State of Louisiana v. Brandon J. Office

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 07-193

STATE OF LOUISIANA

VERSUS

BRANDON J. OFFICE

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 69156
HONORABLE JOHN C. FORD, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Billy Howard Ezell,
Judges.

AFFIRMED.

William E. Tilley
District Attorney - Thirtieth Judicial District Court
P.O. Box 1188
Leesville, LA 71496-1188
(337) 239-2008
Counsel for Plaintiff/Appellee:
State of Louisiana

Elvin Clemence Fontenot, Jr.
Attorney at Law
110 East Texas Street
Leesville, LA 71446
(337) 239-2684
Counsel for Defendant/Appellant:
Brandon J. Office

Terry Wayne Lambright
Attorney at Law
100 S. Third Street, Suite A
Leesville, LA 71446
(337) 239-6557
Counsel for Plaintiff/Appellee:
State of Louisiana

1 EZELL, JUDGE.

On November 22, 2005, the Vernon Parish District Attorney’s Office filed a

bill of information charging Defendant, Brandon J. Office, with one count of armed

robbery, in violation of La.R.S. 14:64, and one count of aggravated kidnapping, in

violation of La.R.S. 14:44. Subsequently, Defendant waived his right to a jury trial.

On April 11, 2006, the State amended the second count to second degree kidnapping,

a violation of La.R.S. 14:44.1. On the same date, the court heard evidence and found

Defendant guilty on both counts.

Defendant appeared for sentencing on November 28, 2006. The court

sentenced him to forty years at hard labor for armed robbery and forty years at hard

labor for second degree kidnapping; the first two years of the latter sentence are to be

served without benefit of parole, probation, or suspension of sentence. The sentences

are to run concurrently with one another. The court denied Defendant’s motion to

reconsider the sentence.

Defendant now appeals to this court, assigning three errors. We find the

convictions and sentences should be affirmed.

FACTS

The victim, Antonio Jordan, was with friends in a Leesville diner at

approximately 1:00 a.m. on July 1, 2005. As Jordan was leaving the diner, Defendant

approached him and asked him about his 1985 Buick, which was for sale. As the two

men discussed the car, the victim’s friends left in other vehicles. Defendant had an

associate nearby, sitting in a white Ford Taurus.1 Defendant asked to test drive the

car, but the victim refused. Defendant walked over to the Taurus, and when he

returned, he forced the victim into the passenger seat of the car. Although he did not

1
The record repeatedly refers to this car as a “Tarsus.”

1

see a gun at that time, the victim complied because he felt a gun digging into his side.

Defendant then got in also, and drove north on Highway 171. The driver in the white

Taurus followed.

After they got into the Buick, the victim saw Defendant’s gun. Once the cars

crossed the intersection of Highway 28, they pulled over to the right shoulder of the

road. Testimony indicated the area north of the intersection is not well lit. Defendant

pointed his gun at the victim and ordered him out of the car. The victim attempted

to punch Defendant, who evaded the blow. The victim jumped out of the car and

heard a gunshot behind him. Defendant then resumed his northbound route in the

stolen Buick, and the driver in the Taurus followed him.

Later, after a Many police officer tried to apprehend him, Defendant left the

stolen car and rendezvoused with his associate in the white Taurus. Police

apprehended Defendant further north, after a car chase.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues the trial court erred by

denying his motion for post verdict judgment of acquittal. The State argues such a

motion was procedurally improper in a bench trial. We find the propriety of the

motion need not be addressed. Defendant’s current argument clearly challenges the

sufficiency of the evidence, an issue this court commonly reviews without requiring

any motion below to preserve it.

The analysis for such sufficiency claims is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical
inquiry of the reviewing court 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, 99 S.Ct. 2781, 61
L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d
126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983);
State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d

2

1212 (La.1981). It is the role of the fact finder to weigh the respective
credibility of the witnesses, and therefore, the appellate court should not
second guess the credibility determinations of the triers of fact beyond
the sufficiency evaluations under the Jackson standard of review. See
State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson,
425 So.2d 1228 (La.1983)). In order for this Court to affirm a
conviction, however, the record must reflect that the state has satisfied
its burden of proving the elements of the crime beyond a reasonable
doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

As noted earlier, Defendant was convicted of armed robbery, which is defined

by La.R.S. 14:64(A): “Armed robbery is the taking of anything of value belonging

to another from the person of another or that is in the immediate control of another,

by use of force or intimidation, while armed with a dangerous weapon.”

