author: STEPHENS, J.

text:
    STATE of Louisiana, Appellee v. Michael Lorenzo BARNETT, Jr., Appellant
    No. 52,406-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019 Rehearing Denied February 21, 2019
    MICHAEL LORENZO BARNETT, JR., Pro Se
    LOUISIANA APPELLATE PROJECT By: Cary J. Ellis, III, Counsel for Appellant
    ROBERT STEPHEN TEW, District Attorney, GEARY S. AYCOCK, DANIEL J. HUNTER, Assistant District Attorneys, Counsel for Appellee
    Before GARRETT, STEPHENS, and McCALLUM, JJ.
   STEPHENS, J.

This criminal appeal arises from the Fourth Judicial District Court, Ouachita Parish, State of Louisiana. Following a bench trial, the defendant, Michael Barnett, Jr., was found guilty as charged of second degree murder and sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence, pursuant to La. R.S. 14:30.1. Barnett now appeals his conviction and sentence, which we affirm for the following reasons.

FACTS AND PROCEDURAL HISTORY

In the early hours of December 20, 2011, Deputies Seth Cox and Michael McLain, of the Ouachita Parish Sheriff's Department ("OPSD"), responded to a 911 call about a shooting on Dellwood Drive in Monroe, Louisiana. They found a deceased black male in a black shirt and dark jeans with multiple gunshot wounds lying at the edge of a ditch on Dellwood Drive. The deceased was later identified as Andre Alexander. Michael Barnett, Jr., was subsequently arrested and charged with second degree murder, in violation of La. R.S. 14:30.1.

Barnett was indicted for second degree murder on February 9, 2012. As of March 23, 2015, the matter had not yet proceeded to trial, and Barnett filed a pro se motion to quash the indictment based on La. C. Cr. P. art. 578(A)(2), which provides that no trial shall be commenced in a non-capital felony case after two years from the date of institution of the prosecution. In response, the state urged the applicability of La. C. Cr. P. art. 580(A), which addresses suspension of time limitations. Following a brief hearing, the trial court granted the motion quashing the indictment. The court then granted a stay of the proceedings and the state filed a writ application with this court, which was granted. The matter was considered an appealable issue. State v. Barnett , 50,159-KW (La. App. 2 Cir. 04/16/2015). Ultimately, this court concluded that the running of the two-year time limitation of La. C. Cr. P. art. 578 was suspended by the defense motion for preliminary examination and thereafter by numerous continuances of the trial date, and the trial judge abused his discretion in finding otherwise and in granting the motion to quash. The judgment was vacated, and the motion to quash the indictment filed by Barnett was denied. The matter was remanded for further proceedings. State v. Barnett , 50,213 (La. App. 2 Cir. 08/12/15), 174 So.3d 748.

Barnett waived his right to a jury trial, and a bench trial began on August 15, 2016. The state announced for the record that Barnett rejected the state's offer for him to plead guilty to manslaughter with a sentencing range of 25-35 years.

On August 23, 2016, Barnett appeared for the trial court's verdict. The trial court explained that after weighing the physical and testimonial evidence presented by the state at trial, it found that Barnett shot and killed Andre Alexander. The trial court found that specific intent to kill was established by the findings made in the report of Alexander's autopsy, which revealed that Alexander was shot five times, including once in the head. Barnett was found guilty as charged of second degree murder.

On November 9, 2016, Barnett filed a post-trial motion for new trial and a motion to reconsider the verdict and/or for a directed verdict of acquittal. The trial court denied the motions for new trial and for a directed verdict of acquittal, but granted the motion to reconsider the verdict. Resultantly, the trial court vacated its ruling finding Barnett guilty of second degree murder and entered a ruling of guilty of the responsive verdict of manslaughter. In response, the state filed a writ application to this court; we granted the state's writ, vacated the verdict of manslaughter, reinstated the conviction for second degree murder, and remanded the matter for sentencing. State v. Barnett , 51,493-KW (La. App. 2 Cir. 04/04/2017), writ denied , 2017-0946 (La. 09/29/17), 227 So.3d 290.

Back in the trial court (and prior to sentencing), Barnett then filed a pro se "motion to reconsider new trial," which the trial court granted after finding that the verdict of second degree murder was contrary to the law and evidence. The state sought to appeal the trial court's ruling, which the trial court denied. Thus, the state sought supervisory review of the trial court's denial of its motion for appeal, which we denied on the basis that the ruling granting a new trial was not a final appealable judgment. State v. Barnett , 52,121-KW (La. App. 2 Cir. 02/08/2018). Ultimately, the state applied for supervisory review of the trial court's ruling granting Barnett a new trial; this writ was granted, the ruling reversed, the conviction for second degree murder reinstated, and the matter remanded for sentencing. State v. Barnett , 52,156-KW (La. App. 2 Cir. 03/08/2018).

Barnett appeared for sentencing on April 2, 2018. The trial court imposed the mandatory sentence of life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. Barnett was advised of the time delays to appeal his conviction and sentence and to seek post-conviction relief, and he filed a motion to reconsider sentence. The motion was denied, and this appeal by Barnett ensued.

DISCUSSION

In his one and only assignment of error, Barnett argues there was insufficient evidence to support the conviction for second degree murder. Barnett asserts that the state did not establish beyond a reasonable doubt that he was Andre's shooter. Barnett also argues that the state failed to prove that he wrote or sent the inculpatory text messages that Chereteria Kennedy alleged were from him. Barnett maintains that no eyewitnesses specifically identified him as the shooter and asserts that witness testimony regarding inculpatory acts and statements allegedly made by Barnett were contradictory and insufficient to establish beyond a reasonable doubt that he was the shooter.

Barnett notes that in testimony by those witnesses who saw and identified him at the scene or in the hours after the murder, none of those witnesses saw him with a gun. He also emphasizes that while Arthur Mott testified that the man he saw chasing the victim on Dellwood Drive was carrying a gun, Mott could not identify the gunman. Barnett dismisses the entirety of Mott's testimony as noncredible because Mott assumed that the unknown gunman was wearing shorts since Mott could see the gunman's socks, while none of the other witnesses said Barnett was wearing shorts.

Barnett further argues that the state provided no physical or forensic evidence tying him specifically to Andre's murder. Barnett asserts that he is innocent because no gun was recovered; Andre suffered five gunshot wounds but only two shell casings were recovered; forensic testing of the vehicle Barnett rode in before and after the homicide revealed no evidence tying him to the murder; and, in the security video of Barnett at the gas station after the murder, there was no visible blood on his shirt, pants, or shoes. We disagree.

Legal Principles

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ; State v. Tate , 2001-1658 (La. 05/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Bass , 51,411 (La. App. 2 Cir. 06/21/17), 223 So.3d 1242, writ not cons. , 2018-0296 (La. 04/16/18), 239 So.3d 830. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 2005-0477 (La. 02/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 01/14/09), 1 So.3d 833, writ denied , 2009-0310 (La. 11/06/09), 21 So.3d 297.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton , 436 So.2d 471 (La. 1983) ; State v. Norman , 51,258 (La. App. 2 Cir. 05/17/17), 222 So.3d 96, writ denied , 2017-1152 (La. 04/20/18), 240 So.3d 926

Direct evidence provides proof of the existence of a fact, for example, a witness's testimony that he saw or heard something. State v. Lilly , 468 So.2d 1154 (La. 1985) ; State v. Baker , 49,175 (La. App. 2 Cir. 08/27/14), 148 So.3d 217. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Broome , 49,004 (La. App. 2 Cir. 04/09/14), 136 So.3d 979, writ denied , 2014-0990 (La. 01/16/15), 157 So.3d 1127. For a case resting essentially upon circumstantial evidence, that evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438 ; State v. Christopher , 50,943 (La. App. 2 Cir. 11/16/16), 209 So.3d 255, writ denied , 2016-2187 (La. 09/06/17), 224 So.3d 985.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 1994-3116 (La. 10/16/95), 661 So.2d 442 ; State v. Walker , 51,217 (La. App. 2 Cir. 05/17/17), 221 So.3d 951, writ denied , 2017-1101 (La. 06/01/18), 243 So.3d 1064. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Ward , 50,872 (La. App. 2 Cir. 11/16/16), 209 So.3d 228, writ denied , 2017-0164 (La. 09/22/17), 227 So.3d 827. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Hust , 51,015 (La. App. 2 Cir. 01/11/17), 214 So.3d 174, writ denied , 2017-0352 (La. 11/17/17), 229 So.3d 928. 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. 01/19/06), 921 So.2d 94 ; State v. Hust, supra .

A reviewing court accords great deference to a fact finder's decision to accept or reject the testimony of a witness in whole or in part. State v. Brown , 51,352 (La. App. 2 Cir. 05/02/17), 223 So.3d 88, writ denied , 2017-1154 (La. 05/11/18), 241 So.3d 1013.

In 2011 (the year of the offense), La. R.S. 14:30.1 defined second degree murder, in pertinent part, as the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juveniles, or terrorism, even though he has no intent to kill or to inflict great bodily harm.

Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the proscribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1).

As a state of mind, specific intent need not be proven as a fact, but may be inferred from the circumstances of the offense and the defendant's actions. State v. Allen , 41,548 (La. App. 2 Cir. 11/15/06), 942 So.2d 1244, writ denied , 2007-0530 (La. 12/07/07), 969 So.2d 619. All that is necessary is that the defendant form the specific intent to kill or inflict great bodily harm for an instant when committing the crime. State v. Williamson , 27,871 (La. App. 2 Cir. 04/03/96), 671 So.2d 1208, writ denied , 1996-1143 (La. 10/04/96), 679 So.2d 1380.

Specific intent may be inferred from the circumstances of the offense and the defendant's act of deliberately pointing a gun and firing it at a person. State v. Patterson , 50,305 (La. App. 2 Cir. 11/18/15), 184 So.3d 739, writ denied , 2015-2333 (La. 03/24/16), 190 So.3d 1190.

Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:30.1(B).

Trial Testimony and Evidence

Deputy Craig Hamby, the lead investigator with the OPSD, testified that he responded to Dellwood Drive and was approached by Arthur Mott, who was an eyewitness to the offense. Officers also found witnesses LaSheva Murrell, who lived on Dellwood Drive, and her cousin, Terrany Williams, who was in Murrell's driveway at the time of the offense. The investigation led officers one street over to a house on Tanglewood Drive, where they found witnesses Phyllis Alexander and Roshun Alexander. After interviewing these witnesses, Deputy Hamby and Deputy Reginald Smith discerned that the incident began outside Phyllis Alexander's house at 606 Tanglewood Drive, where the victim was last seen alive, and expanded to Dellwood Drive, where Andre was found dead in the ditch, just yards from the Murrell home.

Deputies Daryl Johns and Johnny Holyfield, both of the OPSD, testified that they photographed both crime scenes and collected evidence. The officers found two 9 mm shell casings and one 9 mm live bullet on the ground outside of Phyllis Alexander's home. The officers traced a blood trail on the ground near the side of the Alexander house, through the backyard, through a downed section of fencing into the adjacent backyard at 207 Dellwood Drive, and alongside that house to the street. Officers also found blood on Terrany Williams's vehicle, which had been parked in Murrell's driveway at 203 Dellwood Drive, near the location of Andre's body. No gun was recovered. During the investigation of the crime, forensic testing was performed of the vehicle Barnett was seen driving; however, this did not reveal any evidence tying Barnett to the homicide.

Terrany Williams testified she witnessed an altercation on December 20, 2011. According to Williams, she had just dropped off her cousin at LaSheva Murrell's house and was still sitting in her silvery gray sedan in the driveway checking her cell phone when she heard a sound. She recalled a street lamp lit the area, as well as a porch light from Murrell's house. Williams testified that she saw a black male, wearing a black shirt and dark jeans, who was bleeding from the stomach area-he bumped into her car. Williams testified that this man was being chased by a second black male, whom she recognized as her former schoolmate, Michael Barnett. Williams said the two ran around her car and continued on. Williams backed out of the driveway and saw Barnett standing over the other male, who was lying on the ground. It appeared to her that Barnett punched the man lying on the ground.

Williams then drove down the street to a nearby store and used her cell phone to call Murrell.

LaSheva Murrell testified that on December 20, 2011, she was at home at 203 Dellwood Drive, and she was asleep when she was awakened by the sound of "about" three gunshots. Murrell's niece had just been dropped off at the home by Murrell's cousin, Terrany Williams. Then Murrell received a phone call from Williams, who warned her to look outside for a body in the ditch in front of her house. Murrell looked outside, saw the body, and called 911.

Arthur Mott testified that he was driving down Dellwood Drive on December 20, 2011, when suddenly two black males ran out in front of him, causing him to slam on his brakes. Mott had his vehicle lights on high beam and there were street and porch lights in the vicinity; however, he did not recognize either man. He did recall that one man was wearing a black shirt and gray sweatpants, while the man chasing him wore a blue shirt with a white shirt underneath it. Mott testified that he could see the second man was wearing white socks, so he thought that the man had on shorts. Mott testified that the man held his pants in his left hand and a gun in his right hand-he was sure it was a gun by the way it was clutched. Mott said the two men came from the direction of a trail that Mott knew ran from Tanglewood Drive to Dellwood Drive. Mott testified that after running in front of him, the two men continued running down Dellwood Drive and into a yard with a white car parked in the driveway. Mott testified that the car's lights were on and someone was sitting inside. Mott testified that he drove past the house where the car was parked and stopped in front of the daycare next door, and looked over his shoulder. Mott testified that he saw the first man fall to the ground, and then he saw the second man shoot the man on the ground. Again, he testified that the area was well lit. Mott then saw the white vehicle back out of the driveway and drive past him. Mott reiterated that he heard at least three gunshots and was certain that the second man carried what Mott believed to be a gun. Mott said he saw the gunman turn and run away in the direction he had come.

Phyllis Alexander testified that on December 20, 2011, she lived at 606 Tanglewood Drive, and Andre Alexander was her nephew. That night (after midnight), she had been asleep on the couch when she heard her son, Roshun Alexander, open the front door. She stood behind Roshun and saw Andre and Michael Barnett, whom she had known for years. Phyllis saw both Andre's burgundy car and a silver Chrysler 300, which she knew belonged to Barnett's mother, Natasha Mays, parked out front. Phyllis testified that she thought there were two women inside Barnett's car.

Phyllis heard Barnett ask Roshun about her other son, and she told Barnett that he was asleep. Roshun closed the door and they both went back inside; Phyllis went back to lie down on the sofa. A few minutes later Phyllis heard multiple gunshots, which she thought came from the street behind her, Dellwood Drive. Looking outside, Phyllis saw Barnett get into the front passenger side of his vehicle and leave. Phyllis testified that Barnett was wearing a blue shirt. Phyllis testified that she did not see her nephew, so she and Roshun began looking for him. They followed the trail that ran from her backyard, through the rear fence into the backyard of another house on Dellwood Drive. As they advanced down Dellwood Drive, they were stopped by law enforcement officers. Phyllis testified that she could see a body lying on the side of the street by the ditch and recognizing the clothing, she knew it was Andre.

Roshun Alexander testified that on December 20, 2011, he was living with his mother at her home at 606 Tanglewood Drive. In the middle of the night, his cousin Andre knocked on his window. Roshun dressed and opened the front door to find Andre, who wore a black shirt and jeans, and Michael Barnett, who wore a light blue shirt. Roshun saw both Andre's burgundy vehicle and a silver Chrysler 300 that he knew belonged to Barnett's mother. Roshun testified that he could see there was someone sitting in Barnett's vehicle, but could not see who it was. Roshun testified that Barnett asked about Roshun's brother. Roshun said he did not know where his brother was. He thought both men were acting normally. Roshun closed the door and returned to bed. He later heard gunshots outside. Roshun looked outside, but did not see his cousin or Barnett, just someone sitting in Barnett's vehicle. Roshun then saw Barnett "jogging" down the street, and it appeared he was trying to hold his pants up or hide something in his pants. Roshun testified that he thought Barnett might be hiding a gun, but said he did not actually see a gun. Roshun watched Barnett get into the passenger side of his vehicle and leave.

Roshun testified that he could not reach Andre on his cell phone so he, his mother, his girlfriend, and his cousin began searching for Andre. They searched the trail leading from their house to the street behind them (i.e. , Dellwood Drive) and were stopped by law enforcement officers.

Moneice Mitchell testified that she is Barnett's first cousin and characterized them as having a close relationship. According to Mitchell, in the early morning of December 20, 2011, she got in a vehicle with Barnett, a Chrysler 300 owned by Barnett's mother, Natasha Mays. Barnett was driving, and they were the only two in the vehicle. Mitchell testified that Barnett began following a burgundy vehicle, and Barnett kept pressing the car horn signaling for the driver to stop.

Mitchell said they followed the vehicle into the Tanglewood residential area and stopped behind the vehicle at a house. Mitchell testified that both Barnett and the driver of the car got out. Mitchell said she did not know the name of the other man at the time, but she later learned his name was Andre Alexander. Mitchell testified that she remained in the car while Barnett and Andre talked in the front yard, about 35-45 minutes. They appeared calm. At one point, she saw Barnett talking to someone in the house and heard him ask for someone but a voice replied that the person was asleep. Mitchell stated that Barnett returned to the vehicle.

Mitchell testified that Barnett began to drive off, but suddenly put the car in park, jumped out, and ran after Andre, who ran but was followed by Barnett. She was "looking" and she saw the duo run toward the side of a house. Mitchell testified that she moved to the driver seat and moved the car out of the road-she waited but could not see anything because it was dark. Then she heard three or four gunshots and "everybody" started to come out of the house. According to Mitchell, Barnett returned to the car, got into the front passenger seat, and told her to leave. Barnett was sweating and "out of breath." He was angry and yelling at Mitchell, who was concerned for her safety. Mitchell said she was unfamiliar with the area and was not sure where to go, so she was driving slowly. Mitchell testified that Barnett pushed his foot down on the accelerator and grabbed the steering wheel, as they drove to Barnett's mother's house. Mitchell testified that Barnett called someone on his cell phone. She heard him tell the person that he loved her and his family and he killed "Dre." Mitchell testified that after they reached the house, Barnett took off on foot. Mitchell stated that Barnett's sister, Lametris, knew Andre and insisted that she wanted to help him, so Mitchell and Lametris drove back to the location on Dellwood where Andre was shot. The police came, and Mitchell made a statement to them. She made a second, more detailed statement ten days later. Mitchell testified that she never saw Barnett with a gun that night, but recalled that the he was wearing a blue shirt with a white shirt underneath it and jeans.

Jarrell Bush testified that he and Barnett attended high school together. Bush testified that on December 20, 2011, he was at his home playing video games with his friend, James Harris. Sometime between 4:00 and 5:00 p.m, Barnett appeared at Bush's house, told Bush that he was in trouble, and asked to use a phone. Barnett used Harris's cell phone outside of the room where Bush and Harris were playing. Barnett returned to the room, chatted with Harris, and then the phone rang. Harris answered it and then told Bush that Barnett needed to leave. Following directions from Barnett, Bush and Harris drove Barnett to an unknown address off Pearl Street. Bush and Harris returned to Bush's house and continued playing games until the police arrived, looking for Barnett. Bush told police that Barnett was wearing a blue shirt with a white shirt underneath and that Barnett's appearance led Bush to tell investigating officers that he believed that Barnett had been fighting.

James Harris testified that he also knew Barnett from high school. He described the same series of events with Barnett as did Bush. Harris then recounted the statement he made to police regarding his conversation with Barnett, regarding Barnett's incident with another man whom he pistol-whipped and shot in the head. Harris confirmed at trial that he told officers that Barnett was wearing a blue shirt with a white undershirt.

Kelsey Haskins testified that he called law enforcement officers after he learned that he was being sought in connection with the shooting investigation. Haskins testified that at approximately 1:00 a.m. on December 20, 2011, he stopped for gas at a gas station on Highway 165 North when he saw Barnett. Haskins knew Barnett because Barnett used to date his girlfriend's niece, Keyarra Cobbler. Haskins testified that Barnett approached him and asked him for a ride to Bastrop, even offering to pay for gas. Two other men were already with Haskins and together with Barnett, they all rode off in Haskins's vehicle, with Barnett sitting in the back.

Haskins testified that Barnett announced to the group that they were riding with a murderer; however, Haskins did not believe Barnett. According to Haskins, Barnett instructed him to turn on the vehicle's interior lights, and Haskins testified that he turned and looked at Barnett, seeing "some blood on his pants." Haskins stated that Barnett said that somebody tried to "play him" over some speakers, that he "got into it" with the man, and then shot the man, who was now dead. Haskins testified that Barnett specifically said that the man was holding his stomach and that Barnett shot the man in the head. Haskins viewed State's Exhibit 9, a picture of Barnett taken from the security video at the gas station, which showed Barnett wearing a light blue shirt with a white shirt underneath it. Haskins confirmed that Barnett's appearance that night matched his appearance in the picture. Haskins testified that he never saw Barnett with a gun that night.

Haskins testified that as he dropped Barnett off, Barnett handed him a set of keys to give to Keyarra Cobbler. Haskins testified that he gave the keys to his girlfriend, Latedra Shaw. Shaw testified that she gave the keys to her niece, Keyarra Cobbler. Cobbler testified that she called Natasha Mays, Barnett's mother, about the keys and Mays sent her brother to pick them up from Cobbler.

Cherteria Kennedy testified that in December 2011, she was working as a dispatcher at the Rayville Police Department. Kennedy testified that she met Barnett through the police department about two months before the shooting, he sometimes stopped by the department to see her, and they texted each other. Kennedy testified that on the evening of December 19, 2011, she received a series of texts from the cell phone number that she had stored in her phone for Barnett and from which she had received his prior text messages. Kennedy could not recall the cell phone number. Kennedy testified that she did not speak to Barnett on the phone that night.

Kennedy related that the police contacted her the afternoon after the incident, and she gave them her cell phone. The state presented its Exhibit 7, which were copies of text messages that were obtained by law enforcement purportedly between Kennedy and Barnett on the evening of December 19. Kennedy was asked to identify the exhibit, which she did. The texts stated that someone owed the sender money; the sender would kill the individual if he had his gun; the individual was mad at the sender for beating up the individual's cousin; and the cousin had set the sender up. The most incriminating text purporting to be from Barnett was the one relayed on December 19 at 8:56 p.m.: "Whenever i catch him an i have my gun i will kill him on my bby." The defense objected to the admission of the texts because there was no evidence specifically tying Barnett to the phone number or the texts themselves, as there was no information identifying who wrote and sent the texts. The objection was overruled.

Iyeka Barnes testified that in December 2011, she was living at 2604 Lee Avenue with her daughter and niece, Woodlexis Battle. According to Barnes, on December 21, 2011, she and Battle were walking to the nearby school for a school program when they saw Barnett, whom Barnes had met before at a party. Barnett asked Barnes about a mutual acquaintance named John Boy. Barnes thought John Boy was Barnett's cousin and let Barnett inside her house to wait, purportedly, for John Boy while she and Battle left for a school program. Barnes testified she returned home an hour or two later, and Barnett was still there. Barnes testified that when law enforcement officers arrived asking about Barnett, she told them he was there. Police had her and Battle leave the house while they apprehended Barnett. Barnes testified that she never saw Barnett with a gun that day.

Woodlexis Battle testified that she was Barnes's niece and lived with her in December 2011. She also testified that she knew Barnett. Battle stated that she and Barnes encountered Barnett on December 21 as they were leaving for a school program and let him stay in the house while she and Barnes were gone. She testified that Barnett was still there when they returned and when the officers arrived later.

Officer David Germany of the OPSD testified that "just prior to lunchtime" on December 21, 2011, the department received a CrimeStoppers tip that Barnett was hiding at a house on Lee Avenue. An arrest warrant for Barnett had been issued, so Ofc. Germany, along with Officers Tom Hargrove and Scott Brown, proceeded to the house at 2604 Lee Avenue. Officer Germany testified that the officers knocked and announced themselves repeatedly, and the officers could hear people inside but no one answered. According to Ofc. Germany, a woman named Iyeka Barnes finally answered the door. When the officers asked if Barnett was there, Barnes told the officers that Barnett had been there but had already left. Officer Germany testified that after some hesitation, Barnes gave her consent for the officers to search the residence. Barnes and a second woman, Woodlexis Battle, were detained while officers searched the house.

Officer Germany testified that Barnett was found crouched inside a locked air conditioning return vent in a hallway. Officer Germany recounted that Barnett was a murder suspect, and the officers did not know if he was armed. Officer Germany testified that when Barnett refused the officers' requests to show his hands, Ofc. Germany deployed his Taser for officer safety. Barnett was then arrested. Officers did not find a weapon on Barnett.

Dr. Frank Peretti, a forensic pathologist with the Arkansas State Crime Lab, was accepted as an expert in forensic pathology and testified regarding his autopsy of Andre Alexander. Dr. Peretti testified that Andre sustained five gunshot wounds, but he could not determine the sequence of the gun shots. According to Dr. Peretti, a "straight shot" to the head through his brain was sufficient by itself to have killed Andre. Another shot-through his upper left chest hitting the sternum, the heart, the right lung, and a right posterior rib before exiting the back-was also sufficient by itself to kill the victim. One gunshot wound was found in Alexander's left thigh and another was found in his right forearm, with the latter wound containing a large caliber bullet. Finally, a bullet entering Alexander's upper buttock and exiting above his right pelvis caused a flesh wound and did not injure major organs.

Dr. Peretti testified that all the shots were made from a distance of two feet or more from the victim. Other than an abrasion on one arm, the doctor found no other contusions or lacerations that would suggest the victim had been pistol-whipped.

Analysis

When viewed in the light most favorable to the state, the evidence presented at trial was sufficient to support Barnett's conviction for second degree murder. Although Barnett argues that the evidence purporting to be against him was inconsistent and inconclusive, when weighing the slightly conflicting testimony, we conclude the weight of the evidence supports a finding of Barnett's guilt. The witness testimony was abundant: witnesses saw Barnett and Andre together just prior to Andre's death; witnesses placed Barnett at the scene of the killing; witnesses saw Barnett chasing Andre; witnesses identified Barnett as having a weapon; witnesses saw one man shoot another man; witnesses heard gunshots; witnesses saw a man bleeding; and, witnesses heard Barnett bragging/admitting to the killing.

Testimony by Moneice Mitchell, Roshun Alexander, and Phyllis Alexander all placed Andre Alexander in his burgundy vehicle and Michael Barnett in his mother's Chrysler outside Phyllis Alexander's home on Tanglewood Street in the early morning hours of December 20, just prior to hearing multiple gunshots. Mitchell testified that Barnett followed Andre by car to the house and then chased him on foot around the house. Mitchell, Roshun, and Phyllis all testified that after they heard the gunshots, they saw Barnett return to his vehicle and leave. Mitchell testified that Barrett appeared agitated after returning to the vehicle, so much so that she was concerned for her safety. All three testified that Barnett was wearing a blue shirt.

Law enforcement recovered two spent shell casings and one live bullet at Phyllis Alexander's house and traced a blood trail from the house, through the backyard to the next street over, Dellwood Drive. Arthur Mott and Terrany Williams both testified that they saw one black male chasing another black male on Dellwood Drive that night. Mott testified that the second male was wearing a blue shirt with a white shirt underneath, while Terrany Williams was able to identify the second male as her former schoolmate, Michael Barnett. Williams' testimony directly placed Barnett on Dellwood Drive, chasing the victim, who Williams saw was bleeding, around the same time that gunshots were heard by Mitchell, Roshun and Phyllis Alexander, LaSheva Murrell, and Mott. Immediately thereafter, Williams told Murrell there was a body in front of her house, which was quickly confirmed by Murrell and the responding law enforcement officers. Phyllis Alexander, who had just seen Barnett talking to Andre in her front yard one street over, observed her nephew dead on the ground after hearing gunshots and seeing Barnett abruptly leaving.

Both Mott and Williams saw the victim on the ground with the second male standing over him. Mott testified that he saw Barnett with a gun and saw Barnett shoot the victim as he lay on the ground. Mott's testimony was consistent with the testimony of Mitchell, Harris, and Kelsey Haskins, who also testified that Barnett was wearing a blue shirt with a white shirt underneath that night. Mott's testimony was also consistent with testimony by Mitchell, Harris, and Haskins, that Barnett admitted shooting and killing a man.

Further, Harris and Haskins both testified that Barnett admitted shooting and killing a man that he had been chasing because the man owed him money for speakers. This testimony was consistent with the text messages that Chereteria Kennedy testified were sent to her earlier that night from the phone number she had for Barnett, in which the sender announced he had been chasing someone who owed him money and whom the sender would shoot and kill with a gun.

Finally, as noted by the trial court, evidence of Barnett's specific intent here was demonstrated by his chasing and shooting the victim multiple times, including once in the chest and once in the head.

Barnett's argument that no physical evidence existed to connect him to Andre's death is unpersuasive. In fact, in a case where there is no physical evidence to link a defendant to the crime charged, the testimony of one witness, if believed by the trier of fact, is sufficient support for a factual conclusion required for a verdict of guilty. State v. Marcantel , 2000-1629 (La. 04/03/02), 815 So.2d 50, 56. Here, there was ample witness testimony pointing to Barnett as the individual responsible for Andre's murder. The fact finder believed the witnesses-individuals who were testifying over four years after the incident and whose memories reasonably needed support from their more contemporaneous statements made shortly after the crime. Thus, after viewing the above evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime of second degree murder proven beyond a reasonable doubt. This assignment of error is without merit.

CONCLUSION

For the above reasons, we affirm Michael Barnett's conviction and sentence.

AFFIRMED.

APPLICATION FOR REHEARING

Before Daniel Milton Moore III, Jeanette Giddens Garrett, Jeff Cox, James Mark Stephens - Writing, and Jay Bowen McCallum.

Rehearing denied.

      Prior to ruling on the motions, the trial judge entertained the idea of reconsidering portions of recorded testimony from trial. The state opposed such an action, and filed a writ application with this court. Considering that no ruling had been made by the trial court, this court deemed the state's application as premature, and it was not considered. State v. Barnett , 51,427-KW (La. App. 2 Cir. 12/08/2016).


source: Caselaw Access Project

author: WILLIAMS, C.J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. James Hardy PITMAN, Appellant
    No. 52,418-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019
    LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant
    JAMES HARDY PITMAN, Pro Se
    JAMES E. STEWART, SR., District Attorney, MEKISHA S. CREAL, TOMMY J. JOHNSON, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, GARRETT, and STONE, JJ.
   WILLIAMS, C.J.

The defendant, James Hardy Pitman, was charged by bill of information with molestation of a juvenile, in violation of La. R.S. 14:81.2(A)(1). Following a bench trial, the defendant was found guilty as charged. Thereafter, the defendant was sentenced to serve 45 years at hard labor, with the first 25 years to be served without the benefit of parole, probation or suspension of sentence. For the following reasons, we affirm.

FACTS

The defendant, James Pitman, and B.S. were married in 2002; they had a child, I.P., in 2005. The family lived together in a mobile home in Keithville, Louisiana, until the defendant and B.S. separated in 2010. At that time, B.S. and I.P. moved to an apartment in Shreveport, and the defendant relocated to another mobile home park in Caddo Parish. Following her parents' separation, I.P. would visit the defendant at his mobile home; some of the visits were overnight. At times, the defendant would spend the night with B.S. and I.P. at their apartment while the couple attempted to reconcile.

In December 2014, B.S. filed a petition for divorce after she discovered that the defendant had been unfaithful to her. Soon thereafter, I.P. confided to B.S. that the defendant had sexually abused her on multiple occasions when she was younger.

On December 5, 2014, B.S. took I.P. to the Gingerbread House, a children's advocacy center in Shreveport, for a previously scheduled appointment. At the behest of the staff of the Gingerbread House, B.S. contacted the Shreveport Police Department and reported the molestation. Thereafter, the matter was referred to the Caddo Parish Sheriff's Office. Detective Jared Marshall arranged for I.P. to be interviewed by a forensic interviewer at the Gingerbread House. During the interview, I.P. detailed various sexual acts committed upon her by the defendant, beginning when she was three years old and ending when she was six years old. More specifically, I.P. stated as follows: the defendant would force her to "rub" his penis; the defendant would use his hands to "rub" her genital area; the defendant had penetrated her vagina with his penis; and the defendant had taken photographs of her genital area.

On January 5, 2015, the defendant was charged by bill of information with one count of molestation of a juvenile under the age of 13, in violation of La. R.S. 14:81.2. The bill of information alleged that the offense was committed in Caddo Parish between 2009 and 2014.

A bench trial commenced on November 9, 2016. Det. Marshall testified that during the course of the investigation, he interviewed B.S. and I.P., and he arranged for I.P. to undergo a forensic interview. He further stated that he observed the interview, during which I.P. detailed the sexual interactions between her and the defendant. On cross-examination, Det. Marshall testified that he interviewed at least two people with young children with whom the defendant had contact. Det. Marshall stated that there was no indication that the other children had been the victims of any inappropriate behavior involving the defendant. Further, Det. Marshall testified that B.S. reported to him that, in the past, she had asked I.P. about sexual abuse on several occasions and I.P. denied any abuse.

I.P., who was ten years old, testified at the trial. During her testimony, I.P. identified her 2014 Gingerbread House interview, which was played in open court. The video recording depicted I.P. as she described several acts of sexual abuse by the defendant, beginning when she was three years old, and ending when she was six years old. According to I.P., the defendant touched her inappropriately at three different locations: (1) the "old house" in Keithville where she lived with the defendant and her mother; (2) the defendant's mobile home in Keithville; and (3) the apartment in Shreveport where I.P. lived with her mother. I.P. stated that the defendant would remove his clothes and force her to grab him "down there." She also reported that the defendant attempted to kiss her on her mouth. Further, I.P. stated that the defendant would order her to lie on top of him, while both of them were naked, and instruct her "to move up and down." According to I.P., the acts she described occurred at all three residences.

Additionally, during the interview, I.P. disclosed the following: when she was "five or six" years old, and the family was living at the mobile home park in Keithville, the defendant inserted the tip of his penis into her vagina; the defendant took photographs of her vagina and forced her to watch videos that contained "sexual" material; during one incident at her mother's apartment, the defendant instructed her to "sit in front of him" while they were both naked; on another occasion, the defendant forced her to rub his penis with "clear gel" and instructed her to put her mouth "down there" but she refused to do so; the defendant warned her not to tell "mommy or anybody" about the sexual acts; and she "felt safe" telling her mother about the abuse after her mother filed the petition for divorce.

After the video of the Gingerbread House interview was played, I.P. verified that she told the truth during the interview. She also testified that she did not tell her mother about the ongoing abuse because she was scared the defendant "would try to hurt [her]." Further, I.P. testified that she "does not like to talk about" the sexual abuse and that it was difficult for her to testify regarding the abuse.

During cross-examination, I.P. testified that prior to his arrest, she enjoyed doing things with the defendant, such as Judo, playing, and watching television. I.P. also identified a Father's Day card she sent to the defendant after he was arrested for the molestation.

Jennifer Flippo, a forensic interviewer at the Gingerbread House, testified that she conducted I.P.'s interview on December 5, 2014. Flippo was accepted by the trial court as an expert in "the field of forensic interviewing and in the field of child abuse dynamics."

Flippo testified that during her interview with I.P., the child exhibited the following behaviors when she began discussing the sexual abuse committed by her father: her head dropped, she spoke softly and mumbled, and she avoided maintaining eye contact. Flippo explained that I.P.'s behavior was common and indicated "embarrassment or fear." According to Flippo, I.P. recalled different episodes of abuse based upon where she was living at the time because children generally have difficulty quantifying time and often use events as a point of reference. Flippo opined that I.P.'s disclosure of the sexual abuse was not related to the custody dispute between her parents because I.P.'s descriptions of the acts of abuse were "very detailed" and did not appear to be memorized or scripted. Further, Flippo testified that it is common for an abused child to keep in contact with her abuser after the abuse ends. Flippo also stated that it was not unusual that I.P. did not disclose the abuse during her 2012 interview at the Gingerbread House because sometimes, children are not "emotionally ready" to disclose abuse "until they feel safe" to do so.

B.S. testified as follows: she, the defendant and I.P. lived in Keithville until 2010, when she left the defendant and moved to an apartment in Shreveport; she filed for divorce in January 2014, when she learned that the defendant was having an affair; after the separation, the defendant moved to a mobile home located in a trailer park in Shreveport; I.P. would sometimes stay overnight with the defendant; occasionally, she and the defendant would spend the night at each other's residences; she noticed that I.P. would sometimes cry and complain that she did not want to stay overnight with the defendant; the defendant had supervision over I.P. when she stayed overnight with him; occasionally, her job as a kennel manager required her to leave the house for "an hour or so" on the weekends; the defendant would stay with I.P. while she worked on weekends; when she and the defendant were married, her younger cousin, T.Y., would stay overnight at their house; at the time, T.Y. was "12 or 13" years old; on one occasion, she saw T.Y. and the defendant sitting on a sofa together with a blanket covering their laps; and she had never threatened the defendant.

T.Y. testified as follows: when she was younger, she would sometimes stay overnight with B.S. and the defendant at their home in Keithville; one night, when she was "around seven years old," the defendant forced her to touch his penis; the incident occurred when B.S. was asleep; on another occasion, when she was "around 17 or 18," the defendant inserted his finger into her anus; she told the defendant to stop his actions, but he refused to do so; the defendant threatened to harm B.S. if T.Y. told anyone about the incident; and she left the defendant's home the day after the incident and never stayed overnight at the home again.

On cross-examination, T.Y. acknowledged that in 2012, she called the defendant and asked him to pick her up from a party. She stated that the defendant picked her up from the party and drove her home without incident.

Nicole Avise-Brownell, the defendant's friend, also testified. She stated that the defendant often stayed at her home when her children were present. She also testified that the defendant had never behaved inappropriately with her children.

Paula Pitman, the defendant's mother, testified as follows: the defendant and B.S. had "marital problems" and had separated several times prior to their divorce; before the defendant was arrested, she would often supervise visits between him and I.P.; during the visitations, I.P. was "always excited" to see the defendant; and after B.S. filed the petition for divorce, she threatened to "make [the defendant] pay."

Rex Pitman, the defendant's father, testified that he had observed the defendant and I.P. playing together and practicing martial arts. He corroborated his wife's testimony that B.S. had threatened "to make [the defendant] pay."

The defendant also testified at trial and acknowledged his alcoholism and its effect on his marriage and his ability to parent. The defendant stated that he and I.P. had a "good relationship." The defendant corroborated B.S.'s testimony with regard to the different places they had lived, both during the marriage and after the separation. However, the defendant testified that he and I.P. often accompanied B.S. to the kennel when she had to work on weekends and that he rarely stayed alone with I.P. The defendant also denied inappropriately touching either I.P. or T.Y. According to the defendant, after the car-washing incident in 2012, B.S. threatened him by stating, "Now I know how I can get you if you make me angry." The defendant acknowledged that he had several criminal convictions, including convictions for simple battery, violation of a protective order, domestic abuse battery (of B.S.), and simple resisting arrest.

After hearing the testimony and reviewing the evidence, the trial court found the defendant guilty as charged of molestation of a juvenile. The court noted I.P.'s credibility with regard to her testimony at trial and her interview at the Gingerbread House. Subsequently, the trial court denied the defendant's motions for new trial and post-verdict judgment of acquittal. The defendant was sentenced to 45 years' imprisonment at hard labor, with the first 25 years to be served without the benefit of probation, parole or suspension of sentence.

The defendant now appeals.

DISCUSSION

The defendant contends the evidence was insufficient to support his conviction for molestation of a juvenile. He argues that the testimony of the witnesses was "internally contradictory" and irreconcilable. He also argues that several witnesses testified that B.S. had threatened to "make him pay." The defendant also notes I.P.'s "late disclosure" of the sexual abuse and her failure to disclose the allegations during her 2012 interview at the Gingerbread House. Further, according to the defendant, T.Y.'s testimony that he sexually abused her was not credible.

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

State v. Pigford , 2005-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Robertson , 1996-1048 (La. 10/4/96), 680 So.2d 1165.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton , 436 So.2d 471 (La. 1983) ; State v. Wilson , 50,418 (La. App. 2 Cir. 4/6/16), 189 So.3d 513, writ denied , 2016-0793 (La. 4/13/17), 218 So.3d 629.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher , 41,981 (La. App. 2 Cir. 5/9/07), 956 So.2d 769 ; State v. Burd , 40,480 (La. App. 2 Cir. 1/27/06), 921 So.2d 219, writ denied , 2006-1083 (La. 11/9/06), 941 So.2d 35. Likewise, the sole testimony of a sexual assault victim is sufficient to support a requisite factual finding. State v. Wilson , supra. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Ponsell , 33,543 (La. App. 2 Cir. 8/23/00), 766 So.2d 678.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen , 36,180 (La. App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied , 2002-2595 (La. 3/28/03), 840 So.2d 566, 2002-2997 (La. 6/27/03), 847 So.2d 1255, cert. denied , 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 1994-3116 (La. 10/16/95), 661 So.2d 442.

The trier of fact is charged to make credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey , 1999-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). Credibility determinations are the province of the trier of fact. State v. Johnson , 38,927 (La. App. 2 Cir. 11/23/04), 887 So.2d 751 ; State v. Powell , 27,959 (La. App. 2 Cir. 4/12/96), 677 So.2d 1008, writ denied , 1996-1807 (La. 2/21/97), 688 So.2d 520.

La. R.S. 14:81.2 provides, in pertinent part:

A. (1) Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age shall not be a defense.

In the instant case, it is undisputed that at the time of the offense, I.P. was under the age of 13, the defendant was over the age of 17, and the age difference between I.P. and the defendant was more than two years. It is also undisputed that the defendant, as I.P's father, was in a position of supervision or control over her.

The evidence of record reveals that during her Gingerbread House interview, I.P. stated that the defendant performed various sexual acts with her from the time she was three years old until she turned six years old. Specifically, I.P. stated that the defendant touched her genitals, required her to touch his genitals, inserted his penis into her vagina, and forced her to lie on top of him naked while he moved her body "up and down." I.P.'s description of those acts, including the time and location of the sexual abuse, was detailed and consistent. At trial, I.P. verified that the statements she made during her Gingerbread House interview were truthful.

Additionally, I.P.'s description of where she lived during different periods of time (which assisted her in recalling specific acts of sexual abuse) was corroborated by the testimony of B.S. and the defendant. B.S. testified that the defendant would spend time alone with I.P. when they still lived together, and later at his mobile home and her apartment after they separated. The defendant's testimony further corroborated the living arrangements of the family, although he denied any wrongdoing.

In finding that the defendant was guilty of the crime, the trial court stated:

The Court then had to decide and determine who was most credible, who does the Court believe. Ultimately, the Court believes that I.P. would not fabricate these charges unless induced to do so by an adult. The Court believes that the timeline does not suggest to the Court that it is rational to believe that [B.S.] would coach I.P. to do [so].
* * *
The Court does not find the timeline is consistent with allegations of fabrication. It is not consistent with allegations of coaching or an impure or a prurient motive in making these allegations. And, therefore, the Court believes that I.P. deserves to be believed, as she was an entirely credible witness.

After reviewing this record in its entirety, we find the evidence was sufficient to prove that the defendant committed the offense of molestation of a juvenile under the age of 13. I.P.'s testimony, including her statements during her interview at the Gingerbread House, was detailed and consistent, and it did not conflict with any physical evidence. Based upon the testimony of the victim alone, the trial court could reasonably have found that the state proved the essential elements of the crime of molestation of a juvenile beyond a reasonable doubt. Thus, under the Jackson standard, the evidence presented was sufficient to support the defendant's conviction for molestation of a juvenile under the age of 13. The trial court, the factfinder in this case, reasonably accepted I.P.'s testimony as credible and rejected the defendant's denials of wrongdoing. This assignment of error is without merit.

ERRORS PATENT

In accordance with La. C. Cr. P. art. 920, all appeals are reviewed for errors patent on the face of the record. A review of the record herein reveals one error.

The record reveals that the trial court denied the defendant's motions for new trial and post-verdict judgment of acquittal in open court on July 18, 2017, the day the sentence was imposed. There is no indication in the record that the defendant expressly waived the sentencing delay.

La. C. Cr. P. art. 873 provides:

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

When the defendant makes no showing of prejudice, the trial court's failure to observe La. C. Cr. P. art. 873 is a harmless error, and there is no need to remand for resentencing. State v. Sermons , 41,746 (La. App. 2 Cir. 2/28/07), 953 So.2d 958, writ denied , 2007-0789 (La. 11/2/07), 966 So.2d 601 ; State v. Moossy , 40,566 (La. App. 2 Cir. 3/10/06), 924 So.2d 485.

In this case, the defendant did not object to the trial court's failure to observe the delay and did not raise the issue on appeal. Upon denying the defendant's motions, the trial court noted the defendant's objection to its ruling and proceeded with sentencing. After hearing the testimony of two defense witnesses, the trial court inquired, "Any argument by either side?" Defense counsel responded by asking the court to consider factors such as the defendant's age, the age of his parents, the hardship to his family and the health of his parents.

Our review of the record reveals no showing of prejudice to the defendant. Thus, the trial court's failure to observe the statutory requirement with regard to sentencing delays was harmless error.

CONCLUSION

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

AFFIRMED.

      At trial, the defendant spelled his middle name "Hardie." However, it is spelled "Hardy" throughout the remainder of the record.

      The victim in this matter will be referred to by her initials for confidentiality purposes in accordance with La. R.S. 46:1844(W). Additionally, when possible, the relatives, whose identities could aid in the identification of the victim, will be referred to either by their initials or by their relation to the victim.

      I.P.'s date of birth is November 23, 2005.

      I.P. was undergoing counseling at the Gingerbread House as a result of a complaint made by some employees at an apartment complex. According to the record, the employees reported that I.P. was washing the defendant's car "in a provocative manner," while the defendant was videotaping her. During the 2012 Gingerbread House interview, I.P. related that the defendant would "get drunk" and "curse" and fight her mother. However, I.P. did not disclose that the defendant was sexually abusive toward her. The defendant was never charged with any crime stemming from the "car-washing" incident.
      With regard to that incident, B.S. testified as follows: the defendant and I.P. were washing the defendant's car; the defendant began videotaping I.P.; some employees at the apartment complex thought the behavior was sexually provocative and called law enforcement; the police department investigated the incident and no charges were filed; at that time, she did not suspect that the defendant had done anything inappropriate to I.P.; and took I.P. to counseling at the Gingerbread House following that incident.

      The trial court had previously conducted a "Gingerbread hearing" on July 16, 2015. Following that hearing, the court ruled that the video recording of I.P.'s 2014 Gingerbread House interview was admissible. The video was admitted into evidence as State's Exhibit # 1.

      The Father's Day card was admitted into evidence as a defense exhibit.

      Flippo stated that she has a bachelor's degree in psychology, a master's degree in "counseling psychology," and she had been employed at the Gingerbread House for approximately 15 years.

      The defendant was not convicted of any crime with regard to the allegations made by T.Y. Therefore, those allegations are not at issue in this appeal.

      Christina Leigh Hendricks, the defendant's childhood friend, testified that B.S. sent her a message on Facebook threatening to "put [the defendant] in jail." However, the message, which was read by the trial court, actually stated that the defendant had been arrested and charged with domestic abuse battery, assault and resisting arrest.

      La. R.S. 14:81.2 was amended during the period of time during which the defendant molested I.P. (between 2009 and 2014). However, the definition of the offense and penalty have remained the same.


author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Michael G. PAYNE, Appellant
    No. 52,310-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019
    FLOWERS, LONG & HATCH, LLP, By: Christopher Hatch, Counsel for Appellant
    JAMES E. STEWART, JR., District Attorney, Counsel for Appellee
    TOMMY JAN JOHNSON, MEKEISHA SMITH CREAL, Assistant District Attorneys
    Before PITMAN, GARRETT, and BLEICH (Pro Tempore ), JJ.
   GARRETT, J.

Following a jury trial, the defendant, Michael G. Payne, was convicted as charged of one count of aggravated assault with a firearm and sentenced to ten years at hard labor, with all but 18 months suspended, and supervised probation for five years. As to a second charge of aggravated assault with a firearm, he was convicted of the responsive verdict of simple assault and sentenced to 90 days in the parish jail. As to a charge of second degree battery, he was convicted of the responsive verdict of simple battery and sentenced to six months in the parish jail. The misdemeanor sentences were imposed concurrently with any other sentences and with credit for time served. The defendant appealed, challenging the sufficiency of the evidence and asserting that the sentences were excessive. We affirm the defendant's convictions and sentences.

FACTS

In the early morning hours of July 7, 2014, the police were summoned to a residence on Albany Avenue in Shreveport occupied by Edward Carey, his wife, and their two young children. The defendant and his wife, Dr. Jennifer Payne, lived across the street from the Careys. Following a violent domestic confrontation with the defendant, Dr. Payne had fled to the Carey residence and taken refuge there. After the police arrived and spoke to Mr. Carey and Dr. Payne, the defendant was arrested. He was charged with two counts of aggravated assault with a firearm for pointing an SKS rifle at his wife and Mr. Carey. He was also charged with one count of second degree battery for injuries sustained by Dr. Payne before she fled from her home to the Carey residence.

Jury trial was held in September 2017. The state presented the testimony of Dr. Payne, Mr. Carey, the emergency room physician who treated Dr. Payne, the police detective who handled the case, and a police officer who responded to the scene. The defendant testified, recounting a version of events that differed wildly from that of the state's witnesses. He also presented two character witnesses. Dr. Payne then testified on rebuttal. On the two counts of aggravated assault with a firearm, the jury convicted the defendant as charged on the count pertaining to Mr. Carey but simple assault on the charge pertaining to Dr. Payne. On the charge of second degree battery against his wife, he was convicted of simple battery.

A sentencing hearing was held in October 2017, at which the defendant's mother testified. After a careful and painstaking review of the aggravating and mitigating factors, the trial court imposed a 10-year hard labor sentence on the felony conviction of aggravated assault with a firearm; however, it suspended all but 18 months of the sentence and ordered the defendant to serve active supervised probation for five years following his release from jail. As to the misdemeanor convictions of simple battery and simple assault, the trial court ordered the defendant to serve, respectively, six months and 90 days in the parish jail. The misdemeanor sentences were ordered to be served concurrently with any other sentences and with credit for time served. The defendant's timely motion to reconsider sentence was denied.

The defendant appealed. He asserted that the evidence was insufficient to support his convictions and that the sentences imposed were excessive.

SUFFICIENCY OF EVIDENCE

Law

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. 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. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717, writ denied , 16-1479 (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 factfinder. State v. Pigford , 05-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Robinson , supra .

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 the factfinder's decision to accept or reject the testimony of a witness in whole or in part. State v. Robinson , supra ; State v. Jackson , 51,575 (La. App. 2 Cir. 9/27/17), 244 So.3d 764.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Robinson , supra ; State v. Randle , 49,952 (La. App. 2 Cir. 6/24/15), 166 So.3d 465. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Lambert , 52,004 (La. App. 2 Cir. 5/23/18), 248 So.3d 621 ; State v. Johnson , 47,913 (La. App. 2 Cir. 4/10/13), 113 So.3d 1209.

The testimony of a victim alone is sufficient to convict a defendant. State v. Lambert , supra ; State v. McGill , 50,994 (La. App. 2 Cir. 1/11/17), 213 So.3d 1181, writ not cons. , 17-0455 (La. 4/24/17), 219 So.3d 329.

Battery is defined as the intentional use of force or violence upon the person of another or the intentional administration of a poison or other noxious liquid or substance to another. La. R.S. 14:33. Simple battery is a battery committed without the consent of the victim. La. R.S. 14:35. Simple battery is a responsive verdict to second degree battery. La. C. Cr. P. art. 814(A)(21).

Second degree battery is a battery when the offender intentionally inflicts serious bodily injury. La. R.S. 14:34.1(A). "Serious bodily injury" means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death. La. R.S. 14:34.1(B)(3).

Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery. La. R.S. 14:36. Simple assault is an assault committed without a dangerous weapon. La. R.S. 14:38. Simple assault is a responsive verdict to aggravated assault with a firearm. See La. C. Cr. P. art. 815.

Aggravated assault with a firearm is an assault committed with a firearm. La. R.S. 14:37.4. To convict a defendant of aggravated assault with a firearm, the state has to prove the defendant made an attempt to commit a battery, or intentionally placed the victim in reasonable apprehension of receiving a battery by the discharge of a firearm. State v. McCoy , 45,090 (La. App. 2 Cir. 4/14/10), 34 So.3d 1145. A discharge of the firearm is not an element of the offense. State in Interest of C.B. , 52,245 (La. App. 2 Cir. 6/27/18), 251 So.3d 562.

Trial Testimony

Dr. Payne, an internal medicine doctor at a Shreveport hospital, testified that she and the defendant married in 2012. They lived on Albany Avenue with her two sons, ages 15 and 12. Because the defendant lost his job as a landman soon after their wedding, he had taken the role of a stay-at-home parent for his stepsons while his wife worked. However, by July 2014, Dr. Payne had become involved in a romantic relationship with a man named Daniel Prime. The defendant was aware of the relationship.

Dr. Payne testified that, on the evening of July 6, 2014, she and her husband went out to dinner with a female physician who was a friend of hers. They ate at one restaurant and then went to another for drinks. Both spouses consumed alcohol. During the course of the evening, she and her husband argued over her not immediately answering her phone or responding to his texts when she was at work. They dropped off Dr. Payne's friend and went home where the argument began anew. After the matter began to escalate, Dr. Payne left the residence and went back to her friend's house for a few hours. It was after midnight when she began to drive home.

En route, Dr. Payne stopped in the parking lot of a church that was located down the street from her home. She testified that she was talking on her cell phone with Tammy Prime, who was then married to Mr. Prime. According to Dr. Payne's testimony, she had been in the parking lot for five to ten minutes when her husband came "flying" down the road in his Tundra pickup truck and pulled into the parking lot. Dr. Payne told Ms. Prime that she saw him coming and ended the call. Her phone began to ring and caller ID showed that it was Mr. Prime.

When Dr. Payne rolled down her window to talk to the defendant, he reached in her vehicle, snatched her cell phone, and then got back in his truck. Dr. Payne exited her vehicle, got on the truck's running board, and reached inside the truck to try to retrieve her phone. The defendant then accelerated the truck and rapidly drove down the street with his wife clinging to the side-view mirror of the truck and screaming at him to stop. The defendant answered Mr. Prime's phone call. Dr. Payne described the defendant as screaming and yelling into the phone, threatening to kill Mr. Prime.

When they arrived at the house, the defendant began pushing and shoving Dr. Payne in the front yard while yelling at her. He shoved her so hard she fell to the ground and struck her head on the roots of a tree. Dr. Payne testified that she briefly lost consciousness for a minute or less. When she woke up, the defendant had gone inside the house. Disoriented, she went inside where she found the defendant standing between the living and dining areas. He threatened to kill Mr. Prime and then picked her up and tossed her into the front door. She fell to her knees on the floor.

The defendant then stated that he wondered if Mr. Prime ever wondered why his girlfriends keep winding up dead. Dr. Payne testified that Mr. Prime had previously dated a woman who was killed by a former boyfriend. Because the defendant referred to plural "girlfriends" being killed, she took this as a death threat against herself. When the defendant began to walk toward their bedroom, where he stored his firearms, she fled the house.

Dr. Payne ran across the street to the home of the Carey family. She rang the doorbell and knocked. Mr. Carey answered the door and admitted her into the residence after she told him that she and the defendant were fighting. Mr. Carey told her to go to the back of the house and get on the ground. She heard him yell to his wife to get herself and their children out of bed and on the ground.

The police were summoned. After Dr. Payne gave a statement, Ms. Carey drove her to the emergency room where she was examined by a doctor and underwent tests, including a CT scan of her brain. She was given pain medication and discharged. Dr. Payne testified that she had had a seizure once when she was on a medication that lowered the seizure threshold. After she stopped taking the medication, she never suffered another seizure.

Dr. Brent Smith testified that he treated Dr. Payne in the emergency room at about 3:30 a.m. on July 7, 2014. She was anxious and said she felt confused and dazed. She reported being shoved down, hitting her head, and losing consciousness. When asked if this had happened before, she said that it had. Dr. Smith noted that there was an objective finding of tenderness on the back of her head. He observed that her knees were bruised and one had swelling. An x-ray of her right knee did not reveal any broken bones, and a CT scan showed no bleeding of the brain. Based upon his own physical assessment and the history obtained from the patient, he diagnosed her as suffering from a concussion.

According to Mr. Carey's testimony, he and his wife were asleep when Dr. Payne came to their home at about 1:30 a.m. and urgently rang the doorbell. Mr. Carey dressed quickly, grabbed his Ruger LCP pistol, and answered the door. Dr. Payne, who was nervous and scared, asked to be admitted and said that the defendant was trying to kill her.

As Mr. Carey was letting Dr. Payne into the house, he observed the defendant crossing the sidewalk and entering his front yard. Due to a streetlight that shone on his front yard, Mr. Carey testified that he was able to see that the defendant was armed with a rifle, which he brought up to his shoulder in an "aiming position." Mr. Carey testified that the defendant aimed the rifle at him and Dr. Payne. Mr. Carey shut and locked his front door. He directed Dr. Payne to the back of his house. He also instructed his wife to get their children and take them to the back of the house.

Mr. Carey testified that the defendant came up onto his porch and began cussing and screaming that "I'm going to f---ing kill her, and I'm going to f---ing kill him." Mr. Carey further testified that he took the statements to be threats against him and Dr. Payne. He peeked out a small window in the door and saw that the defendant was on a cellphone.

In the meantime, Ms. Carey was trying to kennel their dog, which was barking. Mr. Carey went to his children's bedroom and pulled them out of their beds because he feared they were in peril of any rifle bullets that might be fired through the front door. He told Ms. Carey that the defendant had a gun and to call 911. He returned to the front of the house. Unable to see or hear the defendant, Mr. Carey was afraid that he might have gone around to the side or back to try to find another way to enter the house. Just as he was loading a shotgun he had retrieved from a closet, the police arrived.

Five or ten minutes later, Mr. Carey saw what he believed to be Dr. Payne's white Range Rover turning into the Paynes' driveway. He told the police that it was probably the defendant driving up. A few minutes later, he saw the defendant being put in one of the police vehicles. His wife drove Dr. Payne to the hospital for treatment of her injuries.

Officer Nathaniel Tavarez was dispatched to the Carey home in reference to a domestic physical call. He talked to Dr. Payne and Mr. Carey and later prepared an arrest report. Officer Tavarez described Dr. Payne as being upset and distraught when they spoke. Dr. Payne told him that she and her husband argued about her talking to another man. When she stopped her vehicle down from their house, he pulled up next to her. She got out of her vehicle to talk to him and stood on the side of his truck. She said that the defendant then "took off" at a "high rate of speed" and pulled into their driveway. He twice pushed her down in their yard. She ran across the street to her neighbor's house to get away from him. Mr. Carey told Officer Tavarez that, after he admitted Dr. Payne into his house, he saw the defendant walking across the street into his front yard with a rifle in his hand.

According to Officer Tavarez, the defendant drove up and pulled into the driveway of his home. The officer recounted finding a black SKS rifle in the vehicle driven by the defendant. There was no round in the chamber, but a magazine was loaded in the rifle. Of the 18 rounds in the magazine, every fourth round was a hollow point. Officer Tavarez explained that a hollow point bullet is meant to stop when it goes in something, whereas a full metal jacket goes on through. He arrested the defendant for domestic abuse battery.

Detective Shaundra Holmes, a detective with the Domestic Violence Unit of the Shreveport Police Department, was assigned to investigate the case. During the course of her investigation, she spoke with Dr. Payne and Mr. Carey. Dr. Payne informed her that there had been a verbal dispute with the defendant that led to physical abuse. She stated that she had to flee from her home twice that evening. The first time she left and went to the home of a friend with whom they had dined earlier in the evening. The second time she fled to the home of her neighbors across the street after a physical altercation with the defendant. Mr. Carey told Detective Holmes that he and his wife were awakened by knocking and the ringing of their doorbell. When he answered the door, Dr. Payne said she and the defendant had had a physical altercation. Mr. Carey allowed her in the house and saw the defendant approaching with a rifle.

As previously noted, the defendant's version of the events differed markedly from those given by the state's witnesses. He admitted that he and his wife argued that evening about their lack of communication during the day. The argument began while they were dining out with friends of his wife and continued after they arrived home. His wife left and went to the home of one of their earlier dinner companions. The defendant testified that he and his wife texted back and forth, and that she finally said she was leaving for home in five minutes. He fell asleep and, when he awoke at 1 a.m., Dr. Payne had not returned home. Asserting that his wife suffered from occasional seizures, he stated that he was concerned by her absence. Consequently, he searched their house and then used the "Find My iPhone" app to locate her down the street in the parking lot of the Broadmoor Methodist Church.

According to the defendant, Dr. Payne was using her cell phone when he arrived and claimed to be talking to her mother. However, he saw Mr. Prime's number on the screen. He took her cell phone to talk to Mr. Prime. During their conversation, he asserted that Mr. Prime told him that Dr. Payne no longer wanted him and that he should leave or he and his friends would come kill him. The defendant stated that he got back in his truck with his wife's phone and that she jumped on the running board of the truck. She asked for her phone back, but he refused to return it. She then reached in the window to try to retrieve it. He asserted that she hit him in the face, scratched his shirt and ripped it open, and turned the steering wheel of the truck. He then "rolled" down the street because he knew that if she fell off or if he tried "to run her over or anything like that," he would go to jail.

When they arrived home, she got off the side of the truck, and they continued to argue inside the house. He denied shoving her down or picking her up and throwing her down. He said that she followed him into their dressing room where he changed clothes because he expected "this person to do what they said they were going to do." He got his rifle from the closet. When Dr. Payne attempted to block him from going out the front door, there was what he described as a "slight altercation." However, he eventually went outside after turning off all the interior lights. He then sat on the porch and waited for "the threat to show up." Dr. Payne came out of the house and ran across the street. He said he did not follow her at that time. He admitted that he "eventually" went to the Carey home several minutes later, but he denied taking his rifle with him. He asserted that he left it on the tailgate of his truck. The defendant testified that the Carey couple were at their front door when he knocked, but they did not open the door. When he told them that he was leaving his wife's cell phone on their doorstep, they told him not to do that. He denied yelling obscenities or threatening to kill anyone.

On cross-examination, the defendant insisted that he was not "ticked off" that his wife was talking to Mr. Prime in the church parking lot and that he had known "this had been going on for six months." During the "slight altercation" at the house, he asserted that Dr. Payne slammed the door on him ten times. However, he was not injured. As to the alleged threat by Mr. Prime, he did not call the police because they had not been helpful to him in the past and he was going to "defend myself on my property" and "take care of it" himself. He also disputed Officer Tavarez's testimony about where the police located his SKS rifle.

Discussion

We note at the outset that it is apparent that the jury rejected the defendant's self-serving account of the events that occurred on the night of July 6, 2014, and during the early morning hours of July 7, 2014. In his version, the defendant was wholly innocent of any wrongdoing and acted solely in self-defense against a threat that never materialized. Any injuries sustained by his wife were the result of her "stumbling" when she tried to prevent him from leaving the house. According to the defendant, all of the state's witnesses lied, including Mr. Carey and Officer Tavarez, who were objective, disinterested parties. Based upon their verdicts, we can deduce that the jury made reasonable credibility calls in favor of the state's witnesses.

As to the simple battery conviction, Dr. Payne testified that the defendant shoved her several times. One shove caused her to fall in the yard and strike her head on a tree root. A subsequent shove in the house caused her to strike the front door. Dr. Smith, the emergency room doctor who examined her at the hospital, found objective signs of injury which were consistent with her description of the events causing her injuries. Viewing the evidence in the light most favorable to the prosecution, the jury could have reasonably concluded that it was sufficient to establish that the defendant committed a battery upon Dr. Payne without her consent.

As to the simple assault conviction, Dr. Payne testified that she was frightened by the defendant's many actions, which included driving his truck down the street at a rapid speed while she stood on the running board and clung to the side-view mirror. She was especially frightened by what she perceived as a death threat against herself, which was followed by the defendant walking toward the only area of the house where he kept firearms. This caused her to flee her home and seek refuge at the Carey residence. While she did not see the defendant with the SKS rifle, she was told by Mr. Carey to go to the back of his house and get on the ground. She then heard Mr. Carey yelling to his wife to get herself and their children on the ground. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have reasonably concluded that the evidence was sufficient to establish that Dr. Payne was intentionally placed in reasonable apprehension of receiving an additional battery.

As to the conviction for aggravated assault with a firearm, Mr. Carey testified that Dr. Payne asked him to let her inside because her husband was trying to kill her. As he admitted her into his home, Mr. Carey saw the defendant pursuing Dr. Payne armed with an SKS rifle. Mr. Carey testified that the defendant raised the weapon to his shoulder in an "aiming position" and pointed it at him and Dr. Payne. He then heard the defendant on his porch, yelling and screaming that he was going to "kill her" and "kill him." Under the circumstances, Mr. Carey reasonably believed that the defendant's threat to "kill him" was directed at him. Furthermore, Mr. Carey testified that he was aware that the weapon being brandished by the defendant was capable of shooting through the doors and walls of his home, endangering his own family, which included two young children. Considering this evidence in the light most favorable to the prosecution, a rational trier of fact could have reasonably concluded that the evidence was sufficient to establish that Mr. Carey was intentionally placed in reasonable apprehension that the defendant was going to commit a battery on him with the use of the firearm that the defendant was carrying.

This assignment of error lacks merit.

EXCESSIVE SENTENCES

Law

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. DeBerry , 50,501 (La. App. 2 Cir. 4/13/16), 194 So.3d 657, writ denied , 16-0959 (La. 5/1/17), 219 So.3d 332. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos , 419 So.2d 475 (La. 1982) ; State v. DeBerry , supra . The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation. State v. Jones , 398 So.2d 1049 (La. 1981) ; State v. DeBerry , supra . There is no requirement that specific matters be given any particular weight at sentencing. State v. DeBerry , supra ; State v. Shumaker , 41,547 (La. App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied , 07-0144 (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 and needless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Bonanno , 384 So.2d 355 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 01-0467 (La. 1/15/02), 805 So.2d 166 ; State v. Meadows , 51,843 (La. App. 2 Cir. 1/10/18), 246 So.3d 639, writ denied , 18-0259 (La. 10/29/18), 254 So.3d 1208.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cotten , 50,747 (La. App. 2 Cir. 8/10/16), 201 So.3d 299. The sentencing court has wide discretion in imposing a sentence within statutory limits, and such a sentence will not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams , 03-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Duncan , 47,697 (La. App. 2 Cir. 1/16/13), 109 So.3d 921, writ denied , 13-0324 (La. 9/13/13), 120 So.3d 280. The trial court is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. 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) ; State v. Jackson , supra .

The sentencing range for aggravated assault with a firearm is a fine of not more than $10,000, or imprisonment for not more than ten years, with or without hard labor, or both. La. R.S. 14:37.4(C).

Simple battery is punishable by a fine of not more than $1,000, or imprisonment for not more than six months, or both. La. R.S. 14:35(B).

The penalty for simple assault is a fine of not more than $200, or imprisonment for not more than 90 days, or both. La. R.S. 14:38(B).

Discussion

The defendant contends that the trial court abused its discretion in imposing excessive sentences for all the offenses. In particular, he complains about the trial court ordering that he serve 18 months imprisonment, instead of suspending the entire ten-year sentence for aggravated assault with a firearm. The defendant maintains that he does not require imprisonment because he is a "least egregious" offender, has no prior history of violence, and behaved well while out on bond. He further asserts that the trial court failed to sufficiently consider pertinent factors, such as his military service, his academic and employment record, his family ties, and his lack of prior criminal convictions.

Prior to imposing sentence, the trial court stated that it would concentrate on the felony charge of aggravated assault with a firearm. It then exhaustively reviewed all relevant factors, both aggravating and mitigating. In aggravation, the trial court considered the fact that the defendant created a risk of death or great bodily harm to more than one person. The trial court stated that it "absolutely reject[ed] as implausible the defendant's account of this night" and found no reason to doubt that Mr. Carey saw the defendant coming toward his house with the firearm pointed at him. While noting that it did not believe that Mr. Carey was a deliberate target of the defendant's cruelty, the trial court found that the fact of being an incidental victim did not diminish the impact of the defendant's actions. It also considered the "terrifying" threat of violence against Mr. Carey and his family during this "extremely volatile" situation and the great danger posed to them by the SKS rifle, which had 7.62x39mm rounds which were capable of going through the front of the Carey home and injuring or killing its occupants.

In mitigation, the trial court considered whether the defendant acted under strong provocation. It concluded that the circumstances were in "the slightest degree provocative." However, it noted that the defendant's conduct was still outrageous, unjustified, criminal, and wrong. The trial court further concluded that neither Mr. Carey nor Dr. Payne induced or facilitated the offense. The most mitigating factor in the defendant's favor was his lack of prior criminal history, except for a 2016 DWI conviction in Texas. The trial court also favorably noted the defendant's military service and testimony that he had received counseling for anger issues through the Department of Veterans Affairs. Because he was divorced from Dr. Payne and no longer lived near Mr. Carey, the trial court found that the defendant's criminal conduct was unlikely to recur. It also observed that the conduct was not likely to recur because the felony conviction would prevent the defendant from owning or possessing a firearm in any state. As to the likelihood that the defendant would respond to probation, the trial court found that it had reason to believe that a split sentence would be appropriate.

As a result of its consideration of these many factors, the trial court imposed the maximum sentence of ten years at hard labor; however, it suspended all but 18 months. Active supervised probation was ordered for a period of five years, and the court directed that any probation and parole periods would run concurrently with one another. As special conditions, the trial court ordered that the defendant not own or possess a firearm; that he complete anger management counseling; and that he have no contact with Dr. Payne that was not sanctioned by the supervising court involved in family court proceedings. It also imposed maximum sentences on the two misdemeanor convictions.

As can be seen, the trial court appropriately considered all of the relevant factors set forth in La. C. Cr. P. art. 894.1 and thoroughly articulated its reasons for imposing the sentences. In particular, the trial court noted the defendant's military record and his participation in counseling, as well as his lack of prior criminal history. However, the trial court found that the defendant's offenses, particularly the offense committed against Mr. Carey, warranted the sentences imposed, given the seriousness of the offense and the potential danger posed to Mr. Carey, the Carey family, and Dr. Payne. It also referred to the "profound terror and distress" to Dr. Payne and Mr. Carey caused by the defendant's actions.

The defendant argues that the trial court failed to give due consideration to the mitigating factor that, on the night of the incident, he was "dealing with the traumatic and shattering revelation that his wife was having an affair." To the contrary, the defendant testified that he had been aware of his wife's relationship with Mr. Prime for six months before this incident.

Additionally, the defendant contends that the sentences for the two misdemeanors violated La. C. Cr. P. art. 493.1. While the defendant was convicted of responsive misdemeanors on two counts, he was actually charged with three felonies. Furthermore, the statute is not violated when sentences are imposed concurrently. State v. Swan , 544 So.2d 1204 (La. App. 1 Cir. 1989) ; State v. Richmond , 464 So.2d 430 (La. App. 1 Cir. 1985), writ denied , 467 So.2d 535 (La. 1985).

Given that all of the sentences were run concurrently and the overwhelming majority of the felony sentence was suspended, the sentences imposed here are not out of proportion to the seriousness of the defendant's offenses. These sentences, which were carefully tailored to the defendant and his offenses, do not shock the sense of justice.

This assignment of error is without merit.

ERROR PATENT

We note that the minutes incorrectly state that the defendant was "sentenced as to counts # 1 [simple battery] and 2 [simple assault] to serve six (6) months in the parish jail." When the transcript and the court minutes conflict, the transcript prevails. State v. Lynch , 441 So.2d 732 (La. 1983) ; State v. Lambert , supra ; State v. Bell , 51,312 (La. App. 2d Cir. 5/17/17), 222 So.3d 79. Accordingly, the trial court is instructed to correct this error in the minutes to reflect that the defendant's sentence for simple assault was 90 days in the parish jail.

CONCLUSION

The defendant's convictions and sentences are affirmed.

AFFIRMED.

      Following their respective divorces, Dr. Payne and Mr. Prime married. However, they were divorced by the time of the defendant's trial in September 2017.

      La. C. Cr. P. art. 493.1 provides:
      Whenever two or more misdemeanors are joined in accordance with Article 493 in the same indictment or information, the maximum aggregate penalty that may be imposed for the misdemeanors shall not exceed imprisonment for more than six months or a fine of more than one thousand dollars, or both.