author: PICKETT, Judge.

text:
    STATE of Louisiana v. Ronald G. ACKER, Jr.
    No. 12-1116.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.

      David W. Burton, District Attorney, Thirty-Sixth Judicial District, Richard F. Blankenship, Assistant District Attorney, DeRidder, LA, for Appellee, State of Louisiana.
    Teresa Culpepper Carroll, Bobby L. Culpepper & Associates, Jonesboro, LA, for Defendant-Appellant, Ronald G. Acker, Jr.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

J¿FACTS

Three young men, Joshua Porter, Darrell Darden, and Ronald G. Acker, Jr., the defendant in this case, went on a crime spree between May 16 and 17, 2011. In four separate incidents, the three men robbed persons at gun point.

The defendant was originally charged by a bill of information with four counts of armed robbery with the use of a firearm, violations of La.R.S. 14:64 and 14:64.3. On September 9, 2011, he pled guilty to all four counts. However, the defendant filed a “Motion to Withdraw Plea of Guilty” on January 11, 2012. On January 23, 2012, the motion was granted and trial was scheduled. On May 17, 2012, the state filed an amended bill of information, charging the defendant with three counts of armed robbery. The defendant was arraigned and pled not guilty to the three charges.

Jury trial commenced on May 21, 2012, and on May 24, 2012, the defendant was found guilty of one count of first degree robbery and two counts of armed robbery with use of a firearm. He was sentenced on May 31, 2012, to fifteen years at hard labor on each of the convictions, to be served concurrently, without the benefit of parole, probation, or suspension of sentence.

The defendant has perfected a timely appeal, wherein he alleges six assignments of error.

ASSIGNMENTS OF ERROR

1. The jury erred, as a matter of law, in convicting the defendant of armed robbery and first degree robbery based on insufficient evidence to support the convictions.
2. The District Court erred, as a matter of law, in ruling that the defendant’s •full statement to law enforcement officials was admissible when it contained information about other crimes for which the |2defendant was not on trial and in apparently not having the pretrial hearing on same recorded.
3. The District Court erred, as a matter of law, in failing to rule on the record (according to the trial transcript) on numerous objections made by counsel during trial.
4. The District Court erred, as a matter of law, in failing to amend the jury instructions as requested by defense counsel regarding the repeated use of the word “principal” in connection with the elements of the crimes to be proven by the State.
5. The District Court erred as a matter of law, in allowing S-15 (a photograph of the defendant and two co-defendants) to be introduced and published to the jury over defense objection.
6. The District Court erred, as a matter of law, in rendering an excessive sentence in this case as to the first degree robbery conviction.

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 is an error concerning the sentences imposed for armed robbery with use of a firearm.

Louisiana Revised Statutes 14:64 requires imposition of a sentence of not less than ten nor more than ninety-nine years without benefit of parole, probation, or suspension of sentence. Louisiana Revised Statutes 14:64.3(A) states:

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

The defendant was convicted of armed robbery with a use of a firearm on Counts 2 and B. On Count 1, he was convicted of first degree robbery. He was sentenced as follows:

[¡¡And, therefore, at this time, on each count, one, two, and three, you are sentenced to serve 15 years on each count, concurrent one with the other, with the Department of Corrections, at hard labor, which the entirety of this sentence is without benefit of parole, probation, or suspension of sentence.

The absence of a specification by the trial court that the defendant’s sentences for armed robbery with use of a firearm included a term under La.R.S. 14:64.3 renders them indeterminate.

This court addressed a similar issue in State v. McGinnis, 07-1419, pp. 8-9 (La. App. 3 Cir. 4/30/08), 981 So.2d 881, 888-89, stating in pertinent part: The trial court did not specify what portion, if any, of the Defendant’s habitual offender fifty-year hard labor sentence, imposed for the conviction of armed robbery with use of a firearm, included the enhanced penalty of La.R.S. 14:64.3....

In State v. King, 06-1903 (La.10/16/07), 969 So.2d 1228, the supreme court held that a defendant convicted of armed robbery and sentenced under the habitual offender law can be sentenced to an additional five years under La.R.S. 14:64.3, when the dangerous weapon used is a firearm.
In State v. White, 42,725 (La.App. 2 Cir. 10/24/07), 968 So.2d 901, the defendant was convicted of two counts of armed robbery with a firearm, and sentenced to thirty years at hard labor without benefit of parole, probation, or suspension of sentence on each count to run concurrently. On error patent review, the court noted that the trial court did not specify what portion, if any, of the defendant’s thirty-five year hard labor sentence without benefits was imposed under La.R.S. 14:64.3. The court found that the absence of a specification that the defendant’s sentences included a term under La.R.S. 14:64.3, rendered the defendant’s sentence indeterminate. Therefore, the court vacated the sentences and remanded for resentencing according to law for clarification of whether the defendant’s sentences included any additional punishment under La.R.S. 14:64.3.
This court finds that the absence of a specification that the Defendant’s habitual offender sentence included an enhanced term of imprisonment under La. R.S. 14:64.3 renders this sentence indeterminate. Therefore, this court hereby vacates the habitual offender sentence and remands for resentencing in accordance with |,[La.R.S. 15:529.1 and 14:64.3. The trial court should clearly set forth the portion of the sentence enhanced under La. R.S. 14:64.3.

See also State v. Billingsley, 11-1425 (La. App. 3 Cir. 3/14/12), 86 So.3d 872.

Accordingly, we vacate the defendant’s sentences for armed robbery with use of a firearm and remand the case for resen-tencing in accordance with La.R.S. 14:64 and 14:64.3. The trial court is instructed to set forth the portion of the sentences enhanced pursuant to La.R.S. 14:64.3.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant argues that the state failed to prove beyond a reasonable doubt that he was guilty of two armed robberies with use of a firearm and first degree robbery. He maintains that although he was present during the robberies, he was totally unaware that robberies were taking place until after the incidents commenced. Accordingly, the evidence was insufficient.

In State v. Lambert, 97-64, pp. 4-5 (La. App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27, this court held:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

Louisiana Revised Statutes 14:24 provides: “All persons concerned in the commission of a crime, whether present or absent, and whether they directly | ¡¡commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”

Furthermore:

Only those persons who “knowingly participate in planning or execution of a crime” are principals to that crime. State v. King, 06-554, pp. 7-8 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied, 07-0371 (La.5/4/07), 956 So.2d 600 (quotation omitted). An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. King, supra. The mental state of one defendant may not be imputed to another defendant. Thus, mere presence at the scene of a crime does not make one a principal to the crime. Id. However, it is sufficient encouragement that the accomplice is standing by at the crime scene ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice’s intention. State v. Anderson, 97-1301, p. 3 (La.2/6/98), 707 So.2d 1223, 1225 (per curiam) (quotation omitted).

State v. Mason, 10-284, p. 9 (La.App. 5 Cir. 1/11/11), 59 So.3d 419, 425-26, unit denied, 11-306 (La.6/24/11), 64 So.3d 216.

First degree robbery is defined as “the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon.” La.R.S. 14:64.1(A). Armed robbery is defined as “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by the use of force or intimidation, while armed with a dangerous weapon.” La.R.S. 14:64(A).

At trial, all the victims testified. Craig Naquin testified that on May 16, 2011, he finished his shift at Boise at 11:00 p.m. On his way home he made several stops. The last stop was at Chase Bank’s ATM in DeRidder where he deposited a check and some cash. As he was driving home, he noticed a white SUV-type of vehicle following him at a distance. It turned down a street before his street, but he | fisaw that it circled around and stopped a short distance away from where he parked in his driveway. Mr. Naquin was getting some groceries out of his vehicle when he saw two men rapidly approaching him. He attempted to get back in his vehicle to pull away but dropped his keys. He recognized them as black males. One of the men had a handgun. They were dressed all in black, including black masks and gloves. One was tall, about six feet one or two inches, and skinny. The other man was about five feet nine inches in height. The taller man demanded money. Mr. Naquin gave him his wallet. He had no money in the wallet; however, it contained a debit card. He stated that the two men then rushed back to the waiting SUV. He stated one of the men jumped into the backseat on the passenger side of the vehicle. A few days later, he found two unauthorized charges on his debit card at an Exxon station totaling ninety dollars.

