State of Louisiana v. Erik A. Shepherd

Judgment rendered February 26, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 56,075-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

ERIK A. SHEPHERD Appellant

*****

Appealed from the
Second Judicial District Court for the
Parish of Claiborne, Louisiana
Trial Court No. 34,403

Honorable Walter E. May, Jr., Judge

*****

WEEMS, SCHIMPF, HAINES & MOORE Counsel for Appellant
By: Kenneth P. Haines

RONALD J. MICIOTTO

DANIEL W. NEWELL Counsel for Appellee
District Attorney

JAMES H. COLVIN, JR.
P. NELSON SMITH, JR.
Assistant District Attorneys

*****

Before STONE, HUNTER, and ELLENDER, JJ.

ELLENDER, J.

Erik Shepherd appeals his conviction, after a bench trial, of

aggravated assault with a firearm, La. R.S. 14:37.4, and sentence of five

years at hard labor (all but 30 months suspended) plus a fine of $1,000, with

six months in default. For the reasons expressed, we affirm the conviction,

affirm the sentence in part, vacate the sentence in part, and remand for

compliance with La. C. Cr. P. art. 875.1.

FACTUAL BACKGROUND

The incident occurred in the late afternoon of March 2, 2023. Larry

Ford, a wood hauler from Haynesville, was clearing trees from a tract across

the road from a convenience store near Athens, Louisiana. Ford called the

Claiborne Parish Sheriff’s Office (“CPSO”) to report a disturbance involving

a firearm.

Dep. Brian Davis, of CPSO, arrived shortly before 5:00 pm, equipped

with a body cam; the recording was introduced in evidence and viewed

multiple times at trial. On the video, Ford said he was wrapping up for the

day when a person he did not know (later identified as Shepherd) came onto

the property, talked “sh*t” to him, acted belligerent, and accused him of not

knowing what a pink flag meant.1 Shepherd thought Ford’s crew had

dropped several trees onto his (Shepherd’s) property, and Shepherd was

unhappy about it. Ford replied that if anything was wrong, he would “fix it.”

After they exchanged words, the man pulled a revolver from his right pants

1
The state offered no evidence regarding what a pink flag means. From context,
it seems to be a temporary or provisional boundary marking, less permanent than spray
painting on tree trunks.

pocket, pointed it at Ford’s stomach, and said, “I’ve got something for you.”

Ford backed up until he could jump into his truck and leave the scene. Ford

initially described the gun as a “gray and black .38”; later, he said the stock

was black and the metal part gray; then, the stock was black and the barrel

grey; still later, he said he “thought” there was a gold emblem on the side of

the stock.

On the video, Dep. Davis then talked to Shepherd, who had already

been stopped by Athens Police Chief Keith Watkins. Shepherd said Ford’s

crew had been logging, the line was flagged, but the men had dropped trees

over his property. Shepherd said Ford “went ballistic,” walked over to his

(Ford’s) truck, and reached inside; at this point, Shepherd “showed” him a

gun, but did not pull it out. Shepherd insisted only the handle was showing:

“It never left my pocket.” Shepherd described his gun as a Charter Arms .38

revolver with a black handle, silver barrel, and no gold emblem.

Dep. Davis testified that even though Ford was very agitated and

Shepherd quite calm, he was impressed that Ford had described the gun “to a

T,” which he could not have done unless Shepherd pulled it on him. He

placed Shepherd under arrest.

Ford testified that Shepherd, whom he did not know, came onto their

job site, pounded the hood of his crew’s truck, and told them to stop

working; Ford walked over to see what the problem was. Shepherd instantly

called him a “m*therf*cker” and said, “I’m here to show you what pink

flagging is.” Ford offered to “fix” anything that was wrong, but Shepherd

responded, “You don’t get it.” After a few more exchanges in this vein, the

two men took a few steps toward each other, when Shepherd “come out [sic]

with his gun” and pointed it at Ford’s stomach, saying, “I got something for
2

you.” Ford testified it was a .38 revolver with a black stock and silver

barrel, similar to one he (Ford) had used before, and he had a clear,

unobstructed view of it. He admitted that, on the video, he mentioned a gold

emblem, which Shepherd’s gun did not have. However, he said he might

have been seeing “the end of the bullets,” the “gold tips on the bullets,” as

close as they were to him.

