State of Louisiana v. David Ray Boswell

Judgment rendered April 9, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 56,200-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

DAVID RAY BOSWELL Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 375,445

Honorable Ramona L. Emanuel, Judge

*****

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

DAVID RAY BOSWELL Pro Se

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

FERNANDO BERNARD GRIDER, JR.
SENAE DENEAL HALL
ERIC MATTHEW WHITEHEAD
Assistant District Attorneys

*****

Before STONE, THOMPSON, and HUNTER, JJ.

STONE, J.

This appeal arises from the First Judicial District Court, the Honorable

Ramona Emanuel presiding. On May 7, 2020, David Ray Boswell

(“Boswell”) was charged by a bill of information with several counts of

burglary and one count of illegal use of weapons or dangerous

instrumentalities. At the conclusion of his jury trial, Boswell was found

guilty of eight counts of simple burglary, one count of illegal use of a

weapon, and attempted aggravated burglary. On December 14, 2023,

Boswell was sentenced on all convictions to concurrent terms of

imprisonment of fifteen years. This appeal followed.

FACTS

On May 4, 2020, Shreveport Police Officer Robert Brice (“Ofr.

Brice”) was off duty when he was awakened by his wife at approximately

3:00 a.m. informing him of a “couple of guys” walking up their driveway.

Ofr. Brice, after instructing his wife to dial 9-1-1 and arming himself with

his service weapon, went outside to investigate the intrusion. In his garage,

Ofr. Brice saw and apprehended Brendan “Slade” Hanshew (“Hanshew”) —

later determined to be Boswell’s co-arrestee. After getting Hanshew to the

ground, Ofr. Brice saw another man — later identified as Boswell — step

into the driveway in front of his home and immediately fire a gun. After

firing, Boswell stepped back around the corner of the house and yelled for

Hanshew to flee with him.

Upon hearing the gunshots, Ofr. Brice’s neighbor (also an off-duty

police officer) came to assist in detaining Hanshew. At this point, Boswell

had already fled on foot. With Hanshew detained, Ofr. Brice began

inspecting his property. He discovered some of his belongings — that he

maintained in his garage — inside a pickup truck that was parked in front of

his home. At some point after the incident, Ofr. Brice saw Boswell across

the street from his home at a church wearing an orange shirt and carrying a

backpack. This description was provided to the police, who had arrived at

the scene and begun their investigation. Boswell was later apprehended near

the church. Ofr. Brice subsequently identified Boswell as the man who shot

at him.

During a separate incident at another location, a Shreve City Car Care

employee, Tobey Meeler (“Meeler”), arrived at work to find vehicles —

including his own — broken into with items missing from them. From his

vehicle (a 2001 Ford F-150 King Ranch), Meeler noticed broken windows

and his antenna, two rear wheels, side-by-side tires, and tailgate missing.

Also missing were stereo speakers and tailgate from a GMC Sierra,

belonging to a Robert Bookout. In yet another incident in Shreveport,

Samuel Halphen — like Meeler — arrived at his workplace (BHP) to find

that five trucks and a Ford Escape had been broken into; windshields and

windows were broken, tailgates had been removed, and additional items

were missing from the burglarized vehicles.

Common to and connecting all the burglaries was the pickup truck

(which belonged to Hanshew’s parents) parked outside of Ofr. Brice’s

residence. The pickup was towed to the SPD impound lot, where officers

were able to recover a wallet, debit/credit cards of BHP victims, and several

items in the back of the truck including car audio equipment, truck tailgates,

and tires. Additionally, in the center console of the pickup were .39 caliber

live rounds. During the investigation, Boswell admitted to having a gun and

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provided information about its location to police. Based on this information,

Boswell’s gun was recovered two days later.

Shreveport Police Officers took both blood and DNA samples, as well

as fingerprints, from all burglarized vehicles. The collected samples were

compared to a known sample of Boswell’s DNA and were found to be a

consistent match. The fingerprints provided such sufficient detail for

examination, that testimony at trial confirmed the fingerprints found at the

scenes of the crimes were Boswell’s. Hanshew was excluded as a

contributor of DNA in all of the burglaries. SPD returned all the stolen

items taken from the crime scenes to their rightful owners.