Steven Hanchey, Jonathan Miller, and Gregory Paul Taylor each testified regarding an incident that occurred the next night on May 17, 2011. At about 9:30 p.m., Mr. Hanchey drove to West Park where he met up with Mr. Miller and Mr. Taylor. The three friends were sitting in Mr. Hanchey’s car when they noticed two men approaching the car from across the park. They had first seen a white SUV, later identified as a 2006 Envoy, drive around the park a few times then stop a short distance away. Mr. Hanchey stated that one of the men asked if he could borrow a cell phone. He and his friends hesitated, but then said they could borrow it. As they got out of the vehicle the man pointed a gun at them. He ordered them out to get down on the ground. Mr. Han-chey and Mr. Miller got down on the ground. Mr. Taylor, who was sitting in the backseat, ran and got away. The man with the gun stood over Mr. Hanchey and the second robber stood over Mr. Miller on the other side of the car. Mr. Miller stated the man standing over him did not 17have a gun. When Mr. Taylor ran, the man with the gun started after him but returned when Mr. Hanchey sat up and hit him with the gun. The robbers took two dollars from Mr. Hanchey and approximately thirty dollars from Mr. Miller. They also took their cell phones. Mr. Hanchey described the two men as wearing all black including black ski masks. The physical descriptions of the two robbers were the same as the description given by Mr. Naquin. Finally, Mr. Han-chey testified that he believed there were three persons involved because when the two robbers ran back to the white SUV, the two appeared to get into the front and back passenger side of the vehicle, and the vehicle “took off immediately after they jumped in.”

Jordan Wisby and Trevor West were talking in Mr. West’s car in front of a convenience store about midnight on May 17, 2011, when a white SUV-type of vehicle pulled into the area. Three men came up to their vehicle, one man on the driver’s side and two men on the passenger’s side. The men were dressed all in black and their faces were covered. At trial Ms. Wisby stated they all had on black ski masks, but she admitted she told the police two of the men wore bandanas. They began banging on the windows, yelling for Mr. West and Ms. Wisby to get out of the car. The man on the driver’s side banged on the window with a gun and demanded money. Ultimately, the men took Mr. West’s and Ms. Wisby’s cell phones then left. Mr. West identified the men as black. He stated the man on his side of the car wore a bandana over his face.

Ricky Johnson, a detective with the Beauregard Parish Sheriffs Office, was investigating the Naquin robbery which took place on May 16, 2011. He obtained video of the white Envoy driving back and forth in the street as Mr. Naquin was depositing money in the Chase Bank ATM. Two days later, on May 18th, Joshua |8Porter was pulled over for a traffic violation. He was driving a white Envoy that fit the description of the vehicle seen in the video driving past the ATM. Reese Martin, a sergeant with the DeRidder City Police Department, testified that he obtained a search warrant and went to Mr. Porter’s house to search the Envoy and Mr. Porter’s residence. The Envoy, which belonged to Mr. Porter’s mother, was not at the residence, but an old unused vehicle was in the driveway. A search of the vehicle located a gun case for a Taurus pistol, 9 mm Luger. The case had the serial number on it. After the Envoy arrived at the residence, a search of that vehicle turned up a 9 mm round in the car. Sergeant Martin further testified that he was able to obtain video from the Exxon Station where Mr. Naquin’s debit card was used on May 16th. He testified that the video showed the white Envoy filling up at the gas station, then two additional cars, a white Ford Taurus and a yellow Cobalt fill up, all on the same debit card. It was later determined that the latter two cars belonged to the defendant and Mr. Dar-den. It was learned that on the morning of the 18th, the defendant and Mr. Darden left for Texas. When they returned on the 19th, the defendant was approached by the police and he agreed to be interviewed.

The defendant did not testify at trial. However, the jury viewed the video recording of the interrogation, while reading along with the transcript of his interrogation. During the interrogation, the defendant insisted that Joshua Porter was the robber with the gun in each case and that he mostly had no knowledge Mr. Porter was going to commit the robberies until the robberies were occurring. His statement to the police was very elusive and difficult to follow. Pertaining to the robbery on May 16th, he said he “kind of knew” there was something up when they stopped and watched a person at Chase Bank’s ATM late at night and then followed the person home. He indicated that Mr. Porter and Mr. Darden got out of [ 9the car but he had no clue Mr. Porter was going to rob the man until he pulled out the gun. He also admitted he gassed up his car after the robbery with the victim’s debit card. He further admitted that he got out of the car with Mr. Porter the next night and approached the three boys in West Park. He stated he wanted to borrow a phone from one of the boys because his phone was dead. He said he did not know Mr. Porter intended to rob the boys until he pulled out the gun. He said that he told Mr. Porter to “let me use the phone first” before he robbed them. The defendant also discussed an incident that happened shortly after they left West Park and went to Circle K. He said a young man approached them and asked if they knew where he could get some marijuana. They led him to a dead end road, where Mr. Porter took the man’s money at gun point. He said he again did not know Mr. Porter intended to rob the man. Finally, he discussed the robbery of Mr. West and Ms. Wisby. When they got back to the convenience store where they had first met the young man looking for marijuana, he said there was a car parked with two people in it. The defendant thought they thought were having some kind of sex. He said he wanted to see, so they got out of the car, but again Mr. Porter pulled a gun. He said he just stood in front of the couple’s car and did nothing while Mr. Porter robbed them of their phones. Finally, he admitted that he and Mr. Darden went to Houston, Texas the next day, attempted to sell the iPhone there, and disposed of Mr. Porter’s gun — although he did not remember what happened to the gun.

Finally, Joshua Porter took the stand as a witness for the defense. While Mr. Porter’s testimony was more coherent than the defendant’s statement to the police, he was still evasive and circuitous about the facts of the robberies. He stated that he had pled guilty to three counts of armed robbery with a firearm but had not yet been sentenced. He acknowledged that as a part of his plea agreement he would | inreceive fifteen years at hard labor on each count to be served concurrently. While he agreed that he initially told the police that the defendant and Mr. Darden conspired with him on all the robberies, he testified he only lied about their participation because he thought if he spread the blame thin enough it would go easier for him. Contrarily, he claimed at trial the two men had no idea what he intended to do in each case. He claimed they never asked him what he was doing because they had all been drinking and intoxicated people do not ask questions. He further explained that he had to persuade the defendant and Mr. Darden to fill up their tanks at the gas station on Mr. Naquin’s debit card after the Naquin robbery. He admitted he owned a Taurus tactical 9 mm pistol. He did state that the defendant got out of the car and approached the three men in West Park. In his statement to the police, the defendant had stated that it was he who wanted to borrow one of the men’s cell phone in the West Park robbery. However, Mr. Porter testified that when he and the defendant approached the three men in the park, it was to borrow the cell for Mr. Darden, who had remained in the vehicle. He also stated that he planted the iPhone and gun in Mr. Dar-den’s car when he learned they were going to Texas so that no one would find the items.

In brief, the defendant argues that “[bjecause of the nature of the crimes and the multiple co-defendants, the jury had to make the determination that Mr. Acker was a principal to the crimes at issue in finding him guilty.” He further argues that “the state had to prove that Mr. Acker was ‘concerned’ with the commission of the theft.”

Armed robbery with use of a firearm

The jury found the defendant guilty to two counts of armed robbery with the use of a firearm. The two counts were the robberies of the three friends in West | nPark and the couple in the car at the convenience store, committed on May 17, 2011. In brief, the defendant argues that “the state failed to prove that Mr. Acker was a principal in either of these armed robbery [sic] because he lacked the requisite knowledge of Mr. Porter’s criminal intent to rob anyone much less use a dangerous weapon.” Armed robbery is a general intent crime.

An offender therefore has the requisite intent when “from the circumstances the prohibited result may reasonably be expected to follow from the offender’s voluntary act, irrespective of any subjective desire on his part to have accomplished such result.” State v. Elzie, 343 So.2d 712, 714 (La.1977); R.S. 14:10. Thus, “in the case of armed robbery, when the proof shows that the perpetrator armed with a dangerous weapon causes another to surrender to him whatever was the object of the robbery, the necessary criminal intent has been furnished by the very doing of those criminal acts.” [State v.] Holmes, 388 So.2d [722 (La. 1980) ] at 727.

State v. Smith, 07-2028, p. 10 (La.10/20/09), 23 So.3d 291, 298.

In the instant case, the defendant admitted he got out of the car with Mr. Porter and approached both the friends in the park and the couple in the car. While he claimed he did not know that Mr. Porter was going to rob the victims at gun point, he admitted he stood by and said nothing. This was after he claimed he was shocked and very upset the night before when Mr. Porter robbed Mr. Naquin at gun point. The defendant further claims that the state failed to prove that he “knew that his co-defendant was armed with a dangerous weapon at the time of the robbery.” Again, this was after Mr. Porter used a gun to rob Mr. Naquin the night before. Furthermore, at trial, Mr. Porter testified that that he carried the gun “98%” of the time and that the defendant knew he generally carried a gun. In Smith, the defendant argued that although she and her boyfriend cruised Wal-Mart’s parking lot looking for “an easy snatch,” she was not aware that he had a hand gun on his [ 12person when he used the gun to snatch a purse out of the victim’s shopping basket. Id. at 298. The supreme court noted:

Some jurisprudential support exists for the position taken by the court of appeal and defendant that defendant must have subscribed to Castro’s decision to arm himself before he stepped from the car to render her a principal in the offense of armed robbery. See State v. Doucet, 93-1523, p. 6 (La.App. 3rd Cir.5/4/94), 638 So.2d 246, 249 (reducing first degree robbery conviction to simple robbery because “[t]he evidence does not support a conclusion that the defendant knew of the existence of the knife before or during the robbery or that [the co-perpetrator] might lead the victim to believe that he was armed with a dangerous weapon.... Additionally, [the co-perpetrator] testified that the defendant was not aware that he had a knife on his person until after the robbery.”); State v. Smith, 450 So.2d 714, 716-17 (La.App. 4th Cir.1984) (reducing armed robbery conviction to simple robbery because the evidence revealed that the co-perpetrator spontaneously armed himself with a hammer belonging to the victim in the middle of the robbery and used it to intimidate the victim while defendant stood on the other side of the counter urging his accomplice to get all of the money but not mentioning the hammer). Both decisions rely on the general rule that “[a]ll principals to a crime are not necessarily guilty of the same grade of the offense. A principal may be convicted of a higher of [sic] lower degree of the crime, depending upon the mental element proved at trial.” Smith, 450 So.2d at 717 (citing State v. Holmes, 388 So.2d 722 (La. 1980)). Thus, under Smith and Doucet, the requisite intent of a principal who concerns himself in a robbery by aiding and abetting another in the commission of the offense is the intent to commit either armed or simple robbery, and in the latter case, the intent of the co-perpetrator to arm himself before or during the offense may not be imputed to the principal.
However, neither Doucet nor the Fourth Circuit’s Smith, nor the Second Circuit’s decision in the present case for that matter, takes into account a general principle of accessorial liability that when two or more persons embark on a concerted course of action, each person becomes responsible for not only his own acts but also for the acts of the other, including “ ‘deviations from the common plan which are the foreseeable consequences of carrying out the plan.’ ” State v. Smith, 98-2078, p. 7 (La.10/29/99), 748 So.2d 1139, 1143 (quoting 2 Wayne R. LaFave and Austin Scott, Substantive Criminal Law, § 7.5, p. 212 (1986)).

Id. at 296.

In State v. Scroggins, 40,746 (La.App. 2 Cir. 3/22/06), 926 So.2d 64, writ denied, 06-980 (La.11/3/06), 940 So.2d 655, the defendant and three other men 113drove around town looking for a car to steal. At one point, they spotted a woman in an SUV and followed her to where she parked at an apartment complex. While the defendant sat in the back seat of the vehicle, two of the men got out of the car and put a gun to the victim’s head. At this point, the defendant exited the car and left the scene. Later, he met up with the two men and was told that they had raped and murdered the woman. The defendant found her credit cards in the back seat of the car and used the cards to withdraw money. The defendant was later convicted of armed robbery. He argued on appeal, however, that the state failed to connect him with the crime other than placing him in the car that “brought the co-defendants to their victim.” Id. at 65. The second circuit found that the evidence was sufficient, noting:

Scroggins’ involvement with this group was from 7:30 p.m. until the wee hours of the next morning. The group made several stops along the way before it accomplished what this defendant knew it had clearly set out to do — “hit a lick.” A person who did not want to be involved in an armed robbery would not have continued to get back into the vehicle with a group of men who were specifically looking for a victim to rob. Since the group of men made so many stops during the course of the evening, Scrog-gins had several chances to leave the group. The incriminating evidence is derived only from Scroggins’ admission to his actions that evening and does not include a confession of any culpability. However, his intent to participate in this crime can be inferred from his actions of staying with the men after he knew their plans and knew they were armed, as well as his action of waiting on Aaron and Monster to return to Fat’s house. The evidence supports a finding that the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.

Id. at 69.

The second circuit in Scroggins also noted the holding in State v. Bates, 495 So.2d 1262 (La.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 826 (1987), wherein the defendant’s role in the armed robbery was not clearly evident from the facts. 114However, the supreme court in Bates determined that the defendant’s behavior indicated he was a principal to the robbery. Ultimately, Bates was convicted of first degree murder. However, on appeal, he argued that the evidence was not sufficient to support a finding that the murder of the victim was committed while he was engaged in the perpetration of the armed robbery. The supreme court stated:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. R.S. 14:24. Defendant was present at the time of the robbery, either outside the car and immediately beside Clark and Shirley, or seated inside the car when Shirley used the gun and fired warning shots at Clark. He was certainly present at all times during the robbery but did nothing and said nothing to prevent the robbery. He accepted the clothes of the victim from Shirley and went through the wallet. Items from the victim’s wallet were later found in Bates’ wallet and Clark’s wallet was found in the defendant’s possession when he was arrested. He therefore shared in the proceeds of the robbery. The robbery occurred with the use of Bates’ gun and his car. It is true there is no evidence that Bates and Shirley planned the robbery in advance. Nor did anyone testify Bates held the gun on Clark during the first confrontation on the bridge or that he threatened Clark at that time or forced the removal of his wallet or clothing. Nevertheless, we find ample evidence to conclude Bates was a principal to the robbery of Clark. This court has affirmed an armed robbery conviction under similar facts in State v. Gutter, 393 So.2d 700 (La.1981).

Id. at 1269.

In the current case, the defendant’s actions indicate that he was aware of Mr. Porter’s intent to rob people. Although the defendant argues that after the first robbery on May 16th, he was so distraught that he had nothing to do with Mr. Porter for a few days, the facts in the ease show that the very next day, on May 17th, he, Mr. Darden, and Mr. Porter were again on the road.

As for the couple at the convenience store, this incident occurred right after two previous robberies wherein Mr. Porter also brandished a gun. Although the | ^defendant stated that he was shocked and dismayed again by Mr. Porter’s actions, he never left his company.

The evidence was sufficient in this case for the jury to determine that the defendant’s “concern” in the robberies was sufficient to find him guilty of the offenses of armed robbery with the use of a firearm. The jury heard testimony of the victims, the defendant’s statement to the police, and Mr. Porter’s testimony.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact’s determination of the weight to be given evidence is not subject to appellate review.

State v. Arnold, 07-362, p. 10 (La.App. 1 Cir. 9/19/07), 970 So.2d 1067, 1073, writ denied, 07-2088 (La.3/7/08), 977 So.2d 904.

First degree robbery

The jury found the defendant guilty of first degree robbery on count one, which was the May 16th robbery of Mr. Naquin. To find the defendant guilty of first degree robbery, the jury had to find, in this case, that Mr. Naquin reasonably believed that Porter was armed with a dangerous weapon. The defendant argues that not only did he not know Mr. Porter was going to rob Mr. Naquin, he did not even get out of the Envoy.

The facts in this case were such that if the jury concluded that the defendant did not get out of the car but was acting as the get-away driver, the jury could have found the defendant guilty as a principal to armed robbery. However, the jury found the defendant guilty of a legislatively approved responsive verdict to armed robbery, first degree robbery. La. Code Crim.P. art. 814(A)(22). A jury may return a legislatively provided responsive verdict, “whether or not the evidence supports h (¡the verdict, as long as the evidence was sufficient to support a conviction of the charged offense” absent a contemporaneous objection. State ex rel Elaire v. Blackburn, 424 So.2d 246, 249 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2482, 77 L.Ed.2d 1318 (1983). The defendant never objected to the legislatively authorized responsive verdict of first degree robbery.

In his statement to the police, the defendant indicated he did not get out of the car when Mr. Porter robbed Mr. Naquin at gun point. Furthermore, Mr. Porter testified it was Mr. Darden who accompanied him when he approached Mr. Naquin and demanded money. The evidence was sufficient in this case to have found the defendant a principal to armed robbery. However, it appears the jury chose to find the defendant guilty of a lesser included offense of first degree robbery, perhaps because there was corroborating testimony that the defendant did not exit the car. This was the jury’s prerogative.

There is no merit with this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant argues that the trial court erred by allowing the admission of his statement made to the police because the statement contained references to other crimes evidence in violation of La.Code Evid. art. 404(B)(1).

Article 404(B)(1) provides:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

| ^Initially, the defendant contends there was no pretrial hearing concerning the admission of other crimes evidence. Secondly, he argues that while the trial court did rule on the issue in open court, there was no transcript provided in the record regarding the ruling other than what was noted in the minute entry for that date. However, in this case, a transcript of the trial court’s ruling has been provided to the defendant, the state, and this court as a result of a request for supplementation of the record filed by the defendant.

The other “crime” evidence objected to was originally count three listed in the bill of information filed on July 6, 2011, which read:

On or about May 17, 2011, DARRELL K. DARDEN, JR., RONALD G. ACK-ER, JR. and JOSHUA L. PORTER, did willfully and unlawfully violate R.S. 14:64 and R.S. 14:64.3, Armed Robbery, Use of Firearm, by taking money and a cell phone from the person of Michael Tansy, by the use of force and intimidation while armed with a dangerous weapon, to wit: a Taurus MM semiautomatic pistol, a firearm, (a felony)[.]

On May 17, 2012, four days prior to trial, the state amended the bill of information to eliminate the above count and sever co-defendants, all without objection. On May 21, 2012, prior to the jury being sworn, counsel for the defense objected to a DVD and transcript of the interview with the defendant being admitted into evidence for the reason that the incident alleged in the original count three was dismissed. According to the minute entry, the trial court heard argument and then stated it would rule on the issue later in the day. The jury was sworn in at 1:30 p.m. At 2:00 p.m. outside the presence of the jury, the trial court made its ruling, in pertinent part, as follows:

First of all, there was not a prior notice and a prior notice is not required in every case. And specifically in this case there was neither a prior notice nor was there a motion in limini [sic] by either party addressing this but only the verbal statements made on the record.
118In this ease in review of the count that was previously billed against Mr. Acker which is no longer contained therein, the Court does find that the notice apprehende [sic] of all described offenses that he is charged with are so peculiarly distinctive as to make it a logical conclusion that they were the work of the same person including this particular count which would now qualify as other crimes evidence.
The law now talks about integral part of the crime as opposed to the legal term, res gestae; is this an integral part of the crime. And if it is determined to be an integral part or the res gestae of the crime then no notice is required. And in this particular situation there was knowledge of it given to the defendant both through discovery as well as the original bill.
So the Court at this time finds that this evidence, these acts can be introduced because it relates to the conduct that constitutes an integral part of this act or transaction which is subject of the current proceeding.

On May 17, 2011, the defendant and his cohorts committed robbery with the use of a firearm on three separate occasions. In each case, they took the victims’ cell phones and whatever money they could get. These robberies took place within a three to four hour period. The complained of other crime evidence was the second of the robberies. The defendant participated in a crime spree. In State v. Taylor, 01-1638, pp. 10-13 (La.1/14/03), 838 So.2d 729, 741-43, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004), the supreme court discussed at length the admissibility of a seven-day crime spree, which involved dozens of crimes through several states, when it related to conduct formerly known as res gestae, as follows:

Generally, courts may not admit evidence of other crimes to show defendant is a man of bad character who has acted in conformity with his bad character. However, under La. C.E. art. 404(B)(1) evidence of other crimes, wrongs or acts may be introduced when it relates to conduct, formerly referred to as res ges-tae, that “constitutes an integral part of the act or transaction that is the subject of the present proceeding.” Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. A close proximity in time and location is |19required between the charged offense and the other crimes evidence “to insure that ‘the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.’ ” State v. Colomb, 98-2813, p. 3 (La.10/1/99), 747 So.2d 1074, 1076 (quoting State v. Haarala, 398 So.2d 1093, 1098 (La.1981)). The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. State v. Huizar, 414 So.2d 741, 748 (La.1982); State v. Kimble, 407 So.2d 693, 698 (La.1981). In addition, as this court recently observed, integral act (res gestae) evidence in Louisiana incorporates a rule of narrative completeness without which the state’s case would lose its “narrative momentum and cohesiveness, ‘with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.’ ” Colomb, 747 So.2d at 1076 (quoting Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)).
However, under the rule of narrative completeness incorporated in the res gestae doctrine “the prosecution may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt, to convince the jurors a guilty verdict would be morally reasonable as much as to point to the discrete elements of a defendant’s legal fault.” Old Chief, 519 U.S. at 188, 117 S.Ct. 644.

There was no error in the trial court’s ruling on this issue. The defendant, however, further argues:

This issue becomes even more confusing during the trial at the point where the jury is to view the transcript of the defendant’s statement. At that time, the Court notes “before we hand out the transcript of the statement, I need to inform the jury that this statement from time to time has maybe a blank page or blank area or comment. The reason for that is, of course, prior today’s date there were some procedural issues that were covered, and there are certain things that are not allowed to be presented in the transcript, so there’s nothing you should infer from that in any way.
This entire exchange is absent from the transcript of the trial which begins in the record at page 613. Although-page 617 outlines the actions in the trial court prior to the calling of the first witness, no_J_2¡¡mention is made of any pretrial hearing or arguments on this issue. We would also note that the defense motion for appeal and designation of the record (Record 559) designated the “entire transcript of each hearing herein”. A criminal defendant has a right to complete transcript of the trial proceedings, particularly when counsel on appeal was not counsel at trial (as in the case sub judice). State vs. Landry, 97-0499 (La.06/29/99)[,] 751 So.2d 214.

There was no confusion to the jury x-egarding the defendant’s transcribed interview. Furthermore, there is no confusion with this coui’t. The defendant is correct in his assertion that the trial transcript for the day he raised the question of whether the crime alleged in the original bill of information was inadmissible “other ci'imes evidence” is not in the record before this court. The objection to the admission of the interview was raised on May 22, 2011, at the conclusion of voir dire, which is also not in the record. Although the exclusion of this portion of the transcript is an error, we find it is a harmless error. The defendant’s argument can be clearly discerned, both from the minute entry and from the transcript of the trial court’s ruling, wherein the defendant did have an opportunity to state his position. The trial court had retired and taken the matter under advisement. Two hours later, the trial court returned with a ruling on the issue of the offense alleged in the original count three and had concurrently redacted other irrelevant information from the interview that was prejudicial to the defendant.

There is no merit to this argument.

ASSIGNMENT OF ERROR NUMBER THREE

The defendant complains of objections that were made and argued to the trial court outside the presence of the jury that were recorded but not transcribed. Specifically, the defendant refers to objections made in the record at pages 730, 784, 786, 789, and 801. However, these portions of the record have been supplied to the defendant, the state, and this court as a result of a request for | ⅞1 supplementation of the record filed by the defendant. The defendant alleges no error otherwise. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

The defendant argues that the word “principal” repeatedly used during jury instructions “unduly focused the jurors on that aspect of the state’s case and confused the issues with regard to the elements of the crime that the state had to prove beyond a reasonable doubt.” While discussing the jury instructions to be given, defense counsel objected to the use of the word “principal” being used each time the trial court would tell the jury “what elements must be proven[.]” The defendant notes that the word “principal” was used six times during the reading of the definition of the word and the applicable law concerning principals and four times when the trial court discussed the elements of armed robbery.

The trial court used the words “perpetrator or” each time the word “principal” was used when reading the definitions of robbery and robbery with the use of a firearm. Considering that the defendant’s defense was that although he was present during the robberies, he was unaware of Mr. Porter’s intentions or that he carried a firearm, the words used were necessary instructions to the jury. Moreover, the defendant does not show in what way or manner the repeated use of the word was confusing to the jury or prejudicial to the defendant. There is no merit to this assignment.

ASSIGNMENT OF ERROR NUMBER FIVE

At trial, the defendant objected to the publication of a photograph of the three co-defendants. He argues the picture was not relevant and the only purpose the state had for giving the picture to the jury was to alienate the jury against him by showing him in a bad light. The defendant argues that had the three eo-_jdefendants22 been wearing suits or football uniforms, the state would not have shown it to the jury. Louisiana Code of Evidence Article 401 provides that “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

The picture was relevant in this case. Each victim could not identify the robbers because their faces were covered. However, each of the victims’ described their assailants’ heights as a means of identifying which of the co-defendants were robbing them, which one had the gun, and which co-defendant remained in the Envoy. Ms. Wisby testified that the tallest of the three men appeared to be the boss of the group, and Mr. West testified that the shortest one held the gun. The picture shows three young men, dressed in jeans and t-shirts, standing shoulder to shoulder. The picture also shows the range of them respective heights with Mr. Porter being the tallest of the three and Mr. Darden the shortest. Louisiana Code of Evidence Article 403 provides that relevant evidence may be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.”

The defendant has failed to show how the probative value of the picture was outweighed by the danger of prejudice or that the picture caused confusion at trial or misled the jury. There is no merit to this assignment of error.

\9,ASSIGNMENT OF ERROR NUMBER SIX

The defendant contends his sentence of fifteen years at hard labor without the benefit of parole, probation, or suspension of sentence imposed on the conviction for first degree robbery is excessive under the circumstances of his case. The defendant does not complain of the excessiveness of the fifteen year sentences imposed on the two convictions for armed robbery with use of a firearm.

Louisiana Revised Statutes 14:64.1 provides that “[w]hoever commits the crime of first degree robbery shall be imprisoned at hard labor for not less than three years and for not more than forty years, without benefit of parole, probation or suspension of imposition or execution of sentence.” The defendant received less than one half of the sentence he could have received.

This court has previously discussed the standard for reviewing excessive sentence claims:

[Louisiana Constitution Article] 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. 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. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La.2/1/02), 808 So.2d 331 (citations omitted).

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, 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. While a comparison of sentences imposed for similar crimes l^may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” 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. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, unit denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted).

Initially, we note that the defendant did not object to the sentences following imposition. Neither did the defendant file a motion to reconsider the sentences. Failure to file a motion to reconsider the sentence generally precludes a defendant from complaining about the excessiveness of a sentence on appeal. La.Code Crim.P. art. 881.1(E). See also State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La.1/31/03), 836 So.2d 59. However, this court has reviewed claims of excessiveness where no objection was made and no motion to reconsider sentence filed. See, e.g., State v. Johnlouis, 09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La.6/25/10), 38 So.3d 336, cert. denied, — U.S. -, 131 S.Ct. 932, 178 L.Ed.2d 775 (2011). Accordingly, we will review the defendant’s claim as a bare claim of exces-siveness.

At the sentencing hearing, the trial court noted:

While you were found less culpable in count one than your counterpart, Mr. Porter, who entered into a plea agreement, the Court still considers this series of criminal activities to be, all the same, part of the same plan; and I intend to impose the same sentence.
It is with difficulty I come to that, because I now regret agreeing to the 15 years on Mr. Porter. But I think that since the district attorney entered into that agreement and thought that that was enough, considering all the pain and fear that you put these victims through, that it could have been more than that. But based on the fact that you were found less culpable slightly than Mr. Porter, I see no reason why you should not be sentenced to the same sentence.
laAnd, therefore, at this time, on each count, one, two, and three, you are sentenced to serve 15 years on each count, concurrent one with the other, with the Department of Corrections, at hard labor, which the entirety of this sentence is without benefit of parole, probation, or suspension of sentence.

In State v. Bourg, 09-1291 (La.App. 3 Cir. 6/30/10), 42 So.3d 1079, unit denied, 10-1702 (La.2/4/11), 56 So.3d 990, this court did not find a fifteen year sentence imposed on a conviction for first degree robbery to be excessive. The defendant had been charged with armed robbery but convicted of first degree robbery. This eourt noted that the defendant had an extensive prior criminal history, unlike in the current case. However, this court also noted a fifth circuit case wherein the defendant was a first time felony offender and received eighteen years for the offense of first degree robbery. See State v. Washington, 05-210 (La.App. 5 Cir. 10/12/05), 917 So.2d 488. In Washington, there was no proof the defendant had a weapon during the robbery, he had a history of mild mental retardation, and the victim was never physically harmed or even touched during the robbery.

We do not find the trial court abused its considerable discretion when it sentenced the defendant to fifteen years at hard labor for the offense of first degree robbery considering the circumstances of the case.

CONCLUSION

We hereby affirm the two convictions for armed robbery with use of a firearm and the conviction for first degree robbery. We also affirm the sentence of fifteen years at hard labor imposed on the conviction for first degree robbery. However, we hereby vacate the defendant’s sentences for armed robbery with use of a firearm and remand the case for resen-tencing in accordance with La.R.S. |2⅜14:64 and 14:64.3. The trial court is instructed to specify the portion of the sentences enhanced pursuant to La.R.S. 14:64.3.

CONVICTIONS AFFIRMED; SENTENCE FOR FIRST DEGREE ROBBERY AFFIRMED; SENTENCES FOR ARMED ROBBERY VACATED; REMANDED FOR RESENTENCING.


source: Caselaw Access Project

author: CONERY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Phillip A. COOKS.
    No. 12-1103.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.

      John Foster DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Todd Samuels Clemons, Todd Clemons & Associates, Lake Charles, LA, for Defendant/Appellant, Phillip A. Cooks.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   CONERY, Judge.

[,In this criminal case, Defendant, Phillip A. Cooks, plead guilty pursuant to an “open ended” plea agreement to manslaughter for causing the death of Robert Cannon in violation of La.R.S. 14:31. Defendant was sentenced on January 11, 2011, to the maximum sentence of forty years at hard labor, to be served without benefit of probation, parole, or suspension of sentence, with credit for time served.

Defendant filed a timely pro se Motion to Reconsider Sentence. Additionally, the trial court granted Defendant’s new counsel permission to file a Supplemental Motion to Reconsider Sentence. A hearing on both motions was held on December 7, 2011, after which the trial court re-imposed the original forty year sentence of imprisonment with the originally imposed conditions.

On appeal, Defendant first asserts that the maximum sentence of forty years imposed by the trial court was excessive; second, he asserts the trial court failed to consider the mitigating factors required by La.Code Crim.P. art. 894.1; and third, he asserts his imprisonment would create a hardship not only for himself, but for his mother who suffers from significant medical difficulties. For the following reasons, we affirm the re-imposition by the trial court of the forty year maximum sentence for manslaughter with the originally-imposed conditions.

