author: DREW, J.

text:
    WINN FUEL SERVICE, INC., Plaintiff-Appellant, v. Douglas BOOTH, Dana Booth and Michelle Brewton, Defendant-Appellee.
    No. 45,207-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.
    Provosty, Sadler, DeLaunay, Fiorenza & Sobel by Joseph J. Bailey, Alexandria, for Appellant.

      Gold, Weems, Bruser, Sues & Rundell by Bradley L. Drell, Alexandria, for Appel-lees Douglas Booth and Dana Booth.
    Stamey & Miller, LLC by J. Mark Miller, Natchitoches, for Appellee Michelle Brewton.
    Before STEWART, PEATROSS and DREW, JJ.
   DREW, J.

|! This lawsuit seeks to recover personally against an employee who executed corporate NSF checks as payment to a fuel supplier. The trial court denied relief, with thorough written reasons, which we adopt and annex as an appendix to this opinion. We affirm in all respects.

Winn Fuel Services, Inc., (“Winn”) sued husband and wife, Douglas and Dana Booth, and their daughter, Michelle Brew-ton, alleging the defendants were liable in solido on two NSF checks (#4806 dated September 6, 2005, for $15,000.00 and # 4808 dated September 7, 2005, for $53,216.14) issued to Winn to pay for fuel sold at Booth Enterprises of Winn, Inc., d/b/a The Trading Post (“Booth Enterprises”).

Douglas and Dana Booth were owners of Booth Enterprises and employed Brewton, who handled all the business. Winn alleged that Brewton signed the checks with the authority of the Booths and that all the defendants knew there was insufficient money in the bank to cover payment of the checks.

Winn had an agreement with Booth Enterprises in which Winn leased the premises to Booth Enterprises. Winn owned the tanks and the fuel which the Trading Post was authorized to sell. The checks were intended to pay for fuel that had been pumped. Winn sought damages, attorney’s fees, costs, and legal interest, maintaining it delivered more fuel in reliance upon the bogus paper.

Booth Enterprises filed bankruptcy, as did Douglas and Dana Booth.

1ffleasonsfor Judgment

Following trial on the merits on June 4, 2009, the trial court signed a judgment on July 29, 2009, dismissing with prejudice all claims of plaintiff (Winn) against Michelle Brewton and assessing costs against the plaintiff.

The trial court issued its cogent and helpful Reasons for Judgment on July 15, 2009, explaining its ruling. See appendix.

Arguments of Plaintiff-Appellant, Winn Fuel Service, Inc.

The contractual relationship between Winn and Booth Enterprises was a settlement account under which Brewton and Booth Enterprises knew that Winn would take action if payment was not made for the fuel. The Booths were Brewton’s parents and owners of Booth Enterprises. Brewton handled all orders, repairs and payments. She also signed these checks, with full authority to do so, but it was unclear whether she had authority to issue an NSF check. She admitted knowing the checks were NSF when she issued them, stating that she told Joe Collins the checks may or may not have been good.

Winn asserts that Brewton is responsible under La. R.S. 9:2782.

Lin other words, Winn seeks to convert this obligation to pay for the fuel into a claim on NSF checks. Under R.S. 9:2782, any drawer (here, Brewton) of the check is liable. Whether or not her parents authorized her to issue the NSF checks, Winn wants Brewton liable for the amount of the checks along with penalties and attorney’s fees under R.S. 9:2782.

Winn does not contest the trial court’s findings that evidence was insufficient that Brewton stopped the credit card payments for fuel and sold all the fuel for cash. However, Winn contends that the trial court erred in exonerating Brewton because she issued the checks, knowing full well they were NSF.

Arguments of Defendant-Appellee, Michelle Brewton

There is no legal or factual basis by which to hold her liable for these debts.

I ¿FACTS

Dana and Douglas Booth owned Booth Enterprises, Inc. Their daughter and employee had no ownership interest in the business at any time. Brewton was never a director or officer of the corporation.

Joseph Collins, acting for Winn, knew that the Trading Post was the business name for Booth Enterprises, which was owned by the Booths. Collins said he did not know Brewton lacked any ownership in the business and acknowledged he requested no corporate documents or information regarding the directors, officers, or finances of Booth Enterprises. Collins did not obtain a personal guaranty from either Booth or Brewton and never requested that Brewton agree to be personally responsible for the payments for fuel and other inventory.

Brewton stated she never represented to Winn that she would personally obligate herself for payments for fuel or product.

When Booth Enterprises began operations in 1996, Jackson Wholesale supplied its fuel. Brewton stated the usual practice was that Jackson Wholesale read the pumps on Thursday and brought the fuel bill the following Monday, at which time Brewton gave Jackson Wholesale a partial payment with the remainder of the invoice paid before the pumps were read on Thursday. The weekly invoice was usually paid in two checks.

In 2005, Winn purchased Jackson Wholesale and began doing business with Booth Enterprises. Collins informed Doug Booth that Winn would do business in the same manner as Jackson Wholesale. Within three months of Winn taking over, Booth Enterprises went out of business.

[ ¡¡Brewton stated that Winn employed different procedures from those practiced by Jackson Wholesale. She stated that Jackson’s meter reading times were inconsistent, as was the time for fuel delivery. Ninety percent of Booth Enterprises’ business was from loggers who paid through open accounts when they came into the store (usually twice a day).

It is undisputed that the two checks on which Winn sued were signed by Brewton, who was authorized to sign checks for the business. Brewton and her parents were authorized check signers. She was authorized to write the two checks and her parents did not instruct her otherwise. Her testimony was that when she gave Collins check #4806, she advised Collins there were not enough funds to cover it and asked him to please hold the check until Friday. Loggers who were slow in paying generally paid their accounts on Friday. Brewton did not guarantee that the check would be good on Friday.

Collins testified he was not told to hold the check. However, in an earlier deposition, Collins stated that he did not remember if Brewton asked him to hold the check. On several occasions, he unsuccessfully tried to negotiate the check.

Brewton acknowledged signing check # 4808 and giving it to Collins on September 7, 2005. She told him there were not enough funds and asked him to hold it until Monday so they could get the loggers to pay their bills. Collins confirmed that testimony.

The store ran out of diesel fuel on Thursday, September 8, 2005. When the loggers found out the store did not have diesel, they did not come|fito the store and did not pay their accounts. Brewton took no action or offered any inducement to get more fuel delivered, the last delivery made on September 6 prior to check # 4806 having been issued. Winn had previously accepted partial payments and agreed to hold checks. Previously, when asked to hold checks, Winn had continued to deliver fuel. When the loggers did not pay their bills after the store ran out of diesel, Booth Enterprises went out of business and filed bankruptcy. Brewton was no longer involved in the business after September 12, 2005.

DISCUSSION

Brewton disputes Winn’s claim that she should be found personally liable under La. R.S. 9:2782, which recognizes the responsible party is the entity shown on the check. Here, the corporate checks reflected the name and address of Booth Enterprises.

Further, since this is a penal statute, providing for penalties and attorney’s fees, it must be strictly construed. Though an authorized representative of Booth Enterprises, Brewton admits no liability on the checks. We agree.

Winn’s argument that any person who signs an instrument is a drawer liable on the check (R.S.10:S-103) is incorrect. Section 3-402 sets out the parameters of liability on a person who signs as a representative, stating that a signer is not liable on a check payable from an account of a represented person who is identified on the check. Brewton signed check nos. 4806 and 4808 as a representative of Booth Enterprises. It was stipulated that Brew-ton was an authorized signatory.

17Brewton faults Winn’s argument that the open account fuel obligation was converted to an obligation on a negotiable instrument. She points out that Roper v. Newman, 344 So.2d 117 (La.App. 2d Cir.1977), cited by Winn, is factually inapplicable to this dispute, since that case dealt with prescription issues.

The fuel arrangement was a contractual agreement between Winn and Booth Enterprises. There was no personal guarantee by Brewton regarding fuel payments. A juridical person under Louisiana Law, Booth Enterprises is the sole party responsible for its debts.

The trial court found Brewton was not liable under a fraud theory and that, even if she were, the fraud claim had prescribed. The checks were issued in September 2005, and this action was not filed until June 4, 2007. An action for fraud is in tort and prescribes in one year.

Depending upon the facts, actions against individuals for corporate debts can sometimes be maintained regarding corporate officers, directors, shareholders, promoters or subscribers. Brewton was none of those. Absent fraud, even shareholders, directors and officers are not personally liable for the debts of the corporation. Brewton was simply an employee of Booth Enterprises. “Piercing the corporate veil” applies to shareholders, directors, and officers, not employees.

| ¡/There was no evidence that Brewton represented she would be personally liable for the checks which she wrote as an employee of the corporation.

The trial court found that:

• Brewton told Collins there were insufficient funds and advised him to hold the checks until particular dates;

• Brewton was never told that fuel would no longer be delivered if the check was not provided;

• the evidence showed that Winn had accepted partial payments and held checks in the past;

• there was no inducement to deliver more fuel, since the last fuel was delivered before the first NSF check was prof-erred to Winn; and

• Brewton was a very credible witness.

For the reasons expressed herein and as sagely delineated in the trial court’s excellent Reasons for Judgement, we find that the trial court correctly found Brewton was not liable on these debts. We affirm the judgment below, adopting, in toto, the trial court’s incisive and thorough Reasons for Judgment. A model of clarity, it is annexed hereto as an appendix.

DECREE

At the cost of appellant, the judgment of the trial court is AFFIRMED.

19

APPENDIX

WINN FUEL SERVICE, INC.

VERSUS NO. 40531

DOUGLAS BOOTH, DANA BOOTH, AND MICHELLE BREWTON STATE OF LOUISIANA

PARISH OF WINN

STATE OF LOUISIANA

EIGHTH JUDICIAL DISTRICT COURT

REASONS FOR JUDGMENT

Judgment will be rendered in favor of MICHELLE BREWTON and against the plaintiff in this matter, rejecting the demands of plaintiff, with plaintiff being cast for all costs of court. The reasons for this decision are as follows:

The fuel contract was between Winn Fuel Service, Inc. and Booth Enterprises of Winn, Inc. and/or Douglas Booth and/or Dana Booth. There was no privity of contract between Michelle Brewton and Winn Fuel Service, Inc.
2. For the reasons set forth in the post trial brief of Michelle Brewton, Michelle Brewton is not liable under LSA-R.S. 9:2782 for the two (2) checks that were the subject of this litigation. Michelle Brewton was only an employee of Booth Enterprises of Winn, Inc. She did have check writing authority. However, the fact that she happened to sign the two (2) checks that are the subject of this litigation did not render her personally responsible when the checks were returned NSF. The checks that she signed were not her checks. They were the checks of her employer who had authorized her to sign them.
There is also no other legal basis upon which Michelle Brewton could be found liable for the amount of the checks or for any of the other damages which might have been suffered by the plaintiff. When she wrote the checks, Michelle Brewton asked Mr. Collins to hold them, and that should have been an indication to Mr. Collins that there were not sufficient funds to cover the checks at the time they were written. Mr. Collins chose to assume that risk. With respect to the first check, Michelle Brewton’s testimony was that she asked Mr. Collins to hold that check until Friday. When Mr. Collins was first asked about that in his deposition, he said he did not remember. At the trial, he said that Michelle Brewton definitely did not ask him to hold the check until Friday. Michelle Brewton’s testimony in this regard was consistent throughout, and credible, and the Court accepts as fact her testimony that she did ask Mr. Collins to hold the first check until the following Friday. The record is also clear that Michelle Brewton asked Mr. Collins to hold the second check until the following Monday. The record is also clear that Michelle Brewton never indicated to Mr. Collins that she was taking personal responsibility for the checks. There is no showing in the record that Michelle Brewton had any duty toward the plaintiff and the testimony does not show that she was guilty of committing a fraud against the plaintiff. Mr. Collins did not do what Michelle Brewton asked and deposited the first check twice before Friday. On September 8, 2009, the second day that the first check was not honored, Mr. Collins refused to deliver any more product to Booth Enterprises. There is no showing in the record that Michelle Brewton had any control or responsibility for what happened after Mr. Collins refused to deliver any more fuel to Booth Enterprises. Michelle Brewton was not legally obligated to inform the plaintiff about anything that Booth |inEnterprises may have decided to do. Again, Michelle Brewton was only an employee of the corporation. She was not an incorporator, director, officer, or shareholder of the corporation, and the record shows no legal basis for finding her liable for any damages which might have been suffered by the plaintiff herein.
4. The Court would note that even if Michelle Brewton had been guilty of committing a fraud against the plaintiff, this action would have prescribed prior to the filing of this suit. In his ruling on February 26, 2008, the Judge stated “The plaintiffs pleading is brought under and characterized by Title 9: The plaintiff does not seek damages for fraud, but rather seeks the relief provided by LSA-R.S. 9:2782.” Thus the Court held that the applicable prescriptive period of plaintiffs claim was five (5) years. However, since the Court’s ruling on the exception, the pleadings in this matter have been expanded to include a prayer for damages for fraud and had the defendant been found to be guilty of committing fraud against the plaintiff, that demand by plaintiff would have been prescribed.

JUDGMENT IN ACCORDANCE WITH THESE REASONS WILL BE SIGNED UPON PRESENTATION.

Winnfield, Louisiana, this 1st day of July, 2009.

/s/ Jacque D. Derr

JACQUE D. DERR

DISTRICT JUDGE

      . For which it was never paid, to the tune of approximately $100,000.

      . La. R.S. 9:2782 Nonsufficient fund checks; damages, attorney fees
      A. Whenever any drawer of a check dishonored for nonsufficient funds fails to pay the obligation created by the check within fifteen working days after receipt of written demand for payment thereof delivered by certified or registered mail, the drawer shall be liable to the payee or a person subrogated to the rights of the payee for damages of twice the amount so owing, but in no case less than one hundred dollars plus attorney fees and court costs.
      B. The payee, his agent or assignee, or a holder may charge the drawer of the check a service charge not to exceed twenty-five dollars or five percent of the face amount of the check, whichever is greater, when making written demand for payment. The payee shall post a notice indicating the amount to be charged a drawer of a check if the check is returned for nonsufficient funds. Such notice shall be posted on the payee's business premises in a convenient and conspicuous place where persons entering the location will see it.
      C. (1) Before any recovery under Subsection A of this Section may be claimed, a written demand in substantially the form which follows shall be sent by certified or registered mail to the drawer of the check at the address shown on the instrument:
      "You are hereby notified that a check numbered _, issued by you on _ (date), drawn upon _, (name of bank), and payable to_, has been dishonored. Pursuant to Louisiana law, you have fifteen working days from receipt of this notice to tender payment in full of the amount of the check plus a service charge of twenty-five dollars or five percent of the face amount of the check, whichever is greater, the total amount due being_Unless this amount is paid in full within the fifteen-working-day period, the holder of the check may file a civil action against you for two times the amount of the check or one hundred dollars, whichever is greater, plus any court costs and reasonable attorney fees incurred by the payee in taking the action.”
      (2) Notice mailed by certified or registered mail evidenced by return receipt to the address printed on the check or given at the time of issuance shall be deemed sufficient and equivalent to notice having been received by the person making the check.
      (3) It shall be prima facie evidence that the drawer knew that the instrument would not be honored if notice mailed by certified or registered mail is returned to the sender when such notice is mailed within a reasonable time of dishonor to the address printed on the instrument or given by the drawer at the time of issuance of the check.

      . Brewton acknowledges that an action to collect on the checks is a contractual action and subject to the longer contractual prescriptive period.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Jeffrey E. KOSDEN, Defendant-Appellant.
    No. 45,202-CA, 45,203-CA, 45,204-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.
    Richard C. Goorley, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Robert Randall Smith, Edward Charles Jacobs, Assistant District Attorneys, for Appellee.

      Before BROWN, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

Un these Consolidated matters, Jeffrey E. Kosden filed a Motion to Discharge, Dismiss and Expunge the Record in the criminal matter captioned State of Louisiana v. Kosden, docket number 108,707, involving the 2001 murder of Vol Dooley, III. The trial judge denied the motion and Kosden now appeals. For the reasons stated herein, we reverse and remand with instructions to the trial judge to conduct a contradictory hearing and render judgment consistent with this opinion.

FACTS

This civil matter arises out of the 2001 murder of Vol Dooley, III, the son of the former Bossier Parish Sheriff, Vol Dooley, Jr. The victim’s wife, Jocelyn B. Dooley, was tried and convicted by a unanimous jury of the second degree murder of her husband pursuant to La. R.S. 14:30.1 and sentenced to life imprisonment. She was also convicted of obstruction of justice pursuant to La. R.S. 14:130.1 and subsequently sentenced to serve 40 years at hard labor, to run consecutive to the life sentence.

Jeffrey E. Kosden was in a relationship with Mrs. Dooley at the time that she shot and killed her husband. Although he was not aware of the killing until after it had occurred and Mrs. Dooley telephoned him for help, Kosden assisted Mrs. Dooley in disposing of her husband’s body in the early morning hours of June 5, 2001. For this post-crime involvement, Kosden was indicted as a principal to second degree murder and was charged by subsequent bills of information with accessory after the fact and obstruction of justice. On April 21, 2003, prior to trial, the State agreed to dismiss the principal to second degree murder charge in exchange for his 12full cooperation and testimony at trial against Mrs. Dooley. Kosden testified at trial and the charge was dismissed as agreed. As previously stated, following trial, Mrs. Dooley was convicted by a unanimous jury and sentenced to life in prison. The convictions and sentences of Mrs. Dooley were affirmed by this court on appeal in State v. Dooley, 38,763 (La.App.2d Cir.9/22/04), 882 So.2d 731, writ denied, 04-2645 (La.2/18/05), 896 So.2d 30.

On December 1, 2003, Kosden filed a Motion to Discharge, Dismiss and Expunge the Record, which was denied after a brief hearing on October 15, 2004. Kos-den filed the instant Motion to Discharge, Dismiss and Expunge the Record on February 25, 2009. The motion contained a rule to show cause why the record of the arrest, charge and prosecution of Kosden should not be destroyed or expunged. The trial judge denied the motion and Kosden now appeals.

DISCUSSION

The agreement between Kosden and the State provided that “[i]n exchange for [Kosderis] complete and truthful cooperation, the State of Louisiana will dismiss all charges ... and agree not to pursue any charges arising from the homicide ... or any actions taken subsequent to the homicide .... ” Again, Kosden cooperated and testified and the State dismissed the charge.

The controlling statute in this case is La. R.S. 44:9(B), which provides in pertinent part as follows:

B. (1) Any person who has been arrested for the violation of a felony offense or who has been arrested for a violation of liiR.S. 14:34.2, R.S. 14:34.3, or R.S. 14:37 may make a written motion to the district coui’t for the parish in which he was arrested for the expungement of the arrest record if:
(a) The district attorney declines to prosecute, or the prosecution has been instituted, and such proceedings have been finally disposed of by acquittal, dismissal, or sustaining a motion to quash; and
(b) The record of arrest and prosecution for the offense is without substantial probative value as a prior act for any subsequent prosecution.
(2) If, after a contradictory hearing with the district attorney and the arresting law enforcement agency, the court finds that the mover is entitled to the relief sought for the above reasons, it shall order all law enforcement agencies to expunge the record of the same in accordance herewith. However, nothing in this Paragraph shall limit or impede the authority under law to consider prior arrests or convictions in pursuing prosecution under multiple offender provisions or impede the investigation of any law enforcement official seeking to ascertain or confirm the qualifications of any person for any privilege or license authorized by law.

Kosden argues on appeal that he was not afforded a contradictory hearing as required by the statute. The supreme court has recognized that the above applicable provision of La. R.S. 44:9 clearly provides that, prior to expungement of a felony arrest or conviction, a contradictory hearing must be held. In re Elloie, 05-1499 (La.1/19/06), 921 So.2d 882. A contradictory hearing must be held pursuant to La. R.S. 44:9(B)(2) when expungement is sought for a felony arrest that did not result in prosecution and/or conviction if the district attorney declines to prosecute, La. R.S. 44:9(B)(l)(a), or for a felony arrest where the prosecution was instituted, but the proceedings were finally disposed of by acquittal, dismissal or the sustaining of a motion to quash, La. R.S. 44:9(B)(l)(a). In re Elloie, supra. In the case sub judice, the State argues that Kosden waived his right to a contradictory hearing by filing a rule to show cause rather than a request for a contradictory hearing. This issue is not dispositive of the case on appeal. Any procedural misstep should have been raised and considered at the trial court level; the trial judge was well aware of the applicable statute and that it required a contradictory hearing prior to ruling on the motion.

Further, we find no support in the jurisprudence for the exclusion of Kosden’s request for expungement from the purview of La. R.S. 44:9(B)(l)(a). The statute makes no distinction regarding possible expungement based on the factual scenario or egregiousness of the particular crime involved, the identity of the victim or whether the charge/indictment was dismissed via plea agreement or immunity agreement. Likewise, we find no such distinction in the cases applying La. R.S. 44:9. Moreover, we believe it appropriate to highlight the statement of the district attorney prior to the trial judge taking the matter under advisement. After discussing the sufficiency of notice to all parties, the trial judge asked if the district attorney had any objection to the motion, to which the district attorney responded, “Your Honor, we can’t agree to the motion, but we can’t offer anything in opposition to it. I believe he’s entitled to it.” The trial judge then took the matter under advisement and, ultimately, denied the motion for expungement.

In his reasons for judgment, the trial judge expressly stated that, in his opinion, “it would be contrary to public policy” to allow the expungement | sof Kosden’s arrest due to the circumstances and egregious nature of his involvement in the crime; however, he conceded that “the law is clear that the Court is required to do so.” Remarkably, the trial judge then refused to order the expungement and concluded by commenting “... if that’s what I’m required to do [order expungement] somebody else is going to have to tell me that ... if some appellate court believes that my thinking is misplaced they certainly can order me to do what they believe is appropriate.” While this court shares the trial court’s concerns for the safety of our communities and his disdain for violent crimes such as murder, we are bound to interpret and apply unambiguous statutes by their clear wording. We, therefore, remand the matter to the trial court with instructions to conduct a contradictory hearing as required by the statute and apply the statute as written, without regard to the circumstances of the crime or identity of the victim.

CONCLUSION

For the foregoing reasons, the judgment of the trial court denying the Motion to Discharge, Dismiss and Expunge the Record of Jeffrey E. Kosden is reversed and the matter is remanded to the trial court with instructions to conduct a contradictory hearing and apply La. R.S. 44:9 as written.

REVERSED AND REMANDED.


author: LOLLEY, J.

text:
    NITRO ENERGY, L.L.C. and Donald Faust, Plaintiffs-Appellees, v. NELSON ENERGY, INC. and Richard B. Nelson, Defendants-Appellants.
    No. 45,201-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.
    Hargrove, Smelley, Strickland & Langley by Paul A. Strickland, Megan F. Cau-sey, Shreveport, for Appellants.
    Davidson, Jones & Summers by Grant E. Summers, Shreveport, for Appellees.

      Before CARAWAY, MOORE and LOLLEY, JJ.
   LOLLEY, J.

^Nelson Energy, Inc. and Richard B. Nelson (“appellants”) appeal a judgment from the Second Judicial District Court, Claiborne Parish, Louisiana, which granted the motion for summary judgment in favor of Nitro Energy, L.L.C. and Donald Faust. For the following reasons, we affirm the trial court’s judgment.

Facts

The property at issue in this case is a portion of several tracts of land totaling 227 acres in Section 14, Township 19 North, Range 5 West (the “Swift Tract”). Although the parties are disputing that portion of the property that is located only in Claiborne Parish, some of the Swift Tract is also located in Lincoln Parish. The entire tract was identified initially in a deed dated August 26, 2002, from Emmett R. Woodard, Ann Woodard Windsor and Dell Woodard Nichols to Rickey K. Swift, Jeweline Malone Swift, Darren C. Swift and his wife, Cherrie Stallworth Smith (the “Woodard deed”). The Woodard deed was properly recorded in the conveyance records of both Claiborne and Lincoln Parishes, as it pertained to property located in both parishes.

The appellant, Richard Nelson, obtained a mineral lease purporting to cover the entire Swift Tract on September 30, 2004, from each of the owners of the tract (the “Nelson Lease”). The Nelson Lease was recorded in Lincoln Parish on February 4, 2005. Although it purported to apply to all of the property in Lincoln and Claiborne parishes, Nelson did not record the Nelson Lease in Claiborne Parish, which he concedes was a mistake on his part. The Nelson Lease described the property affected by referring to the | ¡Woodard deed and included the Lincoln Parish recording information. The Claiborne Parish recording information was not referred to, and Nelson did not file the lease in the Claiborne Parish records until January 3, 2006.

On December 21, 2005, Donald Faust obtained a mineral lease covering the portions of the Swift Tract only in Claiborne Parish; however, only two of the landowners, Rickey Swift and Jeweline Swift, signed (the “Faust Lease”). Together, Rickey and Jeweline owned two-thirds of the Swift Tract. That lease was recorded in the Claiborne Parish public records on the same day. The Faust Lease contained the following property:

Section 14, Township 19 North, Range 5 West
A tract of land containing 227 acres, more or less, and being the same land described in that deed dated August 26, 2002 from Emmett R. Woodard et al [sic] to Rickey K. Swift, and recorded in Book 1136, Page 363 of the conveyance records of the Lincoln Parish, LA. It is the intention of the Grantors to convey all their interest in that land lying in Claiborne Parish, La. whether more particularly described or not.

The Faust Lease did not state that the property included lands in both Sections 11 and 14, Township 19 North, Range 5 West, because the Faust Lease only pertained to that part of the property in Claiborne Parish. Further, it did not refer to the Claiborne Parish conveyance book and page for the Woodard deed. Notably, on the day the Faust Lease was recorded, December 21, 2005, the Nelson Lease had not been recorded. As stated, the Nelson Lease was not recorded in the Claiborne Parish public records until January 3, 2006.

In 2008, Nitro Energy and Faust filed suit seeking (among other claims) a declaration from the trial court that the Faust Lease was the pranking and valid lease on the portion of the Swift Tract located in Claiborne Parish, Louisiana, as to the two-thirds ownership interest described in the Faust Lease. The parties filed cross motions for summary judgment, agreeing ultimately that there was no dispute regarding the material facts of the case. They also agreed that the sole issue in dispute was the sufficiency of the description contained in the Faust Lease. After a hearing on the matter, the trial court ruled in favor of Nitro Energy and Faust, and this appeal by Nelson Energy and Nelson ensued.

Discussion

There is one issue on appeal: whether the property description stated in the Faust Lease is so inaccurate or faulty as to be actually misleading. Specifically, appellants urge that the Faust Lease contains several errors in the property description that are misleading and conflicting which would prevent a third party from identifying with certainty the property covered by the lease, so as to render the Faust Lease ineffective to third parties. Thus, we are called to determine whether the property description contained in the Faust Lease was sufficient to put third parties on notice. The parties agree that if it is, then the Faust Lease is the ranking and valid lease pertaining to that part of the Swift Tract located in Claiborne Parish.

As stated, the Faust Lease describes the property it intends to affect as follows:

Section 14, Township 19 North, Range 5 West
A tract of land containing 227 acres, more or less, and being the same land described in that deed dated August 26, 2002 from Emmett R. Woodard et al [sic] to Rickey K. Swift, and recorded in Book 1136, Page 363 of the conveyance records \ ¿of the Lincoln Parish, LA. It is the intention of the Grantors to convey all their interest in that land lying in Claiborne Parish, La. whether more particularly described or not. (Emphasis added).

Primarily, it is the emphasized text that the appellants contend makes the property description misleading. We disagree.

This issue was decided on a motion for summary judgment, with the appellants contesting the trial court’s grant of the motion for summary judgment filed by Faust and Nitro Energy. In considering the trial court’s rulings on a summary judgment motion, we apply a de novo standard of review. Summary judgment should be granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. P. art. 966(B). Here, as there is no genuine issue of material fact, we must determine whether Nitro Energy and Faust were entitled to summary judgment as a matter of law.

Louisiana C.C. art. 3338 now states the public records doctrine under Louisiana law. It states, in pertinent part, as follows:

The rights and obligations established or created by the following written instruments are without effect as to a third person unless the instrument is registered by recording it in the appropriate mortgage or conveyance records pursuant to the provisions of this Title:
(1) An instrument that transfers an immovable or establishes a real right in or over an immovable.

A third person is a person who is not a party to or personally bound by an instrument. La. C.C. art. 3343. Thus, Faust is a third party as to the Nelson | .¿Lease and Nelson is a third party as to the Faust Lease. Further, as pointed out by Faust, mineral leases are classified as incorporeal immovable property, and as such, they are subject to the public records doctrine as provided in the Civil Code. La. R.S. 31:18.

The question in this case is whether the Faust Lease contained a sufficient property description as to put third parties on notice. Louisiana jurisprudence has not established precise criteria to determine what description in the public records is sufficient to place third persons on notice, and such determination is to be made on a case by case basis. Santopadre v. Pelican Homestead and Sav. Ass’n, 782 F.Supp. 1138 (E.D.La.1992); see also, Peter Title, Louisiana Real Estate Transactions § 8:9 (2009). In fact, as long ago as 1872, in the case of Consolidated Ass’n of Planters of Louisiana v. Mason, 24 La.Ann. 518 (1872), the Louisiana Supreme Court recognized the impossibility of adopting a standard for distinguishing a description which would be sufficient from one which would not be sufficient, to put third parties on notice, noting that “[w]e are not prepared to fix the line between a valid and invalid or sufficient and insufficient description, which shall serve as a guide in all future cases. Each case must depend on its own circumstances.” Notably, however, courts have been liberal in construing the description of property in deeds, so as to sustain, rather than defeat, the conveyance. Emerson v. Cotton, 209 La. 1003, 26 So.2d 16 (La.1946). We believe the same standard should hold true for the construction of property descriptions in other acts affecting immovable property as well.

In Daigle v. Calcasieu Nat. Bank in Lake Charles, 200 La. 1006, 9 So.2d 394 (La.1942), the supreme court determined that a vague and indefinite description, in an instrument purporting to convey title to real estate, as all of the land owned by the seller in a named parish, is not sufficiently specific to give notice to third parties thereafter dealing with the seller. In Hargrove v. Hodge, 9 La.App. 434, 121 So. 224, 225 (La.App. 2d Cir.1928), it was determined that the property description in the instrument must be such that the property intended to be conveyed could be located and identified, and the general rule is that the description must fully appear within the four corners of the instrument itself, or that the instrument should refer to some map, plat, or deed as a part of the description, so that the same may be clear.

We agree with the line of cases relied upon by Faust in support of his motion. Notably, it is well settled that a property description in a conveyance is sufficient if it makes reference to the vendor’s deed of acquisition (as in the case at hand). Lawler v. Bradford, 113 La. 415, 37 So. 12 (La.1904). We also agree that the case, H.J. Smith & Sons v. Baham, 157 La. 524, 102 So. 657 (La.1925), is precisely on point. There, the supreme court deemed sufficient a property description that left blank the section and range that a portion of the property was located in but included information referring to the original acquisition of the property. 157 La. at 528, 102 So. at 658.

We believe the court’s reasoning in Ba-ham is persuasive here as well. In this case, the property is described by three identifying elements in the |7Faust Lease. First, it is described as being part of a 227 acre tract of land located in Section 14, Township 19 North, Range 5 West. Second, it is stated to be that part of the tract that is in Claiborne Parish only. Third, and finally, it identified as that tract of land that was conveyed by a deed dated August 26, 2002, from Woodard to Rickey K. Swift. The fact that the Faust Lease goes on to give the recordation information for the Woodard deed in Lincoln Parish is not misleading, i.e., it would not throw someone off the scent of tracking down the Woodard deed in the Claiborne Parish conveyance records, even though the recordation information was not applicable in Claiborne Parish.

The appellants’ emphasis on the flaws in the Faust Lease are misdirected since the question is simply whether you can locate the property even with the flaws or the superfluous recordation information for Lincoln Parish. The most important directive included in the property description in the Faust Lease is that it makes an adequate reference to another recorded document that contains a metes and bounds description of the property. The fact that it gives the recordation information for Lincoln Parish rather than Claiborne Parish is immaterial, significantly because the description contained sufficient information for a third person to easily find the Woodard deed in the Claiborne Parish public records — where the entire metes and bounds description would be obtained. The names of the parties to the Woodard deed as well as the date of the instrument are sufficient for a third person to locate the instrument in the Claiborne Parish records. So considering, while not entirely and completely accurate in and of itself, the |sproperty in the Faust Lease is described with a degree of particularity as to leave no doubt as to the property intended to be affected. Thus, we conclude that the property description in the Faust Lease was sufficient to put third parties on notice as to which property was affected, and the trial court’s judgment was not in error.

Conclusion

For the foregoing reasons, we conclude that the trial court properly granted the motion for summary judgement in favor of Nitro Energy, L.L.C. and Donald Faust. All costs of these proceedings are assessed to appellants.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Artis D. LOGAN, Appellant.
    No. 45,136-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.

      Louisiana Appellate Project by Paula C. Marx, for Appellant.
    Jerry Jones, District Attorney, Neal G. Johnson, Brandon B. Brown, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

| j Defendant, Artis D. Logan, was charged with and subsequently convicted of attempted second degree murder. After being adjudicated a habitual offender, Defendant was sentenced to 60 years at hard labor to be served without parole, probation, suspension of sentence or diminution for good behavior. Defendant now appeals. For the reasons stated herein, Defendant’s conviction and sentence are affirmed.

FACTS AND PROCEDURAL HISTORY

On the night of September 21, 2007, Defendant drove a woman named Tressa Soles to the home of William Garrett so that Soles could borrow money from Garrett who went by the nickname of “Plug.” Garrett’s house is located at 922 Camp Street in Monroe, Louisiana. At some point after Defendant’s arrival with Soles,an altercation took place between Defendant and Garrett. The details of how the fight began are unclear; however, Garrett appears to have been the initial aggressor.

A few minutes after the altercation began, Garrett tried to retreat, but Defendant pursued him until Garrett fell to the ground. Defendant continued to attack him, ultimately slitting Garrett’s throat. Defendant then jumped in his car and left the scene. The Monroe Police Department was dispatched to the scene; and, on their arrival, the officers found Garrett lying in the street bleeding.

Defendant was arrested and charged by bill of information on November 15, 2007, with the attempted second degree murder of William Garrett. The matter was set for trial on April 15, 2009. Soles, who has an extensive criminal history and was incarcerated at the time of trial, testified 12as to the events which took place on September 21, 2007. Soles testified that Garrett had arranged a ride for her from a woman named Shanta Van Burén who arrived at Soles’ house on September 21, 2007, at about 7:00 p.m. in a vehicle driven by Defendant. A female identified as “Su-chie” was riding in the back seat of the vehicle. According to Soles, the four drove to West Monroe where they dropped off Suchie and then drove back to Monroe. Soles testified that, when she tried to go home, Van Burén told her she could not leave until Soles paid her and Defendant for the ride. Soles argued at first, but ultimately asked Defendant and Van Bu-rén to take her to Garrett’s house to get the money.

Soles testified that she and Defendant began arguing again after they arrived at Garrett’s house. Garrett then came outside and Soles explained the situation to him; but, when she told Garrett she did not have any money, things began to escalate. Soles testified that Defendant bent down into his car to pick up something and Garrett reacted by picking up a metal rod. Soles stated numerous times that she never saw the actual fight between Defendant and Garrett because she and Van Burén were fighting. Soles did testify, however, that she saw Garrett backing away from Defendant and heard the metal rod that Garrett had been holding fall to ground. In her statement to the police, Soles stated, “I didn’t see anything. All I saw is after it all happened, I saw the cut. I saw Plug laying there with his neck wide open. He got a cut on his stomach, here and a big chunk gone out of his right arm.”

laThe State then called witness Robert Mitchell who was at Garrett’s house the night of the altercation. Mitchell testified that he went outside sometime after Garrett because he had heard something. He stated that he saw a “dude” on top of “Plug” and two women fighting on the edge of the street. Mitchell did not know who the “dude” was, but he saw a shiny object in the “the dude’s” hand which he could not identify. Mitchell then testified that he saw the man “slicing” Garrett before getting in the car and driving away.

Garrett testified that, on the night of the altercation, he had been drinking and “hanging out” with Mitchell when he heard some noises outside of his house which he described as “fussing.” Garrett said that, when he went outside, he saw Van Burén and Soles standing behind a car arguing. Garrett asked them to leave, but they did not comply. He then saw a man get out of the car with a shiny knife-like object in his hand, though he could not identify the man because the street was very dark.

Garrett testified that he told the man, “Look, I ain’t got nothing to do with you. I’m just trying to get y’all to move this noise from the front of my house.” Garrett stated that “[the defendant] gave me a look like he was going to do something with the object so I went back in the house and got like a shower rod and came back out.” Garrett stated that Defendant gave him a threatening look and braced himself so Garrett told them “if they ain’t leave there was going to be some trouble or whatever.” Garrett said Defendant then came across the street as if he was going to attack him, so | ¿Garrett struck at him with the shower rod. The rod then broke in half, so Garrett dropped it.

At that point, Garrett testified that he began to run, but Defendant chased after him. Defendant caught Garrett and cut him on the back of his arm which caused him to turn around and fall to the ground. Defendant then got on top of Garrett and began to cut him on his chest, stomach and throat. According to Garrett, Defendant then “bolted.” Garrett said that when he stood up, his neck opened and blood started coming out, so he held his neck and attempted to walk a few paces before he stopped and asked Mitchell to call an ambulance. Garrett testified that he recalled someone bringing him a towel, but he lost consciousness shortly thereafter.

Once at the hospital, Garrett underwent surgery. He was in the hospital for four days and was given medicine for pain and infection. Garrett remained on medication for about two weeks, during which time he could not work. Garrett now has permanent scarring on his neck.

Defendant admitted at trial that he was convicted of aggravated battery approximately ten years ago because he cut someone with a box cutter. Defendant then testified that, on the night of the instant altercation, he, Van Burén and a girl named “Sookie” went to pick up Soles at her house. The four drove to West Monroe, dropped off Sookie and then returned to Monroe where they made a few more stops. Defendant stated that Van Burén told him that they wanted to go to Camp Street. Defendant testified that, when they arrived at Camp Street, there was no discussion |Babout money; however, Soles had originally told him when he first picked her up that she would give him $20 to take her to Wal-Mart and Camp Street.

Defendant testified that, on arriving at Camp Street, Van Burén and Soles got out of the ear and one of them went across the street and knocked on the door of Garrett’s house. Defendant stated that a man (Garrett) came outside and started talking to Van Burén and Soles, but it looked like they were arguing, so Defendant leaned out of the driver’s side window of his car and said, “y’all could just pay me and I can go ahead and leave.” Defendant then testified:

A couple of moments after that, a man— that man that came outside approached my vehicle with a yellow-like rod or something in his hand and started striking. He was saying something as he approached, but I wasn’t listening because he wasn’t talking to me at first. They was having a verbal conversation behind the vehicle. So I didn’t know if he was actually talking to me or not, but as he approached the vehicle he was saying something and he started hitting the window.

Defendant claims that he ducked back and did not respond, but that Garrett likely hit him twice, mostly striking the vehicle. According to Defendant, Garrett then started to open the driver’s door, at which time Defendant got out of the car and grabbed the metal rod in Garrett’s hand. Defendant stated that, when he grabbed the rod, it came apart so he picked up a piece of the rod and began hitting Garrett with it. Defendant testified that he believed his life was in danger because the man was still striking him, even though the man was backing up at the time. Defendant stated that he struck Garrett in the body area until he fell to the ground. Defendant admitted that, once Garrett fell, he hit him two or three more times.

| ^Defendant also testified that he told the detective that he was standing up during the whole fight and was never on top of Garrett. Defendant stated, “And I made that clear that I was not on the ground on top of him. I was still standing. And it was like a real fast moment. I was striking; he was striking at me. He fell and I hit him a couple of times probably a little couple of seconds. It wasn’t no period time he was on the ground.” Defendant claimed that he stopped striking Garrett at about the third strike, when he realized blood was squirting out of his own hand.

Defendant stated that there was no need to strike Garrett anymore because he was on the ground. Defendant said that he then drove away, throwing the object he had used to strike Garrett into the ditch. He testified that Garrett was standing when he left and that he drove in the direction opposite of Garrett because he was worried that Garrett would throw something at the vehicle. During cross-examination, the State asked Defendant, “Were you so angry you just couldn’t control yourself?” Defendant responded, “I wouldn’t think so.”

Detective Quentin Holmes testified that he took Defendant’s recorded statement after his release from the hospital; but, once the recorder was turned off, Defendant started asking questions about what constituted self-defense. Detective Holmes testified that he charged Defendant with second degree murder because the hospital medical staff informed him that Garrett was essentially dead when he arrived at the hospital, he was given six units of blood and he had to be revived. The doctors told Detective |7Holmes that Garrett only had a 50% chance of survival when he went into surgery.

Defendant filed a pro se motion for speedy trial, which was granted ex parte on April 4, 2008, and then vacated and recalled for failure to meet the requirements set forth in La. C. Cr. P. art. 701D(1). Defendant then filed a pro se motion to quash the bill of information on October 3, 2008, and a hearing was set for February 29, 2009, on the condition that the motion was adopted by defense counsel. There is no evidence in the record that a hearing was held.

As previously stated, trial was held on April 15, 2009, and Defendant was found guilty as charged on April 17, 2009. The State filed a habitual offender bill of information charging Defendant as a second-felony habitual offender. Defendant was adjudicated as such and sentenced to 60 years at hard labor to be served without the benefit of parole, probation, suspension of sentence or diminution of sentence for good behavior. Defendant now appeals.

DISCUSSION

Assignment of Error Number One (verbatim): The offense in this case was committed in sudden passion and heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection, and as such, the verdict of attempted second degree murder cannot stand, and the lesser offense of attempted manslaughter should be substituted.

Defendant argues that the evidence does not support a finding of attempted second degree murder and, instead, supports a finding of attempted manslaughter because Garrett, who was the initial aggressor, struck Defendant without any provocation other than a threatening look; | ¡¡and, thus, Defendant reasonably believed his life was in- danger. Defendant further asserts that, even considering the testimony that Garrett was retreating when Defendant attacked him, the distance covered was so short that there was no time for Defendant to cool down. According to Defendant, therefore, the provocation of being “brutally attacked by Plug was sufficient to deprive an average person of self-control and cool reflection.” Defendant concludes that a preponderance of the evidence establishes that he acted in “sudden passion or heat of blood” and, therefore, a rational trier of fact would have found him guilty of attempted manslaughter rather than attempted second degree murder.

The State contends that there is no evidence supporting a conviction for attempted manslaughter. In support of this contention, the State points to Soles’ testimony wherein she stated that she never saw a weapon in Garrett’s hand, other than a shower curtain rod that broke, after which time he ran backward in an attempt to escape Defendant. The State also offers Garrett’s testimony describing Defendant as being on top of him while attacking him. Finally, the State cites Defendant’s own admission that he was not so angry he could not control himself.

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, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (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, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

La. R.S. 14:27 states in pertinent part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

La. R.S. 14:30.1(A) defines second degree murder as “the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm.” In order to convict a defendant of attempted second degree murder, the state must prove beyond a reasonable doubt that the defendant had the specific intent to kill. State v. Bishop, 01-2548 (La.1/14/03), 835 So.2d 434, citing State v. Huizar, 414 So.2d 741 (La.1982). Proof of specific intent to inflict great bodily harm is insufficient. State v. Martin, 92-811 (La.App. 5th Cir.5/31/94), 638 So.2d 411.

Specific intent is the state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. Davies, 35,783 (La.App.2d. Cir.4/5/02), 813 So.2d 1262, writ denied, 02-1564 (La.5/9/03), 843 So.2d 389, citing La. R.S. 14:10(1); State v. Ellis, 28,282 (La.App.2d Cir.6/26/96), 677 So.2d 617, writ denied, 96-1991 (La.2/21/97), 688 So.2d 521. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. R.S. 14:10(1); State v. Bishop, supra, citing State v. Butler, 322 So.2d 189 (La.1975); State v. Martin, supra.

Manslaughter is defined as a “homicide which would be first or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La. R.S. 14:31(A)(1); State v. Quiambao, 36,587 (La.App.2d Cir.12/11/02), 833 So.2d 1103, writ denied, 03-0477 (La.5/16/03), 843 So.2d 1130. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed. La. R.S. 14:31(A)(1). A defendant is required to prove by a preponderance of Lithe evidence that he acted in “sudden passion” or “heat of blood” for a verdict of manslaughter to be appropriate. State v. Robinson, 32,794 (La.App.2d Cir.3/1/00), 754 So.2d 311, writ denied, 00-0989 (La.3/23/01), 787 So.2d 1008.

“Sudden passion” and “heat of blood” are not elements of the offense of manslaughter; rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed without them. State v. Lombard, 486 So.2d 106 (La.1986). In reviewing a defendant’s claim that he met this burden, the appellate court must determine whether a rational trier of fact, upon reviewing the evidence in the light most favorable to the prosecution, could have found that these mitigating factors had not been established by a preponderance of the evidence. State v. Robinson, supra; State v. Lewis, 28,973 (La.App.2d Cir.12/11/96), 685 So.2d 1130, writ denied, 97-0122 (La.5/16/97), 693 So.2d 797. The law is clear that, although specific intent to kill is not necessary for a conviction of manslaughter, a specific intent to kill is required for a conviction of attempted manslaughter. State v. Hutcherson, 34,540 (La.App.2d Cir.4/4/01), 785 So.2d 140; State v. Jones, 43,963 (La.App.2d Cir.2/25/09), 4 So.3d 950, writ denied, 09-0839 (La.1/8/10), 24 So.3d 857.

In the case sub judice, we find that the evidence was sufficient for a reasonable trier of fact to find Defendant guilty of attempted second degree murder. Testimony presented at trial consistently portrayed Defendant as the aggressor, attacking Garrett by cutting his body and slicing his throat hgwhile he was lying on the ground. One can reasonably infer from the severity of the injuries alone that Defendant had the specific intent to kill Garrett, as he was nearly dead when he arrived at the hospital, required six units of blood and had to be revived by hospital staff.

The question now before this court is whether Garrett’s provocation of Defendant was sufficient to deprive an average person of self-control and cool reflection thereby causing Defendant to act in sudden passion or heat of blood, which would reduce the charge to the lesser responsive charge of attempted manslaughter. The record indicates that Garrett was the initial aggressor who admitted that he armed himself with a metal rod, threatened Defendant and struck first after being given a “threatening look.” Garrett’s role as the aggressor, however, quickly reversed when the shower rod came apart and he began to retreat. Defendant testified that, when the rod came apart, he began hitting Garrett until he backed up and fell, at which point Defendant continued to hit him at least three more times.

A trier of fact could reasonably conclude that an average person would not be so angered by this quick, ineffective attack that he would lose all self-control and cool reflection and start slashing another man’s throat. Further, Defendant admitted in his testimony that he was not so angry that he could not control himself. We are also not persuaded by Defendant’s argument that he did not have enough time to calm down during the short chase before the attack; an average person would not have reacted in such a violent manner.

Accordingly, we find the evidence in this case sufficient to support | ^Defendant’s conviction of attempted second degree murder and, further, that Defendant failed to carry his burden necessary to reduce the conviction to attempted manslaughter. This assignment is without merit.

Assignment of Error Number Two (verbatim): Artis D. Logan was denied due process of law, the right to bail and the right to a speedy trial in the trial court. The trial court further erred in denying the motion to quash the bill of information.

A. Denial of Due Process

Defendant asserts that he was denied due process of law when: (1) The trial judge vacated the order granting him a speedy trial without notice or a hearing as required by La. C. Cr. P. art. 701; (2) His trial was continued three times in his absence; and (3) The trial judge required defense counsel to adopt Defendant’s pro se motion to quash before a hearing would be held on the matter. In support of his contention that he was denied due process, Defendant cites the Louisiana Supreme Court’s opinion in State v. Melon, 95-2209 (La.9/22/95), 660 So.2d 466, which states that courts are required to accept and consider post-verdict pro se filings from represented defendants. The Melon court also found that courts must accept filings in the pre-verdict context from represented defendants when doing so “will not lead to confusion at trial.” Id.

Citing State v. Outley, 25,429 (La.App.2d Cir.12/3/93), 629 So.2d 1243, writ denied, 94-0410 (La.5/20/94), 637 So.2d 476, the State counters that Defendant was not denied due process when the trial judge vacated the order granting a speedy trial without notice or hearing because the trial judge is not required to entertain a pro se motion when Defendant is represented by counsel and doing so would lead to confusion at trial. The 114State further asserts that Defendant does not have the right to be both represented and representative; and, in addition, Defendant’s attorney was not aware the motion had been filed. State v. Holmes, 06-2988 (La.12/2/08), 5 So.3d 42, cert. denied, — U.S. -, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009).

Motions pending at the commencement of trial are waived once the defendant proceeds to trial without raising the objection that court has failed to rule on the outstanding motions. Holmes, supra. All claims made by Defendant pursuant to La. C. Cr. P. art. 701 are now moot because Defendant has been convicted and sentenced. State v. Mack, 37,174 (La.App.2d Cir.6/27/03), 850 So.2d 1035, writ denied, 03-2122 (La.1/16/04), 864 So.2d 628; State v. Hebert, 29,062 (La.App.2d Cir.1/22/97), 688 So.2d 612. In addition, Defendant’s argument pertaining to the continuances of his trial made in his absence is without merit because he was represented by counsel during each motion.

With regard to Defendant’s pro se motion to quash, the trial judge considered the motion and a contradictory hearing was granted, contingent upon defense counsel’s adoption of the motion. There is no evidence in the record that the hearing was ever held or that Defendant objected to the judge’s failure to hold a hearing. The trial judge was within his discretion to make the hearing on the motion contingent on adoption by defense counsel if he found that considering the pro se motion without defense counsel would lead to confusion at trial. Since Defendant never objected to | isthe trial judge’s failure to hold a hearing, however, the issue is not reviewable by this court.

B. Denial of Right to Bail

Defendant also asserts that he was denied his constitutional right to bail contrary to La. Const, art. I, § 18, and La. C. Cr. P. art. 330, because his bail was revoked without a contradictory hearing and a finding that he posed a substantial flight risk or imminent danger to any person or the community. The State argues that Defendant’s claim that he was erroneously denied bail is moot because it was not raised by supervisory review at the time of the bail ruling. We agree.

The appropriate remedy to contest a bail ruling lies in an application for supervisory review at the time of the ruling. State v. McCloud, 357 So.2d 1132 (La.1978); State v. Grillette, 588 So.2d 1338 (La.App. 2d Cir.1991). Pretrial bail issues become moot after conviction and sentence. Grillette, supra. There is no evidence that Defendant sought supervisory review at the time he was denied bail. Furthermore, because Defendant has been convicted and sentenced, the issue is moot.

C. Constitutional Right to a Speedy Trial

Citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), Defendant claims that he was denied his constitutional right to a speedy trial. Defendant further asserts that, under State v. Harris, 03-0524 (La.App. 4th Cir.9/10/03), 857 So.2d 16, he suffered from “palpable abuse” when his motion to quash was not considered, his trial was continued several times and his motion for speedy trial was vacated. | ^Defendant concludes that he was prejudiced by the delay of his trial because he was held without bond and Van Burén was not there to testify once the trial was held.

The State contends that Defendant’s claim that he was denied his constitutional right to a speedy trial is also moot because the claim was not raised prior to Defendant’s conviction and sentencing. State v. Mack, supra; State v. Yates, 44,391 (La.App.2d Cir.7/1/09), 15 So.3d 1260.

It is well settled that there are two separate and distinct grounds for a defendant’s right to a speedy trial: the statutory right set forth in La. C. Cr. P. art. 701 and the constitutional right embodied in the Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution of 1974; the two are not equivalent. State v. Leonard, 499 So.2d 585 (La.App. 2d Cir.1986); State v. Price, 96-680 (La.App. 5th Cir.2/25/97), 690 So.2d 191. La. C. Cr. P. art. 701 provides that the sole remedy for failure to commence trial within the mandated time period is pretrial release without bail. Once a defendant has been tried and convicted, his claims under Article 701 become moot. State v. Mack, supra; State v. Hebert, supra; State v. Outley, supra.

The constitutional right to speedy trial is fundamental and guaranteed to the accused. La. Const, art. I, § 16; U.S. Const. Amends. 6 & 14; Barker v. Wingo, supra. The right attaches when an individual becomes an accused, either by formal indictment or bill of information or by arrest and actual restraint. State v. Bodley, 394 So.2d 584 (La.1981). Louisiana has adopted the balancing test set forth in Barker v. Wingo, supra, in which the conduct of both the prosecution and the defendant are weighed. The four factors to be considered under the test are: 1) the length of delay; 2) the reason for the delay; 3) the defendant’s assertion of his right; and 4) prejudice to the defendant, such as the possible impairment of the presentation of the accused’s defense. Barker v. Wingo, supra; State v. James, 394 So.2d 1197 (La.1981).

A motion to quash is the proper procedural vehicle for challenging an untimely commencement of trial. La. C. Cr. P. art. 532(7); La. C. Cr. P. art. 581; State v. Morris, 99-3235 (La.2/18/00), 755 So.2d 205. For noncapital felony cases, the State must commence trial within two years from the date of the institution of prosecution. La. C. Cr. P. art. 578(2); State v. McDonald, 30,854 (La.App.2d Cir.8/19/98), 718 So.2d 542; State v. Harris, 29,574 (La.App.2d Cir.5/7/97), 694 So.2d 626.

In the case sub judice, Defendant’s trial commenced well within the two-year statutory limit. Defendant was arrested on September 24, 2007, and trial commenced in the matter on April 15, 2009. Additionally, Defendant has made no showing that he was prejudiced by the delay. Defendant’s constitutional right to a speedy trial was, therefore, not violated.

This assignment of error is without merit.

Assignment of Error Number Three (verbatim): The sentence imposed is excessive.

Defendant argues that his sentence is excessive because Garrett was the initial aggressor and Defendant believed he was defending himself. | ^Defendant also asserts that the prior offense used to adjudicate him as a habitual offender was a conviction for which he had received probation. Defendant further points out that, in the instant case, the State originally offered him a 10-year sentence in exchange for a plea to aggravated battery. Finally, Defendant complains that a 60-year sentence amounts to a life sentence since he is 39 years old; and, thus, the sentence is grossly out of proportion to the seriousness of the offense and is nothing more than a purposeless and needless infliction of pain and suffering.

The State argues that the sentence is supported by the record and is not excessive considering Defendant’s status as a second-felony offender with a prior conviction for a crime of violence.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating factor so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297.

The goal of La. C. Cr. P. art. 894.1 is the articulation of the factual basis for a sentence, not the rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s prior criminal record, the seriousness of the offense, the likelihood of rehabilitation and his personal history, including his age, family ties, marital status, health and employment record. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, writ denied, 04-0597 (La.9/24/04), 882 So.2d 1165; State v. Guz man, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

La. R.S. 14:27(D) provides in pertinent part:

Whoever attempts to commit any crime shall be punished as follows:
(l)(a) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence.

15:529.1 reads in pertinent part:

(a) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

The trial judge stated that he considered many factors prior to sentencing Defendant, including the facts and circumstances of the case, the applicable law and Defendant’s educational background, social history, age and health. The trial judge also considered the impact of Defendant’s crime on his victim and society, a presen-tence investigation report, the sentencing 121factors in La. C. Cr. P. art. 894.1 and the deterrent effect that the sentence will have on Defendant and others in the community-

The trial judge noted that, although Defendant does not have an extensive criminal background, he has shown a propensity for extreme violence. The judge noted that Defendant’s crime “would have been murder but for the immediate response of paramedics, close proximity of the crime scene to LSU Medical Center and well trained competent emergency medical personnel.” The trial judge reasoned that Defendant’s conduct manifested deliberate cruelty toward Garrett because he was trying to flee when Defendant overpowered and attacked him with a dangerous weapon, forcing him to sustain significant permanent injuries. Further, the trial judge pointed out Defendant expressed no remorse for the attack and still maintains that he acted in self-defense.

In mitigation, the trial judge considered that Defendant acted under provocation; however, he concluded that Defendant’s response was disproportionate to Garrett’s initial acts of aggression. He further noted that, once Garrett began to flee, Defendant became the aggressor and his viciousness could not be excused or justified.

The trial judge then sentenced Defendant to 60 years at hard labor to be served without the benefit of probation, parole or suspension of sentence or diminution of sentence for good behavior. The record shows that the trial judge considered the factors set forth in La. C. Cr. P. art. 894.1 and thoroughly articulated a factual basis for the sentence he imposed. Additionally, considering the extremely violent nature of Defendant’s 122crime, the sentence does not shock the sense of justice. Accordingly, we find that the trial judge did not abuse his discretion in sentencing Defendant. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Artis D. Logan, are affirmed.

AFFIRMED.

      . Defendant accepted a plea bargain for the charge and conviction.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee, v. Jemario Q. FREEMAN, Appellant.
    No. 45,127-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.

      Louisiana Appellate Project by W. Jarred Franklin, for Appellant.
    Charles Rex Scott, II, District Attorney, Damon Daniel Kervin, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   MOORE, J.

|, Jemario Freeman was charged by bill of information with armed robbery and attempted second degree murder arising from a robbery and shooting at a liquor store. After a bench trial, Freeman was found guilty on both counts and sentenced to 65 years at hard labor as a second felony offender on the armed robbery, and to a concurrent 45 years at hard labor on the attempted second degree murder. He now appeals his convictions and sentences; we affirm.

Factual Background

On the evening of October 6, 2004, two black men entered the Thrifty Liquor store on Hollywood Avenue at St. Vincent in Shreveport’s Caddo Heights neighborhood. The shorter man, wearing a black hat or hood, pulled a handgun and fired a shot into the ceiling. One of the cashiers, Tracy Harrison, turned around and tried to run to the rear of the store, but the gunman fired a shot that ripped through her buttocks and groin; she immediately fell to the floor, bleeding profusely. The taller robber grabbed money from three of the cash registers; the men then fled toward Woodrow Street. Corporal Mason testified that officers searched the area but could not locate the suspects.

Arriving within minutes, Shreveport police officers and EMT personnel initially thought Ms. Harrison was dead, but they managed to revive her on the stretcher. She was driven to LSU Health Sciences Center and underwent emergency surgery to repair a severed femoral artery; without the operation she would have died. She testified that she spent eight days in the hospital and now walks with a limp.

12Petective McConnell testified that Ms. Harrison apparently was popular with her customers; Shreveport Crime Stoppers was virtually inundated with calls, many of which implicated “Mario” and “Gregory” as the robbers. With this information, Det. McConnell captured Gregory Jenkins, who gave a statement implicating the defendant, Jemario Freeman.

Officers then located and arrested Freeman, who gave a recorded statement on October 9. In his statement he implicated himself and three associates, Gregory Jenkins, Kerry Colbert and Christopher “G Face” Kimble, in planning and executing the robbery and ultimately splitting the money.

Procedural History

The state initially charged Freeman, Colbert, Jenkins and Kimble with one count of armed robbery. The other three conspirators pled guilty and received sentences of 10 to 15 years with no multiple billing. The state then filed an amended bill charging Freeman with armed robbery and attempted second degree murder. Prior to trial in January 2007, the state rejected Freeman’s pro se offer to plead guilty in exchange for a 15-year sentence, and Freeman elected a bench trial.

The shooting victim, Tracy Harrison, and three other eyewitnesses testified about the robbery and shooting; their accounts contained slight discrepancies as to minor details. Ms. Harrison described two men entering the store, the shorter of whom fired a shot into the ceiling and told her, “B* * * ⅜, I got you now — you can’t leave.” She tried to run because she recognized he was holding a large, military-style 9 mm handgun. She had |3no recollection of events after she was hit until EMTs revived her. Customer Joella West recalled that three men entered the store, firing a total of three shots; one of the men shouted, “Give me the money.” Customer Randy Mayhorn recalled two men entering, the shorter of whom brandished a gun, fired five to eight shots and said, “Give me the money — I want all of it.” Store employee Benjamin Donathan testified that he was in the rear of the store and heard about six gunshots; one of the robbers shouted, “I’m gonna kill every ⅜ ⅜ ⅜ ⅜ ⅜ ⅜ ⅝

Store manager Anthony Brewster, who was not present when the robbery occurred, testified that a total of $1,389 was taken from three cash registers that evening. Sergeant Danny Duddy of the CSI unit testified that no fingerprints were taken at the scene.

Freeman’s associate, Kerry Colbert, testified that he was now serving 15 years for this crime. He testified that Freeman counted out the proceeds of the robbery, giving Colbert $250, and then burned his dark-colored jacket. Colbert claimed not to recall, however, that anyone got shot, and maintained that most of his statement to the police was false as officers pressured him to talk.

Detective Rod Demery testified that he interviewed all four suspects, including Freeman on October 9, some five days after the robbery. At a “free and voluntary” hearing held during trial, Det. Dem-ery confirmed that he gave Freeman his Miranda warnings, that Freeman signed a waiver (which was introduced in evidence) and did not appear to be under the influence of drugs or alcohol, that he (Det. Demery) exerted no threats or |4coercion, and that the statement appeared to be free and voluntary. An audiotape of the statement was played in open court. In it, Freeman often mumbled and digressed, but he clearly admitted that he and three friends, Kimble, Colbert and Jenkins, planned to hit a “lick” on Thrifty Liquor: Colbert supplied two handguns, Freeman and Colbert walked into the store, Kimble stood watch outside and Jenkins drove the car. Freeman admitted firing one shot into the ceiling, one into a cigarette display and a final shot behind the counter where the cashiers were standing; he insisted he did not mean to shoot the cashier. He also admitted ordering the cashiers to give him the money, and getting about $800, which the four men divided. He maintained that he fired the gun only to get the money and get out, and he felt bad that somebody was hit.

The court found Freeman guilty as charged on both counts. The state then charged him as a second felony offender, based on a prior conviction for simple burglary in May 2004. On the armed robbery charge, the court adjudicated him a second felony offender and sentenced him to 65 years at hard labor without benefits. On the attempted second degree murder charge, the court sentenced him to a concurrent 45 years at hard labor without benefits. The court denied motions for new trial, post verdict judgment of acquittal or modification of judgment, and reconsideration of sentence. This appeal followed.

Discussion: Sufficiency of the Evidence

By his first assignment of error, Freeman urges the evidence was insufficient to prove beyond a reasonable doubt his guilt of either charge. | J-Ie contends the state failed to prove a specific intent to kill Tracy Harrison, an essential element of attempted second degree murder. State v. Gatti, 39,833 (La.App. 2 Cir. 10/13/05), 914 So.2d 74. In support, he cites his own statement to Det. Demery that he never intended to shoot anyone, as well as the testimony of the victim and the two customers, Mayhorn and West, none of whom heard him say he intended to kill anyone. He submits that the one store employee, Donathan, who heard the gunman threaten to kill everybody was far from the scene and did not see the shooting. He also argues that neither of the two bullets recovered from the scene was aimed in the victim’s direction, and the liquor display between himself and the victim surely obstructed his view, negating any specific intent to hit her. Finally, he submits that the testimony of his former codefendant, Kerry Colbert, was equivocal and unreliable.

As to the armed robbery count, Freeman contends that the evidence established only that after the incident, some $1,389 was missing from the cash registers; the only witness to place him with the stolen money was Colbert, who again was not worthy of belief.

The state responds that Freeman’s own statement to Det. Demery established that he planned a robbery, armed himself, entered the store and fired several shots, including one directly at Tracy Harrison, and later divided the proceeds with his codefendants. The state urges that the specific intent to kill may be inferred from the act of aiming and firing a weapon at another person. State v. Burns, 1998-0602 (La.App. 1 Cir. 2/19/99), 734 So.2d 693, writ denied, 99-0829 (La.9/24/99), 747 So.2d 1114. The state suggests that just because he fired through a liquor display did not alter his intent to hit a cashier. The state concludes that the evidence was sufficient to support both convictions.

The standard of appellate review for sufficiency of the evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La.4/1/05), 898 So.2d 1219.

Specific criminal intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. |7R.S. 14:10(1). Specific intent need not be proven as a fact, but may be inferred from the defendant’s actions and the circumstances of the transaction. State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1, and citations therein. Specific intent to kill may be inferred from a defendant’s act of deliberately pointing a gun and firing it at a person. State v. Brown, supra; State v. Hobley, 98-2460 (La.12/15/99), 752 So.2d 771.

Second degree murder is the killing of a human being when, inter alia, the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1 A(l). Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. La. R.S. 14:27 A. The gravamen of the crime of attempted murder, whether first or second degree, is the specific intent to kill and an overt act tending toward the accomplishment of that goal. State v. Jarman, 445 So.2d 1184 (La.1984); State v. Gatti, supra.

The district court obviously rejected the theory that Freeman merely fired off random shots, one of which accidentally struck the victim. Freeman admitted planning a robbery, arming himself before entering the store, and firing the weapon several times to expedite the crime. One witness heard him threaten to kill everybody, and indeed Freeman pointed the weapon and fired at a fleeing victim. Even though the line of fire may have been partly obstructed by the liquor display, these were facts from |8which a rational factfinder could infer a specific intent to kill. State v. Brown, supra; State v. Gatti, supra. This evidence proves beyond a reasonable doubt the contested element of specific intent to kill.

Armed robbery is defined as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64; State v. Green, 38,335 (La.App. 2 Cir. 5/12/04), 873 So.2d 889, writ denied, 2004-1795 (La.11/24/04), 888 So.2d 227.

Freeman admitted to Det. Demery that he entered the store, brandished a weapon and demanded money, and exited with about $800 from the registers. All witnesses agreed that Freeman demanded money while pointing a gun and firing several shots, including one that struck Tracy Harrison. This evidence proves beyond a reasonable doubt the contested elements of force or intimidation and the use of a dangerous weapon.

This assignment of error lacks merit.

Admission of Statement

By his second assignment of error, Freeman urges the court erred in admitting the audiotaped confession because it was not free and voluntary. In support he cites Det. Demery’s testimony that marijuana and other drugs were found in the house where Freeman was arrested; hence it was not reasonable for him to assume Freeman was not intoxicated or under the influence of narcotics. At the very least, he suggests, officers should have |¡)tested him for illegal substances. He also contends that Det. Demery did not exclude the possibility that other officers who came into contact with him earlier did not threaten him.

The state responds that the argument is “mere speculation” unsupported by any record evidence. It submits that, on the record, Det. Demery advised Freeman of his rights, Freeman admitted he understood them, and did not appear to be impaired or unduly influenced.

Before the state may introduce a confession into evidence, it must demonstrate that the statement was free and voluntary and not the product of fear, duress, intimidation, menace, threats, inducements or promises. La. R.S. 15:451; La. C. Cr. P. art. 703 D; State v. Blank, 2004-0204 (La.4/11/07), 955 So.2d 90. If a statement is the product of custodial interrogation, the state additionally must show that the person was advised before questioning of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Id. A trial court’s finding as to the free and voluntary nature of a statement carries great weight and will not be disturbed unless not supported by the evidence. Id.; State v. Marshall, 44,121 (La.App. 2 Cir. 4/8/09), 6 So.3d 1051, writ denied, 2009-1113 (La.1/22/10), 25 So.3d 130.

Detective Demery testified that he advised Freeman of his Miranda rights, that Freeman understood and signed a Miranda waiver, and that he (Demery) exercised no threats or coercion; the audiotape fully supports each of these points. He further testified that based on his observation of Freeman, he did not feel a drug test was necessary; again, the audiotape |inshows that despite the mumbling and evasiveness, Freeman did not sound drunk or high. Admittedly, former codefendant Kerry Colbert testified that he was “under pressure” to make a statement, but even if the district court considered this worthy of belief, there was no showing that any such pressure was applied to Freeman.

The court’s finding of a free and voluntary statement is supported by the evidence. This assignment lacks merit.

Excessive Sentence

By his third assignment of error, Freeman urges the court erred in imposing excessive sentences. He contends that at the sentencing for armed robbery, the court noted only his youth but found that this was offset by his second felony status and the fact that the victim nearly died. On the attempted second degree murder, he contends the court failed to articulate any factual bases as required by La. C. Cr. P. art. 894.1. He submits that the concurrent sentences are tantamount to a life sentence, and asks this court to vacate and remand for resentencing.

The state responds that the court substantially complied with the sentencing guidelines by noting Freeman’s age, the gravity of the offense, and the fact that he had “graduated” from a nonviolent felony of simple burglary to armed robbery. The state concludes that the concurrent sentences do not shock the sense of justice and should be affirmed.

Appellate review of sentences for exces-siveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or 1nmitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Marshall, 94-0461 (La.9/5/95), 660 So.2d 819; State v. Taylor, 42,627 (La.App. 2 Cir. 10/24/07), 968 So.2d 1135, writ denied, 2008-0424 (La.11/10/08), 996 So.2d 1063. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lobato, 603 So.2d 739 (La.1992); State v. Taylor, supra. No sentencing factor is accorded greater weight by statute than any other sentencing factor. State v. Taves, 2003-0518 (La.12/3/03), 861 So.2d 144; State v. Freeman, 44,419 (La.App. 2 Cir. 6/24/09), 13 So.3d 1241.

The second prong is constitutional ex-cessiveness. A sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). 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 reasonable contribution to acceptable penal goals. State v. Guzman, 99-1528 (La.5/16/00), 769 So.2d 1158. The sentencing court has wide discretion in imposing a sentence within the statutory limits, and such a sentence should not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7.

While the sentencing colloquy was perhaps not a model of Art. 894.1 compliance, the court aptly noted the lack of provocation for the shooting | ^and the nearly fatal wounds received by the victim. The court also fittingly observed that Freeman progressed from a nonviolent to a violent felony. Aside from his youth- — 18 years old at the time of this offense — Freeman does not show that any other mitigating factors would apply. Given the wanton violence and manifest cruelty of these offenses, we do not think there was much more to be said. The district court provided an adequate factual basis for sentence.

As a second felony offender found guilty of armed robbery, Freeman faced a sentencing range of 49½ to 198 years at hard labor without benefit of parole, probation or suspension of sentence. La. R.S. 14:64 A; 15:529.1 A(1)(a); State v. Thomas, 42,322 (La.App. 2 Cir. 8/15/07), 962 So.2d 1119, writ denied, 2008-0316 (La.10/24/08), 992 So.2d 1031. Convicted of attempted second degree murder, Freeman faced a range of 10 to 50 years at hard labor without benefits. La. R.S. 14:30.1 B, 14:27 D(l)(a); State v. Newton, 43,079 (La.App. 2 Cir. 3/19/08), 978 So.2d 1196. The sentences of 65 and 45 years, concurrent, are indeed severe but not disproportionate to the gravity of these senseless, violent offenses. We perceive no abuse of the district court’s wide discretion.

This assignment of error lacks merit.

Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, Jemario Freeman’s convictions and sentences are affirmed.

AFFIRMED.