text:
    STATE of Louisiana, Appellee v. Raymond DARNELL, Appellant
    No. 51,499-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 9, 2017
    LOUISIANA APPELLATE PROJECT By: Edward K. Bauman, Counsel for Appellant
    REBECCA A. EDWARDS, WILLIAM J. EDWARDS, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, MOORE, and STONE, JJ.
   BROWN, C.J.

After being granted post-conviction relief, defendant, Raymond Darnell, was resentenced as a second felony offender to consecutive terms of 90 years at hard labor, without benefit of parole, probation or suspension of sentence, on an attempted first degree murder conviction and 45 years at hard labor without benefit of parole, probation or suspension of sentence, on an attempted second degree murder conviction. A timely motion to reconsider was denied by the trial court. Defendant appeals his sentences as excessive. We affirm.

FACTS

Defendant was charged in a two-count bill of information with the attempted first degree murder of a Shreveport police officer and the attempted second degree murder of Arlicia McDonald, defendant's ex-girlfriend, when Darnell was 21 years old. Defendant's convictions and sentences were affirmed in State v. Darnell , 43,048 (La. App. 2 Cir. 08/13/08), 988 So.2d 870, writ not considered , 08-2258 (La. 05/01/09), 6 So.3d 803. The facts which formed the basis for these charges were set forth in defendant's previous appeal. On the evening of May 17, 2006, defendant followed the victim, Ms. McDonald, from her place of employment, ultimately striking her vehicle with his own car and pushing it into a utility pole. Shreveport patrol officer Freddie Clinton arrived at the scene, and Ms. McDonald ran to him for protection. Defendant was armed with a .410 gauge single-shot sawed-off shotgun and, upon seeing the victim and Officer Clinton across the street, pointed the shotgun directly at both of them and fired. Thereafter, the following events transpired:

Officer Clinton returned fire while at the same time pulling Ms. McDonald around the rear of his police vehicle to take cover on the passenger side. Defendant reloaded his shotgun and moved to the driver's side of Officer Clinton's marked unit. A second police vehicle driven by Officer Josh Feliciano arrived and stopped behind Officer Clinton's unit. The video from this second police vehicle showed that the door on the driver's side of Officer Clinton's squad car was open and that defendant alternately pointed the weapon through the door and then over the hood of the police car attempting to get a clear shot.Officer Clinton returned fire with his pistol over the hood of his police car. Realizing that Officer Clinton had emptied his magazine, defendant ran around the front of the patrol unit and pointed his shotgun at both Officer Clinton and Ms. McDonald as they started to run away. Defendant shot at close range striking Ms. McDonald in the backside, rear upper thigh area. Ms. McDonald was only a step behind Officer Clinton at the moment defendant fired. Defendant then proceeded to hit Ms. McDonald in the head with his shotgun. Officer Feliciano fired several shots at defendant, one of which struck him in the chest and knocked him to the ground. At this point, defendant started screaming out his lawyer's name.

State v. Darnell , 988 So.2d at 873.

On December 5, 2012, defendant was granted post-conviction relief, and the matter was remanded for a resentencing hearing on the grounds of conflict of interest.

At the July 15, 2015, proceedings, defendant presented mitigating evidence of his abuse and alleged mental issues.

That evidence included the testimony of Dr. Sarah Deland, an expert in forensic psychiatry, and two of defendant's siblings, who testified regarding defendant's childhood with his five siblings, an abusive father, and the effects of the abuse on defendant. The witnesses confirmed that defendant's father's drinking led to the outbursts of anger, violence, and "moderately severe" physical confrontations that occurred "very frequently, sometimes daily," for a period of several years. As the oldest of six children, defendant tried to protect some of the younger children from abuse.

Regarding defendant's mental state, Dr. Deland testified that as a result of the abuse, he manifested symptoms of "post-traumatic stress disorder," although she would not give him "the full-blown diagnosis" due to lack of sufficient information. These symptoms included mood instability, irritability, difficulty getting along with people, trouble sleeping, and paranoia. Dr. Deland also did not conclude that defendant had a personality disorder, but found that he had "narcissistic personality traits and some paranoid personality traits" that lend themselves to a "conflictual existence with the world." In fact, defendant's family revealed that he had "very little frustration tolerance" and did "not handle limits very well," i.e., defendant got angry very quickly and had trouble with "being told no and authority." Dr. Deland confirmed that defendant was experiencing sleep disturbance and was sleeping with weapons, including a butcher knife, for protection in the weeks preceding the incident. Dr. Deland also learned that defendant had greatly increased his alcohol intake, which was "very different" for defendant because he had not been a substance abuser in the past. Defendant informed Dr. Deland that he had been drinking up to a case of beer a day, and in the months leading to the incident, had also started smoking marijuana. Dr. Deland testified that although defendant's untreated symptoms of depression and post-traumatic stress disorder put him at a "higher risk for acting out violently," the substance abuse was an "enormous, huge" risk factor.

According to Dr. Deland, at the time of the incident, defendant was despondent and went to a funeral home to plan his funeral after having thoughts about killing himself and hurting somebody else. Defendant told Dr. Deland that after he went to the funeral home, he went back to his house where he drank beer and placed a sawed-off shotgun to his head. He then took a nap and wrote letters before embarking on the criminal acts for which he was convicted. According to Dr. Deland, defendant did not deny the police report account of the incident, although he stated that he did not remember everything that happened.

Defendant was resentenced as a second felony offender on November 30, 2015. Prior to imposing sentence, the trial court vacated defendant's previously imposed maximum sentences and imposed a sentence of 90 years at hard labor without benefit on the attempted first degree murder conviction and 45 years at hard labor without benefit on the attempted second degree murder conviction. The trial court imposed the sentences consecutively, with defendant to be given credit for time served. The trial court stated that it considered the resentencing hearing testimony and reviewed the pre-sentence investigation report prepared for defendant's resentencing, together with documentation submitted on behalf of the parties, including letters tendered on defendant's behalf. The trial court also noted its review of the sentencing memoranda filed by defendant and the state. The trial court reviewed the sentencing guidelines of La. C. Cr. P. art. 894.1, noting defendant's need of correctional treatment or a custodial environment and the fact that any lesser sentences would deprecate the seriousness of both offenses. The trial court also ordered that defendant receive "any and all mental help treatment" and recommended him to any and all special programs for which he may be eligible.

Defendant filed a motion to reconsider sentence on December 21, 2015, urging that the imposed sentences were excessive, would "result in Defendant spending the remainder of his life in prison," and failed to acknowledge his abusive upbringing. After the trial court denied the motion to reconsider, this appeal ensued.

DISCUSSION

Defendant argues that his sentences as they stand are constitutionally excessive. Defendant also argues that, in resentencing him, the trial court failed to take into consideration his youth and mental illness, urging that evidence of his post-traumatic stress disorder symptoms, paranoia and depression should have been considered mitigating factors by the trial court. Finally, defendant asserts that, because the trial court failed to articulate why it imposed consecutive sentences, the sentences should be vacated and the matter remanded for resentencing.

A reviewing court imposes a two-prong test in determining whether a sentence is excessive. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. State v. Mandigo, 48,801 (La. App. 2 Cir. 02/26/14), 136 So.3d 292, writ denied, 14-0630 (La. 10/24/14), 151 So.3d 600. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jackson, 48,534 (La. App. 2 Cir. 01/15/14), 130 So.3d 993.

Second, a sentence violates La. Const. art. I, § 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. Scott , 50,920 (La. App. 2 Cir. 11/16/16), 209 So.3d 248 ; State v. Mandigo , supra. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 01-0467 (La. 01/15/02), 805 So.2d 166 ; State v. Scott, supra. A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. State v. Mandigo, supra.

Recognized, diagnosed mental illnesses should be considered to mitigate the type and length of sentence imposed on the offender, even if the defendant has been ruled legally sane. State v. Sibley , 09-1104 (La. App. 3 Cir. 06/02/10), 41 So.3d 581. See State v. Legendre, 522 So.2d 1249 (La. App. 4 Cir. 1988), writ denied , 523 So.2d 1321 (La. 1988) (a five-year maximum sentence for second degree battery was vacated on grounds that the trial court should have considered the defendant's long history of mental illness, diagnosis of paranoid schizophrenia, and resistance to taking medications as mitigating sentencing factors); and State v. Lafleur , 16-467 (La. App. 3 Cir. 01/04/17), 209 So.3d 927 (an abuse of the trial court's "considerable discretion" in sentencing defendant to the maximum sentence was found, particularly considering the strong evidence of defendant's mental illness that included a history of psychiatric hospitalizations, diagnosis of schizophrenia, paranoia and noncompliance with medication).

When two or more convictions arise from the same act or transaction, or constitute 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. La. C. Cr. P. art. 883. Concurrent sentences arising out of a single course of conduct are not mandatory, and consecutive sentences under those circumstances are not necessarily excessive. State v. Scott, supra. When consecutive sentences are imposed, the court is required to state the factors considered and its reasons for the consecutive terms. However, the failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences. State v. Scott, supra ; State v. Robinson , 49,677 (La. App. 2 Cir. 04/15/15), 163 So.3d 829, writ denied , 15-0924 (La. 04/15/16), 191 So.3d 1034.

