author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Harry Lee RICHARDSON, Appellant.
    No. 46,360-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.

      Louisiana Appellate Project, Monroe, LA, by Peggy J. Sullivan, for Appellant.
    Charles Rex Scott, District Attorney, William J. Edwards, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before PEATROSS, MOORE & LOLLEY, JJ.
   PEATROSS, J.

11 After a bench trial, Harry Lee Richardson, Defendant, was convicted of aggravated rape, a violation of La. R.S. 14:42. Defendant was sentenced to the mandatory term of life imprisonment at hard labor without the benefit of probation, parole or suspension of sentence. Defendant now appeals. For the reasons stated herein, Defendant’s conviction and sentence are affirmed.

FACTS

During the late night or early morning hours of May 11, 1994, in Shreveport, Louisiana, 83-year-old C.T. was at home alone, asleep in her bedroom, when two black males broke into her home and attacked her. C.T. was unable to recall exactly what time the attack occurred or how long it lasted. She reported that, at some point during the attack, she was rendered unconscious or fell asleep and when she awoke, the men were gone. After she regained consciousness, C.T. found that her telephone was not working and went outside her home seeking help.

Ms. Vivian Patterson, C.T.’s longtime next-door neighbor, heard her cries for help around 6:30 or 7:00 a.m. Ms. Patterson went outside and found C.T. wandering in her yard, crying hysterically and dressed in pajamas and a robe with bloodstains on it. C.T. saw Ms. Patterson and told her about the attack. Other neighbors heard the commotion and came outside their houses. Shortly thereafter, the police were called. Officers responding to the scene found the point of entry on the southwest side of the victim’s house where a window screen and window panes had been |2removed. Following the initial investigation, no suspects were developed and the file ultimately became a “cold case.”

Thirteen years later, in 2007, DNA samples from the case were tested and a match was found utilizing CODIS. The DNA of a black male named Rodney Washington matched the DNA found on samples taken from C.T. as part of her physical examination and rape kit which were administered after the attack. Detective Jeff Allday of the Shreveport Police Department (SPD) then began his “cold case” investigation into C.T.’s rape and found that a similar attack had occurred four blocks from C.T.’s home on July 15, 1994.

In the July 1994 attack, Washington and Defendant were arrested and, four months later, pled guilty to aggravated burglary. Det. Allday requested a fingerprint analysis for the evidence collected in C.T.’s case, ie., the fingerprint collected from the removed window screen on the southwest side of C.T.’s home, to known fingerprints of Washington and Defendant. After the analysis, it was determined that Defendant’s fingerprints matched those recovered from the removed window screen at the southwest side of C.T.’s home.

Defendant was interviewed by police and, after initial denials, ultimately admitted to breaking into C.T.’s home with Washington. Defendant also initially denied participating in the rape and attack of C.T.; | sbut, during the latter half of the interview, Defendant claimed that Washington forced him to attack C.T., so he only simulated acts of intercourse with her. When pressed to explain further, however, Defendant admitted that it was possible that he could have penetrated C.T. while he was simulating the act of intercourse with her, but he was unsure because he was under the influence of drugs at that time.

As previously mentioned, Defendant was arrested and charged with aggravated rape in violation of La. R.S. 14:42. A bench trial was held in June 2010, wherein Defendant was convicted as charged and sentenced to the mandatory term of life imprisonment without the benefit of parole, probation or suspension of sentence. This appeal ensued.

DISCUSSION

Assignment of E-itov Number Three (verbatim): The evidence adduced at trial was insufficient to convict Harry Lee Richardson of aggravated rape.

In his third assignment of error, Defendant contends that the State failed to present sufficient evidence at trial to support his conviction of aggravated rape. According to Defendant, the only evidence presented by the State connecting him to the crime was the fingerprint found on the removed window screen located on the southwest side of C.T.’s house. Defendant argues that he entered the home with Washington with only the intention of stealing money and food. Defendant claims that he had no intention of raping C.T. and was unaware that Washington planned to rape C.T. Defendant further claims that the scientific evidence in this case tends|4to exonerate him of the charge of rape because he was excluded as a possible donor of the DNA found on C.T. Defendant also asserts that the State failed to show that he was a principal to the rape since it was not proven that he aided or abetted in the rape in any way. We disagree.

La. R.S. 14:41 defines “rape” as the act of anal, oral or vaginal sexual intercourse with a male or female person without the person’s lawful consent. Emission is not necessary and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime. La. R.S. 14:41. At the time of the commission of the crime, La. R.S. 14:42 provided as follows:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
(4) When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
(5) When two or more offenders participated in the act.
B. For purposes of Paragraph (5), “participate” shall mean:
(1) Commit the act of rape.
(2) Physically assist in the commission of such act.
C. Whoever commits the crime of aggravated rape shall be Rpunished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

Regarding principals, La. R.S. 14:24 provides:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

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

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517. The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). The reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. Id.

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

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Sutton, 436 So.2d 471 (La.1983). An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. State v. Sutton, supra. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, supra; State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 07-2053 (La.3/7/08), 977 So.2d 896.

|7In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35.

The State’s first witness was T.S., who testified that her grandmother, C.T., lived alone at 228 West 69th Street in May 1994. T.S. also testified that C.T. was born on September 10, 1911, and had died three years prior to the beginning of the trial.

The State’s next witness was former SPD Officer Scott Spaulding, who testified that he was working for the sex crimes unit in May 1994 when he responded to a call that an elderly woman had been raped at 228 West 69th Street. Officer Spauld-ing was the lead investigator on the case; and, after speaking with patrol officers on the scene, he conducted a visual inspection of the house before attempting to speak to C.T. Officer Spaulding recalled that he was unable to conduct “much of an interview” with C.T. because she was extremely upset at that time.

Officer Spaulding further testified that C.T. was transported to LSU Hospital where a rape examination was performed and evidence was obtained for the rape kit. C.T. was also treated for injuries to her knees. Officer Spaulding took possession of the evidence collected for the rape kit 18until it was submitted to the crime lab for testing. Officer Spaulding was unable to make any arrests for the crime in 1994.

The State’s next witness was former SPD Officer James B. Walker, who testified that he worked as an investigator in the sex crimes unit in 1994. Officer Walker testified that, on July 15, 1994, he responded to a residential burglary where officers discovered that the victim had been raped. Washington was arrested for the crime shortly thereafter; and, during his interview, he provided the name of Defendant as a suspect in the crime. Defendant was arrested on several unrelated outstanding warrants, transported to the police station and interviewed with regard to the burglary and rape which occurred on July 15, 1994. Defendant admitted his involvement, was charged with aggravated burglary and pled guilty to the charge four months later in November 1994.

The State’s next witness was SPD Officer Danny Duddy of the crime scene investigations unit. Officer Duddy was qualified as an expert in the field of crime scene reproduction and fingerprint analysis. Officer Duddy testified that, at the crime scene, a point of forced entry was found at a window on the southwest side of the house where the window screen and pane had been removed. Officer Duddy noted that the inside of the house appeared neat, but blood was found on the sheets in a rear bedroom. The bedding was seized by officers and later tested for DNA evidence. An open 19wallet was found on the dresser and a checkbook was found on the floor next to the bed.

Officer Duddy obtained an identifiable fingerprint on the window screen that had been removed from the point of entry into the house. The fingerprint was preserved as evidence along with the other items seized from the house. At that time in 1994, Officer Duddy had no identified suspects, so no comparison was made with the fingerprint evidence.

Officer Duddy further testified that, in 2007, Det. Allday contacted him and requested that the fingerprint from C.T.’s case be compared to known fingerprints for Defendant and another black male, Washington. Officer Duddy performed the fingerprint analysis and concluded that the fingerprint from the removed window screen on the southwest side of C.T.’s home and the fingerprints on file linked to Defendant were a match.

Defendant was also fingerprinted in open court. Officer Duddy made a comparison of those fingerprints to the fingerprint analysis originally conducted linking known fingerprints from Defendant to the fingerprints on the removed window screen outside of C.T.’s home and concluded that the prints were a match. Additionally, fingerprints from the bill of information from the previous case in July 1994 were examined and compared to Defendant’s known fingerprints and Officer Duddy concluded that those fingerprints were also a match.

