author: PITMAN, J.

text:
    Belinda STOREY, Plaintiff-Appellee v. Joe WEAVER d/b/a Weaver’s Roofing, Defendant-Appellant.
    No. 49,027-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2014.

      Joe Weaver, Pro Se.
    Law Offices of Chris L. Bowman, by Chris L. Bowman, Jonesboro, for Appellant.
    Campbell, Campbell & Marvin, by John C. Campbell, Minden, for Appellee.
    Before CARAWAY, LOLLEY & PITMAN, JJ.
   PITMAN, J.

| Appellant, Joe Weaver, d/b/a Weaver’s Roofing, appeals the trial court’s judgment in favor of Appellee, Belinda Storey, awarding her damages for breach of contract. For the following reasons, we affirm.

FACTS

On August 26, 2009, Mr. Weaver and Ms. Storey, the owner of a strip mall, entered into a contract stating that Weaver’s Roofing would restore the roof of the building for $12,500.

On November 15, 2010, Ms. Storey filed a petition for breach of contract and damages, alleging that Mr. Weaver did not satisfactorily install a flat roof on the building in that it leaked because Mr. Weaver did not use “good quality materials” and did not “install and restore the roof in a workmanlike manner.” Ms. Sto-rey requested costs of $20,000 to properly restore the roof and compensatory damages for the damage done to the interior of the building as a result of the defective roof.

A bench trial was held on March 28, 2013. Mr. Weaver testified that he owns a roofing business and has been roofing for 28 years. He explained he and Ms. Storey entered into a written contract in which they agreed that he would restore the roof on a building owned by Ms. Storey by removing and replacing the roof on the part of the building that housed a tattoo parlor and by installing a rubber coating on the rest of the building’s roof. Mr. Weaver explained that he applied a rubber roof on the tattoo parlor and that on the main building’s roof, he removed the existing gravel, power washed the roof, let the roof dry and then put down new asphalt and gravel. He testified that he gave Ms. Storey a one-year workmanship warranty. Several months after he finished the roofing job, however, he received a call | «.about a leak in the tattoo parlor, and he fixed the leak. Mr. Weaver further testified that he also received a call from another tenant complaining of a leak in the Terminix store. Upon examination, he discovered that the leak was not coming from the roof, but from cracks in the brick parapet wall, so he did not make any repairs to the roof. Mr. Weaver stated that he advised Ms. Storey about how to seal the bricks to stop the leak and also gave her a price for replacing ceiling tiles.

Ms. Storey testified that she owned a strip mall that housed three tenants in the main building, i.e., Terminix, a beauty shop and a 99 Cents Store, and a tattoo parlor in an attached building. She explained that the roofs of the tattoo parlor and the main building leaked often; so, after receiving bids from three roofers, she chose Mr. Weaver’s bid of $12,500. She testified that Mr. Weaver was to install a 10-year roof on the main building with asphalt over the existing tar and gravel roof and install a 15-year rubber roof on the tattoo parlor. She stated that, following completion of the roofing job, she received reports from all four tenants of the building concerning leaks and was advised by the tenants that they had also contacted Mr. Weaver. Ms. Storey also stated that she contacted another roofer, Tim Ashton, to examine the roof and that Mr. Ashton informed her that no work had been done on the main building and that only the roof of the tattoo parlor had been replaced. Ms. Sto-rey then hired Mr. Ashton to patch the roof for $2,950. She stated that she contacted a third roofer, Mr. Speer, to examine the roof and he confirmed that it appeared the roof of the tattoo parlor had been replaced, but that no work had been done on the main building except the patch work performed by Mr. |sAshton. She explained that the roof continued to leak, so she hired Edward Coleman of Roof Recovery and Restoration to replace the roof of the main building (not including the tattoo parlor) for $19,622. She testified that there have been no leaks since Mr. Coleman replaced the roof. She further testified that she believes Mr. Weaver did not fulfill their contract and did not install the roof in a workmanlike manner.

Ricky Miller testified that he worked with Mr. Weaver on repairing the roof and detailed that they “pulled the gravel back, power washed all the sand and ... dirt.... Retarred the whole roof and put the gravel back.” He explained that once the roof was repaired it looked “[l]ike nothing ever happened” to the roof.

Following the trial, the trial court stated that the record would remain open until May 31, 2013, in order that depositions could be filed. The depositions of Edward Coleman and Peggy Herman were subsequently filed in the record on June 4, 2013.

In his deposition, Mr. Coleman testified that he has been in the commercial roofing business for 11 years and that he was contacted by Ms. Storey about reroofing a building. He stated that he examined the roof and noted that it was “an extremely aged roof that had a couple of small areas where it had been patched.” He also stated. that the roof of the tattoo parlor appeared to have been repaired, but that the roof of the main building had not been completely repaired. He further stated that he reroofed the entire roof, except for a portion that had a “rolled roofing type of roof’ on it. He opined that, if Mr. Weaver had completely reroofed the entire building, his (Mr. Coleman’s) services would not have been necessary.

|4Ms. Herman testified in her deposition that she leased a space in the building and that the roof of her beauty shop leaked when it rained. She stated she did not see Mr. Weaver replace the roof of the entire building and that the roof continued to leak after it was allegedly replaced. She explained that Ms. Storey hired Mr. Ash-ton to repair the roof and then hired Mr. Coleman to replace the roof, and it was only after Mr. Coleman replaced the roof that the leaks stopped.

In its opinion of June 21, 2013, the trial court found that Mr. Weaver is liable for damages for his failure to perform his obligation under the contract with Ms. Sto-rey. It stated that Mr. Weaver’s “failure to perform resulted from both his nonperformance and defective performance.” The trial court assessed damages in favor of Ms. Storey for the $12,465.45 that she paid to Mr. Weaver for performance of the obligation that he failed to perform, plus legal interest from the date of demand and court costs. A judgment was filed on July 1, 2013.

Mr. Weaver appeals the judgment of the trial court.

DISCUSSION

Consideration of Depositions

In his first assignment of error, Mr. Weaver argues that the trial court erred in considering the deposition testimony of Mr. Coleman and Ms. Herman. Mr. Weaver contends that the depositions were not timely filed because the record was held open only until May 31, 2013, but the depositions were not filed until June 4, 2013. He also alleges that the record remained open only for the purpose of filing Mr. Coleman’s deposition.

Ms. Storey argues that the trial court did not commit reversible error [ fiin considering the deposition of Mr. Coleman. She notes that the trial court granted counsel 60 days to take his deposition because there had been difficulty in serving Mr. Coleman and that his deposition was taken within the 60-day period. Ms. Storey also contends that proper notice of Ms. Herman’s deposition was filed on April 17, 2013, that Mr. Weaver was served with that notice and that he did not object.

The decision to hold open a case for the production of additional evidence rests within the discretion of the trial judge, and this decision will not be disturbed on appeal unless manifestly erroneous. La. C.C.P. arts. 1631 and 1632; Harris v. West Carroll Parish Sch. Bd., 605 So.2d 610 (La.App. 2d Cir.1992), writ denied, 609 So.2d 255 (La.1992).

The trial court acted within its discretion to hold the case open for the filing of the deposition of Mr. Coleman and to consider depositions filed after the deadline set by the trial court. The trial court’s action to consider the depositions of Mr. Coleman and Ms. Herman was not manifestly erroneous. Furthermore, Mr. Weaver did not contemporaneously object to the filing of Ms. Herman’s deposition and therefore waived his right to complain on appeal. See Harris, supra, citing State v. Keltner, 542 So.2d 42 (La.App. 2d Cir.1989), writ denied, 548 So.2d 1228 (La.1989).

Accordingly, this assignment of error is without merit.

Nonperformance/Defective Performance

In his second assignment of error, Mr. Weaver argues that the trial court erred in finding that he failed to perform his obligation under the contract by virtue of nonperformance and defective performance and that Ms. Storey did not meet her burden of proof. Mr. Weaver alleges that he |fiperformed all of the actions itemized in the contract and that he performed them in a workmanlike manner according to standard practice. He also argues that the leak in the Terminix store stemmed from a crack in a brick parapet wall that is not part of the roof and was not contemplated in the contract.

Ms. Storey argues that the trial court’s finding of fact is supported by her testimony and Mr. Coleman’s testimony that little or no work had been done on the roof and that the roof continued to leak.

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Lewis v. La Adrienne, Inc., 44,602 (La.App.2d Cir.8/19/09), 17 So.3d 1007. An appellate court must not base its determination on whether it considers the trier of fact’s conclusion to be right or wrong, but on whether the finder of fact’s conclusion was reasonable. Id., citing Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). A court of appeal must not reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Id., citing Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270.

La. C.C. art. 2769 states as follows:

If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.

