text:
    In the MATTER OF the SUCCESSION OF Sandra Gabor DALE
    NO. 2018 CA 0405
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 24, 2018
    Johanna R. Landreneau, Kevin Paul Landreneau, Baton Rouge, LA, Attorneys for Plaintiff-Appellee, Succession Executrix - Felicia Baker
    Cy J. D'Aquila, Jr., C. Jerome D'Aquila, New Roads, LA, Kristopher R. Kahoa, Port Allen, LA, Attorneys for Defendant-Appellants, Christopher Roy Dale and Michael Anthony Dale
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

In this succession proceeding, the defendants appeal the trial court judgment denying their request to reopen the succession of their mother and dismissing their claims.

FACTS AND PROCEDURAL HISTORY

On December 10, 2016, Ms. Sandra Gabor Dale passed away. She was survived by her three children, Ms. Felicia Dale Baker, Mr. Christopher Roy Dale and Mr. Michael Anthony Dale. On February 6, 2017, her daughter, Ms. Baker, filed a "Petition for Probate and Appointment of Independent Executor," requesting that Ms. Dale's will prepared on January 13, 2014 (2014 will), which left the entirety of Ms. Dale's estate to Ms. Baker, be executed, and that she be appointed as independent executor of the succession. On February 21, 2017, Ms. Baker filed a "Petition for Possession," asking that she be recognized as the sole, universal legatee of Ms. Dale and put into possession of the full ownership of all property belonging to the succession of Ms. Dale. On February 22, 2017, a judgment of possession was signed, recognizing Ms. Baker as the sole heir and legatee under the terms of the 2014 will, putting Ms. Baker in possession of all property belonging to the succession, and terminating the administration of the succession.

On March 9, 2017, Mr. Christopher Dale and Mr. Michael Dale filed a "Petition for Temporary Restraining Order, and for Preliminary Injunction to Reopen the Succession and For Related Relief." In their petition, the Dales contended that the petition for possession should be declared null, and the succession should be reopened because Ms. Dale executed a second notarial will on October 11, 2016 (2016 will), which revoked and rescinded any prior wills and bequeathed the entirety of her estate to be divided equally among Mr. Christopher Dale, Mr. Michael Dale, and Ms. Baker. The Dales' petition was heard by the trial court on June 12, 2017. On that day, the only evidence introduced into the record was the 2016 will.

After the hearing the trial court signed a judgment on June 30, 2017, denying and dismissing all claims made by the Dales, including the request to reopen the succession. After the judgment was signed by the trial court, the Dales filed a motion for new trial asserting that the trial court erred in finding the 2016 will was an absolute nullity and, in the alternative, that even if the 2016 will was an absolute nullity for lack of form, it was still an authentic act that revoked all prior wills. Ms. Baker responded to the motion for new trial and raised the issue of Ms. Dale's testamentary capacity at the time of the 2016 will. The Dales' motion for new trial was denied by the trial court in a judgment signed on November 16, 2017. In well-considered written reasons for judgment, the trial court concluded that the 2016 will was absolutely null because the formalities prescribed for the execution of a notarial will under La. Civ. Code art. 1577 were not met. Specifically, the trial court found that although the 2016 will contained an attestation clause, it also contained a disclaimer from the notary stating that the notary did not prepare nor read the document and was attesting only to the authenticity of the signatures. The trial court concluded that the disclaimer nullified the declaration by the notary that it was the testator's will, as well as the declaration that the testator signed in the presence of the notary and two witnesses. It is from the judgment denying their motion for new trial that the Dales' appeal, assigning error to the trial court's findings that the 2016 will was not a valid notarial will and that the 2016 will was not a valid authentic act revoking all prior wills.

LAW AND ANALYSIS

Louisiana Code of Civil Procedure article 3393(B) provides in pertinent part that: "[a]fter formal or informal acceptance by the heirs or legatees or rendition of a judgment of possession by a court of competent jurisdiction, if other property is discovered, or for any other proper cause, upon the petition of any interested person, the court, without notice or upon such notice as it may direct, may order that the succession be opened or reopened...." Whether a succession may be reopened is within the sound discretion of the trial court depending upon circumstances peculiar to the individual case. See Danos v. Waterford Oil Co., 225 So.2d 708, 714 (La. App. 1st Cir.), writ refused, 254 La. 856, 227 So.2d 595 (1969). Courts have found "other proper cause" under La. Code Civ. P. art. 3393. to exist under extremely limited circumstances, such as where a valid will is discovered after the administration of a succession. Succession of McLendon, 383 So.2d 55, 58 (La. App. 2d Cir. 1980). (Emphasis added.) Thus, we must consider whether the 2016 will is valid giving proper cause to reopen the succession of Ms. Dale, and if not, whether the revocation clause can be considered a valid authentic act revoking all prior wills.

Louisiana Civil Code article 1577 addresses the requirements of form for a notarial testament and provides as follows:

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ____ day of _______, _____."

In order to be valid as to form, (1) the testatrix must declare or signify in the presence of a notary and two witnesses that the instrument is his last will and testament; (2) the testatrix must sign his name at the end of the testament and on each separate page; and (3) the notary and two witnesses must sign a declaration in the presence of each other and the testatrix attesting that the formalities of Article 1577(1) have been followed. In re Succession of Siverd, 2008-2383, 2008-2384 (La. App. 1st Cir. 9/11/09), 24 So.3d 228, 230. The primary purpose of the statute authorizing this type of will is to afford a simplified means of making a testament whereby the authenticity of the act can be readily ascertained and fraudulent alteration of it will be most difficult. In re Succession of Richardson, 2005-0552 (La. App. 1st Cir. 3/24/06), 934 So.2d 749, 751. writ denied, 2006-0896 (La. 6/2/06), 929 So.2d 1265.

Moreover, although the intention of the testator as expressed in the testament must govern, the intent to make a testament, although clearly stated or proved, will be ineffectual unless the execution thereof complies with codal requirements. In re Succession of Hendricks, 2008-1914 (La. App. 1st Cir. 9/23/09), 28 So.3d 1057, 1060, writ not considered, 2010-0480 (La. 3/26/10), 29 So.3d 1256. The Civil Code provides in no uncertain terms that "[t]he formalities prescribed for the execution of a testament must be observed or the testament is absolutely null." La. Civ. Code art. 1573. A material deviation from the manner of execution prescribed by the code will be fatal to the validity of the testament. In re Succession of Hendricks, 28 So.3d at 1060. Nevertheless, while a material deviation from the manner of execution prescribed by Article 1577 will be fatal to the validity of the testament, the form of the attestation clause is not absolute. See In re Succession of Holbrook, 2013-1181 (La. 1/28/14), 144 So.3d 845, 851. Thus, as long as the attestation clause in the will substantially complies with the requisites mentioned in Article 1577, the attestation clause will be sufficient. Id. at 852.

Ms. Dale's 2016 will contains a clause stating, "The Testatrix has signed this one page will and declared or signified in our presence [t]hat it is her last Will and Testament and in the presence of the testatrix and each other we have hereunto subscribed our names at Baton Rouge, Louisiana [t]his 11th day of October, 2016." Under the clause two witnesses as well as a notary signed the will. The attestation clause alone would comply with Article 1577 ; however, next to the notary's name, there is a disclaimer stating that "[t]he notary has neither prepared nor read this document and is solely attesting to the authenticity of the signatures affixed hereto." This disclaimer clearly conflicts with the attestation clause and nullifies two of the requirements for a valid notarial will. First, if the notary is only attesting to the authenticity of the signatures, it is no longer clear that the testator declared in the presence of the notary and two witnesses that the instrument was her last will and testament. Secondly, the disclaimer nullifies the declaration that the document was signed in the presence of the testator and each other. These deviations from the required testamentary form are significant and material, and, therefore, we agree with the decision of the trial court that the 2016 will does not substantially comply with La. Civ. Code art. 1577. Therefore, the 2016 will is an absolute nullity and does not constitute "other proper cause" to reopen Ms. Dale's succession.

After the parties appealed the decision of the trial court, the supreme court directly addressed the issue of whether a revocation clause, contained within a notarial testament that was found to be void, could be valid as an authentic act to revoke a prior testament. In Succession of Harlan, 2017-1132 (La. 5/1/18), 250 So.3d 220, the supreme court concluded that a juridical act formulated as a last will and testament, which does not substantially comply with the formalities set forth in La. Civ. Code arts. 1574 - 1580.1, prescribing the requisite formalities for olographic and notarial testaments, is absolutely null and void ab initio, and can have no effect of any sort. Thus, a revocation clause in an absolutely null testament, which otherwise meets the requirements for an authentic act, cannot constitute a valid and effective revocation of prior wills. Id. As we have found the 2016 will to be void, under Harlan , the 2016 will is of no effect and cannot constitute a revocation of all prior wills.

Having found no merit to the assignment of error raised by the Dales, we affirm the judgment of the trial court denying their request to reopen the succession and dismissing all of their claims.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of the appeal are assessed against appellants, Mr. Christopher Roy Dale and Mr. Michael Anthony Dale.

AFFIRMED.

      Preliminarily, we observe that "[t]he established rule in this circuit is that the denial of a motion for new trial is not an appealable judgment absent a showing of irreparable harm." Pittman v. Pittman, 2001-2528 (La. App. 1st Cir. 12/20/02), 836 So.2d 369, 372, writ denied, 2003-1365 (La. 9/19/03), 853 So.2d 642. Even so, we note that "the supreme court has directed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits as well, when it is clear from the appellant's brief that he intended to appeal the merits of the case."Carpenter v. Hannan, 2001-0467 (La. App. 1st Cir. 3/28/02), 818 So.2d 226, 228-29, writ denied, 2002-1707 (La. 10/25/02), 827 So.2d 1153. Accordingly, we consider the Dales' appeal as an appeal on the merits of the underlying judgment.

      Ms. Dale's testamentary capacity during the signing of the 2016 will, because of her failing physical and mental health, was raised in defense to the Dales' petition and motion for new trial. The trial court did not reach that issue finding the 2016 will was void on its face.


source: Caselaw Access Project

author: CRAIN, J.

license: Public Domain

text:
    STATE of Louisiana v. Devon Terrell LIVOUS
    NO. 2018 KA 0016
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 24, 2018
    Hillar C. Moore III, District Attorney, Allison Miller Rutzen, Assistant District Attorney, Baton Rouge, Louisiana, Attorneys for the State of Louisiana
    Prentice L. White, Baton Rouge, Louisiana, Attorney for Defendant/Appellant, Devon Terrell Livous
    BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

The defendant, Devon Terrell Livous, appeals his conviction for second degree murder and life sentence at hard labor without benefit of probation, parole, or suspension of sentence. We affirm.

FACTS

On July 25, 2012, at approximately 3:45 p.m., the defendant shot and killed his fiancee, Raolatu Alowonle, in front of her eight-year-old son, J.B. At trial, J.B. testified the defendant broke into his mother's apartment and "ambushed" them when they returned home. He explained the defendant pointed one of the victim's guns at her and ordered her to retrieve a second. After the defendant was armed with the two guns he made the victim and J.B. sit on the couch as he ranted and threw things. The victim and J.B. managed to escape the apartment and ran down the street as the defendant shot at them. J.B. testified he witnessed the defendant shoot his mother from across the sidewalk. The defendant then drove away. The victim died of multiple gunshot wounds to her back.

After J.B. identified the defendant in a photo lineup, the defendant was arrested and admitted shooting the victim with her gun as she ran away from him. The defendant claimed, however, the victim pulled the gun and pointed it in his face before he took it from her.

SUFFICIENCY OF THE EVIDENCE

The defendant was convicted of second degree murder. On appeal, he concedes he shot the victim, but argues the trial court erred in accepting the jury's verdict when the facts clearly supported a conviction for the lesser offense of manslaughter.

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV, La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, an appellate court must determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt based on the entirety of the evidence, both admissible and inadmissible, viewed in the light most favorable to the prosecution. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ;

State v. Oliphant , 13-2973 (La. 2/21/14), 133 So.3d 1255, 1258 (per curiam ); see also La. Code Crim. Pro. art. 821B; State v. Mussall , 523 So.2d 1305, 1308-09 (La. 1988). When circumstantial evidence forms the basis of the conviction, the evidence, "assuming every fact to be proved that the evidence tends to prove ... must exclude every reasonable hypothesis of innocence." La. R.S. 15:438 ; Oliphant , 133 So.3d at 1258.

The due process standard does not require the reviewing court to determine whether it believes the witnesses or whether it believes the evidence establishes guilt beyond a reasonable doubt. State v. Mire , 14-2295 (La. 1/27/16), --- So. 3d ----, ---- (per curiam ) (2016 WL 314814). Rather, appellate review is limited to determining whether the facts established by the direct evidence and inferred from the circumstances established by that evidence are sufficient for any rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Gardner , 16-0192 (La. App. 1 Cir. 9/19/16), 204 So.3d 265, 267. The weight given evidence is not subject to appellate review; therefore, an appellate court will not reweigh evidence to overturn a factfinder's determination of guilt. State v. Kirsh , 17-0231 (La. App. 1 Cir. 11/1/17), 234 So. 3d 941, 946.

The crime of second degree murder, in pertinent part, is the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1A(1). Specific criminal intent is "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Specific intent may be formed in an instant. State v. Mickelson , 12-2539 (La. 9/3/14), 149 So. 3d 178, 183. Because it is a state of mind, specific intent need not be proven as a fact, but may be inferred from circumstances surrounding the offense and the defendant's actions. Mickelson , 149 So. 3d at 182. For example, specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Reed , 14-1980 (La. 9/7/16), 200 So. 3d 291, 309, cert. denied , --- U.S. ----, 137 S.Ct. 787, 197 L.Ed.2d 258 (2017).

Manslaughter is, pertinently, a homicide that would be second degree murder but is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. 14:31A(1). "Sudden passion" and "heat of blood" are mitigating factors in the nature of a defense. If the defendant establishes those factors by a preponderance of the evidence, a verdict for murder is inappropriate. Reed , 200 So. 3d at 311 ; State v. Eby , 17-1456 (La. App. 1 Cir. 4/6/16), 248 So. 3d 420, 424-25. However, provocation will not reduce a homicide to manslaughter if the factfinder finds the offender's blood actually cooled, or an average person's blood would have cooled, at the time the offense was committed. See La. R.S. 14:31A(1). In other words, if a man unreasonably permits his impulse and passion to obscure his judgment, he will be fully responsible for the consequences of his act. State v. Leger , 05-0011 (La. 7/10/06), 936 So. 2d 108, 170-71, cert. denied , 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). Provocation and time for cooling off are determinations made by the factfinder using the standard of the average or ordinary person with ordinary self-control. Reed , 200 So. 3d at 311.