Another witness for the State was Ms. Patterson, C.T.’s neighbor. Ms. Patterson testified that she and C.T. had lived next door to each other |1flfor approximately 42 years and were “close neighbors” and friends. On the day of the incident, Ms. Patterson was in her kitchen between 6:30 a.m. and 7:00 a.m. when she heard someone hollering very loudly, “Someone help me! Someone help me!” Ms. Patterson went outside and saw C.T. walking in the yard between their houses before hurriedly walking over to Ms. Patterson’s yard. Ms. Patterson noticed that C.T. was very upset, nearly hysterical and wearing her pajamas and a robe with bloodstains on it. Over Defendant’s objection, Ms. Patterson was questioned regarding what C.T. told her that morning. Ms. Patterson testified:

She said, “Two Negros [sic ] broke into my house last night and,” [She] said, “they raped me over and over. They stole my valuables, my jewelry and some more valuables.” She didn’t say what else, but just “my valuables.” And she said, “It seems that they were there all night.”

Ms. Patterson further testified:

I just tried to console her. And I asked her couldn’t she — could she have tried to get help or, you know, do something. And she said, No, they threatened me that if I screamed or tried to get help, they would harm her [sic]. And she said, “And, too, I found out they tore up” — “my phone lines were disconnected when I came to, and they were gone.”

When asked if the victim stated how long the perpetrators were in the house, Ms. Patterson testified as follows:

No, she didn’t say and didn’t really have an idea.... I says [sic], “How long, you know, did this go on?” I said, ‘When did they break in?” And she says [sic], I don’t know what time it was, and they were doing so much and all until I either passed out or maybe they went out of the room and I dozed off or something happened.” [She] [s]aid, “I probably passed out. And when I woke up, they were gone.”

| uMs. Patterson recalled that her husband was present when C.T. related her recollection of the events and that the conversation lasted between five and ten minutes. Several other neighbors came outside in response to C.T.’s calls for assistance and one of the neighbors contacted police, who arrived shortly thereafter.

During the trial, the State introduced other crimes evidence, ie., testimony from the victims of the July 15, 1994 aggravated burglary that occurred a few months after the attack against C.T. One of the victims of the July 1994 case, D.P., testified that she and her three children were residing in the 400 block of East 65th Street and, during the early morning hours, she was awakened by the sound of her dogs barking. When she sat up in her bed, D.P. could see the shadow of a person peeking into her bedroom from the open bedroom door. D.P. sprang from her bed and attempted to turn on the bedroom light; but, before she could reach the light switch, the person who had been standing in the bedroom doorway grabbed her around her neck. According to D.P., the man who grabbed her “was barking orders at the other man,” who was in the hallway, to take the kids up to the front room and keep them there. The man then pushed D.P. down on her bed and choked her. Prior to losing consciousness, D.P. heard her children crying and yelling from another room.

When D.P. regained consciousness, the man holding her told her that he would kill her children if she did not do what he said. The man then raped D.P. She testified that she was unsure if he penetrated her, but she |12knew “he put his mouth down there.” D.P. further testified that she was uncertain as to what else he did to her because she tried to block everything out. D.P. was unsure how long the attack lasted, but she believed an hour had passed when a police officer pulled up to the house and began using a searchlight to look inside the house. The intruders then ran to the window they used to enter the home and left.

D.P. testified that the man in the living room appeared to take orders from the man who was assaulting her. After the police arrived and began investigating, officers discovered that the men had entered the home through a window of an unoccupied bedroom where the screen had been removed. D.P. testified that she had never been able to identify either of the perpetrators.

D.P.’s son, J.P., testified that he was about 10 years old when the incident happened in July 1994. J.P. testified that he was awakened by the sound of dogs barking and his mother’s screams. When he walked toward his mother’s room, he saw two men in the room, one holding his mother on the bed and the other man standing near the bed. When the men noticed J.P. in the doorway, the man standing near the bed took him back into the living room of the house where he and his sisters had been sleeping. J.P. sat on the floor with his youngest sister while his older sister sat on the sofa. The man who was in the room with them sat next to his older sister on the sofa and began touching his sister on various parts of her body. When the man saw police vehicle lights outside the house, he ran out of the house through 113the front door. J.P. was unsure when or where the man who had been in his mother’s room exited the house.

D.P.’s daughter, M.P., also testified with regard to the July 1994 attack. M.P. testified that she was seven years old at the time of the attack. She recalled first hearing her mother screaming in the middle of the night. M.P. and her brother then walked to their mother’s room and saw a man choking their mother while another man stood by the door. The man choking the children’s mother ordered the man standing near the door to take the children back into the living room. The man walked them back to the living room and told M.P. to sit in a chair. Once M.P.’s brother and sister were seated on the floor, the man told M.P. to remove her clothes, so she did. M.P. testified that the man began touching her “everywhere,” including her hair, face, arms, stomach, legs and in between her legs. He then pulled down his shorts and started rubbing his penis on M.P.’s vagina. M.P. stated that the man “started to go in me,” but the police arrived, so he got up, yelled to the other assailant and ran out of the front door. M.P. was not sure where the other man ran or how he left the house.

Another witness for the State was SPD Det. Allday who testified that he was assigned to work the May 1994 “cold case” involving C.T. Det. Allday testified that DNA evidence from C.T.’s case was tested and matched with evidence found in the CODIS database for Washington. Det. Allday then found the report regarding the incident involving D.P. where Washington and Defendant had been arrested. Det. Allday observed that the two crimes had occurred within four blocks of each other. [ 14Pet. Allday requested a fingerprint comparison of the fingerprint from the window screen on the southwest side of C.T.’s home to the known fingerprints of Defendant and Washington and discovered a match to Defendant. Det. Allday re-interviewed several of the case witnesses, including C.T., and learned during his interview with C.T. that she would not be competent to testify at a trial.

Det. Allday then located Defendant, advised him of his Miranda rights, obtained a waiver of rights form and subsequently conducted a recorded interview at the police station. During the interview, Defendant initially denied his involvement altogether, but later admitted to breaking into C.T.’s home with Washington wherein he claimed to have been forced by Washington to sexually assault C.T. Defendant stated that he only intended to simulate the act of intercourse with C.T., but then admitted that it was possible that he could have penetrated the victim though he could not be certain since he was heavily intoxicated from drugs and alcohol at the time. At the conclusion of the interview, Det. Allday obtained a DNA sample from Defendant via buccal swab pursuant to a search warrant. Defendant’s connection to the crime was established through his fingerprint found at the scene, as well as through his confession.

Dr. Linda Prentis also testified for the State as an expert in the fields of obstetrics and gynecology. Dr. Prentis conducted C.T.’s physical examination and collected evidence for the rape kit. During the examination, Dr. Prentis learned from C.T. that she had been assaulted by 11fitwo men who performed anal and vaginal sex on her. Dr. Prentis collected hair samples and fingernail scrapings and conducted a complete physical examination of C.T. Dr. Prentis observed during the exam that C.T. was tearful and trembling and had blood on the upper portions of her leg and in the areas around her vagina and rectum. Blood and fluid were found inside C.T.’s vagina; and, according to Dr. Pren-tis, this typically would not be found in the vagina of a woman that was C.T.’s age unless there was some type of vaginal trauma that caused a tear in the “delicate lining of the vagina.” C.T.’s injuries were consistent with her complaints of being “sexually penetrated.” C.T. reported to Dr. Prentis that she had not had intercourse since March 1970, approximately 24 years prior to the rape.

Ms. Anna Komitov also testified for the State as an expert in the field of DNA analysis. Ms. Komitov conducted the second round of DNA testing and issued her findings in a supplemental report. As a result of her testing and analysis of the anal swab taken from the physical examination of C.T., Ms. Komitov concluded that Washington could not be excluded as a donor of the seminal fluid found thereon. Defendant’s DNA was not found in any of the samples tested.

The State and Defendant entered a stipulation regarding the testimony of Connie Brown, who would have qualified as an expert in the field of forensic DNA analysis. Ms. Brown would have testified that she analyzed the panties collected from C.T. at the hospital and that the analysis determined that semen was present on the panties. The DNA profile was entered into the CODIS system and returned as a match for Washington.

[lfiAt this point in the trial, the State rested its case. The defense did not present any witnesses and rested its case.

We find that the evidence presented at trial by the State was sufficient to support Defendant’s aggravated rape conviction. The State was able to establish through the testimony of the victim’s granddaughter that the victim was older than 65 years of age at the time of the incident. Through the testimony of Ms. Patterson and Dr. Prentis, the State was able to show that C.T. reported that she had been attacked in her home by two men who raped and robbed her and prevented her from resisting by threats of violence against her. C.T.’s statements regarding her injuries and the attack were corroborated by Dr. Prentis’s physical examination, which was conducted shortly after the attack was reported. Moreover, DNA testing confirmed that Washington’s seminal fluid was found on or near C.T.’s anus, as well as on the panties she was wearing when she arrived at the hospital.

The fact that Defendant’s DNA was not found on C.T. does not exonerate him of the crime. Defendant, by his own admission, participated in the rape by “pretending” to rape C.T. Further, Defendant admitted that it was possible that he penetrated the victim. Emission is not required to sustain a conviction of aggravated rape. La. R.S. 14:41.