FACTS

On or about August 3, 2009, fifty-eight year old Robert Cannon was beaten to death in his home in Lake Charles, Louisiana. Mr. Cannon’s body was found on August 5, 2009, when his landlord noticed that Mr. Cannon’s newspapers and mail had not been retrieved. After talking with the landlord and other neighbors, the Lake Charles Police Department (LCPD) focused their investigation on Defendant, who lived across the street with his girlfriend, Antonia M. Mills.

| ¡.The couple was living with Ms. Joan Mills, Antonia’s sister. Ms. Joan Mills informed investigators that Defendant and Mr. Cannon were friends, and the pair played chess together. According to Ms. Mills, on the night of August 3, 2009, Defendant brought Mr. Cannon’s chess board home with him.

During the night of August 3, 2009, after returning from Mr. Cannon’s home, Defendant left Ms. Mills’ home and rented a room in a Lake Charles motel. He stayed in the hotel for a couple of days and then fled the area, obtaining a ride to Houston, Texas. Detectives with the LCPD contacted Defendant in Houston via his cell phone. During the initial cell phone conversation with detectives, Defendant told them he would come back to Lake Charles to discuss Mr. Cannon’s death.

Subsequent calls between the LCPD and Defendant resulted in Defendant crying and refusing to return to Lake Charles because he was afraid he would be arrested for murder. Defendant then changed his phone number and ended his contact with the LCPD.

After phone contact with Defendant was terminated, the detectives of the LCPD sought and obtained a material witness warrant for Defendant. The warrant was sent to Houston and entered into the National Crime Information Center (NCIC). On September 21, 2009, after the entry of the warrant into the NCIC system, Defendant contacted Sergeant Harrell of the LCPD, seeking information on whether he was still wanted for questioning.

Sergeant Harrell informed Defendant of the outstanding warrant. Defendant told Sergeant Harrell he would return to Lake Charles and contact him when he arrived in the city. Defendant never made the promised contact. Two days later, Defendant and his girlfriend were arrested by the LCPD in a Lake Charles motel.

|sAfter his arrest, Defendant initially denied any involvement in the death of Mr. Cannon. Defendant then broke down and confessed his involvement in Mr. Cannon’s death. In describing his version of what took place, Defendant characterized Mr. Cannon as “his only friend” in the complex where both were living. Defendant admitted he had been drinking when he went to Mr. Cannon’s home to ask for a cigarette. After he gained Mr. Cannon’s attention by knocking on the window, Defendant said Mr. Cannon invited him into the home. According to the Defendant, the two men were sitting on the Mr. Cannon’s bed, smoking, when Mr. Cannon reached over to touch Defendant’s shoulder with his hand, an action perceived by Defendant as a sexual advance.

Defendant later admitted to the investigator that Mr. Cannon did not say anything or touch Defendant in any way that could have been perceived as a sexual advance. He admitted to cursing Mr. Cannon and hitting him with a closed fist “four or five times.” Mr. Cannon slumped over his bed and fell over with his face or head on the bedrail.

Seeing Mr. Cannon in this position, Defendant panicked and ran from the Cannon home. Prior to his departure, Defendant admitted he saw Mr. Cannon was bleeding and heard him yell, “Hey, Hey,” but Defendant did nothing to render assistance to the victim. Defendant stated he believed Mr. Cannon was still alive when he locked the door of Mr. Cannon’s apartment and left the scene.

The coroner’s examination of the body of Mr. Cannon revealed he died as a result of blunt force injuries to the head. In addition to the head trauma, there were numerous scrapes, bruises, and skin tears about his head, on his abdomen, on both arms, and his left leg. Mr. Cannon also sustained a chip “fracture” on his forehead and a fracture of the upper portion of his left humerus, the upper arm bone. The |4coroner’s report indicated the time of death was during the evening hours of August 3, 2009.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

ASSIGNMENTS OF ERROR

Defendant claims his re-imposed forty-year maximum sentence for manslaughter is excessive. Defendant contends the trial court failed to consider three of the factors of La.Code Crim.P. art. 894.1: 1) there were grounds to justify his behavior; 2) he did not intend the serious harm that resulted; and 3) imprisonment would be a hardship to himself and Demetria Cooks, his mother, who was allegedly dependent on him for care and who has significant medical problems.

Defense counsel also contends the Pre-sentence Investigation Report (PSI) contains inaccurate/inconsistent information, and four of the sentencing factors pursuant to La.Code Crim.P. art. 894.1(B) favor Defendant:

(25) There were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense.
(29) The defendant’s criminal conduct was the result of circumstances unlikely to recur.
(31) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
| ⅞(33) Any other relevant mitigating circumstances.

LAW AND DISCUSSION

Because his guilty plea to manslaughter was “open-ended,” Defendant was not sentenced pursuant to an agreed-upon sentence under La.Code Crim.P. art. 881.2. Thus appellate review of his sentence is not prohibited. State v. Pickens, 98-1443 (La.App. 3 Cir. 4/28/99), 741 So.2d 696, writs denied, 99-1577 (La.11/5/99), 751 So.2d 232, 01-2178 (La.4/19/02), 813 So.2d 1081.

Defendant and his attorney also filed proper motions to reconsider his sentence pursuant to La.Code Crim.P. art. 881.1, stating specific grounds therefor. State v. Vollm, 04-837 (La.App. 3 Cir. 11/10/04), 887 So.2d 664. Thus, Defendant is not precluded from objecting to his sentence on appeal. State v. Davis, 06-922 (La. App. 3 Cir. 12/29/06), 947 So.2d 201.

Trial Court’s Sentence

This court’s review of whether or not an excessive sentence has been imposed on a defendant by- the trial court consists of two factors: 1) a determination of whether the sentence is unconstitutionally harsh and, thus, violates La. Const, art. I, § 20; and 2) a determination of the trial court’s consideration and weight given to the relevant sentencing factors established in La.Code Crim.P. art. 894.1. State v. Smith, 99-606 (La.7/6/00), 766 So.2d 501.

Louisiana Constitution, Article 1, § 20

Louisiana Constitution Article 1, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” In order for a sentence to be considered excessive, 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’s discretion is vast 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, 00-165 (La.6/30/00), 765 So.2d 1067. Thus we must consider as the only relevant question, 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).

We are mindfúl, in a review of a sentence imposed, that the trial court “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” Id. at 958.

Louisiana Code of Criminal Procedure Article 894.1

In State v. Decuir, 10-1112, pp. 2-3 (La.App. 3 Cir. 4/6/11), 61 So.3d 782, 785, (quoting State v. Scott, 36,763 p. 3 (La.App. 2 Cir. 1/29/03), 836 So.2d 1180, 1182), this court explained:

Louisiana Code of Criminal Procedure Article 894.1 contains a series of factors to be considered by the trial court in sentencing a defendant. In considering these sentencing guidelines, the trial court must “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” La.Code Crim.P. art. 894.1(C). However, to comply with La. Code Crim.P. art. 894.1(C), the trial court “need not articulate every circumstance or read through a checklist of items.” State v. Anderson, 95-1688, p. 4 (La.App. 3 Cir. 5/8/96), 677 So.2d 480, 483. Still, the record should establish that the trial court adequately considered the codal guidelines in particularizing a defendant’s sentence. Id. That is to say, “the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1.” State v. Ellis, 42,520, p. 23 (La.App. 2 Cir. 9/26/07), 966 So.2d 139, 152, writ denied, 07-2190 (La.4/4/08), 978 So.2d 325.
|7The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dallas, 36,397 (La.App.2d Cir.11/6/02), 830 So.2d 1113. The articulation of the factual basis for a sentence is the goal of La.Code Crim.P. art. 894.1, not rigid or mechanical compliance with its provisions. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Strange, 28,466 (La.App.2d Cir. 6/26/96), 677 So.2d 587; State v. Hudgins, [519 So.2d 400 (La.App. 2d Cir. 1988), writ denied, 521 So.2d 1143 (1988) ].

However, “[tjhere is no requirement that specific matters be given any particular weight at sentencing.” Id. (quoting Ellis, 966 So.2d at 153).

This court has further opined that the trial court may consider the substantial benefit a defendant received from a plea agreement when it results in a substantial reduction in his potential incarceration. State v. Williams, 02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095. When a defendant has received a reduction in the potential length of incarceration, the trial court’s discretion to impose the maximum sentence is enhanced. State v. Edwards, 07-1058 (La.App. 3 Cir. 3/12/08), 979 So.2d 623, writ denied, 08-2693 (La.9/18/09), 17 So.3d 391.

Plea Hearing on September 27, 2010

In this case, Defendant’s sentencing exposure was reduced by the State’s dismissal of a separate charge of Possession of a Controlled Dangerous Substance II (cocaine). Additionally, the State agreed not to file a habitual offender bill against Defendant in exchange for his plea, despite his two prior felony convictions and the severity of the beating of Mr. Cannon. If the State had not chosen to dismiss the drug charge and had chosen to file the habitual offender bill, both part |sof the plea agreement, Defendant was facing a mandatory sentence of life imprisonment on the manslaughter charge pursuant La. R.S. 15:529.1(A)(3)(b) and an additional maximum of five years on the cocaine charge.

During the plea colloquy on September 27, 2010, Defendant was apprised by the trial court of the possible consequences, including the increase of the maximum sentence that might be imposed by the court had the State chosen to file a habitual offender bill and not dismissed the additional drug charge. The discussion on the record reflects that the State was only certain of one prior felony conviction at the time of the Defendant’s plea. The colloquy between the trial court and the Defendant reflects that Defendant was so informed and states as follows:

BY THE COURT:
Q The state is agreeing not to file an habitual offender bill, which means that the penalty you face in this case will only be 40 years. Okay. That’s the maximum I can give you. But in the future if you get convicted of another one — this will count as one. The other one can count as another one. That next one will be your third. And it severely increases the penalty that you can be exposed to for that particular crime. For instance, this case would be 40 — zero to 40. If you were a second offender, the minimum you could get would be 20 and the maximum you could get would be 80. It is half the maximum to twice the maximum. And as a third offender, it is even greater than that. Okay?
A Yes, sir.

Defendant thus declared on the record his understanding of the benefit he received after the State abstained from filing the habitual offender bill and the State’s agreement to dismiss the pending drug charge.

In fact, the PSI introduced at the sentencing hearing showed Defendant had another prior felony. Had Defendant been adjudicated a habitual offender, this additional felony would have made him a third offender facing a mandatory life sentence under La.R.S. 15:529.1(A)(3)(b). In short, Defendant received a | substantial benefit when he accepted the State’s plea offer to enter an open-ended guilty plea to the manslaughter charge in exchange for the State’s agreement to dismiss a pending felony cocaine charge and not file a multiple offender bill against him.

Original Sentence of January 11, 2011

At Defendant’s original sentencing on January 11, 2011, the trial judge set forth the main factors he considered in imposing the maximum forty-year sentence. At the time of the original sentencing, the trial court had the benefit of the PSI, which detailed Defendant’s prior criminal history.

THE COURT:
Okay. But I’m particularly concerned, Mr. Cooks, with your past history. It began when you were a very young man. And you didn’t do very well on probation, you kept getting into trouble: theft, assault. Then you had a robbery in '99, which I think — it looks like it was dismissed. I gather what that means is that you probably turned 18 before it changes [sic]. I’m not sure. But in any event, once you became an adult, then you continued with that. You were convicted of robbery in 2000, put on probation, and then that probation was then revoked. You had a felony conviction for possession of drugs. And you had a possession of drugs here in this court which was dismissed in return for your plea agreement.
Any lesser sentence, to me, would seriously deprecate the seriousness of this crime. And considering your record, I think it’s entirely appropriate that you receive the maximum sentence provided by law, which is 40 years with the Department of Corrections, and that’s what I’m going to sentence you to.

Hearing on the Motions to Reconsider Sentence

In the Motion to Reconsider Sentence, defense counsel contended that the trial court was not aware of Defendant’s personal history at the time of the original sentencing. After granting and holding a hearing on the pro se and counsel-filed Motions to Reconsider, the record reflects the trial court was fully aware of all of the factors argued by Defendant and his new counsel in support of a sentence less |10than the forty-year maximum imposed at the original sentencing on January 11, 2011.

In reviewing a sentence for excessiveness, the Louisiana Supreme Court further instructs that an appellate review of a sentence should include the following three factors: 1) the nature of the offense, 2) the circumstances of the offender, and 3) the sentences imposed for similar crimes. Smith, 766 So.2d 501.

The nature of the crime:

The following factual basis was set forth by the State at the guilty plea proceeding:

This occurred between August 3rd and August 4th, 2009. Cooks, who was 26 years of age at the time, beat Robert Cannon, who was 58 years of age at the time, to death.
The autopsy report — in the autopsy report the coroner concluded that Cannon died as a result of blunt force injuries to the head as there were numerous scrapes, bruises, and skin tears about his head and on his abdomen, both arms, and his left leg.
On September the 23rd after receiving some anonymous tips and — the Lake Charles city police had received some anonymous tips, and he was — had left the area shortly after this happened. They were able to find Cooks on a material witness warrant as he was in a hotel in Lake Charles. He gave a videotaped statement to the city police.
In his statement he said that he believed that Cannon had made sexual advances toward him. This infuriated him so much that he began to hit him about the face. Tried to get up, he hit him again numerous times, approximately four or five times; and he fell across the bed and was bleeding. He then left Cannon’s home and fled to Houston.

The nature and background of the offender:

Prior to the January 11, 2011 sentencing, the trial court reviewed the PSI. It included Defendant’s conviction in 2000 for robbery, for which he was sentenced to probation. Defendant’s probation was revoked, and, thereafter, Defendant was sentenced to four years in the Texas Department of Justice. The PSI also included ^Defendant's conviction in 2004 for possession of drugs for which he was sentenced to four years in the Texas Department of Justice. Thus, with the manslaughter conviction, Defendant was classified as a third offender. The trial court also noted, in his reasons for sentencing, Defendant’s convictions for several misdemeanor offenses. At the time of the incident, Defendant was twenty-six years old and was twenty-eight at the time of the initial sentencing.

As to his personal background, Defendant’s mother, Ms. Dimetria Cooks, testified at the hearing on the Motion to Reconsider Sentence that between the ages of eight and ten, Defendant was diagnosed by a psychiatrist as bipolar and as having Attention Deficit Hyperactive Disorder. He was also admitted into psychiatric hos-pitáis for short periods of time. Defendant’s mother further testified that she received Social Security Disability checks for Defendant until he was seventeen and that up until that time Defendant was on medication for his diagnosed disorders.

Although Ms. Cooks testified as to the treatment received by Defendant as a teenager, she was unable to provide the trial court with any documentation to confirm said treatment. Defendant confirmed during his testimony that as an adult he did not seek treatment or take any medication for any of his previously diagnosed conditions, as he claimed he was functioning well.

In addition, Ms. Cooks testified that Defendant was molested as a child by her brother, Defendant’s uncle. Defendant and his counsel urge that the molestation contributed to his alleged perception of the actions of Mr. Cannon at the time of the incident. The record is devoid of any evidence that Defendant’s perception of Mr. Cannon’s actions was based on Defendant actually having | ^knowledge of any prior homosexual behavior by Mr. Cannon. In fact in the PSI, Defendant also admitted he may have misinterpreted Mr. Cannon’s action.

