text:
    STATE of Louisiana v. Quint MIRE.
    No. 14-435.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 2014.

      Burton Paul Guidry, Burton P. Guidry and Associates, Abbeville, LA, for Defendant/Appellant: Quint Mire.
    Michael Harson, District Attorney, Michael L. Barras, Assistant District Attorney, Fifteenth Judicial District; Abbeville, LA, for Appellee: State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant: Quint Mire.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| j Defendant, Quint Mire, was found guilty of second degree murder, a violation of La.R.S. 14:80.1, and obstruction of justice, a violation of La.R.S. 14:130.1. Defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for second degree murder and ten years at hard labor for obstruction of justice, with the sentences to run concurrently.

Defendant filed a motion for new trial based on newly discovered evidence, which was denied by the trial court. Defendant now appeals his conviction for second degree murder and argues the appropriate verdict was guilty of negligent homicide. He also contends that the trial court erred in denying his motion for new trial. For the following reasons, Defendant’s conviction for second degree murder is vacated, and a judgment of guilty is entered for the lesser included offense of negligent homicide. This matter is remanded for resen-tencing in accordance with this opinion.

SUFFICIENCY OF THE EVIDENCE

FACTS

On Wednesday, February 9, 2011, Defendant shot and killed the victim, Julian Gajan, during a hunting trip in the marsh. Gajan’s body was found on Saturday, February 12. Defendant denied he shot the victim until February 18, 2011. He then claimed the shooting was accidental; he thought he saw a deer and shot at it three times. He threw the three shotgun shells in a canal.

Defendant claims that the State did not prove the essential elements of second degree murder beyond a reasonable doubt. He asks this court to reverse his 1 ¿conviction or, alternatively, reduce his conviction to the lesser offense of negligent homicide.

STANDARD OF REVIEW

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984)). The Jackson standard of review is now codified in La.Code Crim.P. art. 821. This standard does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048, p. 1 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The ■ appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than ensuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). Our supreme court has stated:

|,.¡However, an appellate court may impinge on the fact finders discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “ ‘the factfinders role as weigher of the evidence’ by reviewing ‘all of the evidence ... in the light most favorable to the prosecution.’ ” McDaniel v. Brown, 558 U.S. [120, 134], 130 S.Ct. 665, 674, 175 L.Ed.2d 582 [ (2010) ] (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, ... this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother, 09-2357, pp. 10-11 (La.10/22/10), 49 So.3d 372, 378.

Second degree murder is “the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]” La.R.S. 14:30.1(A)(1). Negligent homicide is “[t]he killing of a human being by criminal negligence,” defined as conduct that “amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” La.R.S. 14:32(A)(1), 14:12.

FACTS

On Wednesday, February 9, 2011, Defendant and the victim made plans to ille-gaily hunt deer in the marsh at Little Prairie. They left in separate boats. Defendant returned to the victim’s camp around 2:30 or 3:00 Wednesday afternoon, but the victim did not. Defendant stayed at the camp for a couple of hours, picking onion tops for a gumbo supper he planned to attend that evening.

14At 9:26 a.m. on Thursday, February 10, Defendant’s wife, Suzanne Mire, called the Vermilion Parish Sheriffs Office to report that the victim had left in his boat on the prior day and had not returned. The Coast Guard and a K-9 team from Angola were contacted to assist in a search of the marsh that continued all day on Friday, February 11. Captain Robert Buatt of the Department of Wildlife and Fisheries and Colonel Frith of the Vermilion Parish Sheriffs Office found the "victim’s body at 2:58 p.m. on Saturday, February 12. Examination of the body showed a projectile hole in the left skull and some small holes in the scarf area with additional possible projectile holes into the jacket area and a buckshot pellet in the neck area. The victim’s rifle was found next to his body in the “fire” position with a round in the rifle and additional rounds in the magazine. The rifle appeared to be ready to shoot. The victim had $527.00 cash in his wallet.

Jacqueline Stelly was employed at Stelly’s Grocery at the time of the shooting. She recalled asking Defendant what he thought had happened to the victim while the search was in progress. Defendant “looked pretty tired,” and told her he thought foul play was involved. She knew Defendant and the victim, but she did not know they were friends.

Gregory Raspberry testified that he had known Defendant since the summer of 2010, and the victim since 1996; he was friends with both men. Mr. Raspberry learned the victim was missing on Wednesday, February 9, 2011. Around 1:00 p.m., he saw Deputy Leger in his car and Defendant and another man in Defendant’s truck. When they told him the victim was missing, Mr. Raspberry asked if he could help look for him. Mr. Raspberry got his boat and asked Defendant to accompany him. Defendant declined and Mr. Raspberry left to search alone. Mr. Raspberry never saw Defendant search for the victim.

|fiOn three prior occasions, Mr. Raspberry stated Defendant said something to him about killing the victim. About a month before the shooting, Mr. Raspberry was in Defendant’s camper with him when Defendant said, “You know, we can kill [the victim,] and we can get away with it.” On two other occasions, Defendant said “[basically the same thing,” once in Mr. Raspberry’s office trailer and another time in Defendant’s camper. No one else was present to hear the comments. Defendant gave no reason for his suggestion.

Mr. Raspberry ignored Defendant’s comments; he did not take them seriously. Defendant told Mr. Raspberry “he had fronted [the victim] a hundred crab traps,” and the victim had not paid for all of them. Mr. Raspberry admitted at trial that he and the victim had “some disputes” over a woman who was “good friends” with Mr. Raspberry at the time of trial, but who was in a “boyfriend/girlfriend” relationship with him the prior year. He admitted he “had an issue” with the victim.

Brant Herpin testified that he had known Defendant for three or four years and had known the victim about ten years. The last time he saw the victim was Tuesday night, February 8, at Little Prairie. Around 9:00 a.m. on Thursday, February 10, Defendant called Mr. Herpin and said the victim had gone hunting, and that Defendant could not find him. Defendant had to go to Maurice to pen up some sheep, and was unable to look for the victim. He wanted Mr. Herpin to go look for him.

In response, Mr. Herpin went to Little Prairie and used Defendant’s boat to look for the victim; he found only the victim’s boat. On the way in, he came in “a little too fast” and wrecked Defendant’s boat. Defendant “started hollering” at Mr. |fiHerpin, and they had a confrontation. Mr. Herpin told Defendant that he was “the only one out here looking for him and [Defendant was] standing on the dock.”

Captain Buatt received news on February 10 that the victim had been located. However, Defendant called Captain Buatt at 3:30 p.m. saying that was not the case. Defendant said Mr. Herpin had reported that he found the victim picking up decoys, but Mr. Herpin had lied. Captain Buatt testified that he thought Defendant sounded intoxicated during the call because his speech was slurred. Captain Buatt had met Defendant before and recognized his voice during the call. He ordered the search to proceed.

Mr. Herpin actually located the victim’s boat but not the victim himself. Mr. Her-pin said he spoke to some men in the area working construction who had an airboat. They took him to look through the marsh again. Mr. Herpin felt Defendant was trying to implicate him in the shooting. He and Defendant were friends before the shooting. Mr. Herpin never saw Defendant look for the victim.

Cassie Hardy and her husband spent the weekend prior to the shooting with the victim. She had met Defendant two weekends earlier. Mrs. Hardy and her husband arrived in the Little Prairie area on Thursday night after hearing that the victim was missing. When she spoke to Defendant at the victim’s house, he asked, “Wouldn’t Brant be the first suspect? He called the search off for three hours which would have gave [sic] him time to move the body.” Defendant also opined that the victim could have been killed by coyotes. Ms. Hardy and her husband went in a boat with Richard Verret on Saturday to look for the victim. She never saw Defendant out in a boat searching for the victim.

17Brian Debarge knew the victim for about twenty years and Defendant for about six months. Prior to the week of the shooting, Mr. Debarge had asked Defendant to tell the victim he “had a guy wanting to buy five thousand pounds of catfish twice a week.” Defendant asked Mr. Debarge if he and his sons could catch them; Mr. Debarge said no, Defendant would have to get with the victim. Defendant asked again two more times; each time, Mr. Debarge said “he needed to talk to [the victim].” When Mr. Debarge was finally able to talk to the victim, he asked if Defendant had told him about the fishing proposal. The victim said Defendant had not. On the day the victim went missing, Defendant told Mr. Debarge “three different stories in about five minutes of what happened with him and [the victim].” He did not explain what those three different stories were.

Defendant’s wife, Suzanne Mire, testified in his defense. She had been disabled from bipolar disorder since 1996. She denied that Mr. Debarge told Defendant he had to talk to the victim about permission to catch the fish. On the morning the victim went missing, Suzanne was having difficulty burying a water line. The skies were overcast, and “it was like raining sleet,” with “a little bit of hail.... ” Defendant went to the victim’s home to get a maul to help Suzanne dig the line.

Suzanne and Defendant were working at their camp in Little Prairie. Suzanne had bought it with Mr. Raspberry in June of 2010. Defendant made a “[g]reat living” as a sheet metal worker until he hurt his back on the job, possibly in 2005. In May of 2010, he began working as the victim’s “fish man, baiting man.”

Defendant had known the victim for seventeen or more years. He, Suzanne, and the victim socialized every day. Defendant worked “cleaning fish from sunrise |Rto dark for [the victim]’s bait” from May to July of 2010; Defendant made $250 from the victim. Defendant decided to buy two new boats and crab traps and fish and crab for a living, using money Suzanne had inherited from her grandfather to start the business. In September 2010, Defendant ordered some crab traps for the victim, whose part of the bill was $2,321.00 according to Suzanne. The victim “was going to pay a little bit off of every crab check that he got.... [i]t didn’t go that way.” However, Suzanne agreed to give the victim additional crab traps in the hopes that he would earn enough money to pay off his debt. The victim still owed $1,100.00 for the crab traps at the time of his death. Suzanne gave the victim $400.00 to fix his truck in February of 2011. Two days before the shooting, Suzanne paid the victim’s cell phone bill. She would not have paid either expense if she had been worried about the victim paying for the crab traps.

The victim and Defendant did not often hunt together because Defendant was unable to walk in the marsh due to his back injury. Around Thanksgiving of 2010, the victim stole gas from Defendant’s truck. Defendant also thought he stole mosquito spray from Defendant’s boat. Defendant further did not like the way the victim sometimes talked to him as if he were a child.

A few days later, the victim arrived at Defendant’s leased camp, and Defendant asked him to leave. After exchanging comments, Defendant pushed the victim and again told him to leave. The victim again refused, and “they bounced around, bounced around a little bit” before the victim went “down to the ground.” Suzanne stood and watched because she did not want Defendant “to lose his cool[.]” The victim “started crying, ‘Quint, please don’t hit me. I’m sorry. Please don’t hit me.’ ” Defendant let the victim get up, and the victim walked back to his camp. When the victim returned, Defendant apologized and he and the victim |9became closer friends and continued to socialize. The victim stopped talking to Defendant as if he were a child. Shortly after, Defendant and Suzanne gave the victim the crab traps for the “water geography people to use.”

On the day of the shooting, Defendant returned home with the maul and told Suzanne “it looked like [the victim] needed a friend and — because he looked upset.” Defendant said the victim asked him to go rabbit hunting. Defendant did not tell Suzanne that they were illegally deer hunting because she would have been worried about the boat being confiscated.

Defendant left at approximately 10:45 a.m. Suzanne next saw him between 3:00 and 3:30 that afternoon. Defendant immediately told Suzanne that he could not find the victim. He told her the victim had gone down the canal to look for a raccoon. That night, they went to Sidney Meche’s camp, where the victim was living, to eat gumbo. Suzanne did not suspect the story was untrue until the next morning because Defendant did not sleep that night and was very pale the next morning. Defendant “would sit at the table and just look out the window at the water and tears would just come down his eyes.” He would not eat, was jumpy, and did not look like himself. Suzanne attributed his unusual behavior to the victim’s status as missing.

It was not unusual for the victim to go to the marsh for a while. Suzanne testified she thought the victim had been out because of his recent crystal methamphetamine use. The morning Defendant and the victim went hunting, the victim gave Defendant a little meth; the victim did three hits, Suzanne “hit it,” and Defendant used some earlier in the morning.

On February 10, Defendant left their camp at 5:30 to help their son herd sheep. Suzanne called the Vermilion Parish Sheriffs Office to report the victim as | mmissing and was referred to the Wildlife and Fisheries Department in New Orleans. She was told she could not “call in a missing report if he did not say what time he was coming back and didn’t.” When Defendant told Suzanne he could not find the victim, Suzanne worried about him because it was cold.

After the victim’s body was found on February 12, Defendant told Suzanne he was sorry, and he had accidentally shot the victim when “[h]e took him for a deer.” Defendant told her he did not know what to do, and he “just freaked out.” She knew of no motive for Defendant to kill the victim. She did not think the shooting was related to the crab traps because they would not get their money if Gajan was dead. She also did not think it was related to the contract to provide fish to Mr. De-barge because Defendant would need the victim’s help to fulfill the agreement. Suzanne believed the shooting was an accident.

On February 13, Defendant gave a statement to Detective Sammy Laporte and went with him to the scene of the shooting. Sergeant Anthony Vice of the Vermilion Parish Sheriffs Office testified that Defendant “pointed out the exact area where he was at whenever he fired the three shots at the victim.” Sergeant Vice found a wad from a shotgun shell on the ground next to a rifle at the scene and another wad next to the victim. He also found “projectiles, possibly from buckshot that entered into the trees from where the body was located in the same area and direction of where the body was located.” Buckshot was recovered from the victim’s head and chest during an autopsy.

Defendant testified at trial after waiving his constitutional right to remain silent. He said that he went to the victim’s trailer to borrow a maul, and the victim asked him to go deer hunting. He took the maul back to his wife and told her they were going rabbit hunting because deer hunting season was closed.

|uThe victim and Defendant met “down the canal ... where the deer meet, the deer they had killed the night before.” They hunted “that dog leg canal” and then went to Pylon Bayou. Defendant crossed the pylons, and the victim “just hopped out the boat and he told me to go around where the canal got kind of wide.” He admitted they were poaching deer.

The victim was “pushing” the deer toward Defendant, who got out of the boat several hundred yards from the victim and looked for a tree to get out of the rain. Around the time he found a tree, “a deer had passed.” Defendant looked back, saw movement, and fired three shots. He could not determine what caused the movement; he “took it for a deer.” Defendant did not know he was shooting at the victim when he fired. He did not think the victim would arrive at that location that quickly. As he walked about ten to fifteen feet toward where he had shot, he saw the victim’s shotgun scope and knew he had shot him. Defendant said that he did not kill the victim because of the crab traps or the fish deal.

Many of the cast of characters used drugs. Mr. Debarge “smoked weed all [his] life.” He had heard that Mr. Herpin supplied the victim with methamphet-amines. Mr. Herpin admitted that he “did drugs” in the past, but he was clean at trial. Mr. Debarge testified that another witness, Richard Verret, was making methamphetamines in the marsh. Defendant took crystal meth around 9:30 or 10:00 a.m. on February 9 before he and the victim left; he testified it gave him energy. Nevertheless, he did not think he was under the influence of the meth at the time of the shooting. The victim’s body was positive for amphetamines and cocaine/metabolites.

Defendant shot the victim with a Remington 1187 semiautomatic firearm. He had to pull the trigger each time it was fired. Defendant determined the 112victim’s identity, left the scene, and went to the victim’s camp, arriving around 2:30 or 3:00 p.m.

When asked why he did not assist the victim, Defendant testified:

I always had a fear of dead people since I was a child. I still do now. I will have it till I die. And I had a fear— a crippling fear that took over my body that I never experienced in my life. And I couldn’t deal with it. I couldn’t touch him.
Q. You couldn’t even get close to him?
A. No, sir.

Defendant said it did not cross his mind to call someone for help; he felt terrible and was not in his right mind after he saw the victim on the ground. As he was leaving, Defendant saw the shells on the ground, picked them up, and threw them in the boat. At some point, he threw them away, but when asked why, he testified, “I can’t answer. I don’t know why.” He “was scared.” When asked why he did not come forward with information, Defendant responded, “I couldn’t. I don’t know why I couldn’t. I just — it was eating at me ... tearing me up emotionally and physically.” He did not want to get anyone else involved, so he said nothing to no one.

On the day after the shooting, Defendant left home around 6:00 a.m., herded sheep and goats with his son, took a shower, and headed home. When he received a call saying the victim had not come home, he called Brant Herpin and told him he could use his boat to look for the victim. Defendant did not go with Mr. Raspberry to look for the victim because Mr. Raspberry’s big boat would not start, and his little boat would not carry two people because the water in the pipeline canal was too low. Defendant admitted that he knew where the body was and how to access it at all times. Defendant stayed at the victim’s camp with Sidney Meche |1swhile Mr. Raspberry and Mr. Herpin, along with Wildlife and Fisheries personnel, searched for the victim. He told no one about what happened.

' Defendant did not recall what he did on Friday morning, February 11; however, he did not search for the victim. Detective Verret interviewed him around 11:30 a.m. Defendant said nothing about the shooting.

On February 12, Defendant lounged around the camp until Suzanne came to tell him the victim’s body had been found. He gave another interview to Detectives Laporte and Verret around 9:30 p.m. When asked numerous times if he had accidentally shot the victim, Defendant denied it every time. On Sunday, during an interview around 10:10 a.m., he admitted for the first time that he shot the victim, thinking he was a deer. Defendant took the detectives to the scene. He denied ever suggesting to Mr. Raspberry that they could kill the victim. He testified that he never intended to hurt the victim or to destroy evidence by discarding the shotgun shells.

Defendant testified that he did not know what he was doing, and he had no reason to kill the victim. He went to a store, was around friends, and talked to detectives after the shooting. Although Defendant said nothing to anyone about what had happened, he said he wanted to tell someone and “was trying to.” He did not know why he gave police every bit of information about the accident except the fact he shot the victim. Defendant believed he was guilty of negligent homicide. He knew he would go to jail even though it was an accident.

As to the fight, Defendant had been angry with the victim for stealing gas from his truck, but he did not want to hurt or kill him. He threw the victim on the ground because the victim was swinging at him. They met shortly thereafter and | ushook hands, apologized, and hugged. They never argued before or after that incident.

Regarding the fishing contract, Defendant testified that he and the victim talked about it two or three times. He believed “[tjhere’s no way one man or two men could catch five thousand pounds of fish a week, plus crab three, four days that same week.”

As to the crab traps, the victim was to pay Suzanne because her money was involved. Defendant never asked the victim for money for the traps or for anything else. He harbored no ill will toward the victim and had no reason to shoot him. The victim “wanted to get away” on the morning of the shooting. Defendant made “a terrible mistake” with which he now has to live.

In his taped interview on Saturday, February 12, 2011, Defendant first said that he had last seen the victim around 10:30 or 11:00 a.m. on Wednesday when he went to get the maul. They agreed to go hunting, and the victim left in someone else’s boat. Defendant went looking for him but could not find him. Around 2:30 or 3:00 p.m., it started raining, and Defendant headed for home, picking up crab traps on the way. He went to the victim’s house, used the bathroom, went home, and changed clothes. That night, he went to the gumbo supper until around 8:30 p.m.

When he was told the victim had been shot, Defendant replied he was “sorry to hear that.” He told Detective Laporte, “I’d never shoot nobody [sic].” The detective asked Defendant if he could have shot the victim accidentally, and defendant said no. Detective Laporte noted Defendant’s nervousness, dilated pupils, dry mouth, and pulsing neck during the interview. Defendant said those symptoms were from the gumbo he ate the previous night. When Detective Verret 11fipled with Defendant to tell them if he had accidentally shot the victim, Defendant responded, “I can’t tell you something I didn’t do.”

The next day, Defendant called Detective Laporte and admitted that he shot the victim, thinking he was a deer. He and the victim started out in separate boats, then the victim parked his and got in Defendant’s boat. Defendant dropped him off near a deer stand and moved his boat to another location. Defendant got out of the boat on a levee and got under a tree to get out of the rain. A deer went by, and Defendant saw further movement. He thought it was another deer, so he fired three times through the bushes. He did not think the victim could get from where he left him to where the shooting occurred in the time that elapsed. The victim was wearing clothing that looked like a deer and was about forty yards away when Defendant shot.

Based on what was at the scene and what Defendant advised, law enforcement reenacted the incident a few days after the shooting. Sergeant Vice testified that the shooting “possibly” could have occurred the way Defendant said it did. However, he did not interpret what he saw during the reenactment as a deer; he “saw a person.” Weather conditions at the shooting and the reenactment were similar. Defendant was arrested for negligent homicide in connection with the shooting.

Defendant said he had called Captain Buatt on February 10 because the victim “was still missing and the people at Little Prairie” told him to make the call. Captain Buatt testified:

I found that very unusual.... He knew exactly where his body was. Why didn’t he just tell us at that point why he — you know, when he shot [the victim], he should have let us know something instead of let us search for three days.

11fiCaptain Buatt examined the area Defendant identified and found “[fjrom where [Defendant] told me he was standing to where [the victim]’s body was found, it was a fairly open line of sight.” If a person or deer had been moving from the west to the east, “[i]t was relatively thick” in the area toward the east. Fully grown deer in the area were “at the top of the back at the top of the shoulders” about thirty-four to thirty-six inches tall. The victim was sixty-seven inches tall. Defendant told Captain Buatt he picked up his spent shells “because he was scared.”

Law officers found parts of a freshly-killed deer on the bank at the end of the canal near the location where the boat the victim used was tied, approximately one mile from where the body was found. Captain Buatt learned the deer had been shot either late on the night of February 8 or early in the morning on February 9. He agreed the best place to shoot a deer in that area was where he “could see across a levee, similar to what [Defendant and the victim] were doing.” The shooting, however, occurred when deer season was closed.

Mark Kurowski of the Acadiana Crimi-nalistics Laboratory determined that the pattern of the pellet penetrations on the victim’s jacket were consistent with a shot pattern of forty to seventy feet from the shotgun’s muzzle to its target. At least two shots were fired through the trees and brush and struck the victim in a right to left direction for the shooter. Mr. Kurow-ski’s conclusions were consistent with what Defendant told law enforcement.

The autopsy reported the cause of the victim’s death was “[s]hotgun gunshot wounds to the head, neck, torso and upper extremity,” and the manner of death was homicide. The body contained a total of twenty-nine projectile injuries, all with a left to right, upward, and back to front trajectory, with the head turned slightly to the right. Lead shot was recovered from the right arm, maxillary sinus, left 117clavicle, left sternocleidomastoid muscle, left pectoral major and minor muscles, left and right thoracic cavities, and brain. Tests of urine and blood from the body showed the presence of amphetamines and cocaine/metabolites.

LAW AND ANALYSIS

“Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10(1). No one witnessed this shooting; only Defendant knows absolutely what happened. No physical evidence establishes or negates Defendant’s intent. Without question, Defendant intentionally fired the shotgun. The issue, however, is whether he intended to kill or cause great bodily harm to the victim.

Witness testimony did not establish a motive for Defendant to kill the victim. If Defendant shot the victim over unpaid money, he would not have left $527.00 in the victim’s wallet. If Defendant wanted the fishing contract to himself, he would require significant help to provide ten thousand pounds of fish per week. The motives suggested by the witnesses simply do not make sense.

On the other hand, Defendant left the victim either dead or dying in the marsh without even attempting to render or summon any aid. He suggested foul play when he knew the victim was already dead from what he now says was an accident. He engaged in insignificant activities— picking onions, attending a gumbo supper with friends, herding sheep — when he knew the victim’s body was in the marsh. He even suggested that animals might harm the body, as they actually did. He stood by and watched others diligently search for the victim and did nothing until the body was discovered. Indeed, he consistently and repeatedly denied any involvement with the shooting from the time it occurred on Wednesday 11suntil Sunday morning. He even took active steps to divert attention from himself, asking Mr. Herpin to search for the victim and telling Captain Buatt that Mr. Herpin had lied about finding the victim. He suggested Mr. Herpin was a prime suspect to Ms. Hardy because he delayed the search in order to gain time to move the body and bolster his innocence. Even Defendant’s wife, to whom he was closest, noticed nothing unusual about him until the day after the shooting. Defendant invented stories about his hunting trip with the victim even to her. He let her worry about the victim being cold when he did not return from the marsh. Even though Suzanne was the person closest to Defendant, he would not even tell her that he was hunting deer out of season.

Nevertheless, none of these actions, while certainly odd for someone who had just killed a friend, suggest a motive for murder or establish Defendant’s specific intent to kill the victim. The State presented no direct evidence to establish Defendant’s specific intent to kill. No witness established a motive for murder.

It is true that “[ejvidence of flight, concealment, and attempt to avoid apprehension is relevant. It indicates consciousness of guilt and, therefore, is one of the circumstances from which the jury may infer guilt.” State v. Davies, 350 So.2d 586, 588 (La.1977). However, the evidence of Defendant’s elaborate attempts to avoid apprehension only indicate that Defendant knew that he had committed a crime, not that that he had motive sufficient to establish the specific crime of second degree murder.

We find that the State did not exclude every reasonable doubt that Defendant had the specific intent to kill the victim. Accordingly, the evidence was insufficient to support Defendant’s conviction for second degree murder.

| i3“Pursuant to La.Code Crim.P. art. 821(C), an appellate court that finds ‘the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense ... may modify the verdict and render a judgment of conviction on the lesser included responsive offense.’ ” State v. Teague, 04-1132, p. 9 (La.App. 3 Cir. 2/2/05), 893 So.2d 198, 205. Guilty of negligent homicide is a responsive verdict to the charge of second degree murder. La.Code Crim.P. art. 814(45). Accordingly, we reverse Defendant’s conviction for second degree murder, enter a judgment of guilty of negligent homicide, and remand this matter for resentencing in accordance with this court’s ruling.

MOTION FOR NEW TRIAL

Defendant contends that the trial court erred in denying his motion for new trial based on the violation of his constitutional rights as pronounced in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). His motion was based on newly discovered evidence of Mr. Raspberry’s status as a confidential informant and of charges dismissed against him that required a new trial. Defendant claims the evidence was material to the issue of motive and hampered his ability to cross-examine Mr. Raspberry.

STANDARD OF REVIEW

In State v. Sparks, 88-17 (La.5/11/11), 68 So.3d 435, cert. denied, — U.S.—, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012), the defendant filed a motion for new trial arguing that he discovered new evidence after trial that questioned the credibility of a significant witness. He alleged the State had suppressed the evidence in violation of Brady, 373 U.S. 83, 83 S.Ct. 1194.

Our supreme court noted:

12pThe suppression by the prosecution of evidence favorable to the accused after receiving a request for it violates a defendant’s due process rights where the evidence is material to either guilt or punishment, without regard to the good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). The Brady rule encompasses evidence which impeaches witness testimony when the reliability or credibility of that witness may determine guilt or innocence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); State v. Knapper, 579 .So.2d 956, 959 (La.1991). Brady also requires the disclosure of evidence concerning a promise of leniency or immunity to a material witness in exchange for his testimony at trial. Giglio v. United States, 405 U.S. 150, 154-155, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).
Moreover, to-the extent exposure of a witness’s motivation is a proper and important function of the constitutionally protected right of cross-examination, a witness’s “hope of knowledge that he will receive leniency from the state is highly relevant to establish his bias or interest.” State v. Brady, 381 So.2d 819, 822 (La.1980) (collecting cases); State v. Vale, 95-577, p. 4 (La.1/26/96), 666 So.2d 1070, 1072. A witness’s bias or interest may arise from arrests or pending criminal charges, or the prospect of prosecution, even when he has made no agreements with the State regarding his conduct. Vale, 666 So.2d at 1072; State v. Nash, 475 So.2d 752, 755-756 (La.1985); see also State v. Bailey, 367 So.2d 368, 371 (La.1979) (When circumstances indicated the witness might have received the impression that testimony favorable to the State would result in dropping of charges against him, defendant was entitled to new trial where information was not revealed.)
Nonetheless, Brady and its progeny do not establish a general rule of discov-erability. The prosecutor does not violate his constitutional duty of disclosure “unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.” United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976). The mere possibility that an item of undisclosed information might have helped the defense or might have affected the outcome of the trial does not establish “materiality” in the constitutional sense. Agurs, 427 U.S. at 109-110, 96 S.Ct. at 2400. Establishing the proper standard of materiality, the Court wrote:
[I]f the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.
I si Id,., 427 U.S. at 112-113, 96 S.Ct. at 2402.
For purposes of Brady’s due process rule, a reviewing court determining materiality must ascertain “not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995); see also State v. Strickland, 94-0025, p. 38 (La.11/1/96), 683 So.2d 218, 234. Thus, the reviewing court does not put the material to an outcome-determinative test in which it weighs the probabilities that the defendant would have obtained an acquittal at trial or might do so at a second trial. Instead, a Brady violation occurs when the “evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ” Kyles, 514 U.S. at 434, 115 S.Ct. at 1566 (quoting Bagley, 473 U.S. at 678, 105 S.Ct. at 3381). In sum, Brady analysis requires the movant to satisfy a three-prong test: 1) favorable (impeaching or exculpatory) evidence; 2) that must have been withheld; and 3) prejudice must have been caused thereby. Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999).

Sparks, 68 So.3d at 485-86.

FACTS

At the hearing on the motion for new trial on November 21, 2013, Drew David, commander of the Vermilion Parish Sheriffs Office Narcotics Division Task Force, testified that Mr. Raspberry was a confidential informant in an unrelated around October of 2012. Mr. Raspberry was a confidential informant for approximately five months. Captain David wrote a letter to the District Attorney to ask that two drug charges be dismissed as consideration for Mr. Raspberry’s work with the Task Force. In a second letter, Captain David asked for guns seized from Mr. Raspberry to be returned to Mr. Raspberry. He testified he would have to have the Sheriffs permission to write such letters, and the District Attorney would make the decision to grant or reject the request.

1 ^Captain David “had no clue [Mr. Raspberry] was a witness for the State” in this case until he learned of the motion for new trial. When asked if he knew Mr. Raspberry was a key witness against Defendant, Captain David responded “I did not know that when I met him; I did not know that when I wrote the letters....” He also did not know that Mr. Raspberry was a witness at the grand jury session or at the pre-trial hearing in Defendant’s case. Captain David offered nothing to secure Mr. Raspberry’s testimony; he could not have done so because he did not know Mr. Raspberry was a witness.

Charges of possession of marijuana and possession of weapons while in possession of drugs were filed against Mr. Raspberry on January 26, 2011. Captain David testified that he did not ask Mr. Raspberry to give any statements concerning this matter in exchange for dismissal of the charges.

Mr. Raspberry also testified at the hearing that he knew he was having charges against him dismissed in consideration for helping the police. However, the offer to dismiss the charges was not made in exchange for his testimony in this matter. He said a domestic violence charge involving a girlfriend and a marijuana charge were dismissed. He learned that the charges would be dismissed prior to the trial of this matter when Stanton Hardee, the Assistant District Attorney who tried this case, sent him a text message. Mr. Raspberry did not know why the charges were dismissed, but he did not think it had anything to do with this case. He specifically testified “[njobody offered me anything” in exchange for testimony to the grand jury, at the pre-trial hearings, or at trial.

Even though Mr. Raspberry spoke with Elliot Broussard of the Vermilion Parish Sheriff’s Office about “cutting a deal,” that was “[i]n reference to another case[.]” Mr. Raspberry stated, “I’m telling you that [the dismissal of charges] had l2sabsolutely nothing to do with this trial ... It had nothing to do with it. I don’t have to think about it — nothing to do with it.” He reviewed his statements and “what the trial was going to be about” with Stanton Hardee a week before the pretrial in this matter, “and that was it.” Mr. Raspberry watched a video of his February 15, 2011 interview at that time.

On February 15, 2011, Mr. Raspberry was read his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he gave a statement to Detective Anthony Vice. He was not promised anything, threatened, or coerced regarding this statement. Mr. Raspberry told Detective Vice that on three occasions, Defendant said they could' kill the victim and get away with it. At the hearing, Mr. Hardee stated that took place before he ever started working for the District Attorney’s office.

Mr. Raspberry gave substantially the same testimony at the grand jury, pre-trial hearing, and trial. Neither Mr. Hardee, anyone from the Task Force, nor any police or Sheriffs officer ever offered him anything to secure his testimony. The case in which Mr. Raspberry assisted the Sheriffs office had nothing to do with Defendant.

Sergeant Broussard had the most contact with Mr. Raspberry regarding his confidential informant status. Mr. Raspberry’s guns were returned to him at his request after approval of the District Attorney’s office. The charges against Mr. Raspberry were dismissed in May 2011. According to Sergeant Broussard, Mr. |24Raspberry “had cooperated with us so he had some charges that he had pending that were before my time. Once he cooperated with us, I went to my supervisor and explained to him that he had cooperated and my supervisor wrote a letter requesting assistance with his charges....” Mr. Broussard was not involved in the investigation of Defendant’s case; he worked in narcotics, a separate division. Mr. Raspberry began working as a confidential informant in October 2012. At the time of the hearing of the motion for new trial on November 21, 2013, his file was not closed. Sergeant Broussard offered Mr. Raspberry nothing in exchange for his testimony in Defendant’s case, and he was not involved in the investigation. He never asked Mr. Raspberry for information about drug cases involving Defendant.

Sergeant Vice likewise testified at the hearing that he never offered Mr. Raspberry anything in exchange for his testimony against Defendant. He did not know Mr. Raspberry had charges against him dismissed, and he did not know Mr. Raspberry worked as a confidential informant until the day of the hearing.

ANALYSIS

Applying the test of Brady, 373 U.S. 83, 83 S.Ct. 1194, the withheld evidence at issue must be impeaching or exculpatory and prejudicial. The evidence of Mr. Raspberry’s confidential informant status does not exculpate Defendant in any manner. Further, Defendant has not shown it is impeaching in any manner.

The issue is whether the withheld evidence is prejudicial. Defendant claims Mr. Raspberry’s testimony provided a motive for murder. Motive, however, is “[sjomething, esp. willful desire, that leads one to act.” Black’s Law Dictionary (9th ed.2009). The statements Mr. Raspberry said Defendant made — that they could kill the victim and get away with it — show nothing that would lead Defendant to act. That statement suggests no reason Defendant would want to kill l^the victim. The alleged statement simply stated something they could do, not why they would want to do it. It does not indicate something that would lead them to act; thus, Mr. Raspberry’s testimony does not suggest a motive for the shooting.

The record shows that Mr. Raspberry was charged with possession of marijuana and possessing a firearm while in the possession of drugs on January 26, 2011. However, he was not arrested for these offenses. The charges were filed two weeks before the victim died. Likewise, Mr. Raspberry was charged with domestic' abuse battery on November 8, 2011, but he was not arrested for this offense. All of these events occurred prior to the date of Stanton Hardee’s employment with the District Attorney’s office in March 2012.

On April 16, 2013, Captain David wrote Mr. Hardee to request the dismissal of Mr. Raspberry’s drug charges in consideration for his cooperation. Mr. Hardee filed the motion to dismiss the charges on May 2, 2013. Thus, at the time of Mr. Raspberry’s trial testimony, the State had nothing to “hold over” him in exchange for his testimony.- Mr. Raspberry could not gain from testifying in any particular manner or to any particular facts. With the minor exception of where Defendant made the statements, Mr. Raspberry’s testimony was consistent throughout the proceedings.

Further, Defendant has not shown whether evidence of the dismissal of Mr. Raspberry’s charges would have been admissible at trial. “Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.” La.Code Evid. art. 609.1(B).

R,;In State v. Boyer, 10-693 (La.App. 3 Cir.2/2/11), 56 So.3d 1119, writ denied, 11-769 (La.1/20/12), 78 So.3d 138, a witness had already been convicted of obstruction of justice in connection to the defendant’s crime and was on probation at the time he testified at the defendant’s trial. Part of his plea bargain required him to testify truthfully at the trial. He knew the District Attorney controlled whether his probation would be revoked. Nevertheless, the witness had no pending charges the witness could use to bargain for leniency.

The trial court refused to allow the defendant to question the witness about an unrelated domestic abuse incident on which no charge was pending, the witness had not been convicted, and the State had no prospect of prosecution. This court held the trial court did not abuse its discretion because the defendant could not attack the witness’s character by inquiring into particular acts not resulting in a conviction. See La.Code Evid. art. 608. Additionally, the possibility of “prejudice, confusion of the issue, or misleading of the jury” outweighed any relevance of the evidence. Boyer, 56 So.3d at 1130.

Here, Mr. Raspberry’s drug and domestic abuse charges were not pending at the time of his testimony, did not lead to convictions, and were no longer subject to prosecution. Nothing about the dismissals suggested Mr. Raspberry or anyone else had been untruthful about the charges or about his confidential informant status. Introduction of the evidence may have influenced the jury’s opinion of Mr. Raspberry’s character.

Certainly, the State should have told Defendant that Mr. Raspberry was a confidential informant, and charges against him had been dismissed. Defendant has never claimed the lack of disclosure was intentional or used by the State with the intent to obtain a certain result. The withheld evidence does not create a treasonable doubt of Defendant’s guilt. Defendant received a fair trial despite the withheld evidence and the trial court did not err in denying Defendant’s motion for new trial.

DECREE

Defendant’s conviction for second degree murder is vacated and a guilty plea for negligent homicide is entered. This matter is remanded for resentencing. SECOND DEGREE MURDER CONVICTION VACATED; VERDICT OF NEGLIGENT HOMICIDE ENTERED; REMANDED FOR RESENTENCING; AFFIRM DENIAL OF MOTION FOR NEW TRIAL.

AMY, J., dissents and assigns written reasons.

AMY, J.,

dissenting.

| ^though I agree with the majority that the trial court did not err in denying the motion for new trial, I would affirm the second degree murder conviction, as rendered by the jury.

The majority opinion finds insufficient evidence that the defendant had the specific intent to kill the victim, specifically addressing whether the evidence revealed a motive for the crime. See State v. Carmouche, 12-1052 (La.App. 3 Cir. 4/3/13), 117 So.3d 136 (wherein a panel cited State v. Mart, 352 So.2d 678 (La.1977) for the proposition that, although motive is not an essential element of second degree murder, an absence of motive may be considered as a circumstance mitigating against specific intent). The majority opinion further finds that the State did not exclude every reasonable doubt as to specific intent. I respectfully disagree.

Notably, jurors heard Gregory Raspberry testify that, on several occasions, the defendant spoke of killing the victim. Any assessment as to his credibility was certainly within the province of the jury, as the trier of fact. See State v. Oliphant, 13-2973 (La.2/21/14), 133 So.3d 1255. The jury also heard witness statements indicating that the defendant and the victim had experienced conflict, that the victim allegedly owed the defendant money, that the defendant admitted to [^repeatedly discharging his weapon (resulting in multiple projectile injuries to the victim), that the defendant left the victim in the marsh at the scene, and that the defendant misled and misdirected those searching for the victim in the days after the incident. Given the jury’s fact-finding role and its apparent rejection of the defendant’s version of events, I find these factors sufficiently support the jury’s determination of specific intent to kill the victim or to inflict great bodily harm.

For these reasons, I respectfully dissent from the majority opinion.

      . The victim was using "another guy’s boat” on February 9, and it was that “guy’s boat” Mr. Herpin found.

      . The record of the hearing of the motion for new trial was sealed by order of the trial court.

      . The State filed a disclosure clarifying Mr. Raspberry's grand jury testimony. Apparently Mr. Raspberry was confused about the sequence of Defendant's statements pertaining to murdering the victim. The disclosure indicated Mr. Raspberry told the grand jury Defendant said they could kill the victim and get away with it three times, the first two times at Defendant's trailer, and the third time at Mr. Raspberry’s office trailer. The disclosure explained the first and third remarks took place at Defendant’s trailer, but the second took place at Mr. Raspberry's office trailer.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    LOUISIANA PIGMENT COMPANY, L.P. v. AIR LIQUIDE AMERICA, L.P. and Air Liquide Large Industries, U.S. L.P.
    No. 13-698.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 15, 2014.
    James M. Garner, Debra J. Fischman, Jennifer H. Mabry, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for Defendants/Appellants, Air Liquide America, L.P. Air Liquide Large Industries, U.S. L.P.
    Rudie R. Soileau, Jr., Hunter W. Lundy, Daniel A. Kramer, Lundy, Lundy, Soileau & South LLP, Lake Charles, LA, for Plaintiff/Appellee, Louisiana Pigment Company, L.P.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, J. DAVID PAINTER, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   PETERS, J.

I,This litigation involves a contract dispute over the sale and delivery of oxygen and nitrogen to a Louisiana facility currently operated by the plaintiff, Louisiana Pigment Company, L.P. The defendants in this litigation, Air Liquide America, L.P. and Air Liquide Large Industries, U.S. L.P., appeal the trial court’s denial of their declinatory exception of improper venue. For the following reasons, we reverse the trial court judgment and render judgment granting the exception of improper venue and dismissing the lawsuit of Louisiana Pigment Company, L.P. against Air Liq-uide America, L.P. and Air Liquide Large Industries, U.S. L.P., but without prejudice.

DISCUSSION OP THE RECORD

The litigation has as its origin a September 1, 1990 contract between Big Three Industrial Gas, Inc. (Big Three) and Kro-nos Louisiana, Inc. (Kronos), both Delaware corporations. In the contract, Big Three agreed to deliver oxygen and nitrogen to a Kronos’ Calcasieu Parish chemical manufacturing facility for use in its manufacturing process. The contract identified the point of delivery and ownership transfer of the oxygen and nitrogen as Big Three’s meters, located inside Kronos’ Cal-casieu Parish facility, and provided that the oxygen and nitrogen originating from various plants owned by Big Three would to be transported to Kronos’ facility through a pipeline system running along the Texas and Louisiana Gulf Coast.

On September 28, 1993, Louisiana Pigment Company, L.P. (Louisiana Pigment) came into being as a limited partnership, with Kronos and Toxide America, L.L.C. (Toxide) as partners in the endeavor. On the same day Louisiana Pigment was created, Kronos assigned the September 1, 1990 contract to it with the acceptance and concurrence of Big Three. By January of 1994, Big Three ^Industrial Gas, Inc. came to be identified as Big Three Industries, Inc., an Air Liquide Group Company. Immediately thereafter, Air Liquide America, L.P. (Air Liquide America) became the party at interest in the contract.

On November 25, 2002, Air Liquide America submitted a price schedule to Louisiana Pigment, to take effect on January 1, 2003, for prices affecting “the use of supplemental, excess, liquid, or peaking product per the provisions of your agreement with Air Liquide.” It informed Louisiana Pigment that this supplemental rate would not apply to normal deliveries of its product. On September 23, 2004, Air Liq-uide America assigned the contract to Air Liquide Large Industries, U.S. L.P. (Air Liquide US), effective January 1, 2005. Louisiana Pigment recognized the existence of this assignment on September 30, 2004.

The original term of the contract ran through January 1, 2007. However, a May 1, 1998 amendment extended the term through January 1, 2010, with one-year increments to be effective thereafter until either party provided written notice of termination. Upon written notice of termination, the contract would extend through the remainder of that year and the next complete year. On December 13, 2010, Air Liquide U.S. provided Louisiana Pigment with written notice that it was terminating the contract, effective January 1, 2012.

On June 15, 2012, Louisiana Pigment filed suit against Air Liquide America and Air Liquide US, asserting that since delivery of the January 1, 2003 price schedule by Air Liquide America, the two entities had manipulated the delivery meters so that the higher supplemental rate applied for what was actually normal deliveries of oxygen and nitrogen. Louisiana Pigment further asserted that between January 1, 2003 and January 1, 2012, Air Liquide America and Air | ^Liquide U.S. had assessed it with excessive electrical power charges based on the categorization of the deliveries at issue in the litigation.

Air Liquide America and Air Liquide U.S. responded to the original petition by filing a declinatory exception of improper venue based on Section 20.1 of the September 1, 1990 contract, which reads as follows:

This Agreement shall be governed by and construed in accordance with the laws of Texas and shall be performed in Harris County, Texas. It is expressly stipulated and agreed that the District Courts of Harris County, Texas, and the Federal District Court for the Southern District of Texas shall have exclusive jurisdiction and venue of all proceedings based on or arising out of this Agreement.

Following a March 6, 2013 hearing, the trial court denied the exception and certified the ruling as a final and immediately appealable judgment. On March 22, 2013, the trial court executed a judgment conforming to its ruling. Thereafter, Air Liq-uide America and Air Liquide U.S. perfected this appeal, asserting the following assignments of error:

1. The district court erred in denying [the defendants’] declinatory exception of improper venue, as the parties here executed a valid contract with an unambiguous forum-selection clause designating Texas courts as the exclusive and mandatory venue for actions such as this one.
2. The district court erred to the extent that it applied Louisiana law to determine the enforceability of the contract’s forum-selection clause, as the contract’s choice-of-law clause provides that it shall be governed by and construed in accordance with Texas law.
3. The district court erred to the extent it engaged in a conflict-of-laws analysis under Louisiana Civil Code article 3537 to determine what state’s law applies to the contract at issue, because article 3537 “applies in the absence of an effective choice of law by the parties,” and the parties’ effective choice of Texas law here, as memorialized in their contract, makes article 3537 inapplicable.
4. The district court erred to the extent it found that article 3537’s relative impairment test weighed in favor of application of Louisiana law, as opposed to Texas law.
|t5. The district court erred to the extent it found that Louisiana has a strong public policy against enforcing forum-selection agreements, despite the fact that four out of five Louisiana Circuits have held, and the Louisiana Supreme Court has recognized, that forum-selection agreements are prima facie valid and enforceable in Louisiana.

(Footnotes to assignments omitted.)

OPINION

The declinatory exception of improper venue is provided for by La. Code Civ.P. art. 925(A)(4). An appeal from a judgment denying an exception of improper venue presents a question of law, and we review the record de novo in order to determine whether the trial court’s denial of the exception was legally correct. Henry v. Anderson, 10-941 (La.App. 3 Cir. 3/9/11), 60 So.3d 1285, writ denied, 11-1294 (La.9/23/11), 69 So.3d 1166. The only issue before us is whether Section 20.1 of the September 1, 1990 contract is valid and enforceable, and all of the assignments of error address that issue. Therefore, we will consider all of the assignments together. Additionally, for the purpose of addressing this issue, we will refer to Air Liquide America and Air Liquide U.S. collectively as Air Liquide.

The March 6, 2013 hearing established that Louisiana Pigment is a Delaware limited partnership whose principal (and only) place of business is in Calcasieu Parish; that Kronos, a Delaware corporation having a principal place of business in Texas, is one of the partners in Louisiana Pigment; that Air Liquide has facilities in both Louisiana and Texas; and that all billing and contract notices from Air Liq-uide to Louisiana Pigment originated in Texas. The parties agreed in argument to the trial court that except for the application of the Section 20.1, the contract itself was voluntarily entered into and is a valid contract. Louisiana Pigment argued to the trial court that Section 20.1 is unenforceable, and Air Liquide took the opposite position. However, in arguing the unenforceability of the forum [¡¡selection clause, Louisiana Pigment specifically acknowledged that it did not take the position that it had been required to accept Section 20.1 as part of the contract because of fraud or duress. Instead, Louisiana Pigment relied on this court’s decision in Thompson Tree & Spraying Service, Inc. v. White-Spunner Construction, Inc., 10-1187 (La.App. 3 Cir. 6/1/11), 68 So.3d 1142, writ denied, 11-1417 (La.9/30/11), 71 So.3d 290, wherein a panel of this court held that forum selection clauses are unenforceable as being against Louisiana public policy. The trial court followed Thompson in rejecting Air Liquide’s exception of improper venue.

The Thompson litigation arose from the construction of a Wal-Mart retail store in Alexandria, Louisiana, and involved a suit for damages by a subcontractor against a contractor. The subcontract at issue contained a clause which stated that the subcontract had been entered into in Mobile County, Alabama, and further provided that any litigation between the parties would be brought in the Mobile County Circuit Court. The subcontractor brought his suit in the Ninth Judicial District Court in Rapides Parish, Louisiana, and was met with an exception of improper venue as well as other requests for relief from the suit. The trial court dismissed the Louisiana Private Works Act (LPWA) claims as being untimely and granted the exception as to the breach of contract claim and dismissed the subcontractor’s suit.

This court in Thompson initially reversed the trial court’s dismissal of the LPWA claims and then turned to the question involving enforceability of forum selection clauses in general. In holding that all forum selection clauses are unenforceable in this state as being against public policy, the court relied primarily on La.Code Civ.P. art. 44(A), which provides that “[a]n objection to the venue may |finot be waived prior to the institution of the action.” In doing so, the court acknowledged that forum selection clauses have been found to be legal and enforceable by Louisiana courts in three situations:

There are several appellate courts which have concluded that forum selection .clauses are legal and binding in Louisiana unless the resisting party clearly shows that the enforcement would be unreasonable and unjust, that the clause arises from fraud or overreaching, or that the enforcement would contravene a strong public policy. E.g., Case Atl. Co. v. Blount Bros. Constr., Inc., 42,251 (La.App. 2 Cir. 6/20/07), 960 So.2d 1274, writ denied, 07-1541 (La.10/12/07), 965 So.2d 403.

Id. at 1151-52.

This court in Thompson further acknowledged that the Louisiana Supreme Court pronounced forum selection clauses enforceable in Lejano v. Bandak, 97-388 (La.12/12/97), 705 So.2d 158, cert. denied, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40 (1998), and Power Marketing Direct, Inc. v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662, but noted that in Lejano, the decision involved the application of federal law in a maritime setting; and that in Power Marketing, the supreme court’s language on the issue was merely dictum as the supreme court was not required to reach that issue in rendering its decision. Thus, this court concluded that “[t]he supreme court has not addressed the issue explicitly[.]” Thompson, 68 So.3d at 1152.

Additionally, in Thompson, this court specifically addressed our previous ruling in Calahan v. Haspel, 99-14 (La.App. 3 Cir. 5/5/99), 732 So.2d 796, wherein a panel of this court had declared forum selection clauses generally enforceable, although not enforceable in that particular case, given the facts before it. The Thompson panel concluded “that the statement relating to the enforceability |7of forum selection clauses in Callahan [sic] was inaccurate.” Thompson, 68 So.3d at 1156.

In reaching its conclusion in Thompson, this court also noted that La.R.S. 9:2779 and La.R.S. 51:1407 specifically hold forum selection clauses invalid in the factual situations they govern.

Louisiana Revised Statutes 9:2779(A) (emphasis added) provides:

The legislature finds that, with respect to construction contracts, subcontracts, and purchase orders for public and private works projects, when one of the parties is domiciled in Louisiana, and the work to be done and the equipment and materials to be supplied involve construction projects in this state, provisions in such agreements requiring disputes arising thereunder to be resolved in a forum outside of this state or requiring their interpretation to be governed by the laws of another jurisdiction are inequitable and against the public policy of this state.

With regard to the agreements described in La.R.S. 9:2779(A), the statute further provides that the legislature declares any contractual provision which attempts to require an out-of-state arbitration of disputes or an interpretation of the agreement pursuant to the laws of another jurisdiction to be “null and void and unenforceable as against public policy[.]” La.R.S. 9:2779(B). However, the statute does contain an exception to this public policy determination in La. R.S. 9:2779(D), which provides that “[njotwithstanding any other provisions of law to the contrary, the provisions of this Section shall not apply to negotiated labor contracts.”

Louisiana Revised Statutes 51:1407(A), which is a part of the Unfair Trade Practices and Consumer Protection Law (UTPCPL), establishes the role of the attorney general in enforcing the UTPCPL as well as the appropriate venue for his or her enforcement power to be implemented:

Whenever the attorney general has reason to believe that any person is using, has used, or is about to use any method,, act, or practice declared by R.S. 51:lj05 to be unlawful, he may bring an action for injunctive relief in the name of the state against such person \ Kto restrain and enjoin the use of such method, act, or practice. The action may be brought in the district court having civil jurisdiction in any parish in which such person resides, or is domiciled or has his principal place of business, or in any parish in which such person did business, or, with consent of the parties, may be brought in the district court of the parish where the state capítol is located. In the event these district courts are not operational due to a declared state of emergency, the action shall be brought in an operating judicial court located closest in geographic distance to the Nineteenth Judicial District Court in the parish of East Baton Rouge. In the event that such person was located outside of the state, but was soliciting in the state by mail, telephone, or any electronic communication, the action may be brought in the district court having civil jurisdiction in the parish in which the contact was made. It being against the public policy of the state of Louisiana to allow a contractual selection of venue or jurisdiction contrary to the provisions of the Louisiana Code of Civil Procedure, no provision of any contract which purports to waive these provisions of venue, or to waive or select venue or jurisdiction in advance of the filing of any civil action, may be enforced against any plaintiff in an action brought in these courts. These courts are authorized to issue temporary restraining orders or preliminary and permanent injunctions to restrain and enjoin violations of this Chapter, and such restraining orders or injunctions shall be issued without bond.

(Emphasis added.)

After identifying legislation and custom, as the two sources of law in Louisiana; quoting from the noted jurists of our state, Justices Albert Tate, Jr. and James L. Dennis, as well as the eminent legal professors, Professors Marcel Planiol and A.N. Yiannopoulos, on the role of legislation and judicial opinions in the civilian law; and after considering the role of the legislature in enacting multiple laws addressing the same subject, the court in Thompson reiterated the basic standard of statutory construction found in La.Civ. Code art. 9: “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” The court then stated that “[ljaws on the same subject matter must be interpreted in reference to each other.” La.Civ.Code art. 13. Finally, the court noted that, “[t]he courts presume that the legislature | ¡/enacted the law with full knowledge of all other laws pertaining to the same subject matter’ and that ‘every provision of law was intended to serve some useful purpose^]’ ” Thompson, 68 So.3d at 1154 (quoting Martin v. Safeway Ins. Co. of La., 08-1419, p. 4 (La.App. 3 Cir. 4/15/09), 26 So.3d 777, 780 (quoting Ransome v. Ransome, 01-2361, p. 8 (La.App. 1 Cir. 06/21/02), 822 So.2d 746, 754)).

This analysis led the court in Thompson to the application of the basic rule provided in La.Code Civ.P. art. 44(A) that “[a]n objection to the venue may not be waived prior to the institution of the action[,]” and the decision that all forum-selection clauses are against Louisiana public policy. The contractor in Thompson sought writs from the supreme court; however, as previously noted, writs were denied. Thompson Tree & Spraying Serv., Inc. v. White-Spunner Const., Inc., 11-1417 (La.9/30/11), 71 So.3d 290. Since this court’s decision in Thompson, two decisions have been rendered in other circuits refusing to extend the language of La.R.S. 51:1407(A) beyond the realm of Louisiana UTPCPL matters.

The first of these two cases is Rising Resources Control, Inc. v. KIE Commodities and Finance, L.L.C., 11-1026 (La.App. 1 Cir. 12/21/11), 80 So.3d 1217, writ denied, 12-658 (La.4/27/12), 86 So.3d 632. In this case, the plaintiff entered into a contract with a Michigan company for the purchase of scrap metal from the defendant’s leased Louisiana premises. The contract included a forum selection clause providing for venue in Michigan. The plaintiff filed suit in Louisiana, and the defendant objected to venue. The trial court sustained the objection and dismissed the plaintiffs suit. The plaintiff appealed the trial court’s decision, relying on Thompson, and, on appeal, the first circuit stated:

The [Thompson ] court found that although the referenced public policy language appears in the Louisiana Unfair Trade Practices Act (UTPA), the language utilized in the statute “indicates that the policy is far from being limited to the claims based on the UTPA.” | ^Thompson Tree & Spraying Service, Inc., 10-1187 at p. 18, 68 So.3d at 1154. The third circuit also noted that LSA-C.C.P. art. 44(A) does not allow venue to “be waived prior to the institution of the action.” The court further declared that its prior statement in Calahan v. Haspel, 99-44 (La.App. 3 Cir. 5/5/99), 732 So.2d 796, that “forum selection clauses are generally enforceable” was inaccurate. Thompson Tree & Spraying Serv., Inc., 10-1187 at p. 22, 68 So.3d at 1156.
In contrast, this court has previously recognized a more limited view, although recognizing that “the public policy of this state does militate against the use of forum-selection clauses in employment contracts, La. R.S. 23:921(A)(2), and in consumer transactions and cases of unfair trade practices, La. R.S. 51:1407.” Vallejo Enterprise, L.L.C. [v. Boulder Image, Inc.], 05-2649 at p. 6 [ (La.App. 1 Cir. 11/3/06)], 950 So.2d [832,] 837. However, this court did not expand LSA-R.S. 51:1407(A) beyond its context of the UTPA and noted that plaintiff “pointed to no authority supporting a proposition that commercially sophisticated parties may not limit their disputes to any forum of their choosing.” Id. This court, finding no contravention of public policy, affirmed the trial court’s grant of an exception of improper venue in a suit brought by a Louisiana distributor against an Arizona manufacturer wherein a choice of law provision required that any suits be instituted in the state of Arizona. See also Dillon v. Bankers Ins. Co., 09-1121, 2010 WL 502838 (La.App. 1 Cir. 2/12/10) (unpublished opinion).
Although the third circuit has interpreted the public policy declared in LSA-R.S. 51:1407(A) to extend beyond the context of the UTPA to all civil proceedings, we decline to do so and follow our prior holding in Vallejo Enterprise, L.L.C.

Id. at 1220-21.

As previously noted, the supreme court denied the plaintiffs application for supervisory writs.

In Fidelak v. Holmes European Motors, L.L.C., 47,915 (La.App. 2 Cir. 2/27/13), 111 So.3d 456, an allegedly defective engine was sold by the third-party defendant to the third-party plaintiff automotive center. The invoice at issue stated that the defendant’s terms and conditions could be found on its website. Included in these terms and conditions was a forum-selection clause which required litigation to take place in Harris County, Texas. After the trial court sustained the hithird-party defendant’s exception of improper venue, the third-party plaintiff appealed, arguing, in part based on Thompson, that forum-selection clauses are unenforceable as being against public policy. In affirming the trial court’s grant of the venue exception, the second circuit also declined to follow Thompson in expanding the language of La.R.S. 51:1407(A) outside of UTPCPL claims. Specifically, the second circuit stated:

We find that the cited statutes were intended to protect consumers who contract from disadvantageous bargaining positions, not to apply to all contracts of every type. To apply the prophylactic restrictions of [UTPCPA] to the instant situation is overreaching. The parties contracted in good faith in a commercial transaction, and a deal is a deal.

Id. at 459.

The supreme court granted the third-party plaintiffs application for supervisory writs in this matter. Fidelak v. Holmes European Motors, L.L.C., 13-691 (La.5/17/13), 118 So.3d 378. However, in rendering its opinion to reverse the trial court and second circuit, the supreme court did not resolve the forum-selection issue. Instead, the supreme court concluded that “a third party defendant may not object to venue where the principal action has been instituted in the proper venue.” Fidelak v. Holmes European Motors, L.L.C., 13-691, p. 1 (La.12/10/13), 130 So.3d 851, 852. With regard to the forum-selection issue, the supreme court noted that the issue of “[w]hether such clauses are valid under Louisiana law has never been squarely before us[,]” but that “because of the procedural posture of this case, it is not necessary for us to decide this difficult issue.” Id. at 853-54.

Subsequent to its decision in Fidelak, the supreme court rendered its decision in Shelter Mutual Insurance Co. v. Rimkus Consulting Group, Inc. of Louisiana, 13-1977 (La.7/1/14), 148 So.3d 871, wherein it squarely addressed the question of whether forum selection clauses were per se violations of public policy |12in Louisiana. After reviewing the jurisprudence relative to such clauses, the supreme court held that forum selection clauses are prima fa-cie valid in Louisiana. Specifically, the supreme court stated:

We hold that such clauses should be enforced in Louisiana unless the resisting party can “clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching .... [or that] enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision.”

Id. at 877 (alteration in original) (quoting Bremen v. Zapata Off-Shore Co., 407 U.S. 1,13 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)).

In the matter now before us, Louisiana Pigment does not claim application of any of the exceptions set forth above. Instead, it relies solely on the holding in Thompson that Louisiana has a public policy against enforcement of all forum selection clauses. That being the case, we reverse the trial court’s denial of the dec-linatory exception of improper venue and render judgment granting the exception and dismissing the lawsuit of Louisiana Pigment. Although we normally would allow Louisiana Pigment the opportunity to amend its petition in order to remove the grounds pled in the exception of improper venue, such a step in this instance would be “a vain and useless act.” Vallejo Enterprise, L.L.C., 950 So.2d at 838. The only action that will remove Air Liquide’s objection is a transfer to a court of proper jurisdiction and venue. As it is impossible for this court to transfer this matter to a Texas court, we dismiss Louisiana Pigment’s lawsuit without prejudice so that it may be refiled in the proper jurisdiction.

DISPOSITION

For the foregoing reasons, we reverse the trial court judgment rejecting the dec-linatory exception of improper venue filed by Air Liquide America, L.P. and Air Liq-uide Large Industries, U.S. L.P. and render judgment granting the exception 113and dismissing the lawsuit of Louisiana Pigment Company, L.P. against Air Liquide America, L.P. and Air Liquide Large Industries, U.S. L.P., without prejudice. We assess all costs of this litigation to Louisiana Pigment Company, L.P.

REVERSED AND RENDERED.

      . In Power Marketing, 938 So.2d at 675, the supreme court also recognized the three exceptions as being “that enforcement would be unreasonable or unjust, or that the clause is invalid for such reasons as fraud or overreaching.”


author: PICKETT, Judge.

text:
    STATE of Louisiana v. Waylon P. SAULS, II.
    No. 14-205.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 15, 2014.

      Herbert Todd Nesom, District Attorney 83rd JDC, Joe Green, Assistant District Attorney, Oberlin, LA, for Appellee State of Louisiana.
    Douglas Lee Harville, Louisiana Appellate Project, Shreveport, LA, for Defendant-Appellant Waylon P. Sauls, II.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

J¿FACTS

According to the bill of information, on or about June 5, 2012, the defendant, Way-lon P. Sauls, II, “committed aggravated burglary of the dwelling ... committing a battery upon any person while in such a place, or in entering or leaving such placet.]” Additionally, the bill of information charges that on or about June 5, 2012, the defendant “did knowingly and intentionally possess a Schedule II Controlled Dangerous Substance, to wit: Cocaine[.]”

On August 28, 2012, the defendant was charged by bill of information with one count of aggravated burglary, a violation of La.R.S. 14:60; one count of attempted forcible rape, a violation of La.R.S. 14:42.1 and La.R.S. 14:27; one count of possession of cocaine, a violation of La.R.S. 40:967(0(2); and one count of possession of drug paraphernalia, first offense, a vio-’ lation of La.R.S. 40:1023(0 and La.R.S. 40:1025. On September 24, 2012, the defendant entered a not guilty plea to each count. Thereafter, on April 9, 2013, the defendant entered a plea of no contest to aggravated burglary and possession of cocaine in exchange for the state’s dismissal of the remaining charges. At a sentencing hearing held on June 27, 2013, the trial court imposed the following sentence for aggravated burglary — fifteen years at hard labor, three years suspended, and five years of supervised probation. As a special condition of probation, the trial court ordered the defendant to have no contact with the victim or her family.

On July 12, 2013, the defendant filed a Motion to Reconsider Sentence, claiming that the sentence imposed is excessive.

The trial court denied the motion |2to reconsider sentence on August 14, 2018. Recognizing, however, that it had not imposed a sentence for possession of cocaine, the trial court imposed a sentence on that count of one year at hard labor. The trial court ordered the sentence to run concurrently with the sentence imposed for aggravated burglary.

On October 14, 2013, the defendant filed a Post-Conviction Application for an Out of Time Appeal. At a hearing held on December 12, 2013, the trial court granted the motion for out-of-time appeal. The defendant is now before this court, alleging one assignment of error as to the sentences imposed.

ASSIGNMENT OF ERROR

The trial court erred in imposing a sentence herein that is unconstitutionally excessive.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent. However, the minute entry of June 27, 2013, is in need of correction.

On June 27, 2013, the defendant was sentenced for the conviction of aggravated burglary. Although the transcript of the June 27 proceeding indicates it was for the imposition of sentence on the aggravated burglary conviction, the minute entry does not set forth for which conviction the sentence was imposed. See La.Code Crim.P. art. 781 and State v. Wommack, 00-137 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62. Thus, the trial court is ordered to amend the minute entry of June 27, 2013, to reflect the conviction for which the sentence was imposed.

hDISCUSSION

The defendant argues that the trial court imposed an unconstitutionally excessive sentence. The defendant contends that the sentence is excessive in light of the fact that he was a thirty-five-year-old father of two at the time of sentencing, he was employed as a laborer for ten years, he was married when he committed the crime, he was under the influence of drugs when he committed the crime, and he was stabbed during the crime. The defendant argues that “[g]iven these facts, in this specific ease, this sentence fails to provide Waylon P. Sauls with the opportunity to be rehabilitated and to reenter society as a productive member while being punished in a reasonable manner.” The state, on the other hand, argues that the sentence imposed is reasonable considering the circumstances of the offense, the plea considerations, and the defendant’s record. For the reasons that follow, we find the defendant’s sentences are not excessive.

In his Motion to Reconsider Sentence, the defendant’s sole contention was that his sentence is excessive. Likewise, on appeal, the defendant’s sole argument is that his sentence is excessive.

The law is well-settled concerning the standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless • imposition of pain and suffering.
State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. l4The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. 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).
State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.
[E]ven when a sentence falls within the statutory sentencing range, it still may be unconstitutionally excessive, and in determining whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has suggested that several factors may be considered:
[An] appellate court may consider several factors including the nature of the offense, the circumstances of — the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846.So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

State v. Decuir, 10-1112, pp. 11-13 (La.App. 3 Cir. 4/6/11), 61 So.3d 782, 790-91.

Although the defendant was originally charged with aggravated burglary, attempted forcible rape, possession of cocaine, and possession of drug paraphernalia, the state agreed to dismiss the attempted forcible rape and possession of drug paraphernalia charges in exchange for the ■ defendant’s no contest pleas to aggravated burglary and possession of cocaine. For aggravated burglary, the defendant was sentenced to fifteen years at hard labor, three years | .¡¡suspended, and five years of supervised probation. The penalty range for aggravated burglary is not less than one nor more than thirty years at hard labor. La.R.S. 14:60. Thus, the defendant received a mid-range sentence for aggravated burglary.

For possession of cocaine, the defendant was sentenced to one year at hard labor to run concurrently with the sentence imposed for aggravated burglary. The penalty range for possession of cocaine is not more than five years with or without hard labor and a fine of not more than $5,000.00. La.R.S. 40:967(0(2). Thus, the defendant received a near-minimum sentence for possession of cocaine, and the sentences were ordered to run concurrently.

At the sentencing hearing, the victim made a statement to the court. The victim testified that because of the defendant, she and her children no longer feel safe at home:

Over a year ago my life changed. Not only for me, but for my children and my family. A home to me is a place we seek for comfort and safety and a place that wherever we are we feel happy and at peace when we come back to it. But for me and my family, especially my daughter, it doesn’t feel that way anymore. Waylon Perry Sauls uninvitedly came into my home where we were asleep in an attempt to harm me or even my children. I am a construction worker’s wife. My husband travels for eighty-five percent of the year. Waylon Perry Sauls knew this and took that information, that knowledge, to use for his advantage. He took my comfort, our peace away. Yes, it has been over a year but everyday when we put our security code for our home and double check every lock and every door, not one night goes by where we don’t do that, we are reminded when my daughter can go days to months and then asks me where is he at. We are reminded. I protected myself that night and I protected my children and I will continue to do that. My question is, will you? All I ask is that the appropriate sentence be served and that he has time to be reminded too, everyday of what he took away from an innocent family. Thank you.

|fiThe defendant also made the following statement to the court:

I don’t remember nothing that happened that night. I was completely out of it. All I remember is eating a handful of pills an [sic] laying on my couch and then I woke up stabbed with a knife. But as for ever hurting Jessica, I love Jessica like a sister. She loved my children just as much as I did. I mean, I have caused total embarrassment and pain to the family that I love that’s been my family for twelve years. And I truly am sorry and I do think about it everyday, even though I don’t know what happened. I know that I hurt Jessica and I know that I hurt Trey, my brother and sister at the time. I embarrassed Mr. Clegg and he was like my daddy. It just kills me just as much as it kills them, especially not being able to remember none of it.

After making sure the defendant was provided a copy of the Presentence Investigation (PSI) report, the trial court stated the following in support of the sentence imposed:

Well, you know, when a person looks at this particular case, you can look at it from two different view points. When you look: at the definition of aggravated burglary, you know it’s a burglary where there’s a battery. In this particular case, I suppose some people could look at the battery and say, “Oh, it really wasn’t that bad. He just pushed her on the bed and everything.” But when you look at all of the facts of this particular case, it is quite troubling. You know, I don’t know. You said that you were out of your mind on drugs. I don’t know what you intended to do, whether you intended to rape her or kill her. Who knows? You don’t even know. So when you look at the facts of this case, it is very troubling and the fact that Ms. Chaumont had to protect herself and stab you shows just what a serious situation it is. And I can only imagine, you know, the pain that the family goes through. I’ve never had anything such as this, such as a home invasion or an aggravated burglary or anything like that, although I have had people steal stuff from around my house. My wife is deaf, so when she goes to sleep, she’s not able to hear. So I have to listen for the entire family and I don’t sleep well at night just because of something as simple as somebody stealing stuff from around my house. I can only imagine the pain of the family.

Before imposing sentence, the trial court noted that the PSI indicates the defendant is a second felony offender. As for the defendant’s probation and parole record, the PSI states that the defendant was convicted of simple robbery on September 8, 1999. While on probation for that offense, the defendant committed |7several violations. First, on June 22, 2001, the defendant was arrested for disturbing the peace by fighting and resisting arrest. Then, on April 8, 2002, the defendant tested positive for marijuana. Subsequently, on October 24, 2002, the defendant was arrested for aggravated battery. In addition to the criminal activity, the defendant failed to make payments towards his supervision fees and court ordered fines. Based on these violations, the defendant’s probation was revoked on February 20, 2003.

Considering the defendant’s prior criminal history and the benefit the defendant received by the state’s dismissal of the attempted forcible rape and possession of drug paraphernalia charges, the mid-range sentence imposed for aggravated burglary and the concurrent near-minimum sentence imposed for possession of cocaine are not excessive. A review of the jurisprudence further supports a finding that the sentences are not excessive. In State v. Tolliver, 12-1355 (La.App. 3 Cir. 5/8/13), — So.3d —, 2013 WL 1890273, this court upheld a twenty-five year sentence for an aggravated burglary committed by a defendant who had two prior felony convictions, who had been the subject of parole and probation revocations on at least three occasions, and who violently attacked one of his victims. Finally, in State v. Lazaro, 12-134 (La.App. 3 Cir. 11/7/12), 125 So.3d 1134, this court affirmed an eighteen-year sentence imposed upon a nineteen-year-old first-felony offender who had two criminal charges pending against him. Id. During the commission of the burglary, many items were taken, including firearms. Id. According to the victim, when he returned home unexpectedly, the defendant fired several shots from one of the stolen handguns. Id. The court in Lazaro noted that although the victim did not receive any physical injuries, the victim testified that [Rthe defendant’s crime will probably affect him and his family for the rest of their lives. Id.

Considering the above and considering the supreme court’s repeated admonition “that sentence review under the Louisiana constitution does not provide an appellate court with a vehicle for substituting its judgment for that of a trial judge as to what punishment is more appropriate in a given case[,]” we find that the trial court did not abuse its discretion by imposing a fifteen-year sentence and a one-year concurrent sentence in this case. State v. Savoy, 11-1174, p. 5 (La.7/2/12), 93 So.3d 1279, 1283 (citing State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461; State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957; and State v. Humphrey, 445" So.2d 1155 (La. 1984)).

CONCLUSION

The defendant’s sentences are affirmed. The trial court is ordered to amend the minute entry of June 27, 2013, to reflect the conviction for which the sentence was imposed on that date.

AFFIRMED WITH INSTRUCTIONS.

      . The minutes of the no contest plea reflect the date of the plea as March 9, 2013. Both the written plea and transcript, however, indicate the plea was taken on April 9, 2013.


text:
    Robert H. RHYNE, Jr., et al. v. OMNI ENERGY SERVICES CORP., et al.
    Nos. 14-323.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 15, 2014.
    David M. Kaufman, Lafayette, LA, for Defendants/Plaintiffs-In-Reconvention/Appellants: Robert H. Rhyne, Jr. Brent Trauth.
    Andre F. Toce, The Toce Firm, PLC, Broussard, LA, for Defendants/Plaintiffs-In-Reconvention/Appellants: Brent Trauth, Robert H. Rhyne, Jr.
    Alan K. Breaud, Timothy W. Basden, Breaud & Meyers, APLC, Lafayette, LA, for Plaintiff/Defendant-In-Reconvention/Appellee: OMNI Energy Services. Corporation.
    Robert J. Burns, Jr., Baton Rouge, LA, for Defendant-In-Reconvention/Appellee: XL Specialty Casualty Company.
    David M. Thorguson, Bourgeois Thorgu-son, LLC, Morgan City, LA, for Defendants-In-Reconvention/Appellees: Edward E. Colson, III, James C. Eckert, Richard C. White, Barry E. Kaufman, Dennis R. Sciotto, Ronald E. Gerevas, Brian J. Recatto.
    Randy P. Angelle, Boyer, Hebert, Abels & Angelle, LLC, Breaux Bridge, LA, for Defendants-In-Reconvention/Appellees: Edward E. Colson, III, Dennis R. Sciotto, Ronald E. Gerevas.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and JOHN E. CONERY, Judges.
   PETERS, J.

hWe set forth the factual background in OMNI Energy Services Corp. v. Rhyne, 14-251 (La.App. 3 Cir. 10/15/14), 150 So.3d 509, 2014 WL 5151392, and, in turning to the third of the consolidated cases, we note that in their December 23, 2013 filing seeking a devolutive appeal, Rhyne and Trauth asserted only that they were appealing the November 10, 2013 judgment “granting in part, and denying in part, [their] Motion for New Trial dismissing [their] claims against some, but not all, of Defendants-in-Reconvention.” Additionally, although the December 26, 2013 Notice of Appeal issued by the Lafayette Parish Clerk’s Office references the docket numbers assigned to both Lafayette Parish Suit I and Lafayette Parish Suit II, the motion and order filed by Rhyne and Trauth reference only the trial court docket number assigned to Lafayette Parish Suit I. The Lafayette Parish Clerk’s Office notice of appeal resulted in this court erroneously assigning a second appeal docket number to this litigation. When the matter became docketed before this court, Lafayette Parish Suit I was given Docket Number 14-322, and Lafayette Parish Suit II was given Docket Number 14-323. However, the only issues before this court arise from Lafayette Parish Suit I, and we, therefore, dismiss Docket Number 14-323 as having no issue for this court to consider. We assess all costs of this appeal to Robert H. Rhyne, Jr. and Brent Trauth.

APPEAL DISMISSED.

      . The trial court executed the order attached to the Notice of Appeal granting Rhyne and Trauth a devolutive appeal on December 19, 2013, but the Notice and Order were not filed until December 23, 2013.