author: PITMAN, J.

text:
    Mary CAMPBELL, Jerry Campbell, Jr. & Jenny Marie Ward, each individually & o/b/o The Estate of their Husband & Father, Jerry Don Campbell, deceased, Plaintiffs-Respondents v. NEXION HEALTH AT CLAIBORNE, INC., d/b/a/ Claiborne Healthcare Center, Defendant-Applicant.
    No. 49,150-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.

      Caraway LeBlanc, L.L.C., New Orleans, by: Ann Marie LeBlanc, Kathryn M. Caraway, for Applicant.
    Law Offices of Gia Kosmitis, APLC, Shreveport, by: Georgia P. Kosmitis, for Respondents.
    Before MOORE, PITMAN & GARRETT, JJ.
   PITMAN, J.

| iThis is a tort action brought by Plaintiffs, Mary Campbell, Jerry Campbell, Jr. and Jenny Marie Ward, respectively the surviving spouse and children of Jerry Don Campbell, against Defendant, Nexion Health at Claiborne, Inc., d/b/a Claiborne Healthcare Center (“Claiborne Healthcare”), alleging that Jerry Don Campbell died after allegedly choking on a peanut butter sandwich at Claiborne Healthcare. Defendant filed a peremptory exception of no right of action and a dilatory exception of prematurity based on Plaintiffs’ failure to seek review of the claim by a medical review panel. The trial court overruled the exception of no right of action and declared the exception of prematurity moot. A writ of certiorari was granted. For the following reasons, the writ is granted in part insofar as it addresses the dilatory exception of prematurity. The trial court’s finding the exception of prematurity to be moot is hereby overruled and the exception is sustained and made peremptory. In respect to the peremptory exception of no right of action, the writ is denied. Plaintiffs belong to the class of persons having a right of action to seek redress for the death of their relative.

FACTS

In June 2013, Mr. Campbell was a stroke patient at Claiborne Healthcare who had known swallowing difficulties (dysphagia) and dementia for which he had undergone weeks of speech and dysphagia therapy. Shelley Lawson, the speech language pathologist at Claiborne Healthcare, signed a discharge summary for Mr. Campbell on May 28, 2013, which made recommendations for his care, including occasional 12supervision during meals and a diet of puree-consistency solids and thin liquids.

On June 20, 2013, Mr. Campbell retrieved a peanut butter sandwich from a sandwich cart and went to his regular table in the dining room. A nurse found him unresponsive some time later, and CPR was administered. Mr. Campbell was resuscitated and transported by ambulance to the hospital where he later died.

Plaintiffs filed a petition for wrongful death and survival, individually and on behalf of the estate of Mr. Campbell, alleging that, at all times, Mr. Campbell was under the care and custody of Defendant and that a contract had been entered into for Defendant to provide care and services to meet his needs, including supervision, monitoring and assistance for his safety. The petition also alleges that Mr. Campbell was a stroke patient who required assistance with daily care, including eating his meals. It further alleges that Mr. Campbell had known swallowing difficulties and that Defendant’s agents and employees knew or should have known that he was susceptible to injuries if his food and diet were not properly monitored. Plaintiffs claim that Mr. Campbell “was provided and allowed to eat peanut butter without proper supervision; choked and suffered injury.” Further, the petition alleges that Mr. Campbell died as a result of Defendant’s failure to provide him reasonable and safe care.

| .^Plaintiffs sought damages under “negligence, breach of duty and care, and breach of contract for care and services.” They also claimed that they were entitled to judgment against Defendant for deprivation or infringement of the rights of Mr. Campbell as enumerated under the Nursing Home Resident’s Bill of Rights (“NHRBR”). La. R.S. 40:2010.8 et seq.

In response, Defendant filed a peremptory exception of no right of action and a dilatory exception of prematurity. Specifically, Defendant argued that Plaintiffs’ claims were made under the NHRBR and that such causes of action are not heritable. . Therefore, Plaintiffs were not the proper persons to file a suit to enforce rights under the NHRBR, even if there was such a cause of action. In regard to the exception of prematurity, Defendant argued that Plaintiffs’ claims fall under the Louisiana Medical Malpractice Act (“LMMA”), which requires that the incident be considered by a medical review panel prior to the filing of suit. In support of its exceptions, Defendant provided pertinent portions of Mr. Campbell’s medical chart, Plaintiffs’ petition and certification of Defendant’s enrollment in the Louisiana Patient’s Compensation Fund.

Plaintiffs opposed the exceptions and argued that no claims have been asserted under the NHRBR and that the claims asserted do not fall under the LMMA, but are general negligence and breach of contract claims. Plaintiffs [4assert that Defendant owed a duty to Plaintiffs to ensure that Mr. Campbell was afforded all rights under the law. Further, Plaintiffs assert that their claims are based upon the custodial care of Mr. Campbell, and are not “treatment related” or “healthcare” as defined by the LMMA.

Following the hearing on the exceptions, the trial court concluded that “the peremptory exception of no right of action should be overruled, and therefore the dilatory exception of prematurity is moot.” No written reasons for judgment were provided, though the trial court, in a footnote, found “the plaintiffs’ claims fall outside the Medical Malpractice Act, as they are custodial in nature.”

Defendant filed a notice of intention to seek writs, and the writ application was timely filed. This court granted a writ of certiorari.

DISCUSSION

Defendant argues that the trial court erred when it stopped short of determining Plaintiffs had no cause of action under the NHRBR and in failing to dismiss all of their NHRBR allegations since they sought no relief thereunder. Defendant further contends that the trial court erred when it overruled its objection of no right of action and failed to find that rights under the NHRBR were not heritable because they were strictly personal to Mr. Campbell under the Louisiana Civil Code. Defendant also argues that the trial court erred when it denied the exception of prematurity since it did not review the entirety of Plaintiffs’ allegations and further erred when it did not properly apply to those allegations the factors articulated in Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303.

|fiPlaintiffs respond that Defendant never filed an exception of no cause of action; thus, there is no ruling to be reviewed with regard to that exception and it should be stricken. With regard to the exception of no right of action, Plaintiffs argue that they have asserted no claims under the NHRBR, which now provides only injunc-tive relief. They argue that their claim is based in wrongful death and breach of contract and that the trial court correctly found they have a right of action in this case.

Plaintiffs also argue that their petition is not premature because they allege facts that do not sound in medical malpractice.

Instead, the fact that Defendant left a peanut butter sandwich within reach of Mr. Campbell did not involve medical treatment, nor was it “treatment related.” They claim no expert opinion is required in this case; and, therefore, the case need not be presented to a medical review panel because it does not meet the Coleman, supra, criteria.

No Right of Action

As Plaintiffs point out, there was no exception of no cause of action filed by Defendant. Only the objection of no right of action was filed. Therefore, this court will address only the objection of no right of action.

Only a person having a real and actual interest to assert may bring an action. La. C.C.P. art. 681; Wagoner v. Chevron USA Inc., 45,507 (La.App.2d Cir.8/18/10), 55 So.3d 12, writ denied, 10-2773 (La.3/2/12), 83 So.3d 1032; Louisiana Paddlewheels v. Louisiana Riverboat Gaming Comm’n., 94-2015 (La.11/30/94), 646 So.2d 885. An exception of no right of action is a peremptory exception, the function of which is to show | fithat, based upon facts alleged and the evidence submitted, a plaintiff has no legal right or interest in enforcing the matter asserted. La. C.C.P. art. 923; Thornton v. Carthon, 47,948 (La.App.2d Cir.5/15/13), 114 So.3d 554, writ denied, 13-1785 (La.11/1/13), 125 So.3d 435. Wagoner, supra. It asks whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted. .Louisiana Paddlewheels, supra.

The burden of proof of establishing the exception of no right of action is on the éxceptor. Thornton, supra; Wagoner, supra. An exception of no right of action presents questions of law requiring a de novo review by the appellate court. La. C.C.P. art. 927; Thornton, supra; Wagoner, supra.

Although Defendant correctly argued that the only remedy available under the NHRBR is injunctive relief, which would not be available in this case as the patient is deceased, the NHRBR is not an exclusive remedy. La. R.S. 40:2010.9 specifically provides that the NHRBR does not limit or restrict other legal remedies available. Those additional remedies include breach of contract, general negligence and medical malpractice claims. As such, a claim may fall under the NHRBR and also under general tort law. Plaintiffs’ petition asserts viable claims for breach of contract and general negligence.

Because Plaintiffs are the spouse and children of the decedent, they belong to the class of persons to which the law grants a remedy for the general tort negligence, breach of contract, wrongful death and survival claims alleged. La. C.C. arts. 2315.1 and 2315.2. As such, the trial court |7was correct in overruling of Defendant’s exception of no right of action. Therefore, this assignment of error is without merit.

Exception of Prematurity

An action may be premature if it is brought before the right to enforce the . claim sued upon has accrued. The exception of prematurity, as provided in La. C.C.P. art. 926, raises the issue of whether the judicial right of action has yet to come into existence because a prerequisite condition has not been fulfilled. Heacock v. Cook, 45,868 (La.App.2d Cir.12/29/10), 60 So.3d 624.

Under the LMMA, all medical malpractice claims against qualified health care providers must first be submitted to a medical review panel for consideration. La. R.S. 40:1299.47(A)(l)(a). A civil action may not proceed against a qualified health care provider, or its insurer, until the complaint has been presented to a medical review panel. La. R.S. 40:1299.47(B)(l)(a)(I). A qualified health care provider is one who has provided proof of insurance in the amount of at least $100,000 per claim and paid the necessary surcharges. La. R.S. 40:1299.42.