He was also convicted of second degree kidnapping, which is defined by

La.R.S. 14:44.1(A)(2): “Second degree kidnapping is the doing of any of the acts

listed in Subsection B wherein the victim is: . . . Used to facilitate the commission of

a felony or the flight after an attempt to commit or the commission of a felony[.]”

Subsection B of the statue states, in pertinent part: “The forcible seizing and carrying

of any person from one place to another[.]”

Defendant argues the State failed to prove that he had a gun at the time he

ordered the victim into the Buick. We note that in his statement to police, Defendant

admitted stealing the car but denied using a weapon. Thus, identity is not at issue in

the present analysis.

The victim acknowledged that he did not initially see the gun; however, he

testified that he could feel it poking him in the ribs. Further, the victim testified that

once in the car, he saw that Defendant had the gun between his leg and the

“console.”2 As noted earlier, after they crossed the intersection of Highway 28,

2
Although the victim repeatedly referred to the “console,” his description of it
suggests he was referring to a fold-down armrest for the front seat.

3

Defendant pulled over, as did his associate, who was following them in the white

Taurus. The victim testified that Defendant then pointed the gun at him and ordered

him out of the car. After trying, and failing, to punch Defendant, the victim jumped

out of the car. He heard a gunshot, then the two cars sped off.

Thus, the victim’s testimony that he felt the gun poking his ribs provided direct

evidence that Defendant had the gun at the time he ordered the victim into the car.

This direct evidence was corroborated by his testimony that he actually saw the gun

once they were inside the car. The latter testimony provided strong circumstantial

evidence that Defendant had the gun at the time of the initial abduction.

This aspect of the State’s case was further bolstered by the testimony of the

police officers who later encountered Defendant. At approximately 2:00 a.m., Jami

Dale Hensley of the Many Police Department attempted to intercept a car speeding

northbound on Highway 171. After a short chase, the car came to a stop, and the

driver bailed out and ran away with an object in his hands. We note that Henley was

unable to identify the driver as Defendant, and also was not certain that the object he

saw in the escaping man’s hand was a gun. However, he testified that he

subsequently heard police radio traffic that indicated the same suspect had gotten into

a white vehicle.

Sabine Parish Deputy Larry Rutherford also testified that he heard radio traffic

indicating the suspect initially pursued by Officer Henley had gotten into a white

Ford Taurus. Between 1:00 a.m. and 2:00 a.m. on July 1, Rutherford was southbound

on Highway 171, traveling from Zwolle to Many when he heard the radio call.

Approximately two miles north of Many, he saw a white Taurus traveling

northbound. When Rutherford got behind it and activated his overhead lights, it

pulled over. The deputy arrested the driver without incident, but he saw someone

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climb from the back seat into the front seat. This second man got behind the steering

wheel; when Rutherford approached, the suspect produced a gun. He then drove

north on Highway 171; Rutherford tried but failed to shoot out the tires. The deputy

put the other suspect in his car and gave chase to the Taurus. When he caught up to

it ten minutes later, it was about three miles south of a town called Converse and had

already been disabled by other officers.

Another deputy, David Self, took up the chase further north on Highway 171;

he testified that during the chase, the driver of the Taurus stuck a gun out of the

window and appeared to fire back at him. Self could not state “a hundred percent”

that the driver actually fired the weapon, because of debris, smoke, and sparks that

poured from the Taurus after it blew three tires going over a police spike-strip.

However, Self testified he could clearly see the gun. When the suspect finally

stopped the Taurus and ran to nearby woods, he was still holding a gun, according to

Self.

We submit that the victim’s testimony, corroborated by the testimonies of the

various police officers, provided sufficient evidence that Defendant used a gun to

force him into the Buick. Further, Defendant subsequently used the gun to facilitate

the armed robbery at issue, in later stages of the offense.