La. C.C. art.1994 states as follows:

An obligor is liable for the damages caused by his failure to perform a conventional obligation. A failure to perform results 17from nonperformance, defective performance, or delay in performance.

A contractor is obligated to perform the work in a good and workmanlike manner so that the work is suitable for its intended purpose and free from defects in material and workmanship. Lewis, supra; Cascio v. Carpet, 42,653 (La.App.2d Cir.10/24/07), 968 So.2d 844; Mount Mariah Baptist Church v. Pannell’s Associated Elec., Inc., 36,361 (La.App.2d Cir.12/20/02), 835 So.2d 880, writ denied, 03-0555 (La.5/2/03), 842 So.2d 1101. To establish the contractor’s liability for damages due to defective workmanship, the owner must prove, by a preponderance of the evidence, the existence and nature of the defects, that the defects are due to faulty materials or workmanship and the cost of repairing the defects. Lewis, supra; Cascio, supra; Mount Mariah, supra.

The evidence presented at trial and in the depositions supports the trial court’s finding that Mr. Weaver, d/b/a Weaver’s Roofing, failed to perform the contract. The testimony of Mr. Weaver, Ms. Storey and Ms. Herman demonstrate that the roof of the building continued to leak after Mr. Weaver allegedly replaced it. The testimony of Mr. Coleman and of Ms. Sto-rey suggests that, although the roof of the tattoo parlor was replaced, the roof of the main building had not been replaced. Ms. Storey also testified that she paid Mr. Ashton $2,950 to patch the roof of the main building and paid Mr. Coleman $19,622 to replace the roof of the main building.

The trial court’s finding that Mr. Weaver failed to perform the contract because of nonperformance and defective performance is not manifestly erroneous. Accordingly, this assignment of error lacks merit.

| ¡¡Damages for Breach of Contract

In his third assignment of error, Mr. Weaver argues that the trial court abused its discretion in the amount of damages awarded for the breach of contract. Mr. Weaver states that Ms. Storey was awarded the full contract amount, but that this award of damages should be reduced. Mr. Weaver contends that there is no dispute that Mr. Weaver replaced the roof on the tattoo parlor and that Mr. Coleman did not replace that roof, so he should be given credit for the work he completed on that portion of the building. Mr. Weaver further argues that the leak was not the result of his nonperformance, but was the result of a crack in the brick parapet wall.

Ms. Storey contends that the trial court did not err when awarding damages because she had to hire a second roofer to repair the work performed by Mr. Weaver and a third roofer to install the roof that Mr. Weaver was hired to install.

The standard for reviewing the award of damages for breach of contract is whether the trial court abused its discretion. Mount Mariah, supra, citing Hernandez v. Martinez, 00-1282 (La.App.5th Cir.2/28/01), 781 So.2d 815. If the plaintiff in a breach of contract case meets the burden of proof, the remedy is to reduce the contract price in an amount necessary to complete the work or to correct the defective work according to the terms of the contract. Lewis, supra; Cascio, supra; Mount Mariah Baptist Church, supra. However, a contractor may still recover part of the contract price, notwithstanding defects, when substantial performance is shown. Cascio, supra; Mount Mariah, supra. When damages are insusceptible of precise measurement, much discretion shall be left to the court for the reasonable ^assessment of these damages. La. C.C. art. 1999.

When awarding damages, the trial court considered the contract price and the work necessary to correct the defective work. The trial court noted that “the amount of damages should [not] be the amount paid to Mr. Coleman because it appears that the roof he installed ... was different from what [Mr. Weaver] contracted to install.” The trial court also considered that Mr. Weaver may be entitled to credit because substantial performance was shown in that he did replace the roof of the tattoo parlor. The trial court noted that no evidence was presented as to the value of that credit and, therefore, found that any credit Mr. Weaver may have been entitled to was offset by the payment made to Mr. Ashton to repair the work that Mr. Weaver was contracted to perform.

We do not find that the trial court abused its discretion when awarding damages in this case. Accordingly, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of Belinda Storey and against Joe Weaver, d/b/a Weaver’s Roofing, is affirmed. Costs of appeal are assessed to Joe Weaver, d/b/a Weaver’s Roofing.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Thierry WOODS, Appellant.
    No. 49,031-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2014.

      Louisiana Appellate Project By: Douglas Lee Harville, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Marcus Ray Patillo, Charles A. Smith, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, LOLLEY & PITMAN, JJ.
   PITMAN, J.

| defendant Thierry Woods pled guilty to attempted second degree murder. He was sentenced to 50 years’ imprisonment at hard labor, without the benefit of probation, parole or suspension of sentence. Defendant appeals his sentence as excessive. For the reasons stated herein, we affirm Defendant’s conviction and sentence.

FACTS

This case arises from a shooting that occurred on March 29, 2012, in Webster Parish, Louisiana. During the night, Defendant was attempting to sleep at his mother’s house, but experienced paranoid dreams of people who were “out to get him.” In the early hours of the morning, he left his mother’s house walking and carrying a loaded .38 caliber pistol. Defendant came upon a woman, Sarah Kelley Bailey, and asked her what was going on and “Why are these people messing with me?” As he was speaking to her, a man drove up in a white pickup truck. Defendant pointed his gun at the vehicle and told the occupant to leave him alone. He pointed the gun at himself, then turned to Ms. Bailey and fired, shooting her in the head, and then left the scene.

At approximately 7:00 a.m., Minden police officers responded to a report of an accident involving a woman and found Ms. Bailey bleeding from an unknown injury. She was transported to LSUHSC via Li-feAir. The officers then responded to another call regarding a man who was walking down a nearby street waving a gun. They found Defendant in possession of a loaded .38 caliber pistol and detained him. After Defendant was advised of his Miranda rights, he admitted to shooting a white female in the head and told police that he did so because she did not answer his question to her. |2He later stated that he meant to kill her.

Defendant was charged with attempted second degree murder. He entered a plea of not guilty and filed a motion for appointment of a sanity commission. An order appointing that commission was entered. Defendant’s counsel asserted that he believed Defendant did not have the mental capacity to assist in his own defense.

Dr. Mark Vigen interviewed Defendant in August 2012. Defendant reported to Dr. Vigen that he had used marijuana daily since the age of 16. He also reported that, prior to the shooting, he had slept for only three hours and that he left his mother’s house to walk to his brother’s house to try to get some sleep there. No prior mental health problems were reported. Dr. Vigen observed no psychotic thoughts, hallucinations or delusions at the time of the evaluation and ultimately concluded that Defendant had the capacity to understand the nature and consequences of the proceedings and was able to assist in his defense. He was concerned, however, that Defendant may have been experiencing a dissociative episode at the time of the shooting, either a break from reality or substance-induced psychosis.

Dr. George Seiden interviewed Defendant in October 2012. He noted that Defendant reported that, prior to the shooting, he was having family problems and difficulty sleeping. He believed that everyone was trying to harm him, and he had planned to hide in the woods. Defendant reported no previous psychiatric symptoms. A mental status examination revealed mild depressive symptoms, disturbed sleep and some suicidal ideation. Defendant reported auditory and visual hallucinations at the time of his arrest. Dr. Seiden’s diagnosis was brief psychotic disorder and marijuana dependence. |sHe concluded that Defendant had the ability to assist in his own defense.

A sanity hearing was held on October 15, 2012. The trial court considered the reports of Drs. Seiden and Vigen. Based upon those reports, the trial court found that Defendant was competent to assist his counsel at trial. Formal arraignment was waived, and a plea of not guilty by reason of insanity was entered.

A motion to suppress the statements made to officers at the time of his arrest was filed on December 17, 2012, alleging that Defendant was unable to make a knowing and voluntary waiver of his Miranda rights. Following an evidentiary hearing on January 23, 2013, and based upon the testimony of investigating officers and the sanity reports, that motion was denied. Defendant filed a second motion for appointment of a sanity commission, and an order appointing that commission was entered. Counsel for Defendant asserted that further investigation of Defendant’s mental status prior to and during the commission of the offense was needed.

Dr. Seiden again interviewed Defendant on April 2, 2013, at which time, Defendant reported that some of the events prior to his arrest were hard to remember. Dr. Seiden noted that Defendant had reported mild visual and auditory hallucinations immediately preceding and^ following the offense and concluded that, at the time of the offense, “Mr. Woods, although apparently in a brief psychotic state, was capable of distinguishing right from wrong with reference to the specific conduct in question.”

Defendant was also interviewed by Dr. Richard Williams. Defendant admitted to smoking marijuana twice per day since the age of 15, but |4reported no prior auditory or visual hallucinations. Defendant expressed shame about shooting an innocent woman. Dr. Williams’ diagnosis was marijuana-induced psychotic disorder with delusions and marijuana dependence. He concluded that, at the time of the offense, Defendant was not suffering from any mental disease or defect which rendered him incapable of distinguishing right from wrong.