Defendant’s own admission and DNA evidence proved that Defendant was an active participant in breaking into C.T.’s home. There is no evidence in the record to support Defendant’s allegations that he only entered C.T.’s house for food and money or that he was intimidated or scared into attacking and raping C.T.

| ^Additionally, the crimes committed against C.T. in May 1994 were very similar to the crimes committed against D.P. and her children in July 1994. DNA evidence linked both Washington and Defendant to the crimes in that, in both incidents, they entered the windows of the victims’ homes during the late night/early morning hours and committed sexual assaults against them. Considering all the evidence presented at trial, a reasonable trier of fact could have determined that the evidence was sufficient to support Defendant’s aggravated rape conviction.

This assignment of error is without merit.

Assignment of Error Number One (verbatim): The trial court erred in admitting hearsay testimony from Vivian Patterson regarding statements made to her by [C.T.].

In his first assignment of error, Defendant argues that the testimony of the statements made to Ms. Patterson by C.T. were inadmissible hearsay and that the admission of those statements into evidence violated his Sixth Amendment right to confront his accusers. Defendant contends that the State failed to prove the exact length of time between the attack and the moment when C.T. reported the incident to Ms. Patterson; and, consequently, it is impossible to determine if C.T.’s statements were excited utterances. Defendant further asserts that, if this court determines that C.T.’s statements were excited utterances, their admission into evidence, nevertheless, violated Defendant’s right to confront the witnesses against him. Defendant contends that C.T.’s statements should be considered testimonial and, therefore, inadmissible. We disagree.

hsLa. C.E. art. 801 provides that hearsay is an oral or written assertion, other than one made by the declarant while testifying at the present trial or hearing, offered into evidence to prove the truth of the matter asserted. Hearsay evidence is not admissible except as otherwise provided by the Code of Evidence or other legislation. La. C.E. art. 802. Hearsay is excluded because the value of the statement rests on the credibility of the out-of-court asserter, who is not subject to cross-examination and other safeguards of reliability. State v. Martin, 458 So.2d 454 (La.1984).

An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition; the statement is not excluded by the hearsay rule, even though the declarant is available as a witness. La. C.E. art. 803(2). This exception requires an occurrence or event sufficiently startling to render the declarant’s normal reflective thought process inoperative. State v. Martin, 39,846 (La.App.2d Cir.8/17/05), 913 So.2d 863, writ denied, 06-0110 (La.6/14/06), 929 So.2d 1267; State v. Reaves, 569 So.2d 650 (La.App. 2d Cir. 1990), writ denied, 576 So.2d 25 (La.1991). Furthermore, the statement of the declar-ant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought. State v. Henderson, 362 So.2d 1358 (La.1978).

In determining whether the de-clarant was under the stress of excitement caused by an event, the courts consider the time span between the event and the statement the most important factor. The trial court must determine whether the interval between the event and the statement was of | ^sufficient duration to permit a subsidence of emotional upset and a restoration of a reflective thought process. State v. Jasper, 28,187 (La.App.2d Cir.6/26/96), 677 So.2d 553, writ denied, 96-1897 (La.2/21/97), 688 So.2d 521. Additional factors that may indicate that a statement was the result of a reflective thought are evidence that the statement was self-serving, made in response to an inquiry, an expansion of the excited utterance beyond a description of the event and into past or future facts or proof that, between the event and the statement, the declarant performed tasks that required a reflective thought process. Henderson, supra; Jasper, supra. These factors, however, do not automatically justify exclusion. Henderson, supra; Jasper, supra. The Louisiana Supreme Court has long held that the admission of hearsay testimony is harmless error where the effect is merely cumulative or corroborative of other testimony adduced at trial. State v. Johnson, 389 So.2d 1302 (La.1980); State v. McIntyre, 381 So.2d 408 (La.1980), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 90 (1980).

The confrontation clause of the Sixth Amendment provides that “[in] all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. Amend. VI. This bedrock procedural guarantee applies to both federal and state prosecutions. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The Sixth Amendment safeguards the defendant’s right to confront his accusers and to subject them testimony to rigorous testing in an ^adversary proceeding before the trier of fact. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

The confrontation clause acts as an absolute bar on the admission of all out-of-court testimonial evidence unless: (1) the witness who made the statement is unavailable to testify in court, and (2) the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, supra; State v. Smith, 04-3140 (La.6/24/05), 906 So.2d 391. Confrontation rights claims are subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); State v. Robinson, 01-0273 (La.5/17/02), 817 So.2d 1131.

Ms. Patterson’s testimony regarding C.T.’s statements was an oral assertion being offered in evidence to prove the truth of the matter asserted. To be admissible, therefore, C.T.’s statements would have to meet an exception to the hearsay exclusion. C.T.’s statements were made to Ms. Patterson following the traumatic events of rape and robbery during which time C.T. was crying, nearly hysterical and seeking help. Officer Spaulding recalled that he was unable to conduct “much of an interview” because C.T. was extremely upset at the time he arrived on the scene, this being some time after C.T. initially spoke to Ms. Patterson.

While the time span between the incident and the victim’s statements about the incident is a factor to be considered, it is not the lone determining factor. Even without knowing exactly when the perpetrators left her home, C.T. was certainly still under the stress of excitement caused by the rape and robbery that had taken place. Considering C.T.’s age, her perceived length | ⅞] of the event, as well as her state of mind and demeanor when she reported the events to Ms. Patterson, it can reasonably be concluded that C.T. was still under the stress of excitement caused by the startling events. We, therefore, find no error in the trial judge’s ruling that C.T.’s statements to Ms. Patterson fell under the excited utterance exception to the hearsay exclusion and, thus, were properly admissible into evidence.

Defendant further argues, however, that his constitutional right to confrontation was violated by admission of the statements because C.T. was unavailable to testify at the trial since she died prior to the beginning of the proceedings.

Under the Crawford v. Washington, supra, analysis, given C.T.’s unavailability to testify at trial, the admissibility of C.T.’s statements depends upon whether or not they were testimonial in nature. In State v. Griffin, 45,045 (La.App.2d Cir.1/27/10), 30 So.3d 1039, writ denied, 10-0447 (La.9/17/10), 45 So.3d 1043, this court, citing Crawford, supra, noted the following:

The court in Crawford declined to provide an explicit definition of testimonial evidence, but the opinion explains: An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The fact that a statement is made to a person who is not a government officer does not, as a bright line, necessarily mean that the statement is not “testimonial” within the ambit of the Sixth Amendment. Courts have been much more reluctant, however, to find a statement made to a non-governmental officer to be testimonial. For example, in State v. Heggar, 39,915 (La.App.2d Cir.8/17/05), 908 So.2d 1245, this court found the present-sense impressions of a victim made over the telephone to a witness immediately prior to the victim’s murder to be non-testimonial in nature. There was nothing to suggest that the victim believed that his statements would ever be used for ^formal purposes such as a trial. See also State v. Parks, 08-423 (La.App. 5th Cir.11/25/08), 2 So.3d 470, writ denied, 09-0142 (La.10/2/09), 18 So.3d 101.

In the case sub judice, C.T.’s statements to Ms. Patterson were merely an attempt to explain her situation to her neighbor so she could get help following the traumatic event. Considering C.T.’s near hysterical state, as described by Ms. Patterson, it is impossible to conclude that C.T. believed the statements she was making at that time, in an effort to get help after being raped and robbed in her home, would ultimately be used in a formal proceeding. Considering the totality of the circumstances, it can reasonably be concluded that C.T.’s statements to Ms. Patterson were not testimonial in nature and Defendant’s argument to the contrary is without merit.

Assignment of Error Number Two (verbatim,): The trial court erred in admitting other crimes evidence, specifically, evidence of a subsequent incident involving [D.P.],

In his second assignment of error, Defendant argues that the trial judge erroneously admitted testimony and evidence regarding his prior conviction for aggravated burglary and the sexual assaults that occurred during the burglary. Defendant argues that the State only presented this evidence to portray him as a “bad man.” He further asserts that the evidence was not necessary or relevant to the State’s presentation of the instant case and that the prejudicial effect of the other crimes evidence outweighed its probative value. Again, we disagree.

Generally, evidence of other acts of misconduct is not admissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes that he is a “bad | ^person.” La. C.E. art. 404(B)(1); State v. Jackson, 625 So.2d 146 (La.1993). This rule of exclusion stems from the “substantial risk of grave prejudice to the defendant” from the introduction of evidence regarding his unrelated criminal acts. State v. Prieur, 277 So.2d 126 (La.1973).

Evidence of other crimes, however, may be admissible if the State establishes an independent and relevant reason, i.e., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. art. 404(B)(1); State v. Roberson, 40,809 (La.App.2d Cir.4/19/06), 929 So.2d 789. Even when other crimes evidence is offered for a purpose allowed under Article 404, the evidence is still not admissible unless it tends to prove a material fact at issue or to rebut a defense. The probative value of the extraneous crimes evidence must outweigh its prejudicial effect. La. C.E. art. 403; State v. Jacobs, 99-0991 (La.5/15/01), 803 So.2d 933, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002); State v. Hatcher, 372 So.2d 1024 (La.1979).

A trial court’s ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996); State v. Caston, 43,565 (La.App.2d Cir.9/24/08), 996 So.2d 480; State v. Cooks, 36,613 (La.App.2d Cir.12/4/02), 833 So.2d 1034.

| ?/[For evidence of other crimes to be admissible, the state must: 1) prove with clear and convincing evidence that the other acts or crimes occurred and were committed by the defendant; 2) demonstrate that the other acts satisfy one of the requirements of La. C.E. art. 404 B(l), i.e., motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident; and 3) show that the probative value of the evidence outweighs its prejudicial effect. State v. Jackson, supra.

In the case sub judice, the State initially provided notice to Defendant that it intended to present evidence of three prior crimes involving obscenity, forcible rape and aggravated burglary. Evidence of these crimes was presented during the Prieur hearing. At trial, however, the State only presented evidence of the prior conviction for aggravated burglary.

Based on the record before this Court, it does not appear that the trial judge erred in admitting the other crimes evidence. The State presented testimony from the victims of an aggravated burglary in which a mother and her daughter were sexually assaulted. The State contends that it admitted the evidence to show opportunity, intent, plan, knowledge and identity.

The State was able to prove with clear and convincing evidence, ie., DNA fingerprint analysis, that the other acts or crimes occurred and were committed by Defendant. Despite the fact that the July 1994 aggravated burglary occurred after the instant offense, it was, nevertheless, properly admissible to show intent, identity and knowledge. The “other crime” was committed in a similar fashion as the instant offense, where Defendant and Washington broke into the victims’ homes through a window during the late l2snight/early morning hours and then sexually assaulted them. Both crimes occurred within a short radius of each other, both locations were near Defendant’s home and the two crimes happened within a few months of each other.

Additionally, the State was able to show that the probative value of the evidence outweighed its prejudicial effect. The similarity of the acts in both crimes was highly probative of Defendant’s criminal intent, identity and knowledge. Accordingly, we find no error in the trial judge’s ruling admitting the other crimes evidence at trial.

This assignment of error is without merit.

Assignment of Error Number Four (verbatim): The sentence of life in prison without benefit of probation, parole, or suspension of sentence is excessive under the facts and circumstances of this case.

In his fourth assignment of error, Defendant argues that, despite the mandatory nature of the sentence for aggravated rape, his sentence is excessive under the facts and circumstances of this case. Defendant supports this assertion by pointing out that the offense against the victim took place 13 years before prosecution was instituted and 16 years before trial. Defendant also contends that his “pretending to participate in a rape out of fear for his life hardly makes [him] the worst of offenders.” Finally, Defendant argues that a lesser sentence would be appropriate considering the fact that Washington received an 80-year sentence. We are not persuaded by Defendant’s arguments.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show 12r,that the trial judge 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, 438 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. Lanclos, 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, employment record), prior criminal record, the seriousness of the 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.

Where there is a mandatory sentence, there is no need for the trial judge to justify, under article 894.1, a sentence it is legally required to impose. State v. Burd, supra; State v. Koon, 31,177 (La.App.2d Cir.2/24/99), 730 So.2d 503.

In State v. Dorthey, supra, the supreme court held that, in habitual offender cases, the downward departure from a mandatory minimum sentence may occur in rare circumstances if the defendant rebuts the presumption of constitutionality by showing clear and convincing evidence that he is exceptional, namely, that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender and the circumstances of the case. Id. This rule has been extended to mandatory sentences beyond habitual offender cases. State v. Fobbs, 99-1024 (La.9/24/99), 744 So.2d 1274; State v. Chandler, 41,063 (La.App.2d Cir.9/8/06), 939 So.2d 574, writ denied, 06-2554 (La.5/11/07), 955 So.2d 1277.

| ¡y/rhe “rare circumstances” under which a mandated sentence can be altered are even less likely in the case of a life sentence chosen by the legislature for a single crime, such as aggravated rape or second degree murder. State v. Chandler, supra. In such crimes, unlike the mandatory minimum sentence under the habitual offender law, the “tailoring” of the sentence by the legislature was for life because the culpability of the offender and the gravity of the offense are so great. Id.

In the case sub judice, Defendant has failed to present any evidence that would warrant or justify a downward departure from the mandatory life sentence imposed by the trial judge. Defendant has a history of sexually assaultive behaviors and crimes against persons. He has provided no meritorious argument to substantiate his request for a lesser sentence and he has failed to show that rare circumstances exist in this case.

Considering the heinous nature of the crime committed against Defendant’s elderly, defenseless victim, we cannot say that this sentence is grossly out of proportion to the seriousness of the offense, nor is it nothing more than a purposeless and needless infliction of pain and suffering. Moreover, Defendant’s punishment, when viewed in light of the harm done to society, does not shock the sense of justice.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Harry Lee Richardson, are affirmed.

AFFIRMED.

      . In accordance with La. R.S. 46:1844, all victims mentioned in this case will be referred to by their initials instead of their names.

      . In general, a case becomes a "cold case” when detectives are unable to develop legitimate leads and/or suspects and, as a result, investigation efforts cease to continue.

      .The "Combined DNA Index System” is a database funded by the United States Federal Bureau of Investigation (FBI) that stores DNA profiles created by federal, state and local crime laboratories in the United States which can be electronically searched to assist in the identification of crime suspects.

      . In the original indictment, Defendant was also charged with armed robbery in violation of La. R.S. 14:64; however, the charge was later dismissed by the State prior to the commencement of trial.

      . Currently retired.

      . Currently retired.

      .A free and voluntary hearing was conducted and the trial judge ruled that Defendant's statement during this interview was freely and voluntarily made and was, therefore, admissible.

      . State v. Harry Lee Richardson, Docket No. 170,806 (Aggravated burglary).

      . Ms. Patterson’s husband was in poor health and unable to attend the court proceedings.

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


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. David Carey SHOUPE, Appellant.
    No. 46,395-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.

      Douglas Lee Harville, Louisiana Appellate Project, for Appellant.
    David Carey Shoupe, Pro se.
    Charles R. Scott II, District Attorney, Jacob Broussard, Kenya Ellis, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and PEATROSS, JJ.
   CARAWAY, J.

|, David Carey Shoupe was convicted as charged of fourth offense driving while intoxicated in violation of La. R.S. 14:98. The state then applied Louisiana’s Habitual Offender Law, and Shoupe was adjudicated a second-felony offender. Shoupe received an enhanced sentence as a second-felony offender of 20 years at hard labor without benefit of parole, probation or suspension of sentence. He appeals his conviction and sentence. We affirm Shoupe’s conviction and amend his sentence to delete all but 60 days of the parole prohibition.

Facts

David Carey Shoupe was arrested in the early morning hours of July 3, 2008, after his vehicle collided with a parked car and he left the scene of the accident in a Shreveport neighborhood. Upon locating Shoupe, the responding officers noticed that he smelled of alcohol, was impaired, staggered, stumbled and slurred his speech. When Shoupe refused to provide a breath sample for analysis he was subsequently charged with driving while intoxicated, fourth offense, on the grounds that he operated a motor vehicle “while under the influence of alcoholic beverages and/or prescription drugs.” A unanimous jury convicted Shoupe as charged on May 13, 2010. Shoupe was adjudicated a second-felony offender and was sentenced to 20 years at hard labor without benefit of parole, probation, or suspension of sentence. After the denial of a timely motion to reconsider sentence, this appeal ensued.

| ^Discussion

Shoupe’s appeal includes an argument that the evidence produced at trial was insufficient to support his conviction. When a sufficiency claim is raised, it should be the first claim considered. Other errors are irrelevant if the evidence is insufficient to support a conviction. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).

Specifically, Shoupe contends that the state failed to prove beyond a reasonable doubt that he was under the influence of alcohol or drugs on July 3, 2008, and that the accident occurred because he was “exhausted.” Further Shoupe argues that an eyewitness to his condition testified that he did not stagger “that much,” and the alcoholic smell could have been transferred from his girlfriend (who was drinking), after he kissed her good night. He finally argues that the stagger occurred on account of his bad knee, and he notes there was no chemical test to confirm he ingested alcohol.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. |sart. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529. See also, State v. Guilleard, 44,482 (La.App.2d Cir.12/9/09), 26 So.3d 865, writ denied, 10-0101 (La.9/3/10), 44 So.3d 696 (same deference applies to bench trial).

In 2008, the relevant provisions of La. R.S. 14:98 read as follows:

(1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when:
(a) The operator is under the influence of alcoholic beverages; or
(b) The operator’s blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; or
(c) The operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964; or
(d)(i) The operator is under the influence of a combination of alcohol and one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription.
(ii) It shall be an affirmative defense to any charge under this Subparagraph pursuant to this Section that the label on the container of the prescription drug or the manufacturer’s package of the drug does not contain a warning against combining the medication with alcohol.
|4(e)(i) The operator is under the influence of one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription.
(ii) It shall be an affirmative defense to any charge under this Subparagraph pursuant to this Section that the operator did not knowingly consume quantities of the drug or drugs which substantially exceed the dosage prescribed by the physician or the dosage recommended by the manufacturer of the drug.

In order to convict an accused of driving while intoxicated, the prosecution must prove that the defendant was operating a vehicle while under the influence of alcohol or drugs. La. R.S. 14:98(A)(l)(a); State v. Minnifield, 31,527 (La.App.2d Cir.1/20/99), 727 So.2d 1207, writ denied, 99-0516 (La.6/18/99), 745 So.2d 19.

Some behavioral manifestations, independent of any scientific test, are sufficient to support a charge of driving while intoxicated. State v. McDonald, 33,013 (La.App.2d Cir.3/1/00), 754 So.2d 382, 386; State v. Pitre, 532 So.2d 424 (La.App. 1st Cir.1988), wiit denied, 538 So.2d 590 (1989). It is not necessary that a conviction for DWI be based upon a blood or breath alcohol test, and the observations of an arresting officer may be sufficient to establish a defendant’s guilt. Intoxication is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330 (La.1983); State v. Blackburn, 37,918 (La.App.2d Cir.1/28/04), 865 So.2d 912; State v. McDonald, supra. A defendant’s refusal to take the breath test is admissible at a DWI prosecution; the weight of the evidence is left to the trier of fact. La. R.S. 32:666(A)(3); State v. Dugas, 252 La. 345, 211 So.2d 285 (1968), cert. denied, 393 U.S. 1048, 89 S.Ct. 679, 21 L.Ed.2d 691 (1969); State v. Blackburn, supra; State v. Washington, 498 So.2d 136 (La.App. 5th Cir.1986).

Is At trial of this matter, the state called Shreveport Police Officer Ariella Ortis to testify. Officer Ortis testified that she was on patrol the night of July 3, 2008, and responded to a hit-and-run complaint at the intersection of Thornhill and Gladstone. Shoupe’s van had collided with another vehicle and the van was missing a tire. Officer Ortis could not describe the van, but she recalled that the other vehicle was parked. There were no other vehicles involved, and the vehicles were unoccupied when she arrived. Based on Officer Ortis’ observations, it was her opinion that the driver of the van “was at fault for the accident.”

Officer Ortis testified that Shoupe was found about two or three blocks from the scene of the accident. He was walking alone and “he appeared [to be] impaired.” When Officer Ortis approached Shoupe, he admitted his involvement in the hit-and-run accident. Shoupe was arrested and returned to the scene where he admitted to being the driver of the minivan although he could not remember what happened in the accident.

Based on the position of the vehicles, Officer Ortis concluded that Shoupe was driving south on Gladstone or Thornhill, and the other vehicle was parked “on the other side of the street.” Officer Ortis concluded that Shoupe drove outside his lane, and veered “all the way to the left.” Officer Ortis saw gouge marks all the way down the street, but she did not know where they began. She believed they were caused by Shoupe when he drove without a tire. The police never located the tire.

Officer Ortis testified that Shoupe smelled like alcohol and staggered when he walked. Although she did not know what time she responded to | fithe call, she said “it was about the middle of the night.” Officer Ortis testified that the street was fairly well lit, and that Shoupe should have seen the parked car.

The testimony of two other police officers who also observed Shoupe at the scene corroborated Officer Ortis’s conclusion regarding Shoupe’s intoxication. Officer Jeffrey Couch testified that Shoupe claimed to be walking home when he was arrested. Shoupe said that “he lived with his mother” a “block or two” from the crash site. Shoupe also reported to Officer Couch that he had recently had knee surgery.

Officer Anthony Kelly testified that he performed the Horizontal Gaze Nystagmus test on Shoupe, and a dashboard video of the test was introduced. Shoupe scored six clues of intoxication, and Officer Kelly could “detect the odor of alcoholic beverage[s] on him.” According to Officer Kelly, Shoupe said he “didn’t have any alcoholic beveragefs], but he was on Xanax ... Soma and Lortab.”

Knowing those drugs enhanced the effect of alcohol, Officer Kelly believed Shoupe was impaired. He also testified that Shoupe exhibited “slurred speech,” imbalance, and an inability to follow directions. Officer Kelly recalled a scar on Shoupe’s left knee.

Officer Kelly testified that Shoupe was transported to selective enforcement where he refused the walk-and-turn and one-legged-stand tests. He was read his rights and signed a form indicating his refusal. The forms were introduced into evidence, and indicated Shoupe’s level of | impairment as “extreme,” the odor of alcohol was “moderate” and that Shoupe was “falling” and “swaying” and his speech was “incoherent,” “stuttering,” and “slurred.” Officer Kelly testified that Shoupe “dozed off’ during his investigation.

Shoupe also refused to submit to a Breathalyzer test. Officer Kelly testified that was unusual because Shoupe claimed he had not consumed alcohol. While he was in the observation room, Shoupe’s impairment became “more evident” as the investigation progressed.

At some point Shoupe asked “about having — doing a blood test.” Officer Kelly testified that blood tests customarily occur when a suspect is injured or hospitalized and that selective enforcement does not have the capability to take blood for a blood kit at the police station. Officer Kelly testified that blood tests must be done at the hospital. Blood tests are not typically conducted during DWI investigations.

On cross-examination, Officer Kelly confirmed that the selective enforcement room contains a video camera which records everything that occurs in the room. To activate the camera, an officer must turn it on upon entering the room. Officer Kelly said he initiated the video recorder at the beginning of his investigation. When his investigation concluded, he deposited the VHS recording with the sergeant or supervisor in charge of the property room. He did not know how or why it later became lost. He had not been in touch with the video since it was done in 2008.

[sJustin Lee Price was in a nearby residence and responded after the collision. He called the police in the immediate aftermath of the crash. Price testified to his encounter with Shoupe, as follows:

So we went down and asked him if he was okay. And he said he was fine and everything. He didn’t know what happened or how it happened or whatever. And then so I proceeded to call the cops, and I said, I’m calling the cops for you to get some help. Okay. And he was— as soon as I said that, he turned around, and he just — he tossed me his keys and said I’m too F’d up for this, I’ve got to go home, and he started to walk off from the scene.

In addition to his keys, Shoupe left his driver’s license with Price.

The defense called Shoupe’s mother to the stand. Doris Shoupe testified that she resides at 919 Elmwood Street, Shreveport, Louisiana and that Shoupe was living with her when he was arrested on July 3, 2008. She testified that her son had undergone surgery on his neck, back, and knee and had to wear a knee brace for a while. He was arrested shortly after knee surgery, and he was on medication for pain.

Doris Shoupe produced prescription receipts which were entered into evidence and demonstrated Shoupe had filled prescriptions through June 2008. Ms. Shoupe was aware of her son’s previous DWI convictions. She testified that Shoupe did not drink alcohol in her presence and that she did not have any alcohol in the house.

Shoupe testified in his own defense. He admitted that he had been convicted of DWI on four prior occasions in the last 10 years. He had also been convicted of aggravated burglary, cruelty to animals, and violating a restraining order. Shoupe received a knee brace after surgery and attributed his alleged “staggering” to the fact that he could “barely walk.” Shoupe | testified that he endured other surgeries as well and had received numerous prescriptions on account of his health. He had been taking Soma and Lortab since his neck/back surgery. Shoupe testified he was taking the drugs as prescribed, and was well aware of his tolerance. Shoupe also discussed the Xanax found in his van. He testified it was prescribed to alleviate his anxiety and schizophrenia, and that he did not abuse it.

On the night of his arrest Shoupe testified that he was on his way home, after spending the day with a woman “to make [his] ex jealous.” He attributed his smell of alcohol on his breath to his kissing of the woman who had been drinking.

