lee Harville, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Assistant District Attorney, for Appellee.
    Before WILLIAMS, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

| ¶Defendant, Gregory D. Dixon, pled guilty as charged to one count of attempted second degree murder and one count of second degree battery. He was sentenced to a term of 38 years at hard labor without the benefit of probation, parole or suspension of sentence on the attempted second degree murder conviction and to a term of 3 years at hard labor on the second degree battery conviction, with the sentences to be served consecutively. Defendant now appeals his sentences. For the reasons stated herein, the sentences of Defendant are affirmed.

FACTS

The convictions in this case arise out of two separate incidents involving the same victim. On December 17, 2009, police were called to E.A. Conway Hospital in Monroe, Louisiana, to respond to a battery complaint. There they made contact with the victim, Willie K. Wilson, who stated that she and her boyfriend, Defendant Gregory Dixon, had gotten into an argument when Defendant started to punch and choke her before pushing her to the ground, where he punched her again. He also used a box cutter to cut her hand.

On January 22, 2010, Defendant summoned the victim to his work under the pretense that he had some money to give her. When she arrived, they started arguing about calls she was allegedly taking on her cell phone from other men. After struggling over her cell phone, Defendant pulled the victim out of her car by her shirt, opened the trunk to the vehicle and tried to push her in. During the altercation, Defendant produced a blue and silver box cutter and threatened to kill her. Ms. Wilson briefly broke free, but fell 12to the ground when she ran into a trailer hitch. Defendant dragged her back to her car and started to stab her with the box cutter. When one of Defendant’s coworkers appeared in response to Ms. Wilson’s screams for help, Defendant fled. Ms. Wilson sought medical help at the nearby Landmark Nursing Home where she worked. From there, she was transported to Glenwood Regional Medical Center where her medical records indicate she was treated for numerous lacerations which she received on her head, under her left breast, torso, shoulder and forearm.

Later that evening, Defendant tried to flee from law enforcement officers who had been on the lookout for his vehicle. After a vehicular chase on Interstate 20, Defendant crashed his vehicle and fled on foot. A subsequent K-9 assisted search of the area located Defendant in a trailer he had broken into near the Interstate Frontage Road.

Defendant was charged by bill of information filed on February 2, 2010, with the December 17, 2009 second degree battery of Ms. Wilson. In a separate bill of information filed on February 5, 2010, Defendant was charged with the January 22, 2010 attempted second degree murder of Ms. Wilson. Defendant entered pleas of not guilty to both charges and the matters were set for trial. Also pending against Defendant in connection with his conduct on January 22, 2010, were charges of unauthorized entry of an inhabited dwelling, simple damage to property and resisting an officer. On January 3, 2011, shortly after the commencement of jury selection, Defendant indicated he wanted to avail himself of a plea bargain offered by the State.

| ¡¡Under the plea agreement, Defendant entered a plea of guilty as charged to attempted second degree murder and second degree battery and the State dismissed the charges of the unauthorized entry of an inhabited dwelling, simple damage to property and resisting an officer. There was no agreement as to sentencing other than the fact that it would be subject to a presentence investigation (“PSI”) to be ordered by the trial judge. Defendant came for sentencing on March 9, 2011.

At the sentencing hearing, the trial judge reviewed the contents of the PSI report. The judge noted that Defendant’s criminal history included four prior felony convictions dating back to 1994 which consisted of convictions for simple burglary, attempted simple burglary, arson and simple burglary of an inhabited dwelling. He had also been convicted of misdemeanor domestic abuse of Ms. Wilson in September 2008.

Regarding Defendant’s social history, the judge noted that he was 34 years old and one of three children born to married parents. After his parents divorced, Defendant was passed between his parents’ homes and became a discipline problem when he entered junior high. He was eventually sent to the Johnny Robinson Home for Boys. Defendant dropped out of high school in the ninth grade because he started fathering children and needed to work. He has five children between the ages of 3 and 16. Defendant’s employment history was sporadic; but, in the six years before his arrest on the instant offenses, he had worked for Parker Auto Body where he buffed and detailed vehicles. Defendant also admitted to | /‘extended” marijuana use starting when he was “young” and continuing until his present incarceration.

Defendant provided a written statement, attached to the PSI report, wherein he makes an expression of remorse and asks the court for leniency. The PSI report also indicates that Ms. Wilson gave a statement indicting her belief that Defendant had learned his lesson and that she is no longer afraid of him. She also indicated that she needed his financial help in caring for their children. In summary, the conclusion in the PSI report was that Defendant “is an extremely violent man” who probably would have stabbed Ms. Wilson to death, but for the bystander who responded to her screams for help. The PSI contained the recommendation of the maximum sentences on each count to run consecutively.

The trial judge listed Defendant’s use of a dangerous weapon and his threatened and actual violence toward Ms. Wilson as aggravating factors. Furthermore, the judge found that his conduct manifested deliberate cruelty toward Ms. Wilson who, but for the interruption by one of Defendant’s co-employees, likely would have died.

The judge found that there is an undue risk that Defendant would re-offend during any period of a suspended or probated sentence and that he is in need of correctional treatment most effectively provided by commitment to an institution. Concluding that any lesser sentences would deprecate from the seriousness of his conduct, the judge sentenced him to 3 years at hard labor on the second degree battery conviction and to 38 years at hard labor without the benefit of probation, parole or suspension of | r,sentence on the attempted second degree murder conviction. The sentences were ordered to be served consecutively, and Defendant was given credit for time served.

Motions to reconsider the sentences imposed in each case were filed on April 7, 2011, wherein Defendant argued only that the consecutive sentences were excessive in light of the hardship the sentences would place on Defendant’s family. Both motions were denied on April 8, 2011. The instant appeal followed.

DISCUSSION

Assignment of Error Number One (verbatim): The trial court erred by imposing an unconstitutionally excessive sentence.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, and employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

Second degree murder is punishable by life imprisonment at hard labor. La. R.S. 14:30.1(B). The punishment for attempted second degree murder is imprisonment at hard labor for not less than 10 nor more than |750 years without benefit of parole, probation or suspension of sentence. La. R.S. 14:27(D)(l)(a).

Second degree battery is punishable by a fine of not more than $2,000 or imprisonment, with or without hard labor, for not more than five years, or both. La. R.S. 14:34.1.

In the case sub judice, Defendant received far below the maximum sentences for his crimes of conviction, both of which were crimes of violence committed against the mother of his five children. The second of these offenses could very likely have ended Ms. Wilson’s life. While the trial court took cognizance of Ms. Wilson’s request for leniency and arguably heeded it to some degree, the court would have been well within its discretion to disregard it. In their respective statements to the judge, Ms. Wilson and Defendant rely on the hardship the imposed sentences place on the family. Without minimizing the financial issues faced by Ms. Wilson and her children, we find them to be outweighed by the potential harm posed by Defendant to Ms. Wilson, the children and society.

The sentences imposed on this multiple-felony offender for the instant violent offenses were not grossly out of proportion to the seriousness of the offenses, were not a purposeless and needless infliction of pain and suffering and were not an abuse of the trial judge’s discretion. Accordingly, we find that Defendant’s sentences are not constitutionally excessive and his assignment of error lacks merit.

¡^CONCLUSION

For the foregoing reasons, the sentences of Defendant, Gregory D. Dixon, are affirmed.

AFFIRMED.