The PSI also contained an interview with Mr. Cannon’s twin brother, who denied the allegation that Mr. Cannon was a homosexual. The accusation of homosexual behavior by Mr. Cannon was also disputed in a letter to the trial court from Mr. Cannon’s cousin, which was admitted into evidence. The only other claim that Mr. Cannon was a homosexual was an allegation made by Defendant’s girlfriend, Antonia M. Mills, in the PSI. However, she was not called to testify at either the original sentencing or the hearing on the Motions to Reconsider Sentencing. Defendant’s claim that his perception of the situation constitutes grounds to justify his behavior has no merit. Likewise, his claim that he did not intend the serious harm that occurred is belied by the coroner’s report and also has no merit.

In addition to defending his actions in beating Mr. Cannon, Defendant also claimed the forty-year sentence would create a hardship on his mother, Ms. Cooks, who was living in Houston, Texas, and suffered from a number of serious medical conditions. Although Ms. Cooks has six other children, she testified that Defendant was the one she depended on for help and support. However, when Ms. Cooks was cross-examined by the State about her care while Defendant was living in Lake Charles, she admitted a younger daughter took care of her.

Ms. Cooks testified that she receives Social Security disability benefits. She also testified that Defendant occasionally brought her small amounts of money, the last in the amount of $40.00. Prior to Defendant turning seventeen, as previously discussed, she also received Social Security disability payments for Defendant. She also claimed she received some back child support from Defendant’s father. 11sDefendant was twenty-eight at the time of sentencing, so any monies received by Ms. Cooks on behalf of Defendant had long since stopped. There was no credible evidence that Ms. Cooks was dependent on Defendant in any way. The Defendant’s argument that the trial court failed to consider that his imprisonment would be a hardship to his mother, who was allegedly dependent on him for care and support, is also without merit.

Pursuant to La.Code Crim.P. art. 894.1, the trial court is required to make a record that reflects that the guidelines of the article have been adequately considered. It is clear from the record before this court the trial court heard the evidence and argument presented by Defendant and his counsel and granted it the consideration and weight the trial court thought it deserved.

The sentence imposed for similar crimes by the same cowri and other courts:

In Decuir, 61 So.3d 782, the defendant, a forty-four-year-old woman, who was a first offender, pled guilty to the reduced charge of manslaughter and was sentenced to thirty-five years at hard labor. The defendant, based on allegations of abuse, shot her husband seven times in the head while he was sleeping. On appeal, this court found the sentence was not excessive.

In State v. McGhee, 10-583 (La.App. 3 Cir. 12/8/10), 52 So.3d 318, writ denied, 11-62 (La.5/20/11), 63 So.3d 973, the defendant was convicted of manslaughter and sentenced to forty years at hard labor. During an altercation at a bar, the defendant shot and killed a bystander. The defendant was twenty-six years old at the time of the offense, with one prior offense for the possession of cocaine. On appeal, this court found the sentence was not excessive.

In State v. Jones, 05-735 (La.App. 5 Cir. 2/27/06), 924 So.2d 1113, writ denied, 07-151 (La.10/26/07), 966 So.2d 567, the defendant pled to the reduced |H charge of manslaughter and was sentenced to forty years at hard labor. The defendant was involved in an ongoing dispute with the victim. The defendant was carrying a gun when he encountered the victim. The victim had a knife. An altercation ensued. The defendant claimed the victim pulled the knife on him, and the defendant shot the victim, resulting in the victim’s death. On appeal, the defendant asserted an excessive sentence claim, and the court held in pertinent part:

Jurisprudence reflects that the maximum penalty for manslaughter has been imposed in similar circumstances. In State v. Williams, [03-1537 (La.App. 3 Cir. 6/9/04), 875 So.2d 1043, writ denied, 04-1951 (La.12/17/04), 888 So.2d 864,] the defendant was charged with second degree murder and pled guilty to manslaughter pursuant to a plea bargain. At the plea hearing, the State presented the following facts: The defendant and the victim, who were involved in an ongoing dispute, became involved in a confrontation. The defendant shot the victim with a twelve-gauge shotgun at point-blank range. The victim died and defendant was sentenced to forty years imprisonment at hard labor. The Third Circuit found no manifest abuse of sentencing discretion by the trial judge.
In State v. Lanieu, [98-1260 (La.App. 1 Cir. 4/1/99), 734 So.2d 89, writ denied, 99-1259 (La.10/8/99), 750 So.2d 962,] the defendant was charged with second degree murder, but was found guilty by a jury of the responsive verdict manslaughter and sentenced to the maximum of forty years at hard labor. In Lanieu, the defendant shot the victim in the head twice after an argument wherein the men cursed at each other in front of the defendant’s home. After the shooting, the defendant drove off in the victim’s car and dumped the victim’s body in a field. At sentencing, the trial court noted that the defendant was a nineteen-year-old first felony offender with no adult criminal history. The First Circuit concluded that the sentence imposed was not grossly disproportionate to the severity of the crime.
In State v. Maxie, [594 So.2d 1072 (La.App. 3 Cir.1992), unit denied, 598 So.2d 372 (La.1992),] the defendant and the victim were acquaintances who lived in the same apartment complex. The two men had a series of confrontations. The victim and the defendant argued on two separate occasions before the fatal shooting. The victim was shot four times, with the first bullet shattering a bone in the victim’s leg and the three others entering the victim’s chest cavity. During the first argument, the victim threatened the defendant with a knife and then after the shooting, there was a knife found in the area 11fiof the victim’s body. Although a policeman testified that he found an opened knife, other witnesses provided they saw a closed knife near the victim’s body. Defendant was charged with second degree murder, but was found guilty of manslaughter and sentenced to the statutory maximum at the time, which was twenty-one years. The trial judge noted in written reasons for sentencing that the defendant was twenty-two years old with a steady employment history and had never been convicted of another crime. The Third Circuit determined this sentence was not excessive, noting that the defendant shot the victim four times over an alleged and unreported theft when the defendant could have avoided the final confrontation with the victim, but instead responded to the victim’s actions by arming himself with a rifle. The court also noted that although defendant knew the first bullet struck the victim, he continued to pull the trigger at least three more times.

Id. at 1118-19 (footnotes omitted).

The jurisprudence fully supports the maximum sentence under the circumstances of this case.

Re-imposition of the FoHy-Year Maximum Sentence

The trial court, after hearing the testimony and argument of counsel, re-imposed the original forty-year sentence on Defendant and stated:

I thought 40 years was fair before. I certainly listened to the testimony today. I heard some things that people, you know, want to utilize in today’s world as excuses or blames of what you call “mitigation.” I am sorry that Mr. Cooks was molested as a child. I didn’t hear anything, however, that would lead me to believe that there was the reason why he did what he did. I didn’t hear a psychologist tell me that he was prone to do those kinds of actions, to — my recollection is that he severely beat Mr. Cannon and then maybe left. I don’t remember exactly all of the facts; but I remember that it was a pretty severe beating that he received.
And I thought that he got the benefit, in many respects, of a good deal in that the state could have filed an habitual offender bill which would have substantially increased his exposure under the circumstances.
And the Court has in the past under similar type situations given folks 50 and 60 years for a manslaughter when they were, in fact, habitual offenders similarly situated as Mr. Cooks.
So, in summary I have heard nothing which would change my mind from the sentence previously imposed.
11ñSo, I have already granted the motion for reconsideration. So, now I will, again, resentence the defendant to 40 years with the department of corrections, give him credit for time served.

The reasons stated by the trial court for re-imposing the sentence of forty years make it clear that the court considered all of the mitigating factors raised by Defendant under La.Code Crim.P. art. 894.1. After due consideration of the evidence and Article 894.1 factors, the trial court found neither the diagnosis in his teenage years, his alleged molestation as a child, or any testimony of the hardship his imprisonment might impose on his mother, Ms. Cooks, served to mitigate Defendant’s brutal killing of an innocent man, whose only mistake was to befriend Defendant. We agree with the trial court that under the facts of this case any lesser sentence would “deprecate the seriousness of this crime.”

DISPOSITION

Defendant’s re-imposed sentence for manslaughter of forty years with prior conditions is affirmed.

AFFIRMED.