This matter was set for trial on May 13, 2013. On that date, Defendant appeared with court-appointed counsel, asserting that he was not satisfied with the representation of his counsel, but that he was ready to plead guilty. Defendant then entered a plea of guilty to attempted second degree murder. The trial court ordered a presentence investigation report.

Defendant spoke on his own behalf at a sentencing hearing on July 1, 2013. He stated that he was sorry for his actions and asserted that he was hallucinating at the time of the shooting. The victim’s mother also made a statement asserting that, following the shooting, her daughter underwent seven surgeries and spent 5½ weeks at LSUHSC, three weeks in a rehabilitation facility and three months at West Jefferson Memorial. She stated that her daughter is required to have a shunt draining excess fluid from her brain for the rest of her life, has no vision in her right eye and has difficulty communicating. Her mother further testified that the relationship between her and her young daughter will never be the same.

The trial court reviewed the presentence investigation report and the facts of the crime. It noted that two psychiatrists found that Defendant was able to distinguish between right and wrong at the time of the offense, | ¡¡though no official determination of sanity was made. The trial court also noted that Defendant had two prior misdemeanor convictions, but no prior felony convictions. The trial court remarked on the violent nature and severity of the crime, which was a deliberate act of unprovoked violence against a stranger, and found no grounds which would excuse or justify the offense. After consideration of a victim’s impact statement, the trial court sentenced Defendant to 50 years’ imprisonment at hard labor, without the benefit of probation, parole or suspension of sentence.

A motion to reconsider sentence was filed, alleging the imposition of an excessive sentence. Defendant asserted that the trial court did not consider a mitigating factor, i.e., that he pled guilty and saved the victim the emotional anguish of a trial. The motion was denied without a hearing and this appeal followed.

DISCUSSION

Defendant’s only assignment of error is that the trial court erred in imposing a sentence that is unconstitutionally excessive because it serves no purpose and is grossly out of proportion to the-severity of the crime. He argues that he was experiencing a psychotic break at the time of the shooting and that his mental instability is a factor that merited substantial consideration by the trial court in determining the sentence to be imposed upon him. He further argues that the maximum sentence should be reserved for the worst of offenders and that he is not the worst of offenders. He claims that he did not act for any form of gain, did not attempt to hide his guilt and had no prior similar experiences. Defendant asserts that, with proper psychiatric care, counseling and diagnosis, he would be unlikely to |ficommit further crimes. For these reasons, Defendant claims that his sentence of 50 years’ imprisonment at hard labor without benefit of probation, parole or suspension of sentence is unnecessarily harsh, given the trial court’s discretion to impose a less severe sentence.

The state argues that Defendant’s mental status and excessive marijuana use were not raised as mitigating factors in his motion to reconsider sentence, and only asserted the trial court’s failure to consider that he pled guilty and saved the victim mental anguish. The state claims that La. C. Cr. P. art. 881.1 precludes Defendant from raising the issue of mental instability on appeal because it was not raised in the trial court. The state asserts that the sentence should be reviewed only for constitutional excessiveness. Since the sentence imposed was within the statutory limits and was based upon a presentence investigation report, the state claims that the sentence is not unconstitutionally excessive.

La. C. Cr. P. art. 881.1(E) provides as follows:

Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Under that article, a defendant must set forth the specific grounds upon which the motion is based in order to raise an objection to the sentence on appeal. If the defendant does not allege any specific ground for excessiveness or present any argument or evidence not previously considered by the court at original sentencing, then the defendant does not lose the right to appeal the sentence, he is simply relegated to having the appellate court | consider the bare claim of excessiveness. State v. Humphries, 48,235 (La.App.2d Cir.9/25/13), 124 So.3d 1177, citing State v. Mims, 619 So.2d 1059 (La.1993).

The penalty for attempted second degree murder is imprisonment at hard labor for a minimum of 10 years, up to a maximum of 50 years, without the benefit of parole, probation or suspension of sentence. La. R.S. 14:27; La. R.S. 14:30.1.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Watson, 46,572 (La.App.2d Cir.9/21/11), 73 So.3d 471. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Taves, 03-0518 (La.12/3/03), 861 So.2d 144; State v. Caldwell, 46,718 (La.App.2d Cir.11/2/11), 78 So.3d 799.

The second portion of the sentence requires that a determination be made regarding the constitutional exces-siveness of a sentence. A sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Washington, 46,568 (La.App.2d Cir.9/21/11), 73 So.3d 440, writ denied, 11-2305 (La.4/27/12), 86 So.3d 625.

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Diaz, 46,750 (La.App.2d Cir.12/14/11), 81 So.3d 228. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, supra; State v. Free, 46,894 (La.App.2d Cir.1/25/12), 86 So.3d 29.

While there is some evidence in this matter to suggest that Defendant’s mental capacity at the time of the offense was questionable, he did not assert the mitigating factor of mental impairment in his motion to reconsider sentence. For that reason, he is precluded by La.C.Cr. P. art. 881.1(E) from raising the issue of mental instability on appeal, and his sentence is to be reviewed only for constitutional exces-siveness.

The trial court adequately considered the presentence investigation report and the factors of La. C. Cr. P. art. 894.1. It found that Defendant had used a dangerous weapon in the commission of an act of violence against the victim. There was no provocation or excuse for this senseless crime of violence perpetrated against a stranger. The victim was shot in the head and remains permanently disabled. Although the trial court imposed the maximum sentence allowed under the law for attempted second degree murder, the severity of the sentence imposed is in no way disproportionate to the severity of the offense. The sentence imposed is within the statutory guidelines and is not constitutionally excessive given the pain and suffering inflicted upon the victim. Therefore, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of Defendant, Thi-erry Woods.

AFFIRMED.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. William T. CHISOLM, Appellant.
    No. 49,043-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2014.

      Teresa C. Carroll, Jonesboro, for Appellant.
    William T. Chisolm, pro se.
    Charles R. Scott, II, District Attorney, Dale G. Cox, Jr., Suzanne M. Owen, George Winston, III, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and DREW, JJ.
   WILLIAMS, J.

k The defendant, William T. Chisolm, was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64. Following a jury trial, he was convicted as charged. He was sentenced to serve 90 years in prison at hard labor without benefit of probation, parole or suspension of sentence. For the following reasons, we affirm.

FACTS

On September 26, 2011, David Alexander and Shane Campbell were conducting an inventory assessment at an Exxon gas station/convenience store on North Market Street in Shreveport, Louisiana. Campbell owned a laptop computer which was inside a laptop bag/briefcase. On the day in question, the computer was in Alexander’s possession and was being used to assist the men in determining the store’s inventory.

During the trial, Alexander testified as follows: he went outside to smoke a cigarette; he encountered the defendant; he had never seen the defendant before; the defendant, who was dressed in black pants and a white shirt, identified himself as “William”; during a casual conversation, the defendant stated that he was from California and he worked in a restaurant in Shreveport; he talked to the defendant for approximately 15 minutes and then went back inside the store; when he and Campbell finished the inventory, he carried the laptop computer, which was inside the laptop bag/briefcase, outside to put it in his vehicle; the defendant approached him as he opened the trunk of the vehicle; the defendant was armed with a small, | ⅞.32 caliber pistol, which he held across his chest “like he didn’t want to expose it in front of everybody”; he “got a good look” at the gun because the defendant was standing approximately six feet away from him when he saw the gun; the gun was real; there was no way it could have been a toy gun; the defendant ordered him to hand over the bag; the defendant grabbed his arm and attempted to “jerk” the bag away from him; he wanted to defend himself, but he released the bag because the defendant had a gun; he is 6'2" and weighed approximately 335 pounds; the defendant was a “slender” black male, approximately 5'8"; when he released the bag, the defendant immediately took it, with the laptop inside, and ran behind the store and into someone’s backyard; when Campbell heard the commotion, he came out of the store and chased the defendant; he called 911; he yelled that the defendant had a gun, trying to get Campbell to stop chasing him; the laptop bag, along with the laptop, was found and returned to them that same day.

Alexander also testified that two years after this incident, he received a letter at his home from the defendant. He then read the letter to the jury. In the letter, the defendant admitted that he took the laptop/bag from Alexander at gunpoint. However, he stated that the gun “was not real.” The defendant apologized to Alexander and stated that a woman named Kyra, who worked at the convenience store, had masterminded the robbery.

Alexander identified the defendant in open court as the man who had |srobbed him. He also identified a black portfolio that the police officers found with the laptop bag. He testified that the portfolio did not belong to either Campbell or him.

On cross-examination, Alexander testified that while he was talking to the defendant during his smoke break, he noticed that the defendant was carrying a black portfolio. However, he did not see any kind of weapon at that time.