Also, we note the supreme court has stated:

In State v. Meyers, 620 So.2d 1160 (La.1993) this Court distinguished
the crimes of theft and robbery. “The purpose of the force or
intimidation element of robbery is to distinguish, by imposition of a
more severe penalty, those takings which pose a greater risk to the
victim.” Meyers, 620 So.2d at 1163. Accordingly, “the force or
intimidation element of robbery is satisfied by evidence that force or
intimidation directly related to the taking occurred in the course of
completing the crime.” Meyers, 620 So.2d at 1163. It is immaterial
whether the “taking of anything of value” occurs immediately before or
after the “use of force or intimidation.” The element of danger is present
notwithstanding the order of these events.

5

State v. Goodley, 01-77, p. 9 (La. 6/21/02), 820 So.2d 478, 484.

Under Goodley and Meyers, Defendant clearly employed the gun as a means

of force or intimidation that facilitated the robbery. Pursuant to the jurisprudence

cited, the question of whether he used the gun to force the victim into the car would

be superfluous, as he clearly used it later to force the victim out of the car, so that he

could take full possession of it.

For the reasons discussed, the assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues the trial court erred by

denying his motion for new trial. He notes that it is difficult to discern whether the

trial court applied the “thirteenth juror” standard to its analysis, since the court denied

the motion without reasons.

However, as the State points out, the true thrust of Defendant’s argument is

identical to his argument in the first assignment of error, i.e., that the evidence

adduced against him was insufficient to support the conviction. His motion in the

trial court made the same argument. This argument was addressed in the previous

assignment and was found to lack merit.

Defendant’s original motion was based on the following language from

La.Code Crim.P. art. 851:

The motion for a new trial is based on the supposition that injustice has
been done the defendant, and, unless such is shown to have been the
case the motion shall be denied, no matter upon what allegations it is
grounded.

The court, on motion of the defendant, shall grant a new trial whenever:
(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made during
the proceedings, shows prejudicial error[.]

6

This court has previously explained:

This court has held when a trial court reviews a motion for new
trial, the appropriate standard for re-weighing the evidence is the
“thirteenth juror” standard. State v. King, 96-1303, pp. 5-6 (La.App. 3
Cir. 4/2/97), 692 So.2d 1296, 1299, citing State v. Long, 590 So.2d 694
(La.App. 3 Cir.1991).

....

In State v. Snyder, 98-1078, p. 37 (La.4/14/99), 750 So.2d 832, 859, n.
21 (alteration in original), the supreme court stated:

In the instant case, the constitutional issue of sufficiency is
treated in assignment of error number 1 because the denial
of a motion for new trial based upon La.C.Cr.P. art. 851(1)
is not subject to review on appeal. State v. Skelton, 340
So.2d 256, 259 (La.1976) (“[W]e have uniformly held that
a bill of exceptions reserved to the refusal of the trial judge
to grant a motion for a new trial based on Article 851(1),
relative to sufficiency of the evidence presents nothing for
our review.”) (citations omitted); State v. Bartley, 329
So.2d 431, 433 (La.1976) (“It is well established in
Louisiana that an assignment of error reserved to the denial
of a motion for a new trial alleging that the verdict is
contrary to the law and the evidence presents nothing for
appellate review.”) (citations omitted).

As the trial court used the correct standard of reviewing the motion for
new trial, this assignment of error is not reviewable pursuant to La.Code
Crim.P. art. 858 and State v. Snyder.

Defendant argues in the alternative, the trial court should have
granted his motion for new trial under La.Code Crim.P. art. 851(5).
La.Code Crim.P. art. 851(5) states, in pertinent part, “The court is of the
opinion that the ends of justice would be served by the granting of a new
trial, although the defendant may not be entitled to a new trial as a
matter of strict legal right.”

This court has routinely held that denial of a motion for new trial
to serve the ends of justice is not subject to review upon appeal. State
v. Jason, 01-1428, p. 9 (La.App. 3 Cir. 7/10/02), 820 So.2d 1286, 1292,
citing State v. Prudhomme, 532 So.2d 234 (La.App. 3 Cir.1988), writ
denied, 541 So.2d 871 (La.1989).

State v. Giles, 04-359, pp. 22-23 (La.App. 3 Cir. 10/6/04) 884 So.2d 1233, 1247-48,

writ denied, 04-2756 (La. 3/11/05), 896 So.2d 62.

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Further, although it is not clear what standard the trial court applied, this court

can presume the trial court applied the proper standard. State v. Callegari, 00-437,

(La.App. 3 Cir. 11/2/00), 773 So.2d 806, writ denied, 00-3338 (La. 11/9/01), 801

So.2d 362 (citing State v. Washington, 614 So.2d 242 (La.App. 3 Cir.), writ denied,

619 So.2d 575 (La.1993)).3 Also, Defendant does not argue that any particular ruling

by the trial court resulted in prejudicial error, for purposes of his motion for new trial

and La.Code Crim.P. art. 851(2).

Thus, pursuant to the jurisprudence, there is nothing for this court to review.

Further, the substantive questions raised under this assignment were explored during

the Jackson review in the previous assignment of error. For the reasons discussed,

this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his final assignment of error, Defendant alleges that his forty-year sentences

are excessive. Similarly, his motion to reconsider in the trial court contained only a

bare claim of excessiveness.

The sentencing range for armed robbery is ten to ninety-nine years. La.R.S.

14:64(B). Thus, Defendant received a midrange sentence for that crime. The

sentencing range for second degree kidnapping is five to forty years; thus, Defendant

received the maximum sentence for this offense. La.R.S. 14:44.1(C).

The analysis for excessive-sentence claims is well-settled:

[Louisiana Constitution Article I], § 20 guarantees that, “[n]o law
shall subject any person to cruel or unusual punishment.” To constitute
an excessive sentence, the reviewing court must find the penalty so
grossly disproportionate to the severity of the crime as to shock our
sense of justice or that the sentence makes no measurable contribution
to acceptable penal goals and is, therefore, nothing more than a needless

3
See also State v. Campbell, 94-1140 (La.App. 3 Cir. 3/13/96), 673 So.2d 1061,
writ denied, 96-1785 (La. 1/10/97), 685 So.2d 140, reversed on other grounds, 523
U.S. 392, 118 S.Ct. 1419 (1998).

8

imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied,
00-0165 (La. 6/30/00); 765 So.2d 1067. The relevant question is
whether the trial court abused its broad sentencing discretion, not
whether another sentence might have been more appropriate. State v.
Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, cert. denied, 519 U.S.
1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331(second alteration in

original).

In further refining the analysis, this court has stated:

[A]n appellate court may consider several factors including the nature
of the offense, the circumstances of the offender, the legislative purpose
behind the punishment and a comparison of the sentences imposed for
similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501.
While a comparison of sentences imposed for similar crimes may
provide some insight, “it is well settled that sentences must be
individualized to the particular offender and to the particular offense
committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).
Additionally, it is within the purview of the trial court to particularize
the sentence because the trial judge “remains in the best position to
assess the aggravating and mitigating circumstances presented by each
case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied,

03-562 (La. 5/30/03), 845 So.2d 1061.

Pursuant to the first factor listed in Smith, the offenses at issue were violent in

nature; as for the second factor, the nature of the offender, Defendant has a history

of violent crime.

At sentencing, the following colloquy occurred:

BY MR. STRIDER:

Your Honor, may we call Mr. Office? May we call Mr. Office?

BY THE COURT:

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You may.

BY MR. STRIDER:

Your Honor, this is Brandon Office, docket Number 69,156 here
for sentencing today on an armed robbery and a second degree
kidnapping.

BY MR. FONTENOT:

Your Honor, for the record, my name is Elvin Fontenot, I’m
retained counsel for Mr. Office. Your Honor, before this sentencing
takes place this morning I had filed a motion for a sentencing hearing
and anticipated some testimony from Mr. Office’s parents, but they are
not here and were unable to be here at this time. So, we’re going to
move to dismiss that request for sentencing hearing, Your Honor.

BY THE COURT:

Very well. This is Number 69,156, State of Louisiana versus
Brandon Office, Brandon Jermane Office. The offenses are armed
robbery and second degree kidnapping. The penalty for armed robbery
is 99 years without benefit of parole, probation or suspension of
sentence. Second degree kidnapping is five to 40 years, two years of
which is without suspension of sentence or probation or parole. The
facts are that this defendant here drove the victim’s vehicle with the
victim in it under the guise of wanting to buy the victim’s car and got
him down the road, pulled out a gun and ordered him out of the car.
Then he took off down the road, the police got after him and he got into
a big running battle with the police up in -- he went all the way through
Sabine Parish. But, this defendant was tried by the Court, a Judge trial,
and found guilty on both Counts on April of this year, April 11th of this
year. Does the defendant have anything to present at this time, Mr.
Fontenot?

BY MR. FONTENOT:

No, Your Honor.

BY THE COURT:

The Court considers the sentencing guidelines in Article 894.1,
the pre-sentence report and the fact that this is this defendant’s fourth
felony offense. When I look at his history it appears that he has -- these
are violent offenses. They’re offenses where weapons were used. But,
considering all of the circumstances the Court finds there is an undue
risk during a period of suspended sentence or probation the defendant
will commit another crime. The Court finds that a lesser sentence will
deprecate the seriousness of this defendant’s conduct.

10

It’s the sentence of the Court that you serve 40 years at hard labor
with the Louisiana Department of Public Safety and Corrections without
benefit of probation, parole or suspension of sentence, with credit for
time served since the date of your arrest.

On Count 2 you’re to serve 40 years at hard labor with the
Louisiana Department of Public Safety and Corrections, two years of
which will be served without benefit of parole, probation or suspension
of sentence with credit for time served since the date of arrest. I will
make these sentences run concurrent with each other. Your sentence is
subject to diminution for good behavior pursuant to Revised Statute
15:571.3. The sentence imposed was not enhanced due to any relevant
provision of the law. You have 30 days within which to appeal and two
years within which to file an application for post conviction relief.

BY MR. FONTENOT:

Your Honor, for the record, we wish to file a motion to reconsider
sentence . . .

BY THE COURT:

Very well.

BY MR. FONTENOT:

. . . for purposes of preserving that for appeal and ask that the
Court rule on that this morning, Your Honor, and that it be made part of
the record.

BY THE COURT:

Very well. The Court would deny the motion to reconsider at this
time.

We have obtained a copy of the presentence investigation report; as the trial court

stated, it shows Defendant has a history of crimes involving firearms and that he has

three prior felonies.

Regarding the third Smith factor, the comparison of sentences for similar

offenses, we note that in State v. Vance, 06-452 (La.App. 5 Cir. 11/28/06), 947 So.2d

105, the court held a seventy-five-year sentence for armed robbery was not excessive.

The court observed that the defendant shot at a witness who tried to follow him,

hitting the witness’s truck.

11

As for the jurisprudence regarding second degree kidnapping, we observe that

in State v. Moore, 37,935 (La.App. 2 Cir. 1/28/04), 865 So.2d 227, writ denied, 04-

507 (La. 7/2/04), 877 So.2d 142, the court held that a forty-year sentence for second

degree kidnapping, in conjunction with armed robbery and attempted second degree

murder, was not excessive where the victim was shot and left for dead; State v. Brock,

37,487( La.App. 2 Cir. 9/26/03), 855 So.2d 939, writ denied, 04-1036 (La. 4/1/05),

897 So.2d 590, held similarly, where the companion’s offense was aggravated

burglary and the victim was beaten and left for dead; in State v. Lefeure, 02-592

(La.App. 5 Cir. 10/29/02), 831 So.2d 398, writ granted in part on other grounds, 02-

2924, 02-3231 (La. 10/3/03), 855 So.2d 291, the court reduced the defendant’s

sentences on companion charges, and rendered them concurrent, but left his forty-

year sentence for second degree kidnaping intact; there does not appear to have been

any particular cruelty or heinous action in Lefeure.

In view of the cases cited, it does not appear that the forty-year sentences are

outside the norms of Louisiana jurisprudence, even though maximum sentences are

usually reserved for the worst offenders. State v. Banks, 95-1210 (La.App. 3 Cir.

6/25/97), 699 So.2d 418. While Defendant’s actions are not heinous or cruel, we note

the victim testified Defendant shot at him as he exited the Buick. Thus, we suggest

that, but for chance or poor aim, this could easily have been a murder case.

Defendant is a career criminal who is willing to resort to violence, including the use

of firearms, to accomplish his goals. Thus, we suggest the trial court did not abuse

its discretion in formulating the sentences. We observe the trial court could have

pronounced a much longer sentence for the armed robbery. For the reason discussed,

this assignment lacks merit.

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CONCLUSION

The convictions and sentences are affirmed.

AFFIRMED.

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