State of Louisiana v. Kenneth Gomila

STATE OF LOUISIANA * NO. 2024-KA-0691

VERSUS *
COURT OF APPEAL
KENNETH GOMILA *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 21-03299, DIVISION “E”
Honorable Eric A. Bopp
******
Judge Paula A. Brown
******
(Court composed of Chief Judge Roland L. Belsome, Judge Rosemary Ledet,
Judge Paula A. Brown)

Daniel J. Dysart
Ashton Licciardi
Assistant District Attorney
ST. BERNARD PARISH DISTRICT
ATTORNEY’S OFFICE
1101 West St. Bernard Highway
Chalmette, Louisiana 70043

COUNSEL FOR STATE OF LOUISIANA/APPELLEE

Sherry Watters
LOUISIANA APPELLATE PROJECT
P. O. Box 58769
New Orleans, LA 70158

COUNSEL FOR DEFENDANT/APPELLANT

JUNE 19, 2025
AFFIRMED

PAB
RLB
RML

This is a criminal appeal. Appellant, Kenneth Gomila (“Mr. Gomila”), was

charged with attempted second-degree murder, aggravated criminal damage to

property, and illegal use of weapons or dangerous instrumentalities. After a jury

trial, Mr. Gomila was convicted of the responsive verdict of aggravated assault

with a firearm, along with the other two charges. He now appeals his conviction of

aggravated assault with a firearm and the sentence imposed upon him for this

conviction, as well as the sentences for the other two convictions not on appeal.

For the reasons set forth below, Mr. Gomila’s conviction and sentences are

affirmed.

FACTS AND PROCEDURAL HISTORY

The incident forming the basis of this appeal occurred on June 20, 2021,

which was Father’s Day of that year. At that time, Mr. Gomila lived with his

daughter, Jennifer Gomila (“Ms. Gomila”), her husband, Cade Cummins, Sr. (“Mr.

Cummins”), and Mr. Gomila’s four grandchildren—Christopher Dubois

(“Christopher”), David Gomila (“David”), and two younger grandchildren—C.C.

and S.C.1—at 2001 Corinne Drive in Chalmette, Louisiana (“the family home”).

1 The two younger grandchildren involved in this matter are minors; as such, we will protect

their anonymity by referring to them by their initials. See State in Interest of L.R., 21-0141, p. 1
(La. App. 4 Cir. 3/25/21), 314 So.3d 1139, 1141 n.1.

1

On the date in question, all of the residents of the family home, aside from

Christopher, spent the day on Lake Pontchartrain celebrating Father’s Day. Mr.

Gomila became intoxicated and began to display inappropriate behavior in front of

his grandchildren. Specifically, he touched his granddaughter inappropriately and

stripped naked in front of the group. Because of Mr. Gomila’s inappropriate

behavior, Mr. Cummins and Ms. Gomila agreed that Mr. Gomila should not return

to the family home. On the ride home, Mr. Gomila was told that upon arrival back

to the family home, he needed to gather his belongings and would no longer be

welcome there. When they arrived home, Mr. Gomila packed his things and left;

however, he returned roughly an hour later. Mr. Gomila started kicking the door in

an attempt to reenter the family home, but Mr. Cummins stopped him. The two

engaged in a physical altercation, which resulted in Mr. Gomila ending up on the

ground. Mr. Cummins then returned back inside the house. Shortly afterwards,

Mr. Gomila retrieved a firearm and fired five gunshots towards the family home

before fleeing the scene. At that time, the family home was occupied by Mr.

Cummins, David, C.C. and S.C.

On August 18, 2021, the State of Louisiana (the “State”) charged Mr.

Gomila, via a bill of information, with three offenses: (1) attempted second degree

murder in violation of La. R.S. 14:27 and La. R.S. 14:30.1; (2) aggravated criminal

damage to property in violation of La. R.S. 14:55; and (3) illegal use of weapons or

dangerous instrumentalities in violation of La. R.S. 14:94(A). Mr. Gomila pleaded

not guilty to all three charges. This matter came for a jury trial on April 2, 2024

and April 3, 2024. The State presented six witnesses: (1) St. Bernard Parish

Sheriff’s Office Deputy Brandon Gaudet (“Deputy Gaudet”); (2) St. Bernard

Parish Sheriff’s Office Captain Ryan Melerine (“Captain Melerine”); (3) David;

2

(4) Ms. Gomila; (5) Mr. Cummins; and (6) St. Bernard Parish Sergeant Corey

Beebe (“Sergeant Beebe”). The defense did not call any witnesses of their own.

The pertinent testimony elicited at trial is set forth below.

Deputy Gaudet

Deputy Gaudet, the patrol officer on duty on June 20, 2021, testified that he

was called to investigate a complaint regarding gunshots at the family home.

When he arrived on the scene, Mr. Cummins along with his three children were

present. Mr. Cummins relayed to Deputy Gaudet that he had been in an altercation

with his father-in-law, Mr. Gomila. He explained that Mr. Gomila attempted to

barge into his home, which resulted in him shoving Mr. Gomila out of the

doorway, causing Mr. Gomila to fall onto the ground. Mr. Cummins then

witnessed Mr. Gomila retrieve a firearm from his vehicle and fire three shots into

the family home. Deputy Gaudet observed three bullet holes in the window to the

left of the front door. Deputy Gaudet, along with other deputies, relocated to a

nearby Best Western Hotel, where they found Mr. Gomila. After being advised of

his Miranda rights, Mr. Gomila admitted to Deputy Gaudet that he had, indeed,

fired the shots into the family home. Following, the deputies found the handgun

used in the shooting in Mr. Gomila’s truck, which was located in the hotel parking

lot.

Captain Melerine

Captain Melerine was summoned to the crime scene on June 20, 2021. Upon

arrival, he interviewed Mr. Cummins, who was at the family home with his three

children. During his interview, Mr. Cummins again relayed that he and Mr. Gomila

got into an altercation and during that altercation, he pushed Mr. Gomila outside of

the home and onto the ground. Mr. Cummins then returned inside his home. Not

3

long afterwards, Mr. Cummins was standing near a window in the front portion of

the house when Mr. Gomila fired shots into the family home. Mr. Cummins then

showed Captain Melerine a video obtained from his Ring doorbell camera (the

“Ring Video”). As part of his investigation, Captain Melerine later obtained a

copy of the Ring Video. The video footage begins with Mr. Gomila getting up off

the ground. A few seconds later, three gunshots can be heard, and then Mr. Gomila

appears in the frame where he is seen firing the remaining two gunshots at the

family home. He attempted to fire more shots, but the gun ran out of bullets.

Captain Melerine testified that he sought to obtain additional Ring doorbell footage

depicting the initial altercation between Mr. Cummins and Mr. Gomila, but there

was none.

David

David is the son of Ms. Gomila and the stepson of Mr. Cummins. Mr.

Gomila is David’s maternal grandfather. David testified that on June 20, 2021, he,

his mother, stepfather, grandfather and younger siblings, C.C. and S.C., went

boating on Lake Pontchartrain to celebrate Father’s Day. Before they left, he

noticed that Mr. Gomila had been drinking and smelled of alcohol. On the ride to

the lake, he sat between Mr. Gomila and S.C., who was holding a naked Barbie

doll. David testified that Mr. Gomila reached over him, touched the doll’s chest

and then proceeded to touch S.C.’s chest. At the time, he did not react or say

anything to his parents. However, once the family was out on the boat, Mr.

Gomila stripped down naked in front of everyone. This action led David to tell his

parents about the incident that had occurred on the ride to the lake.

On the drive home, Mr. Cummins told Mr. Gomila that when the family

arrived back at the family home, he needed to gather his belongings and leave the

4

home. When they arrived home, David, C.C., S.C., and his mother relocated to his

maternal grandmother’s house, while Mr. Cummins and Mr. Gomila remained at

the family home. After Mr. Gomila gathered his belongings and left the house,

Ms. Gomila dropped David and his siblings off at the family home, while she and

her mother went to the store. David, C.C., S.C., and Mr. Cummins were inside the

house when Mr. Gomila returned. Mr. Cummins opened the door, told Mr. Gomila

to leave, and as Mr. Cummins attempted to close the door, Mr. Gomila kicked the

door and grabbed Mr. Cummins. David heard Mr. Gomila scream, leading him to

run out the door to see Mr. Cummins standing over Mr. Gomila, who was on the

ground. Mr. Cummins, again, told Mr. Gomila to leave, and he and David returned

inside the house. David said that as he and Mr. Cummins were walking down the

hallway, he heard what he believed to be fireworks, but once the window shattered,

he realized it was gunshots and became terrified. David testified at no time did he

see anything, including a weapon, in Mr. Cummins’ hand during the sequence of

events.

Ms. Gomila

Ms. Gomila testified that on the date of the incident, Mr. Gomila was very

intoxicated and reeked of alcohol. Once the family was on the boat, Mr. Gomila

started stumbling and falling, and he became very belligerent. She also recalled

the moment when Mr. Gomila undressed on the boat. On the way back home, she

told Mr. Gomila that he needed to leave when they got home. Ms. Gomila

explained that, after spending the day on the boat, she and her children went to her

mother’s house, while Mr. Cummins and Mr. Gomila went to the family home so

that Mr. Gomila could collect his belongings. Once Mr. Cummins notified her that

Mr. Gomila had left, she dropped the kids off at home and she and her mother left

5

to go shopping. Ms. Gomila testified that as she was checking out at the store, she

received alerts from her Ring doorbell that motion had been detected at the front

door area of the family home. When she looked at the Ring app on her phone, she

saw Mr. Cummins and Mr. Gomila fighting. Ms. Gomila stated that she saw her

father kicking the front door and then saw Mr. Cummins pick him up, point what

appeared to be a gun under his chin and throw him on the ground. Mr. Cummins

then went back inside with the gun in his hand and shut the door.

When she arrived back at the family home, the police were already at the

scene. Ms. Gomila did not provide any statements and did not inform the deputies

that she had watched the altercation play out on her Ring app. Ms. Gomila

described her now ex-husband, Mr. Cummins, as a violent man. It was because of

this violence that she asked her father to live with them, thinking he may act as

some form of a protector. However, she also admitted that her father was an

aggressive man. In fact, she stated that both men were “aggressive, impulsive

people, just volatile, impulsive, [with] unpredictable tempers.” She further offered

that her father had no reason to be back at the house that evening “unless it was to

get even.”

Mr. Cummins

Mr. Cummins testified that on the date in question, he, Ms. Gomila, their

three children and Mr. Gomila traveled to a boat launch. He stated that once they

arrived at the boat launch, Mr. Gomila was exhibiting clear signs of intoxication.

In line with previous witnesses, he also recalled Mr. Gomila stripping naked in

front of everyone that day. At some point during the day, he remarked to Ms.

Gomila that her father had to be removed from the family home, to which she did

not object. When they returned home, he told Mr. Gomila that he had fifteen

6

minutes to gather his belongings and exit the home. He instructed Mr. Gomila that

if he needed anything else, he would need to return with a police escort. After Mr.

Gomila left, Ms. Gomila brought the kids home, and she left for the store shortly

thereafter.

Mr. Gomila returned to the family home about an hour later and began

banging on the door. When Mr. Cummins cracked the door open to tell Mr. Gomila

to leave, Mr. Gomila kicked the door in, grabbed Mr. Cummins by his shirt and

pulled him outside. Mr. Cummins then grabbed Mr. Gomila and threw him to the

ground. Mr. Cummins testified that while he owned firearms at the time of this

incident, he did not have a firearm in his hand when he grabbed Mr. Gomila. He

further testified that he never brandished a gun throughout the entire physical

altercation with Mr. Gomila. After he had thrown Mr. Gomila to the ground, Mr.

Cummins, along with David—who had come outside once the commotion began—

went back inside the house.

Soon after, Mr. Cummins heard a popping sound and, immediately assuming

it was gunshots, shouted to his children to get down and take cover. It was only at

this point that he located a firearm in the event he needed to defend himself against

Mr. Gomila. However, when Mr. Cummins opened the front door, he saw Mr.

Gomila fleeing the scene in his truck. The Ring Video was once again played in

the courtroom. Mr. Cummins explained that the Ring Video was the only video

footage available. He stated that during the initial police investigation, he showed

the deputies his phone and they watched the video footage. He affirmed that he did

nothing to edit or alter the Ring Video in any way, nor did he delete any other

existing videos. When Ms. Gomila arrived on the scene, she never told Mr.

7

Cummins or the deputies that she had seen a Ring doorbell video depicting the

earlier altercation between him and Mr. Gomila.

Sergeant Beebe

Sergeant Beebe testified that on June 20, 2021, he responded to a 911 call

reporting shots fired at the family home. During trial, Sergeant Beebe’s body-

worn camera footage was played for the jury. This footage depicts a deputy

discussing—in the earshot of Ms. Gomila—Mr. Gomila’s claim that Mr. Cummins

put a gun in his mouth. When this statement was made, Ms. Gomila did not

comment, but slightly shook her head negatively. Ms. Gomila never told

investigators that she had seen any Ring app footage reflecting that Mr. Cummins

had pulled a gun on Mr. Gomila or that Mr. Cummins ever put a gun under her

father’s chin or in his mouth. Sergeant Beebe also swore that besides the Ring

Video, no other Ring doorbell footage was ever recovered.

On April 3, 2024, the jury returned with their verdict and found Mr. Gomila

guilty as charged of aggravated criminal damage to property and illegal use of a

dangerous instrumentality. Regarding the charge of attempted second degree

murder, the jury found Mr. Gomila guilty of the responsive verdict of aggravated

assault with a firearm. Mr. Gomila’s sentencing hearing took place on August 19,

2024. The district court heard testimony from three people: (1) John Gomila, Mr.

Gomila’s brother; (2) Mr. Dubois; and (3) Mr. Gomila himself. After hearing this

testimony, the district court sentenced Mr. Gomila as follows:

[A]s it relates to count one for violation of [La. R.S.] 14:37.4,
aggravated assault with a firearm, I’m going to sentence you to 10
years in the Department of Corrections. I’m going to give you credit
for time served, and I’m going to run this concurrent with counts two
and three.

8

As to count two for the violation of [La. R.S.] 14:55, aggravated
criminal damage to property, I’m going to sentence you to 10 years in
the Department of Corrections, give you credit for time served and run
it concurrent with counts one and the sentence I’m getting ready to
give you on count three.

As to count three, I’m going to -- in violation of [La. R.S.]
14:94(A)(F), I’m going to sentence you to 15 years in the Department
of Corrections without benefit of parole, probation, or suspension of
sentence, and I’m going to give you the credit for time served, and run
it concurrent with counts one and two.

Counsel for Mr. Gomila made an oral motion for appeal, which was reduced to

writing on August 22, 2024 and granted by the district court on the same date.

This timely appeal followed.

ERRORS PATENT

Appellate courts review criminal appeal records for the existence of a patent

error. See La. C.Cr.P. art. 920(2).2 A review on the face of the record for errors

patent reveals none.

DISCUSSION

Mr. Gomila raises three assignments of error:

1. The evidence as to Count One was insufficient as the State failed
to negate self-defense and failed to prove the substantive offense;

2. The [district] court erred in admitting the Ring Video evidence
where it was only in partial form, had been edited, and could not
be authenticated; and

3. Under the circumstances of this offense or the offender, the district
court erred in imposing unconstitutionally excessive, maximum
sentences on a fifty[-]nine year old, first offender. Moreover, the
sentence on Count Three exceeds the statutory sentence allowed
for the crime alleged in the bill of information.

2 Louisiana Code of Criminal Procedure art. 920(2) provides that the scope of appellate review

includes: “An error that is discoverable by a mere inspection of the pleadings and proceedings
and without inspection of the evidence.”

9

Considering the second assignment of error is procedural in nature, we will begin

our discussion there.

Assignment of Error No. 2 – Ring Video

In this assignment of error, Mr. Gomila contends that the district court erred

in admitting the Ring Video into evidence because the recording was not properly

authenticated, was incomplete in duration, and the State failed to prove what

happened to the missing portion of the footage. Ultimately, Mr. Gomila alleges

that the introduction of this footage prejudiced him and prevented a fair trial. The

State argues that because Mr. Gomila stipulated to the Ring Video’s authenticity at

trial and the State laid a proper foundation that the footage is what it appeared to

be, the Ring Video was properly introduced into evidence.

“Authentication is a condition precedent to admissibility.” State v. Groves,

20-0450, p. 29 (La. App. 4 Cir. 6/10/21), 323 So.3d 957, 975 (citing La. C.E. art.

901(A)). According to the Louisiana Code of Evidence, authentication “is satisfied

by evidence sufficient to support a finding that the matter in question is what its

proponent claims.” La. C.E. art. 901(A). “A district court has great discretion in

deciding whether a party laid a sufficient foundation for the admission of

evidence.” Groves, 20-0450, p. 29, 323 So.3d at 975 (citing State v. Ashford, 03-

1691, p. 14 (La. App. 4 Cir. 6/16/04), 878 So.2d 798, 806). “An appellate court

reviews a district court’s ruling on the admissibility of evidence under the abuse of

discretion standard.” Id. (citing State v. Wright, 11-0141, pp. 10-11 (La. 12/6/11),

79 So.3d 309, 316).

On December 6, 2022, Mr. Gomila filed a pre-trial motion challenging the

authenticity of the Ring Video. The motion asserted that the Ring Video was only

a partial video; that a full version of the Ring Video would show the prior

10

altercation between Mr. Cummins and Mr. Gomila, which would allegedly reflect

that Mr. Cummins was the aggressor in the altercation; and, without the complete

video, the partial video should not be admitted. This motion was set for hearing

on January 24, 2023. However, on that date, the motion was continued because a

witness was unavailable. The motion was subsequently continued several times for

various reasons and was, as reflected by the record, never heard. We note that the

attorney who filed the motion was not the same attorney representing Mr. Gomila

at trial and the motion was not re-urged. Instead, when the State introduced the

Ring Video into evidence, no objection was lodged. Quite the opposite, defense

counsel stipulated to its authenticity. Specifically, the trial transcript reflects the

following colloquy:

MR. DYSART: All right. Your Honor, at this time, State would
offer, file, and introduce as S-5 the Ring video doorbell that was
obtained by [Captain] Melerine. I believe we have a stipulation as to
authenticity.
THE COURT: Is that correct?
MS. MEYASKI: [That is] correct, Judge.
THE COURT: Okay. So ordered.

It is well established that for appeal purposes, “argument is limited to those

grounds raised at trial.” State in Interest of C.H., 21-0516, p. 18 (La. App. 4 Cir.

1/26/22), 335 So.3d 451, 462 (citing State v. Magrini, 19-0951, pp. 25-26 (La.

App. 4 Cir. 5/27/20), 301 So.3d 525, 540). In a situation, as is here, in which a

defendant initially raises an objection to evidence via a pre-trial motion, but later

withdraws said objection or agrees to the admission of the evidence at trial, he has

waived his prior objection and loses the right to present the issue on appeal. See

State v. Caraby, unpub., 06-1376, p. 3 (La. App. 4 Cir. 3/21/07), 2007 WL

7711284. See also State v. Lane, 20-137, p. 34 (La. App. 5 Cir. 12/23/20), 309

11

So.3d 886, 910 (wherein the appellate court noted that “[w]hen a defendant

unsuccessfully seeks to exclude certain evidence [in] a pre-trial motion, but at trial

agrees to its introduction, he waives his prior objection and loses the right to

present the issue on appeal”). Thus, we find that when Mr. Gomila stipulated to

the authenticity objection to the Ring Video, he forfeited his right to present the

issue on appeal. This assignment of error lacks merit.

Assignment of Error No. 1 – Self-Defense and Sufficiency of Evidence

In this assignment of error, Mr. Gomila asserts that not only did the State fail

to provide sufficient evidence that he had not acted in self-defense when

discharging his firearm at the family home, but also that the State presented

insufficient evidence to support his conviction of aggravated assault with a firearm

conviction. We will begin by outlining the law on sufficiency of evidence, and

then address self-defense and aggravated assault with a firearm, respectively.

“Appellate courts review the sufficiency of evidence used to support a

conviction under the Jackson standard.” State v. Riley, 23-0040, p. 12 (La. App. 4

Cir. 8/31/23), 372 So.3d 77, 86 (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.

2781, 61 L.Ed.2d 560 (1979)). “Under Jackson ‘the relevant question is whether,

after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” Id. (quoting Jackson, 443 U.S. at 319, 99 S. Ct. at 2789).

“The principal [criterion] of a Jackson . . . review is rationality.” Id. (quoting State

v. Dukes, 19-0172, p. 7 (La. App. 4 Cir. 10/2/19), 281 So.3d 745, 752). “As such,

‘irrational decisions to convict will be overturned, rational decisions to convict will

be upheld, and the actual fact finder’s discretion will be impinged upon only to the

extent necessary to guarantee the fundamental protection of due process of law.’”

12

Id. at pp. 12-13, 372 So.3d at 86 (quoting State v. Alexis, 14-0327, p. 6 (La. App. 4

Cir. 12/3/14), 157 So.3d 775, 778). “[W]here there is no direct evidence presented

proving one or more of the elements of the offense, La. R.S. 15:438 governs

circumstantial evidence and provides ‘assuming every fact to be proved that the

evidence tends to prove, in order to convict, it must exclude every reasonable

hypothesis of innocence.’” State v. Mealancon, 21-0119, pp. 6-7 (La. App. 4 Cir.

12/22/21), 334 So.3d 792, 797 (quoting State v. Hutsell, 17-0112, p. 15 (La. App. 4

Cir. 4/18/18), 241 So.3d 542, 551). “Stated differently, the reviewer as a matter of

law, can affirm the conviction only if the reasonable hypothesis is the one

favorable to the [S]tate and there is no extant reasonable hypothesis of innocence.”

Id. at p. 7, 334 So.3d at 798 (internal quotations omitted) (quoting State v. Green,

449 So.2d 141, 144 (La. App. 4th Cir. 1984)). “This test is not separate from the

Jackson standard; rather it simply requires that all evidence, both direct and

circumstantial, must be sufficient to satisfy a rational juror that the defendant is

guilty beyond a reasonable doubt.” Id. (internal quotations omitted) (quoting State

v. Hoang, 16-0479, p. 3 (La. App. 4 Cir. 12/21/16), 207 So.3d 473, 475). “If a

rational trier of fact reasonably rejects the defendant’s hypothesis of innocence,

that hypothesis falls; and, unless another one creates reasonable doubt, the

defendant is guilty.” Id. (citing State v. Captville, 448 So.2d 676, 680 (La. 1984)).

“Therefore, ‘where the evidence is purely circumstantial, if it does not exclude

every reasonable hypothesis of innocence, a rational juror cannot find defendant

guilty beyond a reasonable doubt without violating constitutional due process

safeguards.’” Id. (quoting State v. Monds, 91-0589 (La. App. 4 Cir. 2/10/94), 631

So.2d 536, 539). With these tenets in mind, we now apply them to Mr. Gomila’s

claims regarding self-defense.

13

“When a defendant asserts that he acted in self-defense in a homicide case, it

is settled law that the [S]tate bears the burden of proving beyond a reasonable

doubt that the defendant did not act in self-defense.” State v. Lehmann, 23-0386,

p. 19 (La. App. 4 Cir. 2/5/24), 385 So.3d 268, 279 (quoting State v. De Gruy, 16-

0891, p. 18 (La. App. 4 Cir. 4/5/17), 215 So.3d 723, 733). Louisiana Revised

Statutes 14:18 provides, in part, that “[t]he fact that an offender’s conduct is

justifiable, although otherwise criminal, shall constitute a defense to prosecution

for any crime based on that conduct.” Further, “use of force or violence upon the

person of another is justifiable . . . [w]hen committed for the purpose of preventing

a forcible offense against the person . . . provided that the force or violence used

must be reasonable and apparently necessary to prevent such offense.” La. R.S.

14:19(A)(1)(a). “A person who is the aggressor or who brings on a difficulty

cannot claim the right of self-defense unless he withdraws from the conflict in

good faith and in such a manner that his adversary knows or should know that he

desires to withdraw and discontinue the conflict.” La. R.S. 14:21. In keeping with

this statute, this Court has explicitly provided that “the justification defense may

not apply to a defendant who acts as the aggressor and provokes the situation.”

State v. Wright, 24-0349, p. 3 (La. App. 4 Cir. 3/19/25), ___ So.3d ___, ___, 2025

WL 854665, at *7 (citing State v. Bethley, 22-0849, p. 6 (La. App. 4 Cir. 6/21/23),

368 So.3d 1148, 1154).

Mr. Gomila argues that Mr. Cummins was the aggressor in this altercation

because Mr. Cummins threatened him with a gun and threw him to the ground after

his unwelcomed reappearance at the family home. We disagree. Our review of the

evidence shows that after Mr. Gomila was thrown to the ground, Mr. Cummins

retreated into his home and locked the door. We find that at that time, the

14

altercation, wherein Mr. Cummins could have been considered the aggressor,

ceased, and Mr. Cummins was no longer—if he ever was—an aggressor.

Moreover, review of the Ring Video shows that Mr. Gomila then picked himself

up off of the ground and walked out of the view of the camera. While the footage

does not show definitively whether Mr. Gomila went to his truck, he went

somewhere and obtained a firearm. The Ring audio then records the sound of three

gunshots followed by Mr. Gomila coming into frame and firing two more gunshots

into the family home. In this new interaction, it is unquestioned that Mr. Gomila

takes on the role of the aggressor. He is not being provoked, nor is there any

apparent threat against him. He merely appears, in the words of his daughter’s

testimony, to be “get[ting] even.” Thus, we find that the State met its burden of

proving beyond a reasonable doubt that Mr. Gomila was not acting in self-defense

and that, in viewing the evidence in the light most favorable to the prosecution, a

rational trier of fact could have concluded that Mr. Gomila’s conduct was not

justified.

We now turn to Mr. Gomila’s argument relating to his conviction. He was

charged with attempted second-degree murder in violation of La. R.S. 14:273 and

La. R.S. 14:30.1,4 but was convicted of the responsive verdict5 of aggravated

assault with a firearm, which La. R.S. 14:37.4(A) defines as “an assault committed
3 Louisiana Revised Statutes 14:27(A) describes the act of an attempt as: “Any person who,

having a specific intent to commit a crime, does or omits an act for the purpose of and tending
directly toward the accomplishing of his object is guilty of an attempt to commit the offense
intended; and it shall be immaterial whether, under the circumstances, he would have actually
accomplished his purpose.”
4 Second-degree murder is defined as the killing of a human being “[w]hen the offender has a

specific intent to kill or to inflict great bodily harm.” La. R.S. 14:30.1.
5 There are five responsive verdicts for attempted second-degree murder: (1) guilty; (2) guilty of

attempted manslaughter; (3) guilty of aggravated battery; (4) guilty of aggravated assault with a
firearm; and (5) not guilty. La. C.Cr.P. art. 814(A)(4).

15

with a firearm.” Appellate courts “will not reverse a jury’s return of a responsive

verdict, whether or not supported by the evidence, as long as the evidence is

sufficient to support a conviction for the charged offense.” State v. Ward, 23-0524,

p. 6 (La. App. 4 Cir. 4/17/25), ___ So.3d ___, ___, 2025 WL 1135095, *3 (quoting

State v. Harris, 02-1589, p. 4 (La. 5/20/03), 846 So.2d 709, 712-13).

In the matter before us, there is no question of the use of a firearm, so we

turn our consideration to whether or not Mr. Gomila committed an assault. An

assault is “an attempt to commit a battery, or the intentional placing of another in

reasonable apprehension of receiving a battery.” La. R.S. 14:36. A battery is

defined as “the intentional use of force or violence upon the person of another.”

La. R.S. 14:33. This Court has consistently held that “[i]n order to support a

conviction for assault, the State must prove beyond a reasonable doubt: (1) the

intent-to-scare mental element (general intent); (2) conduct by defendant of the sort

to arouse a reasonable apprehension of bodily harm; and (3) the resulting

apprehension on the part of the victim.” State v. Boner, 19-0658, p. 10 (La. App. 4

Cir. 6/24/20), 302 So.3d 131, 138 (quoting State v. Brown, 17-0124, p. 6 (La. App.

4 Cir. 12/12/17), 234 So.3d 978, 982, writ denied, 18-0010 (La. 6/15/18), 257

So.3d 678). “Assault requires proof of only general criminal intent or a showing

that the [d]efendant, in the ordinary course of human experience, must have

adverted to the prescribed criminal consequences as reasonably certain to result

from his act or failure to act.” Id. at p. 11, 302 So.3d at 138 (quoting Brown, 17-

0124, p. 6, 234 So.3d at 982). “An offender has the requisite intent when the

prohibited result may have reasonably been expected to follow from the offender’s

voluntary act, regardless of any subjective desire on his part to have accomplished

the result.” Id.

16

The Ring Video and the trial testimony all support the required elements of

this crime. As previously discussed, the initial confrontation upon Mr. Gomila’s

reappearance at the family home had completely dissipated at the time that he

decided to retrieve a gun and then further decided to fire that gun into a home

containing his son-in-law and three grandchildren. As provided by the cited law

above, Mr. Gomila’s subjective desire is irrelevant considering the fear and trauma

inflicted upon the four individuals in the family home, specifically Mr. Cummins

at whom Mr. Gomila’s anger and frustration was directed, that resulted from Mr.

Gomila’s actions. Based on the evidence adduced at trial, it is clear that Mr.

Gomila possessed the general intent to scare Mr. Cummins by firing shots into the

family home.

With regard to the actual conduct of Mr. Gomila, we must note that, in his

brief to this Court, he categorized his actions as having fired shots into the air. We

find this to be a gross mischaracterization of what occurred. The phraseology of

firing shots into the air indicates to this Court an individual who is pointing a

weapon up into the air and arguably not aiming at anything or trying to hit a

specific target. The evidence presented to the jury was anything but that. Not only

was the jury presented with photographs of the bullet holes in the first story

window just to the left of the front door, the Ring Video clearly reflects Mr.

Gomila holding the firearm directly in front of him with outstretched arms as he

gets closer and closer to the window. There is no question that he was

intentionally shooting into the home and not into the air as he suggests. Further, it

is equally clear that the act of shooting into the window of someone’s home, with

the unquestionable knowledge that the home is occupied, is conduct that would

lead someone to experience a reasonable apprehension of bodily harm. Especially

17

considering the interaction that had recently occurred, it is reasonable to expect

that Mr. Cummins would be fearful of bodily harm.

Moving on to the final element—that Mr. Cummins need have actually

experienced apprehension—we find there to be acceptable evidence supporting this

notion. Similar to the questionable reference to Mr. Gomila shooting into the air,

his brief to this Court also contends that Mr. Cummins never experienced this

apprehension because he did not know these were gunshots until after the fact,

instead thinking them to be fireworks. This is an inaccurate retelling of the trial

testimony. The only individual who provided testimony regarding fireworks was

David, who stated that he initially thought the sound was fireworks, but quickly

realized it was gunshots and become fearful. Mr. Cummins, however, was under

no such illusion. He provided that, upon hearing the sound, he immediately

assumed it was gunshots and shouted to his children to get down and take cover.

This instantaneous reaction to the sound and his concern for his children heavily

lean towards a finding that he experienced actual apprehension as a result of Mr.

Gomila’s actions. Accordingly, viewing the evidence in the light most favorable to

the prosecution, a rational trier of fact could have concluded beyond a reasonable

doubt that Mr. Gomila committed aggravated assault with a firearm.

Assignment of Error No. 3 – Excessiveness of Sentences

In his final assignment of error, Mr. Gomila contends that the district court

erred in imposing excessive sentences in connection with his three convictions. He

specifically claims that the district court erred in failing to adequately consider the

sentencing criteria set forth in La. C.Cr.P. art. 894.1.6

6 Louisiana Code of Criminal Procedure article 894.1 provides the district court with non-
controlling factors to consider when determining a defendant’s sentence.

18

Louisiana Code of Criminal Procedure art. 881.1 provides, in pertinent part,

as follows:

A. (1) In felony cases, within thirty days following the imposition of
sentence or within such longer period as the trial court may set at
sentence, the state or the defendant may make or file a motion to
reconsider sentence.

B. The motion shall be oral at the time of sentence or shall be in
writing thereafter and shall set forth the specific grounds on which the
motion is based.

* * *

E. Failure to make or file a motion to reconsider sentence or to include
a specific ground upon which a motion to reconsider sentence may be
based, including a claim of excessiveness, shall preclude the state or
the defendant from raising an objection to the sentence or from urging
any ground not raised in the motion on appeal or review.

As this court recently noted in State v. Fruge, “[a] simple objection to the sentence

is sufficient to preserve appellate review on the grounds of excessiveness.” 23-

0552, p. 21 (La. App. 4 Cir. 4/11/25), ___ So.3d ___, ___, 2025 WL 1088089, at

*11 (quoting State v. Mitchell, 21-0488, p. 4 (La. App. 4 Cir. 12/15/21), 334 So.3d

449, 452). “However, ‘[w]here a defendant merely objects to the excessiveness of

the sentence without stating the specific grounds for his objection, he is limited to a

bare review of the sentence for constitutional excessiveness.’” Id. (quoting State v.

Barnes, 01-489, p. 3 (La. App. 5 Cir. 10/17/01), 800 So.2d 973, 976).

In the matter sub judice, there is nothing in the record providing that Mr.

Gomila filed a motion to reconsider sentence. Further, there was no basis for the

objection lodged at the sentencing hearing. In fact, the transcript does not actually

reflect any objection or statement from Mr. Gomila’s counsel, only that the district

court stated “I’ll note your objection.” Thus, as in Fruge, we will not consider the

sentencing criteria in La.C.Cr.P. art. 894.1 because we are limited to a bare review

19

based on constitutional excessiveness as a result of the objection, or lack thereof,

made at the sentencing hearing and his failure to file a motion reconsider sentence

pursuant to La. C.Cr.P. 881.1.

Under “[b]oth the Eighth Amendment of the United States Constitution and

Article I, § 20 of the Louisiana Constitution,” the imposition of excessive and cruel

punishments is prohibited. State v. Wilson, 14-1267, p. 23 (La. App. 4 Cir.

4/29/15), 165 So.3d 1150, 1165. “The excessiveness of a sentence is a question of

law; a reviewing court will not set aside a sentence as excessive absent a manifest

abuse of discretion by the sentencing judge.” State v. Toney, 23-0591, p. 8 (La.

App. 4 Cir. 4/17/24), 390 So.3d 812, 819, writ denied, 24-00549 (La. 11/6/24), 395

So.3d 872 (citation omitted). When reviewing sentences, this Court has held that

“‘the relevant question is not whether another sentence might have been more

appropriate but whether the [district] court abused its broad sentencing

discretion.’” Id. at p. 9, 390 So.3d at 812 (quoting State v. Boudreaux, 11-1345, p.

5 (La. App. 4 Cir. 7/25/12), 98 So.3d 881, 885).

“Although a sentence is within the statutory limits, the sentence may still

violate a defendant’s constitutional right against excessive punishment.” State v.

Cassimere, 09-1075, p. 5 (La. App. 4 Cir. 3/17/10), 34 So.3d 954, 957-58 (quoting

State v. Landry, 03-1671, p. 7 (La. App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239).

“However, the penalties provided by the legislature reflect the degree to which the

criminal conduct is an affront to society.” Id. at p. 5, 34 So.3d at 958 (quoting

Landry, 03-1671, p. 8, 871 So.2d at 1239). “A sentence is unconstitutionally

excessive if it makes no measurable contribution to acceptable goals of

punishment, is nothing more than the purposeless imposition of pain and suffering,

and is grossly out of proportion to the severity of the crime.” Id. “A sentence is

20

grossly disproportionate if, when the crime and punishment are considered in light

of the harm done to society, it shocks the sense of justice.” Id.

As mentioned previously in this opinion, three pieces of testimony were

offered at Mr. Gomila’s sentencing hearing. Mr. Gomila’s brother, John Gomila,

testified that Mr. Gomila was a good man and would never hurt anybody.

However, he provided that Mr. Gomila needed help as a result of his alcoholism.

Christopher, Mr. Gomila’s oldest grandchild, testified that Mr. Gomila was one of

his strongest male role models and would never want to hurt anyone. Similar to

the previous testimony, Christopher provided that, rather than going to prison, he

believed Mr. Gomila would benefit from going to rehabilitation to help his battle

with alcoholism. Lastly, Mr. Gomila testified on his own behalf. He attributed his

extreme intoxication on the date of the shooting at the family home to an issue with

his medication. He further shifted responsibility for his intoxication to Mr.

Cummins when he stated that he tried to “drown [his] depression in alcohol

because of sometimes not being able to deal with certain attributes of [Mr.]

Cummins’ violence.” Finally, he claimed that he was merely trying to get into the

family home to retrieve some medications. Notably, the sentencing hearing

transcript does not reflect any attempt by Mr. Gomila to take any responsibility for

his own actions or issue any apologies.

After hearing the testimony, the district court proceeded to sentence Mr.

Gomila as follows: (1) ten years for aggravated assault with a firearm with credit

for time served, to run concurrent with his other two sentences; (2) ten years for

aggravated criminal damage to property with credit for time served, to run

concurrent with his other two sentences; and (3) fifteen years without benefit of

parole, probation, or suspension for illegal use of weapons or dangerous

21

instrumentalities, with credit for time served, and to run concurrent with his other

two sentences. In doing so, the district court explained:

I [have] gone through the sentencing guidelines. I take into
consideration all the factors, both mitigating circumstances, and I do
recall seeing the video. I do recall the fact that there were
grandchildren inside the house and certainly two with the knowledge
of Mr. Gomila along with his son-in-law. And I got to witness the
incident where Mr. Cade Cummins had retreated from the incident,
which then provided an opportunity for Mr. Gomila to go to his
vehicle as he just noted in his statement to pull out a weapon and start
firing it.
So I [have] got to tell you, we [are] fortunate that no one got
hit. We [are] fortunate that we [are] not sitting here looking at a
murder charge.

We now turn to a review of the sentencing for each of Mr. Gomila’s convictions.

Count One – Aggravated Assault with a Firearm

Louisiana Revised Statutes 14:37.4(C) provides that “[w]hoever commits an

aggravated assault with a firearm shall be fined not more than ten thousand dollars

or imprisoned for not more than ten years, with or without hard labor, or both.”

We begin by noting that Mr. Gomila’s sentence for count one does not exceed the

statutory limitation, and he was not given a sentence including a fine as allowed by

the applicable statute. Nonetheless, we still consider whether the sentence is

excessive in light of the harm done to society and the sense of justice surrounding

this matter.

In support of his excessiveness argument, Mr. Gomila cites State v. Lafleur,

16-467 (La. App. 3 Cir. 1/14/17), 209 So.3d 927, a case in which the appellate

court found a ten-year sentence imposed for the defendant’s conviction of one

count of aggravated assault with a firearm excessive. Lafleur, however, is

distinguishable from the matter at hand. In Lafleur, the defendant never fired his

weapon; he simply pointed his weapon at the victim and then walked away. In the

22

matter sub judice, as discussed ad nauseum, Mr. Gomila shot five bullets at the

family home, with three of those bullets entering the front window while Mr.

Cummins and his three children were present inside the home. Mr Gomila also

relies on State v. Fomond, 05-540 (La. App. 3 Cir. 1/18/06), 921 So.2d 1103, a

case in which the defendant pled guilty to two counts of aggravated assault with a

firearm and was sentenced to four years on each count, with his sentences to run

concurrently. Based on this case, Mr. Gomila claims that he should not have

received sentences any greater than four years. Again, the facts in Fomond are

distinguishable from the facts herein in two major ways. First, at the time Fomond

was decided, the maximum sentence authorized for aggravated assault with a

firearm was five years imprisonment. See Fomond, 05-540, p. 1, 921 So.2d at 1104

(“[F]ive years is the maximum sentence provided for by La. R.S. 14:37.4,

aggravated assault with a firearm.”). Second, the Fomond defendant pled guilty to

the charges. The district court specifically noted that it considered the defendant’s

“apologetic approach” in deciding the sentence. Id. at p. 3, 921 So.2d at 1105. As

discussed, not only did Mr. Gomila plead not guilty, but his testimony at the

sentencing hearing provided no sense of remorse for his actions. See State v.

McDonough, 22-0628, p. 49 (La. App. 4 Cir. 10/27/23), 376 So.3d 1003, 1034,

writ denied, 23-01546 (La. 9/4/24), 391 So.3d 1048 (where this Court noted that

“lack of remorse [from the defendant] is another factor that can be considered by

the district court [during sentencing]”).

We also look to the case of State v. Brown, wherein the defendant was

sentenced to five years in prison along with a statutory fine of $10,000.00,

pursuant to La. R.S. 14:37.4, aggravated assault with a firearm. 17-0124, p. 9 (La.

App. 4 Cir. 12/12/17), 234 So.3d 978, 984, writ denied, 18-0010 (La. 6/15/18), 257

23

So.3d 678. In finding the sentence not excessive, this Court noted that the district

court cited “the defendant’s failure to accept responsibility for his actions, the

violent and senseless nature of the crime and the use of a dangerous weapon in the

commission of the crime.” Id. However, in Brown, unlike the current matter, the

defendant never fired his weapon—only threatening to shoot the victim. In the

matter sub judice, Mr. Gomila actually fired his weapon, several times, with the

potential of hitting four victims located inside the family home. Further, while the

Brown defendant only received a five-year prison sentence, he was given the full

statutory fine as a further penalty. Thus, in considering the differences in the cases

cited by Mr. Gomila, as well as the sentencing in Brown, we do not find the instant

sentence for aggravated assault with a firearm to be excessive.

Count Two – Aggravated Criminal Damage to Property

Louisiana Revised Statutes 14:55(B) provides that “[w]hoever commits the

crime of aggravated criminal damage to property shall be fined not more than ten

thousand dollars, imprisoned with or without hard labor for not less than one nor

more than fifteen years, or both.” For count two, Mr. Gomila was sentenced to less

than the statutory maximum without a fine.

In State v. Bradstreet, the appellate court affirmed the defendant’s fifteen-

year penalty without fine for aggravated criminal damage to property. 16-80 (La.

App. 5 Cir. 6/30/16), 196 So.3d 876, writ denied, 16-1567 (La. 6/5/17), 220 So.3d

752. In Bradstreet, an unoccupied vehicle parked in a driveway near the scene of a

crime sustained multiple bullet holes after the defendant discharged a total of

twenty-nine bullets from three separate weapons. While the defendant appealed as

excessive his sentences for second-degree murder, he also appealed his fifteen-year

sentence for aggravated criminal damage to property. The appellate court found

24

that the district court did not abuse its discretion in imposing a fifteen-year, no fine

sentence for this action.

In considering the Bradstreet case, we note the emphasis that the district

court in the instant matter placed on the possibility that there could very easily

have been a physical injury or fatality as a result of Mr. Gomila’s actions. In

considering the seriousness of the facts surrounding this matter, as well as

contemplating the reality that Mr. Gomila did not receive the maximum sentence

for count two, we find that the district court did not err in issuing a ten-year

sentence.

Count Three – Illegal Use of Weapons or Dangerous Instrumentalities

Louisiana Revised Statutes 14:94(A) provides that “[i]llegal use of weapons

or dangerous instrumentalities is the intentional or criminally negligent discharging

of any firearm, or the throwing, placing, or other use of any article, liquid, or

substance, where it is foreseeable that it may result in death or great bodily harm to

a human being. As it relates to sentencing, La. R.S. 14:94(B) provides, that

“whoever commits the crime of illegal use of weapons or dangerous

instrumentalities shall be fined not more than one thousand dollars, or imprisoned

with or without hard labor for not more than two years, or both.” However, La.

R.S. 14:94(F) provides that “[w]hoever commits the crime of illegal use of

weapons or dangerous instrumentalities by discharging a firearm while committing

. . . a crime of violence . . . shall be imprisoned at hard labor for not less [than] ten

years nor more than twenty years, without benefit of parole, probation, or

suspension of sentence.”

As a preliminary matter, Mr. Gomila contends that the following language in

the bill of information was misleading, causing him to believe he was only subject

25

to the sentencing restrictions of La. R.S. 14:94(B): “[Mr.] Gomila, on or about

June 20, 2021, did intentionally or with criminal negligence, discharge any firearm,

or throw, place, or use any article, liquid or substance, where it is foreseeable that

it may result in death or great bodily harm to a human being.” However, we find

two pieces of information in the record which negate this argument. First, in its

instructions to the jury, the district court provided the charges against Mr. Gomila

including, in pertinent part, “violating [La. R.S] 14:94(A) (F), illegal use of

weapons or dangerous instrumentalities.” Mr. Gomila did not object to this

reading of the charges. Second, as it pertains to the bill of information, Mr.

Gomila is correct in the language included therein. However, the Louisiana

Supreme Court has noted that “[a] defendant must raise a claim that the indictment

does not provide adequate notice of the charge before trial by filing a bill of

particulars. Failure to do so waives the claim.” State v. Allen, 01-2494, p. 1 (La.

6/21/02), 824 So.2d 344 (citing State v. Gainey, 376 So.2d 1240, 1243 (La. 1979)).

Mr. Gomila did not file a bill of particulars prior to trial commencing, and thus

waives his claim of inadequate notice. Additionally, as the Supreme Court further

observed in Allen, the defendant could not “show prejudice from the alleged defect

. . . because his alibi defense applied equally well to violations of [La.] R.S.

14:94(A) and (F).” Id. Similarly, Mr. Gomila’s self-defense argument applied

equally well to violations of La. R.S. 14:94(A) and (F) such that he can show no

prejudice. As was the case in Allen, Mr. Gomila’s “heightened sentencing

exposure as a matter of [La.] R.S. 14:94(F) stems not from any failure of the

indictment to provide adequate notice of the crime charged but from the exercise of

the [S]tate’s plenary charging discretion in prosecuting the more serious crime

defined by the statute because it occurred during the commission of a crime of

26

violence.” Id. at pp. 1-2, 824 So.2d at 344. Indeed, Mr. Gomila was billed in the

charging document with attempted second-degree murder—which is a crime of

violence—and the lesser included offense, aggravated assault with a firearm, is

also defined as a crime of violence under Louisiana law. See La. R.S. 14:2(B)(33).

We find no prejudice against Mr. Gomila related to the alleged defect. Having

reached this conclusion, we now turn to discussion of whether his sentence for

count three was excessive.

Mr. Gomila was sentenced to fifteen years on count three, which is a mid-

range sentence under La. R.S. 14:94(F). In State v. Ancalade, this Court upheld a

fifteen-year sentence imposed following the defendant’s conviction of illegally

discharging a firearm during a violent crime. 14-0739 (La. App. 4 Cir 1/14/15),

158 So.3d 891, writ denied, 15-0375 (La. 1/8/16), 184 So.3d 691. While the

defendant conceded that he received a mid-range sentence, he asserted “that

because ‘this alleged crime [was] between family members’ and ‘no one was hurt’

or ‘property damaged,’ any sentence in excess of the statutory minimum was

excessive.” Id. at p. 15, 158 So.3d at 899. This Court, however, found that “[t]he

[district] court did not abuse its discretion in handing down the less than maximum

sentence allowed by law” because “the record clearly shows that [the defendant]

fired multiple shots in the direction of a group of people, including children.” Id.

Similarly, Mr. Gomila fired multiple shots in the direction of the home in which

Mr. Cummins, along with Mr. Gomila’s grandchildren, were located.

Accordingly, we do not find his sentence of fifteen years without benefit of parole,

probation, or suspension of sentence to be excessive.

27

Having discussed each of Mr. Gomila’s convictions and corresponding

sentences, and determining none to be constitutionally excessive, we find this

assignment of error lacks merit.

DECREE

For the foregoing reasons, we affirm Mr. Gomila’s conviction and sentences,

and find that the Ring Video was properly introduced into evidence.

AFFIRMED

28