Thomas Shane Campbell also testified at trial. He testified as follows: on September 26, 2011, he and his brother-in-law, Alexander, were working as inventory specialists at the Exxon on North Market; they used a laptop computer, which was carried in a bag; both the computer and the bag belonged to him; while he was finishing the inventory, Alexander went outside for a smoke break; when Alexander came back inside the store, they packed up their equipment; Alexander took the laptop out to the car; while he was paying for some snacks at the register, he heard a “commotion” outside; he saw Alexander pointing and a man running across the parking lot; he went outside and heard Alexander say “He’s got the bag! He’s got the bag!”; he saw a man, who was wearing a white, long-sleeved, button-up shirt and dark pants, running with the laptop bag; he began chasing the man; he followed the man behind the store and through some residential backyards; he saw the man jump a chain link fence into someone’s backyard; after the man jumped the fence, he turned and pointed a gun at him (Campbell); he was approximately 25 yards away from the man when he pointed the gun; when he saw the gun, he stopped chasing the man and jumped behind a tree to hide; the man then disappeared behind a house; the |4laptop bag was found and returned to him later that day; a black portfolio, which was found in the bag, did not belong to him. On cross-examination, Campbell testified that he did not see the portfolio when he was chasing the man.

The state also called Corporal Deitrick Williams, of the Shreveport Police Department, as a witness. Cpl. Williams testified that on September 26, 2011, at approximately 10:48 a.m., he responded to a call in reference to an armed robbery that had occurred at the Exxon gas station/convenience store on North Market. When he arrived, Campbell flagged him down and told him that he had chased the suspect into the woods after the man stole a computer and a laptop bag from Alexander. Cpl. Williams also stated that he interviewed Alexander, who told him that after smoking cigarettes with the suspect outside the Exxon, he went to his vehicle with the laptop bag and attempted to place it in the trunk. The subject approached him with a handgun, took the laptop bag from him and fled the scene. Cpl. Williams further testified that both Alexander and Campbell reported that the subject had a “small, black handgun” and that they believed it was a .38 caliber weapon. He stated that they described the suspect as a black male, approximately 5'9" tall, and weighing 150 to 165 pounds, with a medium complexion and a low haircut; they also stated that he was wearing a white, long-sleeved, button-down shirt, black pants and black shoes.

Corporal Jeffery Hammer, of the Shreveport Police Department, K-9 Division, testified that he responded to the call regarding the armed robbery with his police dog, Jasko, who is trained to retrieve evidence. Cpl. Hammer stated that when he arrived at the scene, he and Jasko went to the wooded |5area where the suspect was last seen. He stated that Jasko tracked the suspect through a wooded area to a Johnny’s Pizza restaurant, where he found a white, long-sleeved, button-up shirt on the ground close to a storage building next to the restaurant. Cpl. Hammer testified that neither he nor Jas-ko touched the shirt.

Dr. Jessica Esparza, a forensic DNA analyst at the North Louisiana Crime Lab, was accepted by the court as an expert in the field of DNA analysis. She testified regarding the DNA testing of the white shirt found near the Johnny’s Pizza restaurant. Dr. Esparza stated that Heather Torres, the DNA analyst who performed the original analysis in this case, was no longer employed by the North Louisiana Crime Lab. She also stated that she technically reviewed this case to ensure that Ms. Torres followed all protocols and to ensure the scientific integrity of the results. She explained that FBI quality assurance standards require that each DNA analyst’s work be reviewed by another analyst. When she reviewed Ms. Torres’ work, she made sure that the correct protocols were used. She also examined the data to reach her own conclusion and to see if it was consistent with Ms. Torres’ conclusion. Dr. Esparza testified that she reached the same opinion as Ms. Torres in this case.

Dr. Esparza further testified that Ms. Torres matched the DNA evidence taken from the white shirt to a buccal swab retrieved from the defendant. She testified that the probability of finding that the DNA from a cutting of the collar of the shirt was from an individual other than the defendant was approximately one in 414 quadrillion, and that the probability of finding that the DNA from another cutting of the collar of the shirt was |fifrom an individual other than the defendant was approximately one in 1.69 quadrillion.

On cross-examination, Dr. Esparza clarified that when she conducts a technical review, she does not “redo” any of the laboratory work; she simply reviews the case notes. She also stated that she did not prepare a separate report in this matter.

Detective Jack E. Miller, of the Shreveport Police Department, Tactical Robbery Division, testified that he also responded to this armed robbery. Det. Miller identified the white, long-sleeved, button-up shirt that was found on the ground at the Johnny’s Pizza restaurant. He testified that he recovered a black computer bag from the roof of a storage shed in the same area where the shirt was found. Det. Miller stated that Alexander and Campbell were brought to that location, identified the laptop bag and verified that nothing was missing from the bag. They also pointed out a black leather portfolio, that was in the laptop bag, but did not belong to them. Det. Miller stated that he opened the portfolio and discovered several papers which bore the defendant’s name and date of birth. A citation from a court in Los Angeles, California, which had the defendant’s name on it, was also discovered inside the portfolio. Det. Miller stated that he conducted a computer search and verified the defendant’s physical description. He testified that he then developed the defendant as a suspect in the armed robbery. Although the police officers conducted an extensive search for the defendant, he was not apprehended on the day of the incident.

Det. Miller further testified that he obtained video surveillance footage from the Exxon convenience store; the footage depicted the robbery. |7Two surveillance videos were played for the jury. The first video showed a view of the gas pumps at the Exxon and depicted the following: Alexander walking across the parking lot with the laptop bag followed by the defendant, who was carrying a black portfolio; the defendant running back across the parking lot with the laptop bag, followed by Alexander; and, Campbell running out of the Exxon after the defendant. The second video is the view from the parking lot on the side of the Exxon. That video depicted the defendant running with the laptop bag and Campbell chasing him.

During his investigation of this case, Det. Miller learned that the defendant had left the Shreveport area on a bus to New Orleans. He obtained an arrest warrant and the defendant was arrested at a bus station in New Orleans. After the defendant was brought back to Shreveport, on September 29, 2011, Det. Miller interviewed him at the Caddo Correctional Center. He also retrieved a buccal swab from the defendant for DNA testing.

The defendant’s recorded interview was then played for the jury. During the interview, the defendant admitted that he took Alexander’s bag. He stated that he did not “try to hurt anybody.” The defendant explained that he was dealing with financial stress, and that after he talked to Alexander, he just “snapped.” He also admitted that he had a gun in his portfolio; however, he stated that the gun was “not real.” He stated he threw the gun in the river the next night. Later during the interview, the defendant described the weapon as “like a pellet gun. It’s not really a toy; it’s a pellet gun.” He also stated that he ran away after he took the bag from Alexander. According to the defendant, when he arrived at the Johnny’s Pizza 18restaurant, he removed his shirt, threw the bag on top of the shed, crossed the street, hid in the woods and watched the police officers until it became dark. During the interview, the defendant repeatedly apologized for his actions.

On cross-examination, Det. Miller testified that, he prepared photographic lineups. Alexander identified the defendant as the armed robber; however, Campbell was unable to do so because he only saw the defendant running away.

At the conclusion of the trial, the jury found the defendant guilty as charged of armed robbery. The trial court denied the defendant’s motions for post-verdict judgment of acquittal and new trial. It sentenced him to serve 90 years in prison at hard labor without benefit of probation, parole or suspension of sentence. Subsequently, the trial court denied the defendant’s motion to reconsider his sentence.

The defendant appeals.

DISCUSSION

The defendant contends the evidence was insufficient to prove that he committed the robbery while armed with a “dangerous weapon.” He argues that the weapon used during the commission of the robbery was a toy pellet gun; the gun was never fired; he did not point the gun at Alexander; he did not verbally threaten Alexander; and Alexander did not testify that he feared for his life. Further, the defendant claims that the interaction between Alexander and him did not create such a highly charged atmosphere that Alexander should have feared that he was in danger of serious bodily harm.

When several issues are raised on appeal and one or more questions ^involve the sufficiency of the evidence, the reviewing court should review the sufficiency claims first because the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086.

This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685.

The standard set forth in Jackson v. Virginia, supra, is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict |inin the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94.

Inin the instant case, the defendant was found guilty of armed robbery. LSA-R.S. 14:64(A) defines armed robbery 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, while armed with a dangerous weapon.

The evidence presented at trial overwhelmingly establishes that the defendant took the bag containing the laptop computer from Alexander by the use of force and intimidation. Alexander testified that the defendant attempted to “jerk” the bag away from him; however,, when he saw that the defendant had a gun, he stopped resisting and handed the bag to the defendant. However, most importantly, the evidence presented at trial showed that the defendant confessed to the police officers, as well as in a letter to Alexander, that he took the bag and that he had a “toy” or “pellet” gun. Additionally, the surveillance video proved that the defendant took the bag; and, the defendant’s black portfolio was found inside the laptop bag; the DNA evidence from the white shirt established that the shirt belonged to the defendant.

