author: STEPHENS, J.

text:
    STATE of Louisiana, Appellee v. Troy Donell GAINES, Appellant
    No. 52,536-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 27, 2019
    LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, Counsel for Appellant
    ROBERT STEPHEN TEW, District Attorney, SHIRLEY M. WILSON DAVIS, Assistant District Attorney, Counsel for Appellee
    Before MOORE, GARRETT, and STEPHENS, JJ.
   STEPHENS, J.

This criminal appeal by Troy Donell Gaines arises from the Fourth Judicial District Court, Ouachita Parish, State of Louisiana. Following a jury trial, Gaines was convicted of manslaughter, in violation of La. R.S. 14:31, and subsequently adjudicated a second-felony habitual offender and sentenced to 50 years at hard labor without the benefit of probation, parole or suspension of sentence. Gaines filed a motion to reconsider sentence, which was denied by the trial court. On appeal, Gaines challenges the imposed habitual offender sentence, claiming it is excessive. For the following reasons, Gaines's sentence, as amended, is affirmed.

FACTS

On December 6, 2011, Chandrikia Green was found shot to death and barricaded in the closet of the apartment she shared with Gaines at Glenwood Townhomes in West Monroe, Louisiana. Gaines was subsequently arrested and charged by bill of indictment with second degree murder, in violation of La. R.S. 14:30.1. Following a jury trial, on March 27, 2017, Gaines was found guilty of the responsive verdict of manslaughter and subsequently sentenced to the maximum sentence of 40 years at hard labor. Gaines's conviction and sentence were affirmed in State v. Gaines , 51,985 (La. App. 2 Cir. 4/11/18), 247 So.3d 1061. On June 6, 2017, the state filed a habitual offender bill of information based upon Gaines's manslaughter conviction and a prior simple burglary conviction on April 21, 2005, for which Gaines received a sentence of five years at hard labor, suspended, and five years' probation.

The habitual offender adjudication hearing began on June 29, 2018. The state presented testimony from Eddie Keyes, one of the Probation and Parole officers who had supervised Gaines in the past. Officer Keyes identified Gaines in open court and testified that Gaines was placed on probation for a period of five years on April 21, 2005, in Madison Parish docket number 106294, after receiving a five-year, hard labor sentence for simple burglary that was suspended. He further testified that Probation and Parole issued a warrant for Gaines's arrest on August 24, 2009, for absconding supervision. The warrant as well as the bill of information for the prior simple burglary conviction referenced by Ofc. Keyes were offered by the state and admitted into evidence. A certified copy of the court minutes of Gaines's guilty plea to simple burglary was also offered and admitted. The state had requested a Boykin transcript for Gaines's simple burglary plea, but it was not ready at the time of the hearing, so the trial court left the record open to allow the state to introduce additional information, and the matter was reset.

On July 25, 2018, the state resumed the habitual offender hearing and the Boykin transcript of the simple burglary charge was offered and admitted into evidence. The trial court subsequently adjudicated Gaines a second-felony offender, vacated the previous 40-year sentence for manslaughter, and sentenced Gaines as a second-felony offender to 50 years at hard labor without the benefit of parole, probation or suspension of sentence.

In a motion to reconsider sentence, Gaines asserted the trial court did not adequately consider that the jury's verdict was based upon evidence presented at trial that Chandrikia was having an affair and that provocation is a mitigating factor for sentencing. The trial court denied the motion to reconsider sentence without reasons. This appeal by Gaines ensued.

DISCUSSION

Gaines's sole assignment of error is that the sentence imposed on him as a second-felony offender is cruel and excessive. Specifically, Gaines argues that the trial court failed to consider mitigating factors during sentencing and, thus, the case should be remanded for resentencing. We disagree.

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with art. 894.1. State v. Lanclos , 419 So.2d 475 (La. 1982) ; State v. DeBerry , 50,501 (La. App. 2 Cir. 4/13/16), 194 So.3d 657, writ denied , 2016-0959 (La. 5/1/17), 219 So.3d 332.

Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith , 2001-2574 (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) ; State v. DeBerry , supra . A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 2001-0467 (La. 1/15/02), 805 So.2d 166 ; State v. DeBerry , supra .

In considering the nature of the offense, both the trial court and reviewing court may assess whether the crime for which the defendant has been convicted adequately describes his conduct when the conviction is for a lesser included responsive offense to the crime charged. State v. Lewis , 2009-1404 (La. 10/22/10), 48 So.3d 1073. The fact that the evidence might have supported a verdict of second degree murder is an appropriate sentencing consideration in a case where the defendant has been convicted of the lesser offense of manslaughter. State v. White , 48,788 (La. App. 2 Cir. 2/26/14), 136 So.3d 280, writ denied , 2014-0603 (La. 10/24/14), 151 So.3d 599.

The trial court is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of its discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Allen , 49,642 (La. App. 2 Cir. 2/26/15), 162 So.3d 519, writ denied , 2015-0608 (La. 1/25/16), 184 So.3d 1289.

The sentence mandated for a second-felony offender under the version of La. R.S. 15:529.1(A)(1) that was in effect at all times between Chandrikia Green's death and the filing of the habitual offender bill of information was:

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 offense of manslaughter is punishable by imprisonment at hard labor for not more than 40 years. La. R.S. 14:31.

Here, the trial court did not abuse its discretion in sentencing Gaines to 50 years at hard labor. The sentencing range within which the trial court was required to sentence Gaines as a second-felony offender was 20-80 years. Notably, this court has previously held Gaines's 40-year sentence on the manslaughter conviction was not excessive. See State v. Gaines , supra . The record in this case clearly provides an adequate factual basis for the trial court's decision to vacate the previously imposed 40-year sentence and resentence Gaines as a second-felony offender to the midrange sentence of 50 years at hard labor.

When sentencing Gaines on the manslaughter conviction, the trial court noted its review of the PSI report, Gaines's criminal history, and Gaines's statement to the court contained in the PSI in which he expressed remorse. The trial court further stated that Gaines's sentence was primarily based on the facts presented at trial, including evidence regarding Gaines's violent acts against the victim, and the nature of the offense. The trial court stated it believed the evidence presented was sufficient to convict Gaines of second degree murder, as there was no real evidence of provocation. In imposing the maximum sentence for manslaughter, the trial court pointed out that Gaines had benefited from the jury's decision to find him guilty of the lesser offense of manslaughter.

In affirming Gaines's sentence on the manslaughter, this court in State v. Gaines , 247 So.3d at 1066, made the following observation regarding the PSI in this case:

The PSI report provides additional information about defendant's criminal history and the increasing volatility of his relationship with the victim. At the time of the instant offense, defendant was on probation for a simple burglary conviction. Also, on three occasions in 2011, the police were called to the Glenwood Townhomes in response to domestic disturbances between defendant and the victim. As a result of an incident on November 3, 2011, approximately one month before the murder, defendant was arrested for domestic abuse battery and ordered to have no contact with the victim. The reports include allegations that defendant struck the victim in the face, took her phone to prevent her from calling the police, chased her, destroyed property in their apartment, threatened her with a knife, and held a gun to her head. Further, there is information in the police report that before the shooting, defendant was likely stalking the victim by following her to her sister's house and work and watching her from an abandoned apartment in their complex. The victim's fears of defendant were real, and tragically, she was not able to get away from him before he ended her life.

During Gaines's habitual offender sentencing, the trial court explained that the state had "ample reason" for seeking an enhanced penalty against Gaines based on the fact that "he stuck her in that closet and pushed a piece of furniture to close the closet so it wouldn't be discovered ... the fact that he beat her in the past and destroyed her apartment." Notably, the trial court did not specifically articulate which factors under La. C. Cr. P. art. 894.1 it regarded in imposing Gaines's sentence. However, considering the trial court also presided over Gaines's manslaughter trial and sentencing, it is reasonable to conclude the same factors regarded in that initial sentencing were also taken into consideration by the trial court in Gaines's subsequent sentencing as a second-felony offender.

Gaines asserts that the trial court failed to consider the mitigating factor of provocation. The record is clear, though, that during both Gaines's manslaughter and habitual offender sentencings, the trial court indicated it had considered the argument of provocation and that, based on the evidence presented at trial, it rejected that argument. Furthermore, this court has already held that the trial court properly concluded that Gaines's conduct constituted second degree murder and that the trial court's imposition of a 40-year sentence, the maximum sentence for manslaughter, was justified. The trial court's view of the evidence presented at trial and Gaines's conviction for the lesser offense of manslaughter were proper considerations for sentencing. Furthermore, the PSI, which the trial court stated it had reviewed, notably revealed the violence and harassment Gaines had inflicted on Chandrikia prior to shooting her, barricading her in a closet, and leaving her to die. Accordingly, we find there is clearly an adequate factual basis for the sentence imposed.

Likewise, considering that Gaines has deprived his children of their mother and Chandrikia Green of her life at the age of 21, coupled with the heinous facts of this case, the imposed 50-year sentence is not constitutionally excessive. Though Gaines's sentence likely amounts to a life sentence due to his age, the sentence imposed does not shock the sense of justice, nor is it grossly disproportionate to the severity of the offense. This assignment of error is without merit.

Error Patent

Gaines's 50-year sentence was ordered by the trial court to be served without the benefit of probation, parole or suspension of sentence. Neither La. R.S. 15:529.1, nor R.S. 14:31, contains any restrictions on parole eligibility. Therefore, the inclusion of the restriction on parole renders Gaines's sentence illegal. Pursuant to La. C. Cr. P. art. 882(A), we amend Gaines's sentence to delete the denial of parole eligibility.

CONCLUSION

For the foregoing reasons, Troy Donnell Gaines's sentence is amended to delete the denial of parole eligibility and, as amended, is affirmed.

AFFIRMED AS AMENDED.

      The record indicates appellant's true name is Troy Gaines, Jr.

      The record of Gaines's appeal of his manslaughter conviction and sentence was attached as an exhibit to this appeal of his habitual offender sentence.

      In accordance with the version of La. R.S. 15:529.1(C) in effect at the time, the state presented evidence that the 10-year cleansing period had not elapsed by establishing Gaines was convicted in 2005, sentenced to a five-year probationary term, a warrant for his arrest was issued in 2009 for probation violation, and the subsequent offense occurred in 2011, at which time Gaines's probation was still active.

      Gaines also has a prior arrest from 1999, when he was 17 years old, for four counts of attempted first degree murder and aggravated arson. Although these charges were ultimately dismissed, Gaines admitted to investigators that he set the fire at the house of a man who he thought was "always picking on him."


source: Caselaw Access Project

author: WILLIAMS, C.J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. James Ondrey HARRIS, Appellant
    No. 52,541-KA
    Court of Appeal of Louisiana, Second Circuit.
    February 27, 2019
    LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III Counsel for Appellant
    JAMES ONDREY HARRIS Pro Se
    ROBERT S. TEW District Attorney Counsel for Appellee
    GEARY S. AYCOCK Assistant District Attorney
    Before WILLIAMS, GARRETT, and McCALLUM, JJ.
   WILLIAMS, C.J.

The defendant, James Ondrey Harris, was charged by bill of information with attempted second degree murder, a violation of La. R.S. 14:27 and 14:30.1. After a jury trial, the defendant was found guilty as charged. Defendant's motions for new trial and for post-verdict judgment of acquittal were denied. The trial court sentenced defendant to serve 50 years at hard labor, without the benefit of parole, probation or suspension of sentence. Defendant appeals his conviction and sentence. For the following reasons, we affirm.

FACTS

The record shows that on September 28, 2015, Laconna Lashay Smith was transported via ambulance from her home in Monroe, Louisiana, to St. Francis Medical Center after being severely beaten and choked by the defendant. Smith was intubated and airlifted that same day to University Health Hospital in Shreveport, where she was admitted into the ICU. Days later, when Smith was able to speak, she confirmed to police that defendant was her assailant. Defendant was arrested and charged with the attempted second degree murder of Smith.

After a trial, defendant was found guilty as charged by a unanimous jury. His pro se motions for new trial and motion for post-verdict judgment of acquittal were denied following a hearing. Defendant was sentenced to 50 years at hard labor to be served without the benefit of parole, probation or suspension of sentence. This appeal followed.

DISCUSSION

The defendant contends the evidence is insufficient to support his conviction for attempted second degree murder. Defendant asserts that the state failed to prove that he possessed the specific intent to kill Smith.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717, writ denied , 2016-1479 (La. 5/19/17), 221 So.3d 78. This standard, now legislatively embodied in La. C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 2005-0477 (La. 2/22/06), 922 So.2d 517.

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 ; State v. Mitchell , 50,188 (La. App. 2 Cir. 11/18/15), 181 So.3d 800, writ denied , 2015-2356 (La. 1/9/17), 214 So.3d 863. A reviewing court affords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Mitchell, supra .

To sustain a conviction for attempted second degree murder, the state must prove that the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim's death. La. R.S. 14:27 ; 14:30.1. Although the statute for the completed crime of second degree murder allows for a conviction based on "specific intent to kill or to inflict great bodily harm," La. R.S. 14:30.1, attempted second degree murder requires specific intent to kill. State v. Bishop , 2001-2548 (La. 1/14/03), 835 So.2d 434. Proof of specific intent to inflict great bodily harm is insufficient for a conviction for attempted second degree murder. State v. Lewis , 51,672 (La. App. 2 Cir. 11/15/17), 245 So.3d 233 ;

State v. Patterson , 50,305 (La. App. 2 Cir. 11/18/15), 184 So.3d 739, writ denied , 2015-2333 (La. 3/24/16), 190 So.3d 1190.

Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Murray , 49,418 (La. App. 2 Cir. 1/14/15), 161 So.3d 918, writ denied , 2015-0379 (La. 4/8/16), 191 So.3d 582. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Bishop , supra. Specific intent to kill may also be inferred from the extent and severity of the victim's injuries. See State v. Harrell , 2001-841 (La. App. 5 Cir. 2/26/02), 811 So.2d 1015. The determination of whether the requisite intent is present is a question for the trier of fact. State v. Lewis, supra .

In the present case, Monroe Police Detective Jeremy Sturdivant testified as follows: when he arrived at the crime scene, Smith had already been transported via ambulance to the hospital; he and Sergeant Ferguson executed a search warrant at Smith's home and discovered blood stains on the floor along with hand towels, washrags, and an undershirt that appeared to have been used to wipe up some of the blood; he interviewed Smith at University Health Hospital, where she was receiving medical care; Smith informed him that defendant was the person who had beaten her on September 28, 2015; and defendant was apprehended approximately two months after the attack.

Monroe Police Detective Kris Fulmer testified as follows: he visited Smith at St. Francis Medical Center in Monroe on the day of the attack with Sgt. Ferguson, who took a photograph showing Smith with a neck brace and a breathing tube ; her eyes, nose and lips were very swollen and bloody and Smith was unable to speak to police at that time; at the hospital he spoke with Smith's friend, Anastasia Hester, who told him that she had received a text message from defendant while sitting with Smith; he took a photo of the text from her phone.

Anastasia Hester testified as follows: she went to Smith's house on September 28, 2015, because Smith felt "scared" and "uncomfortable" about defendant's planned visit; some time after defendant arrived, she walked to a nearby library; Smith sounded "worried" when they spoke on the phone as she walked back to the house; when she returned to the house, the doors were locked; Hester tried calling Smith for approximately an hour while she waited outside the house, but Smith never answered; while she was standing in front of Smith's house she saw Bokeem Marsalis, who stopped his car; she told Marsalis that she was locked out and needed her bag from inside; Marsalis went around to the back of the residence and entered Smith's house through a window; Hester then saw defendant come out of Smith's front door without his shirt and holding something in his pants; Hester went inside and saw that Smith's face was swollen and bloody and she was having difficulty breathing; shortly after Smith arrived at the hospital, Hester received a text message from defendant sent on Smith's cell phone; defendant wrote that he wanted "to let Shay [Smith] and bokeem now dat we go keep da police out of our bizness" and that he would settle things the "street way," which was a reference to fighting.

Janie Johnson testified as follows: she has been Smith's friend for many years; Smith and Harris dated for approximately seven months before Smith ended the relationship; she received a text message from defendant one week before Smith was beaten; in the text defendant referred to Smith and admitted that he "beat her ass in Tallulah" because he thought she was cheating; she showed the text message to police after Smith was attacked by defendant; Smith had previously forwarded to her two text messages from defendant; in one of the texts, defendant wrote "Come to me and I will spare yo mom. I promise dat much. Show me u love yo Moma and wud sacrifice yo life for hers. Come to me now and she is safe or u can choose not to and both of y'all die anyway. I'll kill her and someone else will get u at her funeral[. Accept] yo death if wat u believe is true and come to me now[.]"

Latosha Smith Bonner, Smith's older sister, testified that she stayed with her sister every night until she was released from the hospital. Bonner explained that Smith was in the ICU for eight days and then in a regular hospital room for an additional three or four days. Bonner testified that Smith was not in a condition to talk for the first five or six days after she arrived at the hospital.

Laconna Smith testified as follows: she dated defendant for some months in 2015, but ended the relationship in August after he physically assaulted her; defendant did not accept that the relationship was over, and continued contacting her by phone and coming to her house; on September 28, 2015, she said defendant could visit her after Hester agreed to be present; after defendant arrived, they spoke for a few minutes and then, to Smith's surprise, Hester said she was leaving; Smith called Hester after she left, and while she was on the phone, defendant locked the door; then he grabbed Smith's phone and warned "you thought what happened in Tallulah was something...you ain't seen nothing yet"; defendant then began choking her and she was unable to scream; he punched her in the face more than ten times; he also grabbed her by the hair and repeatedly slammed her face against the floor; she pleaded with defendant to stop and warned him that she thought he was going to kill her, but he responded that he didn't care; the attack ended when Marsalis came into Smith's house and defendant ran out; the beating lasted at least 30 minutes and at some point she lost consciousness; some time after she ended their relationship, but before the date of this attack, she had received a text message from defendant in which he wrote that he wanted to have sex "before I kill u cuz u called me a perv" and that he was excited by the thought of having sex "while I put a bullet in yo head and watch u bleed[.]"

Defendant testified that he met Smith in April of 2015, but he soon began dating another woman and Smith ended their relationship in early July of 2015. Defendant admitted that he and Smith were in a physical altercation in August while they were staying in Tallulah. Defendant stated that on September 28, 2015, Smith asked him to come to her house to talk. He testified that he arrived at Smith's house around 8:45 a.m., but claimed that he never saw Hester at the house. Defendant stated that he became angry while he was there because Marsalis entered the house and after he left defendant and Smith began arguing. Defendant admitted to punching Smith in the face several times, but claimed that he stopped when he saw that her eye was injured. Defendant alleged that Smith then began fighting him and that he choked her until she stopped resisting. Defendant testified that he and Smith then talked for a while before he helped her change her bloody clothes. Defendant stated that Marsalis came back with another man and after the men saw Smith they told him to leave and he did. Defendant denied sending the text messages identified by Johnson and Smith. Defendant claimed that he had no intention of killing Smith.

The evidence adduced at trial showed that defendant's brutal attack on Smith involved punching her in the face numerous times, choking her, and repeatedly hitting her head against the floor. Smith pleaded with defendant not to kill her and lost consciousness as a result of being choked. Instead of seeking medical care for Smith, defendant expressed no concern for her restricted breathing and told her that he did not care if she died. The testimony shows that he continued to beat her and only stopped his savage attack when interrupted by another person's entry into Smith's house. The victim's injuries required her to be intubated, airlifted from Monroe to University Health Hospital, and treated in the ICU for more than a week. The severity of her injuries, coupled with defendant's life-threatening text messages to Smith prior to the attack, demonstrated his specific intent to kill Smith. Thus, the record supports the jury's determination that defendant was guilty of attempted second degree murder. Accordingly, this assignment of error lacks merit.

Sentencing

The defendant contends the trial court erred in imposing an excessive sentence. Defendant argues that the goal of punishment can be accomplished with a less severe sentence.

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith , 433 So.2d 688 (La. 1983) ; State v. Lathan , 41,855 (La. App. 2 Cir. 2/28/07), 953 So.2d 890, writ denied , 2007-0805 (La. 3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with the article. State v. Lanclos , 419 So.2d 475 (La. 1982) ; State v. Swayzer , 43,350 (La. App. 2 Cir. 8/13/08), 989 So.2d 267.

The important elements which should be considered during sentencing are the defendant's personal history (age, family ties, marital status, health, and employment), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones , 398 So.2d 1049 (La. 1981) ; State v. Ates , 43,327 (La. App. 2 Cir. 8/13/08), 989 So.2d 259, writ denied , 2008-2341 (La. 5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker , 41,547 (La. App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied , 2007-0144 (La. 9/28/07), 964 So.2d 351.

Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 2001-0467 (La. 1/15/02), 805 So.2d 166 ; State v. Robinson , 40,983 (La. App. 2 Cir. 1/24/07), 948 So.2d 379. The court is given wide discretion in the imposition of sentences within the statutory limits. Such a sentence will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7 ;

State v. Cotten , 50,747 (La. App. 2 Cir. 8/10/16), 201 So.3d 299.

Read together, La. R.S. 14:30.1 and 14:27 provide that attempted second degree murder is punishable by a term of imprisonment at hard labor of not less than 10 years nor more than 50 years, without the benefit of parole, probation, or suspension of sentence.

At the sentencing hearing conducted in this case, the trial court noted its review of the applicable sentencing factors provided in Article 894.1 and defendant's presentence investigation (PSI) report. The trial court found that there was an undue risk that defendant would reoffend if not imprisoned, that he was in need of correctional treatment and that a lesser sentence would deprecate the seriousness of defendant's crime. The trial court discussed defendant's education, work and family history, noting that although defendant has four adult children, he has never taken care of them financially or in any other manner. The trial court also considered statements provided by Smith and made by defendant's sister on his behalf. Although defendant's sister and his trial attorney claimed that defendant has changed since his most recent incarceration, the trial court found that his extensive criminal history, including five prior felony convictions, warranted imposition of the 50-year maximum sentence.

The record evidences the trial court's compliance with Article 894.1 and supports the finding that defendant was in need of correctional treatment and was likely to reoffend. Although the trial court noted that defendant had obtained a GED and had been employed, his status as a sixth felony offender was a significant aggravating factor supporting the trial court's imposition of the maximum sentence.

The record further reveals that the sentence is not constitutionally excessive. Given the fact of the severe and prolonged beating that defendant inflicted on Smith, as well as defendant's history of committing violent crimes, the imposition of the maximum term of imprisonment in this case is not disproportionate to the severity of the crime and does not shock the sense of justice. Thus, the trial court did not abuse its discretion in sentencing this defendant. Accordingly, this assignment of error lacks merit.

Defendant's Supplemental Brief

The defendant filed an untimely supplemental pro se brief. Defendant alleges that the state failed to establish a proper foundation to show that he was the person who sent the text messages to Hester, Johnson and Smith.

Authentication or identification of evidence is required for that evidence to be admissible at trial. La. C.E. art. 901. Authentication is a condition precedent to admissibility that is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. State v. Lee , 2001-2082 (La. App. 4 Cir. 8/21/02), 826 So.2d 616, writ denied , 2002-2549 (La. 9/5/03), 852 So.2d 1019. Generally, the standard applied by state and federal courts with respect to the authentication of a document is whether there is sufficient evidence from which a reasonable juror could find that the proposed evidence is what the proponent claims it to be. State v. Haydin , 17-234 (La. App. 5 Cir. 12/20/17), 235 So.3d 1293, writ denied , 2018-0114 (La. 10/29/18), 254 So.3d 701.

In this case, the state introduced four text messages at trial. Hester testified that while she was at the hospital with Smith, she received a text message from what she believed was Smith's cell phone number. As noted above, the text advised Hester to tell the victim not to involve the police. Hester identified a photograph taken by police of her phone with the text on the screen, which was cracked. The photograph of the text was admitted into evidence without objection.

In her testimony, Johnson identified a copy of a text message she had received from defendant in which he admitted beating Smith in Tallulah. Johnson testified that she knew the text had come from defendant because she had spoken with him on the phone before and recognized his phone number. Again, the text message was admitted into evidence without objection.

Johnson also identified copies of text messages forwarded to her by Smith that had been received from defendant. The texts contained threats of violence, sexual assault and murder. Johnson explained that Smith sent her the texts because she was "scared for her safety and her mom's." The defense objected to admission of the texts arguing that the state had failed to show that the messages had been sent to Smith from defendant's phone. Johnson testified she knew Smith's phone number and that each time defendant sent a text to Smith, she sent it to Johnson. The objection was overruled.

In addition, Smith testified at trial that she had forwarded the two text messages from defendant to Johnson. Smith stated that she knew defendant's phone number at the time and that he had sent her the texts. Smith testified that she then forwarded the texts so that if anything happened to her, someone would know that defendant was involved.

Based upon this record, the threatening text messages sent by defendant to Smith and then forwarded to Johnson were properly authenticated by the witness testimony. Smith provided defendant's phone number at trial and testified that she had received the threatening texts from his cell phone number. Johnson testified that those texts were then forwarded from Smith's phone number, which was known to Johnson. Thus, the jury could reasonably find that defendant had sent the text messages. Accordingly, the assignment of error lacks merit.

CONCLUSION

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

AFFIRMED.


author: COX, J.

text:
    Archie JOHNSON, Plaintiff-Appellant v. Dr. Bai Raj BHANDARI, Defendant-Appellee
    No. 52,545-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 27, 2019 Rehearing Denied April 4, 2019
    ARCHIE JOHNSON, Pro Se
    McNEW, KING & LANDRY, LLP, Monroe, By: Brady D. King, II, April M. Hammett, Counsel for Appellee
    Before MOORE, COX, and McCALLUM, JJ.
   COX, J.

Archie Johnson filed a request for review by a medical review panel, alleging medical malpractice and delayed treatment by Dr. Raj Bhandari. The medical review panel did not find in favor of Mr. Johnson. Mr. Johnson then filed his medical malpractice suit against Dr. Bhandari in the Fourth Judicial District Court, Morehouse Parish, Louisiana. The trial court granted Dr. Bhandari's motion for summary judgment and dismissed Mr. Johnson's claims with full prejudice. Mr. Johnson has appealed the trial court's judgment. For the following reasons, we affirm.

FACTS

On April 14, 2008, Mr. Johnson visited the office of Dr. Bhandari. Mr. Johnson was referred by Dr. Allen Spires, his primary physician, because of an elevated liver test and positive test for Hepatitis C. He did not have health insurance at the time of the visit. The consultation report notes that Mr. Johnson admitted to a history of IV drug use 35 years ago in Vietnam, leading to his discharge from the military. He had no other Hepatitis risk factors. The consultation report also states Mr. Johnson drinks one to two beers every other day.

Dr. Bhandari's impressions from this 2008 visit were that Mr. Johnson had chronic Hepatitis C, elevated total protein, and he suspected Mr. Johnson would likely have cirrhosis. It was recommended that Mr. Johnson receive further tests for Hepatitis C, HIV, and Hepatitis B. Mr. Johnson was also advised to stop drinking all alcohol.

Mr. Johnson's medical history included in the record is silent from 2008 until an emergency room visit on September 18, 2013, for abdominal pain. Mr. Johnson visited Dr. Spires on December 12 and 18, 2014, for abdominal pain. He was given a prescription for doxycycline hyclate and told to call if his symptoms worsened or persisted and return to the clinic as necessary.

Mr. Johnson visited Dr. Bhandari again on May 27, 2015, after another referral from Dr. Spires. Mr. Johnson was seeking Dr. Bhandari's opinion regarding his Hepatitis C and had no symptoms other than fatigue. His consultation report stated he was not drinking alcohol or using tobacco. Dr. Bhandari's listed impressions from this visit were Hepatitis C and a colon cancer screening. Dr. Bhandari recommended that Mr. Johnson have a colonoscopy, ultrasound, and lab work. Mr. Johnson agreed with the plan and the colonoscopy was scheduled for June 8, 2015.

On May 28, 2015, Mr. Johnson had an ultrasound of his abdomen. After reviewing the ultrasound, the radiologist recommended a CT scan. On June 3, 2015, Mr. Johnson received the follow-up CT scan of his abdomen. Also on June 3, 2015, Mr. Johnson was notified by a nurse with Dr. Bhandari's office that his drug screen taken on May 27, 2015, came back positive for marijuana. She told him that it could take his insurance company up to three months to approve or deny the request for his medication and that they do look at drug screens to help make their determination. She noted that he verbalized his understanding of what she said.

On June 8, 2015, Mr. Johnson received another ultrasound of his abdomen after complaints of abdomen pain. The radiologist concluded Mr. Johnson presented a "normal study." Mr. Johnson was notified of the ultrasound results on June 12, 2015, and verbalized his understanding.

Mr. Johnson returned to Dr. Bhandari on June 17, 2015. Dr. Bhandari's notes stated Mr. Johnson did not have his colonoscopy. His impression at this visit was that Mr. Johnson had Hepatitis C with cirrhosis of the liver. Dr. Bhandari recommended the following:

1. I have recommended he consider an upper endoscopy but he does not wish to have an upper endoscopy at this time to evaluate for esophageal varices due to the high risk of cirrhosis.
2. He should consider colon cancer screening. He had it about ten years ago in Wisconsin. He will let us know [if] he wishes to have this done. He has been explained the risks of colon cancer screening and surveillance and colon cancer mortality.
3. He needs an ultrasound every six months and alpha fetoprotein. He has been explained he will need this every six months due to the history of cirrhosis.
4. We will try to get him approved for Harvoni.

Dr. Bhandari noted that Mr. Johnson agreed with the above plan and all questions were answered. On August 5, 2015, the nurse's notes state Mr. Johnson requested he be referred to a "gastro clinic to change GI doctors." His medical records were to be faxed to the clinic.

In September 2015, Mr. Johnson visited Dr. Ann Maguire in Milwaukee, Wisconsin. Mr. Johnson's first visit with Dr. Maguire was on September 15, 2015. Her notes state his visit was to establish care. She noted that he lives in Louisiana, but was visiting Wisconsin for a few months to visit his mother. He complained of abdominal pain that "he has had for years, but the last 6 [months] has been really bad." During the visit, Mr. Johnson stated he had liver inflammation in 2011, he has not used cocaine in 20 to 30 years, and he thinks the pain increases with meals. He confirmed that he occasionally has one beer.

Mr. Johnson's medical history from Wisconsin states he visited Dr. Ditah on September 22, 2015, but few details are given. The impression notes state, "2 benign-appearing colon polyps, removed as above." Mr. Johnson visited Dr. Maguire again on September 29, 2015. Her notes from this visit state he tested positive for Hepatitis C, his ultrasound was negative, and "he was not entirely surprised, stating that about 10 years ago he was told he might have Hepatitis C, but he could not afford follow-up testing." Dr. Maguire noted he may require an EGD if his liver work-up revealed cirrhosis. She further noted that he agreed to HIV testing, further Hepatitis C testing, and a referral to a GI doctor for a follow-up visit.

Mr. Johnson was back in Louisiana on December 23, 2015, and visited the emergency room. He complained of abdominal pain and stated, "I'm cramping all over my whole stomach." The emergency room notes state he began experiencing constant, "crampy," dull pain about three hours prior to arriving.

On July 16, 2015, Mr. Johnson filed a complaint against Dr. Bhandari for medical malpractice, complaining of delayed treatment and failure to treat. He states in his complaint that he was referred to Dr. Bhandari in April 2015 and was not seen until May 27, 2015. The remainder of the complaint states the following:

Dr. Bhandari informed me that my liver was "messed up." He stated that the only way to determine the condition my Liver is by biopsies. Dr. Bhandari did not and has not ordered biopsies test for my Liver. I asked Dr. Bhandari about medication for Hep C virus and was told that his Nurse Bridgett was in charge of ordering the medication for Hep C treatment. This was June 2, 2015. Dr. Bhandari informed me that approval for the Hep C meds would take 6 weeks to 120 days for approval. I contacted my insurance carrier today for the length of time to approve medication and was informed that once the doctor orders the meds it only take 3 to 8 days before delivery.
As of today July 16, 2015 and Dr. Bhandari or his staff Bridgett has not contact my insurance carrier Blue Cross Blue Shield to order the necessary treatment medication for my liver. I contact Dr. Bhandari office to ask the status of my order and was told it takes a lot of paperwork to order the meds in which my insurance says [is] not true. I was refused permission to speak with staffer Bridgett about the delay for receiving my meds and was threaten with Police was asking to speak to her and for asking her full name. I asked to see Dr. Bhandari and was rudely told the earliest to speak with Dr. Bhandari or Staffer Bridgett is August 10, 2015.
As result of the delay my Liver is paining and stomach is bloated. I have made an appointment to be treated by another GI doctor. Dr. Bhandari seems to be angry because I did not have a Colonoscopy done. My condition [has] worsen causing pain and suffering due to "No Treatment" by Dr. Bhandari. In short, Dr. Bhandari has done nothing to treat my Liver and misrepresented the procedure to obtain the necessary medications from Blue Cross needed to treat.

The medical review panel issued its opinion and written reasons on July 27, 2017. The panel determined that the evidence presented did not support the conclusion that Dr. Bhandari failed to meet the applicable standard of care. The panel found that the Hepatitis C disease began in 2008 and no treatment was sought for seven years. Evidence presented to the panel showed Dr. Raines recommended a liver biopsy in 2013, which was refused. The panel confirmed that Mr. Johnson's initial blood work from 2015 and ultrasound suggested cirrhosis. It stated the evidence at the time indicated possible cirrhosis, which was an appropriate diagnosis. The panel stated, "As to the HEP C, the viral count pointed to 8 weeks of treatment. However, if a patient has cirrhosis, then 12 weeks is the recommendation. Dr. Bhandari recommended additional testing, which was not pursued by Mr. Johnson."

The panel also stated Mr. Johnson's insurance company would not approve medications for Hepatitis C if the patient tests positive for marijuana or alcohol. The panel noted that Mr. Johnson tested positive for marijuana. The panel also noted that it takes time to gather lab information and values to determine whether the medication treatment was appropriate. The panel stated that the fibroscan Mr. Johnson received in Wisconsin was not available in Louisiana at the time of his treatment. The fibroscan is a diagnostic tool that was used to test Mr. Johnson for cirrhosis. The panel noted that the fibroscan showed a milder disease, stage 2. It stated that while he was treated for Hepatitis C, stage 2 in Wisconsin, the stage 2 disease was routinely denied therapy by insurers in Louisiana in 2015.

Mr. Johnson filed his petition for damages in district court on August 31, 2017, claiming Dr. Bhandari's negligence caused pain, suffering, mental anguish, loss of enjoyment of life, loss of income, depression, and fear of the unknown.

Mr. Johnson deposed Dr. Bhandari on February 28, 2018. Dr. Bhandari stated that Mr. Johnson was not his first patient with Hepatitis C and previous patients had been denied medication because of a positive drug and alcohol screen. He stated that although there was a drug available to treat Hepatitis C, he did not submit the paperwork because he could not "tick [the] boxes" required by the insurer. He explained that had he submitted the paperwork with a positive marijuana screen, insurance would have denied the medication, and Mr. Johnson would have had to wait six months to try again. He stated that he was trying to avoid the six-month wait by simply submitting the request once Mr. Johnson had a clean drug screen.

Dr. Bhandari filed a motion for summary judgment on April 3, 2018. The hearing on the motion was set for June 19, 2018. On June 8, 2018, Mr. Johnson, through an attorney, filed a motion to continue and opposition to the motion for summary judgment. A hearing on the motions was held August 13, 2018. Mr. Johnson appeared in proper person at the hearing. Counsel who filed the motion to continue and opposition was not present.

At the hearing on the motions, the trial court stated, "You have had this condition apparently since 2008 and for a long time... And now you've come up with wanting a motion for continuance so you can find some more evidence of some more... doctors and so forth. I'm going to deny your motion for continuance." Mr. Johnson disagreed that this timeline began in 2008 because he did not have any symptoms (the pain) until 2015. The trial court also stated that Mr. Johnson offered no medical expert testimony and based on the medical review panel opinion, granted Dr. Bhandari's motion for summary judgment. The trial court dismissed the matter in its entirety with full prejudice. Mr. Johnson now appeals that decision.

ARGUMENTS

Denial of Motion for Continuance

In his first assignment of error, Mr. Johnson argues the trial court abused its discretion in denying his motion for continuance. He argues good cause for the continuance was evident because he recently retained an attorney, who needed time to become familiar with the case. Dr. Bhandari argues that the trial court did not abuse its discretion because Mr. Johnson initiated his complaint three years prior to the dismissal of his claim; his alleged counsel never appeared in the record except to file the motion to continue and opposition to the motion for summary judgment; he was able to conduct discovery by deposing Dr. Bhandari; and, he had a sufficient opportunity to obtain a medical expert.

A continuance may be granted in any case if there is good ground therefor. La. C.C.P. art. 1601. It is a well-established rule that the trial judge has wide discretion in acting upon a motion for continuance. Howard v. Lee , 50,366 (La. App. 2 Cir. 1/13/16), 185 So.3d 144. A denial of a motion for continuance will not be disturbed on appeal absent a showing of an abuse of discretion by the trial court. Davis v. European Motors , 51,522 (La. App. 2 Cir. 8/9/17), 243 So.3d 1100. An abuse of discretion occurs when such discretion is exercised in a way that deprives a litigant of his day in court. Howard v. Lee, supra . The trial court must consider the particular facts in each case in deciding whether to grant or deny a discretionary continuance. Some factors to consider are diligence, good faith, and reasonable grounds. Id.

In the case before us, we do not find that the trial judge abused his discretion. Mr. Johnson filed his original complaint and request for a medical review panel on July 16, 2015. Two years after his initial complaint, in August of 2017, he filed his petition for damages in district court. Ten months later, in June of 2018, Mr. Johnson filed, through counsel, a motion to continue. He requested the continuance because his newly retained attorney needed time to get familiar with his case. This is the only appearance of his retained attorney in the record. Up to this point, Mr. Johnson represented himself pro se . Mr. Johnson's counsel has withdrawn from the case and he has represented himself in this appeal.

We agree with the trial court that Mr. Johnson has had "a long time" to gather evidence, find a medical expert, and retain legal counsel. Mr. Johnson had the opportunity to gather evidence and even deposed Dr. Bhandari. Under these circumstances, we find the trial court did not abuse its discretion in denying Mr. Johnson's motion to continue. This assignment lacks merit.

Standard of Care

Mr. Johnson's second and third assignments of error will be discussed together. His second assignment of error is that the trial court erred in granting Dr. Bhandari's motion for summary judgment. He argues that he provided expert testimony through Dr. Bhandari's deposition, which he argues established that Dr. Bhandari breached the applicable standard of care. Dr. Bhandari counters by arguing Mr. Johnson failed to make a showing sufficient to establish the claim of breach of duty. He states that Mr. Johnson had the burden of proving the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians licensed to practice in the State of Louisiana and actively practicing in a similar community and under similar circumstances.

Finally, Mr. Johnson argues the trial court failed to consider evidence that Dr. Bhandari misdiagnosed the cirrhosis, which caused him harm. He asserts that Dr. Bhandari stated in his deposition that a biopsy is required to confirm cirrhosis. Mr. Johnson points out that Dr. Bhandari did not order a biopsy. He states, "Dr. Bhandari's actions and inactions were clearly contrary to proper and appropriate treatment and care for HEP C virus, thus constituted negligence, medical malpractice for delay/failure to eradicate the HEP C virus as evidence by Wisconsin doctors' services that eradicated the serious HEP C virus." Dr. Bhandari responded with the same arguments as above, that Mr. Johnson did not make a sufficient showing as to the applicable standard of care.

A de novo standard of review is required when an appellate court considers rulings on summary judgment motions, and the appellate court must use the same criteria that governed the trial court's determination of whether summary judgment was appropriate. Bank of New York Mellon v. Smith , 15-0530 (La. 10/14/15), 180 So.3d 1238 ; Hoston v. Richland Par. Hosp. Serv. Dist. 1-B , 51,362 (La. App. 2 Cir. 4/5/17), 218 So. 3d 236, writ denied , 2017-0743 (La. 9/15/17), 225 So.3d 486.

In a medical malpractice action, the plaintiff has the burden of proving: (1) the applicable standard of care, (2) that the standard of care was breached, and (3) that as a proximate result of the breach, the plaintiff sustained injuries that would not otherwise have been incurred. La. R.S. 9:2794(A) ; Johnson v. Tucker , 51,723 (La. App. 2 Cir. 11/15/17), 243 So.3d 1237, writs denied , 2017-2075 (La. 2/9/18), 236 So.3d 1262, and 2017-2073 (La. 2/9/18), 236 So.3d 1266. Physicians' actions are not to be evaluated on the basis of hindsight or in light of subsequent events. Richardson v. Cotter, 51,637 (La. App. 2 Cir. 9/27/17), 245 So.3d 136.

Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Richardson v. Cotter , supra . Examples of an "obviously careless act" not requiring expert testimony include "fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body." Id. ; Pfiffner v. Correa , 94-0924 (La. 10/17/94), 643 So.2d 1228.

Although Mr. Johnson argues this case falls under the "obvious exception" because doctors in Wisconsin were able to do what he alleges Dr. Bhandari failed to do, we disagree. This is not an obvious, careless act like leaving medical instruments inside a surgery patient or physically injuring the patient during an examination. In addition, we cannot evaluate Dr. Bhandari's actions based on subsequent events in another state six months later.

Mr. Johnson argues Dr. Bhandari was his expert because Dr. Bhandari stated in his deposition that a biopsy is required to confirm cirrhosis, but a biopsy was not performed. In discussing the biopsy, Mr. Johnson and Dr. Bhandari had the following exchange:

Q So you didn't need to take a biopsy for the cirrhosis ?
A No, because I had confirmation based on this test, which has a ninety-five percent specificity for cirrhosis, and I had an ultrasound, which I know you have a copy of, shows what we call hepatofugal blood flow. That means the blood flow in the portal vein was going backward. And those are all very sensitive for cirrhosis of the liver.
Q Okay.
A And the cause of your cirrhosis, I had evidence of that. It was likely Hepatitis C. So there was no need for me to further diagnose cirrhosis.
Q Okay.
A The only thing I needed, you know, we have to meet the check boxes that the insurance company wants for approval for the medicine.

Dr. Bhandari's deposition testimony provided in the record states a liver biopsy is one test that can be performed to determine if a person has cirrhosis, but did not state that a biopsy is required to confirm cirrhosis. Mr. Johnson did not present any independent expert testimony regarding the applicable standard of care and Dr. Bhandari's breach of that standard. The only testimony Mr. Johnson relied on was Dr. Bhandari's deposition. Without an independent expert and under these circumstances, the trial court's granting of the summary judgment was appropriate. This assignment lacks merit.

CONCLUSION

For the foregoing reasons, the trial court's granting of Dr. Bhandari's motion for summary judgment and dismissal of Mr. Johnson's claim is affirmed. Costs associated with this appeal are assessed to Mr. Johnson.

AFFIRMED.

APPLICATION FOR REHEARING

Before Felicia Toney Williams, Daniel Milton Moore III, Shonda D. Stone, Jeff Cox - Writing, and Jay Bowen McCallum, JJ.

Rehearing denied.

      La. C.C.P. art. 5188 allows costs to be assessed against an unsuccessful party who has been allowed to litigate without the payment of costs.