A trial court retains the discretion to impose consecutive penalties in cases in which the offender's past criminality or other circumstances in his background or in the commission of the crimes justify treating him as a grave risk to the safety of the community. State v. Walker, 00-3200 (La. 10/12/01), 799 So.2d 461 ; State v. Scott, supra. Other factors to be considered include the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, whether the defendant constitutes an unusual risk of danger to the public and the potential for defendant's rehabilitation. State v. Robinson, supra. After resentencing, it is appropriate for this Court to review the entirety of the record, including the transcripts of both the original sentencing hearing and the resentencing hearing, to determine whether an adequate factual basis for the trial court's sentence exists and whether the trial court abused its discretion in sentencing. State v. Billingsley , 13-11 (La. App. 3 Cir. 10/09/13), 123 So.3d 336.

As a second felony offender, for the attempted first degree murder conviction, defendant faced a maximum sentencing exposure of 100 years. For the attempted second degree murder conviction, he faced a maximum sentencing exposure of 50 years. Thus, upon resentencing defendant received upper range consecutive sentences.

The resentencing judge indicated her consideration of the testimony presented at the resentencing hearing, which included evidence of defendant's mental condition and moderately severe physical abuse at the hands of his father. Nevertheless, defendant was never formally diagnosed with mental illness, distinguishing him from the defendants in State v. Legendre, supra, and State v. Lefleur, supra. In fact, the record shows that it was defendant's abuse of alcohol that placed him at an "enormous" risk for violence. Revealing its consideration of defendant's mental issues, the court ordered that defendant was to receive any mental health treatment for which he was eligible and noted its consideration of defendant's sentencing memorandum and arguments of counsel which urged consideration of defendant's mental condition as a mitigating sentencing factor. After taking these matters into account, the trial court ultimately sentenced defendant to lesser sentences on both convictions. Thus, even though the trial court did not specify mental illness as a mitigating factor in sentencing defendant, the record clearly shows that his condition was taken into account by the sentencing judge. The weight to be given to defendant's mental health condition was within the discretion of the trial court. State v. Washington , 50,424 (La. App. 2 Cir. 03/16/16), 188 So.3d 350, writ denied , 16-0718 (La. 04/13/17), 218 So.3d 119. In view of the permanent and adverse effects suffered by the victim due to defendant's disturbing pursuit of and attack on her, any determination that the mitigating effect of defendant's mental issues was outweighed by the aggravating circumstances of this case is supported by the record.

Further, the record shows defendant's age at the time of the offense and a prior instance of assaultive behavior by him against his grandmother which Dr. Deland described as "pretty extreme." The record also shows that in 2004, defendant was arrested for rape of the female victim in this case, but was allowed to plead guilty to false imprisonment while armed with a dangerous weapon. At the time of the present offense, defendant was on probation for the 2004 conviction and was prohibited from having contact with the victim. Even so, defendant consistently threatened and harassed the victim, to the point of being banned from her place of employment and residence.

Finally, the MVS videos introduced into evidence are compelling and disturbing, showing defendant's violent and intentional pursuit of the victim despite his being fired upon by two police officers. The victim was only able to get away after a second officer shot defendant, finally stopping defendant's relentless pursuit of her.

The consideration by the trial court of these facts and evidence discloses sufficient La. C. Cr. P. art. 894.1 compliance and provides an adequate factual basis for the imposed sentences. Further, despite the fact that the trial judge neglected to specifically state the factors she considered or the reasons for the imposition of the consecutive terms, the record before us provides an adequate factual basis to support the imposition of consecutive sentences.

These particularly disturbing facts, including the gravity and viciousness of the offenses, the harm done, and unusual risk of danger to the victim in this matter, justify treating defendant as a grave risk to the community. At the time of the offense, defendant was on probation for a prior offense involving the victim, his ex-girlfriend, and his continued obsession with her escalated to the point of creating a risk of death to more than one person. Without police intervention, the victim may well have been killed by defendant. In these circumstances, the upper range consecutive sentences imposed by the trial court neither shock the sense of justice, nor can be considered grossly disproportionate to the severity of defendant's criminal conduct.

CONCLUSION

For the foregoing reasons, defendant's sentences are affirmed.

      Defendant changed his plea from not guilty by reason of insanity to not guilty. A sanity commission found defendant competent to stand trial.

      The conflict of interest arose out of defendant's attorney's representation of defendant's father (who was also the attorney's brother) in child-in-need-of-care proceedings that the trial court found prevented counsel from presenting mitigating evidence of abuse at sentencing.

      At the prior sentencing hearing, a funeral home employee confirmed that on May 17, 2006, defendant obtained pre-arranged funeral services.

      After Dr. Deland's testimony, the state introduced into evidence the police vehicle MVS videos which had been put into evidence at defendant's trial.

      In his sentencing memorandum, defendant asserted that in his case, the line between developmental disadvantages and personal responsibility were blurred by his youth and inexperience, and that his criminal conduct was less the product of a reasoned immoral decision-maker and more of an emotionally disturbed young person who was not equipped to respond to danger, frustration and jealousy.

      The trial court informed Darnell of his appeal and post-conviction relief delays.

      At the previous sentencing hearing in this case, the trial court considered the findings of the mental expert physicians appointed by the court and accepted that defendant suffered from malingering, adjustment disorder, and narcissistic personality traits, but also concluded that he was in need of correctional treatment.

      Defendant originally received consecutive maximum sentences.

      The prior sentencing transcript shows that prior to this offense, probation revocation proceedings were pending based upon eight police reports of Darnell making harassing and threatening phone calls to the victim. Darnell had another charge of forgery of his grandmother's name on a check he cashed in February of 2006.

      The facts set forth above reflect the events depicted on the videos. The prior sentencing judge also detailed the video on the record and meticulously set forth the factual basis for the sentences he imposed.

      Defendant's reliance on State v. Argo , 476 So.2d 409 (La. App. 2 Cir. 1985), State v. Pettaway, 450 So.2d 1345 (La. App. 2 Cir. 1984), and State v. Laird , 572 So.2d 793 (La. App. 4 Cir. 1990), in support of his argument that his sentence for attempted first degree murder of the police officer is excessive is misplaced. While the defendants in each of those cases received 40- to 50-year sentences after shooting the officers and injuring them, each of the offenders were first felony offenders who were not subject to enhanced habitual offender sentencing. Additionally, the maximum sentence for attempted first degree murder at the time of the cases upon which defendant relies on was 50 years, so each defendant received a sentence in the upper range or maximum sentence.


source: Caselaw Access Project

author: COX, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Theresa ROBINSON, Appellant
    No. 51,498-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 9, 2017
    LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan Counsel for Appellant
    JAMES EDWARD STEWART, SR. District Attorney Counsel for Appellee
    REBECCA ARMAND EDWARDS JOSHUA K. WILLIAMS Assistant District Attorneys
    Before WILLIAMS, COX, and BLEICH (Pro Tempore ), JJ.
   COX, J.

After a bench trial, the defendant, Theresa Robinson ("Robinson"), was convicted of felony theft under La. R.S. 14:67. She received a suspended five-year hard labor sentence with five years' supervised probation and was also ordered to pay full restitution. Robinson appeals her conviction, arguing the evidence was insufficient for a conviction. For the following reasons, we affirm.

FACTS

In August 2012, the owners of Bailey Bark Materials ("Bailey Bark"), a landscaping business with offices in Shreveport, Louisiana, and Nacogdoches, Texas, obtained access to the Shreveport office's accounting records from the bookkeeper, Robinson, for preparation of the company's 2011 tax return. For accounting purposes, the company used QuickBooks software, with a point of sales component for printing out a daily sales summary showing the total sales for the day by payment type and an accounting software component that calculated and recorded daily deposits and reconciled them to monthly bank statements.

Upon review by a certified public accountant ("CPA"), numerous irregularities, including large numbers of uncleared deposit transactions, were discovered. Uncleared deposits result from deposits entered into the software that are not matched with deposits actually made to the bank and reflected on the month-end bank statements. The CPA determined that a user signed in under the "Administrator" login and made frequent changes to deposit transactions sufficient to raise concern that the company bank reconciliations may be inaccurate.

On the advice of the CPA, the Nacogdoches office bookkeeper re-performed the Shreveport office's monthly reconciliations for 2011 and 2012 by using the "undo" feature in QuickBooks. The newly prepared bank reconciliations confirmed a pattern of uncleared deposits from January 2011 through August 2012 that resulted in more than a $100,000 shortage to the business. Further investigation revealed that each of the uncleared deposits matched cash received by the business on the date of the deposit. After the company co-owner, Jeff Bailey, addressed all four Shreveport employees in mid-August 2012, no further uncleared deposits occurred.

Thereafter, Bailey Bark enlisted the services of David Macey, an accountant certified in fraud examination. In his October 24, 2012, report, Macey confirmed that more than $100,000 of the company's money had been lost or stolen. He recommended that all Shreveport employees be considered suspects, but named Robinson as a person of particular interest because she was responsible for preparing the bank reconciliations throughout the period and should have at least notified the company of the accumulation of uncleared deposits.

On October 29, 2012, one of the office managers of Bailey Bark filed a theft report with the Caddo Parish Sheriff's Office. After interviews with the four Shreveport employees, investigators learned Robinson was responsible for entering the deposit information into the QuickBooks accounting software. Robinson was brought in for an interview and informed of her rights, but refused to speak and requested an attorney. Thereafter, Robinson was arrested and charged with felony theft.