Therefore, the only issue herein is whether the state proved that the defendant committed the armed robbery while armed with a “dangerous weapon.” According to the defendant, the weapon used was a toy pellet gun. He argues the toy gun was not used in a manner calculated or likely to produce death or great bodily harm.

A “dangerous weapon” includes any instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm. LSA-R.S. 14:2(3). Whether a weapon is dangerous is a factual question for 112the jury to determine upon considering not only the character of the weapon, but by whom, upon whom, and in what manner it was used. State v. Davis, 48,161 (La.App.2d Cir.8/7/13), 121 So.3d 1207.

A person who commits a robbery by pointing an unloaded and unworkable pistol at the victim can be adjudged guilty of armed robbery. State v. Levi, 259 La. 591, 250 So.2d 751 (1971); State v. Lewis, 39,263 (La.App.2d Cir.1/26/05), 892 So.2d 702. Additionally, a toy gun can be considered a dangerous weapon if the jury determines the interaction between the offender and the victim created a highly charged atmosphere whereby there was danger of serious bodily harm resulting from the victim’s fear for his life. State v. Woods, 97-0800 (La.App.1st Cir.6/29/98), 713 So.2d 1231, writ denied, 98-3041 (La.4/1/99), 741 So.2d 1281; State v. Kemp, 39,358 (La.App.2d Cir.3/11/05), 896 So.2d 349, writ denied, 2005-0937 (La.12/9/05), 916 So.2d 1052. See also State v. Green, 409 So.2d 563 (La.1982); State v. Lewis, 39,263 (La.App.2d Cir.1/26/05), 892 So.2d 702; State v. Williams, 36,456 (La.App.2d Cir.10/4/02), 827 So.2d 1286, writ denied, 2002-3071 (La.9/19/03), 853 So.2d 633.

As stated above, the defendant has always maintained that the gun “was not real” and that it was a “toy pellet gun.” However, Alexander and Campbell both testified that they believed the gun was real, and Alexander described the gun as a small caliber pistol. Moreover, Alexander testified that the defendant held the gun across his chest and demanded the bag. He stated that during this time, the defendant grabbed his arm and tried to jerk the bag away from him. When Alexander saw the gun, he complied with the | ^defendant’s demands and released the bag. Also, Campbell testified that during his pursuit of the defendant, the defendant jumped a fence, turned around, and pointed the gun at him. At that point, Campbell stopped chasing after the defendant and jumped behind a tree to hide. This testimony establishes that the interaction between the defendant and the victims created a highly charged atmosphere whereby there was a danger of serious bodily harm resulting from the victims’ fear for their lives. Accordingly, even if the gun was a toy or pellet gun, considering the manner in which the gun was used and the harm caused the victims, the jury could have reasonably concluded that the defendant was armed with a dangerous weapon and, thus, guilty of armed robbery. This assignment of error is without merit.

The defendant also contends the trial court erred in denying, in part, his motion in limine. He argues that the court erred when it ordered that a letter he had written to Alexander be redacted to remove certain references to plea offers, but allowed other portions of the same letter, which contained virtually identical inadmissible plea-offer language, to be admitted into evidence. The court granted the defense’s motion to remove two of the statements; however, the court refused to order the statement, “surely 10 yrs is enough for what I did,” be redacted from the letter. According to the defendant, there is essentially no difference between the statements because | uboth statements reference a prison term and constitute an admission of guilt. The defendant argues that this ruling constitutes reversible error because the second statement clearly tends to show his guilt.

LSA-C.E. art. 410 provides:

A. General rule. Except as otherwise provided in this Article, evidence of the following is not, in any civil or criminal proceeding, admissible against the party who made the plea or was a participant in the plea discussions:
(1) A plea of guilty or of nolo conten-dere which was later withdrawn or set aside;
(2) In a civil case, a plea of nolo con-tendere;
(3) Any statement made in the course of any court proceeding concerning either of the foregoing pleas, or any plea discussions with an attorney for or other representative of the prosecuting authority regarding either of the foregoing pleas; or
(4) Any statement made in the course of plea discussions with an attorney for or other representative of the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn or set aside.
B. Exceptions. However, such a statement is admissible:
(1) In any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it; or
(2) In a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

The rules prohibiting the admissibility of statements made during the course of plea discussions serve to promote the negotiated disposition of |1ficriminal cases by giving the defendant protection from involuntary self-incrimination at two ends of the plea-bargaining spectrum: while he is negotiating over the disposition of his case and while he is offering or entering a plea that is rejected or is later withdrawn. State v. Divers, 38,524 (La.App.2d Cir.11/23/04), 889 So.2d 335; State v. Lewis, 539 So.2d 1199 (La.1989). Thus, the rule contemplates the accused making incriminating statements during plea discussions, and seeks to prevent the use of such statements against the accused at trial. State v. Buffington, 97-2423 (La.App.4th Cir.2/17/99), 731 So.2d 340.

In the instant case, the handwritten version of the letter in the record contained all of the references to pleas. However, the typed, redacted version of the letter does not contain any of that language. Additionally, when Alexander read the letter in court during the trial, he did not read the statement, “surely 10 years is enough for what I did.” Because the complained of statement was redacted from the letter and was not read to the jury, the defense’s claim that the trial court erred in denying its motion in limine as to the second statement is without merit.

Moreover, even if the entire letter had been read to the jury, the statements were not inadmissible under LSA-C.E. art. 410. The letter was directed to the victim, not to the district attorney, and the statements therein were not made in the course of plea discussions with an attorney for the prosecuting authority. This assignment lacks merit.

The defendant further contends the trial court erred in allowing Dr. Esparza to testify as a DNA expert regarding the analysis of the white shirt found by the police officers. He argues that Dr. Espar-za did not personally |1fiperform the DNA testing, nor did she personally observe the testing on which the report was based; therefore, his constitutional right to confront his accuser, namely Heather Torres, was violated. According to the defendant, Dr. Esparza testified that when she does a technical review, she does not “redo” any of the laboratory testing; she simply looks at the case notes.

The Confrontation Clause of the Sixth Amendment acts as an absolute bar to the admission of all out-of-court testimonial evidence unless (1) the witness who made the statement is unavailable to testify in court, and (2) the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). See also State v. Smith, 2004-3140 (La.6/24/05), 906 So.2d 391. An analyst’s report and certification regarding forensic evidence is considered a testimonial statement and is subject to confrontation clause requirements. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). If the report and certification are presented as evidence, then the person called for testimony and cross-examination on the evidence must have conducted or observed the tests on which the report and certification are based. Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). However, in Melendez-Diaz, supra, the Court acknowledged that some states have “Notice and Demand Statutes” which “permit the defendant to assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution’s intent to use a forensic analyst’s report.” 557 U.S. at 326, 129 S.Ct. at 2541.

In Louisiana, criminal laboratories are authorized to provide proof of examination and analysis of physical evidence by providing a certificate of |17the person in charge of the facility. LSA-R.S. 15:499. A party introducing a certificate of analysis under LSA-R.S. 15:499 must provide written notice of intent to offer proof by certificate at least 45 days prior to trial. LSA-R.S. 15:501. The defendant may then demand that the person who conducted the examination and analysis testify by timely filing a written demand within 30 days of the notice of intent. LSA-R.S. 15:501. If the certificate and notice comply with La. R.S. 15:499 and 15:501, then the certificate is admissible and considered prima facie evidence of the facts provided. LSA-R.S. 15:500. However, if the defendant properly demands the testimony at trial of the analyst who performed the tests, then the certificate is not prima facie evidence and the analyst must testify to establish the test results. LSA-R.S. 15:501.

Confrontation rights claims are subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); State v. Robinson, 2001-0273 (La.5/17/02), 817 So.2d 1131. The harmless error analysis evaluates whether the guilty verdict actually rendered in the trial was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); State v. Glover, 47,311 (La.App.2d Cir.10/10/12), 106 So.3d 129, writ denied, 2012-2667 (La.5/24/13), 116 So.3d 659.

