author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Brittney MCGILL, Appellant
    No. 52,600-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 10, 2019
    LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Monroe, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, EDWIN L. BREWER, III, JOSHUA K. WILLIAMS, TOMMY J. JOHNSON, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, MOORE, and STEPHENS, JJ.
   MOORE, J.

The defendant, Brittney McGill, was indicted for the second degree murder of her friend, Gabrielle "Gabby" Cooper, during a physical altercation that erupted from a dispute over a car. After trial, the jury returned a verdict of manslaughter, a violation of La. R.S. 14:31, thereby rejecting McGill's claim of justifiable homicide. The court sentenced McGill to 22 years' imprisonment at hard labor. This appeal followed.

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

FACTS

Brittney McGill and Gabby Cooper were friends who purchased a yellow Chevrolet Cobalt together. Gabby provided the money to purchase the car, but because she had no driver's license as required to register the vehicle, Brittney agreed to register it in her own name. Things soon fell apart. According to trial testimony from witnesses who knew the circumstances, when the car's temporary paper tags were near expiration, Gabby advertised on Facebook seeking someone who could provide underground tags. Brittney also heard that Gabby was letting other people use the car. On April 11, 2015, accompanied by police, Brittney retrieved the Cobalt and parked it at her residence. This was two days before the incident leading to Gabby's death.

On April 13, 2015, La'Tia "Tia" Haynes drove Gabby and Sha'Crystal "Crystal" Burrough to a house on the corner of 69th Street and Clift Street, where the Cobalt was parked in the driveway. The house is owned by the parents of Haston "Head" Smith Jr., who was Brittney's boyfriend at that time. Brittney was in the house when the young women arrived.

The house faces 69th Street at the corner of Clift Street. La'Tia parked her car around the corner on Cliff St. beside the front yard. As the trio entered the fenced yard, Head Smith arrived in his green Mustang and backed into the driveway in front of the yellow Cobalt. He was accompanied by two male friends, Sha'Cortez Monroe and Jacobe Harris. Crystal testified that they asked Head about getting the Cobalt. Brittney immediately stepped outside and said, "She ain't getting nothing!" Tia Haynes confirmed that Brittney refused to give the Cobalt to Cooper.

Crystal and Tia both testified that Gabby and Brittney "just started fighting" right then and there in the driveway. Crystal did not see or know who threw the first punch. She testified that the fight went on for some time, consisting of three or four "rounds." She said they kept stopping or that she and Head would break the combatants up, but their arguing led them to start fighting again. Crystal said that there were no weapons used while the fight was contained in the driveway. At some point in the fight or perhaps during a break in the action, Gabby ripped the paper tags off the Cobalt.

At least two onlookers video-recorded parts of the fight on their cell phones. Crystal and Tia made four such video clips on Crystal's cell phone, and police copied these onto a DVD introduced into evidence as Ex. 30 and played to the jury. Of limited quality and duration, their main usefulness was to enable the jury to understand and compare testimony regarding the scene of the fight and to identify the participants and onlookers in the fight by their clothing. Importantly, the jurors were able to assess the actions of the two women leading up to the actual stabbing.

Tia testified that after the third round, she, Tia and Gabby began walking out of the driveway to Tia's car. She said the stabbing occurred in the street behind Tia's parked vehicle on Clift St. A higher quality cell phone video of this fatal stage of the fight was recorded from the front porch of the house directly across the street (introduced as Ex. 31). The recording shows Tia (wearing shorts) standing on the sidewalk corner just outside the front yard of the house while Gabby (wearing pink pants) and Crystal (wearing a pink sweater) are standing near the edge of the property on the right side of the driveway. At the same time, Brittney (wearing white pants and black blouse) is seen walking out from the carport on the right side of the two cars parked in the driveway with her hands on her hair. As she walked around the corner of the Mustang toward the three women, Gabby backed onto the sidewalk while Tia and Crystal stepped toward Brittney. Gabby then turned and began walking away from the corner onto the street, heading toward the middle of the intersection. Brittney, who initially walked across the yard toward Tia's car, evaded Tia and Crystal and began walking toward Gabby. When Gabby looked back and saw Brittney approaching her, she stopped and faced Brittney while backing up toward Tia's car. Brittney lunged toward Gabby, thrusting several times with her right arm as Gabby was backing onto the corner sidewalk screaming. Tia testified at trial that Gabby screamed that she had been stabbed, but also she (Tia) did not realize this until she collapsed by her car. The video confirms Tia's testimony that Gabby screamed several times and then collapsed behind her car. As several onlookers rushed toward Gabby behind Tia's car, Brittney can be seen walking out from the carport on the right side of the two cars, looking toward Tia's car, then turning and walking back toward the carport. At this moment the video ended.

Crystal and Tia testified that they waited until an ambulance came and picked up Gabby to take her to the hospital. They intended to go to the hospital but were stopped by police and brought in for questioning about the incident.

There were other witnesses at trial whose testimony corroborated the video evidence. Laretha Moore testified that she was in her home directly across the street on West 69th St. when she heard noise outside. Moore went outside and saw two women fighting at the house across the street. She identified Gabby Cooper, a former coworker, as one of the women, and said that she attempted to talk to them and convince them to stop fighting. When it seemed as though the fighting was over, Moore went back into her house, but soon heard another commotion. When she went outside again, it looked as though Gabby was leaving. Moore walked to the end of her driveway and observed the two women fighting again. She did not actually see the stabbing, but heard Gabby say that she had been stabbed.

Moore also confirmed that Ex. 31, the stabbing video clip, was recorded from her front porch by a friend of her brother.

Henry Jones, another neighbor who witnessed the fight, testified that he heard a commotion outside. He opened his front door and observed two women fighting in the front yard of the house cater-corner to his across the intersection. Jones testified that the fighting stopped and Gabby grabbed the tags off one of the cars and started toward the car parked on Clift St. (Tia's vehicle); Brittney then followed Gabby out of the yard. He saw Brittney rush at Gabby and make a thrusting motion, and then Cooper fell to the ground. Jones stated that, when he "saw it getting really crazy," he called 911.

EMS transported Gabby to University Health, where physicians were unable to stop the bleeding from her heart, and she died. After EMS arrived, Crystal and Tia left the scene in Tia's vehicle, but were stopped by police and taken in for statements. Head Smith, Sha'Cortez Monroe and Jacobe Harris were also taken to the detectives' office to give statements. Thereafter, Smith could not be located, and he did not testify at trial. A bench warrant was issued for him as a material witness.

Each of the witnesses confirmed that Gabby Cooper was stabbed by Brittney McGill. One of the men, Sha'Cortez Monroe, reported to Shreveport Police Corporal David Bonillas that he picked up the knife used to stab Gabby and placed it inside the house on the kitchen counter. Police retrieved that knife and other kitchen knives from the counter during their initial investigation. The murder weapon was identified and introduced into evidence at trial.

Officer Jeffrey Hammer responded to the scene and took Brittney into custody. Brittney gave a voluntary, recorded statement to Cpl. Bonillas, saying that she stabbed Gabby because Gabby would not stop fighting and no one would intervene to stop it. Brittney also stated that she retrieved a knife to protect herself because there were three other women. When asked at trial, Cpl. Bonillas testified that Brittney's statements did not match the video of the stabbing.

Corporal Bonillas also testified that he listened to recordings of phone calls that Brittney made from Caddo Correctional Center. All inmate phone calls are recorded, and these were admitted as Ex. 112. In one of the calls, Brittney asked the other party to talk to Crystal Burrough about Crystal's trial testimony and for her to say that Brittney "didn't go back in the house."

Dr. James Traylor performed an autopsy on Gabby Cooper and testified at trial. He determined that the cause of death was sharp force injury in the form of a penetrating stab wound to the left chest that pierced Gabby's heart. He noted that the physicians had opened her chest and sutured the wound on the front of her heart, but could not stop the bleeding from the back of her heart. Gabby's manner of death was classified as a homicide.

Dr. Omar Haque testified that Brittney McGill came to the ER at University Health on April 13, 2015 (the day of the fight), with complaints of abdominal cramping and vaginal bleeding. Although she informed him about the fight with Gabby, Brittney could not recall whether she had been struck in the abdomen. Brittney reported that she was seven weeks pregnant; however, an abdominal ultrasound was performed and no intrauterine pregnancy was visualized. At the time of examination, her vagina and cervix were normal and there was no discharge, there was no bruising her abdomen and no blood found on examination. A transvaginal ultrasound was performed and no gestational sac (the sac in which the fetus develops) was visualized in the uterus. Dr. Haque said that could mean many things, "if it's not in the uterus or if it's not visualized, it could mean that that it's not there anymore or it never was there." Brittney's primary diagnosis was an ectopic pregnancy and a repeat blood pregnancy test was recommended in two days.

After trial, the jury returned a verdict of manslaughter. The court ordered a presentence investigation. The court denied a defense motion for new trial and a motion for post-verdict judgment of acquittal.

On June 18, 2018, Brittney McGill was sentenced to 22 years' imprisonment at hard labor. A motion to reconsider sentence was denied by the trial court. This appeal followed.

DISCUSSION

By her first assignment of error, Brittney contends that the state failed to prove that she was not justified in acting in self-defense or defense of another when she stabbed Gabby Cooper. She argues that the evidence showed that she acted in self-defense and in the defense of her unborn child when she stabbed Gabby. She maintains that she was pregnant at the time of the fight and subsequently lost the child. She argues that she had reason to fear Gabby because Gabby had repeatedly threatened her and refused to leave the scene of the fight when her friends asked her to do so.

The state counters that the evidence adduced at trial proved beyond a reasonable doubt that the fight had ended and that Gabby was withdrawing when Brittney fatally stabbed her. Furthermore, despite Brittney's claim that she was acting in defense of her unborn child, there was no evidence to show any causal connection between the loss of Brittney's child and the stabbing of Gabby. The evidence showed, it maintains, that self-defense and defense of others were not credible defenses in this case.

Justifiable homicide is defined by La. R.S. 14:20, the pertinent parts of which read:

A. A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
* * *
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

When a defendant claims justifiable homicide by an act in self-defense, the state has the burden of proving beyond a reasonable doubt that the homicide was not committed in self-defense. Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary include the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant's knowledge of the assailant's bad character. State v. Lensey , 50,242 (La. App. 2 Cir. 11/18/15), 182 So.3d 1059, writ denied , 15-2344 (La. 3/14/16), 189 So.3d 1066 ; State v. Johnson , 41,428 (La. App. 2 Cir. 9/27/06), 940 So.2d 711, writ denied , 06-2615 (La. 5/18/07), 957 So.2d 150. Although there is no unqualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary to avoid the danger. State v. Johnson, supra.

When the defendant challenges the sufficiency of the evidence in a self-defense case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense or in the defense of others. State v. Lensey , supra ; State v. Davis , 46,267 (La. App. 2 Cir. 5/18/11), 69 So.3d 538, writ denied , 11-1561 (La. 1/13/12), 77 So.3d 952.

The trier of fact makes credibility determinations and may accept or reject the testimony of any witness. State v. Casey , 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. 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 ; State v. Gullette , 43,032 (La. App. 2 Cir. 2/13/08), 975 So.2d 753. A reviewing court may not impinge on the factfinder's discretion unless it is necessary to guarantee the fundamental due process of law. Id. The appellate court does not assess credibility or reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442.

In this case, the jury found that Brittney was guilty of manslaughter. Brittney does not deny that she stabbed Gabby, inflicting the fatal wound during the fight. Hence, there was sufficient evidence to support her conviction for manslaughter unless the state failed to prove, beyond a reasonable doubt, that the homicide was not committed in self-defense, as Brittney alleges.

The defense argued that Brittney stabbed Gabby because she feared for her life and for the life of her unborn child. However, the evidence shows that both Gabby and Brittney were angry about the car and chose to settle the dispute by fighting. The testimony as well as videos also showed that both women had previously engaged in numerous fistfights prior to this incident. This altercation began as a fistfight and, according to testimony and videos, appeared to be over when Brittney pursued Gabby, who was walking away from the house, confronted her again and stabbed her with a knife. There was no evidence that Brittney reasonably believed that she was in imminent danger of losing her life or the life of her unborn child, or that she reasonably believed that killing Gabby was necessary to save her own life or the life of her unborn child.

While witnesses testified that both women had a history of fighting, neither had a history of using weapons during fights. The evidence showed that Gabby did not have a weapon. The video taken by Crystal Burrough showed that Brittney was a willing participant in the fight, and, in fact, appeared to be getting the better of Gabby.

The "stabbing video clip" recorded from the home of Laretha Moore showed that Gabby had exited the yard and was moving away from the house when Brittney pursued her with the knife. Moore testified that it appeared that Gabby was leaving when Brittney followed her from the yard.

Henry Jones, the other neighbor who witnessed the fight, also testified that Brittney followed Gabby from the yard just prior to the stabbing. Crystal Burrough and Tia Haynes testified that they were preparing to leave when Brittney followed and re-engaged her. Haynes testified that she saw no reason for Brittney to follow Gabby from her yard with a knife. Although there is no unqualified duty to retreat, the evidence established that Brittney could have retreated to Smith's house, rather than continue and escalate the fight.

In view of the trial record of evidence, the jury obviously rejected the defendant's claim of self-defense or defense of an unborn child and concluded that the state met its burden. We find no error in the conclusion. This assignment of error is without merit.

By her second assignment of error, Brittney argues that the trial court erred in failing to give the requested jury instructions regarding justification, specifically defense of others. Specifically, she contends that, under the circumstances of this case, the trial court should have instructed the jury regarding the "defense of others" justification. She asserts that because Gabby could have been charged with second degree feticide had her actions resulted in the loss of the unborn child, she (Brittney) could have been acting in defense of her unborn child to protect its life. She argues that, because the state did not prove beyond a reasonable doubt that she was not acting in self-defense or the defense of another, the jury should have received specific instructions on self-defense and the defense of others justification.

The state responds that a specific jury instruction regarding the defense of others justification was not required because the requested special jury charges were sufficiently set forth by the general charges. The state further argues that the special charges would have been confusing and required explanation due to Brittney's willing participation in the fight and known propensity to engage in fights. The state asserts that Brittney presented no evidence that the fight contributed to the loss of her unborn child and that any argument concerning feticide is without merit.

A trial judge has the duty to instruct jurors as to "every phase of the case supported by the evidence whether or not accepted by him as true," and that duty extends to "any theory ... which a jury could reasonably infer from the evidence." La. C. Cr. P. art. 802 ; State v. Goodley , 01-0077 (La. 6/21/02), 820 So.2d 478 ; State v. Tucker , 49,950 (La. App. 2 Cir. 7/8/15), 170 So.3d 394, writ not cons. , 15-1517 (La. 3/9/18), 237 So.3d 1193. Both the state and the defendant have the right, before argument, to submit special written charges for the jury to the court. A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. La. C. Cr. P. art. 807.

Errors in jury instructions are subject to the harmless error analysis. Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. 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. Spears , 39,302 (La. App. 2 Cir. 9/27/06), 940 So.2d 135, writ denied , 06-2704 (La. 8/31/07), 962 So.2d 424. A jury charge must be considered as a whole, and particular phrases in a charge must be construed in the context of the entire charge. A conviction will not be reversed on the ground of an erroneous charge unless the disputed portion, viewed with the remainder of the charge, is erroneous and prejudicial. State v. Mitchell , 50,188 (La. App. 2 Cir. 11/18/15), 181 So.3d 800, writ denied , 15-2356 (La. 1/9/17), 214 So.3d 863.

The defense requested that the jury instructions contain four special charges, submitted to the court and marked as Instructions I-IV. These consisted of the statutory definition of justifiable homicide and the "stand your ground" doctrine found in R.S. 14:20, the definition of the "defense of others" justification found in R.S. 14:22, and instructions regarding the application of those definitions.

Our review of the jury charges given in this case indicates that the jury was instructed on the definition of justifiable homicide and the "stand your ground" doctrine, in language mirroring that of R.S. 14:20. In requested Instruction I, the defense requested that the jury be instructed on the four factors to be considered in determining whether the defendant had a reasonable belief that the killing was necessary to save herself from the imminent danger of losing her life or receiving great bodily harm. The instructions ultimately given contained the following: the definition of justifiable homicide in self-defense and to prevent a violent or forcible felony; the explanation that "the danger need not have been real as long as the defendant reasonably believed that she was in actual danger"; the state's burden of proof; and, the "stand your ground" doctrine, as requested by the defense in requested Instructions I-III.

The main difference between the instructions requested and those given is that the latter did not include the four factors to be considered in determining the reasonableness of the defendant's belief that the killing was necessary. Despite that omission, the requested instructions were substantially covered by the general charge and the defendant has not shown any prejudice as a result of the failure of the trial court to include the four factors in the jury charge.

In requested Instruction IV, the defense requested that the jury be instructed on the "defense of others" justification, specifically the statutory definition of defense of others and the application of that statute. Although the text of R.S. 14:22 is not contained in the jury instructions given, the court instructed the jury on the prevention of violent or forcible felony justification defense.

A requested charge shall be given only if it does not require qualification or explanation. Upon review of the record evidence, we conclude that the trial court did not err by refusing to include this requested charge. There was no evidence that Brittney tried to avoid the fight in order to protect her alleged pregnancy. There was no medical evidence that the fight caused her to have a miscarriage. Dr. Haque testified that although Brittney complained of cramps and vaginal bleeding, he found no bleeding at that time;

further, bleeding can be caused by a number of things, and pregnancy is often accompanied by cramps. He testified the Brittney did not recall any trauma to her abdomen during the fight. While he did not find evidence of a fetus in her uterus after two ultrasound tests, he did not rule out a provisional diagnosis of ectopic pregnancy. In any event, the important fact is whether Brittney reasonably believed that she was acting in defense of her unborn child and we find no evidence in this record of such purpose either preceding or during the fight leading to the stabbing. In fact, prior to the stabbing, according to testimony and video, the fight consisted mostly of trading insults, hair pulling and punches to the face.

In view of these considerations and the evidence presented regarding Brittney's pregnancy, a jury instruction regarding the "defense of others" for a justifiable homicide defense would have required considerable qualification or explanation beyond the requested charge. Accordingly, we hold that the trial court did not err in its refusal to include the requested special charge in its instructions to the jury. This assignment of error is without merit.

By her final assignment of error, the defense alleges that the sentence imposed was unconstitutionally harsh and excessive given the facts and circumstances of the case. Brittney argues that the sentence imposed, 22 years' imprisonment, was unconstitutionally harsh and excessive. She argues that the trial court failed to properly consider the lack of violent crimes in her criminal history and her expressions of remorse. She contends that the sentence does not further the ends of justice, and is nothing more than a needless and purposeless imposition of suffering.

The state replies that 22 years' imprisonment does not shock the sense of justice in this case. The state notes that Brittney re-engaged in the fight after Gabby attempted to leave, and fatally stabbed Gabby. The state argues that the trial court properly considered all relevant evidence, including the age of the defendant and the victim, the effect of Gabby's death on her family, Brittney's prior criminal record, and the gravity and seriousness of the offense.

A reviewing court applies a two-pronged test in determining whether a sentence is excessive. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith , 433 So.2d 688 (La. 1983) ; State v. Watson , 46,572 (La. App. 2 Cir. 9/21/11), 73 So.3d 471. 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. State v. Lanclos , 419 So.2d 475 (La. 1982).

Second, the reviewing court must determine the issue of constitutional excessiveness. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith , 01-2574 (La. 1/14/03), 839 So.2d 1. 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. The trial court is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of this discretion.

State v. Williams , 03-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Diaz , 46,750 (La. App. 2 Cir. 12/14/11), 81 So.3d 228. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, supra .

Manslaughter carries a maximum sentence of imprisonment at hard labor for not more than 40 years. La. R.S. 14:31(B). Brittney was indicted for second degree murder, which requires a sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:30.1.

Following review of the presentence investigation report and a sentencing hearing, during which the victim's mother testified, the trial court sentenced Brittney to 22 years' imprisonment at hard labor. Because she was charged with second degree murder, she had been exposed to a potential life sentence. Her conviction for the lesser offense of manslaughter carries a maximum of 40 years' imprisonment, so 22 years is a midrange sentence and she received a significant benefit from the jury's verdict.

Brittney's assertions to the contrary, the trial court did specifically consider the lack of violent crimes in her criminal history and her expressions of remorse. The trial court referenced her criminal history of "primarily misdemeanors," as evidenced by the presentence investigation report. The trial court also noted that Brittney was remorseful regarding the death of Gabby.

The trial court also considered the nature of the offense and the effect of Gabby's death on her family. At the sentencing hearing, Joyce Cooper, Gabby's mother, testified that her daughter was 21 years old when she died and had three children. The responsibility for raising two of those children has fallen to Ms. Cooper. Ms. Cooper testified that the children were in counseling because "they cry all the time in school."

Based on the facts of this case, the remorse shown by the defendant, the severity of the injuries sustained by the victim, and in light of the harm done to Gabby's family, the sentence imposed does not shock the sense of justice, nor is it grossly disproportionate to the offense for which McGill was convicted. The trial court was within its discretion in imposing the sentence, which is not excessive. This assignment of error is without merit.

We have reviewed the entire record and find nothing we consider to be manifest error. La. C. Cr. P. art. 920(2).

CONCLUSION

For the reasons stated above, we affirm Brittney McGill's conviction of manslaughter for the death of Gabrielle Cooper, and we affirm the sentence of 22 years at hard labor imposed by the trial court.

CONVICTION AND SENTENCE AFFIRMED.

      Joneica Lewis testified that she was with Brittney at the time, and Brittney intended to retrieve only the temporary tags from the vehicle; however, she said the police told her to take the vehicle that was illegally parked in a handicapped zone because Gabby had no license to drive it and removing the temporary tags would further render driving the vehicle unlawful.

      Due to some contradictory testimony, it is uncertain whether Gabby also ripped the tags off the green Mustang in addition to those on the yellow Cobalt.

      Not knowing them by name, Jones referred to Gabby as "the short one" and Brittney as "the tall one."

      An ectopic pregnancy occurs when an embryo implants somewhere other than the uterus, such as one of the fallopian tubes.


source: Caselaw Access Project

author: COX, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. James Micah VANHORN, Appellant
    No. 52,583-KA
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2019
    LOUISIANA APPELLATE PROJECT, By: Douglas Harville Counsel for Appellant
    JAMES EDWARD STEWART, SR., District Attorney, TOMMY JAN JOHNSON, RON CHRISTOPHER STAMPS, CHARLES KENNETH PARR, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, STONE, and COX, JJ.
   COX, J.

This criminal appeal arises from the First Judicial District Court, Caddo Parish, Louisiana. Following a bench trial, the defendant, James Micah Vanhorn, was found guilty as charged of attempted armed robbery. Vanhorn was sentenced to serve 12 years at hard labor, without the benefit of probation, parole, or suspension of sentence. Vanhorn now appeals his conviction and sentence. For the following reasons, we affirm Vanhorn's conviction and sentence.

FACTS

On November 10, 2010, Robert Stuart Douglas and Vanhorn were charged with the attempted armed robbery of Jordan Willis, committed on October 27, 2010, in violation of La. R.S. 14:64 and La. R.S. 14:27. Both defendants were tried together and both defendants were represented by the same attorney.

Sergeant Tim Adgate, of the Shreveport Police Department, testified that on October 27, 2010, he was the first responder to a 911 call for a home invasion at 9307 Wiscassett Drive in Shreveport, Louisiana. Sgt. Adgate found a white male, with duct tape around his wrists and ankles, holding a 12-gauge shotgun and standing over another male, who was covered in blood and lying face down on the ground. A third male, with blood running down his face, was also on the ground to the side of the first two men. The man with the gun and the man with blood on his face repeatedly asked the man lying on the ground, "Why?" Sgt. Adgate secured the shotgun and identified the holder as Jordan Willis, who lived in the Wiscassett Drive home owned by his father, James Willis. Sgt.

Adgate identified the man with blood running down his face as Jordan's brother, Dillon Willis. Sgt. Adgate testified that Jordan told him that the man lying on the ground was one of two men who "busted in" their house, identified themselves as narcotics officers, and then wrapped Jordan's and James' wrists, feet, and head in duct tape. Sgt. Adgate later learned that the man lying on the ground was Vanhorn.

Shreveport Police Detective John Jackson, who also responded to the 911 call, testified that James had duct tape on his wrists and ankles and that he had scratches and bruises. Det. Jackson testified that James told him the following:

• He answered a knock at the door and two men identified themselves as narcotics officers and forced their way inside.
• The intruders told him that they were there on a marijuana complaint and asked if anyone else was present.
• He told them his son, Jordan, was upstairs.
• One man proceeded up the stairs to get Jordan, and the other man began binding him with duct tape.
• After Jordan was brought downstairs, the intruders began binding Jordan with duct tape too.
• His other son, Dillon, arrived at the house, and one of the men used a black, semiautomatic handgun to strike Dillon.
• He and his sons realized the men were not law enforcement officers and fought back.
• As Dillon struggled with the man with the gun, Jordan broke loose from the duct tape and retrieved a shotgun.
• When Jordan fired the shotgun, the man with the gun ran outside and drove off in a white car.
• He, Dillon, and Jordan were able to catch the other man, and restrain him until police arrived.

Shreveport Police Detective Shawn Parker also responded to the home invasion call and testified about statements he took from Jordan and Dillon. He testified that both of them were in shock. Det. Parker testified that Jordan told him the following:

• He was asleep in bed when a white man wearing sunglasses and a hat woke him up and dragged him downstairs to the kitchen, where another larger white man was binding his dad with duct tape.
• The intruders wrapped his and his dad's wrists and feet, and then their heads with duct tape.
• When he heard his brother Dillon walk in, he asked Dillon if he saw any badges on the intruders.
• When Dillon said he did not see any badges, Jordan struggled loose from the duct tape, retrieved a shotgun, and fired it into the living room.
• When he fired the shotgun, the bigger man ran out of the house and drove off in a white vehicle, but Dillon and James caught the other man.
• He, his dad, and his brother struggled with the other man, and he struck the man on the back of the head with the butt of the shotgun.

Det. Parker testified that Jordan still had duct tape around his wrists and ankles and that residue from the tape remained around his eyes, indicating where the tape had been. Det. Parker testified that he believed Jordan was in shock because Jordan appeared very emotional, his hands were shaking, he voice was broken, and he was pacing back and forth.

Det. Parker testified that Dillon told him the following:

• In an earlier phone conversation, he told his dad that he would stop by the house.
• When he arrived, he saw a white Toyota parked in the driveway and thought painters were at the house as part of some recent renovations.
• After he entered the house, he found his dad and his brother with duct tape wrapped around their heads.
• A large white man with a gun grabbed him and threw him against the wall, pistol-whipped him with a black, semiautomatic handgun, and began choking him.
• He was blacking out when he heard the shotgun fire and the man suddenly ran off.
• The other man attempted to follow, but he tripped that man as he crossed through the door and then struck him in the head with a brick.

Det. Parker testified that the fire department had Dillon transported to the hospital to be treated for injuries and shock.

Shreveport Police Sergeant Tawanna White also responded to the home invasion call. Sgt. White testified that Vanhorn was placed in custody, but he was bleeding from a head injury so he was transported to a nearby hospital for treatment. She described Vanhorn as a tall, thin, white male. She testified that Vanhorn initially identified himself as "Shawn." She testified that after she read Vanhorn his Miranda rights, he gave her his real name, identified his accomplice as Robert Stuart Douglas, and said Douglas drove a white Toyota Camry. Sgt. White testified that Vanhorn told her that Jordan Willis owed him $ 500, and when he went to collect the money, the Willis family beat him up. She stated that Vanhorn insisted he was not armed.

Shreveport Police Officer Joshua Mayfield testified that he found Douglas at his Shreveport home and Douglas' white Toyota Avalon was parked outside the home. Officer Mayfield testified that Douglas told him that he and Vanhorn had coffee that morning and discussed putting out deer corn, then Vanhorn left. Officer Mayfield testified that Douglas initially denied having any firearms other than a shotgun, but later admitted that there was a 9 mm handgun on a shelf in his laundry room.

Det. Jackson testified that a search of the shelves in Douglas' laundry room revealed a black canvas bag containing a black semiautomatic handgun with five magazines, each loaded with 9 mm ammunition. He testified that the bag also contained a pocket knife with "Vanhorn" scratched on it, a business card with Micah Vanhorn's name, and a second folding pocket knife. Det. Jackson testified that a roll of duct tape was found in the trunk of Douglas' vehicle.

Det. Parker testified about his interview with Vanhorn, in which Vanhorn made the following statements:

• He went to the Willis home to collect $ 500 that he had loaned to Jordan Willis, because he heard Jordan was using the money to buy marijuana.
• He brought Douglas with him to act as a deterrent because he believed the Willis family was violent.
• He brought the duct tape to tie Jordan up while he searched for the money, but denied having a gun.
• When James answered the door, Vanhorn asked for Jordan, and James replied that Jordan was upstairs and began to shut the door.
• He forced the door open and demanded to see Jordan. At that point, the family "jumped him," resulting in a fight, and the family beat him up.

Det. Parker testified that Douglas' Toyota Avalon matched the description of the white vehicle that Dillon said was parked in his father's driveway and that the Willis family members said the larger intruder used to drive away. Det. Parker testified that during the search of Douglas' home, officers found clothing in the bedroom with suspected blood on it.

James testified that on October 27, 2010, he answered a knock at the door and two white men, identifying themselves as police officers, pushed the door in, announcing that he was under arrest. James testified that one man was smaller than the other and wore a hat with a star on it. The other man was larger and wore a holstered gun on his hip. James testified that the men grabbed him, spun him around, shoved him against the wall, and pinned his arms behind his back. He stated that the men asked him if anyone else was home, and he told them that Jordan was upstairs. James testified that after bringing Jordan downstairs, the two men used duct tape to bind his and Jordan's hands behind their backs.

James testified that after the men bound their hands, he heard his older son, Dillon, come inside the house calling for him. He stated that when Dillon walked in the kitchen and saw them bound with duct tape, Dillon cursed loudly. James testified that he believed these two men were law enforcement officers and he told Dillon to calm down. He stated that he heard one of the men say that he was under arrest and then heard scuffling and fighting. James said he heard Jordan ask Dillon if the men had badges. James testified that Dillon replied, "no," so he fought to pop the duct tape from his hands and remove the tape from his eyes. He stated that he saw his son Dillon fighting with one of the men, while Jordan had gotten loose and returned with a shotgun. James testified that he told Jordan not to shoot the men. James testified that when Jordan fired the shotgun, the bigger man ran out and drove off in a white vehicle. James testified that he called 911.

James denied dealing drugs in the house. He further testified that he was retired and drew social security disability.

Jordan testified that he had a 2004 conviction for disturbing the peace and admitted that he had half of a gram of marijuana in his room that day. Jordan testified that a skinny guy wearing a baseball cap and shades woke him up and told him that he was under arrest. He stated that when the man saw the marijuana, the man said, "Now you've really got it, son." Jordan testified that the man pinned his arms behind him, marched him down the stairs, and began binding him and his dad with duct tape. Jordan testified that the men bound their hands and feet and wrapped duct tape around their heads, covering their faces. Jordan stated that they were wrapped like mummies and essentially "hog-tied."

Jordan testified that when he heard his brother shout upon seeing him and his dad wrapped in duct tape, he realized that these men probably were not law enforcement officers. He stated that he heard his brother scuffling with the two men and asked Dillon if he saw a badge on either man. Jordan testified that when Dillon replied, "no," he began twisting the duct tape until he could pop it off. He stated that he removed the tape from his face before running upstairs to retrieve his shotgun. Jordan testified that he yelled out loud and fired a warning shot from the top of the stairs down into the living room, striking his grandmother's rocking chair.

Jordan testified that after he fired the shot, the larger man suddenly ran off, while the skinny man was caught by the legs by Dillon at the door. Both stated that the skinny man was dragging Dillon along, still attempting to exit the house. He testified that he ran up and swung the shotgun like a bat, striking the man in the head. Jordan stated that this caused the man to collapse on the ground, and they all began fighting him. Jordan testified that Dillon struck the man with a brick, and he continued to strike the man in the head with the shotgun, but the man continued fighting them. Jordan stated that he called 911, gave his address, advised there was a home invasion, and then returned to fighting the man.

Jordan denied knowing either of the intruders, owing either of them money, or selling drugs. Jordan testified that he identified Vanhorn in a lineup, but he did not get a good look at the larger man and was unable to identify him.

Dillon testified that he called his dad that morning about getting a loan approved and told him that he would stop by his house. He stated that when he arrived, he thought the white car parked in the driveway belonged to painters and he walked inside and called out for his dad. He testified that a man wearing a hat with a star on it appeared, identified himself as police, and told Dillon he was under arrest. Dillon stated that at the time, he thought the man might be a "vice" cop because he was dressed in plain clothes and not a police uniform. He stated that the man pinned his hands against the wall and he heard his dad tell him not to resist. Dillon testified that he saw a second man with a gun and his dad's head wrapped in duct tape. He stated that his brother, Jordan, then yelled out, asking if the men were cops.

Dillon testified that when he saw the duct tape on his dad's head, he knew the men were not cops, and he began fighting the men. Dillon testified that the man with the gun came up and struck him in the face with the pistol. He described the gun as a black, semiautomatic, maybe 9 mm handgun. Dillon testified that the smaller man dropped down and held his feet as the larger man continued to pistol-whip him in the head. He stated that one of the men then proceeded to choke him. Dillon testified that he was blacking out when he heard a shotgun being fired. He testified that the larger man let go of him and scrambled out of the front door. He said that the other man tried to follow, but he tripped him, and as the man fell, he grabbed the man's ankles and held on as the man began dragging him out the front door.

Dillon testified that the larger man drove off in the car as he continued fighting with the other man on the porch. Dillon stated that Jordan appeared and struck the man in the head with the shotgun and he grabbed a nearby brick and struck the man in the head. Dillon denied knowledge of any drug sales in the house or by Jordan. Dillon denied knowing either defendant or ever hunting with Vanhorn. He testified that he only hunts with his dad, James.

Shreveport Crime Scene Investigator Hannah Clark testified about the pictures that she took and the evidence that she collected that day at the Willis home. She stated a blue shirt with a bloodstain and another bloody shirt were found in the driveway. Officer Clark identified the photographs that she took of James and Jordan, showing the silver duct tape on their wrists and ankles. She stated that the silver duct tape was recovered from the wrists and ankles of James and Jordan. She stated that the frame of a pair of sunglasses with one lens, and a black baseball hat with a star and "U.S. Army" on it were found on the ground just outside the front door. She said the other lens was found separately outside. Officer Clark testified that she took several pictures of what was suspected to be blood. She testified that a rocking chair in the living room had holes in it that appeared to be bullet holes. Officer Clark stated that she recovered 12-gauge shotgun shells and a spent shotgun shell from the living room.

Officer Clark also testified about evidence recovered by Det. Parker at the Douglas residence: a pair of denim jeans and a white shirt with suspected blood. She testified that the shotgun used by Jordan and the semiautomatic handgun recovered from Douglas' house were taken as evidence.

After the state rested, the defense began its case in chief. Tommy Blunt testified that Vanhorn was an acquaintance and he hunted with Vanhorn on his land, but that Dillon was never with them. Blunt denied that Douglas had ever hunted on Blunt's land with Blunt.

Jennifer Vanhorn testified that in 2010, she was married to James Micah Vanhorn. She testified that she was interviewed by Det. Parker regarding the 2010 attempted armed robbery. Jennifer stated that she thought her husband left around 9 a.m. that morning to prepare a hunting spot. She testified that she told Det. Parker that she thought her husband's gun and holster were on top of the refrigerator in their home. Jennifer stated that when she checked, the holster was there, but the gun was gone. She testified that her husband had been adjusting to life outside the military. She stated that someone had owed her husband about $ 8,000 for work done by his roof contracting company, and they were behind on their mortgage, but they were expecting an insurance settlement payment of about $ 20,000. Jennifer testified that she knew Tommy Blunt and his wife, Shaindel Willis, and she knew of Shaindel's brother, Dillon, but had never met him. She testified that her husband knew Dillon Willis and that her husband smoked marijuana that he obtained from Jordan Willis. Jennifer insisted that her husband had been hunting with Tommy Blunt and Dillon Willis just two weeks before the offense, but she acknowledged that she had never met either of the Willis brothers. The defense then rested its case.

The trial court stated that it had carefully reviewed the witness testimony, exhibits, and the arguments of counsel. The trial court noted the officers' testimonies that Vanhorn admitted that he and Douglas purposefully went to the Willis home with the intention to take money from Jordan Willis by use of force, and that they planned to bind him with duct tape while they searched for the money. The trial court found that this evidence established the defendants' specific intent to take something from another by use of force and intimidation. The trial court found that the testimony of James, Jordan, and Dillon Willis was corroborated by the physical evidence recovered at the scene and established that the defendants committed attempted armed robbery with a firearm.

Citing State v. Jackson , 09-2406 (La. 1/19/11), 55 So.3d 767, the trial court found that, even assuming the existence of a debt, the debt was not a justification for taking the funds from Jordan Willis or for the defendants' actions. The trial court found that the State proved beyond a reasonable doubt that both Vanhorn and Douglas were guilty of attempted armed robbery.

The parties appeared for sentencing on February 8, 2018. The trial court stated that it had reviewed the presentence investigation reports for both Douglas and Vanhorn, as well as the letters from the victims and the letters submitted on behalf of the defendants. The letters submitted by Jordan, Dillon, and James Willis described the terror that they endured that day during the home invasion and the troubles they have endured since then in coping with the trauma. Numerous people submitted letters on behalf of Vanhorn, and his attorney provided documentation of his military service reviews.

The trial court stated that attempted armed robbery is considered a crime of violence, and at the time, the offense carried a sentencing range of 0-49½ years of imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. The trial court stated that it considered both defendants to have acted in concert with each other, as principals, during the commission of the crime, even though Vanhorn acted as more the leader and only Douglas carried a gun.

The trial court reviewed the aggravating and mitigating factors of this case under the sentencing guidelines provided in La. C. Cr. P. art. 894.1. The trial court found that the defendants manifested deliberate cruelty by using the duct tape to bind James' and Jordan's hands and feet and to cover their faces. The trial court found that the defendants used actual violence, created a risk of death and great bodily harm, and caused significant psychological injury because the trauma of this "home invasion-styled robbery violated the sanctity of the home, which is not easily restored." The trial court further noted that there was also some physical injury, notably where Douglas used a firearm to pistol-whip Dillon. The trial court found that Vanhorn had acted as more the leader in the commission of the offense.

The trial court found that the circumstances did not support a claim of provocation, inducement, or facilitation by the victims, because there was no evidence to substantiate the claim that Jordan owed Vanhorn a debt, and Jordan consistently denied any involvement with Vanhorn or Douglas. The trial court further stated that even if a debt had existed, the debt did not warrant or justify the home invasion.

As mitigating factors, the trial court noted that the defendants did not kill or cripple anyone and did not discharge a firearm during the commission of the offense. The trial court also concluded that the evidence did not indicate that the defendants intended to murder the victims. Further considering each defendant's personal history, the trial court noted that Douglas had been a productive member of society, had been consistently employed, had provided for his family, and had no troubling criminal history. The trial court noted that Vanhorn had an exemplary service record with multiple citations for service, at great personal risk to himself. The trial court found that Vanhorn's military leadership and service was sufficient to reduce the additional imprisonment time that he might have received in light of his role in the current offense. The trial court noted that Vanhorn had no prior criminal history.

The trial court concluded that in light of their histories, which showed no evidence that the current offense was part of a trend or pattern of criminal behavior, the defendants were unlikely to re-offend. The trial court noted that any term of imprisonment would result in some hardship to both Douglas' and Vanhorn's families. However, the trial court observed that the statutes for attempted armed robbery did not allow for a suspended or probated sentence, but rather mandated a hard labor sentence without the benefit of probation, parole, or suspension of sentence.

The trial court sentenced Douglas and Vanhorn to each serve a sentence of 12 years' imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. The defendants were given credit for any time already served. The trial court advised them of their right to appeal and the time delays to seek post-conviction relief.

On March 12, 2018, Vanhorn filed a motion to reconsider sentence and argued that the 12-year sentence was excessive under the circumstances of the case, his lack of criminal history, and his military service record. The trial court denied his motion. Vanhorn moved to appeal his conviction and sentence on April 13, 2018.

DISCUSSION

First, Vanhorn argues the evidence was insufficient to support his conviction of attempted armed robbery because there was no evidence that he and Douglas attempted to take anything belonging to the Willis family members. Vanhorn asserts that his only intention was to collect the money he had previously loaned to Jordan. Vanhorn insists his actions were justified because the money he sought belonged to him.

The State argues Douglas' arguments are more appropriately considered as a determination of credibility and weight of the evidence, rather than a determination of the sufficiency of the evidence. The State further asserts that even if Vanhorn voluntarily loaned Jordan money, the debt did not justify the use of force and violence to collect on the debt.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the case in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 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. Steines , 51,698 (La. App. 2 Cir. 11/15/17), 245 So.3d 224, writ denied , 17-2174 (La. 10/8/18), 253 So.3d 797.

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. Cooley , 51,895 (La. App. 2 Cir. 5/23/18), 247 So.3d 1159 ; State v. Allen , 36,180 (La. App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied , 02-2595 (La. 3/28/03), 840 So.2d 566, 02-2997 (La. 6/27/03), 847 So.2d 1255, cert. denied , 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness in whole or in part; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey , 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000) ; State v. Cooley, supra. Moreover, 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. Cooley, supra .

The appellate court does not assess the credibility of witnesses or reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442 ; State v. Brooks , 52,249 (La. App. 2 Cir. 9/26/18), 256 So.3d 524. A reviewing court affords great deference to a trial court's decision to accept or reject the testimony of a witness in whole or in part. State v. Brooks, supra .

Specific intent is the state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or his failure to act. La. R.S. 14:10(1). Specific intent to kill can be inferred from the intentional use of a deadly weapon such as a knife or a gun. State v. Fields , 42,761 (La. App. 2 Cir. 1/9/08), 973 So.2d 973, writ denied , 2008-0469 (La. 9/26/08), 992 So.2d 983.

In order to prove the defendant guilty of attempted armed robbery, the state had to prove the elements set forth in La. R.S. 14:64 and La. R.S. 14:27. Armed robbery is defined in La. R.S. 14:64 as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

An attempt is defined by La. R.S. 14:27 as any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

In an armed robbery prosecution, it is not necessary to prove that the property taken belonged to the victim; it is only essential that the accused was not the owner and that the victim had a greater right to possession of the property at the time of the taking than did the accused. State v. Bess , 45,358 (La. App. 2 Cir. 8/11/10), 47 So.3d 524, writ denied , 10-2368 (La. 2/25/11), 58 So.3d 456.

When the evidence presented at trial clearly establishes that the thing taken belonged to the victim, the reviewing courts consider whether the State met the elements required to support a conviction for robbery. In State v. McCormick , 98-0718 (La. App. 4 Cir. 6/9/99), 737 So.2d 926, 931, writ denied , 99-2009 (La. 1/14/00), 753 So.2d 207, the appellate court held that the record contained sufficient evidence to establish that the property at issue belonged to the accused and that ownership of the property never vested with anyone but the accused, therefore the conviction for armed robbery was not supported by the evidence. In State v. Rubin , 04-1588 (La. App. 3 Cir. 4/6/05), 899 So.2d 187, the victim did not dispute that the rings taken from her by her ex-finance belonged to him after their engagement ended. The third circuit reversed Rubin's conviction for robbery on grounds that the state failed to show that the accused took something belonging to another. Id.

La. R.S. 14:18 provides that the fact that an offender's conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct and that a justification defense may be raised under the following circumstances:

(1) When the offender's conduct is an apparently authorized and reasonable fulfillment of any duties of public office; or
(2) When the offender's conduct is a reasonable accomplishment of an arrest which is lawful under the Code of Criminal Procedure; or
(3) When for any reason the offender's conduct is authorized by law; or
(4) When the offender's conduct is reasonable discipline of minors by their parents, tutors or teachers; or
(5) When the crime consists of a failure to perform an affirmative duty and the failure to perform is caused by physical impossibility; or (6) When any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed; or
(7) When the offender's conduct is in defense of persons or of property under any of the circumstances described in Articles 19 through 22.

La. R.S. 14:19 addresses the use of force or violence in defense; La. R.S. 14:20 addresses justifiable homicide; La. R.S. 14:20.1 addresses death due to violence or suspicious circumstances when a claim of self-defense is raised; La. R.S. 14:21 addresses aggressors claiming self-defense; and, La. R.S. 14:22 addresses defense of others. The defense of justification is an affirmative defense that must be proven by a preponderance of the evidence. State v. Broussard , 49,240 (La. App. 2 Cir. 10/1/14), 149 So.3d 446, writ denied , 14-2308 (La. 1/15/16), 184 So.3d 702.

James, Jordan, and Dillon all asserted that they were attacked by intruders who taped Jordan's and James' hands, feet, and heads with duct tape. Officers found Jordan and James with duct tape on their wrists and hands. Dillon asserted that he was struck in the face by the larger of the intruders with a black semiautomatic handgun. Officers found Dillon with blood on his face and suspected blood on his clothes, while a shirt with suspected blood and a black, semiautomatic handgun were found in Douglas' home, along with Vanhorn's business card and a knife with Vanhorn's name on it. Duct tape was found in Douglas' trunk. Vanhorn admitted to officers that he went to the Willis house that day with the intent to take money from Jordan Willis. Furthermore, Vanhorn admitted to officers that he intended to take the money by use of force because he brought the duct tape to bind Jordan up and he brought Douglas to deter Jordan from resisting.

James', Jordan's, and Dillon's 2017 trial testimonies were consistent with their statements made to police on October 27, 2010, and were corroborated by the officers' observations and evidence gathered while investigating the crime. Viewing this evidence in a light most favorable to the prosecution, any rational trier of fact could have found that the State proved the essential elements of attempted armed robbery beyond a reasonable doubt.

As noted by the trial court, Douglas' and Vanhorn's assertion, that their conduct was justified because they were attempting to retrieve Vanhorn's own property, is without merit. Jordan denied knowing Vanhorn and denied that Vanhorn loaned him any money. There was no evidence in the record to support the assertion that Vanhorn loaned Jordan any money or that anything belonging to Vanhorn was in Jordan's possession. As noted by the trial court in its reasons for the guilty verdict, even assuming that Vanhorn did loan Jordan money, the law does not provide for a "self-help" defense as justification for committing a home invasion in order to use force and intimidation to recover a debt. This assignment is without merit.

In his second and last assignment of error, Vanhorn argues that the 12-year sentence imposed is excessive under the facts of the case and in light of the fact that he is a decorated combat veteran with no prior criminal history. He notes that he suffered a traumatic brain injury during his service and has received counseling for anger and depression issues and has also served as a recruiter and leader for wounded warriors. Vanhorn asserts that a lesser sentence would allow him to show that he has accepted responsibility for his conduct and that he could be rehabilitated to re-enter society as a productive member and as a father to his children, ages 11 and 15.

In opposition, the State notes that the record shows that the trial court gave serious consideration to the sentencing guidelines and the aggravating and mitigating factors and circumstances of this case. The State also notes that in tailoring this sentence to Vanhorn, the trial court found that Vanhorn's military leadership and service served as a mitigating factor to the fact that he was the architect and originator of this offense. Additionally, the State argues that the 12-year term was far less than the maximum of 49½ years and was on the low end of the sentencing range for attempted armed robbery.

An excessive sentence claim is reviewed by examining whether the trial court adequately considered the guidelines established in La. C. Cr. P. art. 894.1, and whether the sentence is constitutionally excessive. State v. Wing , 51,857 (La. App. 2 Cir. 2/28/18), 246 So.3d 711.

A review of the sentencing guidelines does not require a listing of every aggravating or mitigating circumstance. State v. Boehm , 51,229 (La. App. 2 Cir. 4/5/17), 217 So.3d 596. When the defendant's motion to reconsider sentence raises only a claim that the sentence imposed was constitutionally excessive, review of the sentence on appeal is restricted to that claim. La. C. Cr. P. art. 881.1 ; State v. Williams , 51,667 (La. App. 2 Cir. 9/27/17), 245 So.3d 131.

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. Boehm , supra. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Wing, supra .

The court must state for the record the considerations taken into account and the factual basis for the sentence imposed. La. C. Cr. P. art. 894.1(C). The court must consider the defendant's personal history, the defendant's criminal record, the seriousness of the offense, and the likelihood of rehabilitation. State v. Boehm, supra. There is no requirement that specific matters be given any particular weight at sentencing. Id. All convictions and all prior criminal activity may be considered, as well as other evidence normally excluded from the trial. State v. Platt , 43,708 (La. App. 2 Cir. 12/3/08), 998 So.2d 864, writ denied , 09-0265 (La. 11/6/09), 21 So.3d 305.

A trial court has wide discretion in imposing a sentence within the statutory limits, and a sentence should not be set aside absent a showing of abuse of discretion. State v. Weston , 52,312 (La. App. 2 Cir. 11/14/18), 260 So.3d 722. Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence. Id.

A conviction for armed robbery carries a penalty of 10-99 years' imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. La. R.S. 14:64. The penalty for an attempted offense is imprisonment for no more than one-half of the longest term of imprisonment prescribed for the offense so attempted, a fine for no more than one-half of the largest fine prescribed the offense so attempted, or both. La. R.S. 14:27. Thus, for the attempted armed robbery, the defendants faced a penalty of 0-49½ years at hard labor, without benefit of probation, parole, or suspension of sentence.

In this case, Vanhorn is asserting that his sentence was excessive in light of his status as a first felony offender, with no history of violence, and an exemplary service record. In the following cases, sentences were imposed upon other first-time offenders sentenced for an attempted armed robbery conviction.

In State v. Green , 17-0520 (La. App. 4 Cir. 11/15/17), 231 So.3d 756, the defendant pled guilty as charged to attempted armed robbery with a firearm, under La. R.S. 14:27 and La. R.S. 14:64.3, which carries a minimum five-year sentence enhancement for the use of a firearm. The 23-year old defendant was a first-time offender, who attempted to rob a bar and grill, and held three people at gunpoint. However, no one was injured. The victims managed to lock the defendant outside the room and he fled without taking any money. The trial court sentenced Green to the mandatory five-year minimum in La. R.S. 14:64.3. The Fourth Circuit upheld the sentence, rejecting Green's claim that the sentence was excessive and that a downward departure was warranted due to his youth and first offender status. Id.

In State v. Carter , 13-0074 (La. App. 4 Cir. 12/11/13), 131 So.3d 153, Carter, a youthful first offender, attempted to rob a former classmate of his cell phone at gunpoint. When the victim refused to give up the phone and walked off, Carter fired the gun at him and the victim ran. Carter testified at trial that the victim had stolen his phone and he was simply trying to retrieve his phone. The jury found Carter guilty of attempted armed robbery and the trial court sentenced him to a term of 18 years. On appeal, the Fourth Circuit found the 18-year term was not constitutionally excessive, despite the first offender status and no history of criminal violence. Id.

In State v. Adger , 30,215 (La. App. 2 Cir. 12/10/97), 707 So.2d 1000, the victims, Leonard and Janet, attempted to purchase $ 40 worth of drugs from Adger, who instead demanded all of their money. As they attempted to drive off, Adger fired a gun into their vehicle, wounding Janet. Adger, an 18-year-old first felony offender, was charged with armed robbery, attempted armed robbery, and aggravated battery. Adger admitted that he tried to rob Leonard and Janet, pled guilty to two counts of attempted armed robbery, and was sentenced to concurrent sentences of 25 years at hard labor, without benefits. This Court found Adger's sentence was not constitutionally excessive. Id.

In State v. Burford , 39,610 (La. App. 2 Cir. 5/11/05), 902 So.2d 1190, writ denied, 05-1573 (La. 1/27/06), 922 So.2d 545, Kevin and Gretchen Burford were charged with attempted armed robbery and aggravated burglary of a retired man and his wife, an Alzheimer's patient. The man allowed Gretchen into his home to use the phone. When he heard a second knock at the door and saw Kevin standing there with a gun, the man wrestled with Gretchen to keep her from opening the locked door. The man released Gretchen, pressed the panic button on his security alarm, and retrieved a .357 revolver which he fired down the hallway.

In exchange for the dismissal of the aggravated burglary charge, the couple pled guilty to attempted armed robbery. Kevin and Gretchen were both first felony offenders, but had pending charges from a crime spree involving the burglary of two bank ATMs and the armed robbery of an elderly couple. The district court, considering the couple's crime spree, found that the two were "domestic terrorists" and sentenced Keven and Gretchen to 40 years and 30 years, respectively.

This Court observed that Kevin was a 33-year-old former police officer and Marine Corps veteran, who reported no mental or social disabilities and no economic hardships. This Court found that under the facts of the case, Kevin's 40-year sentence, although very harsh, was not constitutionally excessive in light of the circumstances. This Court upheld Gretchen's sentence as well. Id.

As noted by the trial court, the legislature did not provide an option for a suspended or probated sentence for this offense. Vanhorn's 12-year sentence complies with the statute and falls at the low end of the applicable range of 0-49½ years. The trial court thoroughly articulated the aggravating and mitigating circumstances of this case for the record. As the trial court noted, there was no evidence in the record establishing that Jordan Willis owed Vanhorn any money or that the money that Vanhorn admitted he was there to take by use of force and violence, belonged to Vanhorn. As noted by the trial court and the statutes noted above, the law does not allow for this type of conduct, even where asserted as "self-help" to reclaim property.

The record demonstrates that the trial court considered Vanhorn's lack of any prior criminal history and his exemplary service to his country in tailoring this sentence to Vanhorn and the offense committed here. At the time of his offense, Vanhorn was 37 years old, gainfully employed, and a steady provider for his wife and children. Vanhorn organized a home invasion into the Willis home, where he and his accomplice bound the Willis family. Vanhorn's actions created a risk of death or great bodily harm to the three Willis family members, as well as to himself and his accomplice. Other than a PSI statement that Vanhorn regretted going to the Willis house, there was no showing that Vanhorn expressed remorse for his actions or apologized to the victims.

The sentence of 12 years' imprisonment at hard labor, without benefits, is in alignment with other sentences for attempted armed robbery where the defendants were either first offenders or there were no serious or permanent injuries to the victims. Furthermore, considering the circumstances of this particular case, as well as Vanhorn's personal history, the 12-year sentence does not shock the sense of justice for this crime of violence against the person and is not disproportionate to the offense committed. There is no showing that the trial court abused its discretion in imposing this sentence and there is no showing that this sentence is constitutionally excessive. This assignment is without merit.

CONCLUSION

For the foregoing reasons, James Micah Vanhorn's conviction and sentence are affirmed.

AFFIRMED.

      On January 16, 2019, this case was consolidated for docketing purposes only with No. 52,582-KA, the case of Vanhorn's codefendant, Robert Stuart Douglas.

      The "FACTS" section in each opinion of these consolidated cases is the same, but is duplicated for convenience of the reader.