Defense counsel at trial pointed out that Boswell’s probation card was

displayed on the courtroom projector for the jury to see. Although the

defense makes clear they did not believe this was done intentionally or

maliciously, they still moved for mistrial on the grounds that the jury had

seen evidence of Boswell’s previous criminal history, which is otherwise

inadmissible evidence. No admonishment was requested by the defense due

to their belief that it may only increase any potential harm done. The trial

court denied the motion for mistrial, finding that it was not supported by law

and the state’s actions did not rise to the level of mistrial in accordance with

the law.

After the conclusion of trial, Boswell was unanimously convicted and

immediately sentenced to ten years at hard labor for each count of simple

burglary, fifteen years at hard labor for attempted aggravated burglary and

two years at hard labor for illegal use of a weapon. All sentences were

ordered to be served concurrently for a total imprisonment of fifteen years.

Boswell’s sentence was imposed without providing him the mandatory 24-
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hour delay and without a waiver of that delay. Boswell filed a motion for a

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

denied. He now appeals asserting assignments of error directed toward

excessive sentence, sufficiency of the evidence and several errors on the part

of the trial court.

DISCUSSION

Insufficient evidence and trial errors

In his pro se assignments of error, Boswell argues insufficiency of the

evidence and abuse of discretion by the trial court throughout the

proceedings. Specifically, he argues that the state did not prove all essential

elements of aggravated burglary, i.e. it failed to show that he entered any

inhabited dwelling. He asserts that no rational trier of fact would have found

him guilty of this crime.

When issues are raised on appeal, both as to the sufficiency of the

evidence and as to one or more trial errors, the reviewing court should first

determine the sufficiency of the evidence. The reason for reviewing

sufficiency first is that the accused may be entitled to an acquittal if a

rational trier of fact, viewing the evidence in the light most favorable to the

prosecution, could not reasonably conclude that all of the elements of the

offense have been proven beyond a reasonable doubt. Hudson v. Louisiana,

450 U.S. 40, 101 S. Ct. 970, 67 L. Ed. 2d 30 (1981); Jackson v. Virginia,

443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Dennis,

46,471 (La. App. 2 Cir. 9/21/11), 72 So. 3d 968, writ denied, 11-2365 (La.

5/18/12), 89 So. 3d 1189. State v. Cooley, 51,895 (La. App. 2 Cir. 5/23/18);

247 So. 3d 1159, writ denied, 18-1160 (La. 3/6/19), 266 So. 3d 899.

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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. Ladell, 52,847 (La.

App. 2 Cir. 9/25/19), 280 So. 3d 932. 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

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

The evidence, whether established directly or inferred from the

circumstances, must be sufficient for a rational trier of fact to conclude

beyond a reasonable doubt that the defendant was guilty of every essential

element of the crime. State v. Sutton, 436 So. 2d 471 (La. 1983); State v.

Freeman, 50,282 (La. App. 2 Cir. 4/13/16), 194 So. 3d 1, writ denied, 2016-

0927 (La. 5/1/17), 220 So. 3d 743. Cooley, supra. 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. If the entirety of the evidence, both admissible

and inadmissible, is sufficient to support the conviction, the accused is not

entitled to an acquittal and the reviewing court must then consider the

assignments of trial error. State v. Hearold, 603 So. 2d 731 (La. 1992).

Aggravated burglary is the unauthorized entry of any inhabited

dwelling, or of any structure where a person is present, with the intent to

commit a felony or any theft therein if the offender is armed with a
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dangerous weapon. La. R.S. 14:60. A garage or carport is part of an

inhabited dwelling. State v. Mitchell, 50,188 (La. App. 2 Cir. 11/18/15), 181

So. 3d 800, writ denied, 15-2356 (La. 1/9/17), 214 So. 3d 863. La. R.S.

14:27(A) provides that 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. Lying in wait with a

dangerous weapon with the intent to commit a crime shall be sufficient to

constitute an attempt to commit the offense intended. La. R.S. 14:27(B).

Attempt requires both the specific intent to commit a crime and an act for

the purpose of, or an “overt act,” tending directly toward accomplishment of

that crime. State v. Prine, 44,229 (La. App. 2 Cir. 5/20/09), 13 So. 3d 758,

writ denied, 09–1361 (La.2/5/10), 27 So. 3d 298; State v. Davillier, 46,625

(La. App. 2 Cir. 11/2/11), 83 So. 3d 22.

