author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Gerald Bernard WARD, Appellant
    No. 50,872-KA
    Court of Appeal of Louisiana, Second Circuit.
    November 16, 2016

      CAREY J. ELLIS, III, Louisiana Appellate Project, Counsel for Appellant
    J. SCHUYLER MARVIN, District Attorney, JOHN M. LAWRENCE, Assistant District Attorney, Counsel for Appellee
    Before BROWN, LOLLEY and STONE, JJ.
   LOLLEY, J.

I,Following a jury trial in the 26th Judicial District Court, Parish of Bossier, State of Louisiana, Gerald Bernard Ward was convicted of distribution of cocaine in violation of La. R.S. 40:967A(1). He was subsequently sentenced to 25 years at hard labor, the first 2 years without benefit of probation, parole or suspension of sentence. Ward now appeals. For the following reasons, we affirm his conviction and sentence.

FACTS

Gerald Bernard Ward was arrested on April 16, 2014, for the sale of .3 grams of cocaine to a confidential informant (“Cl”) on May 14, 2013. Ward was subsequently charged by amended bill of information with distribution of cocaine in violation of La. R.S. 40:967A(1). He was represented by the public defender’s office, and declined several plea offers. During discovery, the state disclosed the identity of the Cl to the defense, but the Cl was not called to testify.

During trial, Officer Shawn Poudrier, of the Bossier Police Department Narcotics Task Force, and Lieutenant Gary Bass, a crime scene investigator for the Bossier Parish Sheriffs Office, testified. Audio/video recording of the alleged transaction and still photographs taken from that video recording were introduced into evidence by the state. The defense presented no evidence. The jury found Ward guilty as charged by a verdict of 11-1.

Ward filed motions for post-verdict judgment of acquittal, new trial, and reconsideration of sentence, which the trial court denied. Ward also filed numerous pro se letters and motions which the trial court addressed in its ruling with reasons for denial. Ward’s motion requesting documents was 12granted, and he was provided a free copy of his bill of information, criminal case minutes, and documents committing him to custody. This appeal ensued.

DISCUSSION

Sufficiency of the Evidence

In his first assignment of error, Ward submits that the evidence adduced at trial was insufficient to prove he committed the offense of distribution of cocaine. Ward contends that the officer who testified at trial was too far away to properly identify the person who allegedly sold cocaine to the CL Additionally, Ward argues that the video the state submitted of the transaction does not definitively depict Ward as the seller, and further, no DNA or fingerprint evidence was submitted to prove Ward ever handled the three bags which were recovered from the Cl. We disagree.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La. 05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App. 2d Cir. 01/09/08), 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. 02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2 Cir. 01/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/06/09), 21 So. 3d 297. 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 a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2d Cir. 02/25/09), 3 So.3d 685, writ denied, 2009-0725 (La. 12/11/09), 23 So.3d 913.

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 defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Speed, 43,786 (La.App. 2d Cir. 01/14/09), 2 So.3d 582, writ denied, 2009-0372 (La. 11/06/09), 21 So.3d 299.

Where there is conflicting testimony concerning factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App. 2d Cir. 09/18/02), 828 So.2d 622, writs denied, 2002-2595 (La. 03/28/03), 840 So.2d 566, and 2002-2997 (La. 06/27/03), 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. Baker, 49,175 (La.App. 2d Cir. 08/27/14), 148 So.3d 217. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Moore, 44,429 (La.App. 2d Cir. 08/26/09), 20 So.3d 1137, writ not cons., 2009-2166 (La. 04/09/10), 31 So.3d 378.

When the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Weary, 2003-3067 (La. 4/24/06), 931 So.2d 297, cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006); State v. Sims, 49,682 (La.App. 2d Cir. 02/27/15), 162 So.3d 595, writ denied, 2015-0602 (La. 02/05/16), 186 So.3d 1161; State v. Johnson, 47,313 (La.App. 2d Cir. 08/08/12), 103 So.3d 542, writ denied, 2012-2036 (La. 01/25/13), 105 So.3d 714. Positive identification by only one witness is sufficient to support a conviction. State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047; State v. Jefferson, 47,009 (La.App. 2d Cir. 03/07/12), 91 So.3d 1007, writ denied, 2012-0751 (La. 11/02/12), 99 So.3d 661.

Louisiana R.S 40:967A(1) states that it shall be unlawful for any person knowingly or intentionally:

To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II.

Here, during the defendant’s trial, Lt. Bass testified to establish the chain of custody of the three bags of cocaine recovered by Off. Poudrier from the CI. The Northwest Louisiana Crime Lab certified report, ^introduced during Lt. Bass’s testimony, showed that the white material in the three green bags was determined to contain cocaine. The jury was to decide, based on the trial testimony and video evidence, if it was reasonable to believe that Ward was the man selling those bags of cocaine to the CI.

Officer Poudrier provided eyewitness testimony of the transaction between the CI and Ward. He testified that he met with the CI at an undisclosed location on the afternoon of the buy. The CI informed Off. Poudrier that he had arranged a buy from Ward. Officer Poudrier searched the CI by removing his shoes and socks, shirt and hat and having the CI unfasten his pants and shake them. Officer Poudrier conducted a pat-down of the CI and ensured that there were no hidden compartments on the bicycle the CI was riding. He then gave the CI $30.00 of marked “buy money” and a key fob audio/video recording device that was attached to a key chain. Officer Poudrier testified that after the CI left the undisclosed location on his bicycle, he followed the CI to Montgomery Street, where the buy was to occur. Officer Poudrier stated:

I observed the CI kind of pull over on the side of the road and Mr. Ward walk out. I didn’t see him walk out of a residence; I saw him walking through a yard, and contact my confidential informant on the street. I saw a hand to hand transaction. I observed the CI hand him some money and Mr. Ward hand him something and then the CI left.

Officer Poudrier followed the CI back to the undisclosed location. At some point during travel the CI “got away” from him, but Off. Poudrier testified that he quickly regained sight of the CI. The two met at the undisclosed location, and the CI got into Off. Poudrier’s vehicle and produced three small green bags containing what appeared to be rocks of crack cocaine. The bags were introduced into evidence and published to the jury.

| f;Officer Poudrier identified the DVD audio/video recording of the transaction, which was also introduced into evidence and played for the jury. The recording is shaky because the CI is on a bicycle, and the hand to hand transaction lasts only seconds. While there is a clear view of the man selling to the CI, the video did not capture the hand to hand exchange of money and drugs. Several still photographs of the man selling to the CI were captured from the video and printed. These photographs show the man selling to the CI standing in the street, and there are several clear photos of the man’s face. The photographs were introduced into evi-denee and published to the jury. Officer Poudrier identified Ward in open court as the man selling to the Cl, from both his personal observation of the transaction and the video/photographs.-

The evidence was sufficient to sustain Ward’s conviction for distribution of cocaine. Identification by only one witness, when reasonably believed by the fact finder, is sufficient to sustain a conviction; therefore, Off. Poudrier’s eyewitness testimony of the hand-to-hand sale of cocaine to the Cl was sufficient to support Ward’s conviction of distribution. Officer Poudrier expressly stated that he saw the seller, whom he identified as Ward, walk up to the Cl, and observed the hand-to-hand transaction. While it is not ideal that Off. Poudrier may have lost sight of the Cl for a short time while the two were traveling back to the undisclosed location, the jury’s finding that Ward was the individual who sold the cocaine to the Cl was reasonable under Jackson, based on the direct evidence presented. This assignment of error is without merit.

| ^Excessive Sentence

In his second assignment of error, Ward argues that his sentence of 25 years at hard labor, 2 years without benefits, is unconstitutionally harsh and excessive in light of the facts and circumstances of the case and his personal history. Specifically, Ward points out that this was not a crime of violence, the amount of cocaine allegedly sold was small and there is no indication that he was a dealer of large quantities of drugs. We disagree.