In State v. Simmons, 2011-1280 (La.1/20/12), 78 So.3d 743, more than three months before the trial, the state provided the defendant with notice of its intent to introduce into evidence the crime lab’s certificate of analysis as prima facie evidence that the objects he had discarded contained cocaine. On the morning of the trial, the defendant filed a written | ^opposition to the state’s notice. Initially, the trial court was inclined to agree with the defendant; however, the prosecution informed the court that the lab analyst who performed the tests currently worked for a crime lab in another parish and was not immediately available. Therefore, the court denied the defendant’s objection as untimely. The court of appeal reversed the defendant’s conviction, finding that the introduction of the crime lab report, as opposed to presenting the live testimony of the analyst, constituted a violation of the defendant’s Sixth Amendment right to confront witnesses. The Supreme Court granted the state’s writ application and reversed, stating:

[Rjespondent waived his Sixth Amendment right of confrontation by failing to timely request a subpoena for the analyst who performed the test on the rocks of cocaine. As Melendez-Diaz observed, states remain free to impose reasonable restrictions on a defendant’s assertion of his confrontation rights and the trial court therefore did not abuse its discretion in failing to issue an instanter subpoena for the out-of-parish criminalist at the risk of delaying a one-day trial after respondent failed to timely request that a subpoena issue for the witness. Given the circumstances, the trial court properly admitted the analyst’s certificate in lieu of the analyst’s live testimony.

Here, on February 24, 2012, the state provided the defendant with notice of its intent to introduce into evidence the certified lab report “as proof by certificate in conformity with La. R.S. 15:499-501.” At that point, the defendant had the right to demand the testimony of Ms. Torres, the analyst who performed the DNA testing; the defendant did not do so.

However, rather than merely introducing the report into evidence, the state elected to call Dr. Esparza as a witness to testify as an expert in DNA analysis. Dr. Esparza testified that she performed a technical review of MsJ^Torres’ work in this case. Although Dr. Esparza did not actually perform the testing, she confirmed that the proper protocols were used, examined the data, and testified regarding her own conclusions. Dr. Esparza’s conclusions corroborated the conclusions reached by Ms. Torres — that the DNA found on the shirt was the defendant’s DNA. Therefore, we find that the trial court did not err in allowing Dr. Esparza to testify.

Moreover, even if the trial court erred in allowing the testimony, we find that the admission of Dr. Esparza’s testimony was harmless. Even without the testimony with regard to the DNA testing, the evidence against the defendant was overwhelming. The defendant confessed to this crime, was videotaped committing the robbery, and he was identified as the armed robber by one of the victims. Additionally, the defendant specifically admitted to the police officers that after the armed robbery, he removed his white shirt and left it at the Johnny’s Pizza restaurant. Accordingly, this assignment of error is without merit.

The defendant also contends his near-maximum sentence of 90 years at hard labor is excessive and “punitive.” He argues that his sentence is grossly disproportionate to the severity of the crime and serves no useful purpose, particularly in light of the fact that he is 47 years old. He further argues that, essentially, he has been given what amounts to a life sentence despite the fact that the items he took were returned to the victim on the same day.

In a supplemental brief, the defendant notes that the record has been supplemented to include the purported extradition pleadings from California, 12nwhich the trial court referred to and took judicial notice of during sentencing. The defendant argues that there is no provision in Louisiana law that allows a court to take judicial notice of suit records in other courts, when the matters do not concern the same case pending before it. According to the defendant, the trial court erred in taking judicial notice of the alleged extradition documents from California which were not signed, dated, or certified.

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

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

LSA-R.S. 14:64(B) provides:

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

A trial court has broad discretion to sentence within the statutory limits. State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641; State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. State v. Guzman, supra. As a general rule, maximum or near maximum sentences are reserved for the worst ^offenders and the worst offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802; State v. Woods, 41,420 (La.App.2d Cir.11/1/06), 942 So.2d 658, writ denied, 2006-2768 (La.6/22/07), 959 So.2d 494, and writ denied, 2006-2781 (La.6/22/07), 959 So.2d 494.

As stated above, this defendant was sentenced to serve 90 years at hard labor without benefit of probation, parole or suspension of sentence. During the sentencing hearing, the trial court noted the sentencing guidelines set forth in LSA-C.Cr.P. art. 894.1. The trial court stated:

The defendant’s extensive criminal history, which included the following offenses: distribution of cocaine; a juvenile conviction for first degree murder (1980); possession of a stolen vehicle (1987); simple burglary (1987); aggravated burglary of a business (1988); a finding of a habitual felony status and probation violation (1988); simple escape (1989); distribution of crack cocaine (1993); distribution of cocaine (1995); distribution of cocaine (1997); and theft, obstruction of justice, and simple burglary of an inhabited dwelling (2000).
Documents in case No. KA096425 from a California court, which indicate that the defendant was charged with murder.
The defendant’s conduct during the commission of this offense manifested cruelty to the victim. The court noted that although the defendant did not shoot Alexander, he was “clearly terribly frightened,” as observed by the court while he was testifying.
The court found that an actual pistol was involved in this case, based on the testimony and demeanor of both witnesses. The use of a pistol was corroborated by the defendant’s statement he had thrown the “toy” or “pellet gun” into 1 eathe river. The court expressed that it had difficulty believing that the defendant threw a “toy” gun into the river, and that it believed that act indicated consciousness of guilt.
The victim did not have a weapon to protect himself and immediately surrendered the items to the defendant.
The defendant knew he was creating a risk of death or great bodily harm to more than one person because he showed the weapon to Alexander and pointed the weapon at Campbell.
The defendant used threats of actual violence during the commission of this offense.
After he committed the offense, the defendant lay in wait for a number of hours still possessing a firearm, which could have caused danger to other innocent persons.
Although this offense did not result in significant economic or permanent loss to the victim, a victim of an armed robbery is never relieved of the fear that is caused by that incident.
A dangerous weapon was used and that this offense involved multiple victims for which there has not been a separate sentence imposed, with Campbell being the victim of at least an aggravated assault.
Based on his criminal history, the defendant has been involved in other similar offenses including murder, thefts, and burglaries.
The defendant did not act under strong provocation and the evidence indicated that he acted in a planned, intentional, and systematic scheme to commit armed robbery.
There were no grounds tending to excuse or justify the defendant’s criminal conduct because, although he was employed, he was seeking to get quick cash by way of this armed robbery.
124There was no indication that the defendant had compensated or attempted to compensate the victim for the horror he sustained.
The defendant has been consistently involved in criminal activity throughout his juvenile and adult life, and continuing with the proceedings in California. Although the defendant referenced family members in some of his documents, there is no indication that they were depending on him as a provider.
There was no indication that the defendant was in poor health and imprisonment would not entail excessive hardship on him or on any dependents. Although the laptop and bag were returned without damage within a short amount of time, they were not returned by the defendant; the police officers found them.
The defendant’s criminal conduct would likely recur if he is ever released from prison.

The court also noted that the defendant stated in a memorandum to the court that he had a significant employment history as a chef and restaurateur. However, the court expressed its belief that the statement was “at best dubious” based on the amount of time the defendant has served in prison. The court found that the defendant was in need of correctional treatment in a custodial environment that could be provided most effectively by his commitment to an institution, and that a lesser sentence would deprecate the seriousness of his crime.

After reviewing this record in its entirety, we find that the sentence imposed is not constitutionally excessive. This defendant has an extensive criminal record, which includes numerous felony convictions. Additionally,_Jjgthis robbery was committed with the use of a dangerous weapon, which by the defendant’s own admission, was at the very least a “pellet” gun. The defendant’s actions caused substantial danger to the two fearful victims, as well as to the general public. In light of the damage the defendant created by his offense and his extensive criminal history, the sentence imposed is not so grossly disproportionate to the severity of the crime that it shocks the sense of justice, nor does this sentence appear to be the needless infliction of pain and suffering. Thus, we find no abuse of the trial court’s discretion. Consequently, the defendant’s sentence is not constitutionally excessive.

We also find that the trial court did not err in considering and taking judicial notice of the defendant’s criminal records from California. The defendant did not make any effort to object to the records and did not dispute the veracity of them during sentencing. Moreover, it is well settled that any and all prior criminal activity, including prior arrests and hearsay evidence of suspected criminal activity, may be considered during sentencing.

[gfiWe have reviewed this record for errors patent and have found none.

CONCLUSION

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

AFFIRMED.

      . Alexander testified that the value of the laptop computer exceeded $1,000, and the value of the briefcase exceeded $100.

      . The defendant stated that a Kyra had told him that she would exit the store on that Monday morning with the money for the deposit and that she would walk to her car, which would be parked on the side of the building. Further, the defendant stated that he was "confused" when Alexander came out of the store with Kyra and he had no idea that he was taking the wrong bag. Conversely, Alexander testified that no one walked out of the store with him on the day of the incident. He stated that someone named "Kyra” was employed at the store; however, she was not working the day of the robbery.

      . According to the defendant, the original letter contained the following three references to plea negotiations: (1) "I've begged the DA, Mr. Cox for deal after deal for my part in this crime. 3 yrs for simple robbery (No Deal); 10 yrs for armed robbery (No Deal); 15 yrs for armed robbery (No Deal); Again 15 yrs for armed robbery (No Deal)”; (2) "surely 10 yrs is enough for what I did”; and (3) “surely 7-10 yrs is enough time to serve for my crime.”