While driving down Kings Highway, he “had a blowout,” but he decided to continue down Thornhill. He had “another blowout,” and that is when he “lost control.” Shoupe testified that he “nicked” the other car, because it was almost in the middle of the road, and the police arrived shortly thereafter. Shoupe testified he was not trying to flee the scene.

In the selective enforcement room, Shoupe confirmed that he refused to provide a breath sample to conduct a Breathalyzer test. He said he had “brushed his teeth and used some Listerine” earlier in the night and was concerned a sample would result in a false-positive. Accordingly, he requested “a blood test and urinalysis” instead. Shoupe vehemently denied drinking before his arrest but admitted to taking his medication earlier in the day.

Shoupe addressed the “walk-and-turn” and “one-legged-stand” tests during his testimony. According to Shoupe, his knee would not allow him|into perform the tests. Despite that, he claims he was cooperative with the officers in the selective enforcement room.

Viewing this evidence in a light most favorable to the state, we find it sufficient to convict Shoupe of fourth offense driving while intoxicated. We note that Louisiana’s definition of the offense of driving while intoxicated includes operators of vehicles under the influence of a combination of alcohol and one or more drugs which are legally obtained with or without a prescription. The bill of information reflected such combined use.

Shoupe admitted he was driving a minivan at 3:00 a.m. from Bossier City to Shreveport, had taken prescription drugs at some time before the accident, crashed into a parked vehicle, abandoned his minivan and left the scene. Before he did, the evidence shows he gave his keys to an unknown individual and used terms which indicated his impaired state. Three officers observed Shoupe’s slurred speech, imbalance and inability to follow directions. His breath smelled like alcohol and he failed the Horizontal Gaze Nystagmus test. At the police substation, he refused to submit a breath sample for chemical analysis. He was unconscious at various times after his arrest, and he admitted prescription drug use during the day. Although Shoupe offered a limited explanation for his conduct, his testimony was uncorroborated and contradictory. The jury obviously rejected his rendition of the facts regarding whether he had been drinking. With Shoupe’s admission of his previous convictions and the officers’ observations, the remaining evidence is sufficient to show that Shoupe | n operated a motor vehicle while under the influence of alcohol and drugs. Thus, this assignment of error regarding the sufficiency of the evidence is without merit.

Shoupe next argues that he was denied the right to a fair trial because the state failed to provide him with the video recording of Officer Kelly’s investigation in the selective enforcement room the night he was arrested. Specifically, Shoupe maintains he was denied the opportunity to examine the tape which could have produced exculpatory evidence and rebutted the testimony of the arresting officers. He alleges the tape was lost because of the state’s “cavalier treatment of the recording,” and he requests this court vacate his sentence and overturn his conviction. During trial, the state maintained the position that the tape was inadvertently lost.

On April 12, 2010, before trial began, Shoupe filed a “Motion to Dismiss for Failure to Disclose Potential Favorable Evidence.” Although Shoupe received a dashboard recording of his arrest, he did not receive a recording from the police station selective enforcement room. Shoupe alleged that the state lost the police station video and deprived him of potentially favorable evidence that would show he was not intoxicated at the time of his arrest. He moved to dismiss the case and, after a hearing on the matter, the court denied the motion. Shoupe’s request for reconsideration of the motion was also denied.

Due process requires that the state provide a defendant with any exculpatory evidence in its possession which is material to the defendant’s guilt or punishment, regardless the good faith or bad faith of the prosecutor. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). Where a defendant claims that his due process rights have been violated due to the state’s failure to preserve potentially useful evidence, the defendant has the burden of showing that the state acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988). In California v. Trombetta, 467 U.S. 479, 488-489, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984), the United States Supreme Court explained:

Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, [... ] evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

Id., 467 U.S. at 488-489, 104 S.Ct. at 2534 (internal citations omitted).

In the very similar case of State v. Schexnayder, 96-98 (La.App. 5th Cir.11/26/96), 685 So.2d 357, writ denied, 97-0067 (La.5/16/97), 693 So.2d 796, cert. denied, 522 U.S. 839, 118 S.Ct. 115, 139 L.Ed.2d 67 (1997), the defendant claimed that the state destroyed his car, which deprived him access to important exculpatory evidence. At trial, the officers-testified that an inventory search of his car was conducted and no evidence was seized from the car and no photographs were taken. The car was later destroyed. The defendant argued that he was deprived of the opportunity to impeach state witnesses without the car as evidence. The appellate court determined that the defendant did not offer sufficient proof that the state acted in bad faith in destroying the car and that the defendant failed to show that the car | ishad apparent exculpatory value prior to its destruction. Id., 685 So.2d at 365-66.

In State v. Harris, 01-2730 (La.1/19/05), 892 So.2d 1238, cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005), the Louisiana Supreme Court found no merit in the defendant’s argument that his due process rights were violated when DNA evidence was destroyed and he was prevented from testing it. The court noted that the defendant did not allege bad faith by the state in the evidence’s destruction and the destruction of the DNA samples “allowed defense counsel to criticize the police’s investigation of the crime and cast doubt on the police’s handling of the entire case.” Id., 892 So.2d at 1253, n. 31.

In this matter, Shoupe was allowed unlimited cross-examination of Officer Kelly regarding the tape’s disappearance. Shoupe has neither alleged nor proven bad faith on the part of the state in the loss of the evidence. Moreover, the evidence revealed Shoupe’s intoxication by the reports of the officers at the scene, while later, in the selective enforcement room, no walking or standing tests were administered. Therefore, Shoupe has not demonstrated the missing tape’s apparent • exculpatory value. Considering the facts and applicable law, we find that Shoupe has failed to sustain his burden of showing that his due process rights were violated or that he was denied a right to a fair trial. This assignment is without merit.

In his pro se assignment of error, Shoupe argues that the district court erred when it denied his supplemental motion to quash the state’s multiple offender bill of information. He alleges that because his conviction was already enhanced, the imposition of a habitual offender adjudication violated the Supreme Court’s holding in State v. Campbell, 03-3035 (La.7/6/04), 877 So.2d 112. Shoupe requests this court to “vacate his multiple bill conviction” and remand the matter to the district court for resentencing.

Shoupe filed a motion to quash the habitual offender bill of information and the court heard arguments on the motion prior to the adjudication hearing. Finding that case law sanctioned such an enhancement, the trial court denied Shoupe’s motion and ultimately adjudicated him a second-felony offender.

In State v. Campbell, supra, the Supreme Court considered a case in which the defendant was charged as a habitual offender after being convicted of driving while intoxicated, third offense. The state charged him as a third-felony offender on the basis of two non-DWI felonies. The trial court granted his motion to quash which was affirmed by this court. State v. Campbell, 37,485 (La.App.2d Cir.10/16/03), 859 So.2d 223. The Supreme Court granted writs to consider “whether La R.S. 14:98 prohibits the state from adjudicating repeat DWI offenders as habitual offenders under La. R.S. 15:529.1.” State v. Campbell, 877 So.2d at 113.

In its decision, the Supreme Court held that “a DWI third-offender cannot be sentenced pursuant to Louisiana’s Habitual Offender Law, even where that defendant has two prior non-DWI felony convictions.” The court reasoned as follows:

While Louisiana’s Habitual Offender Law prohibits probation or suspension of sentence for any sentence imposed under its provisions, the more specific statute, which applies solely to operating a vehicle while intoxicated, specifically provides ‘notwithstanding any other | ^provision of law to the contrary ... the remainder of the sentence shall be suspended....’ Not only is LaJEtev. Stat. 14:98 the statute specifically directed to DWI third offenders, but the plain language of that statute instructs the sentencing court in no uncertain terms that it must not stray from the sentencing provisions contained in that statute, even in the event those terms conflict with other provisions of law.

The court concluded that the statutory language set forth in La. R.S. 14:98(D)(1) mandated a suspended sentence and treatment for substance abuse disorder notwithstanding any other provision of law to the contrary. Therefore, any habitual offender adjudication in accordance with La. R.S. 15:529.1(G) would preclude the court from ordering a sentence which complied with La. R.S. 14:98(D). Because the two statutes could not be harmonized in Campbell, a DWI third offender could not be sentenced under the Habitual Offender Law.

Nevertheless, a year after Campbell, supra, the Legislature amended La. R.S. 14:98(D) & (E) to remove the provisions mandating suspension of sentence and treatment during probation for third and fourth offense DWI. 2005 La. Acts 497. Whereas La. R.S. 14:98(D) & (E) previously required the court to impose probation (and mandate treatment), Act 497 provided (in pertinent part) that “the court, in its discretion, may suspend all or any part of ... the sentence of imprisonment.” 2005 La. Acts 497.

The 2005 legislative amendments of the language of La. R.S. 14:98 thus resolved the conflict between the felony DWI sentencing scheme and the Habitual Offender Law. The Supreme Court based its opinion on the legislature’s “clearly stated” intention for DWI felonies “to embrace treatment measures in preference to incarceration.” Thereafter, the | ^legislature acted with a stated intent of providing “for the court’s discretion in suspending a portion of the criminal sentence for third, fourth, and subsequent offenses ... and in ordering an offender to substance abuse treatment.” 2005 La. Acts 497. Thus, with this amendment, the 2001 sentencing scheme reflected in La. R.S. 14:98 at the time of Campbell was modified. The removal of mandatory suspension of sentence and the attendant substance abuse treatment for third and fourth DWI offenders by the Legislature removed the conflict identified in the Campbell decision. In 2005, suspension of sentence became an option for the trial judge imposing a sentence for third and fourth DWI offenders. This change in DWI third and fourth sentencing provisions places those provisions in the same category as any other felony sentence with benefit of probation which may nevertheless be enhanced under La. R.S. 15:529.1. Accordingly, insofar as Campbell determined a specific conflict precluding further enhancement of DWI offenses under the Habitual Offender Law, its statutory construction is no longer applicable after the amendment to La. R.S. 14:98.

Any broader prohibition which may be gleaned from Campbell, supra, regarding the issue of double enhancement (double use of Shoupe’s recidivist status) has been implicitly rejected by the Supreme Court’s later pronouncement in State v. Baker, 06-2175 (La.10/16/07), 970 So.2d 948, cert. denied, 555 U.S. 830, 129 S.Ct. 39, 172 L.Ed.2d 49 (2008). Baker involved the enhancement under La. R.S. 15:529.1 of a defendant convicted |17of possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. Baker pled guilty to the firearms violation which was based upon a 1996 conviction for aggravated battery. Thereafter the state filed an habitual offender bill of information seeking to enhance Baker’s firearms sentence based upon a 1999 illegal possession of stolen things conviction. Thus the stated relied on separate convictions for charging Baker with the weapons offense and the habitual offender bill. Baker argued that the multiple offender adjudication was improper under State v. Firmin, 354 So.2d 1355 (La.1978). Firmin denied the use of the Habitual Offender Law based upon a different felony than the underlying felony for the firearms conviction on the grounds that the double use of the defendant’s recidivist offender status and the double use of any particular prior felony conviction was prohibited.

In Baker, the Supreme Court therefore concluded that a sentence imposed under the firearms statute could be further enhanced under the habitual offender statute when two different offenses are used to enhance. The court concluded that nothing in the language of either the firearms statute or the Habitual Offender Law prohibited the enhancement of a firearms conviction or that “the combination of these two statutes would lead to a result unintended by their purposes.”

This court has extended the Baker rationale to possession of marijuana, third offense, in violation of La. R.S. 40:966(E). State v. Brooks, 43,613 (La.App.2d Cir.10/29/08), 997 So.2d 688, writ denied, 11808-2973 (La.12/18/09), 23 So.3d 930. The Baker reasoning applies here as well. With the authority of La. R.S. 15:529.1, which was specifically evaluated by the Supreme Court in Baker, nothing in the provisions of La. R.S. 14:98 prohibits a penalty imposed under the DWI statute from being subsequently enhanced under the Habitual Offender Law. Accordingly, Shoupe’s argument is rejected.

Shoupe alleges his sentence is unconstitutionally excessive under the facts and circumstances of this case and is “nothing more than purposeless and needless imposition of pain and suffering.” Shoupe also complains that the negative factors of La. C. Cr. P. art. 894.1 which are to be considered by the court in fashioning a sentence are not present under the facts of this case Because Shoupe failed to raise the issue of La. C. Cr. P. art. 894.1 noncompliance in his motion to reconsider sentence, however, he is relegated to having this court consider the bare claim of constitutional excessiveness on review. State v. Mims, 619 So.2d 1059 (La.1993); State v. Williams, 45,755 (La.App.2d Cir.l 1/3/10), 54 So.3d 1129.

A sentence will violate Article 1, § 20 of the Louisiana Constitution if it is grossly out of proportion to the seriousness of the offense, or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 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. The trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, a sentence should not be set aside as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Thompson, 25,583 (La.App.2d Cir.1/19/94), 631 So.2d 555.

Shoupe was sentenced as a second-felony offender, subject to a sentencing range of 15-60 years, without the benefit of probation or suspension of sentence. Shoupe received a sentence of 20 years at hard labor without benefit of probation, parole, or suspension of sentence. Prior to sentencing Shoupe, the court noted its consideration of his criminal record and that the likelihood of Shoupe’s committing another DWI was great. The court determined to show Shoupe “a little mercy” and sentenced him at the lower end of the possible sentencing range.

The facts surrounding Shoupe’s conviction of fourth offense driving while intoxicated included his crashing into a parked vehicle, abandoning his vehicle and the scene of the accident. He did not cooperate with the police investigation, and he has shown no remorse for his offense. Shoupe has a criminal history including convictions for aggravated burglary, cruelty to animals, and violating a restraining order. This conviction is Shoupe’s seventh DWI. He has a history of assaultive behavior in his criminal history as well as the above-noted serious offenses. Shoupe has obviously failed to benefit from prior leniency in sentencing and has evidenced no ^rehabilitation from his alcohol dependency. Under these facts and circumstances the imposed sentence of 20 years does not shock the sense of justice and is adequately tailored to this defendant. This assignment of error has no merit.

We note an error patent on the face of the record. La. R.S. 15:529.1(G) provides that any sentence imposed under the provisions of this section (Habitual Offender Law) shall be at hard labor without benefit of probation or suspension of sentence. Regarding the imposition of a sentence without benefit of parole, the conditions imposed on the sentence are those called for in the sentencing provisions for the underlying felony offense. State v. Nickles, 46,189 (La.App. 2 Cir. 4/13/11), 60 So.3d 728; State v. Richard, 550 So.2d 300 (La.App. 2d Cir.1989). The sentence conditions required by La. R.S. 15:529.1(G) are additions to, rather than replacements of, those conditions required by the sentencing provisions for the underlying offense. State v. Nickles, supra; State v. Robinson, 46,330 (La.App.2d Cir.2/18/11), 54 So.3d 1292.

On the date of the crime, fourth offense DWI (La. R.S. 14:98(E)) mandated that the first 60 days of the sentence be imposed without the benefit of parole, probation or suspension of sentence. Although the statute granted the court the authority to suspend “all or any part” of the remaining sentence, it did not grant the court the authority to extend the parole restriction beyond 60 days. Accordingly, we amend the defendant’s sentence to provide that only the first 60 days of the sentence be served without benefit of parole.

I21 Decree

For the foregoing reasons, Shoupe’s conviction is affirmed. His sentence is amended to provide that only the first 60 days of the sentence are to be served without benefit of parole, and, as amended affirm the sentence.

CONVICTION AFFIRMED; SENTENCE AMENDED AND, AS AMENDED, AFFIRMED.

      . In addition to a brief filed by Shoupe's appellate counsel, Shoupe has also submitted a pro se brief.

      . Officer Jeffrey Couch testified that selective enforcement is "the DWI unit, where we process anyone for suspected DWI.”

      . With the change in sentencing for La. R.S. 14:98 after Campbell, we are unpersuaded that the legislature’s retention of the phrase "notwithstanding any other provision of law to the contrary" is alone sufficient to lead to a different conclusion.

      . The court declined to address the legality of habitual offender enhancement with the same offenses,


author: MARION F. EDWARDS, Chief Judge.

text:
    Brittany ROACHE, et al. v. ALPHA TECHNICAL SERVICES, INC., et al.
    No. 10-CA-1086.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2011.

      William R. Mustian, III, Stanga & Mus-tian, P.L.C., Metairie, LA, for Plaintiffs/Appellants.
    Glen M. Pilié, Martin A. Stern, Donald C. Massey, Roland M. Vandenweghe, Jr., Raymond P. Ward, Adams and Reese LLP, Gladstone N. Jones, Kevin E. Hud-dell, Eberhard D. Garrison, Jacqueline A. Stump, Jones, Swanson, Huddell & Garrison, L.L.C., New Orleans, LA, Thomas E. Balhoff, Judith R. Atkinson, Carlton Jones, III, Roedel Parsons Koch Blache Balhoff & McCollister, Baton Rouge, LA, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and HILLARY J. CRAIN, Pro Tempore.
   MARION F. EDWARDS, Chief Judge.

LThe four judgments before us in this appeal derive from a lengthy and complex action for damages involving the contamination of land by various oil field-related companies over a period of decades. The initial action involved a large tract of commercial property in Harvey, Louisiana, some of which the Grefer family owned since 1875. The property had been used to clean pipes used in oil field drilling from about 1945 until about 1997. During that time, numerous oil companies brought pipes to the property for cleaning by numerous oilfield-related companies. This process caused the property to be contaminated by various hazardous, toxic, and carcinogenic substances. The Grefer family filed suit for 14 damages against several defendants as a result of the contamination. Many other lawsuits have been filed concerning the contamination of this property since that original lawsuit was filed.

The underlying action in the case before us in this appeal is Brittany Roache, et al v. Alpha Technical Services, Inc. et al., which was filed by twenty-eight plaintiffs (“Roache plaintiffs”) who lived in the vicinity of the contaminated land over that period, and who have contracted cancer or other illnesses or damages they allege were caused by the contamination. The Roache plaintiffs named over forty defendants, including many of the original plaintiffs and defendants in the initial action. Several petitions of intervention were filed, adding many additional plaintiffs.

The four judgments at issue in this appeal come from one of the petitions of interventions filed by Odile Gordon and eleven other plaintiffs (“Gordon plaintiffs”). The Gordon plaintiffs’ petition for intervention named forty-one defendants, including Joseph and Camille Grefer (“the Grefers”), Exxon Mobile Corporation, Mobil Exploration, Producing North America, Inc., Mobile Exploration and Producing U.S., Inc. and Mobil Oil Exploration and Producing Southeast, Inc., and others (collectively “ExxonMobil”). In response to the intervention petition of the Gordon plaintiffs, both the Grefers and ExxonMo-bil filed various exceptions, including dilatory exceptions of vagueness, ambiguity of the petition, and failure of the petition to comply with La. C.C.P. art. 891, and improper cumulation of parties.

The trial court sustained the exceptions of vagueness and non-conformity with the provisions of La. C.C.P. art. 891 filed by both the Grefers and RExxonMobil, and it ordered the Gordon plaintiffs to amend the petition of intervention to remove the grounds for the exceptions. The Gordon plaintiffs filed an amended petition in accordance with the trial court’s order.

The Grefers and ExxonMobil filed renewed exceptions of vagueness, ambiguity and non-conformance of the amended petition with La. C.C.P. art. 891 and improper cumulation of parties. In two separate hearings, the trial court considered all of exceptions and ultimately rendered four judgments that are the grounds for this appeal.

The trial court granted ExxonMobil and the Grefers’ respective exceptions of vagueness, ambiguity, and non-conformity of the petition and the amended petition with La. C.C.P. art. 891 and dismissed the Gordon plaintiffs’ intervention without prejudice in two separate judgments. The trial court also issued two judgments granting the respective exceptions of improper cumulation of actions and/or improper joinder of parties filed by Exx-onMobil and the Grefers. In those judgments the trial court also added the following:

Alternatively, if the granting of the vagueness and nonconformity exceptions and the attendant dismissal without prejudice should be overturned in whole or in part, IT IS ALSO HEREBY ORDERED, ADJUDGED AND DECREED that, pursuant to La.C.C.P. arts. 464 and 465, there shall be a separate trial of the claims asserted by each individual intervenor, based upon the granting of the improper cumulation exception.

Additionally, the trial court gave written Reasons for Judgment as it relates to the Grefers and to ExxonMobil.

The Gordon plaintiffs have appealed all four judgments.

LAW AND ANALYSIS

Exception of Vagueness as to the Grefers

|fiIt is fundamental that a petition for damages must give a defendant sufficient notice of the facts sought to be proven against him so as to enable him to prepare a defense, and, additionally, by a formal pleading to identify the cause of action so as to bar its future relitigation after determination by the present suit. The purpose of the exception of vagueness is to ensure that notice. Specifically, a petition shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation. The dilatory exception of vagueness addresses the detailed sufficiency of the petition.

In the original petition for intervention, the Gordon plaintiffs allege that the Gre-fers and thirty-seven other defendants are liable in solido. The allegations made against the Grefers in the original petition are that the Grefers and other landowners owned land identified by a general property description rather than a municipal address “in various proportions and at various times.” It is also alleges that contaminated oil field pipe was delivered to companies who leased parts of the property to companies who cleaned the pipes. The Gordon plaintiffs’ original petition of intervention states the pipe cleaning operations “were conducted on all or part of the property continuously from at least 1946 to 1992.”

In the amended petition of intervention, the Gordon plaintiffs extend the allegations against the land owners to a include a claim for punitive damages in addition to compensatory damages because of the toxic nature of the contamination. However, the amended petition does not clarify the location of specific company defendants, or the time frame in which various owners owned 17and/or leased the land. Given the allegations in both the original and amended petitions, we find no error in the trial court’s decision to grant the Grefers’ exception of vagueness, ambiguity, and failure to comply with La. C.C.P. art. 891. Exception of Vagueness as to ExxonMo-bil

Upon consideration of the original petition of intervention and the amended petition filed by the Gordon plaintiffs as they apply to claims made against Exxon-Mobil, we find some of the same vagueness and ambiguity issues as with the allegations against the Grefers. The property description is still vague and the time frame is far too comprehensive. Many of the defendants are alleged to have been conducting business somewhere on the property at some point in a forty-six-year period. Also, as pointed out in the trial court’s Reasons for Judgment, the use of generalized terms like “other hazardous materials,” “any other fault,” and “violations of regulations.” Thus, the petition does not give the required notice to specific defendants of the necessary elements of the alleged actionable activity. In conclusion, we find the allegations made in the petitions, that many defendants, engaged in some hazardous activity, somewhere on a parcel of land in Harvey, over a time period of forty-six years, do not meet the requirements of La. C.C.P. art. 891.

Accordingly, we affirm the two judgments which granted defense exceptions of vagueness, ambiguity, and failure to comply with La. C.C.P. art. 891 and dismiss the petitions without prejudice.

IMPROPER CUMULATION OF PARTIES

Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if: (1) there is a community of interest between the parties joined; (2) each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and (3) all of the actions cumulated are mutually consistent [sand employ the same form of procedure. The test in determining whether the parties have a community of interest is whether the cumulated causes of action arise out of the same facts or whether they present the same factual or legal issues. Essentially, community of interest is present between different actions or parties, where enough factual overlap is present between the cases to make it commonsensical to litigate them together.

In the Reasons for Judgment, the trial court stated:

This case is rampant with differences. For example, the total plaintiffs in the suit, including the original plaintiffs and the plaintiffs named in the interventions, number in the thousands. They appear as landowners, employees, or visitors. All assert different injures, suffered under different facts, at different locations, by different defendants, and during different time periods, spanning forty-six (46) years or more. The differences continue: damages or remedies sought, the law governing the claims of punitive damages, and the facts underlying venue and prescription issues are vastly different. These differences are not eliminated by considering only the “Mustian” Intervention. The variations in evidence would be overwhelming and would create much confusion. The court finds that such a cumulation would prejudice the defendants’ rights....

(Citations omitted.)

We find the above Reasons accurately describe the circumstances of this case and provide ample justification for the trial court’s ruling granting the improper cumu-lation of parties.

Accordingly, we affirm all four judgments at issue in this appeal.

AFFIRMED

      . The In Re Harvey Term Litigation, 04-0005 (La.App. 4 Cir. 4/7/04), 872 So.2d 1214, writ denied, 04-1151 (La.6/25/04), 876 So.2d 846.

      . Estimates of the total additional intervening plaintiffs range from 2000 to 6000 according to various testimony and pleadings regarding the litigation.

      . There are also similar rulings on motions filed by defendant, Intracoastal Tubular Services, Inc. However, those judgments are not included in this appeal. Therefore, the issues in the Gordon plaintiffs’ supplemental brief relating to the judgments in favor of Intra-coastal Tubular Services, Inc. will not be addressed in this opinion.

      . See, AAA Delivery, Inc. v. Airborne Freight Corp., 94-346 (La.App. 5 Cir. 11/16/94), 646 So.2d 1113, writ denied, 94-3073 (La.2/9/95), 649 So.2d 423.

      . La. C.C.P. art. 891.

      . Spellman v. Discount Zone Gas Station, 07-496 (La.App. 5 Cir. 12/27/07), 975 So.2d 44, writ denied, 08-0337 (La.4/4/08), 978 So.2d 328.

      . La. C.C.P. art. 463.

      . Strahan et al. v. Maytag Corp., et al., 99-0869, p. 8, (La.App. 4 Cir. 4/5/00), 760 So.2d 463, 468.

        . Mauberret-Lavie v. Lavie, 03-0099, p. 2 (La.App. 4 Cir. 6/11/03), 850 So.2d 1, writ denied, 03-1989 (La. 12/19/03), 861 So.2d 569.