We resolve that the evidence was more than sufficient to convict

Boswell of attempted aggravated burglary for the following reasons. First,

items from Ofr. Brice’s garage were located in the pickup truck that Boswell

and Hanshew drove to his home, making it abundantly clear they indeed

committed a burglary therein. Boswell’s contention that he did not enter an

inhabited dwelling is erroneous as it is well settled that a garage is part of an

inhabited dwelling. Second, considering that Ofr. Brice and his wife were

asleep inside their home during early morning hours with Boswell — a

prowler — on their property, a rational trier of fact can infer that he lacked

the requisite authorization to be there. Finally, an armed Boswell fired his

weapon, fled the scene, and was later identified by Ofr. Brice as the man
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who shot at him. Therefore, viewing the evidence in the light most

favorable to the prosecution, we find that the state presented sufficient

evidence for a reasonable trier of fact to convict Boswell of attempted

aggravated burglary. This assignment lacks merit.

Motion to suppress

Boswell argues that he was denied a fair trial when the trial court

failed to rule on his pro se motion to suppress evidence. The trial court is

afforded great discretion in ruling on a motion to suppress, and its ruling will

not be disturbed absent an abuse of that discretion. State v. Lee, 05–2098

(La. 1/16/08), 976 So. 2d 109, 122; State v. Montejo, 06-1807 (La. 5/11/10),

40 So. 3d 952. A defendant is limited on appeal to the grounds he

articulated at trial and a new basis for a claim, even if it would be

meritorious, cannot be raised for the first time on appeal. Montejo, supra.

When a defendant proceeds to trial without raising an issue which was the

subject of a pending pretrial motion, he waives his right to have the motion

heard or ruled upon. State v. Robinson, 46,091 (La. App. 2 Cir. 4/20/11), 63

So. 3d 1113, writ denied, 11-0901 (La. 11/23/11), 76 So. 3d 1148, and writ

denied, 11-1016 (La. 11/23/11), 76 So. 3d 1149; State v. Cooper, 45,568

(La. App. 2 Cir. 12/8/10), 55 So. 3d 873.

In his pro se assignment, we note that Boswell did not specify what

evidence he was looking to suppress but stated, rather vaguely, that he was

“seeking to suppress certain evidence” that would have given him the

opportunity to a fair trial. Boswell proceeded to trial without objecting or

raising the issue that his pretrial motion to suppress was neither heard nor

ruled upon. The general rule is that appellate courts will not consider issues

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raised for the first time on appeal. Boswell’s alleged error is not properly

before us for review. This assignment of error is therefore pretermitted.

Abuse of Discretion

In his last pro se assignment, Boswell argues the trial court erred in

denying his motion for mistrial after the state inadvertently displayed — in

the presence of the jury — his probation identification card on a courtroom

projector. Boswell contends that this misconduct by the state clearly

prejudiced him and resulted in an unfair trial, thereby violating his

constitutional rights. At the trial, the state conceded that displaying

Boswell’s probation identification card was indeed an unintentional

oversight, but nonetheless was not sufficient to constitute prejudicial

misconduct under La. C. Cr. P. art. 770.

La. C. Cr. P. art. 775 requires a mistrial on motion of the defense

when prejudicial conduct inside or outside the courtroom makes it

impossible for the defendant to receive a fair trial. Upon motion of a

defendant, a mistrial shall be ordered when a remark or comment, made

within the hearing of the jury by the judge, district attorney, or a court

official, during the trial or in argument, refers directly or indirectly to

another crime committed or alleged to have been committed by the

defendant as to which evidence is not admissible. La. C. Cr. P. art. 770.

Mistrial is a drastic remedy which is authorized only where substantial

prejudice will otherwise result to the accused. State v. Roberson, 46, 697

(La. App. 2 Cir. 12/14/11), 81 So. 3d 911, writ denied, 12-0086 (La.

4/20/12), 85 So. 3d 1270. The determination of whether actual prejudice has

occurred lies within the sound discretion of the trial court and will not be

disturbed on appeal absent an abuse of that discretion. State v. Wilson, 50,
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589 (La. App. 2 Cir. 5/18/16), 196 So. 3d 614; State v. Authier, 46, 903 (La.