      . In selecting a proper sentence, a trial court is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Boyte, 42,763 (La.App.2d Cir.12/19/07), 973 So.2d 900, writ denied, 2008-0175 (La.6/20/08), 983 So.2d 1272; State v. Russell, 40,526 (La.App.2d Cir.1/27/05), 920 So.2d 866, writ denied, 2006-0478 (La.9/29/06), 937 So.2d 851. When evaluating a defendant's criminal history, trial courts may consider evidence at sentencing that would otherwise be inadmissible at trial. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. For example, the trial court may consider records of prior arrests, hearsay evidence of suspected criminal activity, conviction records, and evidence of uncharged offenses or offenses that were nolle prOssed. State v. Myles, supra; State v. Anderson, 30,060 (La.App.2d Cir.10/29/97), 702 So.2d 40. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Estes, 42,093 (La.App.2d Cir.5/9/07), 956 So.2d 779, writ denied, 2007-1442 (La.4/4/08), 978 So.2d 324. Because the scope of information available to the sentencing court is so broad, the defendant has a due process right to rebut prejudicially false or misleading information that may affect the sentencing determination. State v. Myles, supra.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Marecellus ADAMS, Appellant.
    No. 49,053-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2014.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, for Appellant.
    Charles Rex Scott, District Attorney, J. Dhu Thompson, Jessica D. Cassidy, Aaron Crawford, Assistant District Attorneys, for Appellee.
    Before DREW, MOORE and GARRETT, JJ.
   MOORE, J.

1 ]The defendant, Marcellus Adams, was indicted by a grand jury on the charge of second degree murder for the death of Michael Blackshire. Following trial, a unanimous jury found the defendant guilty as charged. The court sentenced the defendant to life imprisonment without benefit of probation, parole, or suspension of sentence. He now appeals both his conviction and sentence. For the following reasons, we affirm.

FACTS

Near dusk on the evening of July 7, 2012, the defendant struck Michael Black-shire numerous times with a blunt instrument, likely a long, two-by-four board or possibly a pipe, just as Blackshire was calling 911 for help. Witnesses to the incident said the defendant then left the scene while Blackshire lay on the ground unconscious, his skull caved in, teeth knocked out, gasping for breath and bleeding profusely. Blackshire was taken to the LSU medical center in Shreveport where he died less than 24 hours later.

The defendant was arrested the following day. He admitted to striking Black-shire in the head with a two-by-four and knocking him out. He first claimed that Blackshire attacked him with a knife and he was defending himself; he later changed the story, stating that he was protecting his wife from the victim. The two-by-four was never located or identified. The record shows that the incident occurred in an open lot behind the house located at 4130 Miles Street in Shreveport. The residence and lot are owned by Leroy Scott, age 69. Scott testified at trial that he lives in the house with his younger brother, but he allows people to use the back lot to congregate daily to play dominoes, talk, barbeque, drink and sleep. There is also a “junk house” on the back lot where, among other things, Scott and his 1 gbrother perform repairs on lawn mowers and bicycles, but the house also has a bed in which people frequently spend the night.

Scott said that the defendant and Michael Blackshire often visited this area, and, according to Scott, the two men frequently bickered regarding the same woman who Scott knew only by the moniker, “Buck Teeth,” but was identified as a woman named Sherniecy Smith. He implied that this was the source of the continuing animosity between the defendant and Blackshire. Scott testified that on the evening of the incident, the defendant arrived very agitated because he could not find his “friend girl,” i.e., Sherniecy Smith.

Other than the defendant and Michael Blackshire, the other people present that evening were Sarah Davis, Robert Rattler and Donald Ashley. Scott said that the defendant and Blackshire began talking loudly and trading insults. Blackshire wanted to call 911 to report threats the defendant was making against him. However, Scott intervened and steered Black-shire away from the defendant, advising him to remain on the porch of his house and to let things cool down rather than call 911. After giving this advice, Scott went into his house. He did not witness the incident that followed.

Blackshire called 911 at 9:03 p.m. This recording indicates that he identified himself as Michael Blackshire, gave his address, and reported that someone was threatening him. A male voice can be heard in the background speaking loudly. Blackshire asked someone, “Why he is running?” Blackshire told the dispatcher from where he was calling. He said that Marecellus was threatening and bothering him, and Marecellus was wearing lsa white shirt and blue pants. He stated that he was coming back towards him. The dispatcher asked Blackshire if Marecellus had any weapons; Blackshire stated that Ma-recellus has just picked up a two-by-four. Then, Blackshire said, “No!” and repeated several times that “He is getting ready to hit me!” The sounds of scuffling and cursing followed. A female voice yelled out, “Leave him alone!” The recording ended.

The female voice heard at the end of the recording was likely that of Sarah Davis, the only woman present. Davis said that she had drunk a half pint of whiskey that day, but normally drinks more. She said that her back was turned from the defendant and Blackshire while she got a drink of water. When she turned, she saw the defendant striking Blackshire “two more times” very hard with a long object as he lay motionless on the ground. As she remembered it, the defendant struck Blackshire “a couple of times more” while Blackshire was motionless on the ground. She could not recall exactly what she said, but said she was hollering at the defendant loudly.

Robert Rattler testified that he saw the defendant and Blackshire talking some 20 to 40 paces from him. He said he had drunk only two beers and was not intoxicated. Rattler testified that he saw Blackshire walk away from the defendant toward him (Rattler) while making a telephone call on his cell phone. He said he overheard the dispatcher say 911 on Blackshire’s cell phone, but Blackshire did not say anything. He then saw the defendant approach, pick up a “long big old white thing,” possibly a stick or a pipe, and strike Blackshire in the back of his head. Rattler saw Blackshire fall to the ground, and the defendant struck Black-shire one more time in the chest. Rattler described Blackshire as choking for air and bleeding from the back of l4his head. The defendant left the scene immediately with nothing in his hands.

Meanwhile, Leroy Scott, who was inside his home watching television, heard a scream and ran outside to find Blackshire lying on the ground.

Minutes later, the Shreveport Police Department and Fire Department arrived around 9:16 p.m. to find Blackshire lying on the ground, choking on his blood and several teeth scattered on the ground. Officer Brent Bordelon described Black-shire’s face as being sunken in. He testified that nearby persons were detained, and that he did not recall any of the witnesses being intoxicated. There were no weapons located near Blackshire or in his hands. Blackshire was transported to LSU Shreveport Hospital, where he died the following day at 1:04 p.m.

Dr. James Traylor, a forensic pathologist at the LSUS Health Sciences Center, performed Blaekshire’s autopsy. He testified that the death certificate listed the cause of death as hemorrhagic shock and blunt force injuries from being “struck with a wooden object by another.” Dr. Traylor stated that the death certificate was consistent with his autopsy results. He said Blackshire suffered numerous blunt force injuries that included five blows to his head, seven blows to his upper arms, two blows to his chest, one blow to his abdomen, three blows to his left thigh, and 12 of his teeth knocked out.

IsDr. Traylor also testified that the patterns of abrasions on Blackshire’s body were caused by a long and linear object with a squared-off end (two right angles). The injuries could have been caused by a blunt object, such as a lead pipe or a two-by-four. He stated that Blackshire had no injuries to his own hands, knuckles, back, the back of his head, his shoulders, or the back of his legs.

The defendant was apprehended the next day. Shreveport Police Corporal Brian Lauzon testified that he asked the defendant what happened after he read him his Miranda rights and the defendant said he understood his rights:

And I asked him what happened. He said he basically got the best of the guy. In one of his first statements he said that the guy came towards him with a knife, so he picked up a board and struck with it.
And I asked him, where did you hit him with it?
And he said, in the head.
And I asked him if he knocked him out.
And he said he thinks he did.
I asked him what happened next, did you call the police? He says, no, he left after that.
Then after that, kind of changed things to say that he went toward — the victim went towards his wife, and he thought he was going to do something to his wife, so that’s when he picked up the board and struck the guy, the victim, had a knife and was going towards his wife, and that’s when he picked up the board and struck the victim.

Corporal Lauzon testified that the defendant ultimately presented three versions of the event.

| fiShreveport Police Detective Shonda Holmes interviewed the defendant. The state introduced a recording of this interview into evidence, without objection, as Exhibit # 58 and published it for the jury. Summarizing this interview, the defendant stated that Blackshire was arguing with his wife; that the defendant tried to defend his wife; that Blackshire came towards him with a knife or a box cutter; and that he (the defendant) grabbed a two-by-four and struck Blackshire once on his head and once on the side of his face. He said that Blackshire was not on his cell phone when he struck him.

Katie Traweek, a DNA analyst with the North Louisiana Criminalistics Lab, testified that she tested the defendant’s clothes and found only the presence of his own blood on his pants.

The defense did not present any witnesses.

The jury unanimously found the defendant guilty as charged. On September 4, 2013, after his motion for post-verdict modification was denied, the defendant waived sentencing delays and received the mandatory sentence of life imprisonment, without the benefit of probation, parole, or 17suspension of sentence. On September 6, 2013, the defendant filed a notice of appeal.

DISCUSSION

By his first assignment of error, the defendant argues that the evidence adduced at trial was insufficient to prove that he committed second degree murder. Specifically, he points to inconsistencies in the accounts given at trial by the three witnesses at the scene of the incident, namely Leroy Scott, Sarah Davis, and Robert Rattler. Their testimony was not reliable, he argues, due to their likely intoxication, and particularly the account by eyewitness Rattler that the defendant struck the victim only twice, which was contradicted by the testimony from the forensic pathologist, Dr. Traylor, who stated that the victim was struck 18 times corresponding to that number of wounds on the victim. These inconsistencies make their testimony suspect and thus rendered the evidence insufficient to convict the defendant on the charge of second degree murder.

The standard of appellate review for sufficiency of the evidence 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 v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297. It is the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2 Cir.1992), writ denied, 617 So.2d 905 (La.1993); State v. Bonnett, 524 So.2d 932 (La.App.2 Cir.), writ denied, 532 So.2d 148 (La.1988). The trier of fact hears the testimony first hand and unless the fact finder’s assessment of believability is without any rational basis it should not be disturbed by a reviewing court. State v. Mussall, 523 So.2d 1305 (La.1988); State v. Combs, 600 So.2d 751 (La.App. 2 Cir.), writ denied, 604 So.2d 973 (La.1992).

Second degree murder includes the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1. Specific 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. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Cortez, 48,319 (La.App. 2 Cir. 8/7/13), 122 So.3d 588, 593. Specific intent is an ultimate legal conclusion to be resolved by the fact finders. State v. Lecompte, 371 So.2d 239, 243 (La.1979).

To obtain a second-degree murder conviction, the state was required to show beyond a reasonable doubt that Blackshire was killed by the defendant, and that the defendant had the specific intent to kill Blackshire or Rinflict great bodily harm upon him.

The testimony at trial and physical evidence does not show that the defendant was in danger from the victim, nor protecting Sherniecy Smith. Officer Holmes testified that, according to witnesses to the beating, Sherniecy was not present and did not arrive until later, after the incident was over. Leroy Scott, Sarah Smith, and Robert Rattler all testified that Sarah was the only female present. Although a pocketknife was found in the victim’s pocket at the hospital, none of the witnesses saw the victim brandishing a knife, nor was there a knife in either hand or near his body when police arrived. The evidence strongly indicates that Blackshire, who was 5'7" tall feared the much taller, 6'2" defendant, and he was calling 911 on his cell phone when he was brutally attacked by the defendant.

Dr. Traylor testified that the wounds indicated that Blackshire was struck 18 times with a blunt instrument. While Sarah Davis actually saw the defendant strike the victim “two more times” as he lay motionless on the ground, the circumstances obviously indicated to her that he had been struck violently prior to those blows.

The greatest inconsistencies concern the testimony of Robert Rattler, who said he saw the defendant pick up a long object and strike the victim once in the back of the head while the victim was calling 911. He testified that Blackshire never said anything to the 911 dispatcher who he heard say, “911.” The victim fell to the ground. The defendant struck him only once more and then left. Blackshire lay on the ground bleeding and choking for air.

Rattler’s testimony is inconsistent with the physical evidence of 18 |]()blows to the victim, none of which were to the back of the head, and the lengthy 911 recording of Blackshire’s statements to the dispatcher and the attack itself heard on the recording. On the other hand, Rattler’s vivid testimony regarding Blackshire laying on the ground struggling to breathe appears to be consistent with his injuries. Most importantly, Rattler’s testimony identifies the defendant as the aggressor who struck the victim with a “long big old white thing.”

Leroy Scott testified that he did not witness the beating, and only saw Black-shire lying on the ground. However, he testified regarding who was present at the time and the argument between the defendant and Blackshire. Dr. James Traylor testified that Blackshire had a total of 18 blunt force injuries on his head, upper arms, chest, abdomen, and left thigh (with 12 of his teeth being knocked out), caused by a long and linear blunt object, with a squared-off end (two right angles), such as a lead pipe or a two-by-four. Dr. Traylor also stated that Blackshire had no injuries to his own hands, knuckles, back, shoulders, or the back of his head or legs. Sarah Davis testified that she saw the defendant hit the victim hard “two more times” with a long instrument as he lay unconscious on the ground.

As the trier of fact, the jury had the discretion to accept or reject all or part of any testimony, to decide how much weight to give to a witness’s testimony, and to determine what is credible and what is not credible while performing its duty and reaching its conclusions. In this case, they obviously concluded that the defendant was the aggressor with specific intent to kill or cause great bodily harm to the victim.

Based on our review, we conclude that a rational trier of fact could [ n certainly have found from this evidence that the defendant had the specific intent to kill or commit great bodily harm and that the state has proven these essential elements of the crime of second degree murder beyond a reasonable doubt.

Therefore, this assignment of error is without merit.

By his second assignment of error, the defendant argues that, under the facts and circumstances of this case, the trial court erred when it did not grant a downward departure from the mandatory life sentence. The defendant complains that the trial court did not discuss any mitigating factors, thus making it impossible to know whether circumstances existed which would have warranted a downward departure from the mandatory sentence.

In opposition, the state emphasizes that the defendant did not file a motion to reconsider sentence, and that the circumstances of the case do not warrant a downward departure from the mandatory life sentence. Specifically, the state asserts that the defendant mercilessly bludgeoned Blackshire to death by striking him 18 times with a two-by-four, and continued to attack Blackshire as he lay motionless and unconscious on the ground. The state points to the evidence that the defendant broke numerous bones in the victim’s face, knocked out 12 of his teeth, tore his liver, and left him unrecognizable for his family. The state also emphasizes that the defendant did not turn himself in to the authorities and has not shown any remorse for his actions.

Whoever commits the crime of second degree murder shall be | ^punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:30.1. Where there is a constitutional mandatory sentence, there is no need for the trial court to justify, under Art. 894.1, a sentence it is legally required to impose. State v. Koon, 31,177 (La.App. 2 Cir. 2/24/99), 730 So.2d 503; State v. Rose, 606 So.2d 845 (La.App. 2 Cir.1992); State v. Gill, 40,915 (La.App. 2 Cir. 5/17/06), 931 So.2d 409, 413 writ denied, 2006-1746 (La.1/26/07), 948 So.2d 165.

Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review. La. C. Cr. P. art. 881.1.

To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339.

Because the defendant did not file a motion to reconsider sentence, this court’s review is limited to the bare claim that his sentence is constitutionally excessive. La. C. Cr. P. art. 881.1. There was no need for the trial court to justify, under La. C. Cr. P. art. 894.1, a sentence that it is legally required to impose. In addition, to rebut the presumption that the mandatory sentence is constitutional, the defendant must clearly and 1 ^convincingly show that, because of unusual circumstances, he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Here, the defendant has not sufficiently demonstrated that he is the “exceptional” defendant for which downward departure from the statutory minimum sentence is required.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The state introduced a recording of this phone call into evidence, without objection. The call lasted for one minute and 40 seconds.

      .Shreveport Police Corporal Sherry Stump testified that Blackshire had the following belongings: a plastic bag carrying a pocketknife, a set of keys on a key chain, a black wallet, a package of Rain cigarettes, and $2.50.

      . The state introduced a copy of the coroner’s report/autopsy findings into evidence, without objection, as Exhibit # 9.

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

      . The following is a comprehensive summary of the defendant's interview: The defendant said that Blackshire was arguing with him and his "wife," Sherniecy Smith; that he and Blackshire had a history of arguing; that Blackshire pushed him and he pushed back; that he attempted to walk away and then heard someone yell "Watch your back!”; that he turned around and saw Blackshire coming towards him with an open knife or box cutter; that he grabbed a wooden two-by-four board from Mr. Leroy’s woodpile (near a fence) to defend himself against Blackshire; that he turned around and swung the board at Black-shire and struck him twice, once while Black-shire was standing and once when he fell to the ground; that he struck Blackshire in the face and on the side of the head; that all this occurred near a tree and a fence; that he left the scene and did not call the police because he was not thinking; that the victim did not call 911; that he was defending himself and his "wife,” and he left the scene before she did; that he had smoked more than six blunts and had two 40-ounce Olde English malt liquors that day; that he was wearing a white shirt and blue jeans; that he did know his "wife's” address or her whereabouts; that he did not remember what he did with the board; and that he was angry, pissed, scared and did not know what the hell had happened.