J.B. was thirteen years old at the time of trial and was eight years old when his mother met, started dating, and was killed by the defendant. J.B. testified the defendant kicked in the front door of the victim's apartment and waited inside for them. When they entered through the back door, the defendant "pushed [them] in" and locked the door while pointing the victim's gun at them. J.B. explained he walked upstairs with the victim as she retrieved her other gun and gave it to the defendant. Then they returned downstairs while the defendant held one gun in his hand and had the other tucked into his pants. At the defendant's direction, J.B. and the victim sat on the couch while the defendant stood, "arguing" with the victim and throwing things around. J.B. clarified it was "mostly a one-sided argument," which included the defendant saying things about J.B.'s biological father who died when J.B. was four years old. The victim and J.B. got up and the victim was able to unlock a door, but the defendant told them to sit and "started arguing at us some more." They got up again and were able to run out the front door into the street.

J.B. testified the defendant tried to shoot them as they ran in the direction of J.B.'s aunt's apartment located on the same street. He described seeing his mother talking to a man and attempting to get help, when the defendant shot her. After witnessing the shooting from across the sidewalk, J.B. saw the defendant walk to his car and drive away.

J.B. was questioned about his mother's relationship with the defendant. He denied seeing her push, hit, or pull a gun on the defendant. However, J.B. testified he pointed his mother's gun at the defendant on one occasion because the defendant was pulling her hair and choking her.

Apartment buildings and businesses are located on Ryder Drive where the victim was killed. Surveillance video from a business shows a woman and child running and a man running behind them. Rene Caballero, a UPS driver who frequented the area, testified he was loading packages when he heard approximately three gunshots. He saw a man holding a gun walking away from a lady who was on the ground. Caballero then heard a second round of approximately twelve gunshots and lowered himself in his truck for protection. He peered outside and saw a woman he recognized as one of the Alowonle sisters.

Sterling W. Gladden III heard gunshots from his office on Ryder Drive. He saw a man with a pistol chasing a lady and child towards his building. Gladden used his office phone to call 911. Gladden saw the shooter cross the street and disappear between two buildings. He then heard multiple gunshots and saw a car speed by his building and a lady wearing a pink dress holding a pistol.

Alexander Hutchinson was changing a flat tire when a woman ran down the street screaming for help. He heard her say, "[H]e's trying to kill me. He's going to shoot me." Asked if a man was chasing her, Hutchinson testified, "He actually ran her down, stood over her, and shot her." The shooter shot the victim four times, looked at Hutchinson and said, "I got you" before running back down the street and speeding toward Essen Lane in his burgundy Camaro. Hutchinson testified he "freaked out" and immediately ran to his residence, but returned to speak to police. Hutchinson denied seeing a woman in a pink dress fire any shots.

Robert Barger heard gunshots as he pulled into a parking lot on Ryder Drive to pick up his wife from work. A woman fell facedown approximately twenty to thirty feet from him. Barger then saw a man holding a gun run to the woman, say something to her, shoot her as he stood over her, then run away. Barger moved toward the woman but withdrew to his truck when he heard more gunshots. A boy ran to Barger, and Barger saw a woman wearing pink firing a gun "randomly" toward a red Camaro driving down the street. He brought the boy into his wife's office building while people, including the woman in pink, gathered around the victim's body. When asked if the man who shot the woman appeared "angry," Barger answered, "yes." When asked if the man appeared in a rage, Barger answered, "Angry, yes."

The defendant testified and admitted shooting the victim with her gun, which he claimed he took from her after she pointed it in his face. He indicated the victim was his fiancée and the two had a tumultuous relationship that included several altercations. The defendant testified the victim pulled a gun on him on her birthday, months before the offense. He explained the victim argued with her uncle and sister earlier that day and became upset with him for not "getting into it" with her uncle. The defendant began arguing with her and she reached under a pillow on the bed for her gun. According to the defendant, when he saw her hand on the gun he grabbed her wrist and choked her until she dropped the gun. The defendant also claimed the victim pushed him down a set of stairs on a separate occasion, causing him to seek emergency medical treatment. The defendant further testified J.B. pointed a gun at him two days before the offense. The defendant testified he and the victim were arguing outside and J.B. just "came out of nowhere with the gun," holding it in the air. The victim told J.B. to put the gun down then the defendant took the gun from J.B.

The defendant testified he left the victim's apartment two days before the offense to "get a peace of mind" and avoid further altercations. However, he woke at her apartment the morning of the offense. He and the victim left the apartment separately but had plans to meet later. The defendant claimed he spoke to the victim on the phone and told her he was on his way back to the apartment and denied the conversation was heated. The defendant stated he used his key, which the victim knew he had, to enter the victim's apartment. A few minutes later, the victim arrived home with J.B. and he helped the victim with the grocery bags she held.

According to the defendant, he reminded the victim he needed to pay his car note and went upstairs to retrieve some cash stored in the victim's bedroom, when the victim told him she spent approximately $600 of the money on hair extensions. The defendant said he was angry for her taking the money, slapped her, and walked away. When he went to retrieve the money that was left, the victim pulled her gun from under her pillow and pointed it at the defendant. When asked how he felt when the victim pointed the gun at him, he testified, "I was already mad so, I mean, from her taking the money and she, you know, you know, I felt at the time, you know, I don't know."

The defendant stated he tried to grab the victim's wrist to disarm her, explaining, "It wasn't my first time hitting her so, I mean, I don't know, she probably would've shot me. No telling what could have happened[.]" He explained:

[W]e got into it, like, she kicking and stuff like that, got my hand on her wrist and, you know, I pulled the gun. The gun flew back towards the kitchen and I tried to push her off of me and I walked to get the gun and she pulled the [front] door ... [then they] ran out. I was running to get the gun and I ran out the apartment. I shot like once in the air and they kept on running and, you know, I ran behind them.

Asked why he chased the victim, the defendant said he "was mad" and "wasn't thinking." The defendant acknowledged pulling the trigger and seeing the victim fall, but claimed he did not know she was shot, thinking instead she ran out of breath. He stated he went to his car and rather than driving away, he drove toward the victim to render assistance; however, the victim's sister began shooting at his car.

The defendant's younger sister, Courtney, testified she met the victim "a couple times" and at their first meeting felt the victim did not have "a good spirit." She stated her brother "wasn't the same" and acted scared "to do, move a certain way." She testified she went to the victim's apartment on two or three occasions, once after the defendant called and told her the victim and her son "had guns pulled out on him"; however, no guns were out when she got there. Another time she arrived to help the defendant retrieve his clothes, and the victim cursed at her and waved a gun at her through a window. On the day of the offense, the defendant contacted her, told her he may have shot the victim, and asked her to keep the handgun until he turned himself in to the police. She explained, "I sensed a scarce [sic ] in his voice. I sensed that he wasn't himself at the time. I just, he looked blacked out to me at that point." She stated the defendant did not tell her why he shot the victim, but believed "He basically was scared that it was either him or her."

The defendant's former girlfriend, Katrina Golden, testified she saw the defendant the morning of the offense and that afternoon was visiting the defendant's sister when the defendant called. She said the defendant's sister looked shocked and wrote on a piece of paper that the victim had been shot. She saw the defendant after the offense and described him as "nervous" and "shaking," "almost like he wanted to cry." She said the defendant told her the victim pulled a gun on him and he took it from her. Golden recalled the defendant telling her about other incidents with the victim, such as the victim pushing him down stairs and waking to the victim pointing a gun to his face.

The defendant's mother, Pam Jackson, testified over the course of the defendant's and victim's relationship, she saw things she did not like, describing the victim as "controlling" and "pushy." Jackson described a telephone call with the victim that took place when the victim and defendant were not getting along. According to Jackson, "she called me and then she said she wanted to tell [the defendant] not to come back to my house because I am going to protect me and mine." Jackson said she asked if the victim was stating the victim would harm the defendant and the victim said yes. Jackson indicated she then warned the defendant about the victim but he did not listen.

To resolve conflicting testimony relative to factual matters, the jury must make credibility determinations and weigh the evidence. Reed , 200 So. 3d at 312. The jury can accept or reject the testimony of any witness. Mire , --- So. 3d at ----. The Jackson standard of review does not permit a reviewing court to substitute its own appreciation of the evidence for the factfinder's, assess the credibility of witnesses, or reweigh evidence. See State v. McGhee , 15-2140 (La. 6/29/17), 223 So. 3d 1136, 1137 (per curiam ); State v. Calloway , 07-2306 (La. 1/21/09), 1 So. 3d 417, 422 (per curiam ). Thus, in the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the jury, is sufficient to support a factual conclusion. Reed , 200 So. 3d at 312. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict based on an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. Calloway , 1 So. 3d at 418.

When viewed in the light most favorable to the state, any rational trier of fact could have found the state proved beyond a reasonable doubt the defendant had the specific intent to kill and committed second degree murder and the defendant failed to prove the mitigating factors of sudden passion or heat of blood. The defendant admittedly chased the victim and her child out of the apartment and down the street and fired the gun. The defendant's conviction was not irrational and will not be disturbed. See State v. Ordodi , 06-0207 (La. 11/29/06), 946 So.2d 654, 662.

EXCESSIVE SENTENCE

The defendant next argues his statutorily-mandated life sentence is unconstitutionally excessive in light of the circumstances of this case, where he contends the victim frequently brandished a gun to exert force on or intimidate him.

Both the United States and Louisiana constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const. amend. VIII ; La. Const. art. I, § 20. A sentence is unconstitutionally excessive if it is grossly disproportionate to the severity of the offense or constitutes nothing more than a needless infliction of pain and suffering. State v. Shaikh , 16-0750 (La. 10/18/17), 236 So.3d 1206, 1209 (per curiam ). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one's sense of justice. State v. Weaver , 01-0467 (La. 1/15/02), 805 So.2d 166, 174.

Louisiana Revised Statute 14:30.1B mandates that a person convicted of second degree murder be sentenced to life in prison at hard labor without benefit of parole, probation, or suspension of sentence. The legislature defines criminal conduct and provides the penalties to be imposed against persons engaged in such conduct, which reflect the degree to which the criminal conduct affronts society. Weaver , 805 So.2d at 174 ; State v. Dorthey , 623 So.2d 1276, 1280 (La. 1993) ; see also State v. Fobbs , 99-1024 (La. 9/24/99), 744 So.2d 1274 (per curiam ). Statutorily mandated sentences are presumed constitutional; however, the sentence may be found unconstitutionally excessive if the defendant rebuts the presumption of constitutionality by proving he is exceptional, meaning because of unusual circumstances he is a victim of the legislature's failure to assign sentences meaningfully tailored to the culpability of the offender, gravity of the offense, and circumstances of the case. See State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672, 676 ; Eby , 248 So.3d at 428.

The defendant conceded he shot and killed the victim in front of her young son as they ran from him. At the sentencing hearing, J.B. testified about his mother's character and the sadness and nightmares caused by witnessing her murder and no longer having her in his life. The victim's father also made an impact statement. In imposing the sentence, the trial court recalled the "chilling" surveillance footage and facts of the offense as described by several witnesses. The trial court indicated it considered the defendant's presentence investigation report that detailed the defendant's criminal history dating from 1999, as well as the defendant's family, employment, educational, and social history. After reviewing all of the relevant information, the trial court found the mandatory life sentence was appropriate.

The defendant has failed to clearly and convincingly show that because of unusual circumstances he was a victim of the legislature's failure to assign sentences that were meaningfully tailored to his culpability, the gravity of the offense, and the circumstances of the case. Thus, the mandatory life sentence is not excessive. This assignment of error lacks merit.

CONVICTION AND SENTENCE AFFIRMED.

      The minor child is referred to herein by his initials. See La. R.S. 46:1844W.


text:
    STATE of Louisiana v. James MILLS Jr.
    NO. 2018 KA 0047
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 24, 2018
    Hillar C. Moore III, District Attorney, Dale R. Lee, Assistant District Attorney, Baton Rouge, Louisiana, Attorneys for the State of Louisiana
    Lieu T. Vo Clark, Mandeville, Louisiana, Attorney for the Defendant, James Mills Jr.
    BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

The defendant, James Mills Jr., appeals his second-degree murder conviction and sentence of life imprisonment without benefit of parole, probation, or suspension of sentence. We affirm.

FACTS

On the night of October 5, 2014, the defendant and a masked man approached Miguel Cueva-Alvarado and Hancy Sanchez, who were smoking outside Hancy's apartment near the intersection of Staring Lane and Burbank Drive in Baton Rouge. The defendant carried a .38 Special revolver and wore a black jacket and hat, but his face was not covered. Miguel and Hancy were shown the gun and told to raise their hands, then the masked man went through their pockets and took their cell phones. The perpetrators began walking away, but the defendant went back to Hancy and asked for the password to his phone. When Hancy did not answer and called out to another friend, the defendant shot Hancy in the head, killing him. As the defendant fled, Miguel grabbed and pulled off his jacket. The defendant also left the gun at the scene. Within hours, Miguel identified the defendant as the shooter in a six-person photo lineup. Miguel testified at trial and identified the defendant as the shooter.

DISCUSSION

The defendant contends he was denied his right of confrontation and right to a fair trial by the trial court's refusal to allow cross-examination of Miguel about pending criminal charges, including charges initiated in 2017 in Ascension Parish for possession with intent to distribute cocaine, illegal carrying of a weapon while in possession of cocaine, and criminally negligent discharge of a firearm, as well as federal charges for violating immigration laws.

Any party may attack the credibility of a witness by questioning him about any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony or through extrinsic evidence showing the witness' bias, interest, corruption, or defect of capacity, unless otherwise provided by legislation. La. Code Ev. art. 607. Louisiana's Code of Evidence specifically provides that every witness in a criminal case subjects himself to examination relative to his criminal convictions, and that evidence of an arrest, arrest warrant, indictment, prosecution, or acquittal may not be used to impeach the witness' general credibility. See La. Code Ev. art. 609.1 ; State v. Brady , 381 So.2d 819, 821-22 (La. 1980). However, this does not mean a witness may never be questioned about arrests or pending charges.

A criminal defendant has the fundamental constitutional right to confront the witnesses against him, which includes the right to cross-examine the state's witnesses. See U.S. Const. amend. 6 ; La. Const. art. 1 § 16 ; Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) ; State v. Robinson, 01-0273 (La. 5/17/02), 817 So.2d 1131, 1135. Cross-examination is the primary means of testing the truthfulness of a witness' testimony and an essential safeguard of a fair trial. See Davis, 415 U.S. at 316, 94 S.Ct. 1105 ; Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) ; Robinson, 817 So.2d at 1135. To cross-examine a witness effectively, a defendant must be afforded the opportunity to demonstrate any bias or self-interest attached to the witness' testimony. See La. Code Evid. art. 607D(1); State v. Rankin, 465 So.2d 679, 681 (La. 1985). A witness' hope or knowledge he will receive leniency from the state is highly relevant to establish bias or interest, as is the possibility the prosecution may have some leverage over a witness due to pending criminal charges or a plea agreement. See Rankin, 465 So.2d at 681 ; Brady, 381 So.2d at 822 ; State v. Franks, 363 So.2d 518, 520 (La. 1978) ; State v. Mills , 13-0573 (La. App. 1 Cir. 8/27/14), 153 So.3d 481, 489, writs denied, 14-2027 (La. 5/22/15), 170 So.3d 982, and 14-2269 (La. 9/18/15), 178 So.3d 139. Thus, cross-examination regarding arrests or pending charges may be appropriate to expose a witness' motivation in testifying. See Brady, 381 So.2d at 822.

After the state indicated Miguel would testify, the trial court recessed the jury to address the defendant's request to question Miguel about his arrest history and pending criminal charges. The state argued it would be inappropriate to question Miguel, an armed robbery victim in this case, about events that occurred subsequent to this crime. Further, the state argued Miguel faced prosecution in another parish and deportation by federal immigration authorities, and Miguel expressed his willingness to testify after the state clearly explained Miguel "is not getting a deal" and the prosecutor in this case had no ability to help him. The defense maintained the questioning was proper to establish the hope that cooperation in this case would result in favorable treatment in the proceedings in the other parish or by the federal authorities. The trial court denied the defendant's request, reasoning Miguel's arrest history was not relevant given his statement on the night of the crime and, based on the state's representations, Miguel had no reasonable expectation of advantageous treatment as a result of his testimony. The trial court confirmed Miguel would testify dressed in prison garb and the jury would know he was incarcerated; however, the trial court found no basis for providing the jury with details of his arrests.

With no basis beyond speculation for arguing Miguel's testimony was biased because he hoped to garner favor from the state relative to his pending charges, we find no error in the trial court's ruling. Cf. State v. Grace, 94-295 (La. App. 5 Cir. 9/27/94), 643 So. 2d 1306, 1307-09 (the trial court properly refused to allow cross-examination of the state's witness regarding charges against him where there was no evidence of a deal or other indicia of bias or prejudice); Davis, 818 So. 2d at 81-83 (questioning about pending charges in another jurisdiction that were placed on inactive status should have been allowed where the defendant was attempting to show that by collaboration between jurisdictions, the state had some leverage over the witness); State v. Harrison, 484 So. 2d 882, 883-84 (La. App. 1 Cir.), writ denied, 488 So. 2d 688 (La. 1986) (questioning about dismissed charges should have been allowed where the time limitation on prosecuting the witness had not lapsed). The jury was aware Miguel was incarcerated, and Miguel testified he was in this country illegally. Furthermore, Miguel was not just a witness, but a victim of armed robbery in this case, and testified consistently with his identification of the defendant as the shooter made hours after the crime. These facts and the evidence of the defendant's guilt, including a video interview where the defendant implicated himself as at least a principal to the murder, the defendant's jacket at the murder scene, and the defendant's DNA on the victims' cell phones ensure the guilty verdict was not attributable to the trial court's refusal to allow the defendant to question Miguel regarding the nature of his pending charges. Cf. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (confrontation errors are subject to harmless error analysis); State v. Harris, 17-303 (La. App. 5 Cir. 12/20/17), 235 So. 3d 1354, 1373-74 (refusal to allow cross-examination of the victim regarding pending attachments did not deprive him of his right to confrontation, and any error was harmless).

CONVICTION AND SENTENCE AFFIRMED.

Holdridge J. concurs The result

      The grand jury indictment identifies Jordan Derrell Harris as the defendant's co-defendant; however, the disposition of the charges against Harris is not reflected in this record.

      In his second police interview, the defendant stated he was with "Bobby," who went to "stick ... up" "the two Mexicans" and shot one of them. The defendant explained he let Bobby wear his jacket, which had his cell phone in the pocket, and went with Bobby because he wanted his things back. The defendant further explained he pulled his shirt up to cover his face and patted down the victims' pockets when Bobby pointed the gun at him. In his third interview, after the defendant was told Bobby was in jail at the time of the crime, the defendant claimed he didn't know the man's identity.


author: McClendon, J.

text:
    STATE of Louisiana v. Kyran Javon VAUGHN
    2018 KA 0344
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 24, 2018
    Warren L. Montgomery, District Attorney, Matthew Caplan, Assistant District Attorney, Covington, Louisiana Counsel for Appellee, State of Louisiana
    Rachel Yazbeck, New Orleans, Louisiana, Counsel for Defendant/Appellant, Kyran Javon Vaughn
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   McClendon, J.

Defendant, Kyran Javon Vaughn, was charged by an amended bill of information with one count of armed robbery with a firearm, a violation of Louisiana Revised Statutes 14:64 and 14:64.3A (count I) , and one count of obstruction of justice, a violation of LSA-R.S. 14:130.1A(1) (count II). At his arraignment, defendant entered a plea of not guilty on both counts, but following a jury trial, was found guilty of the responsive verdict of first degree robbery, a violation of LSA-R.S. 14:64.1, on count I, and guilty as charged on count II. Motions for a new trial and post-verdict judgment of acquittal were filed by defendant, but denied by the district court.

A habitual offender bill of information was filed by the State, alleging defendant's status as a second-felony habitual offender. Following a hearing, defendant was adjudicated a second-felony habitual offender on count I. The trial court then sentenced defendant to imprisonment at hard labor for twenty years on count I, and imprisonment at hard labor for ten years on count II, with the sentences ordered to run concurrently. A motion to reconsider sentence was filed by defendant, but subsequently denied by the trial court. Defendant now appeals, assigning error to the trial court's failure to sever the charges, to the insufficiency of the evidence presented at trial, and to the excessiveness of his sentences. For the following reasons, we affirm defendant's convictions, habitual offender adjudications, and sentences.

FACTS

At approximately 1:00 a.m. on the morning of September 14, 2016, the victim, Jessie Oates returned to his mother's house in the Kingspoint area of Slidell, Louisiana, with forty to fifty pounds of shrimp following a long day working on a shrimp boat. As Oates needed some money, he called a few individuals in hopes of selling some of the shrimp. Oates then left his mother's home, pulling the container of shrimp in a wagon, and carrying a drawstring backpack containing an iPad and headphones. As he was walking to his first stop, Oates testified that a dark blue Grand Prix, with two black males inside, pulled up beside him. Oates testified he could not see the driver's face, but the passenger, wearing blue jeans, a grey t-shirt, and a white hockey mask, exited the vehicle, pointed a gun at Oates, and demanded he empty his pockets. Oates described the gun as a "long" and "big" rifle or shotgun and was confident it "wasn't like a pistol or anything." Oates testified the two individuals did not hurt him, but, because the gun was pointed at him, he was afraid. He turned over the drawstring backpack containing his iPad and headphones and began to run away but, as he was doing so, the driver of the vehicle asked for the iPad's passcode. Oates relayed the passcode, ran around the corner, waited for the vehicle to leave, and returned to the location for his shrimp. Upon returning to his father's house a few hours later, Oates described the incident, and his father called the police.

A few months later, Oates received a letter dated March 1, 2017, from "Ronaldo," "one of the dudes who is the charge for you being robbed in Kingspoint[.]" In one section of the letter, the writer, asked Oates to drop the charges against defendant, stated that defendant recently received $15,000.00 from a car accident, and indicated that he would give Oates "a few hundred" once the charges were dropped. Another section of the letter alleged that an individual named Rashad Price committed the robbery, but Oates testified he knew Price "very well" and was "sure" that Price was not one of the individuals who robbed him. Oates further testified he did not drop the charges, and did not accept any money in exchange for his testimony.

Deputy James Stelfox of the St. Tammany Parish Sheriff's Office responded to the robbery at approximately 3:45 a.m. Upon speaking with Oates, Deputy Stelfox did not observe him to be intoxicated or under the influence, and was told by Oates that a "light blue" Pontiac with two black male occupants approached and stopped him, pointed a "shotgun or a rifle" at him, and robbed him. Deputy Stelfox was also informed the passenger of the vehicle was wearing a white hockey mask. Deputy Stelfox's investigation was complete when, after searching the Automated License Plate Recognition system, a hit returned on a license plate registered to a light blue Pontiac, which was observed near the Kingspoint neighborhood around 1:00 a.m. earlier that morning.

Ronaldo Joseph, the co-defendant on count I, testified that on September 14, 2016, after completing his shift at Popeyes, he picked up defendant in his blue Pontiac car at approximately 11:00 p.m. Defendant, sitting in the front passenger seat, was wearing a blue shirt and a pair of shorts. After spending time with some friends, followed by a couple of trips to a local Time Saver gas station, the two eventually left. As Joseph was driving defendant back to his home, again with defendant in the front passenger seat, they noticed Oates carrying a "book bag and a wagon." Defendant instructed Joseph to turn around as he believed he knew Oates. Joseph pulled up beside Oates, and testified that when he did, defendant "hopped out the car with a mask and a gun and robbed the guy." Joseph described the gun as a brown, "sawed-off gun," and the mask as a white hockey mask. While Joseph testified he had not previously seen the gun or mask, he stated that defendant's shirt "was long enough to hide anything." As defendant exited the vehicle, he instructed Oates to "put [his] hands up and turn around, don't look at me or I'm going to shoot you."

Joseph testified that defendant took Oates' book sack which contained an iPad. After demanding and receiving the iPad's passcode, the two left Oates, and Joseph subsequently dropped defendant off at his home. Upon reaching the residence, defendant threatened Joseph not to tell anyone what happened or "he was going to shoot up [his] mom's house."

Joseph testified that he did not write the letter that Oates received regarding defendant offering to pay him money in exchange for not testifying and that he neither offered nor paid Oates any money. Furthermore, Joseph testified that an affidavit, which was not notarized or signed by any witnesses, but was allegedly signed and sent by him to the St. Tammany Parish District Attorney's Office, in which he claims he lied about being with defendant on the night of the robbery, contained a false signature. Joseph affirmatively testified that defendant was with him on the night of September 14, 2016.

Detective Jared Lunsford of the St. Tammany Parish Sheriff's Office was assigned to the case and visited the Time Saver gas station a few days later to determine the availability of additional evidence. Detective Lunsford spoke with the store clerk of the Time Saver gas station and reviewed the surveillance footage captured from the store's security cameras. As Detective Lunsford and the store clerk watched the footage, the clerk visually identified defendant and provided Detective Lunsford a copy of defendant's driver's license. The security footage revealed that, at approximately 1:40 a.m., Oates was walking down the street pulling a wagon when defendant and Joseph returned to the Time Saver gas station. The video also showed the light blue Pontiac stopping near Oates and the front passenger of the Pontiac, who had on a white hockey mask, exiting the vehicle and approaching Oates who then threw "his arms up in the air ... [backed] away ... and then [turned] and [ran] away." Detective Lunsford stated that defendant appeared to be wearing a "blue polo-type shirt, short sleeves, with blue jeans and black and white shoes and a hat with something written on it." Also as a part of his investigation, Detective Lunsford questioned Joseph, who admitted to being the driver of the blue Pontiac, identified his passenger as defendant, and corroborated that defendant wore a "Jason" style mask, used a firearm in the robbery, pointed it at Oates, and took Oates' iPad. Detective Lunsford arrested Joseph and, after locating and searching defendant's residence, arrested him as well.

Nicole Joseph, Ronaldo Joseph's mother, testified that she received a letter from defendant postmarked January 17, 2017, with the return address on the envelope reading "Kyran Vaughn, St. Tammany Parish Jail." The letter begins with "[t]his is Kyran the codefendant in your son's case" and proceeds to include the following pertinent statements: (1) "Ronaldo doesn't understand that my people ... went and talked to the victim who is a heroin addict and he doesn't even want to [pursue] the charges anymore[.] [H]e's not coming to trial and me and Ronaldo will walk away with no time because if the victim doesn't come to trial the case gets dismissed. So please Ms[.] Joseph [I'm] asking you from the heart can you please talk to your son and let him know we got the case beat"; (2) "I'm asking can you please talk to him about not testifying"; (3) "also I want [to] let you know that my brother ... gave the victim [$2,000.00] not to come to court even though he wasn't going to come anyway and my family is going to let him stay at my house when [it's] time for him to come to trial"; (4) "Also we can actually both go home next month if your son takes his recorded statement back because without his statement they don't have probable cause to have us in here[.] I'm going to send the Affidavit with this letter [and] you can send it to him tell him to put that he was [lying] and he felt pressured by detectives to give a statement and we had nothing to do with a robbery .... [It's] called recanting your statement"; and (5) "I know what I'm talking about[.] My auntie is a lawyer in Chicago[.] I know the law. Tell him to do that and we can both be hom[e] before Mardi Gras[.]"

Robert Foley, who was qualified and tendered at trial as a forensic document examiner handwriting expert, reviewed the letter received by Mrs. Joseph and the affidavit and letter purportedly authored by Ronaldo Joseph, as well as handwriting exemplars from both Joseph and the defendant. After conducting his analysis, Foley opined that there were "indications" that defendant wrote the letter to Mrs. Joseph and the alleged Ronaldo Joseph affidavit and letter, and he was confident that the letter to Mrs. Joseph and the letter to Oates were authored by the same person. Foley also compared the handwriting of Ronaldo Joseph to the signature on his alleged affidavit and concluded it was not his signature.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, defendant argues the State did not prove beyond a reasonable doubt that he committed the crime of first degree robbery as "[t]he descriptions of [defendant] are wildly different between the testimony of Ronaldo Joseph and Jesse Oates." Further, defendant contends the State did not prove beyond a reasonable doubt that he committed the crime of obstruction of justice, arguing the State "did not definitively prove that [he] authored any of the items presented to the court and the jury[,]" and that "[n]o individuals were paid any funds and everyone testified without threats." Therefore, defendant avers his convictions should be reversed.

When issues are raised on appeal, both as to sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing the sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of trial errors as to that crime would be pure dicta since those issues are moot.

On the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. If the reviewing court determines there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused must receive a new trial but is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988) ; State v. Hearold, 603 So.2d 731, 734 (La. 1992). Accordingly, we proceed first to determine whether the entirety of the evidence was sufficient to support defendant's convictions.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend, XIV; LSA-Const. art. I, § 2, The standard of review for sufficiency of the evidence to support a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime, and defendant's identity as the perpetrator of that crime, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ; State v. Patton, 10-1841 (La.App. 1 Cir. 6/10/11), 68 So.3d 1209, 1224. In conducting this review, we must also be expressly mindful of Louisiana's circumstantial evidence test, i.e., "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." LSA-R.S. 15:438 ; State v. Millien, 02-1006 (La.App. 1 Cir. 2/14/03), 845 So.2d 506, 508-09.

When a conviction is based on both direct and circumstantial evidence, the reviewing court 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 the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601 (La.App. 1 Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157, and 00-0895 (La. 11/17/00), 773 So.2d 732.

First degree robbery is 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, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon. LSA-R.S. 14:64.1A. The first degree robbery statute has objective and subjective components. The State must prove that the offender induced a subjective belief in the victim that he was armed with a dangerous weapon and that the victim's belief was objectively reasonable under the circumstances. The statute excludes unreasonable panic reactions by the victim, but otherwise allows the victim's subjective beliefs to determine whether the offender has committed first degree robbery. Direct testimony by the victim that he believed the defendant was armed, or circumstantial inferences arising from the victim's immediate surrender of his personal possessions in response to the defendant's threats, may support a conviction for first degree robbery. State v. Caples, 05-2517 (La.App. 1 Cir. 6/9/06), 938 So.2d 147, 151, writ denied, 06-2466 (La. 4/27/07), 955 So.2d 684.

Additionally, the crime of obstruction of justice is defined, in part, as "[i]nducing or persuading or attempting to induce or persuade any person to do any of the following ... [t]estify falsely or, without right or privilege to do so, to withhold any testimony" when the defendant has "knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding." LSA-R.S. 14:130.1A(4)(a). The statute does not require that the criminal proceeding actually be affected; the perpetrator just must know and understand that the act may affect the proceeding. Further, the criminal proceeding need not already be underway; it need only be a "potential," "future" proceeding. See State v. Jones, 07-1052 (La. 6/3/08), 983 So.2d 95, 101.

In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 03-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when 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. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La.App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La, 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La.App. 1 Cir. 1985).

Any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of first degree robbery and defendant's identity as the perpetrator of that offense. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). No such hypothesis exists in the instant case. Oates testified that defendant pointed a gun at him, he surrendered his backpack containing an iPad and headphones to defendant, and he was scared. Further, Ronaldo Joseph, as the driver of the blue Pontiac that evening, likewise testified that defendant pointed a gun at Oates and took his iPad. Lastly, as discovered through Detective Lunsford's investigation, the Time Saver store clerk identified defendant as the passenger of the blue Pontiac on the night of the robbery.

Further, any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of obstruction of justice and defendant's identity as the perpetrator of that offense. As noted above, when a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant, is guilty unless there is another hypothesis that raises a reasonable doubt. Id. No such hypothesis exists in the instant case. The letter received by Oates offered him money if he would not testify at trial, and the letter received by Mrs. Joseph tried to convince her to persuade Ronaldo Joseph not to testify or to otherwise recant his testimony and to sign the affidavit purportedly written by Ronaldo Joseph that said he was lying regarding who committed the robbery. Robert Foley, the expert forensic document examiner testified that these were all written by the same individual, with indications that defendant was the author.

After reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, defendant argues that the trial court erred in denying his motion to sever counts I & II, and asserts that the State "was able to paint a picture which suggested that [he] was guilty by attempting to prove his identity in the later charged [o]bstruction of [ju]stice count." Further, defendant claims the offenses were so dissimilar as to not warrant joinder, and concludes that such joinder severely prejudiced him at trial.

Louisiana Code of Criminal Procedure article 493 provides:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

However, even when multiple offenses may be joined under Article 493, Article 495.1 additionally provides that:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of Information or by such joinder for trial together, the court may order separate; trials, grant a severance of offenses, or provide whatever other relief justice requires.

A defendant in any case bears a heavy burden of proof when alleging prejudicial joinder of offenses as grounds for a motion to sever; factual, rather than conclusory, allegations are required. In ruling on such a motion, the trial court must weigh the possibility of prejudice to the defendant against the important considerations of economical and expedient use of judicial resources. A motion to sever is addressed to the sound discretion of the trial court, and the court's ruling should not be disturbed on appeal absent a clear showing of prejudice. State v. Morris, 99-3075 (La.App. 1 Cir. 11/3/00), 770 So.2d 908, 913-14, writ denied, 00-3293 (La. 10/12/01), 799 So.2d 496, cert. denied, 535 U.S. 934, 122 S.Ct. 1311, 152 L.Ed.2d 220 (2002).

In determining whether joinder will be prejudicial, the court should consider whether: (1) the jury would be confused by the various counts; (2) the jury would be able to segregate the various charges and evidence; (3) the defendant would be confounded in presenting his various defenses; (4) the crimes charged would be used by the jury to infer a criminal disposition; and (5) especially considering the nature of the charges, the charging of several crimes would make the jury hostile. State v. Deruise, 98-0541 (La. 4/3/01), 802 So.2d 1224, 1232, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001). However, the fact that evidence of one of the charges would not be admissible in a separate trial on the joined offense does not per se prevent the joinder and single trial of both crimes if the joinder is otherwise permissible. Finally, there is no prejudicial effect from the joinder of two offenses when the evidence of each is relatively simple and distinct, so that the jury can easily keep the evidence of each offense separate in its deliberations. Id . ;see also State v. Murphy, 16-0901 (La.App. 1 Cir. 10/28/16), 206 So.3d 219, 226-27.

In the present case, defendant was charged with one count of armed robbery with a firearm and one count of obstruction of justice. As the armed robbery with a firearm charge carries a mandatory sentence of imprisonment at hard labor, it shall be tried by a jury of twelve, ten of who must concur to render a verdict. See LSA-R.S. 14:64 and 14:64.3 ; LSA-C.Cr.P, art. 782A. Further, for the obstruction of justice charge, in addition to the imposition of a fine, defendant was subject to a potential sentence of imprisonment at hard labor. Thus, this charge likewise requires a jury comprised of twelve members, ten of whom must concur to render a verdict. See LSA-R.S. 14:130.1B(2); LSA-G.Cr.P. art. 782A. Defendant was tried by a twelve member jury, ten of whom concurred to render the verdicts in the present case. Moreover, the Louisiana Supreme Court has recognized that joinder is not unfairly prejudicial if the facts of each offense would be admissible at the trial of the other. See State v. Washington, 386 So.2d 1368, 1372 (La. 1980). Thus, the offenses were properly joined under LSA-C.Cr.P. art. 493.

In denying the motion to sever, the trial court noted the "obstruction charge is somewhat part and parcel to the armed robbery[,]" and "[e]ven though it is a separate offense, I think it's intertwined with [t]he State's case that is going to be presented. I see no need - I think [t]he [j]ury is quite capable of separating the two and I see no need for us to sever these and cause us to have two separate trials on this." A review of the record reveals that the evidence against defendant on each count was not complex and was presented in an orderly fashion, allowing the jury to segregate the charges and evidence. Additionally, there is nothing in the record to suggest that the State joined the offenses to show defendant's criminal propensity or that the jury became hostile because of the joinder. In fact, on count I, the jury rendered the responsive verdict of first degree robbery, rather than finding the defendant guilty as charged. Moreover, the State was able to independently prove defendant's identity through Oates' description, Ronaldo Joseph's testimony, and the Time Saver store clerk who provided Detective Lunsford a copy of defendant's driver's license. As we find defendant has not set forth a sufficient factual basis for his allegation that he was prejudiced by the joinder of the charges, the trial court did not abuse its discretion in denying the motion to sever. See Murphy, 206 So.3d at 227.

Assignment of error number one lacks merit.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, defendant argues his sentences are unconstitutionally excessive and are, in light of only having one prior felony conviction and along with the recent legislative amendments to LSA-R.S. 15:529.1, governing sentences for second and subsequent offenses, out of proportion to the severity of his crimes.

The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La.App. 1 Cir. 5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La.App. 1 Cir. 1988). Louisiana Code of Criminal Procedure art. 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 02-2231 (La.App. 1 Cir. 5/9/03), 849 So.2d 566, 569.

The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The trial court should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).

In State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993), the Louisiana Supreme Court opined that if a trial court judge were to find that the punishment mandated by LSA-R.S. 15:529.1 makes no "measurable contribution to acceptable goals of punishment" or that the sentence amounted to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime," he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive. In State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676-77, the supreme court reexamined the issue of when Dorthey permits a downward departure from the mandatory minimum sentences in the Habitual Offender Law. While both Dorthey and Johnson involve the mandatory minimum sentences imposed under the Habitual Offender Law, the Louisiana Supreme Court has held that the sentencing review principles espoused in Dorthey are not restricted in application to the penalties provided by LSA-R.S. 15:529.1. See State v. Fobbs, 99-1024 (La. 9/24/99), 744 So.2d 1274 (per curiam); State v. Collins, 09-1617 (La.App. 1 Cir. 2/12/10), 35 So.3d 1103, 1108, writ denied, 10-0606 (La. 10/8/10), 46 So.3d 1265.

Mandatory sentences have been repeatedly upheld as constitutional and consistent with the federal and state constitutional provisions prohibiting cruel, unusual, or excessive punishment. See State v. Jones, 46,758-59 (La.App. 2 Cir. 12/14/11), 81 So.3d 236, 249, writ denied, 12-0147 (La. 5/4/12), 88 So.3d 462. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, which means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Johnson, 709 So.2d at 676.

Herein, defendant was adjudicated and sentenced as a second-felony habitual offender on count I under LSA-R.S. 15:529.1A(1) (prior to amendment by 2017 La. Acts Nos. 257, § 1 and 282, § 1). The applicable version of that statutory provision states that "[i]f the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction." As first degree robbery carries a penalty of imprisonment at hard labor for not less than three years and not more than forty years without benefit of parole, probation, or suspension of sentence, defendant's enhanced sentencing range as a second-felony habitual offender was imprisonment at hard labor for twenty to eighty years without benefit of parole, probation, or suspension of sentence. See LSA-R.S. 14:64.1B. Regarding the obstruction of justice conviction, LSA-R.S. 14:130.1B(2) states that "[w]hen the obstruction of justice involves a criminal proceeding in which a sentence of imprisonment necessarily at hard labor for any period less than a life sentence may be imposed, the offender may be fined not more than fifty thousand dollars, or imprisoned for not more than twenty years at hard labor, or both." Therefore, in accordance with LSA-R.S. 15:529.1A(1), defendant's statutory minimum sentence on count I of imprisonment at hard labor for twenty years without benefit of probation, parole, or suspension of sentence, and in accordance with LSA-R.S. 14:130.1B(2), sentence on count II of imprisonment at hard labor for ten years, were proper.

While the penalty for a second-felony habitual offender was revised after defendant's offenses, it is well-settled that "[a] defendant is not convicted of being a habitual offender. Rather, a defendant is adjudicated as a habitual offender as a result of prior felony convictions. The sentence to be imposed following a habitual offender adjudication is simply an enhanced penalty for the underlying conviction." As such, the Louisiana Supreme Court held that a defendant "should be sentenced in accord with the version of La. R.S. 15:529.1 in effect at the time of the commission of the charged offense." State v. Parker, 03-0924 (La, 4/14/04), 871 So.2d 317, 325-26. Moreover, Act 542 of the 2018 Regular Legislative Session adds a new Subsection to LSA-R.S. 15:529.1, which reads, "(K)(I) Except as provided in Paragraph (2) of this Subsection, notwithstanding any provision of law to the contrary, the court shall apply the provisions of this Section that were in effect on the date that the defendant's instant offense was committed." Therefore, as defendant committed the instant offenses on September 14, 2016, the trial court correctly sentenced defendant under the version of LSA-R.S. 15:529.1 prior to the 2017 amendments. See State v. Johnson, 17-1347 (La.App. 1 Cir. 3/13/18), 2018 WL 1312575 (unpublished); State v. Bowie, 17-1762 (La.App. 1 Cir. 6/1/18), 2018 WL 2453480 (unpublished).

At the sentencing hearing, the trial court noted it considered the facts and reviewed the sentencing guidelines provided in Article 894.1, specifically that defendant committed a crime of violence with a dangerous weapon. Further, in light of his predicate felony conviction of simple kidnapping, the trial court stated that defendant "apparently does not have a great concern about the safety of others. So, to impose a lesser sentence would deprecate the seriousness of this offense." See LSA-C.Cr.P. art. 894.1A(3), B(6), and B(10).

The record before us clearly establishes an adequate factual basis for the sentences imposed. Defendant has not proven by dear and convincing evidence that he is exceptional such that the mandatory minimum sentences are not meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. See Johnson, 709 So.2d at 676. Accordingly, no downward departure from the presumptively constitutional mandatory minimum sentences was warranted. The sentences imposed are not grossly disproportionate to the severity of the offenses and, therefore, are not unconstitutionally excessive.

Assignment of error number three lacks merit.

CONCLUSION

For the above reasons, we affirm defendant's convictions, habitual offender adjudications, and sentences.

CONVICTIONS, HABITUAL OFFENDER ADJUDICATIONS, AND SENTENCES AFFIRMED.

      Co-defendant Ronaldo Ray Joseph was also charged by the same bill of information with one count of armed robbery with a firearm, but plead guilty to accessory after the fact of theft.

      Predicate # 1 was set forth as defendant's July 10, 2015 conviction, under the 22nd Judicial District Court, Parish of St. Tammany, Docket No. 559231, to one count of simple kidnapping.

      When imposing the enhanced sentence on count I, the trial judge did not state it would be served without the benefit of probation or suspension of sentence as required by LSA-R.S. 15:529.1G. Additionally, we note that while LSA-R.S. 15:529.1G does not restrict parole eligibility, the conditions imposed on the sentence are those called for the referenced statute. See State v. Bruins , 407 So.2d 685, 687 (La. 1981). As both LSA-R.S. 14:64B and 14:64.3A require that the period of imprisonment imposed under these statutes be served without benefit of parole, under Bruins , defendant's enhanced sentence for his conviction of armed robbery while using, a firearm is to be served without benefit of parole. Therefore, defendant's probation, parole, and suspension of sentence restrictions are self-activated under LSA-R.S. 15:301.1A. See State v. Williams , 00-1725 (La. 11/28/01), 800 So.2d 790, 799.

      Effective November 1, 2017, and in accordance with 2017 La. Acts Nos. 257, § 1 and 282, § 1, LSA-R.S. 15:529.1A(1) now provides that "[i]f the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction."