author: BROWN, Chief Judge. STEWART, J.,

text:
    RICHLAND PARISH POLICE JURY; Lester W. Johnson, M.D.; R & B Planting Company; George B. Franklin & Son, Inc.; Big Creek Farms Partnership; Ricky Goodman Randy Swain; and Jerry Bell, Plaintiffs-Appellees v. L. Donald DEBNAM and Joyce Berry Debnam, Defendants-Appellants.
    No. 47,159-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 18, 2012.
    Rehearing Denied May 10, 2012.

      Dianne Hill, Monroe, LA, for Appellants.
    Stephen G. Dean, Assistant District Attorney, for Appellee, Richland Parish Police Jury.
    Cotton, Bolton, Hoychick, & Doughty, Rayville, LA, by John B. Hoychick, David P. Doughty, for Appellees, Lester Johnson, M.D., R & B Planting, Franklin & Son, Big Creek Farms, Ricky Goodman, Randy Swain, and Jerry Bell.
    Before BROWN, STEWART, and GASKINS, JJ.
   BROWN, Chief Judge.

| defendants, Donald and Joyce Deb-nam, appeal the judgment of the trial court denying their peremptory exception of res judicata and granting a preliminary injunction in favor of plaintiffs, Richland Parish Police Jury, Lester Wayne Johnson, M.D., R & B Planting Co., George B. Franklin & Son, Inc., Big Creek Farms Partnership, Ricky Goodman, Randy Swain, and Jerry Bell. For the reasons stated herein, we affirm the judgment of the trial court and remand the case for the fixing of security.

Facts and Procedural Background

Defendants, Donald and Joyce Debnam, own 120 acres situated on the north side of Ruff Road in Richland Parish. Ruff Road runs east and west and forms the south boundary of the property. Cypress Creek runs in a generally north-south direction across their property. The Debnams constructed a dam, earthen works, and other structures on Cypress Creek adjacent to Ruff Road in an attempt to prevent the eroding and flooding of their property.

Plaintiffs, the Richland Parish Police Jury and numerous adjoining property owners, filed this suit for injunctive relief against defendants seeking to force them to remove the dams built on their land. Plaintiffs contend that the obstructions interfere with the natural flow of the creek and cause flooding to adjacent properties, causing damages to the surrounding landowners’ crops and a parish-maintained roadway, Ruff Road.

The Police Jury had filed a prior suit in 2006 seeking to have the Debnams ordered to remove the dams then built on Cypress Creek. In that matter, the trial court ruled in favor of the Police Jury, but this court |2reversed that decision on appeal finding that there was an insufficient showing that the flooding alleged was solely caused by the obstructions on the Deb-nam property. We further concluded that there were multiple causes contributing to the damages alleged by the Police Jury, including the actions of the Police Jury itself. The Louisiana Supreme Court denied writs and defendants rebuilt their dams.

In the years that followed the first suit, the Police Jury has made modifications to the drainage system in the vicinity at issue, including the installation of new and larger culverts at Futch Road and Nicole Drive, and the clearing out of some obstructions in the W-27 canal north of the Debnam property.

Plaintiffs filed this current suit for in-junctive relief on May 27, 2011. In response, defendants filed numerous exceptions, most notably an exception of res judicata. Plaintiffs amended their petition on July 26, 2011, to demand a preliminary injunction. After a full evidentiary hearing on August 4, 2011, the trial court denied all exceptions and granted plaintiffs’ preliminary injunction which prohibited the Debnams from erecting any new obstructions across Cypress Creek and ordered the removal of the then existing obstructions within 15 days, or should they not do so, for the police jury to remove the obstructions with the costs to be paid by defendants.

The Debnams filed a motion for appeal and requested a stay of all proceedings, which the trial court denied. Defendants then filed an | ¡¡application for a writ with this court to stay removal of the obstructions, which was granted on November 11, 2011.

Discussion

The Debnams’ essential argument on appeal is twofold: that plaintiffs are not entitled to the relief sought, as their claim is barred by the doctrine of res judicata, and, that plaintiffs failed to show that they would suffer irreparable harm in the absence of the preliminary injunction.

The Debnams contend that plaintiffs failed to show that irreparable injury, a loss that cannot be adequately compensated in monetary damages, will result if the obstructions across Cypress Creek remain in place. They argue that since plaintiffs’ petition for injunction demands various money damages, they can adequately value any damages that they may incur, and, thus, any harm is not irreparable. Plaintiffs assert, however, that defendants’ obstructions are interfering with their natural servitude of drainage, and, as such, a showing of irreparable harm is not required.

A natural servitude of drainage is due by an estate situated below to receive the surface waters that flow naturally from an estate situated above. La. C.C. art. 655. The owner of the servient estate may not do anything to prevent the flow of water. La. C.C. art. 656.

La. C.C.P. art. 3601, the usual statutory grounds for the issuance of an injunction, provides in pertinent part that an injunction shall issue in cases where irreparable injury, loss or damage may otherwise result to applicant, or in other cases specifically provided by law. An injunction to protect a servitude, however, is authorized under La. C.C.P. art. 3663. Specifically, L section 2 of that article allows a person injunctive relief to protect or restore possession of immovable property or of a real right in immovable property of which he claims ownership, possession, or enjoyment. A preliminary injunction brought pursuant to La. C.C.P. art. 3663 does not require a showing of irreparable harm. Monroe Real Estate & Development Co., Inc. v. Sunshine Equipment Co., Inc., 35,555 (La.App.2d Cir.01/23/02), 805 So.2d 1200.

The general rule is that an injunction will only be issued in its prohibitory form, but when a defendant obstructs a plaintiff in the enjoyment of a real right, the latter may be entitled to a prohibitory injunction restraining the disturbance and also to a mandatory injunction for the removal of the obstruction. Concerned, Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 04-0270 (La.App.1st Cir.03/24/05), 906 So.2d 660; Harris v. Pierce, 73 So.2d 330 (La.App.Orleans 1954).

The right to drain water from one’s property over the lands of others is not a prerogative of ownership but a real right of servitude requiring a dismemberment of the ownership of others or a charge laid on their immovables. Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314 (La.1981). When the owner of the servient estate does something to prevent the flow of the water, such as placing obstacles to drainage from the dominant through the servient estate, the remedy is a mandatory injunction ordering the owner of the servient estate to remove the obstacle. Poole v. Guste, 261 La. 1110, 262 So.2d 339 (La.1972); Gaharan v. DOTD, 566 So.2d 1007 (La.App. 3d Cir.1990).

LA preliminary injunction in its prohibitory form seeks to preserve the status quo until a full trial on the merits and it may be issued upon a prima facie showing by the applicant seeking the injunction. Louisiana Granite Yard, Inc. v. LA Granite Countertops, L.L.C., 45,482 (La.App.2d Cir.08/18/10), 47 So.3d 573, writ denied, 10-2354 (La.12/10/10), 51 So.3d.733; Louisiana Gaming Corp. v. Rob’s Mini-Mart, Inc., 27,920 (La.App.2d Cir.01/24/96), 666 So.2d 1268. However, a mandatory preliminary injunction, so named because it orders the doing of something, requires the party seeking the injunction to show by a preponderance of the evidence at an evidentiary hearing that he is entitled to the preliminary injunction sought. City of New Orleans v. Board of Directors of the Louisiana State Museum, 98-1170 (La.03/02/99), 739 So.2d 748.

A trial court is afforded great discretion to grant or deny a preliminary injunction and its ruling will not be overturned absent manifest error. Louisiana Granite Yard, Inc., supra.

After a full evidentiary hearing on the preliminary injunction, during which witnesses, both lay and expert, testified and were cross-examined, and other evidence was introduced, the trial court found that the obstructions on the Debnams’ property were blocking the natural drain of water from the plaintiffs’ lands causing water to pool in the road ditches and on the plaintiff landowners’ property. In particular, Fred Scott Franklin, a neighboring landowner, testified that he and his family had been farming the land off of Ruff Road for more than 50 years, and that up until the time that the Debnams built their dams and other obstructions across Cypress Creek [fithe water from his land would naturally drain toward Cypress Creek to the W-27 canal. After the Debnams built the obstructions, Mr. Franklin testified that the water regularly backs up and floods his crops and other neighboring landowners’ lands as well. The reason for this flooding, according to the testimony of Francis Markley Huey, a civil engineering, hydrology and drainage expert, is that the portion of Cypress Creek on the Debnams’ property is the collection point for waters naturally flowing from the ditches on the east and west of Cypress Creek and from a high point approximately 1,000 feet south of Ruff Road. According to Mr. Huey, the waters that converge at this location have historically flowed north through Cypress Creek to where the W-27 canal is located. It was his opinion that the dams and other works built by the Debnams are obstructing the flow of Cypress Creek to the north and are a significant cause of the flooding and prolonged standing water.