The trial court has wide discretion in imposing sentences within minimum and maximum limits allowed by the statute; therefore, a sentence will not be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Young, 46,575 (La.App. 2d Cir. 09/21/11), 73 So.3d 473, writ denied, 2011-2304 (La. 03/09/12), 84 So.3d 550. A trial judge is in the.best,position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Zeigler, 42,661 (La.App. 2d Cir. 10/24/07), 968 So.2d 875. The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque, 46,515 (La.App. 2d Cir. 09/21/11), 73 So.3d 1021, writ denied, 2011-2347 (La. 03/09/12), 84 So.3d 551.

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La. 1983); State v. Lathan, 41,855 (La.App. 2d Cir. 02/28/07), 953 So.2d 890, writ denied, 2007-0805 (La. 03/28/08), 97 So.2d 297. Where the defendant’s motion to reconsider sentence alleges mere 'excessiveness of sentence, on appeal the reviewing court is limited to considering whether the sentence is constitutionally excessive. La. C. Cr. P. art. 881.1; State v. Mims, 619 So.2d 1059 (La. 1993); State v. Boyd, 46,321 (La.App. 2d Cir. 9/21/11), 72 So.3d 952.

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. Bonanno, 384 So.2d 355 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 01/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App. 2d Cir. 01/24/07), 948 So.2d 379.

Louisiana R.S. 40:967B(4)(b) provides that a person convicted of distribution of cocaine:

Shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.

At sentencing, the trial court reviewed the presentence- investigation report (“PSI”) prepared before Ward’s sentencing hearing. The trial court noted that, in connection with the PSI, Ward was interviewed and maintained that this entire case did not involve him. During his PSI interview, Ward stated the Cl was not a Cl, but, rather, lived at 324 Montgomery Street and already “had the drugs on him.” Ward also stated he is addicted to cocaine and requested probation and inpatient treatment for his addiction.

9The trial court also reviewed Ward’s extensive criminal history, which includes several convictions for simple battery, a conviction for attempted manslaughter, and a myriad of drug-related convictions. Ward has previously been referred to drug court connected to past convictions for possession of cocaine. He has been arrested for domestic abuse, but his girlfriend refused to testify against him. The trial court noted that Ward joined a street gang during his teenage years, obtained his GED while incarcerated on an unrelated charge, and his employment history is scant. Ward has never been married, but has two children. He takes medication for a congenital brain disorder that causes seizures, and has received disability payments for years. The trial court further noted that Ward is considered a third-felony offender, who consistently denies any guilt, and has a history of violent behavior and drug-related activity. Ultimately, it concluded that Ward is a “potential serious threat to public safety,” and found that a lesser sentence would deprecate the seriousness of the offense.

Considering the facts of this case and this particular defendant, the sentence imposed by the trial court does not shock the sense of justice, nor is it grossly disproportionate to the severity of the offense. The trial court considered the facts of this case, the information in the PSI, and the sentencing guidelines set forth in La. R.S. 40:967B(4)(b), and it has not abused its discretion. Ward’s sentence is not constitutionally excessive, and this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Gerald Bernard Ward is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Brandon Deon THOMAS, Appellant
    No. 50,898-KA
    Court of Appeal of Louisiana, Second Circuit.
    November 16, 2016

      LOUISIANA APPELLATE PROJECT By: Douglas Lee Harville, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, J. AARON CRAWFORD, ERICA JEFFERSON, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, DREW and PITMAN, JJ.
   DREW, J.

|¶ Brandon Deon Thomas was indicted for:

• one count of aggravated rape, La. R.S, 14:42; and
• one count of second degree kidnapping, La. R.S. 14:44.1.

He waived a jury and was found guilty as charged.

The defendant was sentenced to life imprisonment at hard labor for the aggravated rape. He was sentenced to a concurrent 15 years at hard labor for the second degree kidnapping. Each sentence was ordered to be served without benefit of parole, probation or suspension of sentence.

Defendant appeals the sufficiency of the evidence. We affirm.

FACTUAL BACKGROUND

On the- evening of September 13, 2013, defendant’s mother, Brenda Thomas, called 9Í1 to report that her son was “sick,” had been off his medications for two months, and was holding a knife on his girlfriend. A recording of this call was played at the beginning of trial.

C.H., a 31-year-old female, testified that she met Brandon Thomas, a 24-year-old male, in January of 2013 when she was shopping at a Shreveport grocery store where Brandon worked as a bagger. C.H. and Brandon began dating shortly thereafter. C.H. stated that she is originally from Shreveport, but at the time that .she and Brandon started dating, she was living and working in Lafayette. C.H. stated that their relationship was normal, and they enjoyed one another’s company. Brandon treated C.H. well and was attentive and kind to her. According to C.H., she was Brandon’s first serious relationship.

RC.H. testified that she knew that Brandon took medication for his severe headaches, but did not know the name of his medication. C.H. and Brandon began a consensual sexual relationship about five months into their relationship in May 2013. C.H. expressed to Brandon that she would not engage in unprotected sex or anal intercourse or in oral sex. C.H. testified that Brandon understood and respected her rules. According to C.H., most of their arguments were about her unwillingness to perform oral sex. Despite their disagreements, C.H. testified that she and Brandon had talked about moving in together and getting engaged.

C.H. stated that she arrived in Shreveport from Lafayette around 7:00 p.m, on the evening of September 13, 2013. She had finished her last day of work in Lafayette and was moving back to Shreveport, because she had gotten a job. there. Upon arrival, C.H. went over to Brandon’s house, where he lived with his mother, Brenda. C.H. picked Brandon up and the two drove to C.H.’s parents’ apartment, where she took a shower and collected her things in an overnight bag. She and Brandon then left the apartment and went back to Brandon’s house.

When C.H. and Brandon got back to his house, the two of them went into Brandon’s room and began having consensual sex. C.H. testified that Brandon was being aggressive and was hurting her, so she asked him to stop. Brandon did stop, and C.H. agreed to perform manual stimulation on him. Shortly thereafter, Brandon became angry and told C.H. to leave. She was offended and asked Brandon if he was going “to be like that.” He threw her purse on the floor and told her to get out. Brandon then slapped her, and she slapped him back. C.H. left Brandon’s house and drove back to her parents’ apartment. Brandon and his mom called C.H. several times, and she finally | ^answered his mother’s call. Brandon then showed up at her parents’ home, apologizing for his earlier behavior. C.H. could tell that he was upset, and she agreed to follow Brandon back to his house.

When they arrived at Brandon’s house, C.H. and Brandon sat down in the living room with Brandon’s family, and had a conversation. C.H. felt like things had calmed down and were back to normal. When Brandon’s brother and cousin left, C.H. and Brandon went into his room, closed the door and went to sleep.

C.H. testified that she woke up at some point to see Brandon standing naked .by the lamp holding a large butcher’s knife. He told C.H. to get out of bed. Brandon held the knife to C.H.’s neck, and she sat down in a chair next to the door. He then demanded that C.H. give him oral sex. C.H. complied and began, performing oral sex. According to C.H., Brandon closed his eyes and leaned his head back, at which point C.H. was able to reach the doorknob, open the door, and escape to Brandon’s mother’s room,

C.H. and Brenda tried to close the door to Brenda’s bedroom to prevent Brandon from entering, but he was able to push his way in. He shoved C.H. to the ground, brandished his knife at Brenda, put the knife to C,H.’s throat and demanded that C.H. perform oral sex. C.H. testified that she “gave him oral sex” while in Brenda’s room. C.H. looked toward Brenda, who was sitting in a chair, for help; Brenda advised her just to do what Brandon said when he had the knife to her neck. Brenda told Brandon she didn’t want to see “it,” and to take C.H. back to his room. Brandon asked Brenda where her cell phone was. She replied it was in her car. Brenda told him to take the house phone, which he did.

|4C.H. testified that Brandon grabbed her by the hah.- and led her back to his room, the knife at her throat. Brandon locked the door behind them, started choking her, told her he wasn’t playing with her and demanded that she take off her clothing and perform oral sex. C.H. complied, still at knifepoint. At Brandon’s demand, she got to her knees by the window while this was occurring. At no point during this time did she think she could get away from Brandon; at some point, however, she was able to convince him to put the knife down.

While this was happening, C.H. heard Brandon’s cousin talking to him, trying to get him to open the door, but Brandon refused. According to C.H., it was only when Brandon’s family threatened to break down the door that he told C.H. to stop and to put her clothes on. Brandon then asked her not to tell them what he did to her or that he had a knife, which he hid under some blankets in the closet.

After they both got dressed, he opened the door to find police officers, as well as his mother and brother, at the door. C.H. testified that she remained in Brandon’s room until he was removed from the house. She told Officer Alexander that she was afraid for her life, that Brandon had a knife, and where he had hidden it; police recovered it from Brandon’s closet. According to C.H., Brandon’s brother took the knife from the officers, stating that it was their kitchen knife.

C.H. testified that Brenda was hysterical, yelling that Brandon was sick, and C.H. felt herself shutting down. She was traumatized and scared, especially since the officer told her “it was [her] word against [Brandon’s]” |fiwhen she told him that the knife Brandon’s brother took away from the bedroom was the one Brandon held on her. C.H. stated that at that point, she had not told the officer about the sexual assault.

C.H. testified that she kept trying to talk to the officers at Brandon’s house, but every time she did, Brandon’s mother yelled and talked over her. Brenda repeatedly begged her not to press charges, as her son was sick and needed help. Officer Alexander told C.H. that she needed to change her phone number and cut off communication with Brandon and his family. She told Officer Alexander at that time she did not want to press charges.

C.H. stated that she was initially scared to tell the police what had happened, as well as embarrassed and ashamed. Upon hearing that Brandon would be charged only with a misdemeanor for holding a knife to her throat, she got more frightened that he would retaliate against her. The same night as the assault, once she got home, she got threatening phone calls from Brandon and his family. After Brandon’s mother called her the next day, C.H. got her number changed.

C.H. testified that another reason she did not initially press charges was because she did not feel as though anyone was concerned for her safety and that everyone was focused on Brandon. This was confirmed when she went to the police station on September 19, the day that Officer Alexander said the police report would be ready. Upon reviewing the police report, C.H. saw that it identified Brandon as the victim. C.H. testified that she became upset and was referred to Detective Michael Jones, a detective in the sex crimes division.

C.H. stated that she spoke briefly with Detective Jones, but did not tell him everything that had happened the night of the incident. She showed [ (;Det. Jones her injuries and told him they were from the night of September 23. C.H. also agreed to let police take photographs of her injuries, which she described as choke marks and scratches on her neck, bruises on the front of her body, a “bite mark” on her arm, and bruises and scratches on her arm.

C.H. admitted that she spoke with Detective Jones several times before she agreed to give him a recorded statement about the events that took place on September 13, 2013. She finally decided to press charges against Brandon and make a recorded statement to police and Detective Jones on October 10, 2013.

C.H. stated that the last time she saw Brandon was when he left with the police in handcuffs the night of the assault. She received a letter from him, apologizing for what had happened, saying that he had moved on and was dating someone new, and that he was out of the hospital and working. In the letter, Brandon also asked C.H. to drop the charges against him.

Brenda Thomas, defendant’s mother, testified next. She got home between 9:00 and 10:00 p.m. on September 13, 2013, and Brandon was the only one in the house. Brenda said he was visibly upset and demanded her car keys. She tried to stop him from leaving, but he told her no and said he had been thinking about hurting himself. Brandon then left Brenda’s house in her vehicle.

Initially, Brenda testified that she did not have a family meeting with C.H. and Brandon after they came back from C.H.’s house. However, on cross-examination, Brenda admitted to talking with C.H. and Brandon — but not Brandon’s brother or cousin — about Brandon’s medications. After the family meeting, C.H. and Brandon went back to Brandon’s room and closed the door. Brenda testified that she was getting ready for bed, standing by her 17dresser, when C.H. ran into her room. Brenda did not recall whether she helped C.H. close the door to prevent Brandon from coming into the room. According to Brenda, Brandon came into her room completely naked; Brenda put a cover over her head. She testified she was afraid, as Brandon was off his meds and she didn’t know what “he was capable of.”

On cross-examination, Brenda testified that she did not tell Brandon and C.H. to go back to Brandon’s room; rather, C.H. was the one that told him to leave Brenda’s room. Brenda denied hearing or seeing Brandon tell or force C.H. to give him oral sex. After they left Brenda’s room, they went into Brandon’s room and closed the door. She stood outside Brandon’s door and tried to listen in. She asked C.H. if everything was okay, and C.H. told her that everything was fine. Despite C.H.’s reassurance, Brenda decided to call 911 because “Brandon was sick and I didn’t know what he was capable of.”

While Brenda testified that she did not remember saying anything to the operator about a knife or seeing Brandon holding a knife, she did remember C.H. whispering something about a knife, and she was present when the police discovered a knife in Brandon’s closet. Brenda also testified that she did not recall telling the 911 operator that she heard C.H. say, “No, Brandon,” or that she was worried he might harm C.H. She also did not recall telling police officers that Brandon had been making C.H. do something that she did not want to do.

On questioning by the court, Brenda said she was afraid merely because Brandon came into her room naked; he made no threats.

Corporal Wyatt Alexander testified that he responded to Brenda Thomas’s 911 call and was told that the caller’s son was being disorderly |sand “not acting right.” Upon arrival at the Thomas home, Officer Alexander first made contact with Brenda, who told him that Brandon was bipolar, had not been taking his meds, was locked in the bedroom with his girlfriend, C.H., and had a knife. Officer Alexander then attempted to open the door to Brandon’s room, but it was locked. Officer Alexander knocked on the door and advised that he was with the police department; after that, it took “no more than a minute or two” to get Brandon to open the door.

Officer Alexander testified that Brandon was escorted out of the bedroom by another police officer, who took Brandon into the kitchen. While in the kitchen, Brandon admitted to the officer that he had been off his medication for a couple of months because it was giving him headaches. The officer then took Brandon to LSU Medical Center in Shreveport where he was committed to the psychiatric ward.

Officer Alexander encountered C.H., who was sitting on the bed, visibly shaking and crying. She told him that Brandon had wanted to have unprotected sex with her, got angry when she refused, and then came at her with a knife.

According to Officer Alexander, during his conversation with C.H., the door to Brandon’s bedroom was closed and no one else was in the room; however, he also stated that Brenda was “definitely” within earshot.

Officer Alexander testified that C.H. was not very forthcoming, but his account of her statement to him, while much more general, was substantially similar to C.H.’s trial testimony. Specifically, C.H. told him | ¡¡that when she ran to Brenda’s room, Brandon, still holding the knife, followed her. He held the knife to her throat and told her to perform oral sex on him or he was going to kill her. C.H. told Officer Alexander she did what Brandon demanded, then they left Brenda’s room and went back to Brandon’s room. All this took place in front of Brenda. C.H. told Officer Alexander that Brandon told her and Brenda not to call the police or he would hurt them.

Because C.H. was still shaken up and scared, Officer Alexander followed her home. He admitted he never saw a knife, but said he thought one was recovered, either in Brandon’s room or put back in the kitchen. Officer Alexander also testified that he asked C.H. on at least three separate times that night if she wanted to press charges against Brandon. Thé first time, she said she did not know; the second and third times, she said she did not want to press charges.

Detective Michael Jones testified that he interviewed Brandon at the Shreveport Police station on October 14, 2013. Detective Jones stated that he read Brandon his Miranda rights and provided him with a copy, which Brandon verbally acknowledged and signed, indicating his understanding. Detective Jones related that the interview with Brandon was short, and Brandon repeatedly said that he did not remember anything from the night in question because he “blacked out.” However, Brandon was able to provide vivid details of other aspects of and events that occurred during his and C.H.’s relationship. Brandon also told him that he was not on his medication at the time of the interview.

| inDetective Jones testified that he met with and interviewed C.H. on multiple occasions between September 19 and October 10, 2013. On September 19, 2013, C.H. told Det. Jones that she wanted to press criminal charges against Brandon for his actions on September 13, 2013, because she had learned that the police report from that day indicated that Brandon was the victim, when she, in fact, was actually the victim. C.H. told him that she still had bruises and injuries from the incident. Later that evening, C.H. returned to the police station and let another detective take pictures of her injuries. After the photographs were taken, Det. Jones spoke with C.H. for about an hour, but she did not get into a lot of detail about what had happened on September 13 because she was very afraid of Brandon and what would happen if she reported everything to the police.

Detective Jones spoke with C.H. on at least two other occasions before she was comfortable giving him a recorded statement on October 10, 2013. He described her recorded statement as consistent with her prior oral statements. (It was also substantially similar to C.H.’s trial testimony.)

Det. Jones also testified that because C.H. was so afraid of what Brandon might do if he found out she was talking to the police, he had C.H. talk to several advocates, including a SANE or sexual assault nurse examiner, to help her understand the lengths to which they would go to keep C.H. safe.

Detective Jones testified that he interviewed Brenda Thomas at her home on October 14, 2013. According to Detective Jones, Brenda was able to provide details about the incident:

JONES: She heard C.H. yell later: Brandon, no. Brandon, no. And then at that point, C.H. ended up breaking into her bedroom. And Brandon followed and he |nwas naked. She said that Brandon was trying to get C.H. to do something to him that she didn’t want to do.
PROSECUTION: Did she elaborate about that at all?
JONES: She did not, but she stated it was something that she did not want to do — that C.H. didn’t want to do. She stated she did cover her face and head up and told him to get C.H. out of there and get back in, I guess, his bedroom. So and then he made the statement that if she said anything that he would kill himself.

Travesa Foster, one of Brandon’s cousins, was the first witness called by the defense. Ms. Foster testified that she arrived at Brenda’s house on September. 13, 2013, around 10:00 or 11:00 p.m., and C.H. and Brandon were already at the house in Brandon’s bedroom’. Ms. Foster said that she, Brenda, and C.H. told Brandon that they weré concerned that he was not taking his medication. Ms. Foster also testified that C.H. told Brandon that he would be OK so long as he took his medication and then gave him a hug. According to Ms. Foster, this family meeting lasted 20 or 30 minutes; after this, C.H. and Brandon went back to Brandon’s room, and C.H. went voluntarily. Ms. Foster testified that she stayed for an additional 10-15 minutes before deciding that everything had calmed down, so she headed back home. Ms. Foster told the court that she was not at, Brenda’s house when the police arrived.

Brandon Thomas testified in his own defense. He described how he and C.H. met, and their eight-month relationship. As C.H. had stated, Brandon related that their relationship did not become sexual until they had been together five months. Brandon testified that during the relationship, he | Tjjtold C.H. that he was on medication for schizophrenia. While he and C.H. were dating, she went with him to the Shreveport Mental Health Clinic for appointments and to pick up his medication.

According to Brandon, most of his and C.H.’s arguments were about money and finances; none of their disagreements were about sex and none of them got “physical.” C.H. pushed Brandon to get a full-time job, obtain his driver’s license and otherwise better himself. Brandon testified that he attempted to break up with C.H. numerous times during their relationship, but each time, C.H. begged him to come back and he agreed. He and C.H. broke up one time because he told her that he could not afford a $5,000 engagement ring that she wanted. Brandon testified that C.H. was “obsessed” with him and was the one who would always beg him to come back.

Brandon testified that the fight he and C.H. had on September 13 was about finances. According to Brandon, she was tired of him “not having no money,” and she just left to go home. After she left, Brandon testified that he was upset. He had not been taking his medication for two months and was depressed because he couldn’t help provide for his family, so he wanted to go “ride around.” He briefly spoke to his mother before leaving and told her that he was thinking about hurting himself. Brandon said that he took his mother’s car keys and left the house. After Brandon drove off in Brenda’s car, his mother called C.H. because she was concerned about her son.

Brandon went to C.H.’s house, they talked, and she followed him back to his house, where she took part in the family meeting, the topic of which was him not taking his medication. They then watched television and |13he and C.H. went to his room. They made up for the earlier argument, and then had sex and went to sleep. In the middle of the night, he woke her up and told her he was having thoughts of harming himself; C.H. left the room, and Brandon followed her into his mother’s room. He admitted he was not in his “right mind,” and pushed C.H. against the wall, clutched her throat, and grabbed her arm. And yet, according to Brenda, C.H. told him, “Let’s go back to my room,” and they did; at this time, Brenda called the police. Brandon testified that he got dressed, opened the door when the officer knocked, went to the kitchen and the officer asked whether he was taking his medication and needed to go to the hospital. He eventually told the officer he had not been on his medication and did need to go to the hospital; he was inpatient for a week, then went back to Shreveport Mental Health and was put on a lower dose of medication. Brandon stated that he had stopped taking his medication previously because it gave him headaches. Brandon testified that he went back to his job at Albertson’s and began dating someone else.

On cross-examination, Brandon testified that he and C.H. never argued about sex; however, he later admitted that such a fight might have happened in the past. He denied forcing C.H. to perform oral sex in his room; forcing C.H. to perform oral sex in Brenda’s room; dragging C.H. from Brenda’s room by her hair; forcing C.H. to perform oral sex when back in his room; or, ever holding a knife to C.H.’s neck. In fact, Brandon insisted no knife was involved, but admitted telling a psychiatrist, Dr. George Seiden, that he had held a life to C.H.’s throat. The state also questioned Brandon about the sexual boundaries that C.H. had set. He admitted that C.H. told him she was unwilling to do oral and unprotected [14sex, but that she started doing these acts by June 2013, and did so on the night of the offense. He also claimed he did not mention these facts to Det. Jones in the recorded interview because he was not “comfortable” doing so, but maintained he was comfortable about testifying to them in court.

At that point, the defense rested.

On September 16, 2015, the trial judge found Brandon guilty as charged of aggravated rape and second degree kidnapping. The trial judge provided a comprehensive explanation for his verdict on the record. In part, the trial judge stated:

The defendant testified essentially that consensual oral, unprotected sex occurred, and the victim testified that quite the contrary, that at knifepoint she was forced to perform unprotected oral sex, that she was dragged forcibly into Ms. Thomas’s room, and that she was then returned to the defendant’s room again at knifepoint.
The Court does find that State’s Exhibit 11, the apology letter [written by defendant while he was in jail], seems to apologize for more than the simple push that the defendant described from the witness stand that he had administered to the victim that night. And the Court does find that the victim was credible. The Court does find that Ms. Thomas, who is in an extremely difficult position, as the mother of an accused in such a serious charge, essentially gave two very different statements. One, her testimony in court, and the second, her testimony or the evidence adduced through her statements to the 911 operator. The Court cannot reconcile both as being true. The Court heard on the 911 tape someone who was in the throws [sic] of terror, that was hysterical and that mentioned that her child had a knife, that she was outside of the house, and that she did not know what he was capable of. And two things that struck the Court, she also said he is threatening to hurt himself too, which implied to the Court that the ... threat against himself was not the only threat being made. The Court believes that if it were merely threats against himself for Ms. Thomas to maintain her presence outside of the house during the 911 call would not be what the Court would expect to have occurred.
Ms. Thomas also did give one piece of interesting testimony that the police did, in fact, find a knife in the defendant’s closet. The Court notes that the defendant was somewhat equivocal on hsthat point, saying that there was no knife involved, but that he had a knife to show that he would hurt himself.
The Court reviewed the photographs which were taken allegedly five days after this incident and finds they are evidence of physical abuse consistent with the victim’s testimony and inconsistent with the defendant’s account of the events that occurred, namely, that he simply pushed her, and she bumped into the wall. I do not find that those injuries are explained by a grab, a push and a bump. The Court also finds that Officer Alexander corroborated that at the scene, the victim was describing ... nonconsensual sex at knifepoint.
So essentially, the Court has to determine who is credible. Is it [C.H.] or the defendant? The Court finds that the victim’s testimony is repeatedly corroborated by the testimony of Officer.Alexander, by the consistency of her statements to Detective Jones, ■ and most importantly by the 911 recording that is contemporaneous and unfiltered and made in the heat of the moment in which the Court believes he is hearing a very terrified person in an impossible situation. The Court did not find the defendant credible at all based on the inconsistencies between his description of the relationship and his actions and the victim’s injuries and his description of his attack on her.
The Court does find that it is proven beyond a reasonable doubt that [C.H.] was transported against her will, therefore being secreted and forcibly transported in violation of the second degree kidnapping statute. And the Court does find that the photographs constitute evidence of abuse. And the Court further finds that there is evidence of sexual abuse. The Court does find that because the evidence convinced the Court-beyond a reasonable doubt, the. Court is firmly convinced that the defendant was armed with a dangerous weapon during this incident and did compel [C.H.] against her will to perform oral sex. I therefore am required and I do concede that on these facts, ... the Court finds the defendant guilty as charged on both counts.

The court later denied Brandon’s motion for new trial or post-verdict judgment of acquittal. The court then sentenced him to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence for his aggravated rape conviction. The trial court imposed a sentence of 15 years’ imprisonment at hard labor without the benefit of parole, probation or |1fiSuspension of sentence for the second degree kidnapping conviction. The two sentences were ordered to be served concurrently.

Brandon later filed a motion to reconsider sentence, which was denied. This appeal followed.

SUFFICIENCY OF THE EVIDENCE

Brandon argues that the trial court erred in finding him guilty of aggravated rape and second degree kidnapping beyond a reasonable doubt. Brandon argues that, even though C.H.’s testimony supports the convictions, when her testimony is viewed against his testimony and that of his mother, C.H.’s testimony alone is both insufficient and noncredible. Brandon asserts that his and his mother’s testimony support the reasonable hypothesis that C.H. and Brandon engaged in rough sex and had a fight, which resulted in the injuries to C.H. and led C.H. to falsely accuse him of rape and kidnapping. Finally, Brandon argues that his eventual arrest was based on claims that were made by C.H. after she realized that Brandon— rather than C.H. — was listed as the victim on the police report on the night of September 13, 2013.

On the other hand, the state argues that the evidence presented at trial, viewed in the light most favorable to the prosecution, was sufficient to support both convictions. The state references C.H.’s testimony and notes that it was corroborated by her previous statements to Officer Alexander and Detective Jones. According to the state, the trial judge did not abuse its discretion by finding C.H., Officer Alexander and Detective Jones to be credible, while finding Brandon and Brenda’s testimony to be noncredible.

In a bench trial, Louisiana law neither requires nor precludes a statement of reasons supporting the verdict returned by the court sitting asJjjthe fact finder in the case; however, if a trial judge chooses to do so, the statement of reasons may provide a useful guide to the appellate court for reviewing the sufficiency of the evidence under the Jackson standard. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Harris v. Rivera, 454 U.S. 339, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981); State v. Marshall, 04-3139 (La. 11/29/06), 943 So.2d 362.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App. 2d Cir. 9/18/02), 828 So.2d 622, writs denied, 02-2595 (La. 3/28/03), 840 So.2d 566, 02-2997 (La. 6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). The pertinent inquiry in bench trials remains — as it does in jury trials — on the rationality of the result and not on the thought processes of the particular fact finder. Harris v. Rivera, supra; State v. Marshall, supra. 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; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

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. Wiltcher, 41,981 (La.App. 2d Cir. 5/09/07), 956 So.2d 769; State v. Burd, 40,480 (La.App. 2d Cir. 1/27/06), 921 So.2d 219, writ denied, 06-1083 (La. 11/09/06), 941 So.2d 35.

Likewise, the testimony of a sexual assault victim alone is sufficient to convict a defendant. Such testimony is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Holman, 46,528 (La. App. 2d Cir. 9/21/11), 73 So.3d 44; State v. Chandler, 41,063 (La. App. 2d Cir. 9/08/06), 939 So.2d 574, writ denied, 06-2554 (La. 5/11/07), 955 So.2d 1277; State v. Ellis, 38,740 (La. App. 2d Cir. 08/18/04), 880 So.2d 214.

Aggravated Rape

La. R.S. 14:42, Aggravated rape (now entitled first degree rape), states in pertinent part:

A. Aggravated rape is a rape committed upon a person ... where the anal, oral, or vaginal intercourse is deemed to be without lawful consent of the victim because it is committed under any one. or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by the apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.

Sufficient evidence existed to convict Brandon of aggravated rape. C.H.’s trial testimony was corroborated by her statements to Officer Alexander and Det. Jones. While it is true that Brandon and Brenda’s testimony set forth an alternative theory, the trial court made a reasonable credibility call when it chose to believe C.H., Officer Alexander and Pet, |19Jones over Brandon and Brenda. Also supporting the trial judge’s finding, as detailed in his reasons, were the mother’s 911 call, Brandon’s apology letter to C.H., and the photographs of C.H. taken five days after the incident. When viewed in the light most favorable to the state, the facts show that Brandon forced C.H. to engage in oral sexual intercourse on three separate times in two different locations: in his bedroom, in his mother’s bedroom, and once again in his bedroom, while he was armed with a knife. The facts further show that Brandon threatened and attempted to choke C.H. upon returning to his room after leaving Brenda’s room — which C.H. took to mean that he could and would kill her unless she performed oral sex.

Second Degree Kidnapping

La. R.S. 14:44.1, Second degree kidnapping, states in pertinent part:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is: ....
(3) Physically injured or sexually abused;
B. For purposes of this Section, kidnapping is:
(3) The imprisoning or forcible secreting of any person.

There was also sufficient evidence to convict Brandon of second degree kidnapping. For the reasons stated above, the trial court did not abuse its discretion when it made a credibility call and gave more weight to the testimony of C.H., Officer Alexander and Det. Jones than to that of Brandon and Brenda. Viewed in a light most favorable to the prosecution, these facts established that Brandon forced C.H. to leave Brenda’s bedroom and return to his room, locked the door when he and C.H. returned to his | ¡>nbedroom to prevent her from leaving, and, back in his own room, choked and threatened C.H. and forced her to perform oral sex.

EXCESSIVENESS OF SENTENCE

Brandon argues that the sentence of life imprisonment without benefits for the aggravated rape conviction was constitutionally excessive. According to Brandon, there are multiple circumstances that support the contention that he is “exceptional” and that a downward deviation from the mandatory sentence was warranted: (a) he was 24 years old at the time of the crimes; (b) he has a significant employment history; (c) before the crimes at issue, he and C.H. were in a relationship and, while admittedly rocky, the two had been contemplating marriage; and, (d) on the date of the incident he was unemployed, depressed, stressed out, bipolar, schizophrenic, and off his psychiatric medication for two months.

While Brandon admits that the crimes for which he was convicted were severe, he argues he is a defendant “driven as much by poor mental health as by intentional decisions” and, as such, is someone “whose future conduct can be controlled medicinally.”

The state responds that Brandon’s sentence for aggravated rape was not excessive, and that he failed to meet his burden of proving that a downward deviation below the mandatory minimum was warranted.

Prior to sentencing Brandon, the trial judge identified and discussed what he determined to be the relevant La. C. Cr. P. art. 894.1 factors:

• (A)(1) Undue risk that during suspended sentence, Brandon would commit another crime.
hi* (A)(2) Brandon is in need of correctional treatment.
• (A)(3) A lesser sentence would deprecate the seriousness of the crime.
• (B)(1) Brandon’s conduct during the commission of the offense manifested deliberate cruelty to C.H. Specifically, “this particular act was one that the victim had particularly expressed an aversion to and an unwillingness to perform even in the confines or context of the consensual sexual relationship.”
• (B)(6) Brandon used threats of or actual violence in the commission of the offense.
• (B)(10) Brandon used a dangerous weapon in the commission of the offense.
• (B)(21) Any other relevant aggravating circumstances. The court noted, “The implication of and the involvement of dragging the victim into the presence of another person to assault them in this way. This is particularly aggravating ... and of course it is also a betrayal of the relationship that existed between the defendant and the victim in this case.”
• (B)(28) Brandon has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime: Brandon has one prior felony conviction, which is not indicative of an extensive criminal history.
• (B)(33) Any other mitigating circumstances: Brandon has a history of mental health issues.

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by the court should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams, 03-3514 (La. 12/13/04), 893 So.2d 7; State v. Houston, 50,126 (La. App. 2d Cir. 11/18/15), 181 So.3d 188; State v. Diaz, 46,750 (La. App. 2d Cir. 12/14/11), 81 So.3d 228.

In State v. Dorthey, 623 So.2d 1276 (La. 1993), and State v. Johnson, 97-1906 (La. 3/04/98), 709 So.2d 672, the Louisiana Supreme Court addressed the issue of mandatory sentences in the context of the habitual 122offender law. The court held that the downward departure from a mandatory minimum sentence may occur in rare circumstances if the defendant rebuts the presumption of constitutionality by showing clear and convincing evidence that he is exceptional, namely, that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender, and the circumstances of the ease.

This rule has been extended to mandatory sentences beyond habitual offender cases. See State v. Fobbs, 99-1024 (La. 9/24/99), 744 So.2d 1274; State v. Chandler, 41,063 (La. App. 2d Cir. 9/08/06), 939 So.2d 574, writ denied, 06-2554 (La. 5/11/07), 955 So.2d 1277. The “rare circumstances” in which a mandated sentence can be altered are even less likely in the case of a life sentence chosen by the legislature for a single crime, such as aggravated rape or second degree murder. State v. Chandler, supra. In such crimes, unlike the mandatory minimum sentence under the habitual offender law, the “tailoring” of the sentence by the legislature was for life because the culpability of offenders and the gravity of the offense are so great. Id.

La. R.S. 14:42, Aggravated rape, states in pertinent part: (D)(1). Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence.

Brandon was sentenced to the mandatory sentence of life imprisonment without the benefit of parole, probation or suspension of sentence on the aggravated rape conviction.

A review of the record reveals that the trial court conducted an extremely thorough analysis of the factors it considered when sentencing Brandon. The court explicitly acknowledged that he considered Brandon’s | ^age, relatively negligible criminal history, and history of mental illness. Thus, the record presents an adequate factual basis for Brandon’s sentence.

Furthermore, Brandon has failed to show that he is an “exceptional” defendant who warrants a downward departure from the mandatory life sentence because of his history of mental illness and the prospect of deterring future misconduct by medical treatment and prescriptions. The trial court expressly considered Brandon’s mental illness during sentencing, but ultimately determined that it did not warrant a downward departure, primarily because the sanity commission easily found that Brandon could tell right from wrong at the time of the offense. See State v. Mudd, 46,324 (La. App. 2d Cir. 5/18/11), 69 So.3d 574. Based on the brutality of the crimes and the injuries sustained by C.H., we cannot say that Brandon’s life sentence for aggravated rape shocks the sense of justice. Therefore, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Brandon Deon Thomas are AFFIRMED.

      . Initials of the victim are used in this case to protect the victim’s identity. La. R.S. 46:1844(W).

      . When Brandon and C.H. left Brenda’s room to go to defendant's room, Brenda called 911.

      . Brandon was admitted to LSU Medical Center on September 13, 2013, and stayed for about a week, The trial court subsequently found Brandon competent to stand trial on September 4, 2014.

      . Prior to Detective Jones’s testimony, the court found the defendant’s statement to be free and voluntary.

      . Prior to Brandon’s testimony, the court questioned him and defense counsel to ensure that he understood his Fifth Amendment protection against self-incrimination.

      . We note that the trial judge did not just say that defendant was not credible, but gave a very specific basis for its conclusion: the inconsistencies between Brandon's description of the relationship between himself and C.H., his actions and the victim’s injuries and his description of his attack on her.

      . Because Brandon does not argue that his 15-year sentence for second degree kidnapping was excessive, our review is limited to the aggravated rape sentence.


author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Carl L. SCOTT, Appellant
    No. 50,920-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 16, 2016.

      LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis III, Counsel for Appellant
    JAMES E. STEWART SR., District Attorney, REBECCA A. EDWARDS, TRE-NEISHA J. HILL, JOSHUA K. WILLIAMS, Assistant District Attorneys, Counsel for Appellee
    Before DREW, PITMAN, and GARRETT, JJ.
   GARRETT, J.

|,The defendant, Carl L. Scott, was found guilty as charged of forcible rape and second degree kidnapping following a jury trial. He was sentenced to 25 years at hard labor, with credit for time served, with the first two years to be served without benefit of parole, probation, or suspension of sentence, for second degree kidnapping. As to the forcible rape conviction, he was sentenced to 25 years at hard labor. The trial court ordered that the sentences be served consecutively. Through counsel, the defendant appeals his sentence as excessive. He also filed a pro se brief raising a speedy trial issue. We affirm the defendant’s convictions and his sentence for second degree kidnapping. We vacate his illegally lenient sentence for forcible rape and remand for resentencing. We also instruct the trial court to comply with the sex offender notification and registration requirements on remand.

FACTS

The following facts were elicited during the defendant’s jury trial. On the evening of November 6, 2012, the victim walked to the defendant’s house in Shreveport to find a friend of hers who, along with several other people, was watching an NBA game there. After the game, the other people left. The victim and the defendant smoked crack cocaine; the victim also drank a beer. The defendant had a weed pipe that he wanted to sell, so the victim suggested several friends who might be interested. After walking to their homes and trying unsuccessfully to sell it, the victim ended up back at the defendant’s house. She wanted to rest awhile before she walked home. While she was on the couch, the defendant tried to get close to her. She went to the bedroom to get away from him, but he followed her. |2Realizing that the defendant was not going to stop follow-tag her, the victim got up to leave. As she approached the front door in the living room, the defendant hit her in the back of the head with a bat. She fell to her knees and screamed for help as the defendant continued hitting her. During the ensuing struggle, the victim managed to take the bat from the defendant and hit him across the back. However, he overpowered her and regained control of the bat. As he continued to hit her, she fell to her knees. Every time she tried to get up, he hit her again. He struck her in the face around her eye with the butt of the bat. The victim began bleeding profusely from her many injuries.

The defendant then made the victim remove her clothes and forced her into the bedroom, where he tied her to the bed with neckties around her wrists and ankles. The victim testified that the defendant raped her repeatedly — vaginally and anally. He also forced her to perform oral sex on him. During this time, the defendant had a large knife and told the victim that, if she tried to fight, he would cut her. The victim was covered in blood and still hemorrhaging; it became difficult for her to breathe. After a while, he told her that he had to go somewhere and threatened her if she tried to escape. Once she was confident the defendant was gone, she freed herself, broke the bedroom window, and escaped out of the house, still naked and bleeding. The defendant, along with his brother and grandmother, were standing outside in front of his grandmother’s house, which was across the street. The defendant grabbed the victim and tried unsuccessfully to drag her back into his house. She pulled away and screamed for help. The defendant’s grandmother gave her a duster to put on. The victim was then | stold to “get out of there.” The victim fled to a friend’s house, which was nearby. The police and paramedics were called.

The victim was taken to University Health, where she was treated for her injuries and underwent a sexual assault examination. She suffered two severe scalp lacerations, a left forearm fracture, a fractured jaw, a laceration over her eyebrow, other facial fractures, and bruising all over her body. She was hospitalized for several days. Subsequent testing conducted on the material recovered during the sexual assault examination found DNA matching that of the defendant.

Officers secured the crime scene and obtained a search warrant for the defendant’s house. In the living room, officers found a black baton in a chair, blood on the floor, and a knife under the couch. In the bedroom, the bed was drenched in blood, neckties were tied to the bed posts, and the window was broken. Numerous photographs of the crime scene and the victim’s injuries were introduced into evidence.

In a post-Miranda statement, the defendant claimed that he had consensual sex with the victim on the night of the incident. According to him, after they had sex, the victim pulled a knife on him and demanded more crack cocaine. He told her that he did not have any more. The defendant admitted that he picked up a bat and beat the victim in the head and face. He then dragged her back to the bedroom and tied her to the bed with neckties because he did not want her to leave. After the victim escaped, he tried unsuccessfully to drag her back into his house. He then returned to his | ¿house to grab some clothes before fleeing. The bat he admittedly used to beat the victim was never recovered.

The jury trial began on August 5, 2015, and on August 12, 2015, the jury unanimously found the defendant guilty as charged of both offenses. The jury obviously rejected the defendant’s claim to the police that he and the victim had engaged in consensual sex and, instead, found the victim to be a credible witness.

A sentencing hearing was conducted on August 20, 2015, The trial court considered the defendant’s criminal history from Tex? as, which .included three misdemeanors, two felony drug offenses, and a second degree felony assault conviction from 2006. Defense counsel requested that concurrent sentences be imposed, and the state voiced the victim’s desire for maximum consecutive sentences. In reviewing the sentencing guidelines set forth in La. C. Cr. P. art. 894.1, the court stated that there was an undue risk that the defendant would commit another offense if not incarcerated, that he was in need of correctional treatment, and that a lesser sentence would deprecate the seriousness of his crimes. As aggravating factors, the court noted that the defendant’s conduct during the commission of the offenses manifested deliberate cruelty to the victim, that he used threats or actual violence in the commission of the offenses, that the offenses resulted in significant permanent injury or economic loss to the victim; and that thfe defendant used a dangerous weapon in the commission of the offenses. The court found that none of the mitigating factors were applicable. The trial court noted that both offenses were crimes of violence.

The trial court then sentenced the'defendant to 25 years at hard labor, with credit for time served, with two years to be served without the benefit |fiof parole, probation, or suspension of sentence, for second degree kidnapping, and 25 years at hard labor, with credit for time served, for forcible rape. The sentences were ordered to be served consecutively. No motion to reconsider sentence was filed. This appeal followed.

EXCESSIVE SENTENCE

Law

Both forcible rape and second degree kidnapping are punishable by imprisonment at hard labor for not less than five nor more than 40 years, with at least two years of the sentence being imposed without benefit of parole, probation, or suspension of sentence. See La. R.S. 14:42.1 and 14:44.1.

La. C. Cr. P. art. 881.1(E) precludes a defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. Accordingly, when, as in this case, a defendant fails to file a motion to reconsider sentence, the appellate court’s review of a sentencing claim is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La. 1993); State v. Smith, 50,342 (La.App. 2 Cir. 1/13/16), 184 So.3d 241.

Constitutional review turns upon whether the sentence is illegal,- grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La. 1992); State v. Davis, 50,149 (La.App. 2 Cir. 11/18/15), 181 So.3d 200; State v. Smith, supra.

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 the |fipurposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La. 1993). A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Smith, supra.

The trial court is given wide discretion in the imposition of sentences within the statutory limits. Such a sentence will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams, 2003-3514 (La. 12/13/04), 893 So.2d 7; State v. Diaz, 46,750 (La.App. 2 Cir. 12/14/11), 81 So.3d 228; State v. Hebert, 50,163 (La.App. 2 Cir. 11/18/15), 181 So.3d 795.

A presentence investigation report is an aid to help the court, not a right of the defendant, and the court is not required to order a presentence investigation. La. C. Cr. P. art. 875; State v. Houston, 50,126 (La.App. 2 Cir. 11/18/15), 181 So.3d 188.

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. Hebert, supra.

Although La. C. Cr. P. art. 883 favors imposition of concurrent sentences for crimes committed as part of the same transaction or series of transactions, 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, 2000-3200 (La. 10/12/01), 799 So.2d 461; State v. Simpson, 50,334 (La.App. 2 Cir. 1/13/16), 186 So.3d 195.

When consecutive sentences are imposed, the court shall 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. Robinson, 49,677 (La.App. 2 Cir. 4/15/15), 163 So.3d 829, writ denied, 2015-0924 (La. 4/15/16), 191 So.3d 1034.

Discussion

The trial court did not abuse its discretion by imposing consecutive 25-year sentences. Because the defendant failed to file a motion to reconsider sentence, he is entitled to review of his sentence only for constitutional excessiveness, without consideration of the alleged errors regarding the failure to order a presentence investigation report, consideration of mitigating factors, and the consecutive nature of his sentences. Nevertheless, his claims are without merit. The defense did not request a presentence investigation report prior to sentencing, did not object to the lack thereof at the time of sentencing, and failed to present any evidence in mitigation. The trial court was not required to order a presentence investigation report, and the record shows that the court adequately complied with La. C. Cr. P. art. 894.1 and considered the appropriate factors in determining the defendant’s sentences, as noted above. Also, although the trial court did not specifically provide reasons for ordering that the sentences be served consecutively, the court did not abuse |Rits discretion in doing so because the record adequately supports the imposition of consecutive sentences in this case. The trial court heard all of the gruesome evidence outlined herein and also had the benefit of seeing all of the physical, evidence which was admitted during the trial. The particularly brutal actions of the defendant justify treating him as a grave risk to the safety of the community.

Further, the defendant’s sentences are not constitutionally excessive. The defendant viciously beat the victim with a bat, forced her to the bedroom, tied her to the bed, threatened her with a large knife, and repeatedly raped her vaginally and anally and forced her to perform oral sex while she was bleeding profusely from her injuries. The victim sustained severe injuries and likely only survived because she was able to escape through a window and run, naked and covered in her own blood, down the street to seek help. Considering the extremely violent nature of the defendant’s crimes and the serious injuries sustained by the victim, the midrange sentences imposed by the trial court do not shock the sense of justice, nor are they grossly disproportionate to the severity of the offenses.

This assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR

In his pro se assignment of error, the defendant argues that the trial court erred in not giving him a contradictory hearing within 30 days of filing a pro se motion for speedy trial under La. C. Cr. P. art. 701(F).

Once a defendant has been convicted, any allegation that La. C. Cr. P. art. 701 has been violated becomes moot. State v. Bradham, 46,985 (La.App. 2 Cir. 2/29/12), 87 So.3d 200.

This assignment lacks merit.

JcERROR PATENT

Our error patent review reveals that the defendant’s sentence for forcible rape is illegally lenient. The transcript of the sentencing reflects that the trial court failed to restrict at least two years of the defendant’s sentence from benefit of parole, probation, or suspension of sentence, as required by La. R.S. 14:42.1(B). Because the language of the sentencing provision gives the trial judge discretion in determining the exact length of time that benefits were to be withheld, the jurisprudence dictates that the defendant’s sentence for forcible rape must be vacated and the case remanded for resentencing in compliance with La. R.S. 14:42.1(B). State v. Drew, 47,531 (La.App. 2 Cir. 11/14/12), 107 So.3d 748; State v. Carter, 43,304 (La.App. 2 Cir. 6/18/08), 987 So.2d 364, writ denied, 2008-2752 (La. 9/25/09), 18 So.3d 86.

Additionally, the trial court failed to inform the defendant of the sex offender notification and registration requirements, as mandated under La. R.S. 15:543. The defendant’s conviction of forcible rape, a “sex offense” under La. R.S. 15:541, requires that defendant be subjected to the sex offender notification and registration requirements. See La. R.S. 15:542. The trial court is required to notify a defendant convicted of a sex offense in writing, using the form contained in La. R.S. 15:543.1, of the registration and notification requirements. See La. R.S. 15:543. The statute further requires that an entry be made in the court minutes stating that the written notification was provided. The record does not indicate that the defendant | mwas provided with either written or oral notification of the sex offender registration requirements. As a result, remand is required for the purpose of providing the appropriate written notice to the defendant of the sex offender registration requirements. See State v. Drake, 46,232 (La.App. 2 Cir. 6/22/11), 71 So.3d 452; State v. Preston, 47,273 (La.App. 2 Cir. 8/8/12), 103 So.3d 525.

CONCLUSION

The defendant’s convictions and his sentence for second degree kidnapping are affirmed. The illegally lenient sentence for forcible rape is vacated. The matter is remanded for resentencing on the forcible rape conviction and for compliance with the sex offender notification and registration requirements.

CONVICTIONS AND SECOND DEGREE KIDNAPPING SENTENCE AFFIRMED; FORCIBLE RAPE SENTENCE VACATED; REMANDED FOR RESENTENCING ON FORCIBLE RAPE AND COMPLIANCE WITH SEX OFFENDER NOTIFICATION AND REGISTRATION REQUIREMENTS.

      . He initially denied having sex with the victim. However, he changed his story after the detective informed him that DNA testing on the rape kit samples from the victim’s sexual assault examination would reveal if he had had sex with the victim.

      . In 2015, "forcible rape” was renamed "second degree rape,”

      . We note that the minutes incorrectly indicate that the defendant's sentence for each count was imposed with a restriction of two years without benefit of parole, probation, or suspension of sentence. Where there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Robinson, 49,319 (La.App. 2 Cir. 10/1/14), 151 So.3d 627, writ denied, 2014-2111 (La. 5/1/15), 169 So.3d 371.

      . We recognize that the defendant in this case was 56 years old at the time of sentencing and obviously will be incarcerated for a lengthy period of time. Nevertheless, our legislature mandates compliance with the sex offender notification and registration requirements under all circumstances.