The dilatory exception of prematurity is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for an opinion by a medical review panel before filing suit against the provider. Spradlin v. Acadia-St. Landry Med. Found., 98-1977 (La.2/29/00), 758 So.2d 116. The defendant must show that it is a qualified health care provider, that the | ^allegations fall within the LMMA, and that it is, therefore, entitled to a medical review panel.

The LMMA defines medical malpractice as follows:

“Malpractice” means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient. La. R.S. 40:1299.41(A)(13).

A “tort” is defined as “any breach of duty or any negligent act or omission proximately causing injury or damage to another.” La. R.S. 40:1299.41(A)(22). Richard v. Louisiana Extended Care Centers, Inc., 02-0978 (La.1/14/03), 835 So.2d 460.

While acts of malpractice can occur in the rendering of professional services, the patient must be in the process of receiving “health care” when the negligent rendition of professional services occurs. Richard, supra. “Health care” is defined as “any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement [.]” La. R.S. 40:1299.41(A)(9). Nursing home residents present a special case, as the resident is not always receiving medical care or treatment, but is always confined to the facility. Not all negligent acts by a nursing home constitute medical malpractice. Richard, supra.

IsAs the LMMA serves to limit the rights of tort victims, its coverage should be strictly construed. Richard, supra. In Coleman v. Deno, supra, the supreme court set forth a six-factor test to determine whether a negligent act is covered under the LMMA. Those factors are:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill; (2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached; (3) whether the pertinent act or omission involved assessment of the patient’s condition; (4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform; (5) whether the injury would have occurred if the patient had not sought treatment; and (6) whether the tort alleged was intentional. Coleman, supra.

In Eldridge v. Heritage Manor, L.L.C., 06-718 (La.App.3d Cir.11/2/06), 942 So.2d 743, the plaintiffs denoted their claims as negligence, breach of contract for services to be provided, breach of duties and violations of-rights. The patient was described as “totally disabled due to a stroke.” Specific allegations included, among others, that the defendant failed to properly care for and treat their patient; failed to implement an adequate care plan to meet their patient’s needs; failed to provide adequate number of trained nursing staff; failed to properly monitor and respond to changes in the patient’s condition, provide that information and change of status to the family and physician; failed to obtain and provide therapy and assistance devices and safety; and failed to adhere to quality care standards and allocate proper funding for care and services to meet the needs of their patients. The plaintiffs argued that some claims were purely custodial and, therefore, outside of the LMMA. The El-dridge court found that the claims lTnfelI under care, treatment and assessment so as to require presentation to a medical review panel. It was noted that expert medical testimony would be needed to determine if the standard of care was breached with respect to care and treatment, as the actions involve treatment modalities and the need therefor. Finally, the actions involved the assessment, or lack thereof, of the resident’s condition.

In Guillory v. Royal, Inc., 07-754 (La.App. 3d Cir.12/5/07), 971 So.2d 1234, suit was brought by the children of a nursing home resident who choked while eating peaches, and died. The resident had a history of choking and had previously been hospitalized as a result of choking on a sandwich. Her physician had instructed the staff to assist and supervise her while eating. After her death, the plaintiffs filed a petition alleging that the nursing home failed to adequately monitor the resident, failed to follow doctor’s orders to assist and supervise the resident while eating and failed to promptly attend to the resident after observing that she was choking. The nursing home filed an exception of prematurity, which was maintained by the trial court. The children appealed, but the appellate court affirmed, finding that the allegations sounded in medical malpractice. The court found that the children’s failure to submit the claim to a medical review panel rendered the petition premature. The court also found their suit required the testimony of experts regarding assessment, monitoring, supervision of the resident, as well as the applicable standard of care and analysis of the professional skill required in attending to a patient in distress.

|nIn the case at bar, Plaintiffs admit that Mr. Campbell suffered from a stroke and Alzheimer’s disease and that he required care and supervision during daily activities. Further, approximately one month prior to his death, Mr. Campbell was evaluated for dysphagia, and the speech language pathologist made a recommendation for his care indicating that he should eat pureed solids and thin liquids. She also recommended that he should have occasional supervision during meals. Plaintiffs alleged that Defendant failed to properly supervise Mr. Campbell during meals and that this lack of supervision led to his death. They also alleged that the staff was not adequate in numbers to meet his needs and that they failed to implement a plan of care to meet his needs. Further, Plaintiffs alleged that the staff was not properly trained to care for his specific medical condition and needs. Most of these allegations are identical to those raised by the plaintiffs in Eldridge, supra.

After reviewing Plaintiffs’ allegations in light of the Coleman, supra, factors, we determine this claim as one sounding in medical malpractice requiring the testimony of experts regarding the assessment, monitoring and supervision of the decedent, as well as the applicable standard of care, an analysis of the professional skill required in attending to a patient in distress and a review of the correctness of the staffs actions in following the speech pathologist’s recommendations. Ultimately, a determination must be made as to whether there was negligence in the health care provided to Mr. Campbell. We, therefore, find that Defendant’s assignment of error has merit.

| ^CONCLUSION

For the foregoing reasons, as to the judgment of the trial court overruling the peremptory exception of no right of action filed by Defendant, Nexion Health at Claiborne, Inc., d/b/a Claiborne Healthcare Center, the writ is denied. As to the judgment finding moot the dilatory exception of prematurity filed by Nexion Health at Claiborne, Inc., d/b/a Claiborne Healthcare Center, the writ is granted, the exception is sustained and the writ is made peremptory. Costs of this writ application are assessed equally between the parties.

WRIT GRANTED IN PART, EXCEPTION SUSTAINED AND MADE PEREMPTORY. WRIT DENIED IN PART.

      . Specifically, Plaintiffs alleged that Defendant was responsible for the following reasons:
      A. Failing to provide adequate supervision and instruction, and training on the needs of Jerry Don Campbell;
      B. Failing to provide adequate attention and care to Jerry Campbell;
      C. Failing to properly inform the patient and his sponsor of a change in medical status, injuries and accidents;
      D. Failing to provide a safe environment and one free of accident hazards and injuries;
      E. Failing to properly respond to the patient’s needs and requests of family;
      F. Failing to provide adequate number of trained personnel to ensure proper safety, supervision and assistance as required by Mr. Campbell's safety;
      G. Failing to implement adequate policies, procedures, protocols and plans of care to meet the needs of patients;
      H. Failing to allocate and budget adequate money for qualified and trained nursing staff and to ensure those providing patient care were competent, caring.?


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Damien Eric CLARK, Appellant.
    Nos. 49,167-KA, 49,168-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.
    Damien Eric Clark, pro se.
    Peggy J. Sullivan, Monroe, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, E. Charles Jacobs, Assistant District Attorney, for Appellee.
   BROWN, Chief Judge.

[ , Defendant, Damien Clark, was charged with simple burglary in two separate docket numbers; the offenses occurred in January and February of 2013. He pled guilty to both charges on May 31, 2013, and waived sentencing delays. Defendant was given two ten-year consecutive sentences. He now appeals. We affirm defendant’s conviction but reverse his sentences and remand for resentencing.

Discussion

At the outset of the plea, this exchange occurred:

Prosecutor: He’s going to plead guilty to two simple burglaries, Your Honor, under docket number 198,254 and 198,253. The state will respectfully recommend ten years at hard labor to run consecutive on each. (Emphasis added).
Court: Okay. Is that what Mr. Clark wants to do, Mr. Broughton?
Defense counsel: Your Honor, that is correct; that is what he wants to do. It’s not an aggravated charge. I did explain to him that it’s not an aggravated charge. And I did explain to him what I know about DOC calculates the time and good time statutes but for the record I have not promised anything about that. I just told him what I know about the law about good time.

The court conducted a thorough examination of defendant in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). During the colloquy, this exchange occurred:-

Court: You understand the penalties minimum and maximum for a plea of guilty to simple burglary is zero to twelve years per count, which would expose you to twenty-four years in all. Do you understand that?
| gDefendant: Yes, sir.
Court: You understand that the sentence is up to the Court? (Emphasis added).
Defendant: Yes, sir.

The factual basis for the pleas was recited into the record:

Your Honor, this is 198,253, first. Your Honor, on or about February 6, 2013, this defendant, Mr. Damien Clark, accompanied by the co-defendant, ... Ms. Breshawn Denise Sweeney, within the confines of Bossier Parish, committed the offense of simple burglary by the unauthorized entry of a vehicle belonging to Melissa Spilker. At that time that Mr. Clark entered the vehicle of Ms. Spilker he did not have the permission nor the consent of Ms, Spilker to enter that vehicle. On docket number 198,254, Your Honor, on or about January 28, 2013, Mr. Damien Clark, again with-in the company of Ms. Breshawn Denise Sweeney did commit the offense of simple burglary within the confines of Bossier Parish, State of Louisiana, by entering into a vehicle belonging to Tabitha Cain. At the time that Mr. Clark entered into this vehicle, he did not have the permission nor the consent of Tabitha Cain to enter into the vehicle. And did commit a theft of property located within the vehicle.

When the court questioned defendant’s lawyer as to whether defendant understood and voluntarily waived his rights, counsel stated:

Yes, I do, Your Honor, and I’d also like to add that we discussed the circumstances of his co-defendant’s plea and the multiple offender bill just in — me laying — telling him everything he needed to know.

As the court accepted defendant’s guilty pleas, this exchange occurred:

Court: I’ll accept those guilty pleas as being freely and voluntarily given. Mr. Broughton, does your client wish to waive delays and be sentenced according to the agreed-upon sentences?
Defense counsel: Yes, Your Honor.
IsCourt: Pursuant to the agreed-upon sentence under 198,253,1 hereby sentence you to serve ten years at hard labor.... Under 198,254, I hereby sentence you to serve ten years at hard labor which is to run consecutive to the other ten years....

Clark did not file a motion to reconsider sentence. On June 14, 2013, defendant filed a pro se motion for appeal. In that motion, defendant alleged that his trial counsel provided ineffective assistance and that defendant never received discovery in his cases. The district court granted the motion for appeal; ultimately, counsel from the Louisiana Appellate Project was appointed to represent defendant on appeal, and the cases were consolidated in this court.

Defendant’s appellate counsel filed an Anders brief, seeking to withdraw, in which she alleged that she could find no non-frivolous issues to raise on appeal. See, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.04/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). This court did not receive a pro se brief from defendant.

If the sentences were imposed in accordance with an agreement as part of his guilty plea, defendant does not have the right to appeal the sentences as excessive. The record is unclear as to whether the parties agreed to a particular sentence. We order that the parties address whether there was an agreed to sentence and if not, whether the sentences imposed were excessive.

RThe record reflects that defendant was thoroughly informed of his Boykin rights at the time of his guilty plea, and in addition, the trial court explained the potential penalties. The record shows that the prosecutor made a recommendation for sentencing, to which the court responded that sentencing was “up to the court.” This does not demonstrate an agreement.

The court gave no reasons for the consecutive ten-year sentences, except that they were agreed-upon. The record shows that defendant, who was 18 years old, broke into two vehicles and committed thefts therein. The record does not show that defendant had other charges pending or that he had a prior criminal record. The record does not show the circumstances of the co-defendant’s plea. We can not and do not express an opinion on excessiveness.

The convictions by guilty pleas of defendant are affirmed; however, the sentences imposed are reversed and we remand for a sentencing hearing in compliance with La. C. Cr. P. Article 894.1.

As to defendant’s pro se arguments concerning the issues of ineffective assistance of counsel and discovery, the record is not adequate for review. In State v. Carter, 10-0614 (La.01/24/12), 84 So.3d 499, 511, cert. denied, — U.S.—, 133 S.Ct. 209, 184 L.Ed.2d 40 (2012), the Louisiana Supreme Court wrote:

A claim for ineffective assistance of counsel is more properly raised in an application for post-conviction relief. State v. Peart, 621 So.2d 780, 787 (La.1993); State v. Burkhalter, 428 So.2d 449, 456 (La.1983).. This forum enables the judge to conduct, if necessary, a full evidentiary hearing on the matter. State v. Seiss, 428 So.2d 444, 449 (La.1983). Under the standard for ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d5 674 (1984), adopted by this court in State v. Washington, 491 So.2d 1337, 1339 (La.1986), a reviewing court must reverse a conviction if the defendant establishes: (1) that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. Because defendant has not asserted any specific claims that his counsel’s performance was either inadequate or resulted in prejudice to his case, we need not address an ineffective assistance of counsel claim at this time.

Conclusion

Defendant’s convictions are affirmed, his sentences are reversed, and the case is remanded for compliance with La. C. Cr. P. article 894.1.

MOORE, J.,

concurs.

|,I respectfully concur. “Where a specific sentence or a sentencing cap has been agreed upon as a consequence of a plea bargain, a sentence imposed within the agreed range cannot be appealed as excessive if that right has not been specifically reserved, and there is no need for the trial judge to give reasons for the sentence as normally required by La. C. Cr. P. art. 894.1.” State v. Fizer, 43,271 (La.App. 2 Cir. 6/4/08), 986 So.2d 243. “Indeed, there is no need for the trial court to comply with that article when the defendant has agreed to a sentence cap.” State v. Smith, 49,163 (La.App. 2 Cir. 6/25/14), 145 So.3d 1097. In light of this settled jurisprudence, I would not hold that the district court was required to state a factual basis for sentence in this case.

However, the present record establishes only that this 18-year-old offender committed two car break-ins. On this meager showing, the sentences totaling 20 years at hard labor may well be excessive. For this reason, I concur in the majority’s decision to vacate the sentence and remand for a new sentencing hearing that complies with Art. 894.1.

      . Defendant was charged along with a co-defendant, Breshawn Denise Sweeney.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Jeffery BROUSSARD, Jr., Appellant.
    No. 49,240-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.

      Louisiana Appellate Project by Teresa Culpepper Carroll, Jonesboro, for Appellant.
    Jerry L. Jones, District Attorney, John G. Spires, Devin T. Jones, Stephen T. Sylvester, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   MOORE, J.

[, The defendant, Jeffery Broussard, Jr., was accused of committing the armed robberies of two retail stores in Bastrop in which two victims were present at each store. Following a jury trial, the defendant was found guilty as charged of four counts of armed robbery and four counts of conspiracy to commit armed robbery. He was sentenced to 40 years at hard labor for each armed robbery conviction and 20 years at hard labor for each conspiracy conviction. The court ordered concurrent sentences for the four criminal offenses (two armed robbery and two conspiracy convictions) involving the first store and concurrent sentences for the four offenses involving the second establishment, but requiring that the second set of sentences will be served consecutively to the first set. From these convictions and sentences, the defendant now appeals.

For the following reasons, we vacate and set aside two of the conspiracy convictions and sentences; we affirm the remaining two conspiracy convictions and sentences, and we affirm the four armed robbery convictions and sentences.

Facts

On May 3, 2011, the defendant, Jeffery Broussard, Jr., while armed with a .32 caliber pistol, robbed the AT & T store in Bastrop, Louisiana. Three days later, on May 6, 2011, he committed an armed robbery at Advance America, a payday loan business in Bastrop, using the same pistol. Two employees, David Hakim and Dana Meeks, were present at the AT & T store robbery, and two employees, Kelly Ed-monds and Rebecca McLeod, were present at the Advance America robbery. Except for Meeks, all these | ¡¡victims testified at Broussard’s trial. Their trial testimony and Broussard’s testimony form the basis of the following factual summary:

David Hakim was sitting at his computer desk at the AT & T store in Bastrop, Louisiana, on May 3, 2011, when he heard someone speaking loudly near the front of the store where his co-worker, Dana Meeks, was located. He got up to assist Meeks. He heard a man whom he identified as the defendant, shout, “Give me all the money,” and tossed a bag to Meeks. Meeks then threw the bag to Hakim. The defendant stuck a gun to Hakim’s chest and ordered him to “[f]ill the bag.” After Hakim filled the bag with money, the defendant ordered both Hakim and Meeks to lie down on the floor. He told them he would shoot them if they followed him, and he left the store.

Three days later, on May 6, 2011, Kelly Edmonds was working in Bastrop at Advance America. She had just returned from lunch when a man, whom she identified as the defendant, came into the store. Edmonds was seated at her desk at the front of the store while McLeod, a coworker, was at her desk in the back of the store. Edmonds greeted the man and asked if she could help him. The defendant raised his shirt and showed Edmonds a “small shiny” gun tucked into his pants. Edmonds backed away from her desk and stood near the wall. The defendant warned, “You better not push that panic button.” He then climbed over the divider separating him from Edmonds and pointed the gun at her. He handed her a bag and told her he wanted “all the money in the building.”

|sAt that point, Edmonds testified, McLeod came around the corner from the back of the store. The armed man saw her and repeated to her that he wanted “all the money in the building.” McLeod told him that the money was kept in the back of the store. He forced both women to the back of the store, keeping his gun aimed at Edmonds’ back. Edmonds testified that McLeod “opened the safe and gave him the money out of the safe.” The man then forced the women back to the front of the store where he “got the money out of the cash drawers, and made us lay down on the floor.” He told the women not to move for ten minutes or he would return to kill them. Shortly thereafter, he put a gun to McLeod’s head and forcibly took her rings from her fingers. Then he quickly left the premises. Moments later, McLeod’s sister-in-law walked into the store. After she was told of the robberies, she locked the front door and called police. Edmonds identified Broussard as the robber during a photographic lineup conducted after the robbery.

Rebecca McLeod testified that on May 6, 2011, she and Edmonds had just returned from lunch and she was completing paperwork in the back of the store. Ed-monds was taking a test on her computer in the front of the store. As she rounded the corner, McLeod saw a man pointing a gun at her. He told her he wanted “all the money in the store” and warned her not to run or make any noise. McLeod described the gun used by the robber as “a little silver shiny gun.” McLeod testified that she “went to the back and got the cash.” The man then “demanded all the money out of the front, so we had to go to the front with the gentleman, [and] get the money out of the front ... ” |4The robber then left the store, but returned, pointed a gun at McLeod’[s] temple, and took the rings off of her fingers. He quickly fled from the building.

Detective Richard Pace of the Bastrop Police Department investigated the AT & T and Advance America store robberies. He stated at trial that Broussard was developed as a suspect after police received a Crimestoppers tip. Detective Pace described and authenticated several video recordings which captured images from the robberies.

Detective Eric Newnum testified that on May 10, 2011, Broussard was taken into custody after attempting to flee from officers sent to question him. After being advised of his right to remain silent, Broussard stated that he knew nothing about the robberies. However, on May 13, 2011, Det. Newnum received information that Broussard wanted to discuss the ease. After waiving his Miranda rights a second time, Broussard gave another statement to Det. Newnum.

In the statement, which Det. Newnum read in open court, Broussard explained that he owed Henry Bates (aka “Mac”) money from drug purchases Broussard made from Bates on credit. Bates told him he could repay his debt by committing robberies. Bates picked Broussard up at his home prior to the AT & T robbery on May 3, 2011 and drove to the AT & T store. Broussard stated that he “got out and went and done the job, jumped back in the car, threw the money up front, and laid down in the back seat.” Bates gave Broussard some of the money and kept $100, the amount Broussard said he owed Bates. However, when he was asked a second time |show much he kept, Brous-sard said that he could not recall, but said that he was “deep, deep in debt” to Bates. Broussard stated that the nickel-plated .32 that he used to rob the stores belonged to Bates.

Broussard also admitted to the robbery at the Advance America store. He said Bates “had told me about that and he was supposed to pick me up that morning about nine o’clock, which he didn’t ... he had to take his kids to school ... so he picked me up ... about three o’clock or something like that, early.” They drove to the Advance America store and parked. Broussard said, “I got out and went and done the job and got back in the car, laid down in the back seat.” Afterwards, Bates drove them back to his house, count-' ed the money, gave Broussard approximately $50 of the $150 in proceeds, and drove him home.

Detective Newnum testified that Brous-sard said that he was perpetually indebted to Bates from the drug purchases on credit. Broussard said that Bates and his supplier, “Nook,” threatened him regarding repayment, and warned him, “nigger you better get my money,” and “I don’t care how you get my money, I’m going to do this and I’m going to do that.”

Detective Newnum confirmed that Ed-monds, Hakim and Meeks all separately identified Broussard in a photographic lineup as the person who robbed them.

At trial, Broussard admitted that the statement he gave Detective Newnum was truthful and accurate. He testified that he suffered from hallucinations, seeing the devil at times, and had a history of consuming cocaine, hydrocodone, ecstasy, marijuana and alcohol. Broussard said that |fihis drug addiction started when he was 15 years old after being abused by his stepfather. He also stated that he suffered from paranoia and was afraid of Bates. Broussard alleged that Bates “put a pistol to my head and told me that he was going to kill me if I didn’t get his motherfuckin’ money,” and that Bates was a “gangster,” and that he “runs with gangsters.” Specifically, Broussard explained that Bates buys and sells drugs, and would “beat up” anyone who failed to repay him.

Broussard testified that a week prior to the first robbery, he purchased cocaine from Bates on credit. When Bates telephoned him asking for his money, Brous-sard told him he did not have it. Bates became upset and drove to Broussard’s home. Bates called Broussard outside, pointed a gun at his head, and told Brous-sard that he would repay Bates. If he failed, Bates threatened, he was going to kill him and burn down his house. Brous-sard stated that his fianceé, Belinda Moore, was in his house at the time.

Broussard admitted to committing the robberies, but said he “felt like if I hadn’t, Henry Bates was gonna kill me.” Brous-sard explained that Bates gave him cocaine prior to the robberies and that he was “high as a kite” before committing the crimes. Broussard insisted that when he was committing the robberies, “It wasn’t like I was out robbin’ people. I was gettiri some dope. If I did this, I’m gonna get some dope and get him off of me.” Brous-sard testified that the gun he used in the robberies was not loaded.

¡ ./Following his trial, the jury found Broussard guilty as charged of all eight counts; four counts of armed robbery and four counts of conspiracy to commit armed robbery. The jury declined to find Brous-sard not guilty by reason of insanity.

At a sentencing hearing held on September 5, 2013, the court reviewed the presen-tence investigation report (PSI), the submissions filed on behalf of Broussard and his victims, and the sentencing guidelines contained in La. C. Cr. P. art. 894.1. It specifically found that the armed robberies at the AT & T store and the Advance America store were separate incidents.

Broussard’s criminal history included a 1987 conviction in Texas for aggravated assault with a deadly weapon. Broussard was also arrested on September 6, 2006, in Houston, Texas, on a charge of possession of a controlled dangerous substance; however, the trial court determined that the arrest likely resulted in a conviction for a misdemeanor offense. The trial court also discussed Broussard’s social, educational and employment history, noting that Broussard stated he was both physically and emotionally abused by his father. Broussard has three children, one being a minor child, but has never paid child support.

Broussard’s trial counsel then moved for judgment notwithstanding the verdict and a new trial, alleging insufficient evidence. Both motions were denied.

Before imposing sentence, the trial court noted the following aggravating factors: (1) Broussard knowingly created a risk of death or great |sbodily harm to more than one person; (2) Broussard used threats of or actual violence during commission of the offenses; and (3) the crimes were crimes of violence. The trial court also stated its consideration of Broussard’s drug addiction, but determined that there was an undue risk that Broussard would commit another crime if not incarcerated. Additionally, the trial court found that Brous-sard was in need of correctional treatment and that a lesser sentence would deprecate the seriousness of his actions. As such, the trial court sentenced Broussard to serve 40 years at hard labor without the benefit of parole, probation or suspension of sentence for Counts One, Two, Three, and Four (the armed robbery convictions) and 20 years at hard labor without the benefit of parole, probation or suspension of sentence for Counts Five, Six, Seven, and Eight (the conspiracy convictions). The trial court ordered the sentences for Counts One, Two, Five, and Six (the May 3, 2011 offenses) to run concurrently with each other, but consecutively to Counts Three, Four, Seven, and Eight (the May 6, 2011 offenses).

On October 14, 2013, Broussard filed a motion to reconsider his sentence, which was denied by the trial court. Broussard filed this appeal raising four assignments of error.

Discussion

In his first assignment of error, Brous-sard alleges that the evidence was insufficient to convict him of the armed robberies, particularly with respect to the charges of the armed robbery of Dana Meeks and Kelly Edmonds, since he did not take anything of value from either of the two women. During the robbery of the AT & T store, only David Hakim handed | ^Broussard cash or something of value.

Similarly, Broussard argues, he never took anything of value in Kelly Edmonds’ possession during the Advance America robbery. Edmonds, he argues, was a new employee and a convicted felon; therefore, she was likely not entrusted with any money as part of her employment at the time of the robbery.

Broussard also contends that the evidence was insufficient to convict him of conspiracy to commit armed robbery. The bill of information charged him with four counts of conspiracy to commit armed robbery of each -of the employees, Hakim, Meeks, Edmonds and McLeod. Broussard contends, however, that he did not have prior knowledge of the victims’ identities, and there was only a general plan to commit robberies. Therefore, he argues, he lacked the requisite specific intent to conspire to rob the named individuals in the bill of information.

The state argues that Broussard confessed to the crimes and admitted at trial that he robbed the victims. Although Broussard did not take any property directly from Dana Meeks or Kelly Ed-monds, it is sufficient that the property that was taken was in their presence or control. State v. Long, 36,167 (La.App. 2 Cir. 10/30/02), 830 So.2d 552 (Elements of armed robbery were proven where the defendant took property from a store while the employee was hiding in the restroom during the robbery.)

Regarding the conspiracy convictions, the state maintains that the evidence clearly showed that Broussard had the specific intent to commit the armed robberies in order to fund his drug addiction. Brous-sard’s |10statement to Det. Newnum mentioned that Bates and Broussard had planned in advance to commit each robbery so that Broussard could repay his debt. Bates then picked up Broussard, “drove him to the back of the AT & T store and told him to get out.” Broussard stated that “I got out and went and done the job, jumped back in the car, threw the money up front, and I laid down in the back seat.” These facts, the state argues, demonstrate Broussard and Bates formed an agreement to commit the armed robbery prior to execution of the AT & T store robbery.

Prior to robbing the Advance America store, Broussard stated that, “he [Bates] told me to get out and I got out and went and done the job and got back in the car, laid down in the back seat.” The men then counted the money and divided the proceeds. The state argues that our law does not require that a defendant know his specific victims in order to be convicted of conspiracy to commit armed robbery.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Crossley, 48,-149 (La.App. 2 Cir. 6/26/13), 117 So.3d 585, writ denied, 2013-1798 (La.2/14/14), 132 So.3d 410. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to | n 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. Crossley, supra; 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. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913, cert. denied, 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010); State v. Hill, 42,025 (La.App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

Armed robbery is defined by La. R.S. 14:64(A) 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 ór intimidation, while armed with a dangerous weapon.”

If property is taken from the victim’s presence by intimidation with a weapon, it is sufficient to sustain a conviction for armed robbery. State v. Long, 36,167 (La.App. 2 Cir. 10/30/02), 830 So.2d 552; State v. Refuge, 300 So.2d 489 (La.1974); State v. Toney, 26,711 (La.App. 2 Cir. 3/1/95), 651 So.2d 387. To establish robbery, the property must be sufficiently under the victim’s control that, absent violence or intimidation, the victim could have prevented the taking. State v. Thomas, 447 So.2d 1053 (La.1984); State v. Long, supra; State v. Toney, supra.

| i2Broussard contends that evidence to support the convictions of armed robbery of Dana Meeks is insufficient because Meeks did not testify at trial, and the only evidence at trial was David Hakim’s testimony that Broussard screamed “give me all the money,” and threw the bag at Meeks, who then tossed it to Hakim. He held a gun on Hakim as he filled the bag, then ordered Hakim and Meeks to get on the floor. He did not take anything from Meeks’ person.

Similarly, Broussard argues that because he did not take anything from Kelly Edmonds, and she likely did not have access to the store’s money due to a prior felony conviction, the evidence is insufficient to sustain his conviction of armed robbery.

These arguments are without merit. The state presented direct evidence at trial showing that the defendant took money belonging to the AT & T store and Advance America that was in the immediate control of all four employees of the two stores, including Meeks and Edmonds, as well as Hakim and McLeod, by the use of force or intimidation while armed with a dangerous weapon. State v. Long, supra.

The fact that Broussard did not take anything directly from Meeks’ or Ed-monds’ person, or that neither of these women actually filled the bag with the money, nor did he point a gun directly on Meeks, is not determinative. Hakim’s testimony proved that Meeks was an employee of the store. Hakim heard and witnessed Broussard shouting at Meeks at the front of the store at the time of the robbery demanding all the money in the store. Meeks was clearly intimidated by these acts. As an employee of the store, Meeks was Irresponsible for the money that Broussard stole in her presence by threats and intimidation. Based on the evidence presented, any rational trier of fact could have concluded that the defendant was guilty of armed robbery of Dana Meeks beyond a reasonable doubt.

We reach the same conclusion with respect to the armed robbery of Kelly Ed-monds. The defendant intimidated and threatened Edmonds when he showed her the pistol and demanded all the money in the store. The money was taken in her presence under threat of being shot.

We conclude that, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of armed robbery proven beyond a reasonable doubt of both employees at both stores.

Regarding the defendant’s conspiracy convictions, criminal conspiracy is defined in La. R.S. 14:26(A) as “the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.”

For purposes of the crime of conspiracy, specific intent may be inferred from the circumstances of the transaction and actions of the defendant. State v. Johnson, 01-1084 (La.App. 3 Cir. 2/06/02), 817 So.2d 120; State v. Taylor, 96-1043 (La.App. 3 Cir. 2/05/97), 688 So.2d 1262, 1268. The overt act need not be unlawful; it may be any act, innocent or |14illegal, accompanying or following the agreement, which is done in furtherance of the object of the agreement. State v. Taylor, supra.

The existence of single or multiple conspiracies is a question of fact to be decided by the jury which must be upheld if the facts adequately sustain the conclusion. State v. Matthews, 26,550 (La.App. 2 Cir. 12/21/94), 649 So.2d 1022, 1027. In determining whether there exists single or multiple conspiracies, the court considered the following five factors from U.S. v. Ellender, 947 F.2d 748, 759 (5th Cir.1991): (1) the time frame; (2) the locations of the events charged as part of the conspiracy; (3) the parties involved in the conspiracy; (4) the extent to which the overt acts of the parties indicates whether the conspiracies have a common goal; and (5) the statutory offenses charged in the indictment. Id. The court observed that each cocaine sale was distinct in time. Each was a separate transaction. The transactions did not have a common location. Nor was there any evidence of a continuing conspiracy. The court concluded that the state presented evidence sufficient for the jury to determine that there was a separate conspiracy for each transaction.

Applying the Ellender factors in this case, we conclude that the evidence presented by the state at trial showed only two conspiracies. Broussard and Bates agreed in two separate occasions to commit two robberies, one on May 3, 2011, and a second on May 6, 2011. Specifically, Broussard stated that he owed Bates money for cocaine and that Bates told Brous-sard he could pay off his debt by committing robberies. The men agreed to meet on May 3, 2011, in order to commit the robbery. l^Bates drove Broussard to a location near the AT & T store, and Brous-sard went inside and robbed both Meeks and Hakim. Then, on May 6, 2011, the two men planned to meet to commit another robbery. As previously agreed, Bates picked up Broussard and Broussard went inside the Advance America store to carry out the robbery. Once in the store, Brous-sard robbed Edmonds and McLeod.

The common goal of the conspirators in the first robbery was to obtain AT & T’s property. The charge of two counts of armed robbery arose from the taking of AT & T’s property with two victims present. The offenses occurred at one time and one place, and was committed by the same co-conspirators. These factors indicate a single conspiracy to rob the AT & T store. Similarly, the common goal of the conspirators in charges involving Edmonds and McLeod was to obtain money from the Advance America store. The robbery occurred at the same time and place. Also, Broussard was charged in the same bill of information for all of the conspiracy to commit armed robbery charges, although Hakim and Meeks, and Edmonds and McLeod, were all identified by name.

We therefore conclude that the evidence was sufficient to sustain convictions for one conspiracy to commit armed robbery of AT & T and one conspiracy to commit armed robbery of Advance America. For these reasons, two of Broussard’s four convictions for conspiracy to commit armed robbery shall be vacated.

Regarding the specific intent requirement in determining the sufficiency of evidence to sustain the remaining conspiracy convictions, the | ^evidence clearly showed that Broussard had the specific intent to commit the armed robberies in order to fund his drug addiction. Brous-sard’s statement to Det. Newnum mentioned that Bates and Broussard had planned in advance to commit each robbery so that Broussard could repay his debt. Bates then picked up Broussard, “drove him to the back of the AT & T store and told him to get out.” Broussard stated that “I got out and went and done the job, jumped back in the car, threw the money up front, and I laid down in the back seat.” These facts demonstrate an agreement to commit the armed robbery prior to execution of the AT & T store robbery.

Similarly, Broussard’s testimony indicated that he and Bates agreed to commit another robbery, which would be carried out when Bates picked Broussard up.

Bates picked up Broussard and drove him to the Advance America store. Prior to robbing the Advance America store, Broussard stated that, “he [Bates] told me to get out and I got out and went and done the job and got back in the car, laid down in the back seat.” The men then counted the money and divided the proceeds.

We know of no provision in the law that requires that a defendant know whom the identity of his victims will be in an armed robbery of an establishment in order to prove a conspiracy. Viewing the evidence favorable to the prosecution, we conclude that any rational trier of fact could have concluded that the defendant was guilty beyond a reasonable doubt of two conspiracies to commit armed robbery charges. The fact that there were two employees present at each store when the each single conspiracy was carried out does not turn two conspiracies into four | ^conspiracies.

By his second assignment of error, Broussard contends that the district court and jury erred, as a matter of law, in failing to find that the defendant proved a compulsion defense in accordance with La. R.S. 14:18(6). Broussard claims that he was forced to commit the offenses under the threat of death or great bodily harm. To support this claim, he refers to his statement to Det. Newnum wherein he stated that Bates had allowed him to purchase drugs on credit and that he was “deep, deep in debt” to Bates. He also contends that he was afraid of Bates’ supplier, “Nook.” During his trial testimony, Broussard stated that Bates is a gangster and that he specifically threatened that if Broussard did not pay him that he would kill him and burn his house down. He also stated during his trial testimony that he felt that if he did not commit the robberies, Bates would kill him.

The state argues that Broussard failed to prove, by a preponderance of evidence, that he was justified in committing the armed robberies because his defense is based solely on his self-serving testimony that he was forced to commit the robberies. To the contrary, the evidence adduced at trial failed to show that Broussard was acting under present or immediate threats. According to Broussard’s trial testimony, the first alleged threat came a week prior to the first robbery. If Broussard was actually afraid for his life, the state argues, he would have sought help prior to the first robbery. Bates allowed him to keep some of the proceeds from the robberies. If Bates was truly a creditor who threatened Broussard’s life, then it is improbable that Bates would have allowed him to keep some of the stolen cash. The state l18also argues that threats by “Nook” were never present or immediate because he was never with Bates or Broussard during the robberies. The state also points out that Broussard failed to request a jury instruction in regard to the alleged justification.

The defense of justification is an affirmative defense that must be proven by a preponderance of the evidence. State v. Morrison, 45,620 (La.App. 2 Cir. 11/24/10), 55 So.3d 856, 864 (citing State v. Cheatwood, 458 So.2d 907 (La.1984)). The defense of justification can be claimed when any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed. Id.; La. R.S. 14:18(6). In reviewing a conviction in which the defendant offered testimony that his criminal actions were justified, 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. Id.

We conclude on review that the jury reasonably rejected Broussard’s claim that he was justified in committing the armed robberies. Broussard told police that he was persistently indebted to Bates because he bought cocaine from him on credit. Broussard stated that a week before the robbery at the AT & T store, Bates told him that he could repay his debt by committing robberies. Despite receiving a warning a week in advance of Bates’ intentions, Broussard did not attempt to repay Bates, or seek assistance from police or shelter elsewhere. Instead, he waited for Bates to|13pick him up, give him a gun and drive him to the AT & T store to commit the robbery. In fact, Broussard agreed to commit another robbery three days later. Again, he sought no assistance in the interim. Further, although Broussard told Det. Newnum that he was “deep, deep in debt” to Bates, Bates allowed him to keep a portion of the proceeds of the robberies — a fact that flies in the face of Brous-sard’s allegation that Bates was unrelenting in his pursuit to be repaid. While Broussard contends that he was afraid Bates would kill him if he failed to pay him back, he kept purchasing cocaine from him and testified during his trial that when he was committing the robberies, “It wasn’t like I was out robbin’ people. I was gettin’ some dope.” While Broussard’s statements to police undoubtedly prove that he is addicted to drugs, it does not demonstrate that he was under present and immediate threats of great bodily harm or death. Accordingly, this assignment is without merit.

By his third assignment of error, the defendant argues that the convictions for both armed robbery and conspiracy to commit armed robbery involving the same offenses violate double jeopardy. Brous-sard contends that the evidence used to convict him of the four armed robbery charges is the same evidence used to convict him of the four conspiracy to commit armed robbery charges.

The state argues that Broussard’s convictions for armed robbery and conspiracy to commit armed robbery do not violate double jeopardy as held in State v. Davis, 12-512 (La.App. 5 Cir. 4/24/13), 115 So.3d 68, writ denied, 2013-1205 (La.11/22/13), 126 So.3d 479.

|2nThe Fifth Amendment to the United States Constitution provides that no person shall be “subject for the same offenses to be twice put into jeopardy of life or limb.” State v. Redfearn, 44,709 (La.App. 2 Cir. 9/23/09), 22 So.3d 1078, writ denied, 2009-2206 (La.4/9/10), 31 So.3d 381; State v. Brown, 42,188 (La.App. 2 Cir. 9/26/07), 966 So.2d 727, writ denied, 2007-2199 (La.4/18/08), 978 So.2d 347. The double jeopardy clause was made , applicable to the states through the Fourteenth Amendment, and Article 1, § 15, of the Louisiana Constitution contains a similar guarantee. Id. The guarantee against double jeopardy provides three central constitutional protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and, (3) protection against multiple punishments for the same offense. State v. Crandell, 2005-1060 (La.3/10/06), 924 So.2d 122; State v. Knowles, 392 So.2d 651 (La.1980); State v. Redfearn, supra;

The two tests used by Louisiana courts when examining double jeopardy violations are the “distinct fact” or the Blockburger test and the “same evidence test.” The Blockburger test determines whether each crime requires proof of an additional fact which the other does not. State v. Redfearn, supra. If multiple charges constitute double jeopardy under Bloekburger, then the inquiry need go no further, since the constitutional prohibition against double jeopardy will have been abridged.

lüiEven if there is not a finding of double jeopardy under the Bloekburger test, we must look to Louisiana’s “same evidence” test to see if the state’s greater protection is implicated.

The “same evidence” test is articulated as this query: “If all the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the -two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial.” State v. Steele, supra (emphasis supplied). The “same evidence” test is broader in concept than Bloekburger, the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct. State v. Steele, supra.

For the following reasons, we conclude that the defendant’s four convictions for armed robbery and two convictions of conspiracy to commit armed robbery do not violate the prohibition against double jeopardy.

The facts established at trial indicate that one week prior to the AT & T store robbery, Bates and Broussard arranged to meet to commit a robbery. On May 3, 2011, Bates drove to Broussard’s home. Broussard then got into Bates’ car and rode with him to the AT & T store. This evidence, standing alone, is sufficient to support Broussard’s conviction for conspiracy to commit the armed robbery at the AT & T store. After arriving at the AT & T |Mstore, Broussard went inside and committed the armed robbery.

Likewise, Broussard told Det. Newnum that he and Bates had agreed to meet on May 6, 2011, at 9:00 a.m. to commit another armed robbery. Bates arrived at a rescheduled time of 3:00 p.m. Broussard got into his car, and the two drove to the Advance America store. Again, this evidence alone provides sufficient evidence to convict Broussard of conspiracy to commit armed robbery. Once at the Advance America store, Broussard entered the store and committed two armed robberies.

First, under the same evidence test, the evidence required to support the defendant’s convictions for conspiracy to commit armed robbery does not support his convictions for armed robbery. A conviction for conspiracy requires proof of an agreement and an act done in furtherance of that agreement, while a conviction for armed robbery requires neither. Thus, in the instant case, Broussard’s and Bates’ plan of robbing AT & T and then their later-hatched plan to rob Advance America, and their subsequent acts (Bates driving Broussard to the respective stores and Broussard arming himself) to carry out those plans support two convictions for conspiracy to commit armed robbery. This. same evidence, however, does not support defendant’s conviction for armed robbery. That conviction is supported by the actual carrying out of the plans, i.e., Broussard robbing the victims at gunpoint.

Second, the United States Supreme Court has explicitly stated that “a substantive crime and a conspiracy to commit that crime are not the ‘same offense’ for double jeopardy purposes.” United States v. Felix, 503 U.S. 23378, 389, 112 S.Ct. 1377, 1384, 118 L.Ed.2d 25 (1992); see also lannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289-90, 43 L.Ed.2d 616 (1975) (“Traditionally the law has considered conspiracy and the completed substantive offense to be separate crimes.”); State v. Knowles, 392 So.2d 651, 654-55 (La.1981) (finding no double jeopardy violation for conspiracy to commit first degree murder and first degree murder because “in order to be convicted as a principal [to a crime], there must be proof that .the crime was committed; a conviction for conspiracy does not depend upon the actual commission of the crime, but only upon an act in furtherance of the conspiracy.”).

Finally, La. R.S. 14:26(A) expressly provides that conspiracy is a separate and distinct offense for double jeopardy purposes: “If the intended basic crime has been consummated, the conspirators may be tried for either the conspiracy or the completed offense, and a conviction for one does not bar prosecution for the other.”

The foregoing thus demonstrates that Broussard’s convictions for conspiracy to commit armed robbery are not supported by the same evidence used to prove his armed robbery convictions.

The facts of this case compel a different result from that reached in State v. Rabun, 38,655 (La.App. 2 Cir. 8/18/04), 880 So.2d 184, in which we vacated a defendant’s conviction and sentence for conspiracy to commit armed robbery on the basis that his simultaneous conviction for armed robbery violated his right against double jeopardy. In that ease, the defendant’s armed robbery conviction was. supported by his status as a [^principal to armed robbery. The defendant drove his co-conspirator to the location of the armed robbery and acted as the getaway driver. The same evidence making him a principal to the armed robbery was also used to prove his conspiracy conviction.

We therefore conclude that the defendant’s convictions for armed robbery and convictions for conspiracy to commit armed robbery do not violate the prohibition against double jeopardy. Defendant was neither convicted nor punished twice for the same course of conduct. Accordingly, we find no merit in this argument and thus, no merit in defendant’s second assignment of error.

In his final assignment of error, Brous-sard contends that the trial court erred, as a matter of law, in imposing an excessive, cruel and unusual sentence, particularly considering the lack of justification for imposing consecutive sentences. He argues that the trial court should not have ordered the sentences for his armed robbery convictions, committed on May 3 and 6, 2011, to be served consecutively to one another because they constituted part of a common scheme or plan. Furthermore, Broussard contends, the. trial court should have provided explicit reasons for running the sentences consecutively.

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 La. 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 |25article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,-855 (La.App. 2 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 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. 2 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 the offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App. 2 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 (LaApp. 2 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 | Mthe sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379.

Armed robbery is punishable by imprisonment at hard labor for not less than 10 years, nor more than 99 years, without the benefit of parole, probation or suspension of sentence. La. R.S. 14:64(B).

Conspiracy to commit armed robbery is punishable by imprisonment for 10 to 49½ years at hard labor without the benefit or parole, probation or suspension of sentence. La. R.S. 14:26 and 14:64.

La. C. Cr. P. art. 883 provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

Concurrent sentences arising out of a single course of conduct are not mandatory. State v. Wallace, 44,880 (La.App. 2 Cir. 1/27/10), 31 So.3d 557; State v. Derry, 516 So.2d 1284 (La.App. 2 Cir. 1987), writ denied, 521 So.2d 1168 (1988). It is within the court’s discretion to make sentences consecutive rather than concurrent. State v. Johnson, 42,323 (La.App. 2 Cir. 8/15/07), 962 So.2d 1126. A judgment directing that sentences arising from a single course of conduct be served consecutively requires ^particular justification from the evidence or record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Johnson, supra. Among the factors to be considered are the defendant’s criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, whether the defendant poses an unusual risk of danger to the public, the potential for the defendant’s rehabilitation, and whether the defendant has received benefit from a plea bargain. State v. Johnson, supra; State v. Barnett, 46,303 (La.App. 2 Cir. 5/18/11), 70 So.3d 1, writ denied, 2011-1612 (La.4/13/12), 85 So.3d 1239.

The trial court did not abuse its discretion in sentencing Broussard. Broussard and Bates planned and executed an armed robbery on May 3, 2011. Three days later, as planned, the twosome met again to commit more robberies. The trial court correctly determined that the crimes occurring on May 3, 2011, were separate and distinct from those occurring on May 6, 2011. Furthermore, the trial court enumerated a thorough list of the factors it considered when imposing Broussard’s sentence, including his criminal, social, educational and work history. The trial court noted that Broussard is a drug addict, but that his crimes were calculated, skillfully completed, violent and resulted in substantial harm to his victims. Additionally, Broussard knowingly created a risk of death or great bodily harm to more than one person and used threats of or actual violence during commission of the offenses. Accordingly, this assignment is without merit.

| ^CONCLUSION

For the foregoing reasons, we conclude that the evidence is sufficient to support only one conviction for conspiracy to commit armed robbery for the May 3, 2011, armed robbery of the AT & T store and the evidence is sufficient to support only one conviction for conspiracy to commit armed robbery for the May 6, 2011, armed robbery of Advance America. We therefore vacate two of defendant’s four convictions and two sentences for conspiracy to commit armed robbery.

The remaining convictions and sentences are affirmed.

TWO CONVICTIONS VACATED; REMAINING CONVICTIONS AND SENTENCES AFFIRMED.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . State v. Steele, 387 So.2d 1175 (La.1980).

      . Because we found that the evidence at trial was sufficient to sustain only two convictions for conspiracy to commit armed robbery, thereby vacating two of the convictions of conspiracy, we do not consider the question of whether two of the vacated convictions would have also constituted "double jeopardy” under the "same evidence test."


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Antywane Eric WILLIAMS, Appellant.
    No. 49,249-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.

      Louisiana Appellate Project, by Teresa Culpepper Carroll, Jonesboro, for Appellant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, Edward Charles Jacobs, Assistant District Attorneys, Counsel for Appellee.
    Before CARAWAY, DREW and GARRETT, JJ.
   DREW, J.

| TAntywane Eric Williams was charged with attempted aggravated rape, in violation of La. R.S. 14:27 and La. R.S. 14:42, and home invasion, in violation of La. R.S. 14:62.8(A). A 12-member jury found him guilty as charged.

He received the following concurrent sentences: .

• 35 years at hard labor, without benefit of probation, parole, or suspension of sentence for the attempted aggravated rape conviction; and
• 10 years at hard labor, with the first five years to be served without benefit of probation, parole, or suspension, for the home invasion conviction.

He appeals. We affirm the defendant’s conviction and sentence, but remand for the trial court for compliance with La. R.S. 15:541-548.1.

PROCEDURAL HISTORY

The defendant was found guilty on August 28, 2012.

He filed two pro se motions for appeal on September 4, 2012.

He then filed a pro se motion for new trial on October 17, 2012.

The trial court granted one of the motions for appeal on October 25, 2012, without first ruling on the motion for new trial.

The defendant was sentenced as noted above on November 9, 2012.

The defendant filed a motion to reconsider sentence on November 20, 2012.

In August 2013, our court issued a per curiam order noting that the trial court sentenced the defendant before disposing of his motion for new trial. In addition, there was no disposition on the motion for reconsideration of sentence.

|2We vacated the sentences, remanding for rulings on these two matters. State v. Williams, 48,416 (La.App.2d Cir.8/7/13), 123 So.3d 235, rehearing denied (9/19/13), writ granted, vacated in part, 2013-2346 (La.3/21/14), 135 So.3d 625.

In early fall of 2013, the trial court denied the motion for new trial and resen-tenced the defendant to the exact same sentence as before.

On March 21, 2014, the Louisiana Supreme Court granted the defendant’s writ application, and vacated our court’s August 7, 2013, ruling “to the extent that it purports to affirm defendant’s convictions while setting aside his sentences and remanding the case for a ruling on the pending motion for a new trial and for resen-tencing.” State v. Williams, 2013-2346 (La.3/21/14), 135 So.3d 625.

FACTS

The victim, P.T., testified that:

• she dated the defendant for eight years;
• she emphatically ended the relationship in late 2011;
• the defendant texted her on the evening of February 3, 2012, stating that he was coming to her home to “talk about it”;
• she told him no, yet an hour later he crawled through her kitchen window;
• he chased her into her bedroom;
h* the defendant was drunk;
• he positioned himself on top of her, and carried her into the bedroom;
• he pulled off her shorts;
• because of his strength, she could not push him off;
• he told her that he loved her, did not want her to leave him, could not live without her, that she was his, and promised that he would leave her alone if she had sex with him one more time;
• she poked him in the eye and ran for the back door;
• he grabbed her arms and picked her up by her waist;
• after fighting him, she ran outside for help; and
• one of her three pit bull dogs bit him. Bossier City Police Detective Kevin Ray Jones testified that:
• he and other officers were dispatched to P.T.’s home; and
• he found P.T.’s shorts lying on the floor, near the foot of her bed.

Officer Matthew Camp testified that:

• he searched the area for the defendant, and saw him drive into a ditch;
• the defendant stumbled out of his car, appeared intoxicated, and had a strong odor of alcohol; and
• the defendant’s pants were torn, and he had a three-inch scratch on his leg.

14At sentencing, the trial court reviewed the presentence investigation report, noting that:

• it had examined the statements of the defendant and the victim;
• the defendant had three pending charges;
• he had a juvenile record from Chicago;
• he had an adult criminal record from Chicago and Bossier City;
• the defendant had a troubled family and social history;
• he was classified as a fifth-felony offender;
• the victim did not want him to receive the maximum sentence;
• he was intoxicated at the time of the offenses; and
• the crimes were serious.
Upon resentencing, the defendant received the same sentence.

DISCUSSION

Sufficiency

The defendant contends that the state failed to present sufficient evidence to sustain his convictions beyond a reasonable doubt. He points out that he was not positioned on top of P.T. with his full weight, and removed her shorts only to prevent her from running. He notes that she did not suffer any physical injuries. He argues that the state had only proved a domestic abuse battery, nothing more. Our law is well settled as to the review of sufficiency claims.

| ¿Defendant was convicted of attempted aggravated rape.

Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent. La. R.S. 14:41.

As applies here, aggravated rape occurs when the victim resists the act to the utmost, but the resistance is overcome by force. La. R.S. 14:42(A)(1) and (2).

An attempt is committed when a defendant, after having formed the intent to commit rape, does an act for the purpose of and intending directly toward the accomplishing of the objective. La. R.S. 14:27(A). Attempt is a specific intent crime. La. R.S. 14:27. 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 his failure to act. La. R.S. 14:10(1).

Responsive verdicts for attempted aggravated rape include: guilty; guilty of attempted forcible rape; guilty of attempted simple rape; and not guilty.

Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim when the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that |fisuch resistance would not prevent the rape. La. R.S. 42.1(A)(1). The only distinction between aggravated and forcible rape is degree of force employed and extent to which the victim resists. State v. Clark, 437 So.2d 879 (La.App. 2d Cir.1983), writ denied, 442 So.2d 460 (La.1983); State v. Howard, 31,807 (La.App.2d Cir.8/18/99), 746 So.2d 49, writ denied, 1999-2960 (La.5/5/00), 760 So.2d 1190.

In Clark, supra, at 885, this court noted: The distinction between aggravated and forcible rape has been addressed in State v. Parish, 405 So.2d 1080 (La.1981). The Parish court determined that the legal definition of aggravated rape as defined in La. R.S. 14:42(2) is virtually identical to the definition of forcible rape because there is no essential difference between the specific results required by each crime definition. Both require that the victim be prevented from resisting the act by threat of great harm under circumstances where the victim reasonably believes that resistance would be futile. Forcible rape is merely a lesser degree of the crime of aggravated rape and is a responsive verdict to that crime. The only distinction between aggravated and forcible rape is the degree of force employed and the extent to which the victim resists. However, the jury is authorized to subject a guilty defendant to more severe punishment by convicting him of aggravated rape rather than forcible rape. The court then went on to conclude that it was the legislative aim to divide the continuum of acts of coerced sexual intercourse into two categories, thereby assigning to the fact finder the function of fixing the range of permissible punishment for convicted offenders by returning a verdict which appropriately fits the crime and the degree of force employed.

There is no magic formula to determine which acts of coerced sexual intercourse warrant the greater punishment of aggravated rape rather than forcible rape.

Each case must be examined on its own facts. State v. 7Wallace, 484 So.2d 908 (La.App. 2d Cir.1986), writ denied, 489 So.2d 244 (La.1986).

The testimony of a sexual assault victim alone is sufficient to convict a defendant. State v. Chandler, 41,063 (La.App.2d Cir.9/8/06), 939 So.2d 574, writ denied, 2006-2554 (La.5/11/07), 955 So.2d 1277. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. In Chandler, supra, this court recognized:

The requirement for victim resistance has been the subject of criticism in various commentaries and the utmost resistance test no longer predominates across the nation as the key definitional element for aggravated rape. Michelle J. Anderson, Reviving Resistance in Rape Law, 1998 U. Ill. L.Rev. 953 (1998); Joshua Mark Fried, Forcing the Issue: An Analysis of the Various Standards of Forcible Compulsion in Rape, 23 Pepp. L.Rev. 1277 (1996).

Defendant was also convicted of home invasion, which is the unauthorized entering of any inhabited dwelling, or other structure belonging to another and used in whole or in part as a home or place of abode by a person, where a person is present, with the intent to use force or violence upon the person of another or to vandalize, deface, or damage the property of another. La. R.S. 14:62.8(A).

Home invasion is a general intent crime. La. R.S. 14:62.8(A). General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2).

IsAttempted Aggravated Rape

The prosecutor had the burden of presenting sufficient evidence to prove that the defendant specifically attempted to engage in an act of vaginal, anal, or oral sexual intercourse with P.T. without her consent and that she resisted to the utmost.

The victim testified that Williams chased her inside her home, got on top of her on her bed, held his hands on her shoulders, grabbed her with both his hands wrapped around her arms, pushed her, pulled off her shorts, grabbed her around her arms, picked her up by her waist, and pursued her outside. She testified that she resisted him by struggling, begging him to stop, poking him in the eye, kicking, fighting, and fleeing.

The issue is whether a rational jury could have heard this evidence and found that P.T. resisted to her utmost, and her resistance was overcome by the defendant’s force. Since there is no magic formula in determining whether a rape is aggravated or forcible, a comparison with relevant cases may be helpful.

Our jurisprudence provides numerous examples of convictions for the crime of attempted aggravated rape.

13There are also many examples of convictions for the crime of attempted forcible rape.

This defendant may not have used the same amount of force as in some attempted aggravated rape cases, but it is within the province of the jury to determine the degree of force employed in a particular case and to decide whether the act constituted aggravated, rather than forcible, rape. The jury had before it the responsive verdict of attempted forcible rape but determined that the amount of force employed in this case amounted to an attempted aggravated rape.

The jury heard evidence of this defendant texting P.T. that he was coming over, her telling him not to, him crawling through her window, and trying to rape her. The jury also heard evidence that the defendant and P.T. did not live together and he was not a lessee of the premises. Viewing this evidence in a light most favorable to the prosecution, any rational trier of | ^fact could have found beyond a reasonable doubt that the defendant was also guilty of home invasion.

Intoxication

The defendant contends that his intoxication precluded him from forming the specific intent to commit attempted aggravated rape. The prosecution asserts that the evidence does not support his allegation that he was so drunk that he could not form the specific intent to commit a crime.

An intoxicated or drugged condition is a defense to a prosecution for attempted aggravated rape only if the circumstances indicate that it has precluded the presence of specific criminal intent. La. R.S. 14:15(2). The burden is on the defendant to prove the existence of the condition at the time of the offense by a preponderance of evidence. State v. Ellis, 28,282 (La.App.2d Cir.6/26/96), 677 So.2d 617, writ denied, 96-1991 (La.2/21/97), 688 So.2d 521. If the defendant proves that he was intoxicated at the time of the offense, the state has the burden of negating that defense by proof beyond a reasonable doubt. State v. Martin, 39,846 (La.App.2d Cir.8/17/05), 913 So.2d 863, writ denied, 2006-0110 (La.6/14/06), 929 So.2d 1267.

The jury heard evidence that the defendant was intoxicated, but had the ability to crawl through P.T.’s window, hold her down on her bed, chase her inside and outside, and drive away. Without any additional evidence of his intoxication at the time of the offense, the defendant did not prove by a preponderance of the evidence that his intoxication prevented any specific intent to commit an attempted aggravated rape. State v. Ellis, supra.

]uExcessiveness

The defendant argues that his actions were not as bad as other defendants convicted of these crimes. The prosecution urges that the sentences are warranted and the trial court amply complied with La. C. Cr. P. art. 894.1.

The defendant did not file a motion for reconsideration of this sentence.

The offense of attempted aggravated rape is punishable by imprisonment at hard labor for not less than 10, nor more than 50 years without benefit of parole, probation, or suspension of sentence. La. R.S. 14:27 and La. R.S. 14:42. The offense of home invasion is punishable by imprisonment at hard labor for not more than 25 years and a fine not to exceed $5,000.00. La. R.S. 14:62.8(B)(1).

The defendant received concurrent sentences of 35 years at hard labor without benefits for the attempted aggravated rape conviction, and 10 years at hard labor, the first five without benefits, for the home invasion conviction.

112The defendant had exposure on these two crimes, for up to 50 years at hard labor and 25 years at hard labor, without benefits.

This is, in fact, a harsh sentence. Given these facts, however, and the defendant’s classification as a fifth-felony offender, it is not excessive.

ERRORS PATENT

Illegally lenient sentence

La. R.S. 14:62.8(B)(1) provides that whoever commits the crime of home invasion shall be fined not more than $5,000.00 and shall be imprisoned at hard labor for not more than 25 years. The defendant was sentenced to 10 years at hard labor, with the first five years to be served without benefit of probation, parole, or suspension of sentence for the home invasion conviction. Since he was sentenced without a fíne, his sentence is illegally lenient.

Pursuant to La. C. Cr. P. art. 882(A), an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. However, as this court has recognized, this court is not required to take such action. See State v. Jones, 42,531 (La.App.2d Cir.11/7/07), 968 So.2d 1247; State v. Griffin, 41,946 (La.App.2d Cir.5/2/07), 956 So.2d 199.

The state did not object to the error and the defendant was not prejudiced because of the omission. We decline to remand on this issue.

Failure to receive registration notification

At the attempted aggravated rape sentencing, the trial court did not tell the defendant of the sex offender notification and registration | ^requirements, as outlined in La. R.S. 15:542-543.1. As a result, we must remand. State v. Scott, 42,997 (La.App.2d Cir.2/13/08), 975 So.2d 782.

DECREE

The defendant’s convictions and sentences are AFFIRMED. We remand to the trial court for the sole purpose of compliance with La. R.S. 15:542-543.1.

      . Her testimony:
      “And Mr. Williams followed me into my bedroom. And he pushed me into the bed and I was telling him don’t, you know, he’s like, I just want to make love to you one more time. And I'm like, no, you know, please stop. And I was yelling stop. And Mr. Williams continued trying to get on top of me and I got to the point where I couldn’t breathe because I was hyperventilating so bad that he stopped. I told him, I said, I can’t breathe, I can’t breathe. So he gets up, and so he lets me sit up, and when I go to sit up I try to run out the door. And when I go to run out the door he grabs my shorts and he pulls them down and he throws me back on the bed. And I’m like, I can’t breathe, you’ve got to let me up, you’ve got to let me up. And that’s when he let me up again and I had no shorts on at the time. And I dodged out to the door from the kitchen, and I have a back door out the back of the kitchen, and that’s when he grabbed me. And I really don’t know how I got away from him but I ran outside the back door and he started chasing me. And I was running around my truck and screaming at the top of my lungs for help. And that's when the neighbor heard me and called the police.”

      . She was not wearing any underwear.

      . A neighbor testified to seeing a “light-skinned black guy” chasing her around her car.

      . 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. Davies, 35,783 (La.App.2d Cir.4/5/02), 813 So.2d 1262, writ denied, 2002-1564 (La.5/9/03), 843 So.2d 389. 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. The trier of fact has great discretion in assessing the credibility of witnesses. State v. Davies, supra.

      . La. C. Cr. P. art. 814(9).

      . Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than five, nor more than 40 years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence. La. R.S. 42.1(B).

      . In State v. Manning, 44,403 (La.App.2d Cir.6/24/09), 15 So.3d 1204, writ denied, 2009-1749 (La.4/5/10), 31 So.3d 355, this court concluded that any rational trier of fact could have found that the defendant was guilty of attempted aggravated rape where he entered a victim's home, grabbed her, threw her on the bed, positioned himself on top of her while holding a sharp, shiny object, and told her that he would hurt her.
      In State v. Davies, supra, this court concluded that any rational trier of fact could have found that the defendant- was guilty of attempted aggravated rape where he picked up two juvenile girls in his vehicle, asked both girls to have sex with him, threatened that he would kill them if they refused, held a knife to one victim’s throat, fondled the victim and touched her breast, and threatened both victims while holding a bat.
      In State v. Jenkins, 456 So.2d 174 (La.App. 2d Cir. 1984), writ denied, 460 So.2d 1043 (La. 1984), this court concluded that any rational trier of fact could have found that the defendant was guilty of attempted aggravated rape where he lured the victim to a nearby cemetery, grabbed her by her waist, threw her to the ground, threatened to kill her if she refused to have sex with him, choked her, pulled off her pants and underwear, raped her initially under a tree, beat her, raped her again behind a tombstone, punched her, and bit her jaw.

      . In State v. Robinson, 36,147 (La.App.2d Cir. 12/11/02), 833 So.2d 1207, this court concluded that any rational trier of fact could have found that the defendant was guilty of attempted forcible rape where he grabbed the victim from behind by her waist, dragged her to his nearby home, grabbed her when she broke loose, instructed another person to unlock his house, dragged her inside into a bedroom, threw her on a bed, pulled the victim’s pants down to her knees, and raped her.
      In State v. Bailey, 585 So.2d 1245 (La.App. 2d Cir. 1991), this court concluded that any rational trier of fact could have found that the defendant was guilty of attempted forcible rape where he grabbed the victim from behind in a dark alley, positioned himself on top of her, choked her and pinched her face until she became unconscious, ripped off her pants and underwear, and unbuckled his trousers.
      In State v. Doby, 540 So.2d 1008 (La.App. 2d Cir. 1989), writ denied, 544 So.2d 398 (La. 1989), this court concluded that any rational trier of fact could have found that the defendant was guilty of attempted forcible rape where he grabbed the victim from behind in a library, placed an ammonia-soaked rag over her nose and mouth, pushed her onto the floor, positioned himself on top of her, and forced her legs apart.

      . A defendant is required to file a new motion for reconsideration of sentence in the trial court where a new sentence has been imposed following vacation of a prior sentence. State v. Robinson, 11-12 (La.App.5th Cir.12/29/11), 87 So.3d 881, writ denied, 2012-0279 (La.6/15/12), 90 So.3d 1059. When a defendant fails to file a timely motion to reconsider sentence under La. C. Cr. P. art. 881.1, the appellate court's review is limited to the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Smith, 46,343 (La.App.2d Cir.6/22/11), 71 So.3d 485, writ denied, 2011-1646 (La.1/13/12), 77 So.3d 950. Under constitutional review, a sentence can violate La. Const. Art. I, § 20, even when it falls within statutory guidelines, if the punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict pain and suffering. State v. Fatheree, 46,686 (La.App.2d Cir.11/2/11), 77 So.3d 1047. The trial court has wide discretion in imposing a sentence within minimum and maximum limits allowed by statute; therefore, a sentence will not be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Young, 46,575 (La.App.2d Cir.9/21/11), 73 So.3d 473, writ denied, 2011-2304 (La.3/9/12), 84 So.3d 550.