App. 2 Cir. 4/25/12), 92 So. 3d 494, writ denied, 12-1138 (La. 11/2/12), 99

So. 3d 662, State v. Bell, 51,312 (La. App. 2 Cir. 5/17/17), 222 So. 3d 79.

Even if a mistrial was warranted under La. C. Cr. P. art. 770, 771, or

775, the failure to grant a mistrial would not result in an automatic reversal

of the defendant’s conviction but would be a trial error subject to the

harmless error analysis on appeal. Roberson, supra. Trial error is harmless

where the verdict rendered is “surely unattributable to the error.” Wilson,

supra.

We are unconvinced that Boswell is entitled to a mistrial under the

provisions of La. C. Cr. P. art. 770. It was stipulated at trial that Boswell’s

probation identification card being shown to the jury was inadvertent.

Review of the record shows that neither the state nor other court personnel

made any remarks regarding Boswell, or the charge associated with the

probation identification card. The inadvertent display of Boswell’s

probation identification card was not so prejudicial as to make it impossible

for him to obtain a fair trial. Boswell was positively identified by Ofr. Brice,

the victim of his attempted aggravated burglary, and his fingerprints were a

consistent match according to DNA test results introduced at trial as

evidence from the crime scenes of several burglaries across Shreveport.

Considering the overwhelming evidence against Boswell in this case, his

guilty verdict is surely not attributed to the display of his probation

identification card. We find no abuse of discretion on the part of the trial

court in denying a mistrial. This assignment lacks merit.

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Excessive sentence

Boswell appeals asserting the trial court failed to adequately tailor his

sentence as an individual and claims that his sentence is unconstitutionally

excessive and harsh. Boswell contends there was no justification for the

imposition of maximum and near maximum sentences and notes that while

the trial court deemed his criminal history “concerning,” there was no

further discussion of mitigating factors he felt should have been considered

during his sentencing. Boswell argues that his conduct did not threaten

serious harm; he does not possess a history of violence; he was acting under

the influence of drugs at the time of the offenses; he is a father of three and

has an extensive employment history working in the oil fields and as an

electrician; despite his drug problem, society and the community are not

served by incarcerating him for fifteen years; he can be a contributing

member of society; he can continue to support his children; and his offenses

were not the worst offenses, and he is not the worst kind of offender.

The state argues that Boswell’s sentence is constitutionally sound, and

the relative fortune that no one was seriously harmed that night should not

deprecate the seriousness of the acts and violations that occurred during his

crime spree.

An excessive sentence claim is reviewed by examining whether the

trial court adequately considered the guidelines established in La. C. Cr. P.

art. 894.1 and whether the sentence is constitutionally excessive. State v.

Dowles, 54,483 (La. App. 2 Cir. 5/25/22), 339 So. 3d 749; State v. Vanhorn,

52,583 (La. App. 2 Cir. 4/10/19), 268 So. 3d 357, writ denied, 20-00745 (La.

11/19/19) 282 So. 3d 1065.

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Ordinarily, appellate review of sentences for excessiveness utilizes a

two-prong process. However, when the motion to reconsider sentence raises

only a claim of constitutional excessiveness, a defendant is relegated to

review of the sentence on that ground alone. La. C. Cr. P. art. 881.1(E);

State v. Mims, 619 So. 2d 1059 (La. 1993); 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.

Boswell, by failing to state specific grounds for his motion to

reconsider sentence, has waived his right to have his sentence reviewed for

compliance with art. 894.1. As a result, the remaining question is whether

his sentence exceeds the punishment allowed by the state and federal

constitutions.

The Eighth Amendment of the United States Constitution and Article

I, § 20 of the Louisiana Constitution prohibit the imposition of cruel or

excessive punishment. Although a sentence falls within statutory limits, it

may be excessive. State v. Sepulvado, 367 So. 2d 762 (La. 1979). The

appellate court must determine if the sentence is constitutionally excessive.

State v. Smith, 01-2574 (La. 1/14/03), 839 So. 2d 1. To assess a claim that a

sentence violates La. Const. art. I, §20, the appellate court must determine if

the sentence is grossly disproportionate 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). 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; State v. Meadows, 51,843 (La. App. Cir.
11

1/10/18), 246 So. 3d 639, writ denied, 18-0259 (La. 10/29/18) 254 So. 3d

1208. The sentencing court has wide discretion to impose a sentence within

the statutory limits, and the sentence imposed will not be set aside as

excessive absent a manifest abuse of that discretion. State v. Williams, 03-

3514 (La. 12/13/04), 893 So. 2d 7. On review, an appellate court does not

determine whether another sentence may have been more appropriate, but

whether the trial court abused its discretion. State v. Gaines, 54,383 (La.