Based upon the aforementioned testimony and our review of the record, a preponderance of the evidence supports the trial cqurt’s finding that the obstructions built by defendants to slow the flow of water through Cypress Creek are interfering with plaintiffs’ natural servitude of drainage. In the decades prior to the construction of the impediments the area landowners rarely dealt with the flooding problems that they have since been dealing with on a regular basis. These obstructions infringe on plaintiffs’ real rights and the trial court’s issuance of a preliminary injunction was not erroneous.

|7We next look to defendants’ argument that plaintiffs are not entitled to the relief sought, as their claim is barred by the doctrine of res judicata. The doctrine of res judicata precludes subsequent litigation when: (1) there is a valid judgment; (2) the judgment is final; (3) the parties in the two matters are the same; (4) the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. La. R.S. 13:4231; Burguieres v. Pollingue, 02-1385 (La.02/25/03), 843 So.2d 1049.

The Debnams contend that the cause of action now asserted existed at the time of the previous valid and final judgment and that it was the subject matter of the first litigation. They posit that the addition of plaintiffs should not allow plaintiffs to circumvent res judicata. Thus, defendants assert, the trial court erred in denying their exception and in granting a preliminary injunction in favor of plaintiffs.

Plaintiffs argue that the trial court correctly denied defendants’ peremptory exception of res-judicata, as it is not applicable to bar a claim for injunction in cases involving the natural servitude of drainage. To support their contention that res judi-cata is not applicable, plaintiffs cite Nicholson v. Holloway Planting Company, Inc., 284 So.2d 898 (La.1973). In Nicholson, a plaintiff sought to enjoin the defendant from obstructing the flow of a natural drainage ditch; the injunction was denied. Six years later, plaintiff filed a second suit to enjoin defendant from interfering with the servitude and the defendant filed a res judicata exception. The supreme court held that the plaintiffs second suit, as it pertained to the plaintiffs claim for injunction, was not barred by res judicata because the nature of the servitude (drainage) did not lend itself to a res judicata bar. Specifically, the supreme court, 284 So.2d at 900, stated:

With respect to the injunction aspect of the present suit (filed in 1970) there seems to be no question that plaintiff is entitled to this relief under his 1970 lawsuit, if on the merits he can prove his case. He need simply prove upon remand that in 1970 defendant was interfering with his recognized servitude of drain.... Certainly his failure to prove interference or sufficient interferences on the facts as they were found to exist in 1966 does not bar his effort to prove that an interference existed in 1970. To hold otherwise would require us to hold that a party having once lost a mandatory injunction suit against a given neighbor, perhaps for failure to prove at that time the neighbor’s assertedly illegal conduct (for example, a trespass) would be forever barred from bringing another such suit, even if he could prove a later transgression.

Accordingly, we find that defendants’ res judicata plea, as it pertains to the injunction aspect of this lawsuit, has no merit.

Lastly, defendants take issue with the trial court’s failure to require plaintiffs to furnish security as required by La. C.C.P. art. 3610.

La. C.C.P. art. 3610 states:

A temporary restraining order or preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law. The security shall indemnify the person wrongfully restrained or enjoined for the payment of costs incurred and damages sustained. However, no security is required when the applicant for a temporary restraining order or preliminary or permanent injunction is seeking protection from domestic abuse, dating violence, stalking, or sexual assault.

The remedies available for failure to require security in connection with the issuance of a preliminary injunction vary according to the circumstances of the case and do not necessarily render the injunction void or require it to be set aside. Family Care Services, Inc. v. Owens, 45,-505 1 g(La.App.2d Cir.08/11/10), 46 So.3d 234. Appellate courts have the option to vacate the preliminary injunction or remand for the furnishing of security. Holmes v. Peoples State Bank of Many, 32,749 (La.App.2d Cir.03/03/00), 753 So.2d 1006.

Considering that the obstructions built by the Debnams are disturbing the possession and/or enjoyment of a real right, we find no reason to vacate the trial court’s issuance of the preliminary injunction and instead will remand to the trial court for the furnishing of security.

Conclusion

For the foregoing reasons, the judgment of the trial court denying defendants’ peremptory exception of res judicata and granting a preliminary injunction in favor of plaintiffs is affirmed and the case is remanded to the trial court for the fixing of security in accordance with the law.

STEWART, Judge, dissents in part and assigns written reasons.

STEWART, J.,

dissenting in part.

hBecause I would reverse that part of the judgment ordering the defendants to remove the obstructions that block the natural drain of Cypress Creek across their property, or authorizing the Richland Parish Police Jury to do so, I disagree with the majority’s determination that the trial court did not err in granting this preliminary injunctive relief.

Issuance of a mandatory preliminary injunction requires the party seeking the injunction to prove entitlement to such relief by a preponderance of the evidence at an evidentiary hearing. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748; Reasonover v. Lastrapes, 09-1104 (La.App.5th Cir.5/11/10), 40 So.3d 303; Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 2004-0270 (La.App. 1st Cir.3/24/05), 906 So.2d 660. The required evidentiary hearing has been referred to as “a full trial on the merits.” Denta-Max v. Maxicare Louisiana, Inc., 95-2128, p. 3 (La.App.4th Cir.3/14/96), 671 So.2d 995, 998. In fact, there is some jurisprudential support for the position that it is improper to grant a mandatory injunction at a hearing on a preliminary injunction. Id.; Maestri v. Destrehan Veterinary Hosp., Inc., 554 So.2d 805 (La.App. 5th Cir.1989); Werner Enterprises v. Westend Dev. Co., 477 So.2d 829 (La.App. 5th Cir.1985); Kliebert Educational Trust v. Watson Marines Services, Inc., 454 So.2d 855 (La.App. 5th Cir.1984), writ denied, 457 So.2d 682 (La.1984) See also Chalmette Amusement Co., Inc. v. Alphonso, 2007-1512 (La.App.4th Cir.4/16/08), 983 So.2d 239, Tobias, J., concurring in part Land dissenting in part, who posits that it is not possible to issue a mandatory preliminary injunction because it has different procedural rules and evi-dentiary burdens from preliminary injunctions, is essentially the same as a permanent injunction, and must be issued upon a full trial on the merits.

Here, an evidentiary hearing was held on the defendants’ exception of res judica-ta and the plaintiffs’ request for a preliminary injunction. The trial court’s remarks at the end of the hearing indicates that it did not consider the hearing to be a trial on the merits. There was no stipulation by the parties that the hearing would constitute a full trial on the merits. Without the benefit of a full trial on the merits, the trial court imposed a mandatory preliminary injunction, which has the same effect as a permanent injunction and does not maintain the status quo. As the basis for its ruling, the trial court concluded that irreparable harm would result if the obstruction on defendants’ property is not removed. It is not clear whether the trial court and the parties were even operating under the correct legal requirements for determining whether a preliminary mandatory injunction should issue.

I would find that the trial court abused its discretion in ordering a preliminary mandatory injunction, reverse that part of the judgment, and remand for a full trial on the merits.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, CARAWAY and SEXTON, JJ.

Rehearing denied.

STEWART, J., would grant rehearing.

      . Richland Parish Police Jury v. Debnam, 42,421 (La.App.2d Cir. 10/17/07), 968 So.2d 294, writ denied, 08-0016 (La.03/24/08), 977 So.2d 953.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Calvin R. AUTHIER, Appellant.
    No. 46,903-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 2012.

      Peggy J. Sullivan, Monroe, LA, for Appellant.
    Richard Z. Johnson, Jr., District Attorney, Ron C. Stamps, Britney A. Green, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   WILLIAMS, J.

|tA DeSoto Parish grand jury returned an indictment charging the defendant, Calvin Authier, with aggravated rape, a violation of LSA-R.S. 14:42. Following a jury trial, the defendant was convicted of molestation of a juvenile, a responsive verdict to the charged offense. He was adjudicated a fourth felony habitual offender and was sentenced to serve life in prison at hard labor without benefit of probation, parole or suspension of sentence. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

The victim in this case is A.W., who was 11 years old at the time of the offense. A.W. and her younger sister, M.W., lived with their parents in Shreveport, Louisiana. One of A.W.’s friends was K.H., who had a 12- or 13-year-old brother, J.H. A.W.’s mother (“Ms. W.”) testified that she met K.H. and her mother (“Ms. H.”) approximately three weeks prior to the offense, when the children of both families socialized at the pool at Harrah’s Louisiana Downs. Thereafter, A.W. and J.H. began sending each other text messages. According to Ms. H., some of the content of the text messages was sexual in nature. For example, in one of the messages, A.W. told J.H., “I’m wet for you.”

On Friday, January 15, 2010, Ms. H. and her children went to Ms. W.’s home to invite A.W. and M.W. to a slumber party at Ms. H.’s house in |2PeSoto Parish. According to Ms. W., J.H. hid in the car under a blanket while she and his mother talked. Ms. W. testified that Ms. H. told her that the child hiding under the blanket was her nine-year-old son, and that “he didn’t like girls.” Ms. W. stated that Ms. H. assured her that there would be no men or boys at the slumber party. She explained that if she had known there would be males at Ms. H’s house, she would not have allowed her daughters to attend the party.

Approximately 11 people were at Ms. H.’s house on the night of the slumber party, including other girls who were not related to either family. Ms. H.’s four children were present, including J.H. and Ms. H.’s 19-year-old daughter, S.B. The defendant was S.B.’s 28-year-old boyfriend, who was also staying at the house that weekend.

Ms. W. testified that A.W. called her Saturday afternoon and reported that she and her sister were having a good time and that everything “was okay.” The incident that led to the defendant’s arrest and subsequent prosecution occurred during the early morning hours of Sunday, January 17, 2010.

At trial, A.W. affirmed that her version of the events of that Sunday morning given at an interview at the Gingerbread House was truthful. That interview was videotaped, and the tape was played for the jury. During the interview, A.W. made the following statements:

—at around midnight that Saturday night/Sunday morning, she went to the living room to sleep on one of 1.-¡the sofas;
—the defendant entered the living room, sat on the sofa next to her and told her that he was going to rape her;
—the defendant told her that he would kill her if she said anything;
—the defendant called J.H. into the room and ordered J.H. to have sexual intercourse with her; the defendant stated that he would kill J.H. if he did not do so;
—when J.H. refused, the defendant punched J.H. in the face and told him to “get on top of’ her;,
—J.H. moved her shorts to the side and the defendant told J.H. to “put his private part in mine;”
—J.H. “got on top of’ her and pretended to have intercourse; J.H. told her to act like she was hurting;
—the defendant put his hands on J.H.’s hips and pushed his hips forward, making sure that J.H. was having intercourse with her;
—during this time, J.H. told her that he was using “protection;”
—she knew that J.H. had condoms in a drawer in his bedroom because he had shown them to her the day before the incident;
—after she and J.H. engaged in intercourse for about 15 minutes, the defendant told J.H. to go take a shower;
—when J.H. left the room, the defendant sat there “playing with his private part” and then told her that it was his turn;
—the defendant called to J.H. and said that “he had been blessed;”
—the defendant moved her shorts to the side and “stuck his private part in mine;”
—when she tried to resist, the defendant burned her shoulder with a lighter;
14 — the defendant had both vaginal and anal intercourse with her;
—when the defendant stopped, she kicked him in the face, to which the defendant stated, “I feel no pain;”
—the defendant then forced her to “suck his private part;”
—the defendant slapped her face, scratched her arm and told her to go take a shower;
—while she was in the shower, either the defendant or J.H. removed the shorts she had been wearing from the bathroom.

J.H. testified about his recollection of that night/early morning. His testimony was as follows:

—he, A.W. and the defendant were in the living room while the rest of his family and their guests were in other rooms of the house;
—A.W. told him to go into the shower “[be]cause she wanted to go in with me;”
—A.W. and the defendant were on the sofa together when he left to get into the shower;
—A.W. never joined him in the shower;
—initially, J.H. testified when he returned from taking a shower, he saw A.W., but she said nothing to him. However, when reminded of a statement he had given earlier to police, J.H. testified that when he came out of the shower, A.W. was crying and she “said something about” the defendant hurting her;
—when he returned from the shower, he and A.W. began to have sexual intercourse while the defendant watched them and played a video game on the television;
|fi — at one point, the defendant instructed him to “put her legs up or something like that;”
—he and A.W. had sex “all night”, including anal sex;
—A.W. consented to the act; he wore a condom.

J.H. also testified that he did not know what happened in the living room between the defendant and A.W. while he was in the shower. However, he contradicted A.W.’s statement that the defendant put his hands on his (J.H.’s) hips and forced him to have intercourse with A.W. J.H. testified that the defendant did not participate while he (J.H.) and A.W. were having sex and did not punch him in the face. He also testified that A.W. had sent him text messages in the past indicating “that she was sexually active.” J.H. also testified with regard to a letter that he wrote to the trial judge prior to the trial. He stated that he wrote the letter with the help of— and at the request of — his sister, S.B. (the defendant’s girlfriend). In the letter, J.H. stated that he and A.W. had “consensual” sex and that A.W. was “lying” about the defendant raping her.

S.B. testified about the layout of the family’s home. She testified that she was awake at the time of the incident and was seated in an area near the living room. At that time, the defendant was in the living room playing a video game. She stated that she “would go over there from time to time” because she wanted the defendant to finish playing the game. S.B. testified that A.W. and J.H. were “laying [sic] on the couch. I couldn’t really see | ¿cause their heads were all the way down.” She denied seeing A.W. and J.H. have sexual intercourse because “I wasn’t paying attention to [them].” However, she testified that she would have known if the defendant had raped A.W. because “I was paying attention to Calvin.” S.B. testified that the defendant finished playing the video game, came and watched television with her, and told her that J.H. and A.W. had been having sexual intercourse. She admitted that she really did not “know what happened back in the room.” However, she stated, “If I knew he raped a little girl, I wouldn’t lie for him or anyone.”

The defendant testified on his own behalf. He admitted that he was present in the house on that Saturday night/Sunday morning. He testified that he walked into the living room to play a video game on the television, and he saw J.H. and A.W. having sexual intercourse. The defendant stated that he did not say anything to the children or attempt to stop them because “they really wasn’t [sic] my responsibility” and “it wasn’t none [sic] of my business.” He testified that he proceeded to play the video game. He also stated that while he was present, J.H. left to take a shower while A.W. remained on the sofa. The defendant denied raping A.W.; he also denied forcing J.H. to have sexual intercourse with her. He testified that when he finished playing the video game, he went back to a bedroom with S.B., watched television for approximately half an hour, and went to sleep. The defendant also testified that A.W. lied about him raping her, and J.H. lied when J.H. testified that he (the defendant) instructed him (J.H.) to raise AW.’s leg.

17When A.W. and M.W. returned home that Sunday, their mother noticed that A.W. was behaving strangely and did not want to talk about the slumber party. When questioned by her mother, A.W. stated that “everything would have been fine ... Oreo started this.” “Oreo” was the defendant’s nickname. Upon further questioning, A.W. told her mother that the defendant had raped her.

Ms. W. contacted the Shreveport Police Department; on Monday, January 18, 2010, she spoke with DeSoto Parish Sheriffs Office Detective Garland Hensley. Detective Hensley took their statements and arranged for A.W. to be examined by-Ms. Fonda Partner, a sexual assault nurse examiner (“SANE”). That examination, which took place on January 19, 2010, included the application of a dye to the victim’s external vaginal and anal regions. During the examination, Ms. Partner observed dye uptake around those areas, which was consistent with recent trauma. Ms. Partner did not perform an internal examination or swabbing; she explained that “on kids, we don’t do that because [A.W.] reported that she wasn’t sexually active and that was the first time.” The nurse performed an external swab test for DNA; the examination did not yield any DNA samples. Ms. Partner testified that a shower would “more than likely” wipe away the DNA or other elements which would have been present if the person had not showered.

Ms. Partner also testified that A.W. told her that the defendant was the person who had raped her, that the defendant had told her that he would kill her if she screamed, and that he put his penis into her vagina, anus and |smouth. The nurse also stated that A.W. told her that the defendant had also forced J.H. to have sex and that J.H. had used a condom. The nurse observed a burn on A.W.’s right shoulder and scratches on her right arm; A.W. told the nurse that the defendant burned her with a lighter. The nurse took photographs of those injuries; the photographs were introduced into evidence at trial.

During their investigation into A.W.’s allegations, DeSoto Parish detectives interviewed Ms. H. and J.H. During the interview, Ms. H. told the detectives that neither J.H. nor any other male was present in the home during the slumber party. She also reported that she was in the house the entire weekend. However, J.H. contradicted his mother’s statements by admitting to being in the house. During the trial, Ms. H. admitted that she had lied to the officers; J.H. was at the house that weekend. Ms. H. testified that she was smoking marijuana and was “in and out of the house” that weekend. She admitted that she provided very little supervision of the children; she knew nothing about the events that led up to the defendant’s arrest. Ms. H. testified that she saw a burn mark on AW.’s shoulder. She stated that she asked J.H. about the mark, and he told her that “him and [A.W.] had burned each other as a token of their love for each other.”

By a vote of 11-1, the jury convicted the defendant of molestation of a juvenile, a responsive verdict to the charged offense of aggravated rape. The trial court denied the defendant’s motions for post-verdict judgment of |nacquittal and new trial. Thereafter, the state filed a habitual offender bill of information, charging the defendant as a fourth felony offender; and after a hearing, the court adjudicated the defendant a fourth felony offender. Accordingly, the court sentenced the defendant to the mandatory term of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. The defendant filed a motion to reconsider sentence which was, in content, akin to a motion for hew trial. The trial court denied that motion.

The defendant now appeals.

DISCUSSION

Sufficiency of the Evidence

The defendant contends the evidence was insufficient to support his conviction for molestation of a juvenile. He argues that (1) A.W. was the only witness who testified that he had sexual contact with her; (2) J.H. testified that he did not see the defendant have any sexual contact with A.W. on the night in question; and (3) several other witnesses present in the home at the time of the incident testified that they did not see or hear anything unusual. Further, the defendant argues that the jury’s return of a responsive verdict shows that the jury did not believe A.W.’s testimony. Essentially, the defendant argues that A.W.’s testimony was untrue; A.W. had consensual sexual intercourse with J.H. and lied about the rape as a means to avoid “getting into trouble” with her parents.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to |inthe prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086.

This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833. 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; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, 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, 2006-1083 (La.11/9/06), 941 So.2d 35. The rule applies equally to the testimony of victims of sexual assault. State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490. See also State v. Simpson, 39,268 (La.App.2d Cir.1/26/05), 892 So.2d 694. Such testimony alone is sufficient, even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, supra; State v. Ponsell, supra; see also State v. Johnson, 96-0950 (La.App.4th Cir.8/20/97), 706 So.2d 468, writ denied, 1998-0617 (La.7/2/98), 724 So.2d 203, cert. denied, 525 U.S. 1152, 119 S.Ct. 1054, 143 L.Ed.2d 60 (1999).

LSA-R.S. 14:81.2 provides, in part:

A. Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the | ^juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.
* * ⅜

In the instant case, at the time of the offense, the defendant was 28 years-old; A.W. was 11 years old. A.W.’s testimony was replete with facts that were, if believed by the trier of fact, sufficient to prove the elements of this offense. A.W. testified that the defendant told her that he would kill her if she screamed and then proceeded to put his penis into her vagina, anus and mouth. She also stated that when she attempted to resist, the defendant burned her shoulder with a lighter, slapped her and scratched her arm. Clearly, the defendant’s conduct was intended to gratify his sexual desires. Under the plain meaning of sufficiency, A.W.’s testimony alone was sufficient to prove the offense of molestation of a juvenile beyond a reasonable doubt.

However, on appeal, the defendant has asked this Court to find the evidence legally insufficient, arguing that no rational trier of fact could have believed A.W.’s testimony.

In State v. Mussall, 523 So.2d 1305 (La.1988), the Louisiana Supreme Court explained:

After reviewing Jackson and the foregoing authorities, we conclude that a reviewing court may not disregard its duty under due process of law as interpreted by Jackson v. Virginia simply because the record contains testimony which tends to support each fact necessary to constitute the crime. If the court finds that no rational trier of fact viewing all of the evidence from a rational pro-prosecution standpoint could have found guilt beyond a reasonable doubt, the conviction cannot stand constitutionally. The actual trier of fact’s rational credibility calls, evidence weighing and inference drawing are preserved through the requirement that upon [^judicial review all of the evidence is to be considered as if by a rational fact finder in the light most favorable to the prosecution, and by the admonition that the sufficiency inquiry does not require a court to ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Thus, the reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.

Id. at 1311 (Footnotes omitted).

Herein, the jury was presented with different versions of the events of the night in question. After considering the evidence, the jury made a rational decision to convict the defendant of molestation of a juvenile. Although the witnesses gave varied explanations of the events that occurred on January 17, 2010, the jury was made fully aware of the motives each witness might have had to fabricate their testimony. The victim’s testimony did not include statements that were inconsistent with the physical evidence, nor did it contain any significant internal inconsistencies. A.W.’s account of the events was essentially unwavering, from her initial report to her mother, to her statement to the detectives, to her statement to the SANE nurse, to her statement to the interviewer at the Gingerbread House, to her testimony at trial. We find that a rational trier of fact could have credited her account of the incident; thus, the evidence was sufficient to support the defendant’s conviction. This assignment lacks merit.

Motion for Mistrial — Jury Selection

The defendant also contends the trial court erred in denying his motion for mistrial. The defendant argues that a mistrial should have been granted when one of the jurors expressed a negative opinion about Ms. H., | Mwho was a witness at trial.

The state or the defendant may challenge a juror for cause on the ground that the juror is not impartial, whatever the cause of his or her partiality. LSA-C.Cr.P. art. 797(2). The issue concerning the motion for mistrial is governed by LSA-C.Cr.P. art. 775, which provides, in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.

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

Disclosure during the trial that a juror knows or is related to a witness or the victim is not sufficient to disqualify a juror unless it is shown that the relationship is sufficient to preclude the juror from arriving at a fair verdict. State v. Magee, 2004-1887 (La.App.1st Cir.5/6/05), 916 So.2d 191, writ denied sub nom State ex rel. Magee v. State, 2006-0028 (La.6/16/06), 929 So.2d 1277; State v. Wilson, 2001-0625 (La.App.3d Cir.12/28/01), 806 So.2d 854, writ denied, 2002-0323 (La.9/13/02), 827 So.2d 1121; see also LSA-C.Cr.P. art. 797. The connection must be such that one must reasonably conclude that it would influence the juror in arriving at a verdict. A trial judge is granted great discretion in determining whether to seat or reject a juror for cause, and such rulings will not be disturbed without a showing of an abuse of that discretion. State v. Magee, supra; State v. Wilson, supra.

In the instant case, during voir dire, the prosecutor asked prospective jurors if they knew any of the witnesses who would appear at the trial. The list of names recited by the prosecutor did not include Ms. H. and B.L., one of the guests at the slumber party. The jury was then selected and sworn. When the witnesses were placed under the rule of sequestration, all of their names were recited. At that point, one of the jurors, Ms. Courtney Phelps, realized that she knew Ms. H. and B.L. and informed the court of that fact. The trial judge held a hearing outside the presence of the rest of the jury during which Ms. Phelps stated:

I’ve known [B.L.] since she was a baby. My mother used to babysit her and I’ve been friends with her mother ... since she was a little girl[.]
I met [Ms. H.] through [B.LJs mother. I mean, I never really had any dealings with her because there was a vibe about her that I really wasn’t fond of so, I mean, I just really never hung out with her or anything.

In response to the trial court’s questions about any possible bias against Ms. H. and whether her (Ms. Phelps’) feelings would affect her conduct, Ms. Phelps stated:

lifiNo sir. I mean, like I said yesterday, there’s two sides to every story. You know, I feel that, you know, what she says isn’t going to affect and what he says, you know, what anybody else says isn’t going to affect anything.

When asked if her knowledge of the witnesses would affect her ability to serve as a juror, Ms. Phelps stated, “No sir, it does not.”

The prosecutor then requested that Ms. Phelps be removed as a juror; the defendant later joined that request. The trial court denied the request, stating that it was “satisfied with [Ms. Phelp’s] answers that she can be fair and impartial and it does not affect her deliberations[.]” The defendant then moved for a mistrial, which the trial court denied. During the trial, Ms. H. testified; however, B.L. did not testify.

As stated above, the juror’s knowledge of Ms. H. and B.L. was not explored on voir dire because their names were not called when the names of the witnesses were recited. Thus, there was no contemporaneous accusation that Ms. Phelps made a false statement during voir dire. See, LSA-C.Cr.P. art. 775(6). Once the trial began and the names of the witnesses were fully revealed, Ms. Phelps disclosed that she knew two of the potential witnesses, that she had met Ms. H. and that she was not “fond of’ Ms. H.’s “vibe.” However, after being questioned by the trial court, Ms. Phelps explained that she could listen to both sides of the case and that her knowledge of the witnesses would not affect her ability to serve as a juror.

In State v. Magee, supra, the defendant appealed his conviction for aggravated rape, arguing that the trial court erred in failing to remove a juror after she advised the court that she lived next door to a pivotal witness for the prosecution and had “outside knowledge” of the charged offenses. The |17court of appeal found that the trial court did not abuse its discretion by refusing to remove the juror. The court stated:

[The juror] stated that she thought she could be fair and impartial in this case. She also explained that knowing [the witness] would not affect her opinion as to the defendant’s guilt or innocence[.]
* * *
The circumstances do not indicate that [the juror] could not be fair and impartial. The concerns of bias, prejudice, or less than unequivocal responses raised based upon the voir dire exchange are not so strong as to demonstrate an abuse of the trial court’s exercise of its broad discretion in this area.

Id. at 196 (internal citations omitted).

In the instant case, the defendant’s suggestion that Ms. Phelps’ statements to the trial court could be construed as false is without merit. Ms. Phelps timely informed the court of the potential issue and the court addressed it prior to the verdict. Further, and most importantly, Ms. Phelps affirmed that her knowledge of the witnesses would not affect her ability to serve as a juror and would not affect her opinion of the defendant’s guilt or innocence. The trial judge, who had the opportunity to see Ms. Phelps and observe her demeanor as she answered the questions posed, accepted her responses as true. There is nothing in the record to undermine the court’s factual finding, which is entitled to great weight on appeal.

Confrontation Clause — Rape Shield Law

The defendant also contends the trial court’s application of the rape shield law violated his Sixth Amendment right to confront and cross-examine adverse witnesses. He argues that he was entitled to present evidence that A.W. and J.H. had engaged in consensual sexual intercourse 11sone week prior to the event that led to the defendant’s conviction.

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” This right is secured for defendants in state as well as federal criminal proceedings. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); State v. Vaughn, 448 So.2d 1260 (La.1983). The confrontation clause of our state constitution directly affords each accused the right “to confront and cross-examine the witnesses against him[.]” La. Const. Art. 1, § 16.

Generally, a defendant may attack the credibility of a witness by examining him or her concerning any matter having a reasonable tendency to disprove the truthfulness of his or her testimony. LSA-C.E. art. 607(C). However, the right of an accused sex offender to present a defense must be balanced against the victim’s interests under LSA-C.E. art. 412, which is intended to protect a victim of a sexual assault from having his or her sexual history made public. State v. Everidge, 96-2665 (La.12/2/97), 702 So.2d 680. The purpose of the rape shield law is to “protect victims of rape from being exposed at trial to harassing or irrelevant questions concerning their past sexual behavior.” State v. Williams, 2005-1560 (La.4/24/06), 927 So.2d 266, 267, quoting Michigan v. Lucas, 500 U.S. 145, 146, 111 S.Ct. 1743, 1745, 114 L.Ed.2d 205 (1991).

LSA-C.E. art. 412 provides, in pertinent part:

A. Opinion and reputation evidence. When an accused is charged with a crime involving sexually assaultive behavior, reputation or opinion of the past sexual behavior of the victim is not admissible.
|19B. Other evidence; exceptions. When an accused is charged with a crime involving sexually assaultive behavior, evidence of specific instances of the victim’s past sexual behavior is also not admissible except for:
(1) Evidence of past sexual behavior with persons other than the accused, upon the issue of whether or not the accused was the source of semen or injury; provided that such evidence is limited to a period not to exceed seventy-two hours prior to the time of the offense, and further provided that the jury be instructed at the time and in its final charge regarding the limited purpose for which the evidence is admitted; or
* * *

(Emphasis in original).

Thus, in a prosecution for sexually as-saultive behavior, Article 412 prohibits the introduction of evidence of the victim’s past sexual behavior, with certain limited exceptions. State v. Freeman, 2007-0470 (La.App.1st Cir.9/14/07), 970 So.2d 621, writ denied, 2007-2129 (La.3/14/08), 977 So.2d 930. Under certain circumstances, the restriction of a defendant’s offer to introduce testimony as to the victim’s prior sexual history may violate the defendant’s right to confrontation and fair trial. State v. Vaughn, supra; see also LSA-C.E. art. 412, comment (b).

Art. 412(B)(1) provides that evidence may be admitted that the victim of a sexual assault has engaged in sexual conduct with a third party; however, the evidence is admissible only for the issue of whether or not the accused was the source of semen or injury to the victim. The article further limits such evidence to events occurring not more than 72 hours prior to the alleged assault. Despite the plain wording of the article, its limitations must yield in some cases. Comment (b) to the article provides:

The Louisiana Supreme Court, in State v. Vaughn, 448 l2nSo.2d 1260 (La.1984), has indicated that a restriction of a defendant’s offer to introduce testimony as to the victim’s prior sexual history may violate the defendant’s right to confrontation and fair trial. Federal Rule of Evidence 412 addresses this problem by explicitly providing for the admissibility of evidence (other than reputation or opinion) of a victim’s past sexual behavior when such evidence “is constitutionally required to be admitted.” This Article, like every Article in this Code is necessarily subject to constitutional requirements, and it has not been the general practice in this Code specifically to refer to them. See Art. 102, comment (b); comments to Art. 403.

In the instant case, on October 4, 2010, the defendant filed a motion to introduce evidence of A.W.’s past sexual behavior pursuant to LSA-C.E. art. 412. The defendant alleged, inter alia, that “A.W. and her mother” [stated that] the defendant forced [J.H.], a juvenile, to have sex with A.W. before the defendant committed aggravated rape on A.W.” The defendant argued that he was entitled to present evidence that A.W. and J.H. engaged in consensual sexual intercourse one week prior to January 17, 2010. A hearing on the issue was held on October 13, 2010, and the motion was denied. The trial court found that it was a premature effort to bolster the credibility of J.H. and that the alleged consensual intercourse did not occur within the 72-hour time limit prior to the offense, as required by LSA-C.E. art. 412(B)(1). The court stated, “Now, it’s very possible during cross-examination, that thin line you walk down, it could open the door wide open. But we’ll cross that when we get to it.”

Subsequently, following the testimony of J.H. and S.B., the issue was raised again, and another evidentiary hearing was held. The trial court stated:

| The issue has become as to whether there is evidence of other sexual relations of the alleged victim in this case were admissible for impeachment purposes. The State’s position was that 412 prohibits that introduction of that evidence and after reviewing the case law, that is the ruling of the Court that as the record exists right now based upon the evidence we have to this point is that no such evidence is admissible. The Court is very mindful that this is a delicate balance of protecting a victim of a sexual assault from opening up entire sexual history versus the defendant’s right of confrontation and in particular impeachment, but as I stated, the Court’s ruling is that such evidence is not admissible. That is evidence of sexual relationships with anyone other than this defendant.

In State v. Vaughn, supra, the victim, a 15-year-old girl, ran away from home and eventually shared an apartment with the defendant. The victim admitted that she and the defendant had consensual sexual intercourse on a prior occasion; however, the defendant raped her three days after the consensual contact. During the trial, the defendant sought to present evidence that the victim had sexual intercourse with another man five days prior to the rape. On rehearing, the Supreme Court found that the evidence was inadmissible, stating:

[Ejvidence of a single instance of sexual intercourse between the victim and another individual 5 days prior to the rape is not relevant to a determination of whether the act with defendant was consensual. The fact that the victim consented to intercourse with another man is not probative of her subsequent conduct with defendant. Rather, were the evidence to be admitted, the victim would be confronted with the accusations of her own chastity, which cannot be shown to have any relation to the crime of rape.
In holding that the single instance of conduct in this case was not relevant to a determination of whether a rape occurred, we do not hold that a victim’s prior sexual history may never be relevant and subject to cross-examination. Nevertheless, before such evidence may be 122held admissible, the defendant must clearly demonstrate that the evidence of prior sexual conduct is genuinely probative of the issue of consent, rather than a reflection of the victim’s promiscuity.

In the instant case, the SANE nurse examined A.W. on January 19, 2010, and performed a “dye uptake” examination of A.W.’s external vaginal and rectal areas. The dye indicated recent trauma to A.W.’s rectal and external vaginal areas. The nurse testified that she did not perform an internal examination, stating, “We don’t perform those on children eleven years old ... [i]f it was an adult, we would insert a speculum in there and do swab for DNA and all. But on kids, we don’t do that because she had reported that she wasn’t sexually active and that was the first time.” Thus, no DNA evidence was collected to prove that either J.H. or the defendant had sexual intercourse with A.W. on the night in question. Additionally, A.W. testified that she took a shower after the incident.

Further, although no evidence was introduced with regard to A.W.’s prior sexual history, in its opening argument, the state attempted to portray A.W. as sexually inexperienced by stating:

[Tjhis case is about an 11-year-old girl and the man who destroyed her innocence.
That night, Calvin Authier took her innocence. You can’t give that back to her but, ladies and gentlemen, one thing that you can do, after you’ve heard all the evidence, the one thing you can give her is justice.

Although the trial court ruled to limit the evidence regarding A.W.’s prior sexual behavior, the jury was made aware that prior to the night in question, A.W. had sent at least one sexually suggestive text message to J.H. The jury also heard testimony that J.H. was not forced to engage in Insexual intercourse with A.W. on the night of the incident. Both J.H. and the defendant testified that the sexual intercourse between A.W. and J.H. that night was consensual. That evidence challenged the state’s theory of the case and the defendant’s right to cross-examine the witnesses was not wholly abridged.

After reviewing the evidence and relative statutes and jurisprudence, we conclude that the trial court did not err in excluding evidence of prior sexual intercourse between A.W. and J.H. That evidence is not relevant to a determination of whether the defendant engaged in sexual intercourse with A.W. on the night of the slumber party. The fact that A.W., although only 11 years old at the time, consented to intercourse with 12- or 13-year-old J.H. — one week prior to the night in question — is not probative of any subsequent conduct by the defendant. The admission of such evidence would allow the victim to be confronted with accusations of her own chastity — the very thing the rape shield law was enacted to prohibit.

This assignment lacks merit.

Excessive Sentence

Finally, the defendant contends the sentence of life in prison at hard labor without benefit of probation, parole or suspension of sentence is excessive under the facts and circumstances of this case. He argues that his sentence is excessive and disproportionate under State v. Dorthey, 623 So.2d 1276 (La.1993).

124The record reveals that the defendant was adjudicated a fourth felony habitual offender based upon the following convictions:

—a January 19, 1999, conviction by guilty plea for simple burglary committed on October 18,1998;
—a September 5, 2000, conviction by guilty plea for simple burglary committed on April 4-6,1999;
—an August 8, 2007, conviction by guilty plea for felony theft committed on July 14, 2007;
—the instant offense.

Thus, under LSA-R.S. 15:529.1(A)(4)(b), the defendant was subject to a life sentence, without parole, because two of his prior convictions (simple burglary) were punishable by imprisonment for 12 years or more, and his latest offense was a sex offense where the victim was under age 18.

12fiWhere there is a mandatory sentence, there is no need for the trial court 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, and State v. Johnson, 1997-1906 (La.3/4/98), 709 So.2d 672, the supreme court addressed the issue of mandatory sentences in the context' of the habitual offender law. The court held that 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.

In the instant case, the defendant did not appeal his adjudication as a fourth felony offender. Nor did he present any evidence that he is exceptional and that the life sentence without parole is not meaningfully tailored to him. A presen-tence investigation report was prepared for the defendant and is included with the appellate record. The report revealed that the defendant has a long criminal history, including a number of arrests with “unknown” dispositions for drug offenses, unauthorized use of a motor vehicle, battery, domestic abuse battery, illegal possession of stolen things and miscellaneous other misdemeanor offenses. The report revealed essentially no social or employment history for the defendant. The nonviolent nature of the defendant’s prior felony convictions is not determinative of whether his sentence is excessive. The nonviolent nature of 12r,the instant or past crimes may not solely form the evidence which justifies rebutting the presumption of constitutionality; the lack of violence cannot be the main reason for declaring such a sentence excessive. State v. Robbins, 43,240 (La.App.2d Cir.6/4/08), 986 So.2d 828, writ denied, 2008-1438 (La.2/20/09), 1 So.3d 494.

Because the defendant has not shown that his sentence is excessive, this assignment of error is without merit.

CONCLUSION

For the reasons set forth herein, the defendant’s conviction and sentence is affirmed.

CONVICTION AFFIRMED; SENTENCE AFFIRMED.

STEWART, J., concurs in result.

      . In accordance with LSA-R.S. 46:1844(W), the victim is referenced only by her initials. To further protect her privacy, all pertinent persons and/or witnesses also will be referenced by initials.

      . In her interview at the Gingerbread House Children’s Advocacy Center, A.W. initially stated that J.H. was 13 years old. Later in the interview, she stated that he was 12 years old.

      . According to the testimony, the defendant and S.B. lived together in an apartment in Shreveport. However, they often spent weekends at Ms. H.'s home near Converse, Louisiana.

      . During her testimony at trial, Ms. H. testified that J.H. has a "bipolar disorder with psychotic features,” post-traumatic stress disorder and attention deficit/hyperactivity disorder. According to Ms. H., J.H.'s post-traumatic stress disorder is a result of “the dysfunctional family lifestyle.”

      . When questioned about his knowledge of anal sex, J.H. testified that he learned about that particular sexual act from his sisters.

      . When asked to spell the word "consensual” during the trial, J.H. was unable to do so.

      . Ms. H. was eventually arrested for and pled guilty to second offense possession of marijuana as a result of her conduct on this weekend.

      . The original announcement proclaimed that the verdict was 10-2; however, the polling slips showed a verdict of 11-1.

      . In his motion to reconsider sentence, which primarily raised arguments in the nature of a motion for new trial, the defendant argued that his sentence was excessive because “the evidence adduced at trial was weak” and because his prior offenses were not crimes of violence. He also urged that his previous convictions were "invalid”; therefore, they could not be used to enhance his sentence. However, those issues were not raised on appeal.

      . LSA-R.S. 15:529.1(A)(4)(b) provides:
      A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
      * * *
      (4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
      (b) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:450 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Donald L. BLANCHE, Appellant.
    No. 47,014-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 2012.

      Damico & Stockstill, Baton Rouge, LA, by Thomas C. Damico, for Appellant.
    Jerry L. Jones, District Attorney, J. Michael Ruddick, Assistant District Attorney, for Appellee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   CARAWAY, J.

| Ronald Lee Blanche was found guilty of attempted manslaughter in violation of La. R.S. 14:31 and La. R.S. 14:27, and possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. Blanche received consecutive sentences of 20 years at hard labor for attempted manslaughter and 15 years at hard labor, without benefit of probation, parole, or suspension of sentence, plus a $3,000 fine for the firearm conviction. Blanche appeals his conviction and sentence. We affirm.

Facts

On February 24, 2006, Donald Lee Blanche was charged by bill of information with the attempted second degree murder of Niesha Turner and possession of a firearm by a convicted felon, for his actions on January 28, 2006, when Blanche shot Turner. The evidence presented by the state at the November 2010 trial was as follows.

Niesha Turner, the victim, testified that in 2006 she was living at 503 Cole Avenue, in Monroe, Louisiana, with Blanche and their biological child. Except for a three-to-four month stay at her aunt’s Dallas, Texas, home in late 2005, she and Blanche had lived together about six to seven years.

Turner stated that on January 27, 2006, Blanche told her she should stay at her cousin’s house down the street while he got the car repaired and |2that he would pick her up when he was done. She fell asleep at her cousin’s house and awoke at 6:00 a.m. the following morning to find that Blanche never came to get her. Turner walked back to her home, which was just around the corner, to get some clothes for herself and her daughter.

Upon arrival, she noticed an unfamiliar car in the driveway which had the keys in the ignition, open doors, and a purse and women’s clothing on the backseat. Turner had house keys, but discovered the front and rear doors were locked from the inside. When no one answered her knocks at either door, she went around to the bedroom window. Turner could not see into the bedroom, but could hear Blanche talking. She yelled for him to let her in so that she could get her clothes. Finally, she broke the window in, at which point she could see a woman sitting on the bed. She also saw Blanche, who was wearing camouflage clothes, reach under the mattress. Blanche pulled out a gun, pointed it at her and shot her in the neck. Turner knew that Blanche kept a gun under the mattress but she did not immediately realize that she had been shot and she continued yelling at Blanche. After discovering the blood on her neck and that she had been shot, she left in the car that was sitting in the driveway in an attempt to drive to her cousin’s house. After erratic driving, she arrived at her cousin’s house, where her family called for an ambulance.

Turner was hospitalized for three weeks. The bullet remains in her shoulder, lodged between two bones, because the doctors were concerned that an attempt to retrieve the bullet might leave her paralyzed on her left side. The doctors initially stitched her chin to her chest to prevent her from |smoving her head. She maintained this position for two weeks before the stitches were removed.

On cross-examination, Turner testified that Blanche responded to her demands that she be allowed to get her clothes by saying that she was not going to get anything.

Officer James Coates, assigned to the patrol division of the Monroe Police Department, answered the dispatch call to Davis’ house on January 28, 2006. He found Turner lying on the carport at Davis’ house and observed that she appeared to have a gunshot wound to the neck. As he approached Turner, she twice said to him that Don Blanche had shot her.

Corporal Dennis Wall of the Monroe Police Department also responded to the dispatch call to Davis’ residence that morning. From there, he proceeded to Turner and Blanche’s home on Cole Avenue and en route observed a black male and a black female running from the area. He stopped the female, but the male continued running. Officer Wall was able to stop the male a short time later and noticed that the man, identified as Donald Blanche, had blood on him. Neither person was carrying a gun when stopped.

Investigating the crime scene, Captain Richard Jones and another officer located a handgun at the rear of a residence at 507 Cole Avenue, two houses down from Turner and Blanche’s house on the same side of the street. The gun was found under the edge of the raised house, behind a pier and wrapped in a white towel. The handgun contained five live rounds and one spent case. No usable prints were found on the handgun.

[¿Detective Benjamin Baw was assigned to investigate the shooting. He found broken glass on both the inside and outside of the broken bedroom window of Turner and Blanche’s home. He also found blood on the curtain at the front door, “like somebody had grabbed the doorknob and the curtain at the same time to open the door.”

Baw testified that Blanche and the female, identified as Shalonda Hill, had been taken to the police station for questioning. Blanche had a cut on his left hand and was wearing tan pants over a pair of blood-smeared camouflage pants. Baw identified a picture taken that day of Blanche’s cut hand but had no knowledge of how or when the cut occurred.

Baw also spoke with Hill, who advised him that the gun used to shoot Turner was concealed at the residence at 507 Cole Avenue. Ballistic tests were not done because the bullet remained lodged in the victim. Baw arrested Blanche for the attempted second degree murder of Turner.

After the state rested, Hill testified for the defense. She testified that she had known Blanche for about five years and they have children together. At the time of trial, she was Blanche’s fíanceé. On January 28, 2006, she and Blanche were the only people at the house at 503 Cole Street. Hill said they had just come in from partying and went to asleep. She heard a noise at the window, as if someone was trying to break in, and she tried to wake Blanche up. She heard the sound of the screen breaking and then the window breaking and she hurried to get dressed. Hill said that at no time during the event did she or Blanche have a gun, nor did she ever see Blanche with a gun in the house. They left the house so that no one would lficome inside and try to do anything to them. She was going to call the police but her cell phone was dead. She said she first saw the police when she was waiting for Blanche to come back from calling the police. Hill said that she and Blanche did not run, they were just leaving to call the police. She said the police did not chase Blanche.

Hill said she did not recall Blanche ever having a gun in his possession at any time during this event and she did not recall hearing a gunshot. She said she only heard a noise and she looked outside to find her car gone.

On cross-examination, Hill testified that the car was registered to Frederick McMillan, her friend, with whom she was living in January 2006. Hill said that she and Blanche got engaged about a year or two before the trial. On January 27, 2006, she and Blanche had gone out to a club. They were intoxicated and did not get in until about 3:00 a.m. She said she heard a noise outside and she went to the bathroom to get dressed. Then she heard a “pop.” Hill denied that she told the police she saw Blanche pull a gun from the bed or that she saw him walking toward the broken window with a gun. Nor did she admit to hearing anyone arguing at the broken window of Turner and Blanche’s house. Hill ultimately admitted that she told police that Blanche had a gun wrapped in a small towel and that they went to a house where Blanche hid the gun.

Detective Baw was recalled by the state to the stand and testified that Hill told him that she saw Blanche retrieve a gun from the bed and walk with it toward the broken window.

1,;After this testimony, both sides rested. On November 17, 2010, by a vote of 10-2, the jury returned a responsive verdict of attempted manslaughter, and by a vote of 11-1, found Blanche guilty as charged of possession of a firearm by a convicted felon. On April 14, 2011, Blanche was sentenced as noted above to consecutive maximum sentences on both counts of conviction. After the denial of a timely filed motion to reconsider sentence, this appeal followed.

Discussion

In his first assigned error, Blanche argues that the state failed to show that he had specific intent to kill Turner and was simply trying to protect his home.

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. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. 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. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); 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.

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

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for 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.

In relevant part, the offense of manslaughter includes the following conduct, defined in La. R.S. 14:31 as:

(1)A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection;

In order to obtain a conviction for attempted manslaughter, the state must prove beyond a reasonable doubt that the defendant possessed the specific intent to kill. State v. Mitchell, 39,305 (La.App.2d Cir.2/17/05) 894 So.2d 1240, writ denied, 05-0741 (La.6/3/05), 903 So.2d 457; State v. Hutcherson, 34,540 (La.App.2d Cir.4/4/01), 785 So.2d 140; State v. Taylor, 96-320 (La.App. 3d Cir.11/6/96), 683 So.2d 1309, writ denied, 96-2828 (La.6/20/97), 695 So.2d 1348.

Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be inferred from the circumstances of the offense and the defendant’s act of ^deliberately pointing a gun and firing it at a person. State v. Williams, 44,977 (La.App.2d Cir.1/27/10), 32 So.3d 902, writ denied, 10-0368 (La.9/24/10), 45 So.3d 1071; State v. Freeman, 45,127 (La.App.2d Cir.4/14/10), 34 So.3d 541, writ denied, 10-1043 (La.11/24/10), 50 So.3d 827.

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. If believed, Turner’s testimony established when she broke the window of the home and saw Blanche with another woman, the two exchanged angry words, thus establishing that Blanche knew it was Turner who was outside the window. With that knowledge, Blanche pulled a gun on the defenseless Turner and shot her in the neck. Blanche’s specific intent to kill may be inferred from his act of pointing a gun and firing at Turner. Blanche’s argument that he thought the person pounding on the bedroom window and yelling at him through the •window was a stranger attempting to burglarize the house was obviously not believed by the jury. The rejection of this home protection claim was reasonable considering Turner’s testimony of her long relationship with Blanche and that she resided in the house with Blanche and their child and possessed her own key to the house. This relationship was not disputed. Moreover, from the evidence showing Blanche’s hiding of the gun and running from police, the jury could have further inferred Blanche’s guilt. State v. Fuller, 418 So.2d 591 (La.1982); State v. Wade, 33,121 (La.App.2d Cir.5/15/00), 758 So.2d 987, writ denied, 00-2160 (La. 9/28/01), 797 So.2d 684; State v. Emerson, 31,408 (La.App.2d Cir.12/9/98), 722 So.2d 373, writ denied, 99-1518 (La.10/15/99), 748 So.2d 470; State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992). From all of the evidence before it, the jury could have reasonably found proof of specific intent to kill. Thus, this assignment of error has no merit.

In his second assignment of error, Blanche contends that Turner’s statement to Officer Coates that Blanche shot her is inadmissible hearsay evidence. Blanche argues that Turner’s statement was not a spontaneous reaction to the shooting because it occurred over 30 minutes after she was shot, an amount of time sufficient for Turner to have reflected upon the shooting.

During Officer Coates’ testimony, defense counsel objected to his testimony that Turner told him that Blanche had shot her as hearsay because too much time had passed aftér the shooting for the statements to qualify as excited utterances. The trial court overruled Blanche’s objection.

Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801(C). Hearsay is inadmissible except as provided by law. La. C.E. art. 802.

One of the exceptions to the hearsay rule is the excited utterance exception. An excited utterance is a statement by the declarant, about a startling event or condition, made while under the stress or excitement |n caused by that event or condition. La. C.E. art. 803(2). The statement must be a spontaneous reaction to this event or condition, which must have been so startling as to render the declarant’s normal reflective thought process inoperative. State v. Richardson, 46,360 (La.App.2d Cir.6/22/11), 71 So.3d 492. The time that lapsed between the event and the statement is the most important factor in determining whether the statement was made under the stress of the event, as the court considers whether the declarant could have calmed down enough during that time for reflective thought to be restored. Id.

Additional factors that may indicate that a statement was the result of a reflective thought are evidence that the statement was self-serving or made in response to an inquiry, or expansion of the excited utterance beyond a description of the event and into past or future facts, and proof that, between the event and the statement, the declarant performed tasks that required a reflective thought process. However, these factors do not automatically justify exclusion. 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.

Admission of even hearsay testimony is harmless error where the effect is merely cumulative or corroborative of other testimony adduced at trial. State v. Dupree, 41,658 (La.App.2d Cir.1/31/07), 950 So.2d 140, writ denied, 07-0439 (La.10/12/07), 965 So.2d 396.

|12At the time of her statement to Officer Coates, Turner had been shot in the neck by her boyfriend about 40 minutes earlier and had lost consciousness several times as she attempted to drive for help. She had hit the ditch multiple times along the way and was found lying in the carport, bleeding. Being shot in the neck was certainly a startling event for which the lapse of a mere 40 minutes was insufficient time for Turner to calm down and regain her reflective thought. Her outburst to Officer Coates as he approached her and before he could even ask her any questions can reasonably be considered spontaneous and not a narrative of the events or a reflective process in response to an interview. The circumstances indicate that this statement was an excited utterance and admissible under the exception to the hearsay rule.

Furthermore, because Turner earlier testified to the same facts at trial, any error in the admission of the officer’s statements was harmless error, as cumulative or corroborative of the victim’s own testimony. This assignment of error is without merit.

Finally, Blanche argues that the trial court erred in imposing the maximum sentences for attempted manslaughter, in failing to properly consider mitigating factors such as his childhood head injury or the “minor nature” of his offenses, in considering his prior arrests in imposing both sentences and in imposing consecutive sentences.

A sentence is constitutionally excessive in violation of La. Const, art. I, § 20, if it is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and 1 ^suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Bonanno, 384 So.2d 355 (La.1980); State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983), writ denied 438 So.2d 1112 (La.1983). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802; State v. Woods, 41,420 (La.App.2d Cir.11/1/06), 942 So.2d 658, writs denied, 06-2768 (La.6/22/07), [14959 So.2d 494, 06-2781 (La.6/22/07), 959 So.2d 494; State v. Grissom, 29,718 (La.App.2d Cir.8/20/97), 700 So.2d 541.

A defendant’s lack of remorse is a proper sentencing consideration. State v. Birch, 43,119 (La.App.2d Cir.3/19/08), 979 So.2d 643; State v. Robinson, 33,921 (La.App. 2d Cir.11/01/00), 770 So.2d 868; State v. Shipp, 30,562 (La.App.2d Cir.4/8/98), 712 So.2d 230, 237, writ denied, 98-1199 (La.9/25/99), 724 So.2d 775.

In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Pamilton, 43,112 (La.App.2d Cir.3/19/08), 979 So.2d 648, writ denied, 08-1381 (La.2/13/09), 999 So.2d 1145; State v. Boyte, 42,763 (La.App.2d Cir.12/19/07), 973 So.2d 900, writ denied, 08-0175 (La.6/20/08), 983 So.2d 1272.

Attempted manslaughter, under La. R.S. 14:31 and La. R.S. 14:27, carries a maximum sentence of 20 years. At the time of this offense, the crime of possession of a firearm by a convicted felon carried a maximum sentence of 15 years without benefits and a maximum fine of $5,000.

In this case, the only issue raised by Blanche in his motion to reconsider sentence was a claim that the imposed sentences were excessive. Failure to specify a ground for relief “shall preclude the ... defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal.” La. C. Cr. P. art. 881.1(E); State v. Howard, 38,787 (La.App.2d Cir.8/18/04), 880 So.2d 980; State v. Barnes, 607 So.2d 872 (La.App. 2d Cir.1992). In such a circumstance, this court has held that the [ ],^defendant is relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. Thus, Blanche’s sentence review is limited to the bare excessive sentence claim.

Prior to sentencing Blanche, the court noted that it weighed what the evidence and all reports showed to be the individual and specific intent, the degree of involvement and the degree of Blanche’s cooperation with law enforcement and the prosecution. The trial court noted that this was Blanche’s second felony conviction, yet he also had an extensive criminal history that included crimes against the person. Blanche’s criminal history included the following:

• July 25, 1993, Minneapolis, Minnesota, arrest for second-degree assault; outcome undetermined as records could not be located.
• Nov. 1995, Minneapolis, Minnesota, misdemeanor conviction for carrying a weapon without a permit; on April 24, 1996, sentenced to five months in jail with two years of misdemeanor probation. Another weapons charge and a charge of flight from an officer in a motor vehicle were dismissed.
• June 22,1997, Ouachita Parish, Louisiana, arrest for attempted second degree murder. Records show Blanche was arguing with another person who pulled a knife on him, and Blanche responded by pulling a gun and shooting him; charge dismissed.
• January 8, 1998, Ouachita Parish, Louisiana, conviction for possession of cocaine. Blanche pled guilty and was sentenced on October 21, 1998, to five years’ imprisonment at hard labor, suspended, and five years of supervised probation.
• Blanche was arrested twice for violating the terms of his probation, the first time on April 13, 2000, for technical violations of probation. Blanche’s probation was [ 1ficontinued until March 18, 2003, after he was arrested for armed robbery, for stealing beer from a convenience store. The armed robbery charge was dismissed and on April 29, 2003, Blanche pled guilty to misdemeanor theft of goods and was sentenced to serve six months in the parish jail.
• September 29, 2008, arrested for domestic abuse battery of Shalonda Hill. On September 3, 2009, found guilty and sentenced to serve 120 days in parish jail, suspended, with 24 months’ probation, and a fine of $300.
• This probation was revoked on May 2, 2010, when Blanche was arrested for possession of PCP and obstruction of justice (for attempting to hide evidence of the drug possession). On June 29, 2010, a six-member jury found Blanche not guilty of possession of PCP, but guilty as charged of obstruction of justice.
• December 3, 2009, arrest for possession of PCP; prosecution later declined.

The trial court also considered that Turner’s gunshot wound is a permanent injury with bullet fragments lodged in her back which cause her inability to move her left side or lift anything and shortness of breath. Turner will likely require pain medication the remainder of her life and suffered economic loss because she lost her job and home. The court considered that Blanche used a dangerous weapon, a handgun, in the commission of his crime and found no mitigating factors.

The trial court also considered Blanche’s childhood, which Blanche reported was good and free of substance abuse or neglect. He reported that a fall from a stage “messed up his head” and that he has been hospitalized several times for mental health disorders. He dropped out of school and 117never obtained a GED. Blanche denied any and all drug use. He has four children, but pays no child support. He has no job skills or history of employment and does odd jobs or yard work for income.

The court specifically considered that Blanche denied that Turner had been his girlfriend, denied owning a gun or shooting Turner and insisted that Turner was lying. The court noted that Turner reported Blanche had beat her in the past.

Ultimately, the trial court imposed the maximum sentence for both convictions due to Blanche’s involvement in drugs and violence for well over a decade, his pattern of probation violations as well as his lack of remorse and contempt for the law. The emotional and physical pain that Blanche caused Turner, which she will endure for life, was cited as a large factor in the trial court’s sentencing decision. The court also considered that Blanche’s history showed a pattern of increasing severity of crime against persons and that he had benefitted over the years from prosecutors’ leniency in dismissing several charges, resulting in little potential of rehabilitation. The trial court mentioned Blanche’s possession of the gun which was independent of this shooting and that the two events were not part of a common scheme or plan. Further the court considered the consequences, gravity and viciousness of Blanche’s unprovoked actions and that Blanche’s pattern of violence and crimes against the person made him an unusual risk of danger to the public.

Given the seriousness of Blanche’s offense in shooting Turner in the neck and the immediate and lifelong harm inflicted upon the victim, his 11sviolent and extensive criminal history, his lack of remorse and Blanche’s failure to be rehabilitated by previous leniency in sentencing, we find that the maximum sentences imposed for his attempted manslaughter and possession of a firearm by a convicted felon convictions are not grossly disproportionate, nor do they shock the sense of justice. This defendant is the worst type of offender. Under these circumstances, Blanche has failed to show that the trial court abused its discretion in imposing the maximum for either sentence. This assignment of error is without merit.

Decree

For the foregoing reasons, Blanche’s convictions and sentences are affirmed.

AFFIRMED.

      . Paul Farr, a deputy clerk with the Ouachita Parish Clerk's Office, produced records showing Blanche's October 21, 1998 guilty plea to possession of cocaine for which Blanche received a suspended sentence of five years at hard labor. Sergeant Rick Fisher, accepted by the trial court as an expert in the field of fingerprint identification, identified Blanche as the same person on fingerprint cards for Blanche's January 28, 2006 arrest and the above mentioned prior conviction.

      . This type of evidence may also be classified as non-hearsay because it is part of the res gestae under La. C.E. art. 801(D)(4).

      . Blanche was sentenced on May 9, 2011, to serve five years at hard labor, to run consecutive with the sentences imposed on these convictions.