State of Louisiana v. Cherekita Y. Morehead

Judgment rendered April 22, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 53,465-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

CHEREKITA Y. MOREHEAD Appellant

*****

Appealed from the
Thirty-Seventh Judicial District Court for the
Parish of Caldwell, Louisiana
Trial Court No. 95,919

Honorable Ashley P. Thomas, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Sherry Watters

BRIAN E. FRAZIER Counsel for Appellee
District Attorney

CHARLES L. COOK
Assistant District Attorney

*****

Before PITMAN, COX, and THOMPSON, JJ.

THOMPSON, J.

This is an appeal by defendant, Cherekita Morehead, of her

manslaughter conviction (in violation of La. R.S. 14:31), her 25 year

sentence, and her conviction by less than a unanimous jury which arises

from the 37th Judicial District Court, Parish of Caldwell, the Honorable

Ashley Paul Thomas presiding. For the following reasons, defendant’s

conviction and sentence are affirmed. Defendant asserts three assignments

of error.

FACTS & PROCCEDURAL HISTORY

The defendant, Cherekita Morehead (hereinafter “Defendant”), was

indicted for the second-degree murder of Eugene Brown (“Eugene”), in

violation of La. R.S. 14:30.1. The couple had been dating for two to three

years at the time of Eugene’s death, and were living together in West

Monroe, Louisiana. Eugene died of a single gunshot wound to the head in

Columbia, Caldwell Parish, Louisiana, which Defendant argues was an

accidental shooting.

On November 23, 2017, a family gathering was held in Columbia,

Louisiana, at the home of James Brown (“James”), a relative of Eugene.

Defendant and Eugene were driven from West Monroe to the gathering at

James’s residence in Columbia by Oshay Roberts. At the gathering at

James’s residence, testimony established there was eating, drinking, and

smoking of marijuana.

Demarius Douglas (“Demarius”) was also at the gathering. Demarius

testified that after having been at the gathering for three or four hours he

wanted to go to a friend’s house, who also lived in Columbia. Demarius was

too intoxicated to drive himself, so Eugene drove him to the Andings

Heights Projects in Demarius’ Dodge Avenger. Eugene dropped off

Demarius at the first apartment and continued to drive to the residence of

Demarius’ step-sister, Paris Craft (“Craft”), whose apartment was also

located in Andings Heights Projects. Somewhere along the way Eugene

apparently picked up Derrick Coleman (“Coleman”) who accompanied

Eugene to the apartment of Craft.

Defendant testified that Oshay (their ride back to West Monroe) was

ready to return to West Monroe before Eugene returned to James’s house,

but she did not want to leave without Eugene. Another gathering attendee,

DaShaun Roberts (hereinafter “DaShaun”), testified that he arrived at

James’s house after Demarius and Eugene left, but that Defendant was still

there. DaShaun stated that, after spending some time with his family, he

“got a call to bring [Defendant] to the Projects,” but could not remember

who called him. DaShaun testified that Defendant was “very upset” during

the drive to the Anding Heights Projects because Eugene had left her at

James’s house. DaShaun informed Defendant that he would not give

Eugene and her a ride back to James’s together because she was upset with

Eugene. Defendant testified that she was frustrated because their possible

ride back to West Monroe may have left without them, but denied that she

was angry with Eugene.

DaShaun testified that he parked at Craft’s apartment and, within two

minutes, Eugene and Coleman arrived in Demarius’ vehicle. DaShaun and

Defendant exited their vehicle and Defendant began “picking” with Eugene,

opening his car door and putting her hands in his face. Defendant testified

that she merely reminded Eugene that he should not be drinking and driving,

and that they might have missed their ride home, but again denied that she
2

was angry. Everyone went inside Craft’s apartment and smoked marijuana.

DaShaun testified that Eugene and Defendant continued arguing, with

Defendant “slapping [Eugene] upside the head” at one point. Defendant

denied arguing with Eugene or striking him.

A while later Oshay, who was to drive Defendant and Eugene back to

West Monroe, arrived at Craft’s apartment, and Defendant retrieved her

purse from DaShaun’s vehicle and placed it in Oshay’s vehicle, apparently

in preparation for the drive back to West Monroe. DaShaun testified that

Eugene then left in Demarius’ vehicle to go back to the apartment where he

had earlier dropped off Demarius. Eugene would not allow Defendant to

accompany him to the apartment. Defendant testified that Oshay became

aggravated because he was ready to leave Columbia and go back to West

Monroe. DaShaun stated that Defendant then retrieved her purse from

Oshay’s vehicle and “stormed off down the street,” saying, “don’t be mad

when something happens, or something like that.” Defendant testified that

she left Craft’s apartment to find Eugene because she did not want to leave

Columbia and go back to West Monroe without him.

Defendant testified that, while looking for Eugene, she removed her

gun from her purse because she heard dogs barking and was scared. She

stated that she had purchased the gun for Eugene’s birthday in August 2017

and that Eugene had picked it out. On cross examination, Defendant

admitted that, shortly after the shooting, she told investigators that she

purchased the gun for her own protection. Defendant testified that Eugene

was aware that she had the gun in her purse on the day of the shooting. She

stated that she and Eugene had handled the gun earlier in the day, while they

were at James’s house.
3

Defendant stated that, when she was walking, she located Demarius’

vehicle parked in front of the other apartment. She testified Eugene was still

in the driver’s seat of the vehicle and that she knocked on the passenger side

window, and Eugene then partially rolled down that window. Defendant

testified that Eugene did not unlock the car door, so she leaned in to unlock

the door with her left hand and the gun, held in her right hand, discharged.

She believed that Eugene saw the gun. Defendant testified that she had no

prior experience with firearms and did not know that the safety was off. She

maintained that she did not intend to shoot Eugene, but that the gun

accidentally discharged.

Defendant testified that immediately after the gun discharged that she

went to the driver’s side of the vehicle and opened the door. She further

testified that she blew the horn and screamed for help. Eugene was

allegedly on the phone with Coleman when Defendant arrived at the

passenger side of the vehicle. Coleman apparently could not be located to

testify at the trial. DaShaun testified that he was standing next to Coleman

while Coleman was on the phone with Eugene, and that Coleman said

Defendant and Eugene were fighting. Coleman asked Oshay to go to the

apartment where Eugene and Defendant were outside because they were

fighting.

Demarius, who was inside the apartment nearest to the vehicle when

the shooting occurred, testified that, approximately 35 to 45 minutes after

Eugene dropped him off, he heard a car honking. He claimed when he

walked to the door of the apartment that he heard Defendant screaming, “I

didn’t mean to,” repeatedly. Demarius stated that, as he approached the

vehicle, Defendant told him that she had shot Eugene. He saw Defendant sit
4

in Eugene’s lap and try to wake him. Defendant testified that she walked

towards the apartment that Demarius exited and told him that the gun had

gone off. Demarius, a convicted felon, testified that he instructed Defendant

to hide the gun because he was afraid to have the gun found in his vehicle.

Defendant testified that she moved the gun as instructed.

A resident of the Andings Heights Projects heard the commotion the

night of the shooting. Dolphus Bouie (hereinafter “Bouie”) testified that he

was at home on the night of November 23, 2017, when he heard a gunshot,

then a horn blaring and screaming. Bouie walked outside and saw a man

and a woman inside the vehicle. He testified that he heard the woman say

that she killed her boyfriend and that she did not mean to do it. Bouie

observed the woman pick a gun up from the ground on the passenger side of

the vehicle and walk away with it. At this point, Eugene was mortally

wounded in the vehicle from being shot by Defendant. The police began to

arrive a short time later.

Deputy Tammy Reed (“Deputy Reed”) of the Caldwell Parish

Sheriff’s Office (“CPSO”), responded to the scene of the shooting and

testified that she was approached by Defendant when she arrived on scene.

Deputy Reed testified that Defendant admitted to shooting Eugene.

CPSO Investigator Tony Childress (“Investigator Childress”) testified

that he inspected the Dodge Avenger in which Eugene was shot at the scene.

He stated that the passenger window was approximately halfway down and

that there was no damage to the window or door. Investigator Childress

determined, based on his investigation, that Eugene was seated in the

driver’s seat and Defendant was located on the passenger side of the vehicle

when the shooting occurred.
5

CPSO Detective Hank Boyles, testified that he collected the gun used

in the shooting, a .380 semi-automatic pistol, from behind the apartment

building. A spent casing was jammed in the working mechanism of the gun,

indicating that the gun had been fired once, but could not be fired again

because of the jammed casing. The gun was provided to the Louisiana

Crime Lab to be tested for any mechanical failures. Kendall Stracener, of

the North Louisiana Crime Lab, testified that he examined the gun used in

this shooting and found no mechanical defects during four test firings. He

testified that the gun had a trigger pull of 8.2 pounds, which was slightly on

the lower end of the normal range.

Ronald Scott, an independent forensic consultant hired by the defense,

testified that he had inspected the gun used in this shooting. He testified that

the safety was operable and that the trigger pull was within factory

specifications. Scott did not test fire the gun, but testified that he found no

defects during his examination. He explained that a bullet casing could

become jammed in the working mechanism of the gun if the weapon is held

firmly when fired. He further testified that Defendant could have

unintentionally discharged the gun when she reached into the car to unlock

the door with her left hand if the finger of her right hand was on the trigger

due to a “sympathetic squeeze,” which is an automatic response of one hand

based upon what the other hand is doing. However, he was unable to state

whether Defendant fired the gun intentionally or unintentionally.

Dr. Frank Peretti, associate medical examiner and forensic pathologist

for the territory including Caldwell Parish, Louisiana, testified that he

conducted the autopsy of Eugene. Dr. Peretti testified that there was a

gunshot wound to the hairline of Eugene’s right forehead, and that the bullet
6

had a left, backward, and downward trajectory. Dr. Peretti explained that he

identified stippling on Eugene’s skin around the wound, classifying the

wound as an intermediate gunshot wound fired from no more than 24 inches

away from Eugene. Dr. Peretti testified that his examination and findings

did not support the position that this was an accidental shooting.

Defendant’s jury trial commenced on May 21, 2019, and on May 24,

2019, the jury returned a verdict of guilty of manslaughter by a vote of 10-2.

A presentence investigation was ordered. On August 13, 2019, Defendant

was sentenced to 25 years’ imprisonment at hard labor. A motion to

reconsider sentence was denied. This appeal followed.

DISCUSSION

Assignment of Error No. One: The State failed to prove the charge of
second-degree murder or manslaughter beyond a reasonable doubt. In the
light most favorable to the prosecution, at best, the evidence supports that an
accident happened, the conviction should be vacated and an acquittal
ordered. Alternatively, only the lesser verdict of negligent homicide can be
entered.

On review, the defendant asserts that, when viewed in a light most

favorable to the state, the evidence supports a verdict of not guilty or of

negligent homicide because she lacked the specific intent required for a

conviction for manslaughter. Defendant asserts that her lack of intent was

shown through testimony regarding her lack of any disputes with Eugene,

and the fact that she immediately took responsibility for the shooting and

sought help. She argues that the return of a lesser verdict showed that the

jury found that she did not intend to harm Eugene and that the state failed to

prove that she had any motive to harm Eugene. Defendant further asserts

that the evidence clearly showed that the shooting was an accident, noting

7

her reasonable belief the gun was unloaded and that the safety was on when

she reached into the car to unlock the door.

In response, the state asserts that the testimony and evidence

presented was sufficient to sustain a conviction for manslaughter, and that

the jury reasonably rejected Defendant’s hypothesis of innocence. The state

notes that DaShaun Roberts testified that Defendant was very upset with

Eugene prior to the shooting, and that the two had been arguing before

Defendant retrieved her purse and gun to seek out Eugene. The state asserts

the expert testimony showed that Eugene had been shot with a gun that had

been placed within 24 inches of his head through a partially opened car

window, that the entry wound was not consistent with a wound caused by an

accidental shooting, and that the gun had no mechanical defects that would

cause an accidental misfire.

Applicable Law

The standard of appellate review for a sufficiency of the evidence

claim is whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979);

State v. Tate, 01-1658 (La. 05/20/03), 851 So. 2d 921, cert. denied, 541 U.S.

905, 124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Bass, 51,411 (La.

App. 2 Cir. 06/21/17), 223 So. 3d 1242, writ not cons., 18-0296 (La.

04/16/18), 239 So. 3d 830. This standard, now legislatively embodied in La.

C. Cr. P. art. 821, does not provide the appellate court with a vehicle to

substitute its own appreciation of the evidence for that of the fact finder.

State v. Pigford, 05-0477 (La. 02/22/06), 922 So. 2d 517; State v. Dotie,
8

43,819 (La. App. 2 Cir. 01/14/09), 1 So. 3d 833, writ denied, 09-0310 (La.

11/06/09), 21 So. 3d 297, 12-0717 (La. 09/12/12), 98 So. 3d 305.

The trier of fact makes credibility determinations and may accept or

reject the testimony of any witness. State v. Casey, 99-0023 (La. 01/26/00),

775 So. 2d 1022, cert. denied, 531 U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d

62 (2000). In the absence of internal contradiction or irreconcilable conflict

with physical evidence, one witness’s testimony, if believed by the trier of

fact, is sufficient support for a requisite factual conclusion. State v.

Robinson, 50,643 (La. App. 2 Cir. 06/22/16), 197 So. 3d 717, writ denied,

16-1479 (La. 05/19/17), 221 So. 3d 78; State v. Gullette, 43,032 (La. App. 2

Cir. 02/13/08), 975 So. 2d 753. The appellate court does not assess

credibility or reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95),

661 So. 2d 442; State v. Green, 49,741 (La. App. 2 Cir. 04/15/15), 164 So.

3d 331.

Direct evidence provides proof of the existence of a fact, for example,

a witness’s testimony that he saw or heard something. State v. Lilly, 468 So.

2d 1154 (La. 1985). Circumstantial evidence provides proof of collateral

facts and circumstances, from which the existence of the main fact may be

inferred according to reason and common experience. Id. When the state

relies on circumstantial evidence to establish the existence of an essential

element of a crime, the court must assume every fact that the evidence tends

to prove and the circumstantial evidence must exclude every reasonable

hypothesis of innocence. La. R.S. 15:438; State v. Lilly, supra; State v.

Green, supra.

The trier of fact is charged with weighing the credibility of this

evidence and, on review, the same standard as in Jackson v. Virginia is
9

applied, giving great deference to the fact finder’s conclusions. State v.

Green, supra. When the trier of fact reasonably rejects the hypothesis of

innocence advanced by a defendant, the hypothesis fails, and the defendant

is guilty unless there is another hypothesis which raises a reasonable doubt.

State v. Sosa, 05–0213 (La. 01/19/06), 921 So. 2d 94; State v. Captville, 82–

2206 (La. 1984), 448 So. 2d 676.

Where there is conflicting testimony about factual matters, the

resolution of which depends upon a determination of the credibility of the

witnesses, the matter is one of the weight of the evidence, not its sufficiency.

State v. Green, supra; State v. Glover, 47,311 (La. App. 2 Cir. 10/10/12),

106 So. 3d 129, writ denied, 12–2667 (La. 05/24/13), 116 So. 3d 659. Such

testimony alone is sufficient even where the state does not introduce

medical, scientific or physical evidence. State v. Larkins, 51,540 (La. App.

2 Cir. 09/27/17), 243 So. 3d 1220, writ denied, 17-1900 (La. 09/28/18), 253

So. 3d 154. The trier of fact is charged to make a credibility determination

and may, within the bounds of rationality, accept or reject the testimony of

any witness in whole or in part; the reviewing court may impinge on that

discretion only to the extent necessary to guarantee the fundamental due

process of law. State v. Casey, supra.

La. R.S. 14:31 provides, in pertinent part, that manslaughter is:

A homicide which would be murder under either Article 30
(first degree murder) or Article 30.1 (second degree murder),
but the offense 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.
Provocation shall not reduce a homicide to manslaughter if the
jury finds that the offender’s blood had actually cooled, or that
an average person’s blood would have cooled, at the time the
offense was committed.

10

Application of Law to Facts

In this case, the evidence was sufficient to support the jury’s finding

that Defendant committed manslaughter. Testimony showed a reasonable

probability that the shooting was not accidental. Although Defendant

testified that she and Eugene had not argued on the day of the shooting,

DaShaun Roberts testified that Defendant was angry with Eugene because

he left her at James’s house. DaShaun described Defendant as “picking at

[Eugene]” and striking him once she arrived at the Andings Heights

Projects. Testimony indicated that Defendant continued to be upset when

Eugene again left her to return Demarius’ car. At that point Defendant

retrieved her purse containing the gun from the vehicle that she was

supposed to ride to West Monroe in and went searching for Eugene.

DaShaun testified that Derrick Coleman, who was on the phone with Eugene

when he was shot, stated that Defendant and Eugene were fighting just prior

to the shooting.

Although the defense asserted the theory that the gun accidentally

discharged, the jury clearly found the expert testimony regarding the lack of

mechanical defects to be credible and discounted Defendant’s testimony that

she did not intend to fire the gun. Both experts, Det. Hank Boyles and

Ronald Scott, testified that the gun had no mechanical defects. Scott,

Defendant’s own expert, was unable to state whether the shooting was

unintentional. Dr. Peretti testified that the gun was within 24 inches of

Eugene when it was fired, indicating that Defendant’s arm was extended into

the vehicle when the gun was fired and that the shooting was not accidental.

Ultimately, it was the jury’s decision, as fact-finder, to assess the

credibility of the witnesses and to weigh the evidence. The trier of fact
11

weighed the evidence and concluded there was proof beyond a reasonable

doubt that Defendant committed manslaughter. Under these circumstances,

the jury’s decision should not be disturbed on appeal. Therefore, this

assignment of error is without merit.

Assignment of Error No. Two: The trial court erred in declaring a legal
verdict where the verdict was not unanimous. A non-unanimous verdict
violates due process and cannot support a conviction.

On review, the defendant argues that the non-unanimous verdict eased

the State’s burden and allowed a conviction on evidence that did not meet

the burden of proof required or establish all of the necessary elements.

Defendant further argues that a conviction based upon a non-unanimous

verdict does not satisfy due process requirements.

In response, the state argues that the constitutionality of La. C. Cr. P.

art. 782 may not be considered by this Court because it was not properly

raised in the trial court below. The state further argues that the Louisiana

Supreme Court has previously rejected the arguments set forth by Defendant

and that La. C. Cr. P. art. 782 is constitutional.

Applicable Law

Under the jurisprudence applicable to this case, non-unanimous jury

verdicts are constitutional and do not violate a defendant’s equal protection

rights. The recent amendments to La. Const. art. I, § 17 and La. C. Cr. P.

art. 782, which now require unanimous verdicts in felony cases, would not

apply to Defendant’s case as the amendments apply prospectively only to

offenses committed on or after January 1, 2019. The United States Supreme

Court granted a writ of certiorari in Ramos v. Louisiana, No. 18-5924, 2019

WL 1231752, (U.S. Mar. 18, 2019). In that case, the Court will address the

12

issue of whether the Fourteenth Amendment fully incorporates the Sixth

Amendment guarantee of a unanimous verdict.

Application of Law to Facts

Unless and until the United States Supreme Court finds Louisiana’s

prior non-unanimous jury law to be retroactively unconstitutional and

applicable to this case, Defendant has failed to meet her burden to prove that

she is entitled to relief. For the foregoing reasons, this assignment of error is

without merit.

Assignment of Error No. Three: The district court abused its discretion in
imposing a twenty-five-year sentence on the first offender, and in denying
the Motion to Reconsider. It is constitutionally excessive under the
circumstances of this offense and this offender.

The Defendant argues that a sentence of 25 years’ imprisonment for a

23-year-old first offender convicted of manslaughter is constitutionally

excessive given the circumstances of this case. She argues that the trial

court abused its discretion by imposing a sentence that is on the upper end of

the applicable sentencing range. Defendant asserts that the offense was

partially the product of her youth and a lack of knowledge of gun safety,

such that the offense is unlikely to occur again. Defendant notes that she has

taken responsibility for her actions and shown remorse.

In response, the state argues that Defendant’s sentence of 25 years’

imprisonment is not constitutionally excessive under the facts and

circumstances of this case. The state notes that the trial court considered all

mitigating factors, including Defendant’s single prior misdemeanor

conviction and employment history. The state argues that the jury’s verdict

indicates a belief that Defendant intended to kill Eugene. The state argues

13

that, based upon the circumstances of this case, any lesser sentence would

deprecate the seriousness of the offense.

Applicable Law

Appellate courts apply a two-pronged test when reviewing a sentence

for excessiveness: (1) whether the trial court adequately considered the

guidelines established in La. C. Cr. P. art. 894.1; and (2) whether the

sentence is constitutionally excessive. State v. Gardner, 46,688 (La. App. 2

Cir. 11/2/11), 77 So. 3d 1052.

The court must first determine whether the record shows that the trial

court took cognizance of the criteria set forth in La. C.Cr.P. art. 894.1. The

trial judge is not required to list every aggravating or mitigating

circumstance so long as the record reflects that he adequately considered the

guidelines of the article. State v. Smith, 433 So. 2d 688 (La. 1983); State v.

DeBerry, 50,501 (La. App. 2 Cir. 04/13/16), 194 So. 3d 657, writ denied,

16-0959 (La. 05/01/17), 219 So. 3d 332. Articulation of the factual basis for

a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical

compliance with its provisions. Where the record clearly shows an adequate

factual basis for the sentence imposed, remand is unnecessary even where

there has not been full compliance with La. C. Cr. P. art. 894.1. State v.

Lanclos, 419 So. 2d 475 (La. 1982); State v. DeBerry, supra.

The trial judge is given wide discretion in the imposition of sentences

within the statutory limits, and the sentence imposed should not be set aside

as excessive in the absence of a manifest abuse of his discretion. State v.

Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; State v. Diaz, 46,750 (La.

App. 2 Cir. 12/14/11), 81 So. 3d 228. On review, an appellate court does not
14

determine whether another sentence may have been more appropriate, but

whether the trial court abused its discretion. State v. Williams, supra; State

v. Free, 46,894 (La. App. 2 Cir. 01/25/12), 86 So. 3d 29.

Second, this court must determine whether the sentence is

constitutionally excessive. A sentence can be constitutionally excessive,

even when it falls within statutory guidelines if: (1) the punishment is so

grossly disproportionate to the severity of the crime that, when viewed in

light of the harm done to society, it shocks the sense of justice; or (2) it

serves no purpose other than to needlessly inflict pain and suffering. State v.

Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355 (La.

1980); State v. Weaver, 01-0467 (La. 01/15/02), 805 So. 2d 166; State v.

DeBerry, supra.

Whoever commits manslaughter shall be imprisoned at hard labor for

not more than 40 years. La. R.S. 14:31(B). Whoever commits second

degree murder shall be punished by life imprisonment at hard labor without

benefit of parole, probation, or suspension of sentence. La. R.S. 14:30.1.

Application of Law to Facts

Following review of the pre-sentence investigation report, the trial

court sentenced Defendant to 25 years’ imprisonment at hard labor. Because

Defendant was charged with second-degree murder, she was exposed to a

potential life sentence. Her conviction for the lesser offense of manslaughter

carries a maximum sentence of 40 years’ imprisonment, so the sentence of

22 years’ imprisonment is a mid-range sentence and she received a

significant benefit from the jury’s verdict.

The trial court considered the pre-sentence investigation, which

included a statement from Defendant, from the mother of Eugene, and from
15

a friend of Defendant. The trial court specifically noted that Defendant was

a first felony offender, with no significant criminal history, and that she was

employed at the time of the offense. The trial court further noted that

Defendant continued to maintain that the shooting was accidental, despite

the jury’s verdict.

Based upon the facts of this case, the fact that a firearm was used in

the commission of the offense, the severity of the injuries sustained by

Eugene, and in light of the harm done to Eugene’s family, the sentence

imposed does not shock the sense of justice, nor is it grossly

disproportionate to the offense for which Defendant was convicted. The

trial court was within its discretion in imposing the sentence, which is not

excessive. For the foregoing reasons, this assignment of error is without

merit.

CONCLUSION

For the aforementioned reasons, the defendant’s conviction and

sentence are affirmed.

16