App. Cir. 2/22/23), 358 So. 3d 194, writ denied, 23-00363 (La. 6/21/23), 362

So. 3d 428; State v. Tubbs, 52, 417 (La. App. 2 Cir. 11/20/19), 285 So. 3d

536, writ denied, 20-00307 (La. 7/31/20), 300 So. 3d 404, on recons., 20-

00307 (La. 9/8/20), 301 So. 3d 30, and writ denied, 20-00307 (La. 9/8/20),

301 So. 3d 30.

Whoever commits the crime of simple burglary shall be imprisoned

with or without hard labor for not more than twelve years. See, La. R.S.

14:62. Whoever commits the crime of illegal use of weapons or dangerous

instrumentalities shall be imprisoned with or without hard labor for not more

than two years. See, La. R.S. 14:94. The sentencing range for attempted

aggravated burglary is six months to fifteen years at hard labor. See, La. R.S.

14:27 and 14:60.

We find no abuse of discretion in the sentences imposed on Boswell

in this case. While Boswell may be a first felony offender in the state of

Louisiana, we cannot ignore the quantity and progression in which Boswell

committed these offenses over a short period of time. The trial court

referenced Boswell’s criminal record as “concerning,” while pointing out

that he had a slew of other charges, albeit in a different state, of the same

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nature involving burglaries of residences and vehicles for over a decade.1

His sentences were completely appropriate.

Boswell lists mitigating factors including that his conduct did not

threaten serious harm, he is likely to respond to probationary treatment and

society, and the community is not served by incarcerating him for fifteen

years. We disagree with his perspective as he burglarized several vehicles

throughout Shreveport and attempted to burglarize a family’s home while

armed. Moreover, Boswell proceeded to fire his weapon while in the

commission of the offense, thereby placing both Ofr. Brice and Hanshew in

danger of serious bodily harm. Boswell was given the benefit of probation

for previous crimes, and it is abundantly clear that he has not responded well

to noncustodial treatment because of his seemingly recalcitrant attitude.

Society and the community are better served when its citizens can sleep

comfortably at night without concerns about their personal belongings being

taken by someone who feels entitled to them.

Based on the severity, progression, and pattern of similar offenses

exhibited by Boswell, we conclude the imposition of a concurrent fifteen-

year sentence does not shock the sense of justice and, thus, is not excessive.

ERROR PATENT

Review of the record reveals two errors patent. First, we note the trial

court failed to observe the sentencing delays under La. C. Cr. P. art. 873, and

there was no express waiver of these delays by Boswell.

1
Boswell has a criminal history in the state of Texas dating back to 2005. His
offenses include burglary of a building, theft of property, possession of controlled
substances, and several incidents involving burglary of vehicles.
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The failure to observe the delay provided under La. C. Cr. P. art. 873

or for the delay to be waived is considered harmless error in the absence of

an objection or a showing of prejudice. State v. Haynes, 52,331 (La. App. 2

Cir. 11/14/18), 260 So. 3d 738, writ denied, 18-2081 (La. 6/3/19), 272 So.

3d 542. Boswell neither objected to the trial court’s failure to observe the

24-hour sentencing delay nor assert any prejudice that resulted. Thus, the

trial court’s failure to observe the delay was harmless error and remand for

resentencing is not necessary.

The second error patent reveals that the record does not contain a

uniform commitment order. La. C. Cr. P. art. 892(B) requires the clerk of

court to prepare a copy of the Uniform Sentencing Order in the format

authorized by the Louisiana Supreme Court. However, failure to prepare a

commitment order shall not affect the validity of a prosecution, conviction,

or sentence. La. C. Cr. P. art. 892(D). Accordingly, we instruct the trial

court to direct the clerk of court to prepare a uniform commitment order.

CONCLUSION

For the foregoing reasons, we affirm the actions and judgment of the

trial court and remand this case to have the clerk of court prepare a uniform

order of commitment in accordance with La. C. Cr. P. art. 892.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

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