Date: 01-24-2016

Case Style: STATE OF LOUISIANA Vs. ROBERT TOUSSAINT

Case Number: 2015-KA-0804

Judge: James McKay III

Court: Louisiana Fourth Circuit Court of Appeal

Plaintiff's Attorney: Leon A. Cannizzaro, Mithun Kamath, Donna Andrieu

Defendant's Attorney: Sherry Watters

Description: Defendant was charged by bill of information on December 14, 2013, with
unauthorized use of a motor vehicle, in violation of La. R.S. 14:68.4. Defendant
appeared for arraignment on February 10, 2014, and entered into a plea of not
guilty. Thereafter, Defendant filed a motion for preliminary hearing and a motion
to suppress. On July 21, 2014, the trial court denied the motion to suppress and
found probable cause to substantiate the charges.
On October 29, 2014, Defendant filed a motion for a special jury instruction
at to mens rea. On February 23, 2015, prior to trial, the trial court denied
Defendant‘s motion for special jury instruction. The matter proceeded to trial, and
the jury found Defendant guilty as charged.

On March 17, 2015, Defendant filed a motion for new trial and post-verdict
judgment of acquittal. On April 9, 2015, the trial court denied Defendant‘s motion
and sentenced Defendant to seven years at the Department of Public Safety and
Corrections with credit for time served. The trial court also assessed Defendant
$286.50 in court costs. The same date, Defendant filed a motion for appeal, which
the trial court granted.
The State subsequently filed a multiple bill of information, which has been
continued several times.1 Defendant now appeals this final judgment.
FACTS
The victim, James Cureau, and the investigating officer, Officer Rachel
Dede, testified on behalf of the State.2 The defense called no witnesses.
Cureau testified that on December 14, 2014, at approximately 12:50 a.m., he
drove to a gas station on Dowman Road and Dwyer Road to purchase cigarettes.
He stated that he left his keys in his car, a green Chrysler Concord, while he went
inside. Once inside the store, Cureau observed a man, later identified as
Defendant, enter his car and drive off. He stated that he started to call 911 but was
able to flag down Off. Dede and pointed her in Defendant‘s direction. Cureau then
noticed that Defendant had made the block and again got the officer‘s attention.
He stated that the officer was able to stop Defendant at a gas station approximately
five blocks away. Cureau identified the man in the back of the police car as
Defendant.
1 According to Defendant, the multiple bill hearing was scheduled for October 23, 2015. 2 Detective Sandy Gavin, an investigator with the Orleans Parish District Attorney‘s Office, was called to testify about the car‘s registration information. However, the trial court sustained Defendant‘s objections of hearsay, and the State had no further questions.

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Cureau testified that he never met Defendant before the night of the
December 14, 2014. He stated that although the incident occurred at night, the gas
station was lit up and he could see Defendant‘s face. Cureau admitted that he had
been previously convicted of possession of heroin, cocaine, and marijuana. He
also admitted that he did not want to testify at trial, and a material witness bond
had to be issued.3 Cureau stated that his story has not changed since his original
statement, and the State has not given him any incentive to testify.
On cross-examination, Cureau testified in addition to drug possession
charges he had a domestic abuse conviction, and as part of his probation, he had to
get treatment at Odyssey House. He stated that he is familiar with Club 7140 on
Dowman Road in New Orleans East, but has not visited the establishment. Cureau
denied lending Defendant the car for cash or marijuana the night of the incident so
that Defendant could go to Waffle House. He denied going to Club 7140 on
December 13, 2014. Cureau admitted that the gas station where the car was stolen
is across the street from Club 7140. He admitted that the car doors were unlocked
and the keys were left in the ignition. Cureau testified that after he got the car
back, the ignition was not damaged; no windows were broken; and the steering
column had not been damaged.
Off. Dede testified she was driving down Dowman Road when Cureau
flagged her down. She proceeded north down the street as Cureau directed her, but
saw in her rearview mirror Cureau waving again and observed that Defendant had
―made the block and was traveling in the other direction.‖ Off. Dede then u-turned
to follow the vehicle down Dowman Road and activated her lights and siren. She
stated she never lost sight of the vehicle. When the car got near Chef Menteur
3 After being arrested for failure to appear at trial, Cureau was in jail for seven days.

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Highway, it pulled into another gas station. Off. Dede ordered Defendant out of
the car and informed him he was under investigation for a possible theft of a
vehicle. Thereafter, Off. Dede detained Defendant and advised him of his rights.
She stated that Cureau positively identified Defendant as the man who had taken
his vehicle. Off. Dede stated that Cureau did not seem drunk. After running the
license plate and VIN number, she was able to confirm that the stolen vehicle
belonged to Cureau. She relocated to the original gas station to see if there was
possible video footage, but the attendant informed her that he did not know if the
cameras worked, and he did not have access to them.
On cross-examination, Off. Dede stated that she did not find a screwdriver
or gloves on Defendant after his arrest. She testified that the steering column was
intact and the ignition had not been manipulated. Off. Dede stated that when
Cureau reported the crime, he indicated that his car was running and that his keys
were left in his car. Off. Dede testified during her time as a police officer she
learned of the term ―rock rental,‖ which she explained is when ―someone wants
drugs, and they loan out their vehicle to get drugs because they don‘t have money.‖
She stated that people will lend out their car in exchange for any drug, like
marijuana, and not just cocaine.
On redirect, Off. Dede stated that in her experience, she has never heard of
somebody lending a car out for drugs and then immediately calling the police. She
also testified that she did not find drugs on Cureau, and he did not smell like
marijuana.
ERRORS PATENT
A review of the record reveals one errors patent with regard to sentencing.
La. C. Cr. P. art. 873 states that if ―a motion for new trial, or in arrest of judgment,

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is filed, sentence shall not be imposed until at least twenty-four hours after the
motion is overruled,‖ unless the defendant ―expressly waives‖ the delay or pleads
guilty.
In the present case, the trial court sentenced Defendant the same day that it
denied Defendant‘s motion for post-judgment verdict of acquittal and motion for
new trial without an express waiver of the twenty-four hour delay required by
La.C.Cr.P. art. 873.
If the defendant has not challenged his sentence, and he does not raise as
appellate error the failure of the trial court to wait twenty-four hours before
imposing sentence, the error is harmless. State v. Stovall, 07-0343, p. 12 (La. App.
4 Cir. 2/6/08), 977 So. 2d 1074, 1082 (citing State v. Williams, 03–0987, p. 5 (La.
App. 4 Cir. 12/10/03), 863 So.2d 652, 655); see also, State v. Williams, 04-1139, p.
10 (La. App. 4 Cir. 4/13/05), 901 So. 2d 1171, 1177. This Court has also held that
failure to observe the twenty-four hour delay provided under La. C.Cr.P. art. 873 is
considered harmless error when: there is a sufficient delay between the conviction
and the sentencing; there is no indication that the sentence was hurriedly imposed;
and there is neither an argument nor a showing of actual prejudice by the failure to
observe the twenty-four-hour delay. Stovall, 07–0343, p. 1, 977 So.2d at1084
(citing State v. Foster, 2002–0910, pp. 3–4 (La. App. 4 Cir. 12/11/02), 834 So.2d
1188, 1192).
In State v. Wilson, 12-1765, p. 12-13 (La. App. 4 Cir. 2/12/14), 138 So. 3d
661, 671-672, the defendant was convicted on June 13, 2013, and three weeks
later, on July 5, 2012, the trial court denied a motion for new trial and sentenced
the defendant. This Court noted that there was no indication that ―the sentence was
hurriedly imposed,‖ and although defendant raised excessive sentence as an

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assignment of error, he did not argue that he was prejudiced by the trial court‘s
failure to observe the statutory delay. As result, this Court found that the trial court
error in imposing a sentence during the twenty-four hour period after it denied the
motion for new trial was harmless.
Here, similar to Wilson, Defendant contends the sentence the trial court
imposed is unconstitutionally excessive. However, his sentencing hearing occurred
on April 9, 2015, approximately six weeks after Defendant was convicted of
unauthorized use of a motor vehicle on February 23, 2015; thus, the sentence was
not hurriedly imposed. Additionally, like Wilson, he does not raise the issue the
failure of the trial court to wait twenty-four hours before imposing the sentence or
allege that he was prejudiced by the trial court in that regard. Accordingly, any
error on part of the trial court concerning the failure to observe the twenty-four
hour delay set forth in La. C.Cr.P. art. 873 is harmless.
ASSIGNMENT OF ERROR NUMBER 1
In his first assignment of error, Defendant contends that the trial court erred
in ―denying the special jury instruction on the mens rea element of unauthorized
use of a movable, thereby easing the State‘s burden of proof, and resulting in a
conviction that is not based on proof of all the elements.‖
Under La. C.Cr.P. art. 807, a requested special jury charge shall be given by
the court if it does not require qualification, limitation or explanation, and if it is
wholly correct and pertinent. The special charge need not be given if it is included
in the general charge or in another special charge to be given. State v. Tate, 01
1658, p. 20 (La. 5/20/03), 851 So. 2d 921, 937 (citing State v. Segers, 355 So.2d
238, 244 (La.1978)). Failure to give a requested jury instruction constitutes
reversible error only when there is a miscarriage of justice, prejudice to the

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substantial rights of the accused, or a substantial violation of a constitutional or
statutory right. Tate, 01-1658, p. 20, 851 So. 2d at 937 (citing State v. Marse, 365
So.2d 1319, 1323 (La.1978); La. C.Cr.P. art. 921).
La. R.S. 14:68.4(A) defines unauthorized use of a motor vehicle as ―the
intentional taking or use of a motor vehicle which belongs to another, either
without the other's consent, or by means of fraudulent conduct, practices, or
representations, but without any intention to deprive the other of the motor vehicle
permanently.‖ Thus, the elements required to prove the offense of unauthorized
use of a motor vehicle are: (1) the intentional taking or use (2) of a motor vehicle
(3) which belongs to another (4) without the other‘s consent or by fraud. State v.
Broussard, 09–1225, p. 3 (La. App. 3 Cir. 04/07/10), 34 So.3d 459, 461(citing
State v. Rios, 44,132, p. 4 (La. App. 2 Cir. 4/8/09), 7 So.3d 832, 834).
In his motion for special jury instruction, Defendant argued that a mere
reading of the elements of the La. R.S. 14:68.4 was insufficient to convey to the
jury that the State must prove mens rea or criminal intent to warrant a finding of
unauthorized use of a motor vehicle. Defendant claimed that to obtain a conviction
under La. R.S. 14:68.4, the State must prove beyond reasonable doubt that
Defendant knew his use of a motor vehicle was not authorized. Specifically,
Defendant requested the trial court issue the following charge:
Further, if you find that the Accused did not have a guilty mind or the criminal intent to use the motor vehicle of another without the other‘s consent—that is, if you find that the state has not proven beyond a reasonable doubt that the Accused knew he lacked authorization to use the motor vehicle of another—then you must find the Accused not guilty.
This charge was based on State v. Bias, 400 So.2d 650 (La.1981) and State v.
Stevenson, 02–1152 (La. App. 4 Cir. 1/22/03), 839 So.2d 203.

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In Bias, 400 So.2d at 652-653, the Louisiana Supreme Court stated, ―we
construe the statute proscribing unauthorized use of a movable as requiring a
showing of mens rea or criminal intent, since the ‗evil‘ state of mind of the actor
normally distinguishes criminal acts (punishable by the state alone) from mere civil
wrongs (actionable by private individuals against one another).‖ 4 In Stevenson,
02–1152, pp. 4-5, 839 So.2d at 206, this Court reversed a conviction for
unauthorized use of a vehicle because the State failed to establish the defendant
used the vehicle with the knowledge that it was stolen. Three occupants were in
the vehicle. The defendant was the driver of the car, but the passenger ―was the
person who ‗obtained the vehicle from an unknown person for her own personal
use.‘‖ This Court noted that the State elicited no evidence that the defendant was
aware of the circumstances by which the other occupant obtained the car. The
Court further noted that the defendant did not attempt to elude police by fleeing
and cooperated with arresting officer‘s investigation, and although he was stopped
by police while driving a stolen automobile, ―there was nothing to indicate to [the]
defendant that the car was stolen.‖
At the hearing on the motion in the present case, the trial court found that the
case law relied on by Defendant is centered ―around the factors [sic] and the
circumstances as to whether or not the defendant knew or should have known that
the car was stolen.‖5 The trial court stated that in instructing the jury it would read
4 Unauthorized use of a movable is the intentional taking or use of a movable which belongs to another, either without the other's consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the movable permanently. La. R.S. 14:68(A). 5 The trial court appears to be referring to the Stevenson case because while the Bias case did discuss mens rea, it addressed the crime of unauthorized use of a movable and whether evidence that a defendant defaulted on a contractual obligation involving the lease of a television set by failing either to make the rental payments or to return the television set is alone sufficient to

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the language of La. R.S. 14:68.4 and the definitions general and specific intent.
The trial court noted that jury instructions expressly provide that the ―state of
mind, i.e., mens rea[,] exists when circumstances indicate that the defendant
actively prescribed or desired the prescribed criminal consequences to follow his
act or failure to act.‖ See La. R.S. 14:10(1) (defining specific intent). As a result,
the trial court found it unnecessary to present additional jury instructions on intent
and denied the motion for special jury instruction.6 The trial court, however, did
make an addition under the responsive verdicts to provide that ―in order to find the
defendant guilty as charged you [must] find … that the taking or use [of the
Chrysler Concord] was intentional.‖
On appeal, Defendant makes the same arguments he asserted in his motion
for special jury instruction.7 In his brief, however, Defendant relies on this Court‘s
unpublished opinion, State v. Long, 11-0298, unpub., 2012 WL 4754156 at 3, (La.
App. 4 Cir. 2/8/12), in attempt to establish the trial court erred in failing to instruct
the jury that to obtain a conviction the State must prove that Defendant knew his
use of a vehicle was unauthorized.
In Long, the car, in which the defendant was a passenger, had been reported
stolen a day prior to an officer stopping the car for a traffic violation. During the
traffic stop, the car fled the scene, but the officer subsequently observed three
subjects exiting the vehicle, including the defendant from the front passenger seat.
The defendant did not drive the vehicle. The ignition was not damaged, and no
establish beyond a reasonable doubt that defendant committed the offense. Bias, 400 So. 2d at 651. 6 Defendant also raised the denial of the special jury instruction in his motion for new trial and motion for post-verdict judgment of acquittal.

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glass on the vehicle was broken. There was nothing that that made it appear that a
forced entry was made into a vehicle. The officer indicated that he did not suspect
the vehicle as being stolen until he ran the license plate. The victim also did not
identify anyone as the perpetrator of the carjacking.
The defendant requested a special jury instruction relative to the defendant‘s
guilty knowledge that if the jury found the State had not proven beyond a
reasonable doubt that the defendant knew he lacked authorization to use the motor
vehicle, then the jury must find the defendant not guilty. The trial court denied the
defendant‘s motion, and the defendant was subsequently convicted.
On appeal, the defendant argued there was insufficient evidence to support
the conviction because the State failed to ―establish the element of guilty
knowledge—that is—that he either knew or should have known that the vehicle
was stolen or that its use was unauthorized.‖ Long, 2012 WL 4754156 at 3. The
defendant also argued the trial court erred in denying his motion for special jury
instruction.
This Court found insufficient evidence to support a conviction, noting ―the
mere inference of wrongful conduct by Defendant Long‘s presence as a passenger
in the vehicle does not, beyond a reasonable doubt, create the necessary mens rea
or criminal intent required for conviction.‖8 Long, 2012 WL 4754156 at 5. With
7 Defendant argues that a mere reading of the elements of the La. R.S. 14:68.4 are insufficient to convey the elements of proof, and the trial court erred in failing to instruct the jury that to obtain a conviction the State must prove that Defendant knew his use of a vehicle was unauthorized. 8 The Court stated in pertinent part: Officer Moton testified that after he was apprehended, Defendant Long stated that he was not the driver of the vehicle. Officer Moton also testified that they key was in the ignition and that Defendant Long did not state whether he knew to whom the vehicle belonged. Officer Moton also testified that the ignition was not damaged in any way and none of the glass on the vehicle was broken. Officer Moton also testified that there was no damage to

11
regard to the special request jury instruction, the Long Court found that ―mere
recitation of the language of the statute was insufficient to adequately convey the
required elements of proof,‖ i.e., that the defendant was aware he was using the
motor vehicle without authorization. Long, 2012 WL 4754156 at 6. Due to the
issues with the sufficiency of evidence, this Court found it could not say with
certainty that the guilty verdict actually rendered in this trial was not attributable to
the trial court‘s failure to instruct the jury on the requested charge.9 The
defendant‘s conviction was reversed.
the car that would have made it appear as if forced entry was made into the vehicle. In fact, Officer Moton testified that he never suspected that the vehicle was stolen until he ran the license plate. Further, Officer Moton testified that although he spoke to the owner of the vehicle about who had initially perpetrated the carjacking, she did not identify anyone as the perpetrator of the carjacking and he did not arrest Mr. Long for carjacking. The State did not produce any evidence that Defendant Long knew that the vehicle was stolen. We find that the mere inference of wrongful conduct by Defendant Long's presence as a passenger in the vehicle does not, beyond a reasonable doubt, create the necessary mens rea or criminal intent required for conviction. State v. Long, 11-0298, unpub., 2012 WL 4754156 at 5, (La. App. 4 Cir. 2/8/12). 9 It is important to note that in the Long case, the prosecutor also incorrectly advised the jury of the elements necessary to prove La. R.S. 14:68.4(A) on two occasions during voir dire without curative instructions from the trial court. It provides: We note that during voir dire, the prosecutor twice incorrectly informed the jury of the required elements of the crime. Initially, the prosecutor stated as follows: In a situation like this with an unauthorized use of a movable, the defendant does not have to have been the person that actually took the movable, okay? We just have to prove—the State only has to prove that he used the movable, okay? Is everybody—I see a lot of puzzled faces like— The defendant objected to the foregoing statement, and an unrecorded bench conference ensured. Thereafter the prosecutor stated: Ms. Kim, are you comfortable with that, with knowing that the State does have a burden of proof and we intend to meet it. And, I'll get to that later, but all we have to prove is that the car was stolen and that the defendant was riding in it. We have a couple of other things to prove, but I'm going to get to that. But, in this part of it, are you comfortable with that?

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Although in the present case, as in Long, no damage was done to the car that
would suggest a forced entry, contrary to Long, Defendant was identified by
Cureau as the individual who drove off with his car without authorization.
Furthermore, Defendant did not need to damage the car to steal it because Cureau
left the door unlocked with the keys in the ignition. Cureau also testified that he
never met Defendant prior to the incident and did not lend him the vehicle.
Moreover, the officer observed Defendant driving in the vehicle and subsequently
determined it belonged to Cureau. Defendant was not a mere passenger with no
knowledge from where the car was obtained. Thus, unlike Long, which involved a
passenger of stolen vehicle and no evidence that the passenger knew the vehicle in
which he was riding was stolen, in the present case, Defendant was the person who
entered and drove off in a car that he did not own and did not have consent to use.
Because Defendant actually took the car from the gas station, the instant case is
likewise distinguishable from Stevenson, 02-1152, p. 4, 839 So.2d at 206, the case
cited in the motion for special jury instruction, wherein the defendant was unaware
of the circumstances of how the vehicle was acquired.
Additionally, as discussed above, the trial court made it clear at the hearing
on the motion for special jury instruction that it would instruct the jury regarding
the definition of intent, both general and specific. The trial court also added to the
responsive verdicts that to find Defendant guilty the jury must find that the taking
or use of vehicle be intentional.
The defendant objected, and the trial court sustained the objection; however no curative instruction was issued. The prosecutor's incorrect statements regarding the law during voir dire compounded the effect of the trial court's failure to properly charge the jury. [Emphasis in original]. See Long, 2012 WL 4754156 at 6, n. 2.

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The issue presented in Stevenson and Long concerning whether the
defendant knew the vehicle was stolen does not exist where Defendant was the one
who took the car and drove away with it. Defendant did not need evidence of a
broken window or damage to the steering column or ignition to know that he did
not have permission to use the car as it was Defendant himself who entered and
drove off in the car. Thus, we do not find that the trial court needed to include a
charge concerning whether Defendant knew he lacked authority to use the
vehicle.10
Even if the trial court erred in excluding the proposed jury charge, this Court
has stated that ―harmless error can be applied even to an invalid instruction on the
elements of the crime if the evidence is otherwise sufficient to support the jury's
verdict, and the jury would have reached the same result if it had never heard the
erroneous instruction.‖ State v. Alverez, 13-1652, p. 11 (La. App. 4 Cir. 12/23/14),
158 So. 3d 142, 150 (citing State v. Hongo, 96–2060, pp. 4–5 (La. 12/02/97), 706
So.2d 419, 421–422). A trial error is harmless when a reviewing court is
convinced that the error was harmless beyond a reasonable doubt. Id. (citing
Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705
(1967)). The state has the burden of demonstrating that the trial error did not
contribute to defendant‘s conviction. Id. If a reviewing court finds that the trial
record establishes guilt beyond a reasonable doubt, the interest of fairness has been
satisfied and the judgment should be affirmed. Alverez, 13-1652, p. 11, 158 So. 3d
10 Defendant also cites State in Interest of H.N., 97-0982 (La. App. 4 Cir. 7/8/98), 717 So. 2d 666 in his brief. In H.N., this Court reversed the adjudications of delinquency on the charge of unauthorized use of a moveable, finding that there was no evidence that the juveniles, who had accepted a ride and had been passengers in a vehicle, had taken or used the vehicle in question with knowledge that it had been stolen. This case, like Long and Stevenson, is distinguishable from the case at bar because Defendant was identified as the driver of the vehicle and the person who took the car from the gas station.

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at 150-151 (citing Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 3106, 92
L.Ed.2d 460 (1986)).
Here, Defendant‘s theory of defense was that Cureau allowed him to borrow
the car in exchange for drugs. However, the jury heard testimony from Cureau that
Defendant had taken the vehicle when he went inside the gas station to buy
cigarettes, and he did not give permission to Defendant to use his car. Cureau
testified that right after Defendant took off with his car he started to call the police,
but was able to flag down an officer. He also stated that he had not been drinking
or using drugs the night of the incident. The jury heard testimony from Off. Dede
who stated that Cureau did not have drugs on his person and Cureau did not smell
like marijuana. Off. Dede further testified that while she was aware of the practice
of renting a car out for drugs, she has never heard of someone immediately calling
the police afterwards. Additionally, the record provides that Cureau‘s story has
been consistent throughout despite the fact that he had to be forced to testify
pursuant to a material witness bond. The jury was entitled to find Cureau‘s version
of events credible and reach the conclusion that Defendant intentionally used
Cureau‘s vehicle without his consent.
Based on the foregoing, we find that there is sufficient evidence support the
jury‘s verdict and that the jury would have convicted Defendant regardless of
whether the jury was charged with Defendant‘s requested special instruction.
Therefore, Defendant‘s first assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER 2
In his second assignment of error, Defendant claims that the seven year
sentence imposed ―under the circumstances of this case, was excessive, cruel, and
unusual punishment.‖

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The Eighth Amendment to the United States Constitution prohibits the
imposition of cruel and unusual punishment. U.S. Const. amend. VIII. Article I, §
20 of the Louisiana Constitution prohibits not only ―cruel‖ and ―unusual‖
punishment, but it also explicitly prohibits ―excessive‖ punishment.11 La. Const.
art. I, § 20.
In State v. Hackett, 13-0178, p. 14 (La. App. 4 Cir. 8/21/13), 122 So. 3d
1164, 1174, writ denied, 2013-2122 (La. 5/2/14), 138 So. 3d 1238, this Court
discussed the standard for evaluating a claim of excessive sentence:
Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.1980). A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, [20]00–3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; cf. State v. Phillips, [20]02–0737, p. 1 (La.11/15/02), 831 So.2d 905, 906.
Id. (quoting State v. Smith, 01–2574, pp. 6–7 (La. 1/14/03), 839 So.2d 1, 4).
The reviewing court shall not set aside a sentence for excessiveness if the
record supports the sentence imposed. La. C.Cr.P. art. 881.4(D). State v.
Robinson, 11–0066, p. 17 (La. App. 4 Cir. 12/7/11), 81 So.3d 90, 99; State v.
11 The Louisiana Constitution differs from the Eighth Amendment to the U.S. Constitution in its explicit prohibition of excessive sentences. This ―deliberate inclusion by the redactors of the Constitution of a prohibition against ‗excessive‘ as well as cruel and unusual punishment broadened the duty of this court to review the sentencing aspects of criminal statutes.‖ State v. Hamdalla, 12-1413, p. 14 (La. App. 4 Cir. 10/2/13), 126 So. 3d 619, 626 writ denied, 13-2587 (La. 4/25/14), 138 So. 3d 642 (quoting State v. Baxley, 94–2982, p. 4 (La.5/22/95); 656 So.2d 973, 977).

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Major, 96–1214 (La. App. 4 Cir. 3/4/98), 708 So.2d 813, 819. An appellate court
reviewing an excessive sentence claim must determine whether the trial court
adequately complied with the statutory sentencing guidelines set forth in
La.C.Cr.P. art. 894.1, as well as whether the particular circumstances of the case
warrant the sentence imposed. State v. Jasper, 14-0125, p. 20 (La. App. 4 Cir.
9/17/14), 149 So. 3d 1239, 1252 (citing State v. Trepagnier, 97–2427 (La. App. 4
Cir. 9/15/99), 744 So.2d 181, 189; State v. Black, 98–0457, p. 8 (La. App. 4 Cir.
3/22/00), 757 So.2d 887, 891). The articulation of the factual basis for a sentence
is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions.
Where the record clearly shows an adequate factual basis for the sentence imposed,
resentencing is unnecessary even when there has not been full compliance with
Art. 894.1. Id. (citing State v. Lanclos, 419 So.2d 475, 478 (La.1982); State v.
Davis, 448 So.2d 645, 653 (La.1984) (the trial court need not recite the entire
checklist of article 894.1, but the record must reflect that it adequately considered
the guidelines)).
The penalty range for unauthorized use of a motor vehicle is imprisonment,
with or without hard labor, for not more than ten years, a fine of not more than
$5000, or both. La. R.S. 14:68.4(B).12 As stated above, Defendant was sentenced
to seven years at the Department of Public Safety and assessed court costs. As
such, Defendant‘s sentence was within the statutory range.
Defendant argues that the sentence is excessive considering that he circled
the block, and the car was returned undamaged and close to the scene. Defendant
12 La. R.S. 14:68.4(B) provides: Whoever commits the crime of unauthorized use of a motor vehicle shall be fined not more than five thousand dollars or

17
further notes that he was working as a cook and a tradesman at the time of the
incident, is raising a twelve year old son, and has turned his life around following a
2002 conviction. Defendant claims the trial court did not consider any of these
mitigating factors. Defendant also points out that in pre-trial proceedings, the State
had offered a five year in exchange for a guilty plea, and a five year sentence
would be more appropriate under the circumstances.
However, as the State argues it is brief, the pertinent question on appellate
review of a sentence is whether the trial court abused its broad sentencing
discretion, not whether another sentence might have been more appropriate.
Hackett, 13-0178, p. 14, 122 So. 3d at 1174; Smith, 01–2574, pp. 6–7 839 So.2d at
4; State v. Colvin, 11-1040, p. 7 (La. 3/13/12), 85 So. 3d 663, 667-668; State v.
Humphrey, 445 So.2d 1155, 1165 (La.1984). Although the trial court did not
articulate the factual basis for the sentence, the record shows that Defendant was a
triple offender with prior felony convictions for armed robbery in 1997 and 2002.
Armed robbery is defined as a crime of violence under La. R.S. 14:2(B). The trial
court also was advised of Defendant‘s multiple offender status in a pre-trial
hearing and that Defendant was facing eighty months to twenty years on that
charge. The State had filed the multiple bill of information, but a hearing on the
bill has not yet occurred.
In selecting a proper sentence, a trial judge is not limited to considering only
a defendant's prior convictions, but may properly review all prior criminal activity.

Outcome: For the above stated reasons, we hereby affirm Defendant‘s conviction and
sentence.

Plaintiff's Experts:

Defendant's Experts:

Comments: