State of Louisiana v. Lavonta L. Smith

Judgment rendered November 20, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 55,870-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

LAVONTA L. SMITH Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 386,081

Honorable Donald Edgar Hathaway, Jr., Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Peggy J. Sullivan

LAVONTA L. SMITH Pro Se

JAMES E. STEWART, SR. Counsel for Appellee
District Attorney

JASON WAYNE WALTMAN
REBECCA ARMAND EDWARDS
WILLIAM JACOB EDWARDS
Assistant District Attorneys

*****

Before STONE, STEPHENS, and ROBINSON, JJ.

ROBINSON, J.

Lavonta L. Smith (“Smith”) was found guilty as charged of one count

of attempted first degree murder and one count of aggravated flight from an

officer. Both a motion for new trial and a motion for post-verdict judgment

of acquittal were filed but denied without hearing. Smith was sentenced to

40 years at hard labor without benefit of parole, probation, or suspension of

sentence for the offense of attempted first degree murder, and to 5 years at

hard labor and a fine of $1,000 for the offense of aggravated flight from an

officer, to be served consecutively. A motion to reconsider sentence was

filed and denied without a hearing. Smith appeals his convictions and

sentences.

For the reasons set forth below, we AFFIRM the convictions and

sentences.

FACTS AND PROCEDURAL HISTORY

On October 29, 2021, Joshua Sass (“Sass”), then an officer for the

Shreveport Police Department, observed a vehicle run a red light and go

through a flashing red railroad guard crossing. Sass activated his overhead

lights and sirens and attempted to make a traffic stop, but the vehicle fled,

reaching speeds of 90 mph in a 40 mph speed zone, running multiple red

lights, and leaving the roadway. Three shots were fired by the driver during

the pursuit. One bullet hit the exterior of Sass’s vehicle, and the other struck

Sass’s windshield about an inch above the steering wheel. The second bullet

did not go through the windshield, but the impact caused glass shards to hit

Sass’s face making small cuts.

Sass continued pursuit of the car, joined by other officers. Upon

reaching a dead-end street, the suspect swerved, went into a ditch, and hit a

tree. The suspect then exited the vehicle and fled on foot. Officer Austin

Page observed the vehicle pursuit as well as the foot pursuit, and his body

camera recorded the foot pursuit. Cpl. Eric Coker (“Coker”) testified he saw

two officers go behind 145 West 78th, and as he was checking the area, he

went through a carport to see Smith lying on the ground next to the house.

Coker was unable to radio for assistance, but when Smith began to move

from the side of the house, Coker drew his pistol and gave Smith commands

to show his hands. Smith was taken into custody without further incident.

During the time of the pursuit, officers located a gun in the front yard

of 145 West 78th and a black backpack in the backyard, in the vicinity of

Smith’s apprehension. The backpack contained, among other things, one

5.56mm cartridge and bank cards in Smith’s name. Cpl. Amber Futch

(“Futch”) testified regarding the seized evidence. The gun, a 5.56 Stag

Arms firearm model 715, was processed for DNA, but the results were

unsuitable for comparison. Three 5.56mm expended cartridge casings were

recovered from the area where the shots were believed to have been fired.

The firearms investigator testified the three spent cartridges were fired from

the 5.56 Stag Arms firearm model 715 seized in the vicinity of Smith’s

apprehension. The caliber of the spent cartridges located was consistent

with those found in the magazine of the firearm. The 60-capacity magazine

contained 45 live cartridges when seized.

Louisiana State Trooper Jeff Brown, formerly with SPD, interviewed

Smith following his apprehension, which was recorded. Trooper Brown

testified that Smith admitted to driving the vehicle and when Smith was
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asked why he didn’t stop the vehicle, he stated that “the police were

dangerous.”

A search warrant was obtained for the vehicle Smith was driving.

There was damage to the driver’s side rear passenger door, which appeared

to be projectile defects below the window. Cpl. Futch testified the defects

were from left to right and consistent with someone firing out of the vehicle

toward the rear. An additional defect was found in the trunk and the

direction of travel appeared to be rear to front, but the officers denied

discharging any shots in the direction of the car they were pursuing. Glass

was in the driver’s seat and rear interior of the vehicle. Mail in Smith’s

name and a cell phone were also found in the vehicle.

Smith was charged by bill of information with one count of attempted

first degree murder and one count of aggravated flight from an officer on

December 7, 2021. The bill was amended on November 23, 2022, to

specifically allege the attempted first degree murder had been committed

“with a dangerous weapon, to wit, a firearm.” Prior to trial, a hearing was

conducted to determine if the statement provided by Smith was free and

voluntary. The trial court ruled the statement was admissible at trial. Jury

trial commenced on October 3, 2023, and Smith was found guilty as

charged. Smith did not testify or present any evidence at trial. Both a

motion for new trial and a motion for post-verdict judgment of acquittal

were filed but denied without hearing.

On November 6, 2023, Smith was sentenced to 40 years at hard labor

without benefit of parole, probation, or suspension of sentence for attempted

first degree murder, and to 5 years hard labor and a fine of $1,000 for

aggravated flight from an officer. The sentences imposed were ordered to be
3

served consecutively. The trial court also ordered that both offenses be

designated as crimes of violence. A motion to reconsider sentence was filed

and denied without a hearing. A pro se notice of appeal was filed prior to

sentencing and a motion for appeal was filed by counsel following

sentencing. An order was signed granting the appeal and appointing the

Louisiana Appellate Project to represent Smith for those purposes. Smith

seeks a review of his conviction and sentence.

DISCUSSION

Insufficiency of Evidence – Specific Intent

Smith argues that the State failed to meet its burden of proof to

convict him of attempted first degree murder, because in order to be found

guilty, Smith had to possess the specific intent to kill Sass and the evidence

does not support that conclusion. He argues that the evidence only

supported that he shot from one moving vehicle toward another and that he

was trying to get the police officer to back off allowing for escape, which is

not sufficient to establish the intent necessary for first degree murder.

The United States Supreme Court set out the standard by which

appellate courts are to review the sufficiency of the evidence in criminal

prosecutions in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed.

2d 560 (1979). The reviewing court is required to consider whether, after

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

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

beyond a reasonable doubt. Id.; State v. Matthews, 375 So.2d 1165 (La.

1979); State v. Tate, 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied,

541 U.S. 905, 124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Thornton,

47,598 (La. App. 2 Cir. 3/13/13), 111 So. 3d 1130. This standard is
4

legislatively embodied in La. C. Cr. P. art. 821 and is applicable in cases

involving both direct and circumstantial evidence. State v. Rhodes, 29,207

(La. App. 2 Cir. 1/22/97), 688 So. 2d 628, writ denied, 97-0753 (La.

9/26/97), 701 So. 2d 980; State v. Combs, 600 So. 2d 751 (La. App. 2

Cir.1992), writ denied, 604 So. 2d 973 (La.1992). All evidence, both

circumstantial and direct, must be sufficient under Jackson to satisfy a

rational juror that the defendant is guilty beyond a reasonable doubt.

Rhodes, supra.

In reviewing the sufficiency of the evidence, the appellate court may

not substitute its appreciation of the evidence for that of the factfinder. State

v. Pigford, 05-0477 (La. 2/22/06), 922 So. 2d 517. The reviewing court may

not assess the credibility of witnesses or reweigh the evidence. State v.

Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442. Rather, a jury’s decision to

accept or reject, in whole or in part, the testimony of a witness is accorded

great deference. Thornton, supra. The reviewing court may impinge on the

trier of fact’s discretion only to the extent necessary to guarantee

fundamental due process of law. State v. Sosa, 05-0213 (La. 1/19/06), 921

So. 2d 94.

La. R.S. 14:30(A)(2) provides:

First degree murder includes the killing of a human being when
the offender has the specific intent to kill or inflict great bodily
harm on a peace officer engaged in the performance of his lawful
duties, or when the specific intent to kill or inflict great bodily
harm is directly related to the victim's status as a peace officer.

The term “peace officer” includes any “local or state policeman.” La. R.S.

14:30(B)(1). Further, La. R.S. 14:27(A) provides:

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
5

offense intended; and it shall be immaterial whether, under the
circumstances, he would have actually accomplished his
purpose.

Specific criminal intent is the state of mind that exists when the

circumstances indicate that the offender actively desired the prescribed

criminal consequences to follow his act or failure to act. La. R.S. 14:10(1).

Proof of specific intent to kill and the commission of an overt act tending

toward the accomplishment of that goal is necessary to convict of attempted

first degree murder. State v. Hust, 51,015 (La. App. 2 Cir. 1/11/17), 214 So.

3d 174, writ denied, 17-0352 (La. 11/17/17), 229 So. 3d 928. It is not

sufficient to intend to cause great bodily harm, in order to convict a

defendant of attempted murder. State v. Butler, 322 So. 2d 189 (La. 1975);

State v. Apodaca, 50,113 (La. App. 2 Cir. 9/30/15), 180 So. 3d 465.

There are several scenarios in which specific intent may be inferred

from a defendant’s actions. Specific intent can be inferred from the

intentional use of a deadly weapon. State v. Devillier, 17-572 (La. App. 5

Cir. 10/17/18), 258 So. 3d 230, writ denied, 18-01855 (La. 10/8/19), 280 So.

3d 589. Specific intent to kill may be inferred from a defendant’s act of

pointing a gun and firing it at a person. Id.; Hust, supra; Apodaca, supra. In

Apodaca, supra, the defendant was found to have specific intent to support

attempted first degree murder by pointing and firing his shotgun at police

officers as they approached in their patrol cars. Moreover, firing multiple

shots at a victim is indicative of “a defendant’s culpable state of mind and

satisfies the specific intent to kill requirement for murder.” Hust, supra. In

addition, flight and attempt to avoid apprehension are circumstances from

which a trier of fact may infer a guilty conscience. State v. Trammell,

6

46,725 (La. App. 2 Cir. 11/9/11), 78 So. 3d 205, writ denied, 12-0053 (La.

4/20/12), 85 So. 3d 1269.

The trier of fact determines whether the requisite intent is present in a

case. On review of that determination, the appellate court reviews the

evidence in the light most favorable to the prosecution to determine if

sufficient to prove the elements of the offense beyond a reasonable doubt.

State v. Thompson, 39,454, (La. App. 2 Cir. 3/2/05), 894 So. 2d 1268.

Smith argues that the State failed to prove he possessed the requisite

intent to kill Sass. He claims that the facts do not support a finding of

specific intent, pointing out that only three shots were fired, leaving 46

cartridges in the magazine, and there was no testimony that he possessed any

particular skill in the use of firearms, noting that one projectile actually hit

his own vehicle.

The State claims that, viewed under the Jackson standard, the

evidence was sufficient to convict Smith. It asserts out that the jury heard

testimony and observed evidence that Smith fired multiple shots toward

Sass’s vehicle, one of which was directly in front of his face. Sass further

testified that the shots were not fired while the vehicles were traveling at a

high rate of speed, rather, Smith had actually slowed down to roughly 40 –

45 mph at the time with Sass directly behind him. The State also noted that

when Smith was questioned regarding the shooting, he stated that he felt the

police were dangerous.

It is clear from the record that Smith fired multiple shots in the

direction of Sass’s vehicle during Sass’s vehicular pursuit of Smith. This

amply supports the trial court’s finding the Smith possessed the specific

intent to kill Sass.
7

Excessive Sentence

Smith argues that the trial court’s imposition of a near maximum

sentence for attempted first degree murder, to be served consecutively with a

maximum sentence for aggravated flight, is an abuse of discretion because it

is unconstitutionally harsh and excessive given the facts and circumstances

of the case and it contributes nothing to the ends of justice. He asserts that

there is nothing in the record to support a conclusion that he is the worst

kind of offender or that this is the worst kind of offense.

Smith asserts that the trial court did not request a presentence

investigation and did not reference any personal information about Smith,

although a letter was provided by the woman who had raised Smith that

provided information about his personal life and upbringing. He notes that

the trial court did not mention his personal life, employment history, or his

criminal history; instead, it concentrated on the fact that a gun was used in

the commission of this offense, listing several factors that all relate to that

particular issue. In addition, Smith argues that, even though accepting

responsibility may be a mitigating factor, the trial court inappropriately

considered Smith’s failure to take responsibility as an aggravating factor

because it contradicts his constitutional right to a trial. Smith further claims

that nothing in the record supports a finding that his sentences should be

served consecutively given that the offenses arose out of the same

transaction, and the trial did not specify a reason for the imposition of

consecutive sentences.

The State first argues that Smith should be barred from presenting

certain issues on appeal that were not raised in his motion to reconsider

sentence. In Smith’s motion, he asserted as grounds for reconsideration that
8

his sentence was “excessive considering the circumstances of the offense,

the failure of the Court to adequately consider mitigating factors, and by

failing to state adequate grounds for the imposition of the sentence.”

However, Smith argues on appeal that: (1) the aggravating circumstances

identified by the trial court all relate to his use of a firearm; (2) the trial court

should not have considered Smith’s failure to take responsibility for his

actions as an aggravating factor and that such consideration penalized him

for exercising his constitutional right to a trial; and (3) the trial court’s

imposition of consecutive sentences and failure to make findings or state

reasons for ordering that the sentences run consecutively.

The State refers to La. C. Cr. P. art. 881.1(E):

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.

This provision “precludes a defendant from presenting sentencing arguments

to the court of appeal which were not previously presented to the trial court.”

State v. Horton, 55,468 (La. App. 2 Cir. 2/28/24), 380 So. 3d 841, 850, writ

denied, 24-00365 (La. 10/1/24), 2024 WL 4355002; State v. Durham,

53,922 (La. App. 2 Cir. 6/30/21), 321 So. 3d 525. The State argues that, by

not raising these issues on his motion to reconsider sentence, Smith has

waived entitlement to appellate review of his sentence on these grounds.

Horton, supra; Durham, supra.

We agree with the State that Smith is barred from making certain

arguments on appeal which were not previously presented to the trial court.

Smith clearly failed to make the arguments in his motion to reconsider

9

sentence that all the aggravating circumstances identified by the trial court

related to his use of a firearm, and that his failure to take responsibility for

his actions should not have been considered as an aggravating factor.

Therefore, we find that Smith waived his entitlement to review those issues

in determining the excessiveness of his sentence. However, we find that

Smith’s argument regarding the trial court’s imposition of consecutive

sentences and failure to make findings or state reasons therefor was

preserved for appeal. These arguments were encompassed in the argument

in his motion to reconsider sentence that the sentence was “excessive … by

failing to state adequate grounds for the imposition of the sentence.”

Appellate courts employ a two-prong test when reviewing an

excessive sentence claim: (1) the trial record must demonstrate that the trial

court complied with the guidelines in La. C. Cr. P. art. 894.1 (list of

sentencing factors); and (2) the appellate court must determine if the

sentence is constitutionally excessive. State v. Ladd, 14-1611 (La. 3/27/15),

164 So. 3d 184 (per curiam).

First, the record must show that the trial court adequately considered

the guidelines of La. C. Cr. P. art. 894.1. State v. Smith, 433 So. 2d 688 (La.

1983); State v. Taylor, 54,875 (La. App. 2 Cir. 1/11/23), 354 So. 3d 808,

writ denied, 23-00297 (La. 11/8/23), 373 So. 3d 297. Articulation of the

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

mechanical compliance with its provisions. State v. Duncan, 53,194 (La.

App. 2 Cir. 1/15/20), 290 So. 3d 251. 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, 50,501 (La. App. 2
10

Cir. 4/13/16), 194 So. 3d 657, writ denied, 16-0959 (La. 5/1/17), 219 So. 3d

332. Because the trial court is in the best position to consider the

aggravating and mitigating circumstances of the case, it has broad discretion

in sentencing. Taylor, supra. Important elements to be considered are the

defendant’s personal history (age, family ties, marital status, health,

employment record), prior criminal record, seriousness of the offense, and

likelihood of rehabilitation. Id.; State v. Parfait, 52,857 (La. App. 2 Cir.

8/14/19), 278 So. 3d 455, writ denied, 19-01659 (La. 12/10/19), 285 So. 3d

489; State v. Jones, 398 So. 2d 1049 (La. 1981); DeBerry, supra. However,

there is no requirement that specific matters be given particular weight at

sentencing. DeBerry, supra; State v. Shumaker, 41,547 (La. App. 2 Cir.

12/13/06), 945 So. 2d 277, writ denied, 07-0144 (La. 9/28/07), 964 So. 2d

351; State v. Jackson, 48,534 (La. App. 2 Cir. 1/15/14), 130 So. 3d 993.

The court may direct consecutive sentences, giving due consideration

to the factors outlined in La. C. Cr. P. art. 894.1 and a consideration of

whether the defendant poses an unusual risk of harm. State v. English, 582

So. 2d 1358 (La. App. 2 Cir. 1991), writ denied, 584 So. 2d 1172 (La. 1991).

La. C. Cr. P. art. 883 provides:

When the convictions for two or more offenses are based on the
same act or transaction, or are part of a common scheme or plan,
the terms of imprisonment shall be concurrent unless there is a
specific directive they be served consecutively.

The Louisiana Supreme Court in State v. Walker, 00-3200 (La. 10/12/01),

799 So. 2d 461, explained:

Although La. C. Cr. P. art. 883 favors imposition of concurrent
sentences for crimes committed as part of the same transaction
or series of transactions, a trial court retains the discretion to
impose consecutive penalties in cases in which the offender’s
past criminality or other circumstances in his background or in

11

the commission of the crimes justify treating him as a grave risk
to the safety of the community.

The second prong to reviewing an excessive sentence claim is the

court’s determination of whether the sentence is constitutionally excessive in

violation of La. Const. art. I, §20. A sentence is constitutionally excessive if

it is grossly out of proportion to the seriousness of the offense or nothing

more than a purposeless and needless infliction of pain and suffering. State

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

(La. 1980); State v. Bell, 53,712 (La. App. 2 Cir. 1/13/21), 310 So. 3d 307;

State v. Jackson, 51,575 (La. App. 2 Cir. 9/27/17), 244 So. 3d 764; Smith,

supra; Taylor, supra. A sentence is considered grossly disproportionate if,

when the crime and punishment are viewed in light of the harm done to

society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.

1/15/02), 805 So. 2d 166; DeBerry, supra; State v. Modisette, 50,846 (La.

App. 2 Cir. 9/28/16), 207 So. 3d 1108. As a general rule, maximum or near-

maximum sentences are reserved for the worst offenders and the worst

offenses. State v. Cozzetto, 07-2031 (La. 2/15/08), 974 So. 2d 665; State v.

Gibson, 54,400 (La. App. 2 Cir. 5/25/22), 338 So. 3d 1260, writ denied, 22-

00978 (La. 3/7/23), 356 So. 3d 1053.

Trial courts have wide discretion in the imposition of sentences within

the statutory limits and such sentences should not be set aside as excessive in

the absence of a manifest abuse of that discretion. State v. Williams, 03-

3514 (La. 12/13/04), 893 So. 2d 7; State v. Trotter, 54,496 (La. App. 2 Cir.

6/29/22), 342 So. 3d 1116; Taylor, supra. The issue for the reviewing court

is whether the trial court abused its discretion, not whether some other

sentence may have been more appropriate. Williams, supra; Taylor, supra;

12

Bell, supra. There must be manifest abuse of the wide sentencing discretion

afforded the trial court to sentence within statutory limits. State v. Mandigo,

48,801 (La. App. 2 Cir. 2/26/14), 136 So. 3d 292, writ denied, 14-0630 (La.

10/24/14), 151 So. 3d 600.

The trial court properly recited the facts of the case established at trial

and the applicable sentencing ranges. The court found the three factors

under La. C. Cr. P. art. 894.1(A) applicable to Smith – that there was an

undue risk that Smith would commit another crime during a period of a

suspended or probated sentence, he was in need of correctional treatment in

a custodial environment, and a lesser sentence would deprecate the

seriousness of the crimes.

The trial court considered both aggravating and mitigating factors

under La. C. Cr. P. art. 894.1(B). It noted that Smith knowingly created a

risk of death or great bodily harm to more than one person. La. C. Cr. P. art.

894.1(B)(5). The court also noted that Smith was a danger to everyone on

the road during the car chase because he was travelling at high rates of

speed, ran stop signs and traffic lights, and left the roadway and lanes of

travel, and it was fortunate that no one was seriously injured as a result of

his actions. The court found that Smith used actual violence in committing

the offense and that he used a dangerous weapon. La. C. Cr. P. art.

894.1(B)(6) and (10). The court also found La. C. Cr. P. art. 894.1(B)(18)

and (19) to be aggravating factors.

The trial court found that no mitigating factors applied. It noted that

there was no provocation for Smith’s firing a weapon multiple times at a

police officer. Although personal history was not referenced by the court as

a mitigating factor, the record indicates that the letter submitted on Smith’s
13

behalf from the woman who raised him was received and reviewed by the

court. Although Smith claims that the trial court did not request a

presentence investigation, the record shows that the defense itself never

requested the PSI or any other information that may indicate mitigating

factors.

Smith received a 40-year sentence for his conviction of attempted first

degree murder, which was well within the statutory limits of imprisonment

for not less than 20 years, nor more than 50 years, without benefits. His 5-

year sentence plus a $1,000 fine for aggravated flight from an officer was

the maximum term of imprisonment,1 though less than the maximum

allowable fine. Notably, even served consecutively, Smith’s total

imprisonment is still less than the maximum allowable sentence for

attempted first degree murder. The trial court adequately considered the

aggravating and mitigating factors and the sentences are well supported by

the record, especially given the dangerous nature of the crimes, not only

risking the death of a peace officer engaged in his duties to serve and protect

the community, but to the people who could have easily fallen victim to

Smith’s erratic and thoughtless flight from the officers. Smith’s consecutive

sentences are not constitutionally excessive because they are not grossly

disproportionate to the severity of the offense and are not shocking to the

sense of justice or a needless infliction of pain and suffering.

CONCLUSION

For the reasons stated hereinabove, Smith’s convictions and sentences

for are hereby AFFIRMED.

1
La. R.S. 14:108.1(C) was amended following the defendant’s conviction, to provide for an increased
sentencing range of zero to ten years.
14