Robinson was tried by bench trial and found guilty as charged. The trial court denied motions for new trial and post-verdict judgment of acquittal raising issues of the sufficiency of the evidence to convict Robinson. Robinson was sentenced to a suspended sentence of five years at hard labor and placed on five years' supervised probation with full restitution of $20,000 annually over a five-year period as part of her probation. She was also ordered to pay court costs and a $50 monthly fee to the Indigent Defender's Office or to serve default time of 30 days in jail. Robinson appeals her conviction, urging that the State's evidence was insufficient to convict her.

LAW

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. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Sullivan , 51,180 (La. App. 2 Cir. 2/15/17), 216 So.3d 175. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Dale , 50,195 (La. App. 2 Cir. 11/18/15), 180 So.3d 528, writ denied , 2015-2291 (La. 4/4/16), 190 So.3d 1203. A reviewing court accords great deference to the factfinder's decision to accept or reject the testimony of a witness in whole or in part. State v. Randle , 49,952 (La. App. 2 Cir. 6/24/15), 166 So.3d 465 ; State v. Casaday , 49,679 (La. App. 2 Cir. 2/27/15), 162 So.3d 578, writ denied , 15-0607 (La. 2/5/16), 186 So.3d 1162.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Luzzo , 2016-0289 (La. App. 4 Cir. 3/1/17), 214 So.3d 55. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Worthy , 2016-0431 (La. App. 4 Cir. 10/5/16), 203 So.3d 372. A conviction based upon circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438 ; State v. Alexander , 2014-1619 (La. App. 1 Cir. 9/18/15), 182 So.3d 126, writ denied , 2015-1912 (La. 1/25/16), 185 So.3d 748.

The elements of the crime of theft are: (1) there must be a misappropriation or taking; (2) the misappropriation or taking must be of a thing of value; (3) the thing must belong to another; and, (4) the misappropriation or taking must be with the intent to deprive the other permanently of that which is the subject of the taking. State v. Bailey , 50,097 (La. App. 2 Cir. 9/30/15), 180 So.3d 442. The prosecution must also prove the value of the stolen thing because the value is determinative of both the severity of the offense and the degree of the punishment upon conviction. Id.

DISCUSSION

On appeal, Robinson argues that no direct evidence established she took any money or made the deposits in question, and the remaining circumstantial evidence established other employees had access to the money and computers used to make sales and deposits and reconcile bank accounts. For these reasons, Robinson contends the State failed to prove beyond a reasonable doubt that she was responsible for the theft.

At trial, the State presented the testimony of six witnesses, and Robinson testified on her own behalf.

Corporal Frank Edmunson of the Caddo Parish Sheriff's Office, Financial Crimes Task Force, testified that he investigated the Bailey Bark theft. He interviewed the four employees of the Shreveport office, including the store manager, Robert Smith, the office manager, Kyle Bailey, the bookkeeper, Robinson, and the receptionist, Corenda Lee. Edmunson ruled out everyone but Robinson as a suspect because she handled the deposits and had access to QuickBooks. Edmunson reviewed the bank statements and concluded the problem was that money received by Bailey Bark never made it to the bank.

Corenda Lee, the receptionist at Bailey Bark since February 2012, testified she rang up customers and counted down the drawer. She testified that she operated only the point of sale portion of the QuickBooks software and could not access the accounting portion because she did not have a login name or password. Lee confirmed she never reconciled any of the financials during her employment and that Robinson was the only person who could operate both portions of QuickBooks.

Lee testified that Robinson trained her to "do a deposit" where you go into the computer and "press in some of the things that would calculate a deposit slip." She admitted to making deposits once or twice and recalled initialing the "daily pack," which she described as "the end-of-the-day report of everything." She explained that the receipts brought back after a bank deposit were placed into the daily pack, and if the deposits were not made the next day, the money was placed in a safe. She stated she did not know where the safe key was located, but knew the key was not on top of the safe.

According to Lee, Robinson, as the bookkeeper, "handled their billing, invoices, and anything that had to do with their money," although she stated she did not know who reconciled the bank statements. She testified that Kyle Bailey began working in the Shreveport office before he became the office manager in October 2012. While Robert Smith was the officer manager, Lee had no knowledge of Smith taking money out of the register to "fix" shortages.

Kyle Bailey, the office manager at Bailey Bark's Shreveport office since October 2012, testified he could not operate either of the QuickBooks programs. Based on his knowledge of the business, Bailey believed Robinson operated both ends of the software. He conceded that Smith was the office manager prior to him and left the company at the same time funds were discovered missing. He explained, however, that Smith was not fired, but left for a better opportunity. He stated Smith was never a suspect because he did not have much to do with the computer side of the company.

Bailey testified that he knew QuickBooks generated a deposit slip that was printed out before the deposit was manually taken to the bank. He confirmed that the end-of-the-day sales receipts were placed in a box, and the point of sales software created a receipt showing what should be deposited. He stated the "slip" was put in the bag with the receipts, and the deposit was made the following day. According to Bailey, an employee would log into QuickBooks the next day, and it would automatically send over "all your stuff from point of sale" and generate an amount of cash to deposit, as well as checks and credit cards "going to the bank." It would then automatically print out the information. During the time of the theft, Bailey stated "there was cash receipts not there. The cash never made it to the bank." He testified that Robinson was in charge of making sure the numbers and financials were correct and that the person in charge of QuickBooks should be aware of any problems. He further testified that he never made a deposit and was not the office manager during the time of the thefts. Rather, during that time, Bailey was never in the Shreveport office and worked across the street on equipment.

On cross-examination, Bailey conceded it was not Bailey Bark's policy to match deposits with the sales of the day at the time of the thefts. He stated that Smith had the password for the point of sale portion of the software, but again stated he had no information that Smith was taking money out of the register to fix shortages. Bailey confirmed there was a safe where the deposits were kept until the next morning, but he did not know the safe required a key or where the key was located. He admitted he had authority to pay bills for the business and sign checks during the time of the thefts. He further admitted that Smith also signed Jeff Bailey's name on checks in order to pay the bills. He stated that neither Corenda Lee nor Robinson had the authority to sign checks.

Becky Garwood, the financial officer for the Nacogdoches office, testified that she was responsible for reconciling the company bank accounts, which included making the daily bank deposits, checking the deposits and deposit slips, and reviewing receivables and payables. Garwood was also able to "dial into" the Shreveport office and work in their computer system, a practice that began in 2012.

In 2012, Garwood learned that money was missing from the Shreveport office where Robinson was in charge of the accounting. She stated that Robinson was supposed to be reconciling the books every month during the time the money went missing, but "it wasn't actually reconciled" and "was left out of balance." Garwood explained that this happened when transactions were deleted, including "credit cards that had been deleted, and cash that was just left outstanding but marked as cleared." At some point, she was able to reconcile the account after learning to put deleted items back into QuickBooks.

Garwood testified she attempted to gain access to the Shreveport QuickBooks software from Robinson on multiple occasions because Jeff Bailey wanted her to make sure it was reconciled. When Garwood requested access to the software, Robinson told her "that she was doing it [reconciliations] and that everything was okay," so Garwood stated that she "let it go." She testified that CPA Singer got the administrative password after Jeff Bailey acquired it from Robinson. Afterwards, Garwood was able to obtain the daily pack or point of sale records and check to make sure everything downloaded into QuickBooks was correct. She attempted to assure that all cash, checks, and credit cards had individual customer receipts to match the total amount for the day, but discovered "that it wasn't a QuickBooks mistake, that this was actual cash that was transferred."

Garwood explained that QuickBooks prints out one deposit amount that should go to the bank. At the end of the month, during reconciliation, the deposits are matched to the amounts that were actually received from customers. Any unaccounted amounts are called outstanding, meaning the bank had not yet received the amount, although the business had. According to Garwood, QuickBooks could balance outstanding amounts, and it was normal to have some outstanding amounts at the end of the month. However, she testified that "you don't have deposits from the first of a month that never clear." In this case, she stated that the amounts left outstanding "were deleted, or credits were created, or credit cards were deleted or added to try to balance out the books." She agreed that someone was creating false credits and credit cards to supplement the missing cash.

Garwood identified an exhibit showing a list of uncleared deposits from February 26, 2011 to August 2012, which was prepared by David Macey and included in his expert report. She described the document as showing "the date of the cash receipt" and "the cash deposit per point of sale software." She stated the total amount of uncleared deposits shown was $100,017.09. She concluded that the exhibit showed cash received by the business was never deposited into the bank and subsequently balanced out within QuickBooks. Garwood testified that QuickBooks was not a difficult software, and anyone with a basic understanding of it would have noticed this amount of uncleared deposits. She stated that only Robinson was responsible for balancing out the accounts in the Shreveport office from February 2011 to August 2012.

On cross-examination, Garwood admitted she did not recall specific dates, but the "deletions and additions were all done under the 'Administrator' password." She explained that the Administrator user could do any kind of transaction in QuickBooks, including changing and deleting in the financial portion. She stated it could have been done by anyone if they had the password. She was not aware of Smith having the Administrator password, but testified that Robinson would have been set up with the password when the former bookkeeper left in November 2010. Garwood did not know whether Robinson and the former bookkeeper used the same password or whether the software was set up to change the password every so often. She testified that in the Nacogdoches office, she could keep her password forever.

Jeff Bailey, the co-owner of Bailey Bark, testified he was alerted to possible fraud and missing funds in his Shreveport office. He confirmed that Garwood contacted him to get access to QuickBooks at the Shreveport location because Robinson would not provide the password, and he instructed Robinson to provide Garwood with the information. He testified that after he spoke with his Shreveport employees regarding the missing funds and advised them he was going to investigate the matter, the theft stopped.

On cross-examination, Bailey testified that Smith ran the office and mainly supervised sales and dealt with customers. He described Smith as the office manager who was not responsible for the books.

Robert Smith, the office manager at Bailey Bark from February 2011 to September 2012, testified that he handled customer relations, ordered materials, set up deliveries, loaded trucks, and was responsible for "everything on the yard." Smith had the authority to write checks, but could not make cash purchases on behalf of the business. He used the point of sale portion of QuickBooks, but could not access the financial portion. He denied having an Administrator login for the financial program or knowing Robinson's login information. According to Smith, Robinson would have been the only person who had that information. He testified that he did not go back and check behind Robinson because he believed the corporate office did that. He was not an accountant and could not balance the books.

Smith stated he occasionally took deposits to the bank and would bring the bank bag back to the office with the printout from the bank. He testified that he deposited everything he was given to deposit. He claimed he first heard of the thefts after he left Bailey Bark for another job, and he was not accused of taking any money and denied doing so. Smith testified he was not aware that Lee or Kyle Bailey ever balanced the company books.

On cross-examination, Smith testified that he never initialed the deposit slips. Although he admitted to printing one or two deposit slips, he explained that by printing he meant that he "put them in there" while Robinson was sitting there. Additionally, he testified he was not required to enter the password into the computer at that time. He did not know whether the prior bookkeeper's password had been changed, never saw Kyle Bailey use the computer, and denied taking money out of the register to make up a shortage. Smith confirmed that deposits for the day were kept in a safe, and the key was in a drawer. He did not know who was aware of that information and further testified that the safe had a keypad.

After Smith's testimony, the State and the defense stipulated to the introduction into evidence of the report by fraud examiner, David Macey. The State rested its case. The exhibit included Macey's expert opinion, which concluded that "cash deposits shown in Exhibit B [S-1], represent actual cash receipts by the Company that have been either lost or stolen." In the report, he also concluded that "there is a clear trail of evidence to show that these deposits represent actual sales receipts that were tallied and recorded into the Company's software," but that "these funds were not, in fact, deposited into the Company's operating bank account."

Finally, Robinson testified. She began working for Bailey Bark on March 23, 2008, as a receptionist. She was promoted to bookkeeper, accountant, and assistant office manager in 2010 after the former office manager trained her how to use QuickBooks on the point of sales program. Robinson testified that "99 percent of the checks was written off the printer of the computer system on the financial QuickBooks side." She stated that Smith knew how to do checks and access the financial portion of QuickBooks, but she did not know if he knew the password.

Robinson stated the financial portion of QuickBooks was always open when she got to work at 8:30 a.m. She stated either Smith or Kyle Bailey would open the business when trucks would deliver materials early and the drivers would have to be paid. Therefore, Robinson stated she was sure somebody obtained access to QuickBooks to write checks. She testified that she did not begin reconciling bank statements until March 2011. According to Robinson, Smith never supervised her.

Robinson confirmed the other employees' testimony regarding the preparation of the daily pack, which was put in a file cabinet. She also confirmed that the deposits of checks, money orders, or cash were prepared in the financial portion of QuickBooks, and deposits cannot be done on the points of sales software. She explained that nobody checked to see whether the daily pack matched with daily sales. She testified that Lee also did deposits and had access to the financial portion of QuickBooks. Although Kyle Bailey also knew how to get into the financial portion, Robinson stated he never had to do a deposit.

Robinson denied that Garwood called her about reconciling books, although she admitted reconciling the books each month after the bank statement arrived showing a beginning and ending balance, as well as deposits and credits. She testified she first checked off deposits and accessed the financial portion of QuickBooks where she would "go down to bank reconciliation." She would then enter the beginning and ending balance amounts from the bank statement and "start checking off the deposits, making sure they matching up with your bank statement and what's in your computer system." Robinson also checked the credits or credit card transactions and the checks. In the end, she stated, "you'll come up with an ending balance." She explained that once the numbers were in and balanced, you pressed the "reconcile" command, and it balanced out.

According to Robinson, only once was the balance off by a "dollar and some odd cents" when she called Garwood who told her to recheck everything. Garwood instructed Robinson that if it failed to balance, hit the "force reconcile" command, and the system would reconcile the accounts. Robinson claimed to have taught herself how to reconcile in QuickBooks, and the former bookkeeper only showed her the basics, such as how to pay bills and record receivables. She denied knowing how to make deletions or changes in QuickBooks, claiming she was never "taught or trained how to go in to do deletions, or to do a correction, or how to remove something off the system."

Robinson conceded that Jeff Bailey called her for the Administrator password, but denied knowing it. She testified that she called the computer specialist who handled QuickBooks for the company, but he was never able to open the software with the Administrator password provided to him. Robinson claimed she was never required to use a password and that the "system was already up when I got to work." She stated the password "would just come up," and she continued to use what was saved in the system.

Robinson also confirmed that the safe was opened with a key kept in the cash register and that the safe also had a combination lock. Additionally, Robinson, as well as Smith, Lee, and Kyle Bailey, knew the combination to the safe and where the key was located.

Robinson testified she was off every Wednesday and was unable to make deposits on that day. She stated that when she came back to work, everything was in order, meaning the deposits had been made and the checks were written without her being there. On her days off, Robinson stated that someone would be required to be in the system in order to write checks and make deposits. She testified those individuals would have been Smith, Lee, and Kyle Bailey. She claimed that Smith was at the employee meeting with Jeff Bailey in July 2012 and denied taking any money from Bailey Bark or noticing $10,000 to $15,000 missing at any given time.

On cross-examination, Robinson admitted to having a felony theft conviction in 2000. She testified that all of the previous witnesses were being untruthful. She claimed she did not know if a reconciliation could be forced with a $10,000 discrepancy because she never had a large discrepancy. She denied she had any uncleared deposits the entire time she worked for Bailey Bark. She defined an uncleared deposit as one "that just hasn't shown up on a bank statement yet," and she stated it was common for an uncleared deposit to linger until the next month. She testified that if the deposit did not show up the following month, she would call it to Garwood's attention. She also denied refusing to give Garwood the password or ever giving it to Garwood after Jeff Bailey called her.

Robinson testified that all of the employees prepared deposit slips, but stated she was the only one who reconciled the statements every month. When shown the S-1 exhibit, she denied seeing any of the uncleared deposits, but admitted it would be something she should notice. She was unable to confirm the accuracy of the exhibit and denied being responsible for the $100,000 in missing funds. When asked if she alerted anyone in a three-month span that $12,000 was missing, she stated she did not "because when I was doing bank statements, there wasn't any missing cash."

Robinson admitted to handling the bank statements in August, September, and November 2011, but insisted those statements reconciled. She stated she did not have to force reconcile any of those months. She testified that if there were uncleared deposits, she would have seen them. She recalled that she reconciled Bailey Bark's statements in July 2012. She stated she told Jeff Bailey she did not take any money from the business and admitted to asking for an attorney when the investigators began to question her.

The court questioned Robinson regarding the daily pack. Robinson repeated her explanation of the process, adding that receipts and closed drawer reports were put in a brown envelope placed in a locked file cabinet, and money orders, checks, and cash would go into a bank bag for deposit and then into the locked safe. She further explained that one deposit slip was prepared for the bank, but two receipts were received from the bank-one for cash and one for money orders and checks. Robinson stated that anyone who closed the drawer could prepare the deposit slip on Wednesday, and she denied handling cash on other days when discrepancies occurred. When shown the S-1 exhibit, she stated there was no way to know who made the deposits on the particular days because no person initialed a deposit slip. Robinson stated that "at the end of the day, if you're working the cash register," and "you go and do your end of day, that person also does the deposit slip."

After Robinson's testimony, the trial court took the case under advisement. The trial court found Robinson guilty as charged of felony theft. The court noted Robinson was in charge of the accounting in QuickBooks; only a handful of uncleared deposits occurred on a Wednesday, which was Robinson's day off (of the roughly 75 deposits, fewer than five occurred on a Wednesday); and, it did not believe her testimony was truthful based on her demeanor on the stand and her body language.

We find the evidence sufficient to support Robinson's conviction for felony theft. The existence of more than $100,000 in uncleared deposits was established through the expert report of accountant David Macey, as well as the testimony of Garwood, who re-performed monthly reconciliations for 2011 and 2012 by using the "undo" feature in QuickBooks. Simply stated, these uncleared deposits represented money received by the company that was never deposited into the business bank account and hidden through the manipulation of the financial portion of the QuickBooks software. This evidence was sufficient to establish the elements of felony theft.

Robinson could not refute the existence of the discrepancies, but claimed she was not responsible for them. While the identity of the perpetrator was not established by direct evidence, the circumstantial evidence, when viewed in the light most favorable to the State, is sufficient to establish Robinson's guilt beyond a reasonable doubt. The trial court accepted the testimonies of the other employees that they did not have access to QuickBooks for either creating the deposits or reconciling the bank statements. Both Smith and Lee denied having access to the financial portion of the software. Although Smith testified that he prepared some deposit slips, he clearly stated Robinson was always present. Lee's participation was minimal, and she began employment sometime after the thefts began. From this evidence, such credibility determinations were reasonable and will not be disturbed on appeal.

Likewise, the trial court rejected Robinson's testimony due to her lack of credibility. Robinson admitted she was the sole individual who reconciled the monthly bank statements. While the evidence showed the money was actually misappropriated when the deposit slips were prepared, it also established that the theft was concealed during the end-of-the-month bank statement reconciliation. Further, Robinson made questionable statements regarding her need for an Administrator login, and she also contradicted both Jeff Bailey's and Garwood's testimony regarding their attempts and ultimate receipt of the password from Robinson.

Despite her claims of not knowing how to delete transactions, Robinson's testimony clearly shows she knew how to "force reconcile" the bank accounts at the end of the month for small amounts. Her claims that she never saw the substantial discrepancies in the monthly statements lack trustworthiness. Thus, we find the trial court was reasonable in rejecting Robinson's testimony as self-serving and not credible. Ultimately, Robinson's guilt can be inferred from the evidence showing the extent of her control over the financial portion of QuickBooks, including account reconciliation, efforts to shift culpability to other employees, and attempts to plead ignorance of and distance herself from knowledge of the notable discrepancies. The facts and evidence exclude every other reasonable hypothesis of innocence, regardless of any evidence showing that minimal deposits were made on Robinson's day off or at any other time by other employees. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, Robinson's conviction and sentence are affirmed.

AFFIRMED.

      Robinson waived her right to a jury trial.

      Robinson was employed at the time of sentencing. Thus, her indigency is not apparent from the record despite her representation by the Indigent Defender's Office and the Appellate Project so as to preclude the imposition of default time as set forth in State v. Pratt , 50,152 (La. App. 2 Cir. 12/30/15), 184 So.3d 816, writ denied , 16-0123 (La. 1/25/17), 215 So.3d 262.

      On cross-examination, Edmunson admitted Lee and Smith also made deposits and would give the deposit slips to Robinson without initialing them.


author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Keith BARRON, Appellant
    No. 51,491-KA
    Court of Appeal of Louisiana, Second Circuit.
    August 9, 2017
    LOUISIANA APPELLATE, PROJECT By: Douglas Lee Harville, Counsel for Appellant
    ROBERT S. TEW, District Attorney, R. NICOLAS ANDERSON, Assistant District Attorney, Counsel for Appellee
    Before DREW, GARRETT, and COX, JJ.
   GARRETT, J.

The defendant, Keith Barron, appeals his conviction for aggravated battery. For the following reasons, we affirm the conviction and sentence.

FACTS

In December 2015, Barron had an altercation with the victim, Tonya Ard, at the apartment they shared in Monroe. Barron cut Ard's throat and stabbed her numerous times in the abdomen. Ard survived the attack and identified Barron as the assailant. An arrest warrant was issued for Barron. He was found in Shreveport and arrested pursuant to the warrant. He was charged with attempted second degree murder. Barron claimed that he acted in self-defense. Following a trial, the jury convicted Barron of the responsive verdict of aggravated battery. Motions for post verdict judgment of acquittal, arrest of judgment, and new trial were denied. Barron was sentenced to serve ten years at hard labor. He appealed, claiming there was insufficient evidence upon which to base the conviction and that the trial court gave an erroneous jury instruction on self-defense.

SUFFICIENCY OF THE EVIDENCE

Barron claims there was insufficient evidence to prove beyond a reasonable doubt that he was guilty of aggravated battery. This argument is without merit.

Legal Principles

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979) ; State v. Tate , 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L. Ed. 2d 248 (2004) ; State v. Carter , 42,894 (La. App. 2 Cir. 1/9/08), 974 So.2d 181, writ denied , 2008-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 2005-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied , 2009-0310 (La. 11/6/09), 21 So.3d 297.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton , 436 So.2d 471 (La. 1983) ; State v. Speed , 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied , 2009-0372 (La. 11/6/09), 21 So.3d 299 ; State v. Parker , 42,311 (La. App. 2 Cir. 8/15/07), 963 So.2d 497, writ denied , 2007-2053 (La. 3/7/08), 977 So.2d 896 ; State v. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717, writ denied , 2016-1479 (La. 5/19/17), 221 So.3d 78, 2017 WL 2784240 ; State v. Sullivan , 51,180 (La. App. 2 Cir. 2/15/17), 216 So.3d 175.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 1994-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to the fact finder'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 ; 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 ; State v. Randle , 49,952 (La. App. 2 Cir. 6/24/15), 166 So.3d 465 ; State v. Casaday , 49,679 (La. App. 2 Cir. 2/27/15), 162 So.3d 578, writ denied , 2015-0607 (La. 2/5/16), 186 So.3d 1162.

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge on the fact finder's discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey , 1999-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000) ; State v. Green , 49,741 (La. App. 2 Cir. 4/15/15), 164 So.3d 331.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra ; State v. Allen , 36,180 (La. App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied , 2002-2595 (La. 3/28/03), 840 So.2d 566, 2002-2997 (La. 6/27/03), 847 So. 2d 1255,cert. denied , 540 U.S. 1185, 124 S.Ct. 1404, 158 L. Ed. 2d 90 (2004). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Randle, supra ; State v. Francis , 51,048 (La. App. 2 Cir. 1/11/17), 213 So.3d 1213.

A battery is the intentional use of force or violence upon the person of another. See La. R.S. 14:33. An aggravated battery is a battery committed with a dangerous weapon. See La. R.S. 14:34. "Dangerous weapon" includes any instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm. See La. R.S. 14:2. Aggravated battery is a responsive verdict to attempted second degree murder. La. C. Cr. P. art. 814(4).

La. R.S. 14:18 provides, in part:

The fact that an offender's conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances:
....
(7) When the offender's conduct is in defense of persons or of property under any of the circumstances described in Articles 19 through 22.
La. R.S. 14:19 provides, in pertinent part:
A. (1) The use of force or violence upon the person of another is justifiable under either of the following circumstances:
(a) When committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person's lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense.
....
(2) The provisions of Paragraph (1) of this Section shall not apply where the force or violence results in a homicide.

In a non-homicide situation, a claim of self-defense requires a dual inquiry: first, an objective inquiry into whether the force used was reasonable under the circumstances; and, second, a subjective inquiry into whether the force used was apparently necessary. State v. Robinson , 37,043 (La. App. 2 Cir. 5/14/03), 848 So.2d 642 ; State v. Williams , 50,004 (La. App. 2 Cir. 9/30/15), 178 So.3d 1051 ; State v. Glover , 47,311 (La. App. 2 Cir. 10/10/12), 106 So.3d 129, writ denied , 2012-2667 (La. 5/24/13), 116 So.3d 659.

Discussion

The evidence adduced at trial revealed the following. Ard admitted that she had a recent felony conviction for possession of PCP and was on probation. She was 40 years old and had three children. Her children were not living with her at the time of the incident at issue here because she had no furniture or electricity in her apartment. She met Barron through a childhood friend named Carlos. In December 2015, Jefferson told her that Barron did not have a place to live and suggested that he move into the apartment with her. Ard agreed to the arrangement. She claimed that Barron did not help pay rent or other bills.

Ard stated that Barron had a lock-blade knife that he always carried in his back pocket. She had seen him use the knife to shave his head. According to Ard, on December 13 or early December 14, 2015, Barron knocked on the door of the apartment. Ard had never given him a key. They walked to a convenience store and purchased beer. After drinking some of the beer at the apartment, Barron asked her for sex, but she refused. He became angry and she told him to get his things and leave. Barron came out with a suitcase and asked Ard to help him find some of his belongings. At that point, he grabbed her by the hair, cut her throat, and stabbed her in the abdomen. She said he told her was not going to kill her, but was going to hurt her "real bad" to make her shut up. A knife was found at the scene and Ard identified it at trial as the weapon Barron used in the attack.

Ard saw Barron wash the knife off in the sink. She said that someone knocked on the door and she was able to get out and crawl to a neighbor's apartment. When police were summoned, Ard said she thought she told them that Barron attacked her, and she also mentioned that he sometimes stayed with Jefferson. Ard was taken to the hospital where her neck wound was sutured and she had surgery for her abdominal wounds. She was hospitalized for three days.

Officer Demetrice Underwood of the Monroe Police Department was dispatched to the scene at 2:56 a.m. regarding the attack. Clarence Reed, one of the neighbors, identified Ard for Underwood. He said Ard came to his apartment knocking and screaming for help. Reed called 911. When Underwood arrived, Ard was lying in the doorway of a neighboring apartment with a bloody towel covering her throat. She had lost a lot of blood. Underwood could see her vocal cords or other anatomical structures through the cut on Ard's throat. Underwood said that Ard was able to respond to questions, but her responses were not clear and he had to ask her more than once. Underwood said that Ard's eyes were rolling back in her head.

According to Underwood, Ard said, "Carlos did this" and described him as a heavy-set, dark-skinned, bald man who worked at a local restaurant. This description fit the defendant, but not Jefferson. During the investigation, Jefferson was described as mixed race, possibly Indian, Mexican, and/or Puerto Rican, having a very fair complexion with straight brown hair.

Underwood observed blood on the doorstep of Ard's apartment. He also observed blood in the bathroom and bedroom. Underwood stated that there were several neighbors present at the scene with the victim, and there were also a number of people in a nearby field.

Detective Kevin Cope, an investigator with the Monroe Police Department, went to the scene shortly after the attack. He observed blood in the hallway of Ard's apartment, in the bathroom, and on the walls. A knife and shirt were recovered at the scene. A suitcase and a beer can were found by the front door.

Cope said the names "Keith" and "Carlos" came up at the scene. At one point, Cope received information that "Keith Blakes" might be involved, but could not remember where that information came from. A photo of that individual was included in the first photo lineup shown to Ard at the hospital, but she did not identify him as the assailant.

According to Cope, Ard told him to talk to Jefferson, because Barron stayed with him occasionally. Cope found Jefferson, who told him where Barron worked. A second photo lineup was prepared with Barron's picture in it. Cope said he was confident that Ard "had her faculties about her" when she viewed the second photo lineup presented to her at the hospital and identified Barron as her attacker. An arrest warrant was obtained, and Barron was later located in Shreveport.

After the state rested, the defendant presented witnesses in his defense. Carron Lamar Harris testified that he had known Jefferson and Ard since their school days together. At the time of the trial, Harris was in jail, but had not yet been convicted. The crime he was accused of was not specified. Harris acknowledged that he had sold drugs in the past.

Harris said that on the afternoon before the stabbing, he and Jefferson visited Ard at her apartment. Harris claimed that Ard and Jefferson smoked PCP that afternoon. He and Jefferson left Ard's apartment about 3:00 p.m. Harris said that he heard about the attack on Ard the next day.

Barron testified in his own defense. His version of what transpired differed from that related by Ard. He was 40 years old and was from Shreveport. He went to Monroe to work in March 2015, and worked two jobs simultaneously at different restaurants. Barron worked with Jefferson at one of the restaurants and became acquainted with Ard. He moved into her apartment in November 2015. Barron stated that he had sex with Ard on two occasions, but he was not her boyfriend. He claimed that Jefferson frequently came to the apartment to smoke PCP and have sex with Ard.

According to Barron, he left the apartment for work on December 13, 2015, at 6:00 a.m. and returned around midnight. When he arrived, Ard began calling him a liar and asked him for money to buy drugs. He gave her $20 and she left the apartment for two hours. When she returned, she said she had smoked PCP and asked for $10 to buy more drugs. Barron and Ard walked to a convenience store so he could get change to give her. Barron said there were lots of people at the store and the police were trying to disperse a crowd, so he left without getting any change. Barron left the store without Ard and began walking back to the apartment. Ard and a man with gold teeth walked up behind him. Ard began cursing at Barron. He claimed the man was telling Ard things to say to him. Barron said he told Ard and her companion to walk a different route, and Barron chose a longer route to the apartment.

When he got back to the apartment, Barron gathered his things to leave. Ard was already at the apartment and confronted him again. Barron testified that Ard scratched him on the left forearm and he looked up to see that she was holding his knife. He said he saw the knife coming down and tried to deflect it, but it came down between his right thumb and hand, causing a deep cut.

Barron said he threw Ard down and pushed her. Barron got control of the knife and cut Ard's throat. Barron admitted cutting Ard, but contended that he was defending himself, trying to disarm her, and the situation was brought on by her actions. Barron never accounted for the stab wounds to Ard's abdomen. Barron said he washed the blood off his hand and then tried to help Ard, who was on the bedroom floor holding her neck. He claimed he tried several times to get Ard up, but she fought him off. She was taller than him and the blood on his hand hindered his efforts to lift her off the floor.

A man came in the front door of the apartment and Ard was able to get out, calling for help. She was followed out of the apartment by the man. Barron stated that several guys then jumped him and beat him up "pretty good." He claimed the beating lasted at least five minutes and he was rendered unconscious. When he regained consciousness, Barron got up and hobbled away, because more people were coming toward him. He said he went a couple of streets over and stayed in an abandoned house for 24 hours. He then walked to a friend's house and arranged for a ride to Shreveport. Barron did not seek medical attention for his alleged injuries.

On December 17, he became aware that the police were looking for him. He was eventually arrested and returned to Monroe. At that point, he received medical attention for his hand, which required nine stitches.

Barron acknowledged that he had an extensive criminal record, including cruelty to a juvenile, aggravated battery, illegal carrying of a weapon, and aggravated flight from an officer.

Ard testified that the police misunderstood her when they thought she said Jefferson attacked her and denied describing him as being dark-skinned with a bald head. She said she did not remember what she first told the police. She denied smoking PCP on December 13, 2015, asking Barron for money to buy drugs, being angry with Barron for not giving her money, or attacking Barron with a knife. Ard did not know how Barron's hand was cut.

Barron argues on appeal that the evidence was not sufficient to support the conviction. He contends that Ard was high on PCP and attacked him when he refused to give her money to buy drugs, and he cut her in self-defense. Barron points to the testimony of Harris to show that Ard smoked PCP on the date of the incident. He argues that, due to Ard's drugged state at the time of the incident, she initially identified others as her attacker. Barron noted that Ard never accounted for how his hand was injured in the incident. Based on these factors, Barron claims that Ard's testimony was not credible and did not establish that he committed aggravated battery.

The evidence and Barron's own testimony showed that he cut Ard's throat and stabbed her numerous times in the abdomen, even though he contended he did so in self-defense. Ard denied attacking Barron and testified that he stabbed her because he was angry that she refused to have sex with him. The versions of events given by Barron and Ard are conflicting, and the jury obviously chose to believe Ard. This decision was a credibility determination, and the jury rationally chose to accept the testimony of Ard and reject that of Barron. There were no internal contradictions or irreconcilable conflicts between Ard's testimony and the physical evidence.

Although Barron points out that Ard originally said that Jefferson attacked her, Barron admitted that he cut Ard's throat. Therefore, there was no issue as to the identity of the person who harmed Ard. Her initial description of the assailant matched Barron's appearance, not Jefferson's. Also, contrary to Barron's argument in his brief, Ard did not identify Keith Blakes as the attacker. At trial, Detective Cope said he was not sure how that name surfaced in the investigation. After Ard received medical treatment and was in a stabilized condition, she positively identified Barron as her attacker.

In addition to his own self-serving testimony, Barron points to the testimony of Harris that Ard smoked PCP on the date of the offense. However, Harris's testimony, if believed, showed that Ard smoked PCP before 3:00 p.m. on the date of the incident, approximately 12 hours before Barron cut Ard with the knife.

Although Barron was charged with attempted second degree murder, the jury convicted him of the responsive verdict of aggravated battery. To find Barron guilty of this offense, the state was required to prove beyond a reasonable doubt that Barron engaged in the intentional use of force or violence upon Ard with a dangerous weapon. Barron's actions in intentionally cutting Ard's throat and stabbing her in the abdomen with a knife were proven beyond a reasonable doubt and were sufficient to support his conviction for this offense.

Further, the jury rejected Barron's claim of self-defense. Barron admitted cutting Ard. The evidence and testimony showed that her throat was so deeply lacerated that anatomical structures were visible through the wound. In addition, she was stabbed numerous times in the abdomen, requiring surgery. Even if the jury had believed Barron's testimony that Ard attacked him, the nature and severity of her injuries do not support a finding that Barron's actions were justified to prevent an attack upon his person. The brutality and severity of Ard's injuries clearly demonstrate that the force or violence used by Barron was not reasonable under the circumstances and was not apparently necessary. Therefore, his claim of self-defense was properly rejected by the jury.

JURY INSTRUCTION ON SELF-DEFENSE

On appeal, Barron contends that the trial court erred in instructing the jury that he had the burden of proving self-defense in a non-homicide case. Contrary to Barron's argument in his appellate brief, there was no objection by the defense to this jury instruction.

A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury. La. C. Cr. P. art. 801(C). Because the defense did not object to the jury instruction and, in fact, approved it on numerous occasions on the record as a correct statement of the law, Barron cannot now object to the instruction on appeal. Further, there was no error in the instruction given under the circumstances presented here.

Legal Principles

Self-defense in a homicide case is governed by La. R.S. 14:20. Self-defense in a non-homicide case, such as the present matter, is governed by a separate statute, La. R.S. 14:19, set forth above. In Louisiana, the burden of proving self-defense in a non-homicide case has been the matter of some discussion. In State v. Freeman , 427 So.2d 1161 (La. 1983), the Louisiana Supreme Court noted that different statutory standards exist to justify the use of force or violence under La. R.S. 14:19 and 20, depending on whether a homicide results. In a non-homicide case, a claim of self-defense requires a dual inquiry: first, an objective inquiry into whether the force used was reasonable under the circumstances; and, second, a subjective inquiry into whether the force used was apparently necessary. The court in Freeman observed that the burden of persuasion in proving self-defense in a non-homicide situation, which entails a subjective as well as an objective inquiry, could arguably be on the defendant since a subjective inquiry is involved. However, in disposing of the issues before it, the court in Freeman found it unnecessary to decide definitively whether the state or the defendant had the burden of proof in a non-homicide case.

In State v. Cheatwood , 458 So.2d 907 (La. 1984), the Louisiana Supreme Court recognized that our statutory criminal law does not directly address the burden of proof for "defenses." The court found there was a logical distinction between defenses which actually defeat an essential element of the offense, such as intoxication or mistake of fact, which preclude the presence of the mental element of the offense, and those defenses which present exculpatory circumstances that defeat culpability despite the state's proof beyond a reasonable doubt of all of the essential elements. In Cheatwood , the court observed that defenses such as justification are truly "affirmative" defenses because they do not negate any element of the offense, and it is logical to conclude that the legislature intended the defendant to prove by a preponderance of the evidence the exculpatory circumstances constituting the affirmative defense.

This circuit has repeatedly held that the burden of proving self-defense in a non-homicide case rests with the defendant to prove the defense by a preponderance of the evidence. See State v. Williams, supra ; State v. Jones , 49,396 (La. App. 2 Cir. 11/19/14), 152 So.3d 235, writ denied , 2014-2631 (La. 9/25/15), 178 So.3d 565 ; State v. Glover, supra ; State v. Cheatham , 38,413 (La. App. 2 Cir. 6/23/04), 877 So.2d 164, writ denied , 2004-2224 (La. 6/24/05), 904 So.2d 717 ; State v. Robinson, supra ; State v. Mason , 499 So.2d 551 (La. App. 2 Cir. 1986).

The third and fifth circuits also appear to follow this rule. See State v. Baker , 2008-54 (La. App. 3 Cir. 5/7/08), 986 So.2d 682 ; State v. McBride , 2000-00422 (La. App. 3 Cir. 11/15/00), 773 So.2d 849, writ denied , 2001-0294 (La. 2/8/02), 807 So.2d 858 ; State v. Wright , 1999-1137 (La. App. 3 Cir. 3/1/00), 758 So.2d 301, writ denied , 2000-1614 (La. 3/9/01), 786 So.2d 118 ; State v. Joubert , 97-1093 (La. App. 3 Cir. 2/4/98), 705 So.2d 1295, writ denied , 1998-1525 (La. 10/30/98), 723 So.2d 973 ; State v. Hall , 606 So.2d 972 (La. App. 3 Cir.1992), writ denied , 644 So.2d 385 (La. 1994) ; State v. Perkins , 527 So.2d 48 (La. App. 3 Cir. 1988) ; State v. Havies , 16-635 (La. App. 5 Cir. 3/15/17), 215 So.3d 457 ; State v. Strickland , 11-715 (La. App. 5 Cir. 3/27/12), 91 So.3d 411 ; State v. Bannister , 11-602 (La. App. 5 Cir. 2/14/12), 88 So.3d 628, writ denied , 2012-0628 (La. 6/15/12), 90 So.3d 1060 ; State v. Nailor , 10-1062 (La. App. 5 Cir. 11/15/11), 78 So.3d 816, writ denied , 2011-2780 (La. 4/27/12), 86 So.3d 626 ; State v. Rainey , 98-436 (La. App. 5 Cir. 11/25/98), 722 So.2d 1097, writ denied , 98-3219 (La. 5/7/99), 741 So.2d 28 ; State v. Barnes , 491 So.2d 42 (La. App. 5 Cir. 1986).

The fourth circuit has a split in its circuit as to where the burden of proof lies. See State v. Canales , 2014-0663 (La. App. 4 Cir. 12/10/14), 156 So.3d 1183, writ denied , 2015-0048 (La. 11/6/15), 180 So.3d 306 ; State in Interest of A.W. , 2013-1198 (La. App. 4 Cir. 3/13/14), 137 So.3d 728 ; State v. Byrd , 2012-0556 (La. App. 4 Cir. 6/5/13), 119 So.3d 801, writ denied , 2013-1589 (La. 1/27/14), 130 So.3d 957 ; State v. Cooks , 2011-0342 (La. App. 4 Cir. 12/14/11), 81 So.3d 932, writ denied , 2012-0112 (La. 5/18/12), 89 So.3d 1189 ; State v. Boudreaux , 2008-1504 (La. App. 4 Cir. 9/29/10), 48 So.3d 1144, writ denied , 2010-2434 (La. 4/8/11), 61 So.3d 682 ; State v. Fluker , 618 So.2d 459 (La. App. 4 Cir. 1993).

Discussion

In this case, Barron requested that the jury be instructed on the law of self-defense. Pursuant to Barron's request, the trial court prepared jury charges which were approved by both the state and the defense. During closing argument, Barron acknowledged that he had the burden of proving self-defense. The following instruction on self-defense was given in this case:

Now, the defendant has raised a legal justification claim of self-defense. The use of force or violence upon the person of another is justifiable for the purpose of preventing a forcible offense against one's person if the force used is reasonable and apparently necessary to prevent the offense. A person who has not engaged in any unlawful activity and is in a place where he or she has a right to be has no duty to retreat before using force or violence for the purpose of preventing a forcible offense against [his] or her person. In such circumstances a person may stand his or her own ground and meet force with force. The possibility of retreat shall not be considered as [a] factor in determining whether or not the person had a reasonable belief that the use of force or violence was reasonable and apparently necessary to prevent the forcible offense against his or her person. Thus if you find that the defendant committed the offense charged for the purpose of preventing a forcible offense against his person, and 2) that the amount of force [or] violence used was reasonable and 3) that the force or violence was apparently necessary to prevent the forcible offense then you must find the defendant not guilty. A defendant who seeks to justify his actions by the legal claim of self-defense must prove his claim by a preponderance of the evidence. Now, in applying all this law which the court has given to you about the evidence and the witnesses and the definitions, you must remember that the burden of proving the guilt of the accused as to the charge is on the state throughout the trial.

On numerous occasions during the trial, the attorneys discussed with the court the jury instructions to be given. Barron's attorney acknowledged that, in the second circuit, in a non-homicide case, the defendant has the burden of proving the defense of justification by a preponderance of the evidence. Barron's attorney accurately stated that the instruction was "a correct statement of the law." Under all of these circumstances, there was no error in the jury instruction.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Keith Barron, for aggravated battery.

AFFIRMED .

      Prior to trial, Barron filed a pleading entitled "Notice of Intent to Assert Affirmative Defense of Self Defense."

      Ard said she did not know Carlos's full name. It was determined during the investigation that his name is Carlos Jefferson.

      We also note that, following the trial, Barron filed a motion for post verdict judgment of acquittal in the trial court, arguing that the evidence was not sufficient to support the verdict against him. The trial court determined that the jury verdict was reasonable and was supported by the evidence. The motion was correctly denied.

      In his brief, Barron argues that placing the burden of proof of self-defense on him denied his presumption of innocence and violated his due process rights, which required the state to prove all the elements of aggravated battery beyond a reasonable doubt. He acknowledged that the argument was foreclosed before this court, but raised the issue to preserve it for review by the Louisiana Supreme Court or other courts. As stated above, this issue was not preserved for appeal by a contemporaneous objection. Also, we note that the United States Supreme Court rejected a similar argument in Martin v. Ohio , 480 U.S. 228, 107 S.Ct. 1098, 94 L. Ed. 2d 267 (1987).


author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Leon MCDONALD, Appellant
    No. 51,468-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 9, 2017
    LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant
    ROBERT S. TEW, District Attorney, GEARY S. AYCOCK, FRED R. McGAHA, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, DREW, and PITMAN, JJ.
   PITMAN, J.

Defendant Leon McDonald was convicted of aggravated battery, in violation of La. R.S. 14:34, and possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. He was sentenced to 10 years' at hard labor and 17 years at hard labor, without benefit of parole, probation or suspension of sentence, respectively. His probation from a previous conviction was revoked, and the instant sentences, which are currently under review, were ordered to be served concurrently with each other, but consecutively to Count 1 in the earlier conviction and concurrently with Count 2 in that conviction. For the following reasons, Defendant's convictions and sentences are affirmed.

FACTS

On the evening of January 16, 2015, Frozenia McGee and her daughter, Tracy McGee, were sitting on the front porch of their residence at 109 South Nineteenth Street in Monroe, Louisiana. Joseph Wright, Frozenia's former boyfriend, joined them, and they were drinking and listening to music.

A next-door neighbor, Dwight Amphy, came home from work at approximately 4:00 p.m. and saw Wright on, or near, the porch of the McGee resident. Approximately one half-hour later, Amphy was outside on his own porch when he saw a gray Chevrolet arrive at the McGee residence. Amphy and Wright did not know the driver of the vehicle, but Frozenia and Tracy identified him as Defendant. The passenger was originally identified only by the street name of Peanut; however, he was later identified by his given name of Walter Fuller. Amphy recognized both men as having been at the McGee residence on prior occasions. The two men joined Frozenia, Tracy and Wright on the porch.

Amphy went back inside his home after the arrival of Defendant and Peanut, but a short time later, heard arguing next door and looked outside. Amphy observed Peanut and Wright arguing near the street. Wright tried to leave the property, but Peanut began striking him with a stick. Wright fell to the ground and Peanut continued to strike him. Defendant returned to the vehicle and retrieved a gun, stood over Wright and shot him in the ankle as he attempted to crawl away. Peanut and Defendant left the scene in the gray Chevrolet when Amphy yelled that he was calling the police.

Cpl. Colette Major was the first Monroe Police Department officer to arrive at the scene. She observed Wright lying partially on the grass and partially in the roadway. His ankle was bloody, his foot looked twisted and he was moaning. Wright told Cpl. Major that he did not know the man who shot him, but that he knew the other man by his street name of Peanut. After ensuring that Wright received medical attention, Cpl. Major began taking statements from witnesses. Amphy's statement was taken and then she attempted to interview Frozenia, who was not cooperative and smelled strongly of alcohol.

Det. Dwayne Crowder of the Monroe Police Department responded to the hospital where Wright was transported, and the investigation was turned over to him. While Wright received medical care, Det. Crowder returned to the scene to speak with witnesses. Frozenia provided Defendant's name to him. Wright later identified Defendant as the shooter from a photo lineup. An arrest warrant for Defendant was obtained and executed.

Defendant was charged by bill of information with aggravated second degree battery and possession of a firearm by a convicted felon. The bill of information indicates that, as to Count 2, Possession of a Firearm by a Felon, in violation of La. R.S. 14:95.1, Defendant had previously pled guilty on December 14, 2010, in Docket No. 10-F2121, Fourth Judicial District Court, Ouachita Parish, to the crime of distribution of Phencyclidine ("PCP"), a Schedule II drug.

A motion to revoke Defendant's probation in Docket No. 10-F2121 was filed, and a hearing was held on April 27, 2016. His probation officer, identified in the record only as Mr. Turnbull, appeared and testified that Defendant's conviction in December 2010 had been for two counts of distribution of PCP and illegal carrying of a weapon. He recited Defendant's various violations of his probation, which included a failure to report for many months and failure to pay agreed-to fees in his conditions of probation. Mr. Turnbull also testified that Defendant had been released on September 25, 2012, and that his probation was to expire on September 25, 2017.

The trial court found sufficient grounds to revoke Defendant's probation based on the new charges against him, ordered the probation revoked and imposed the original sentences with credit for time served.

A jury trial was held, at which Frozenia and Tracy McGee, Amphy, Wright, Cpl. Major and Det. Crowder testified to the facts set forth hereinabove. Defendant was convicted of the responsive verdict of aggravated battery and found guilty as charged of possession of a firearm by a convicted felon.

Oral motions for new trial, post-verdict judgment of acquittal and arrest of judgment as to the conviction for aggravated battery were made on August 25, 2016. All three motions were denied.

On August 25, 2016, Defendant was sentenced to 10 years' imprisonment at hard labor for the aggravated battery conviction and 17 years' imprisonment at hard labor, without benefit of parole, probation or suspension of sentence, for the possession of a firearm by a convicted felon conviction. The two sentences were to be served concurrently with each other, but consecutively with any time remaining in Defendant's 10-year sentence on his prior convictions in Ouachita Parish, Docket No. 10-F2121.

In a motion for reconsideration of sentence filed on August 26, 2016, Defendant argued that his sentences were excessive due to his age. The motion was denied by the trial court. This appeal followed.

DISCUSSION

Excessive Sentence

Defendant argues that his sentences are excessive. He contends that, although the sentences of 10 and 17 years' imprisonment were to run concurrently with each other, the trial court erred by ordering these sentences to be served consecutively with the revoked 10-year sentence previously imposed in Docket No. 10-F2121. He claims that, because he was 60 years old at the time of sentencing, these concurrent sentences amount to a life sentence for him.

He further argues that the trial court failed to give sufficient weight to the many mitigating factors in this case, as required by La. C. Cr. P. art. 894.1, including his lengthy work history and that, although this was not his first felony offense, he is not one of the worst offenders.

In response, the state argues that the trial court noted it had reviewed the presentence investigation ("PSI") report and considered all aggravating and mitigating factors, and it found that lesser sentences would deprecate the seriousness of the crimes. It contends that Defendant was already shown leniency by the jury when the responsive verdict of aggravated battery was returned since Defendant's sentencing exposure was decreased by five years.

A trial judge has broad discretion when imposing a sentence within the statutory limits, and the reviewing court may not overturn a sentence absent manifest abuse of discretion. State v. Breedlove , 51,055 (La. App. 2 Cir. 1/11/17), 213 So.3d 1195. When reviewing an excessive sentence claim, the appellate court uses a two-prong test. Id . First, the record must demonstrate that the trial court complied with La. C. Cr. P. art. 894.1. Id . The trial court is not required to list every aggravating and mitigating circumstance, but the record must reflect that the trial court adequately considered the guidelines of La. C. Cr. P. art. 894.1. State v. Smith , 433 So.2d 688 (La. 1983) ; State v. Breedlove , supra . The trial court should consider the defendant's personal history and prior criminal record, the seriousness of the offense, the likelihood that the defendant will commit another crime and the defendant's potential for rehabilitation. State v. Jones , 398 So.2d 1049 (La. 1981) ; State v. Breedlove , supra . The trial court is not required to assign any particular weight to any specific matters at sentencing. State v. Breedlove, supra ; State v. Quiambao , 36,587 (La. App. 2 Cir. 12/11/02), 833 So.2d 1103, writ denied , 03-0477 (La. 5/16/03), 843 So.2d 1130.

The second prong of the analysis addresses constitutional excessiveness. A sentence violates La. Const. art. I, § 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 , 92-3120 (La. 9/10/93), 623 So.2d 1276 ; State v. Bonanno , 384 So.2d 355 (La. 1980). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no measurable contribution to acceptable penal objectives. State v. Guzman , 99-1528, 1753 (La. 5/16/00), 769 So.2d 1158.

As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Breedlove , supra .

Prior to sentencing Defendant, the trial court ordered and reviewed a PSI report, as well as the state's submission letter. It noted that Wright required surgery and 18 months of rehabilitation as a result of his injury and that Wright's brother, Vernon Wright, had reported that the victim will need to undergo an additional surgery and is in need of psychological counseling, but does not have the financial means to seek treatment. Defendant did not provide a statement or address the court.

At the hearing, the trial court noted Defendant's age and that the PSI report contained a description of his employment history, which appeared to be consistent. It further noted that the PSI report also revealed that Defendant had several prior charges, including drug, traffic and theft of utility service charges, as well as a history of probation revocation. The record clearly reflects that the trial court considered and articulated the mitigating and aggravating circumstances of La. C. Cr. P. art. 894.1.

The trial court also reviewed the factual circumstances of this case prior to sentencing and clearly considered the serious nature of this offense in sentencing, noting that Wright sustained severe and debilitating injuries as a result of the shooting. It also noted that Defendant was on probation for two prior drug convictions.

Defendant was initially charged with aggravated second degree battery, but the jury returned a conviction of the responsive verdict of aggravated battery, reducing his potential sentence from 15 years' to 10 years' imprisonment. The trial court noted its belief that the evidence supported the original charge of aggravated second degree battery. This is Defendant's third felony conviction, and he received a substantial benefit from the jury's verdict. The trial court found that lesser sentences would deprecate the seriousness of the offenses.

For the foregoing reasons, the sentences imposed are not grossly disproportionate to the seriousness of the offenses committed and there is no showing that the trial court abused its great discretion in imposing those sentences. Therefore, this assignment of error is without merit.

Consecutive v. Concurrent Sentence

Defendant argues that the trial court failed to state its reasons for imposing consecutive sentences in this case. 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.

Defendant's argument is misplaced. A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. Here, the trial court ran the sentences for the two offenses of conviction concurrently, so no particular justification was required. As stated above, art. 883 expressly provides that an "other sentence" shall be served consecutively. Thus, the trial court properly stated that the two concurrent sentences for aggravated battery and possession of a firearm by a convicted felon would be served consecutively to the other unrelated sentence being served by Defendant in Docket No. 10-F2121.

This assignment is without merit.

Errors patent

A review of the record reveals there is no showing that Defendant waived the sentencing delay required by La. C. Cr. P. art. 873, which provides that:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

A motion for new trial and a motion in arrest of judgment were denied on August 25, 2016, and Defendant was immediately sentenced. There is no showing on the record that he waived the delay required by La. C. Cr. P. art. 873. However, he did not complain of actual prejudice, so the error appears harmless. See State v. Terry , 47,425 (La. App. 2 Cir. 11/21/12), 108 So.3d 126, writ denied , 12-2759 (La. 6/28/13), 118 So.3d 1096 ; State v. Wilson , 469 So.2d 1087 (La. App. 2 Cir. 1985), writ denied , 475 So.2d 778 (La. 1985).

A further review of the record shows that the trial court failed to impose a fine on the conviction for possession of a firearm by a convicted felon. At the time of the offense, La. R.S. 14:95.1 provided:

Whoever is found guilty of violating the provisions of this section shall be imprisoned at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.

The trial court imposed an illegally lenient sentence by failing to assess any fine and we could remand for correction of the sentence to include a determinate fine. However, as this court recognized in State v. Griffin , 41,946 (La. App. 2 Cir. 5/2/07), 956 So.2d 199, it is not required to take such action. The state has not objected to the error and Defendant is not prejudiced in any way by the failure to impose the mandatory fine. The record shows that Defendant is indigent. At the trial level, he was certified as eligible for indigent defender services. On appeal, he is represented by the Louisiana Appellate Project. Thus, considering Defendant's indigent status, we decline to remand for correction of the sentence to include a fine for the conviction of possession of a firearm by a convicted felon. See State v. Culp , 44,270 (La. App. 2 Cir. 7/15/09), 17 So.3d 429.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant Leon McDonald are affirmed.

AFFIRMED.

      The record reveals that Defendant had received two consecutive 10-year sentences for the convictions in Docket No. 10-F2121.