On cross-examination, Ford admitted he had said, on the video, the

stock was gray, but he was sure he told Dep. Davis it was black; he insisted

that he correctly identified the gun.

The state called two more witnesses, Smith and Haynes, employees of

Ford’s who had been on the job site when Shepherd arrived. They

confirmed that he walked up, pounded on their truck, and demanded to know

who was in charge, but they drove away before his encounter with Ford

occurred.

Athens Police Chief Watkins, who had known Shepherd for years,

testified for the defense that Shepherd called him to report “crazy stuff”

going on. Chief Watkins reached the scene and found Ford “hooping [sic]

and hollering” that the man “down there” had a gun, a “black and gold

pistol, revolver.” Hearing this, Chief Watkins glanced down the road and

saw what he thought was Shepherd’s truck; he rode to it and told Shepherd

to wait until the deputy arrived. After this, his conversation with Shepherd

was recorded on Dep. Davis’s body cam. Chief Watkins recalled Shepherd

admitting he grabbed the gun by the handle and pulled it out just enough for

Ford to see it, but not all the way. On cross-examination, Chief Watkins

admitted he called Dep. Davis and offered to pay Shepherd’s bond so he

3

would not lose his job at the railroad. He admitted, nonetheless, that

Shepherd may have done what he was accused of.

Shepherd called two witnesses, Rhodes and Jackson, who had worked

with him at the railroad and said he had a reputation for integrity and

honesty.

Shepherd took the stand in his own defense. He introduced photos

showing the west line of his property where Ford’s crew was “dropping

every tree over on me”; he went to tell them about it. He arrived, seeing

Ford’s men leaving in a white truck; he “tapped” on the window and was

told Ford was in charge. According to Shepherd, he asked if Ford knew

what a pink ribbon means; Ford replied they would move anything off his

property, “if you ask nicely.” Shepherd admitted he mocked this, asking,

“Nicely?” Ford then called him a “r*dn*ck m*therf*cker” and “dumb*ss,”

asked, “Do you want some sh*t?,” walked over to his truck, and raised his

fist. Shepherd admitted he put his hand on his gun, which was in his pants

pocket, but only to let Ford know he was armed. He insisted he never took it

out of the pocket or pointed it at Ford. After Ford left, Shepherd put the gun

in the truck and called Chief Watson to report a “situation.”

On cross-examination, Shepherd denied the incident with the trees

made him mad, but admitted he jumped in his truck, armed with the gun, and

drove over to confront the men. He also admitted Ford did not have a gun.

On rebuttal, the state recalled Ford, who insisted he never gave any

description of the gun to Chief Watkins.

ACTION OF THE DISTRICT COURT

The court ruled orally that this was not just a “he said, she said” case,

but the witnesses’ own “words and contradictions” made it much more than
4

a 50/50 proposition. The court found Ford credible and “completely sound”

in saying he was in reasonable apprehension of receiving a battery, and his

ability to describe the gun was “extremely persuasive.” It found Shepherd

not credible in his claims that he never took the gun out of his pocket and he

thought Ford was reaching in his own truck to grab a weapon. In fact, the

court found, Ford was backing away from Shepherd when the gun was

drawn. The court found Shepherd guilty as charged.

At sentencing, the court noted the PSI incorrectly stated Shepherd had

pled guilty but accepted its view that he showed no penitence for his

conduct; there was a lack of appreciation for the seriousness of the crime and

its consequences. The court listed the Art. 894.1 factors, finding a

suspended sentence would be inappropriate. Admitting it had “never

agonized over a sentence like this,” it gave Shepherd five years at hard labor,

with all but 30 months (2½ years) suspended, a fine of $1,000 plus costs, or

60 days in default, and the usual conditions of probation.

Shepherd appealed, raising two assignments of error.

DISCUSSION

Sufficiency of the Evidence

By his first assignment of error, Shepherd urges the state presented

insufficient evidence to prove the crime of aggravated assault with a firearm.

He concedes the standard of review, Jackson v. Virginia, 443 U.S. 307, 99 S.

Ct. 2781 (1979), and the court’s discretion as to credibility, State v. Casey,

99-0023 (La. 1/26/00), 775 So. 2d 1022, but argues that internal

contradiction or irreconcilable conflict with physical evidence will warrant

discrediting a witness, State v. Lambert, 52,004 (La. App. 2 Cir. 5/23/18),

248 So. 3d 621.
5

He raises two arguments. He first contends that, owing to massive

inconsistencies in Ford’s testimony, no rational trier of fact could have

accepted his claim that Shepherd actually took the gun out of his pocket. He

carefully and meticulously recounts the five different accounts Ford gave on

video at the scene, the one he gave to Chief Watkins, and the one he gave at

trial. He also cites Ford’s inaccurate description of his assailant as “clean-

shaven.” All this, he submits, demolished Ford’s credibility. He concludes

that on this conflicting evidence, no rational factfinder could conclude that

Ford described the gun “to a T” or that Shepherd took it out of his pocket.

The second argument is the state failed to prove Ford was in

reasonable apprehension of receiving a battery, an element of R.S. 14:37.4.

He contends Ford was highly agitated, angry that Shepherd was trespassing

on his job site, and admitted he “prayed” he had a gun in his own truck.

Without proof of this element, he concludes, the conviction cannot stand.

The standard of appellate review for a sufficiency of the evidence

claim in a criminal case 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. Jackson v.

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

denied, 541 U.S. 905, 124 S. Ct. 1604 (2004). The Jackson standard, now

legislatively embodied in La. C. Cr. P. art. 821, does not provide the

appellate court with a means to substitute its own appreciation of the

evidence for that of the factfinder. State v. Pigford, 05-0477 (La. 2/22/06),

922 So. 2d 517; State v. Galloway, 55,591 (La. App. 2 Cir. 4/10/24), 384 So.

3d 1167.

6

Where there is conflicting testimony concerning factual matters, the

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

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

Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 2211 (1982); State v. Galloway,

supra. The appellate court neither assesses the credibility of witnesses nor

reweighs evidence. State v. Kelly, 15-0484 (La. 6/29/16), 195 So. 3d 449;

State v. Galloway, supra. Rather, the reviewing court affords great

deference to the factfinder’s decision to accept or reject the testimony of a

witness in whole or in part. State v. Robinson, 02-1869 (La. 4/14/04), 874

So. 2d 66, cert. denied, 543 U.S. 1023, 125 S. Ct. 658 (2004); State v.

Galloway, supra. In the absence of internal contradiction or irreconcilable

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

the trier of fact, is sufficient to support a factual conclusion. State v. Reed,

14-1980 (La. 9/7/16), 200 So. 3d 291, cert. denied, 580 U.S. 1166, 137 S.

Ct. 787 (2017); State v. Jones, 55,464 (La. App. 2 Cir. 1/10/24), 379 So. 3d

828, writ denied, 24-00194 (La. 10/8/24), 394 So. 3d 267.

Aggravated assault with a firearm is defined as “an assault committed

with a firearm.” La. R.S. 14:37.4. Assault is defined as “an attempt to

commit a battery, or the intentional placing of another in reasonable

apprehension of receiving a battery.” La. R.S. 14:36. To convict a

defendant of aggravated assault with a firearm, the state must prove the

defendant made an attempt to commit a battery, or intentionally placed the

victim in reasonable apprehension of receiving a battery by the discharge of

a firearm. State v. Payne, 52,310 (La. App. 2 Cir. 1/16/19), 262 So. 3d 498,

and citations therein. An actual discharge of the firearm is not an element of

7

the offense. Id.; State in Interest of CB, 52,245 (La. App. 2 Cir. 6/27/18),

251 So. 3d 562.

In brief, Shepherd has done an exemplary job of cataloguing Ford’s

descriptions of the gun: five of them to Dep. Davis on the body cam, one at

trial, and one to Chief Watkins at the scene (although Ford denied giving a

description to Chief Watkins). While these are not completely uniform, they

are predominantly consistent, always saying the barrel was gray or silver and

mostly saying the stock was black. The only anomaly was the mention of

the gold emblem, but this was plausibly explained as seeing the “end of the

bullets.” On this record, the district court did not abuse its discretion in

finding Ford gave a convincing description of the revolver, a description that

would not have been possible had Shepherd not pulled the gun on him.

The record also provides an adequate basis for the district court to

disbelieve Shepherd’s more benign version of the encounter. On the body

cam, he never mentioned showing “only part” of the gun to Ford, or that

Ford raised a fist at him, but he brought up these exculpatory facts only at

trial. He admitted bringing the gun to the site, having it in his right pants

pocket, and putting his hand on it, facts that conform to Ford’s testimony.

The body cam shows Shepherd making light of the whole incident. Given

the body cam and the parties’ testimony, the district court was entitled to

accept Ford’s version that the gun was drawn, and to reject Shepherd’s that

it wasn’t.

The record also supports the district court’s finding that Ford was in

reasonable apprehension of receiving a battery. Ford testified he was afraid

that Shepherd would shoot him. Shepherd concedes that, on the body cam,

Ford was highly agitated, a reaction that might normally flow from having a
8

gun drawn and pointed at him. In short, the evidence is sufficient to show

Shepherd intentionally placed Ford in reasonable apprehension of receiving

a battery by the discharge of a firearm. This assignment of error lacks merit.

At oral argument, counsel additionally argued that Shepherd could

have been charged under two separate offenses: aggravated assault with a

firearm, R.S. 14:37.4, carrying up to 10 years at hard labor; or aggravated

assault, R.S. 14:37 (an assault committed with a dangerous weapon, which

could include a firearm), carrying only up to six months. The thrust of the

argument is that the evidence more fairly met the definition of the latter,

lesser offense, so he should have been convicted for that crime. The district

attorney has broad discretion in both the institution and handling of criminal

prosecutions. La. Const. art. V, § 26(B); La. C. Cr. P. art. 61; La. R.S.

16:1(B). When conduct is made criminal under one section of the revised

statutes and is also criminal under some other statute, the prosecution may

proceed under either provision, at the discretion of the district attorney. La.

R.S. 14:4(2). This court has found no error when the district attorney

elected to charge a defendant with illegal use of a weapon during a crime of

violence, La. R.S. 14:94, when the facts would have also supported

prosecution for aggravated battery, La. R.S. 14:34, which carries a lesser

penalty. State v. Ruffins, 41,033 (La. App. 2 Cir. 9/20/06), 940 So. 2d 45,

writ denied, 06-2779 (La. 6/22/07), 959 So. 2d 494. The same rationale

applies here.

This assignment of error lacks merit.

Excessive Sentence

By his second assignment of error, Shepherd urges the sentence

imposed is unconstitutionally excessive. He cites the sentencing factors of
9

La. C. Cr. P. art. 894.1 and the guarantee against cruel and unusual

punishment, La. Const. art. I, § 20, and concedes the sentence of five years

“at first glance appears to be well within” the court’s discretion. He

contends, however: (1) no battery occurred, (2) no shots were fired, and (3)

the weapon was not even cocked, so this is nowhere near midrange for the

gravity of the offense. He argues his sentence is similar to the four years

imposed in State v. Davis, 22-548 (La. App. 3 Cir. 2/1/23), 355 So. 3d 742,

and the five years in State v. Brown, 17-124 (La. App. 4 Cir. 12/12/17), 234

So. 3d 978, writ denied, 18-0100 (La. 6/15/18), 257 So. 3d 678, but those

cases involved much more serious conduct. He also cites his completely

clean criminal history, his long, productive life in Claiborne Parish, and

submits there is nothing to show he would be “rehabilitated” by spending

time in jail. He concludes that even if the conviction is affirmed, the

sentence should be reduced or entirely suspended.

An appellate court uses a two-prong test to review sentences for

excessiveness. First, the court must find that the sentencing court took

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

sentencing court is not required to list every aggravating or mitigating

circumstance, so long as it adequately considered them in particularizing the

sentence to the defendant. State v. Smith, 433 So. 2d 688 (La. 1983). The

goal of Art. 894.1 is to articulate an adequate factual basis for the sentence,

not to achieve rigid or mechanical compliance with its provisions. State v.

Lanclos, 419 So. 2d 475 (La. 1982). There is no requirement that any

specific factor be given any particular weight at sentencing. State v. Taves,

03-0518 (La. 12/3/03), 861 So. 2d 144.

10

The district court listed several factors working to Shepherd’s

detriment: this was a crime of violence; Shepherd showed a lack of

appreciation for the offense and its consequences, particularly by giving a

video statement laced with laughing and vulgarity, and evasive testimony at

trial; he seemed to think there would be no charges because the evidence

was “he said, she said”; there was some economic loss, as Ford was unable

to complete the job that day and now avoids going near Homer to work; a

dangerous weapon was involved; Shepherd must have contemplated the

possibility of serious harm; and there was some provocation, but no

justification. The court also mentioned factors in Shepherd’s favor: he had

no prior convictions; his conduct showed no deliberate cruelty; the victim

was not particularly vulnerable and suffered no physical injury; Shepherd

was otherwise law-abiding and such misconduct was unlikely to recur. We

find the court adequately complied with Art. 894.1.

The second prong is review for constitutional excessiveness. A

sentence violates La. Const. art. I, § 20, 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). A sentence is deemed grossly disproportionate if, when 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.

The sentencing court has wide discretion in imposing a sentence within

statutory limits, and such a sentence will not be set aside as excessive in the

absence of manifest abuse of that discretion. State v. Williams, 03-3514 (La.

12/13/04), 893 So. 2d 7. The reviewing court may consider a comparison of

11

the punishment in the appealed case with sentences imposed for similar

crimes. State v. Fruge, 14-1172 (La. 10/14/15), 179 So. 3d 579.

We find no abuse of the district court’s vast discretion. Although the

midrange sentence appears severe for a first-time offender and an offense

that resulted in no injuries, much of the argument is premised on Shepherd’s

narrative: he approached Ford and his men respectfully, Ford taunted and

threatened him, and he never actually drew the revolver or pointed it at Ford

but only “showed” it. The court obviously discredited this version in favor

of Ford’s: Shepherd approached belligerently, pounded on the hood of the

truck, baited Ford into a heated argument, and pulled a revolver in an effort

to intimidate. Viewed in this perspective, the conduct is similar to that

reported in State v. Davis, supra, which affirmed a sentence of four years.

Shepherd’s sentence of five years, with 2½ years suspended, does not seem

disproportionate.

This assignment of error lacks merit.

Error Patent Review

Since August 1, 2022, the law has required that, prior to ordering the

imposition or enforcement of any financial obligation, “the court shall

conduct a hearing to determine whether payment in full of the aggregate

amount of all the financial obligations to be imposed upon the defendant

would cause substantial financial hardship to the defendant or his

dependents.” La. C. Cr. P. art. 875.1 (C)(1); State v. Jamison, 55,361 (La.

App. 2 Cir. 11/29/23), 375 So. 3d 619; State v. Adams, 55,696 (La. App. 2

Cir. 5/22/24), 387 So. 3d 914. The court sentenced Shepherd, on April 4,

2024, to a term of imprisonment and a fine of $1,000 with 60 days in default

for nonpayment. However, the record does not show that the court
12

conducted such a hearing or that Shepherd waived it. We note that both at

trial and on appeal Shepherd has been represented by retained counsel and

does not appear to be indigent. However, Art. 875.1 refers to the imposition

of “any financial obligation” and uses the mandatory “shall.” We are,

therefore, constrained to vacate the portion of the sentence that imposed the

fine with default time and remand for compliance with Art. 875. State v.

Jamison, supra; State v. Adams, supra.

CONCLUSION

For the reasons expressed, we affirm the conviction, affirm the

sentence in part, vacate the sentence in part, and remand for compliance with

La. C. Cr. P. art. 875.1.

CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART

AND VACATED IN PART; CASE REMANDED.

13