author: STEWART, J.

text:
    Shelly McCLENDON and Johnny McClendon, Plaintiffs-Respondents v. Adrienne WILLIAMS, M.D., P & S Surgery Center, L.L.C., and Rosemary B. Stage, M.D., Defendants-Applicants.
    No. 47,577-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.
    Hayes, Harkey, Smith & Cascio, Monroe, LA, by Bruce M. Mintz, Laura S. Achord, for Defendant-Applicant P & S Surgery Center, L.L.C.

      Law Office of J. Christopher Erny, Hou-ma, LA, by J. Christopher Erny, for Plaintiffs-Respondents Shelly McClendon and Johnny McClendon.
    Hudson, Potts & Bernstein, Monroe, LA, by Gordon L. James, for Defendant Respondent Rosemary B. Stage, M.D.
    Before WILLIAMS, STEWART and MOORE, JJ.
   STEWART, J.

_JjP & S Surgery Center, L.L.C. (“P & S”), a defendant in this medical malpractice action, sought supervisory review of the trial court’s denial of a motion for summary judgment. We granted the writ and ordered the matter briefed and docketed. Because the plaintiffs will be unable to meet the burden of proving causation, an essential element of their claim, we find that summary judgment dismissing the plaintiffs’ claims as to P & S is appropriate.

FACTS

Shelly McClendon (“McClendon”) was scheduled to have a hysterectomy and sal-pingo-oophorectomy at P & S on June 6, 2003. McClendon’s OB/GYN, Dr. Ardri-enne Williams (“Dr. Williams”), was to perform surgery with Dr. Rosemary Stage (“Dr. Stage”), an anesthesiologist. On June 4, 2003, McClendon underwent radiology and laboratory procedures, including a pregnancy test, in preparation for surgery. On the day of the surgery, McClendon was given various medications, including Versed (also referred to as mi-dazolam) and Decadron, on Dr. Stage’s orders. Some time after the administration of these medications but before McClendon underwent surgery, it was learned that her pregnancy test was positive. Dr. Williams canceled the surgery.

On June 9, 2003, McClendon saw Dr. Williams for an ultrasound, which showed an early intrauterine pregnancy. McClen-don miscarried on June 16, 2003. About one month later, McClendon had the hysterectomy. Dr. Williams operated, and Dr. Stage provided anesthesia.

I {.On May 26, 2006, McClendon and her husband, Johnny McClendon, filed a medical malpractice suit against P & S, Dr. Williams, and Dr. Stage. They alleged that the defendants breached the standard of care in failing to properly interpret the laboratory diagnostics indicating a positive pregnancy test, in referring a pregnant patient to radiology, and in administering medications contraindicated for pregnant patients. They alleged that the defendants’ negligence caused the miscarriage as well as physical and emotional suffering by McClendon.

On April 30, 2007, P & S filed a motion for summary judgment on the grounds that McClendon had not identified any medical expert who would testify that P & S caused the damages alleged, specifically, the miscarriage. In support of its motion, P & S offered the Medical Review Panel opinion. The panel, comprising specialists in obstetrics and gynecology, concluded that P & S failed to comply with the standard of care by not properly charting the results of the pregnancy test and notifying Dr. Williams that it was positive so that she could have canceled the surgery earlier. However, the panel also concluded that P & S’s failure to comply with the standard of care was not a factor in the alleged damages. The opinion stated, “The pre-operative [sic] x-ray and the anesthesia administered did not cause the miscarriage.”

P & S also offered a report by a legal nurse consultant, Nancy McNamara (“McNamara”), who opined that McClen-don’s pregnancy should have been discovered before she was given medications pri- or to surgery on June 6, 2003. However, in her research of medical literature, |3McNamara could find no connection between the medications administered to McClendon and the risk of a miscarriage.

McClendon opposed P & S’s motion, asserting that there are genuine issues of material fact as to whether P & S breached the standard of care and whether the medications administered prior to surgery caused the miscarriage. McClendon offered the affidavit of William C. Coney, M.D., a general practitioner who had been her primary physician. Like the medical review panel, Coney concluded that P & S failed to meet the standard of care by not charting or reporting the positive pregnancy test prior to the scheduled surgery. However, Coney also concluded that the administration of Versed caused the miscarriage.

On October 7, 2009, P & S filed a motion in limine to prohibit Dr. Coney from testifying as an expert concerning any causal relationship between the medications administered to McClendon and miscarriages. P & S argued that as a family practitioner, Dr. Coney was not qualified to testify about anesthetics and that there were no studies to substantiate his opinion that Versed caused McClen-don’s miscarriage.

In the meantime, plaintiffs obtained another expert, Dr, Karl Haydel (“Dr. Haydel”), an anesthesiologist, and filed his affidavit in opposition to a motion for summary judgment by Dr. Stage, who like P & S was also seeking summary judgment based on the lack of evidence as to causation. Dr. Haydel’s affidavit relates that Versed is a benzodiazepine and is considered a Class D drug by the Food and Drug Administration, meaning that it poses a demonstrated risk to a fetus. The affidavit notes that there Chave been few studies concerning the use of benzodiazepines during human pregnancies and that the data is inconclusive. The affidavit states that it is standard practice among anesthesiologists not to use Versed on pregnant patients, particularly during the first trimester.

Dr. Haydel’s affidavit refers to Decadron as a steroid and a Class C drug that also poses some risks to a fetus. His affidavit states that both drugs can increase the stress of a pregnant patient and that stress can increase the risk of a miscarriage. The affidavit concludes with Dr. Haydel’s opinion that the “administration of one or both of the drugs contributed to the altering of Mrs. McClendon’s physical and chemical make-up that ultimately led to the destruction of her fetus.”

On January 14, 2011, P & S filed a motion in limine to prohibit Dr. Haydel from testifying as to causation. The motion was básed on Dr. Haydel’s deposition in which he admitted that it cannot be proven or known whether the administration of Versed and the other drugs caused the miscarriage. He also admitted that his opinion regarding causation was based on his subjective belief, not any scientific data or research.

At the hearing on the motions in limine on March 29, 2011, counsel for McClendon conceded that Dr. Coney is not qualified to testify as an expert in this matter. After hearing arguments, the trial court granted the motion in limine as to Dr. Haydel to prohibit him from testifying as to causation, specifically that Versed or Decadron caused or contributed to the alleged harm. The trial court did permit Dr. Haydel to testify as to the | .¡standard of care and breach, such as that the administration of Versed during the first trimester of pregnancy is a breach of the standard of care.

On September 29, 2011, P & S reurged its motion for summary judgment, asserting that McClendon would be unable to produce any admissible evidence to prove causation. McClendon again opposed the motion and offered a new affidavit by Dr. Haydel. This second affidavit states that current medical literature supports his opinion that Versed is “strongly contraindicated for use during pregnancy.” He notes that fetal toxicity had been observed with other benzodiazepines. He opines that the absence of data on the use of Versed during the first two trimesters of pregnancy “cannot be taken to mean ... that Versed is not harmful or causative of harm to a first trimester fetus, if in fact, one is spontaneously aborted following the administration of the drug!”

On September 20, 2012, P & S’s motion for summary judgment was argued by the parties and denied by the trial court without any explanation for its ruling. After the judgment was signed on April 2, 2012, P & S sought supervisory review. This court granted the writ, and the matter is now before us for a de novo review of the motion for summary judgment. See Samaba v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. The issue, as presented by P & S, is whether the plaintiffs have submitted factual support sufficient to show that they will be able to meet their evidentiary burden of proving causation at a trial.

I rDISCUSSION

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, if any, together with the affidavits, if any, show that there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The burden of proof on a motion for summary judgment is set forth in La. C.C.P. art. 966(C)(2):

The burden of proof remains with the movant. However, if the movant -will not bear the burden of proof at trial on the matter that is before the court on summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

A medical malpractice claimant has the burden of proving, by a preponderance of the evidence, the following: (1) the standard of care applicable to the defendant; (2) the defendant’s breach of the standard of care; and (3) a causal connection between the breach and the resulting injuries. La. R.S. 9:2794: Samaha, supra; Jones v. Hernandez, 38,818 (La.App.2d Cir.8/18/04), 880 So.2d 245, writ denied, 2004-2319 (La.11/19/04), 888 So.2d 203.

In Pfiffner v. Correa, 94-0924, p. 9 (La.10/17/94), 643 So.2d 1228, 1234, the supreme court held that “expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim,” such as where a lay person can perceive negligence on the part of the defendant as well as an expert can, or where the 17defendant/physician testifies as to the standard of care and objective evidence is presented to demonstrate the breach. However, the court noted that the plaintiff is still required to “demonstrate by a preponderance of the evidence a causal nexus between the defendant’s fault and the alleged injury.” Id.

In most cases, the plaintiff will require expert testimony to establish the standard of care, whether it was breached, and whether the breach caused the alleged injuries. Jones, supra. As to causation, which is at issue in P & S’s motion for summary judgment, this court has addressed the plaintiffs burden of proof:

A medical malpractice plaintiff must show that, as a result of the defendant’s negligence, he suffered injuries that would not otherwise have occurred. The plaintiff need not show that the defendant’s conduct was the only cause of harm, nor must he negate all other possibilities. Rather, he must show by a preponderance of the evidence, or more probably than not, that he suffered the injury because of the defendant’s conduct. [Citation omitted.] Where it is equally plausible that the defendant’s negligence caused the injury as it is that the injury was caused otherwise, the plaintiff fails to prove that, more probably than not, the injury was the result of negligence.

Gordon v. Louisiana State University Bd. of Sup’rs, 27,966, p. 4-5 (La.App.2d Cir.3/1/96), 669 So.2d 736, 740, writ denied, 96-1038 (La.5/31/96), 674 So.2d 263.

P & S argues that it met its burden by introducing the medical review panel opinion, which concluded that its failure to comply with the standard of care was not a factor in McClendon’s alleged damages. P & S also presented a report by a nurse consultant, McNamara, whose research of | ¿medical literature produced no connection between the drugs administered to McClendon and the risk of a miscarriage.

The medical review panel’s opinion regarding causation was stated in a cursory fashion, without any discussion as to how it reached its conclusion. However, for purposes of its motion for summary judgment, P & S need only point out the absence of factual support for one or more elements of the plaintiffs’ claim. P & S asserts that the plaintiffs have not come forth with any admissible evidence to show that they will be able to meet their evidentiary burden of proving causation at trial.

To show that they will be able to meet their evidentiary burden at trial, plaintiffs rely on Dr. Haydel and argue that his affidavit is properly before this court for consideration notwithstanding the ruling on the motion in limine.

In granting the motions in limine filed by P & S and Dr. Stage, the trial court ruled that Dr. Haydel cannot testify as to causation. This ruling was supported by Dr. Haydel’s deposition in which he admitted that whether the administration of Versed and the other drugs caused McClendon’s miscarriage cannot be proven or known. The plaintiffs have not appealed this ruling. Thus, the ruling stands, and Dr. Haydel is prohibited from testifying as to causation.

Contrary to the ruling on the motion in limine, Dr. Haydel’s second affidavit again included his opinion on causation. Even considering this second affidavit, we must conclude that the plaintiffs failed to produce factual support sufficient to show that they will be able to meet their 19evidentiary burden of proving causation at trial. The gist of Dr. Haydel’s affidavit is that Versed (midazolam) is contraindicated for pregnant women and that it is not the standard of care to administer this drug to pregnant women except where the necessity would outweigh the potential risks. He suggests that the warnings against its use for pregnant women coupled with the administration of Versed to McClendon and her subsequent miscarriage establish a causative link. The research Dr. Haydel relies on from the Electronic Medicines Compendium (“eMC”) warns against the use of Versed / midazo-lam during pregnancy but does not refer to a risk of a miscarriage in humans from its use. Plaintiffs rely on Dr. Haydel’s subjective opinion, rather than any objective evidence, that the use of Versed caused the miscarriage or otherwise resulted in injury to McClendon.

In the absence of any objective evidence or admissible expert testimony as to causation, plaintiffs will not be able to prove by a preponderance of the evidence that McClendon suffered injuries that would not otherwise have occurred. There is no indication of injuries to McClendon other than the miscarriage and the related physical and emotional suffering. McClendon was 36 at the time of the scheduled surgery. She was to undergo, and later did undergo, a hysterectomy because of preexisting gynecological problems. It is equally plausible that her miscarriage was caused by factors other than the drugs administered to her before discovery of the positive pregnancy test.

110Because the plaintiffs have not produced factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proving causation at trial, we are constrained to find that there is no genuine issue of material fact and that summary judgment is appropriate.

CONCLUSION

For the reasons stated, we reverse the trial court’s ruling, hereby grant the motion for summary judgment, and dismiss with prejudice the claims against P & S Surgery Center, L.L.C. Costs are assessed against the plaintiffs.

REVERSED and RENDERED.

MOTION FOR SUMMARY JUDGMENT GRANTED.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Demond CAREY, Appellant.
    No. 47,650-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Douglas L. Harville, for Appellant.
    Charles R. Scott, II, District Attorney, Tommy J. Johnson, Brady D. O’Callaghan, Geya D. Prudhomme, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   WILLIAMS, J.

liA Caddo Parish Grand Jury returned an indictment charging the defendant, De-mond Carey, with second degree murder, in violation of LSA-R.S. 14:30.1. Following a jury trial, he was found guilty of the responsive verdict of manslaughter. He was adjudicated a second-felony habitual offender and sentenced to serve 80 years at hard labor without the benefit of probation or suspension of sentence. For the following reasons, we affirm.

FACTS

On July 19, 2008, at approximately 1:45 p.m., Detective James E. Cromer, Jr., a former member of the Shreveport Police Department Violent Crimes Unit, responded to a call that a man had been shot, possibly deceased, in the Cooper Road area. When the police officers arrived on Nena Street, they discovered the body of a deceased male inside a silver pickup truck parked on the side of the street. Detective Cromer testified that numerous bullet holes had been fired into the vehicle and the driver’s side window; the victim was behind the steering wheel, slightly leaned to the right, with his head tilted down. There was a gun on the floorboard next to the victim’s feet and blood splatter throughout the vehicle.

A short while into the investigation police officers learned that there was another crime scene — the Quick Pack convenience store on David Raines Road in Shreveport. When officers arrived at the Quick Pack location, they discovered a hole in the window of the convenience store and bullets lying on a newspaper stand. Detective Cromer, along with another detective, were able to identify and interview several witnesses: Haston | ¡.Smith, Roy Riley and two teenaged girls.

The investigation revealed that a group of people were sitting around drinking alcohol, playing dominoes and dice under a tree in an empty lot next to the Quick Pack. The group included Demond Carey (the defendant), Demarcus Jones and Lon-zell Armstrong (the victim). An argument ensued; the defendant, the victim and Jones left and later returned with guns. When the victim returned, he began to walk toward the tree next to the store. However, a witness, Haston Smith, convinced the victim to return to his truck and leave. The victim returned to his truck and started the engine. However, before he could drive away, Jones fired multiple gunshots at the victim’s truck from the driver’s side. Simultaneously, the defendant, Demond Carey, fired multiple gunshots into the back passenger side of the victim’s truck. After the shooting ceased, the victim drove away and was found dead in his truck on Nena Street, approximately two blocks from the scene.

Through the investigation and information obtained from a confidential informant, Detective Cromer was able to identify two suspects: Demarcus Jones (a.k.a. “Papa”) and Demond Carey (a.k.a. “Money”). Several days after the shooting, Jones was arrested at a hotel on Monk-house Drive in Shreveport. Several months later, the defendant was taken into custody in Georgia, with the assistance of United States Marshals.

On October 16, 2008, the defendant was charged by bill of indictment with second degree murder. On October 8, 2010, the state filed a motion to ^invoke firearm sentencing provisions. The jury trial began on October 25, 2011.

Sergeant Tommy Rachal, of the Shreveport Police Department, assisted in the investigation of this matter. Sgt. Rachal testified that he processed the crime scene on Nena Street, as well as the crime scene surrounding the convenience store. The state presented into evidence the diagrams Sgt. Rachal made of both crime scenes. The state also introduced into evidence photographs taken of the crime scenes which depicted the following: the Quick Pack and the parking lot; two bullets that hit a Marlboro sign inside the Quick Pack; the victim’s truck on Nena Street; bullet holes along the passenger side of the victim’s truck; the front of the victim’s truck; bullet holes in the driver’s side of the victim’s truck; a bullet hole in the driver’s seat headrest; a .22 caliber revolver that was located on the floorboard underneath the victim’s feet; and the victim seated in the truck.

Sgt. Rachal testified that the bullets in the driver’s side of the victim’s truck were consistent with medium to large caliber bullets. Based on trajectory dowel rod tests conducted by Sgt. Rachal, he concluded that the shots on the driver’s side came from the left side of the vehicle and the two |4shots on the passenger side came from the rear of the vehicle. He stated that if the damage was inflicted simultaneously, it could not have been inflicted by only one person.

Based upon Sgt. Rachal’s testimony, the state also introduced into evidence several spent .40 caliber cartridge casings that were found in the front area of the parking lot of the Quick Pack. Sgt. Rachal testified that there were also spent casing by the roadway sidewalk, thus the gunshots came from the roadway toward the store. The state then introduced into evidence the .22 long rifle revolver that Sgt. Rachal recovered from the front floorboard of the victim’s truck; it had four spent casings and two cartridges. However, Sgt. Rachal testified that there was no physical evidence to indicate that the victim’s .22 caliber gun was fired at either crime scene. Based on his examination of the crime scene and the physical evidence, Sgt. Ra-chal concluded that two moderate to large caliber weapons were fired at the victim’s truck, and both weapons were aimed toward the occupant compartment of the truck.

On cross-examination, Sgt. Rachal testified that the legal limit for blood alcohol content in Louisiana is .08. He also stated that the bullets which landed in the passenger side window of the victim’s truck were fired from the driver’s side of the vehicle.

Chasity Johnson also testified during the trial. Johnson testified that on the day of the shooting, she was outside on the porch at her grandmother’s house with her sister, Darika Kirkendoll. She stated that she | sheard men arguing about a dice game in the field next door to the house; she did not know any of the men. Johnson also testified that she saw a big, tall, “dark-skinned” man walk across her grandmother’s front yard, then come back, “fumbling with something” in his pants. This man and another “light-skinned” man walked to the Quick Pack and began shooting at a dark gray truck. She stated that she never saw the man inside the truck with a gun. Johnson testified that both men were shooting at the same time, but she did not know which man fired the first shot. She stated that one of the shooters was on the driver’s side and the other was on the passenger side. Johnson also stated that she did not hear anyone arguing immediately before the shooting. She stated that the man in the truck drove away when the shooting ended.

On cross-examination, Johnson testified that after she heard the argument about the dice game, she did not notice anyone leave in a vehicle. She also stated that she regularly goes to her grandmother’s house, and she had previously seen people sitting under the tree playing dice and drinking. However, she had never heard any of the men making threats.

Darika Kirkendoll also testified. Kirk-endoll testified that, on the day of the shooting, she and Johnson were in the yard at her grandmother’s house. She stated that she saw a group of older men playing dice in the field next door; she did not know any of the men. Kirkendoll also testified that she saw the men leave the scene and then come back. She stated that a dark-skinned, heavyset man walked across her grandmother’s yard and she IfiSaw him place a gun in the back of his pants. About 10 to 15 minutes later, an older model truck pulled into the Quick Pack parking lot, and then she heard gunshots. Kirkendoll testified that she did not hear anyone arguing prior to hearing the gunshots. She stated that she did not see the man in the truck get out of the truck and she never saw him with a gun. She also testified that two men were shooting at the truck: the “heavyset” man was shooting into the passenger side, and the “tall, bald-headed, bright-skinned” man was shooting into the driver’s side. Kirk-endoll testified that her grandmother made her and her sister go into the house during the gunshots; she did not see the truck leave.

On cross-examination, Kirkendoll testified that she recognized Omar Taylor, the defendant’s nephew, “from seeing him around”; however she did not know his name. She stated that Taylor was there when the shooting occurred, but she did not see him shooting a gun. Kirkendoll also stated that after the “heavyset” man walked across her grandmother’s yard, he went back under the tree. She stated that the gray truck was approximately 15-20 feet away from her grandmother’s porch.

Roy Riley testified that he knew the defendant, the victim and Jones. He stated that on the day of the shooting, he and Haston Smith went to the Quick Pack. When they arrived, he did not know what was going on, but a lot of people were standing around, as usual. Riley stated that Jones asked him for a cigarette, then he heard someone say, “There he is.” Riley denied |7knowing who the person was talking about. He stated that he saw the victim walking toward them with a gun, but Smith said, “I got this” and ran over to talk to the victim. Riley stated that while Smith went to talk to the victim, he talked to Jones, who also had a gun. He stated that he told Jones not to go “over there” but Jones kept walking. Riley stated that Jones walked down the sidewalk, toward Smith and the victim; Jones had his gun under his arm. Riley testified that at that point, he heard gunshots. He also testified that prior to hearing the gunshots, he did not hear Jones say anything or shoot or point his gun. Further, Riley stated that the victim got into his truck approximately 30 seconds before the shooting started. According to Riley, Jones was shooting at the driver’s side of the truck and the defendant was shooting at the back of the truck from his location “in the field.” Riley stated that when the shooting ceased, the victim drove away. Riley identified the defendant in open court.

On cross-examination, Riley testified that he knew Omar Taylor and remembered seeing him after the shooting. Riley admitted that he had been drinking alcohol before he arrived at the Quick Pack and that he told a police officer who interviewed him that he was drunk. Riley stated that when he was talking to Jones, they were approximately 40-50 feet away from the victim. He also stated that Jones started shooting first and that he fired most of the shots.

On redirect, Riley described Jones as “kind of heavyset.” He also testified that Jones was the first shooter and the defendant was the second shooter.

IsHaston Smith also testified at the trial. He stated that he knew the defendant, the victim and Jones, and he identified the defendant in open court. Smith stated that on the day of the incident, he and Riley arrived at the Quick Pack, where a group of men usually “hung out” under a tree to drink and gamble. He stated that he saw the victim drive up and he heard somebody say, “There he is.” Smith testified that he asked if the victim had “got[ten] into it” with anyone, and someone replied, “Yes.” Smith responded that he could “stop it” and walked over to the victim. Smith stated that he and the victim were approximately 25 feet from the group of people who were under the tree. He also stated that the victim told him that he was tired of “them” thinking he was a bitch. Smith testified that he told the victim to return to his truck because “he was not going to win this one.” He stated that the victim got into his truck and started the engine. Smith testified that the victim did not say anything to anyone after he got back into his truck. He stated that the victim had a gun in his belt, but he never saw him pull it out or wave it. Smith testified that Jones walked up the sidewalk and asked Smith if he was all right; Smith responded, ‘Tes.” Smith stated that he told Jones to go back to the tree. However, Jones approached the truck and began shooting; Smith stated that he “got out of the way.” Smith also testified that he saw the defendant walk from the tree to the back of the victim’s truck and begin shooting at the truck. According to Smith, when the shooting ended, the victim drove away.

|9On cross-examination, Smith testified that he had not been drinking alcohol before going to the Quick Pack. He stated that he was at the store approximately 4-5 minutes before the shooting started. Smith also admitted that he did not tell the investigating police officers that he had witnessed the shooting. Smith testified that he did not know who the victim was angry with because no one mentioned the victim’s name. Smith further testified that when he told the victim that he was “outgunned,” he did not know who had a gun; however, he knew that the people under the tree were known to carry guns. Smith stated that he did not have time to ask the victim what was going on; he was just trying to put a stop to the situation. He testified that after the victim got in the truck and started it, he just sat there as if he was “out of it.” Smith stated that when Jones walked up to the truck, there was no communication between Jones and the victim. Smith testified that he did not know what happened to the victim’s gun. On redirect, Smith testified that prior to the shooting, the victim did not “go after” anyone, did not make threats to anyone, and did not point a gun at anyone.

Dr. James Traylor, a forensic pathologist at LSU Health Sciences Center in Shreveport, also testified for the state. He was qualified by the court as an expert in forensic pathology. Dr. Traylor testified that he performed the autopsy on the victim, and the cause of the victim’s death was multiple gunshot wounds resulting in asphyxia and hemorrhage.

Dr. Traylor testified that the victim’s toxicology report showed he had a blood alcohol level of .09. He also stated that he completed a GSR gunshot residue test on the victim. During the course of his testimony, the 110state presented into evidence the autopsy and toxicology report, a diagram of the gunshot wounds on the victim’s body, photographs of the victim’s gunshot wounds, and the three bullets recovered from the victim’s body.

Dr. Traylor testified that the victim had six gunshot wounds: three penetrating (Wounds A, B and C) and three perforating (Wounds D, E and F). With regard to the victim’s gunshot wounds, Dr. Traylor testified as follows:

Wound A — the bullet went in and came out of the top of the victim’s left shoulder, re-entered at his left jaw, and ended up in his right clavicle. This indicates that the victim’s head must have been in a flexed position, with his chin toward the chest;
Wound B — the bullet entered the victim’s upper left back and proceeded into his upper left lung;
Wound C — the bullet entered the side wall of the victim’s left abdomen and ended up in his right lower back;
Wound D — the bullet entered the victim’s right elbow and exited on the back upper portion of his right arm;
Wound E — the bullet entered the back of the victim’s left upper arm and exited his chest; and
Wound F — the bullet entered the victim’s left forearm and exited where his wrist and hand met. This wound also had tattooing, or intermediate range of fire, meaning that the gun was fired from within a few inches of the skin’s surface, leaving gun powder deposits.

Dr. Traylor testified that there was no evidence of the order in which the gunshot wounds occurred; however, most of the wounds, with the exception of Wound F, were irregular entry wounds because the bullets had passed through another object. He stated that this would be consistent with someone being shot while seated in a vehicle.

InOn cross-examination, Dr. Traylor testified that if the victim was sitting in the driver’s seat of a vehicle, the shooter would have to have been to his left side. He stated that all of the victim’s wounds occurred from the driver’s side of the vehicle and that the main track of all of the wounds was from left to right.

The state also called Richard Beighley, a criminalist and the firearms section supervisor at the North Louisiana Crime Lab, to testify. Beighley, who was qualified by the court as an expert in firearms identification and analysis, evaluated the evidence in this case for firearms identification, and he prepared a certified crime lab report, which was admitted into evidence. Beigh-ley testified that there were two types of gun rifling in this case: conventional and polygonal, which is unique to Glocks. He concluded that four of the six .40 caliber cartridge casings, which were found in the Quick Pack parking lot, were fired out of the same Glock firearm. He stated that the other two casings had similar characteristics; however, he could not conclude that they came from the same gun. Beighley testified that the bullets which were recovered from the victim’s body were .40 caliber bullets that were fired from a polygonal rifled weapon, consistent with a Glock. He also determined that one of the bullet jackets was missing the core, had conventional rifling, and was consistent with a .38/.357 caliber bullet. According to Beighley, that rifling is typically fired from a revolver. Therefore, Beighley concluded that there was at least one Glock handgun fired and one revolver fired at the scene of the shooting.

The state also called Darnell Armstrong, the victim’s older brother, to |12testify. Armstrong testified that on July 19, 2008, he arrived at the scene and identified the victim and his truck for the detectives.

The defendant did not testify. The defense called Jones, the co-perpetrator, as its only witness. Jones admitted that he knew the defendant but refused to answer any further questions.

Following closing arguments, the jury found the defendant guilty of the responsive verdict of manslaughter. The jurors were polled, revealing that the verdict was rendered by a vote of 10-2.

Subsequently, on November 10, 2011, the state filed a Second-Felony Habitual Offender Bill of Information, and a habitual offender hearing was conducted on December 12, 2011. During the hearing, Lieutenant Owen McDonnell was qualified as an expert in latent fingerprint analysis and identification. Lt. McDonnell testified that he had examined the defendant’s fingerprints, and he identified the defendant as the same person who pled guilty to manslaughter and three counts of attempted first degree murder on March 1, 1995. The trial court adjudicated the defendant a second-felony habitual offender.

The court denied the defendant’s motions for a new trial and post-verdict judgment of acquittal. In another motion, styled “Defendant’s Statement on Sentene-ing and Motion for Downward Departure Under \nDorthey, ” the defendant argued that the court should consider the actions of the victim, the minor role that the defendant played in the homicide and the sentence that the actual killer, Jones, would receive (17 years) pursuant to a plea bargain. The defendant also argued that he defended himself against an “angry and intoxicated” victim, who wanted to kill the defendant for no justifiable reason. Additionally, the defendant argued that Jones fired the fatal shots, while he (the defendant) was not trying to harm the victim because the shots that he fired only struck the passenger side of the victim’s truck.

At the hearing on the defendant’s motion, the defendant argued that the shooting was merely a circumstance of being in the wrong place at the wrong time with the wrong person. The defendant also argued that he was not the person who fired the fatal shot in his prior manslaughter conviction either. Additionally, the defendant maintained that he was defending himself in his previous convictions for attempted first degree murder. According to the defendant, the three victims were trying to harm him as a result of the first manslaughter conviction. The trial court denied the motion and sentenced the defendant to serve 80 years at hard labor without the benefit of probation or suspension of sentence. The defendant’s motion to reconsider sentence was denied.

The defendant appeals his conviction and sentence.

| DISCUSSION

The defendant contends the evidence was insufficient to prove that he was guilty of manslaughter beyond a reasonable doubt. He argues that the state failed to present sufficient evidence to negate his contention that he acted in self-defense. According to the defendant, he fired his weapon only after the victim drove his truck back to the Quick Pack, exited his truck with a loaded gun, and walked toward the tree until he was convinced to get back in his truck. The defendant also claims that the victim made threats and had been drinking before the shooting. The defendant asserts that despite the urgent nature of the situation, the victim entered his truck, but remained at the scene approximately 30-40 seconds. During this time, Jones began firing shots into the driver’s side of his truck, and the defendant walked toward the truck, but remained about 25-40 feet away from it. The defendant argues that he fired shots only after Jones and/or the victim fired shots, and all of his shots were fired into the passenger side of the victim’s truck.

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, 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 Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the 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, unit denied, 2009-0372 (La.11/6/09), 21 So.3d 299.

Where there is conflicting testimony concerning factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.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, one witness’s testimony, if hfibelieved 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, unit denied, 2006-1083 (La.11/9/06), 941 So.2d 35. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94.

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 trier of fact’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.

As stated above, the defendant was convicted of the offense of manslaughter. Manslaughter is 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. LSA-R.S. 14:31. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed. Id.

“Sudden passion” and “heat of blood” are not elements of the offense 117of manslaughter; rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed without them. State v. Lombard, 486 So.2d 106 (La.1986). The defendant is required to prove by a preponderance of the evidence that he acted in “sudden passion” or “heat of blood” for a verdict of manslaughter to be appropriate. State v. Robinson, 32,794 (La.App.2d Cir.3/1/00), 754 So.2d 311, unit denied, 2000-0989 (La.3/23/01), 787 So.2d 1008.

LSA-R.S. 14:20 provides, in pertinent part:

A. A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(2) When committed for the purpose of preventing a violent or forcible felony involving, danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

Self-defense is justification for a killing only if the person committing the homicide reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. LSA-R.S. 14:20(A)(1); State v. Dooley, 38,763 (La.App.2d Cir.9/22/04), 882 So.2d 731, writ denied, 2004-2645 (La.2/18/05), 896 So.2d 30.

118When self-defense is raised as an issue by the defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State v. Cook, 46,843 (La.App.2d Cir.1/25/12), 86 So.3d 672, writ denied, 2012-0640 (La.6/22/12), 91 So.3d 969; State v. Garner, 39,731 (La.App.2d Cir.9/8/05), 913 So.2d 874, writ denied, 2005-2567 (La.5/26/06), 930 So.2d 19. When the defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Cook, supra; State v. Matthews, 464 So.2d 298 (La.1985).

In the instant case, the state presented the testimony of several eyewitnesses to the shooting and to the events leading up to the shooting. Additionally, the state presented the testimony of Dr. Traylor, Detective Cromer, Sgt. Rachal and Richard Beighley, who all corroborated the basic sequence of events that occurred on the day of the shooting.

All of the testimony established that the defendant and Jones both fired shots at the victim’s truck. Johnson and Kirken-doll testified that they saw one of the men shooting into the driver’s side of the truck and the other man shooting into the passenger side of the truck. Both Riley and Smith provided unrefuted testimony that Jones fired multiple gunshots into the driver’s side of the truck and that the defendant fired shots from the back of the truck. Detective Cromer testified that a total of 17 shots were fired. Sgt. Rachal investigated the crime scenes and explained that the bullet holes on | t9the victim’s truck could not have been caused by only one shooter if the weapons were fired simultaneously. He testified that the shots on the driver’s side came from the left side of the truck and the shots on the passenger side came from the rear. Beighley testified that there were two different types of weapons fired: a .40 caliber Glock handgun and a .38/.357 revolver. Dr. Traylor testified that Armstrong died of six gunshot wounds, and all of the gunshot wounds occurred from his left side, or the driver’s side of the vehicle.

There was no evidence presented at trial to support the defendant’s contention that he acted in self-defense. The evidence indicates that there was an argument earlier that day between the men under the tree at the Quick Pack and that at least three of the men (the defendant, the victim and Jones) left, only to return with guns. When the victim returned, he began walking toward the group of men under the tree with his gun. However, Smith convinced him to get back in his truck. It is undisputed that the victim had returned to his truck and had started the engine when the defendant and Jones started shooting. No words were exchanged between the victim and anyone at the scene after the victim entered his truck, and the victim never waved or pointed his gun at anyone.

Dr. Traylor testified that the victim’s gunshot wounds were irregular, which would be consistent with someone being shot while seated in a vehicle. In addition, according to the testimony of Smith and Riley, the group of people under the tree, where the defendant was located, were approximately 25-40 feet from the victim’s truck.

|2nIt is undisputed that the victim had a gun in his possession. Riley and Smith both testified that they saw the victim with a gun prior to the shooting; Sgt. Rachal testified that a .22 revolver was found on the floorboard of the victim’s truck and that it had four spent casings and two cartridges. However, the evidence is clear that the victim did not shoot or point his gun at anyone. Smith testified that the victim’s gun was in his belt, but he never pulled it out or waved it. Riley testified that the victim never shot or pointed his gun at anybody. Johnson and Kirkendoll testified that they never saw the victim with a gun. Additionally, Sgt. Rachal testified that there was no physical evidence that the victim’s gun was fired during this incident.

Additionally, although the victim had a blood alcohol level of .09 at the time of his death, there was no evidence presented that the victim threatened the defendant or anyone else. Riley testified that he did not hear the victim say anything in the moments leading up to the shooting. Likewise, Smith, who was standing close to the victim, testified unequivocally that the victim never threatened anyone. In fact, Smith stated that the victim did not say anything to anyone after he got back into his truck. According to Smith, neither Jones nor the victim said anything to each other before Jones and the defendant started shooting. None of the witnesses testified that the victim threatened the defendant in any way on the day of the shooting.

Furthermore, the evidence showed that both the defendant and Jones left the scene after the shooting. Detective Cromer testified that throughout 121his investigation, there was no evidence to indicate that either the defendant or Jones had been threatened by the victim that day and were acting in self-defense.

After a thorough review of the entire record, we find that there is no evidence in the record to support the defendant’s contention on appeal that he reasonably believed that he was in imminent danger of losing his life or receiving great bodily harm, such that deadly force was necessary to save his life. As stated above, the evidence was uncontroverted that the victim was in his truck. He was not making any threats or pointing his gun at anyone. The evidence showed that the victim had entered his truck, started the engine and was likely about to drive away from the Quick Pack store when the defendant and Jones began shooting. The defendant walked toward the victim’s truck and started shooting into the vehicle from a distance of approximately 25-40 feet. Thus, we find that a reasonable trier of fact could have concluded that the defendant did not shoot at the victim in self-defense. Accordingly, after considering the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could have concluded, beyond a reasonable doubt, that the defendant is guilty of the offense of manslaughter and that he was not acting in self-defense. This assignment of error lacks merit.

The defendant also contends the trial court imposed a harsh and constitutionally excessive sentence. He argues that his sentence, 80 years at hard labor, without the benefit of probation or suspension of sentence, is excessive and serves no purpose other than the needless infliction of pain l^and suffering. The defendant maintains that the jury convicted him of manslaughter, thereby rejecting the state’s claim that he was guilty of second degree murder, which carries a mandatory life sentence. Therefore, according to the defendant, the trial court, by imposing an 80-year sentence, effectively imposed the life sentence that the jury’s verdict precluded.

In reviewing a sentence for ex-cessiveness, an appellate court utilizes a two-pronged test. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,-855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of LSA-C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La. App.2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, unit denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement | ^that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, unit denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

Manslaughter is punishable by imprisonment at hard labor for not more than 40 years. LSA-R.S. 14:31. However, LSA-R.S. 15:529.1 provides, in pertinent part:

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:
(1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

| i>4The defendant herein was adjudicated a second-felony habitual offender, having prior convictions for manslaughter and three counts of attempted first degree murder. Therefore, the trial court imposed a sentence of 80 years at hard labor without benefit of probation or suspension of sentence.

A trial court has broad discretion to sentence within the statutory limits. State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641; State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. State v. Guzman, supra.

In the instant case, the trial court considered the guidelines set forth in LSA-C.Cr.P. art. 894.1. The court also noted that the defendant is a second-felony offender, who previously pled guilty to manslaughter in addition to three counts of attempted first degree murder. The court also noted that if the defendant would not have pled guilty to his previous convictions on the same day, he would have been adjudicated a third-felony offender. Additionally, the court noted that the current shooting took place at a convenience store with a number of people standing around, including the two teenaged girls who testified, and two bullets went through the window of the store. Thus, other persons could have been injured during the commission of this crime. Furthermore, the court stated that the defendant discharged a firearm during the commission of this offense, as confirmed by a number of witnesses who testified that he was one of the men shooting at the victim.

| asThe court also addressed the defendant’s argument that none of the bullets fired from his weapon injured the victim by stating that it did not believe that “because someone’s a good shot versus a crappy shot that the person that’s the bad shot should be rewarded as compared to the person that was the good shot.” The court expressed its belief that the evidence was sufficient to support a conviction for second degree murder, rather than manslaughter; had the defendant been convicted as charged, he would be facing a mandatory life sentence. The court concluded that a lesser sentence would deprecate the seriousness of this crime and the defendant’s past behavior. Considering the above, the court sentenced the defendant to serve 80 years at hard labor without the benefit of probation or suspension of sentence.

Maximum sentences are generally reserved for the worst offenses and offenders. State v. Taylor, 41,898 (La.App.2d Cir.4/4/07), 954 So.2d 804. Courts have upheld the maximum sentence of 80 years for second-felony offenders convicted of manslaughter. See, State v. Glaub, 2010-761 (La.App. 5th Cir.5/24/11), 66 So.3d 1170; State v. Hyman, 10-335 (La.App.5th Cir.2/15/11), 62 So.3d 146, writ denied, 2011-0558 (La.9/30/11), 71 So.3d 282; State v. Johnson, 2009-0706 (La.App.4th Cir.5/26/10), 41 So.3d 1188.

After reviewing the record in its entirety, we find that the trial court | gndid not abuse its discretion in sentencing the defendant to serve 80 years in prison without benefit of probation or suspension of sentence. The sentencing range for the defendant, a second-felony offender convicted of manslaughter, was not less than 20 years and not more than 80 years at hard labor. The defendant, acting in concert with another person, fired multiple gunshots at the victim’s vehicle, with full knowledge that the victim was inside the truck. This brazen act was committed in broad-daylight and in full view of numerous eyewitnesses. The defendant showed no regard for the safety of other innocent bystanders, including two teenaged girls who were in the yard of the house next door, or for anyone who may have been working or shopping inside of the store. Considering the defendant’s actions and criminal history, particularly his propensity to commit crimes similar to the instant offense, the trial court’s imposition of the maximum sentence allowed by law is neither grossly disproportionate to the severity of the offense, nor is it a purposeless and needless infliction of pain and suffering. This assignment lacks merit.

^CONCLUSION

For the reasons set forth herein, we affirm the defendant’s conviction and sentence.

CONYICTION AFFIRMED; SENTENCE AFFIRMED.

      . At the time of the trial, Detective Cromer had retired from the Shreveport Police Department.

      . Jones was also arrested and charged with second degree murder. He initially pled guilty to manslaughter; however, he later withdrew his plea and was tried and convicted of second degree murder. During the defendant’s trial, Jones was called to testify as a witness for the state. Jones was present with counsel, who objected to the state's questioning. Jones then asserted his rights against self-incrimination and refused to testify in this case.

      . At the time of the shooting, Sgt. Rachal was assigned to the Crime Scene Identification Division. However, at the time of trial, he was the Supervisor of the Traffic Bureau for the Shreveport Police Department.

      . Johnson was 13 years old at the time of the incident and 16 years old at the time of the trial.

      . Kirkendoll was 15 years old at the time of the incident and 18 years old at the time of the trial.

      .Riley admitted to having a criminal history which included convictions for: possession of marijuana (1983), resisting arrest (1995), gambling in public (1995) and possession of Schedule I CDS (2001).

      . Smith admitted to a criminal history which included convictions for: attempted theft (1973), simple escape (1977), attempted manslaughter (1983), possession of Schedule II CDS with intent to distribute (1989), entering and remaining after being forbidden to do so (1998), DWI (1998), careless operation (1998) and simple battery (1998).

      . Darnell Armstrong admitted that his criminal history included a conviction for possession of marijuana with intent to distribute (1984).

      . In the prior case, the defendant was convicted of second-degree murder after he shot and killed Johnny Lee Atkins. This Court set aside his conviction and remanded the matter for new trial. See, State v. Carey, 628 So.2d 27 (La.App. 2d Cir. 1993), writ denied, 635 So.2d 236 (La.1994). On remand, the defendant pled guilty to manslaughter. On that same day, the defendant also pled guilty to three counts of attempted first degree murder for a separate, unrelated, incident.

      . As stated above, Jones withdrew his guilty plea to manslaughter and was later convicted of second-degree murder, which requires the imposition of a mandatory sentence of life in prison without benefit of probation, parole or suspension of sentence.

      . In State v. Glaub, supra, during an argument with the victim, the defendant went inside the house and retrieved a gun; the victim began walking away, and the defendant came out of the house and started shooting. The defendant, who was charged with second degree murder, was found guilty of manslaughter and sentenced, as a second-offender, to 80 years’ imprisonment. The defendant claimed that he killed the victim in self-defense. The court rejected his argument and affirmed his conviction and sentence.

      . The court minutes and both parties, in their briefs, indicate that the sentence was imposed without the benefit of probation, parole, or suspension of sentence. However, the transcript from the sentencing hearing reveals that the trial court only imposed the sentence without the benefit of probation or suspension of sentence. When there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). Therefore, the trial court imposed the sentence in accordance with La. R.S. 15:529.1(G), which provides that a sentence imposed under the habitual offender statute is to be served without the benefit of probation or suspension of sentence. That statute does not require that the sentence be served without the benefit of parole.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Antrown Dangelo McGARR, Appellant.
    No. 47,720-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Louisiana Appellate Project by Paula C. Marx, Edward J. Marquet, Lafayette, LA, for Appellant.
    John McIntosh Lancaster, District Attorney, Penny Douciere, Assistant District Attorney, for Appellee.
    Before BROWN, MOORE and SEXTON, Pro Tempore, JJ.
   MOORE, J.

1!A jury found the defendant, Antrown McGarr, guilty as charged of aggravated second degree battery, a violation of La. R.S. 14:34.7, and possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. McGarr filed several post-trial motions which were denied by the trial court; however, the court failed to rule on McGarr’s motion for new trial. It subsequently sentenced the defendant to serve ten years imprisonment at hard labor for the battery conviction and fifteen years at hard labor without parole for the firearm conviction; the court imposed five years of the battery sentence consecutively with the firearm sentence.

The defendant appealed. The record on appeal was lodged and the matter docketed as No. 47,049-KA. Upon error patent review, we noticed the trial court’s failure to rule on defendant’s pro se motion for a new trial. In an unpublished opinion, we vacated McGarr’s sentences and remanded for disposition of the motion for new trial. The trial court denied the motion for new trial and resenteneed McGarr to the same sentences originally imposed. McGarr now appeals for the second time. For the following reasons, we affirm.

The charges against the defendant arose from an incident in Rayville, Louisiana, on June 5, 2009, in which a man, Quincey Hampton, was shot. Hampton, age 25, was a resident of Monroe. He was dating Latonya Giles, who is a resident of Ray-ville and the former girlfriend of the defendant. The defendant and Ms. Giles had a child together.

When Giles and McGarr separated, Giles kept the customized, pink Chevrolet Caprice Classic with chrome wheels. Giles allowed her new |2boyfriend, Hampton, to use the vehicle, much to the displeasure of the defendant. Hampton testified that he and McGarr had a confrontation in Giles’ yard regarding the car, and McGarr told Hampton that “he don’t want me drivin’ that car. And if he seen me drivin’ that car, he was gonna shoot it up.”

Another incident involving the two men occurred in Rayville in front of an apartment complex. Hampton testified that he was leaving the complex when he saw “Loco” (McGarr’s street moniker) drive up and stop his car in front of the pink Caprice. Hampton said that the defendant got out of his car wielding a baseball bat. Hampton “hit the gas” to drive around the defendant, but as he drove away, the defendant knocked off the driver’s side door mirror.

Describing the shooting incident on June 5, 2009, Hampton testified:

I was uh — I was in the Caprices Classic, on my way goin’ to uh, the Richland Apartments, on that time and date. Uh, as I was drivin’, I’m drivin’ with my left hand on the steerin’ wheel and I seen Antonio McGarr. He wuz walkin’ down the street. But I really didn’t know it was him, until, you know, he raised his head up and then he starts — he starts shootin’ at the car. He starts shootin’ at the car. “Doon doon doon doon” and then he had shot me, you know what I’m sayin’? When he shot me, I had felt the pain in my right — my right arm and hip. And I dropped my lef hand and fell— fell by hip [sic ] and I grabbed the steering wheel with my right and I was loo-kin’ at the blood and I was sayin’ in the car to myself, man I’m hit — I’m hit. And I just pushed the gas and drove all the way home.

This shooting incident occurred at the intersection of Dr. Martin Luther King Drive and Ollie Street.

Hampton said that there was no one with the defendant at the time of the shooting. He did not see a Ms. Sequoia Sledge, a resident of the area who later became involved in the investigation. Hampton was able to drive away to Giles’ house, where Giles called for an ambulance. Paramedic Cynthia Ott reported that Hampton told her that he had been shot through the passenger |3door of his car. Hampton was later treated at Glen-wood Hospital by Dr. Melissa Traxler for his gunshot wound, which was close to his femoral artery. The bullet entered the front of his right thigh and exited the back of his right thigh.

In the meantime, police responded to the scene of the shooting. The shooter had fled the scene. Hampton was also gone, but police met with Ms. Sledge, who said that she was a witness. Based upon what Ms. Sledge told police, they searched an area about 150 yards away from where the event actually happened and found no evidence. However, later that evening, one of the officers, Tamario Turner, spoke with his Aunt Tina, who lived nearby. Tina Turner saw the shooting and was able to accurately direct officers to the scene. After Hampton was treated at the hospital, he was released late that night and went with Officer Turner to the site of the shooting. Turner searched the area and found two spent 9 mm cartridge cases. No firearm was ever recovered.

During the investigation, close examination was made of the bullet hole in the hood. At the preliminary hearing, Officer Turner said, “We took a rod, lengthy rod, and stuck it through the hood of a vehicle, in which it went through the dashboard going directly towards the driver’s side of the vehicle.” However, at trial, Turner admitted that another officer had done this testing, and it was established that the bullet that went into the hood of the car was not the bullet that hit the victim.

Another witness to the shooting, Paul Landrum, told the jury what he saw. He was standing in a carport on Dacron Street, a street that intersects Ollie Street; he testified:

I seen the defendant walking towards MLK, and I seen the |4... pink car cornin’ by this time. I like — I seen like he was reachin’ for somethin’. By this time, I seen the defendant like bending down and I heard a shot — pow. And then I heard another shot — pow. And one went one way and the other one went the other way.

The defendant had his back turned to Landrum. Landrum said that he did not see a gun in the defendant’s hand, but said, “I seen him extend his arm.” He agreed with the prosecutor that this gesture was “like he had a gun in [his hand].” After the shooting, Landrum did not see the defendant; he got in his car to follow the pink car “to see was he hurt” because he thought the defendant had shot the driver.

Notably, Landrum had previously spoken with Rayville police about the incident, and the officer’s report about that statement indicates that Landrum said “Loco come up with his right hand, he had a gun, and pointed it at the car.” Landrum said that he did not recall telling the officer that he saw the defendant with a gun, but said that he was on supervised release for a felony conviction and that the officer reminded him of that during their conversation.

Tina Turner, Officer Turner’s aunt, also testified. Her house is on Ollie Street. On the day of the shooting, she was standing under a tree in her front yard when she saw the defendant walking by her house toward MLK drive. She said that the defendant stopped and talked to her daughter, but she (Tina) did not speak with him. After speaking with Ms. Turner’s daughter, the defendant continued walking toward MLK. Tina said that she then heard shots fired, and stated: “I seen the guy pass by the house and when he passed by he was just looking over there.” “He had a smirk look on his face.” “And I just seen Loco running.” She said that she didn’t know whether the look reflected that he was in pain.

| r;Ms. Turner heard another person in her yard, Ms. Kim Elmore, scream: “Loco, you motherfucker!” “Sheee, you done lost your fuckin’ mind, shootin’ over my fuckin’ kids.” Ms. Turner did not see where the defendant ran after the shooting, nor did she see Sequoia Sledge.

Likewise, Tyrhonda Turner, Tina Turner’s daughter, did not see Sequoia Sledge at any time during the shooting incident when she talked to the defendant as he walked by her mother’s Ollie Street house. After the defendant left, Tyrhonda saw the defendant speaking with Kim Elmore. She turned away for a few minutes and then heard two or three gunshots. She ran to Kim’s house to get her children. As she did, she saw the defendant running away. Then she saw Hampton drive by, leaning on the steering wheel with a look of pain on his face. She heard Kim El-more screaming: “Loco, you wrong for that motherfucker shit, shootin’ over my kids. I’m gonna call the police.”.

Several photos of the pink Caprice were placed in evidence showing a single bullet hole in the hood near the passenger’s side of the windshield, which lodged in the ear’s firewall, and a blood stain on the front seat on the driver’s side of the car. The jury also saw a photo of Hampton’s shorts and underwear; there is a hole in the shorts that Hampton described as a bullet hole and a quantity of blood on the underwear.

Finally, the state elicited testimony from Kevin Greer, a Louisiana Probation and Parole officer, who testified (with supporting exhibits) that he had supervised the defendant after his release from custody after convictions in 2003 for second degree battery and distribution of cocaine.

When trial commenced the next day, the defendant (who was out on 16bond) did not appear. After a failed attempt to contact the defendant, the court found that he had voluntarily absented himself from the proceedings.

The defendant’s first witness, Kim El-more, testified that on June 5, 2009, she was at her sister’s house at the intersection of Dacron and Ollie Streets. She said that she did not see the defendant that day, did not see him with a gun in his hand and did not yell out to him about shooting over the children. She also said that she did not hear any gunshots and did not remember the police coming to investigate a shooting.

Investigator Gary Gilley with the Rich-land Parish Sheriffs Office testified that he was one of the officers who responded to the shooting call once Hampton reached his girlfriend’s house. He saw Hampton’s car and noticed that it had a bullet hole in the hood. Gilley took a wooden stick and put it in the hole; he discovered that the bullet that made the hole in the hood did not penetrate the car’s firewall. Gilley also said that he looked in the car and did not find a gun, any bullets, or any spent shell casings inside the car, nor was there any evidence that a shot had been fired from inside the car to the outside.

The jury convicted the defendant as charged of aggravated second degree battery and possession of a firearm by a convicted felon. As noted above, the defendant filed a variety of post-trial motions, most of which the trial court denied prior to sentencing, but one motion for new trial remained undecided, so in McGarr’s first appeal, this court vacated his sentence and remanded the case to the trial court for a decision on the outstanding motion and for resentencing. The trial court denied the outstanding motion for new trial. Subsequently, the trial court sentenced McGarr to serve ten years at hard labor for aggravated second degree battery and fifteen years at hard labor, without parole, for |7possession of a firearm by a convicted felon, plus a fine of $1,000. The court imposed five years of the battery sentence consecutively with the firearm sentence. The court denied the defendant’s verbal motion to reconsider sentence, and the defendant filed this appeal raising two assignments of error challenging the sufficiency of evidence for each conviction.

DISCUSSION

Each assignment of error raised by the defendant alleges that the evidence was insufficient to convict the defendant for the respective crimes of aggravated second degree battery and possession of a firearm by a convicted felon. The defendant argues these assignments of error together, pointing out various alleged weaknesses in the state’s case. He urges that no witness saw him with a gun, including the victim, who offered no description of the firearm used to shoot him. Further, he argues that Hampton’s testimony irreconcilably conflicts with the physical evidence, including the theory initially advanced by Officer Turner that the wounding shot went through the car’s hood, through the firewall and into the victim.

La. R.S. 14:34.7 provides, in part:

A. Aggravated second degree battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury.
La. R.S. 14:95.1 provides, in part:
A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. [¿15:541, 0r any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.

The focus of the defendant’s sufficiency arguments is the allegedly questionable credibility of the primary witnesses against him and the allegedly conflicting physical evidence.

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, 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. 2 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 La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2 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. 2 Cir. 2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

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. 2 Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App. 2 Cir. 8/15/07), 963 So.2d 497, writ denied, 2007-2053 (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, 43,786 (La.App. 2 Cir. 1/14/09), 2 So.3d 582, unit denied, 2009-0372 (La.11/6/09), 21 So.3d 299; State v. Allen, 36,180 (La.App. 2 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, 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. 2 Cir. 2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App. 2 Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

In this case, the principal witness against the defendant was a convicted felon with a history of violence with firearms who was in a romantic relationship with the mother of the defendant’s child. Despite these issues, however, the evidence was plainly sufficient to convict the defendant of both of the charged offenses. Independent witnesses placed the defendant, and no one else, in close proximity to the victim at the time the shots were fired and the victim was wounded. Paul Landrum explained that when the victim drove by in the pink Chevy, the defendant moved “like he was reachin’ for somethin’ ” and then Landrum heard two shots. Both Tina and Tyrhonda Turner put the defendant in the immediate vicinity of the victim at the time of the shooting, and the defendant was running away after the shots were fired.

The questions regarding Officer Turner’s investigation of the case and the discrepancies in his versions of the events, as well as the various discrepancies in the testimony of the other witnesses, do not show an irreconcilable conflict with the physical evidence, particularly given the multiple witnesses whose testimony fully supports the state’s theory of the case. Hampton explained that his passenger side window was down at the time of the shooting, and since at least two shots were fired during this incident, the physical evidence supports a theory (that the jury obviously accepted) that the wounding shot entered through Hampton’s open window. The evidence plainly supports the jury’s finding that the defendant was armed with a firearm despite the absence of testimony of any eyewitness that saw a gun.

|t1In summary, viewing the evidence in the light most favorable to the state, the evidence proves beyond a reasonable doubt all of the elements of the offenses of conviction. These assignments of error are without merit.

CONCLUSION

For the above reasons, the defendant’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Danterrius K. HOLMES, Appellant.
    No. 47,730-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Jerry L. Jones, District Attorney, John Michael Ruddick, Brandon B. Brown, Assistant District Attorneys, for Appellee.

      Before DREW, PITMAN and SEXTON (Pro Tempore), JJ.
   DREW, J.

JjDanterrius K. Holmes was found guilty of armed robbery with a firearm. He was sentenced under La. R.S. 14:64 to 10 years at hard labor without benefit of parole, probation or suspension of sentence, plus a consecutive five years at hard labor, without benefits, for the firearm enhancement. We affirm in all respects.

FACTS

Holmes was initially charged with armed robbery and armed robbery with a firearm as a juvenile by petition for detention in the Monroe City Court. A detention hearing was conducted and probable cause found. He was then charged by information with armed robbery with a firearm.

Following voir dire, the trial court ruled that Holmes’ statement to police was freely and voluntarily given, and therefore admissible.

The evidence reflected that:

• Holmes and two other young men, while armed with a pistol, took various items from a pizza delivery person, without his consent;

• police found the gun, unloaded, in the possession of one of the other robbers;

• Holmes confessed, stating that, he provided the pistol, which he had stolen, but that one of the codefendants pointed the gun at the victim; and

• Holmes took the money and other items from the victim.

The trial court explained at sentencing that:

• it had considered the contents of the presentence investigation report;

ja» Holmes was 17 at the time of the offense;

• the defendant had no other prior felony convictions;

• the defendant did have a prior juvenile record;

• it had considered the sentencing factors of La. C. Cr. P. art. 894.1;

• an arguably aggravating circumstance was the use of a firearm; and

• it did not consider that fact an aggravating factor since La. R.S. 14:64.3 already provided an enhanced sentence for Holmes’ use of the firearm.

The trial court assessed the minimum sentence as noted above. No motion for reconsideration was filed. Defendant was granted an out-of-time appeal.

DISCUSSION

Jurisdiction

Holmes argues that:

• he was only 16 at the time of the robbery;

• the record provides no proof that a continued custody hearing was held; and

• the trial court lacked jurisdiction to try him as an adult.

The state responds that such a hearing did take place and cites its motion to supplement the record with a copy of the minutes from the Monroe City Court. The state also points out that Holmes did not complain about this issue at trial.

La. Ch. C. art. 305(B) provides, in pertinent part:

B. (1) When a child is fifteen years of age or older at the time of the commission of any of the offenses listed in Subparagraph (2) of this Paragraph, he is subject to the exclusive jurisdiction |sof the juvenile court until whichever of the following occurs first:
(a) An indictment charging one of the offenses listed in Subparagraph (2) of this Paragraph is returned.
(b) The juvenile court holds a continued custody hearing and finds probable cause that the child has committed any of the offenses listed in Subpara-graph (2) of this Paragraph and a bill of information charging any of the offenses listed in Subparagraph (2) of this Paragraph is filed. During this hearing, when the child is charged with forcible rape or second degree kidnapping, the court shall inform him that if convicted he shall register as a sex offender for life, pursuant to Chapter 3-B of Title 15 of the Louisiana Revised Statutes of 1950.

Armed robbery is listed in Subpara-graph (2) of La. Ch. C. art. 305(B).

The minutes provided by order of this court reveal that the Monroe City Court, acting in its capacity as a juvenile court, held a detention hearing and determined that probable cause existed that Holmes committed armed robbery with a firearm. When the state then filed a bill of information charging Holmes with armed robbery with a firearm, the case was properly transferred to the trial court, resulting in the requisite jurisdiction.

Excessiveness

Holmes contends that his sentence is excessive, pointing out that this is his first felony offense and he was only 16 at the time of commission of the offense. He also alleges that he did not point the gun at the victim and that he initially did not want to take part in the crime, but was persuaded to do so. Holmes argues that the trial court should have deviated from the | ¿mandatory minimum sentence based on the circumstances of this particular case.

The state responds that Holmes received the minimum sentence, noting that the trial court considered his age and criminal history, and noting that this defendant provided the gun and took the items from the victim.

La. R.S. 14:64(B) provides:

B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.

La. R.S. 14:64.3(A) provides:

A. When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.

Our law on appellate review of sentences is well settled.

| ñThe trial court did not abuse its discretion in sentencing Holmes to 10 years at hard labor without the benefit of parole, probation or suspension of sentence for the armed robbery conviction, and five years at hard labor, to be served consecutively to the Í0-year sentence, because a firearm was used in commission of the armed robbery. The sentence is not constitutionally excessive. Holmes received the minimum sentence allowable under La. R.S. 14:64 and 14:64.3. The sentence is not disproportionate to the crime, nor does it “shock the sense of justice.”

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . The minutes reflect that the defendant was also charged with simple robbery in another incident.

      . The other two participants were also juveniles.

      .In point of fact, Holmes did not turn 17 until exactly one week after the armed robbery.

      . When a defendant fails to file a La. C. Cr. P. art. 881.1 motion to reconsider sentence the appellate court's review is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Mastin, 46,958 (La.App.2d Cir.1/25/12), 86 So.3d 39. 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 suffering. State v. Smith, 2001-2574 (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, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Guzman, 1999-1528, 1999-1753 (La.5/16/00), 769 So.2d 1158.
      Although the Louisiana Supreme Court has held that courts have the power to declare a mandatory minimum sentence excessive under Art. I, § 20, of the Louisiana Constitution, this power should be exercised only in rare cases and only when the court is firmly convinced that the minimum sentence is excessive. State v. Wallace, 46,422 (La.App.2d Cir.8/10/11), 71 So.3d 1142, writs denied, 2011-1962 (La.2/3/12), 79 So.3d 1026, and 2011-1961 (La.2/17/12), 82 So.3d 281; 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. While Wallace dealt with mandatory sentences under the habitual offender law, it implied that all mandatory sentences are presumptively constitutional and should be accorded great deference by the judiciary. Wallace, supra; State v. Wade, 36,295 (La.App.2d Cir. 10/23/02), 832 So.2d 977, writ denied, 2002-2875 (La.4/4/03), 840 So.2d 1213.