State of Louisiana v. Derrick Baker, Sr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-54 consolidated with 08-55

STATE OF LOUISIANA

VERSUS

DERRICK BAKER, SR.

**********

APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-245-06
HONORABLE STUART S. KAY JR., DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of John D. Saunders, Glenn B. Gremillion, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

Hon. David W. Burton
District Attorney - 36th JDC
Richard Alan Morton
Assistant District Attorney
P. O. Box 99
DeRidder, LA 70634
(337) 463-5578
Counsel for Plaintiff-Appellee:
State of Louisiana

Paula Corley Marx
Louisiana Appellate Project
P. O. Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
Counsel for Defendant-Appellant:
Derrick D. Baker, Sr.

PICKETT, Judge.

Facts

CR-245-2006

The bill of information in criminal docket number CR-245-2006 states that on

March 2, 2006, the defendant committed two counts of aggravated criminal damage

to property by “intentionally damaging a Dodge Stratus” and “intentionally damaging

a structure housing Popeye’s Restaurant,” wherein it was foreseeable that human life

might be endangered.

CR-538-2006

The bill of information in criminal docket number CR-583-2006 states that on

April 23, 2006, the defendant and Carla Poland got into an altercation at Poland’s

apartment.1 As a result of that altercation, the defendant was charged with

aggravated burglary, attempted first degree murder, and attempted aggravated rape.

The defendant asserted he acted in self-defense.

On May 3, 2006, the defendant, Derrick D. Baker, Sr., was charged by bill of

information filed in docket number CR-245-2006 with two counts of aggravated

criminal damage to property, a violation of La.R.S. 14:55. On July 20, 2006, the

defendant was charged by bill of information filed in docket number CR-538-2006

with aggravated burglary, a violation of La.R.S. 14:60; attempted first degree murder,

a violation of La.R.S. 14:27 and La.R.S. 14:30; and attempted aggravated rape, a

violation of La.R.S. 14:27 and La.R.S. 14:42. The defendant was arraigned under

both docket numbers on August 3, 2006, and entered pleas of not guilty.

1
The victim’s last name is spelled differently throughout the record. We have chosen to use
the spelling found in the bill of information.

1

On May 18, 2007, the defendant entered a plea of guilty to two counts of

aggravated criminal damage to property in docket number CR-245-2006. Jury

selection in docket number CR-538-2006 commenced on May 21, 2007. On May 25,

2007, the jury returned a verdict of guilty of aggravated battery, a responsive verdict

to attempted first degree murder, and not guilty of aggravated burglary and attempted

aggravated rape.

On July 13, 2007, the defendant was sentenced in docket numbers CR-245-

2006 and CR-538-2006, as follows:

1) aggravated criminal damage to property (two counts) - one hundred
forty-four months at hard labor on each count, to run concurrently and
consecutively to the sentences imposed in docket number CR-538-2006
and any sentence previously imposed which remains unserved;

2) aggravated battery - one hundred twenty months at hard labor, to run
consecutively with the sentence imposed in docket number CR-245-
2006 and any sentence previously imposed which remains unserved.

A Motion for Appeal and Designation of Record was filed in docket numbers

CR-245-2006 and CR-538-2006 on August 31, 2007. The appeals were consolidated

by this court.

Assignments of Error

The defendant, through his counsel, asserts two assignments of error:

1. The court erred in allowing details of prejudicial other crimes evidence
during the cross-examination of Derrick Baker.

2. The consecutive sentences imposed are excessive for this first felony
offender.

Additionally, the defendant asserts one pro se assignment of error, alleging that the

evidence was insufficient to support his conviction for aggravated battery.

2

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this

court for errors patent on the face of the record. After reviewing the record, we find

there are no errors patent.

Sufficiency of the Evidence

In his pro se assignment of error, the defendant contends the evidence was

insufficient to support his conviction. We will address this issue first.

The defendant asserts that he was assaulted by Poland and that his conduct in

response to that assault was justified and sanctioned by the law of self-defense.

In evaluating the sufficiency of the evidence to support a
conviction, a reviewing court must determine whether, viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found proof beyond a reasonable doubt of each of the
essential elements of the crime charged. Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d
676, 678 (La.1984).

State v. Draughn, 05-1825, p. 7 (La. 1/17/07), 950 So.2d 583, 592, cert. denied, __

U.S. __, 128 S.Ct. 537 (2007).

The defendant was convicted of aggravated battery. An “[a]ggravated battery

is a battery committed with a dangerous weapon.” La.R.S. 14:34.

To convict a defendant of aggravated battery, the prosecution must
prove that the defendant intentionally used force or violence upon the
victim, that the force or violence was inflicted with a dangerous weapon
and that the dangerous weapon was an instrumentality used in a manner
likely to cause death or great bodily harm.

State v. Freeman, 01-997, p. 3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 581.

The defendant testified that Poland came from the kitchen and cornered him

in the hall with a knife. She then stated she would teach him a lesson and started

swinging the knife at him. The defendant took the knife from Poland and she

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continued to come at him, hitting him, and cussing him. The defendant then testified

that “I had the knife in my left hand, and I was doing that right there.” The defendant

further testified that Poland was between him and the only exit during the altercation.

Additionally, as he was fleeing the apartment, Poland grabbed him “behind the shirt,

steady trying to attack [him].”

Poland testified that she was on the porch when the defendant grabbed her

around the neck and dragged her into the bedroom where he tried to rape her. Poland

further testified that she was able to run into the hallway where the defendant

punched her several times and said he would kill her. The defendant then ran out of

the apartment. It was not until Poland was outside the apartment that she realized she

had been stabbed.

The evidence clearly proved beyond a reasonable doubt that the defendant

intentionally cut Poland with a knife. However, the defendant claims he acted in

self-defense. At the time of the offense, the law provided for the use of force or

violence in defense as follows:

The use of force or violence upon the person of another is
justifiable, when committed for the purpose of preventing a forcible
offense against the person or a forcible offense or trespass against
property in a person’s lawful possession; provided that the force or
violence used must be reasonable and apparently necessary to prevent
such offense, and that this article shall not apply where the force or
violence results in a homicide.

La.R.S. 14:19.

[I]n an act that did not result in a death, there is a twofold inquiry: (1)
from the facts presented, was the use of force reasonable under the
circumstances; and, (2) a subjective inquiry into whether the force was
apparently necessary. State v. Perkins, 527 So.2d 48 (La.App. 3
Cir.1988). Further, it is the Defendant’s burden in a non-homicide to
establish by a preponderance of the evidence that self-defense was
justified. [State v.] Anderson, [98-492 (La.App. 3 Cir. 10/28/98),] 721
So.2d 1006[, writ denied, 98-2976 (La.3/19/99), 739 So.2d 781].

4

State v. Charles, 00-1611, pp. 5-6 (La.App. 3 Cir. 5/9/01), 787 So.2d 516, 520, writ

denied, 01-1554 (La. 4/19/02), 813 So.2d 420.

“A person who is the aggressor or who brings on a difficulty cannot claim the

right of self-defense unless he withdraws from the conflict in good faith and in such

a manner that his adversary knows or should know that he desires to withdraw and

discontinue the conflict.” La.R.S. 14:21.

The verdict indicates the jury may have chosen to believe Poland’s version of

the events. Thus, the defendant would be considered the aggressor in the altercation

and, consequently, could not claim self-defense. The jury may have also chosen to

believe the defendant’s version of the events. However, the jury may have decided

that the force used by the defendant was not reasonable under the circumstances, as

the defendant unarmed Poland and Poland testified that she received three cuts on the

arm, cuts to the back, knots to the head, bruising to the neck, and some of her hair

was pulled out. Accordingly, we find the defendant’s pro se assignment of error

lacks merit.

Other Crimes Evidence

In his first assignment of error, the defendant contends the trial court erred in

allowing details of prejudicial other crimes evidence during the state’s cross-

examination of him.

The state filed a “Motion to Determine Admissibility of C.E. Article 404B

Evidence” on March 8, 2007. Therein, the state gave notice of its intent to use other

crimes, wrongs, or acts by the defendant against Carla Poland, Gwendolyn Baker,

Diedre Holmes, and LaShon Irvin to show the defendant’s “pattern, plan, intent,

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motive, absence of mistake or accident,” and to rebut the claim of self-defense.2 On

March 26, 2007, the defendant filed an opposition to the state’s motion. On May 8,

2007, a document entitled “Defendant’s Notice of No Opposition to State’s Intention

to Introduce Other Crimes Evidence” was filed by the defendant. Therein, the

defendant stated he had no opposition to the state’s intention to introduce other

crimes evidence and he believed the state’s motion had merit. He stipulated to the

admissibility of the evidence sought to be introduced by the state, and defense

counsel waived his and his client’s appearance for a hearing on the motion set for

May 10, 2007. At the May 10, 2007, hearing, the trial court noted the defendant’s

waiver of appearance and stipulation, and found the evidence discussed in the March

8, 2007, motion to be admissible.

The state filed a second “Motion to Determine Admissibility of C.E. Article

404B Evidence” in open court on May 21, 2007. Therein, the state sought to

introduce evidence of the acts committed by the defendant at a Popeye’s restaurant.

The record does not reflect that this motion was ever ruled upon by the trial court.

While the trial court does reference a motion filed on May 21, 2007, in discussions

with the attorneys in open court, the substance of the discussions refers to the

2
The motion listed the following offenses:
1) offenses occurring against Carla Poland, the victim in the case at bar, on
November 13, 2005; November 23, 2005; February 25, 2006; and March 1, 2006;

2) spousal abuse and aggravated assault with a firearm committed on May 2, 1993,
against the defendant’s wife, Gwendolyn Baker, involving the defendant beating the
victim on the head with his fists and threatening her and others with a shotgun;

3) aggravated battery and assault with a deadly weapon committed against the
defendant’s pregnant live-in-girlfriend, Diedre Holmes, on May 16, 1997; and

4) felony domestic battery committed upon the Defendant’s girlfriend, La[S]hon
Irvin, on April 17, 1999, wherein the defendant punched the victim in the face,
knocking her into a glass table, grabbed a butcher knife, and threatened the victim.

6

convictions outlined in the March 8, 2007, motion filed by the state. We note that

evidence of the actions of the defendant at the Popeye’s restaurant was admitted into

evidence during the examination of the victim, Carla Poland.

On May 24, 2007, after the prosecution had rested its case-in-chief against the

defendant, the trial court convened without the jury to clarify an issue the court stated

it had ruled on “Monday morning, relating to the admissibility of 404(B) evidence

pursuant to a motion of the State that was filed on that morning.” The trial court then

stated the following:

The Court’s understanding of its ruling on Monday was that the
evidence was admissible based upon the recent Louisiana Supreme
Court case of State versus Rose which was decided on February 22nd,
2007, and has a citation of Westlaw 530017, in which it was made clear
- - I thought - - in the reasoning of the Court that other crimes evidence
would be admissible under 404 (B) to show intention, lack of mistake,
plan, or motive in connection with this case, insofar as it related to
previous acts of assault or violence against women in which the
defendant had a relationship of some sort.

The Court understands that the Rose case ruled that if you are not
dealing with using these cases or circumstances to prove identi[t]y, there
is no requirement that the actions be distinctively similar to the one in
question because identity is not a question here. The Court feels that
that is not applicable in this particular case.

Now, there has been some discussion among counsel this morning
that that may not be the ruling that they understood. Consequently, I
have agreed to convene Court without the jury so that objections can be
made of record; and the matter preserved for purposes of appeal.

At that time, the state asserted the incidents involving Baker, Holmes, and Irvin

were admissible other crimes evidence under article 404(B) and stated the following:

[I]n the motion to determine admissibility of Article 404(6)
evidence, the motion I filed for the State on March 8, 2007, Paragraph
4 sets forth three specific incidents, occurrences, situations from Florida.

The first occurring May 2nd, ‘93 in Gadsden County, Florida; the
second, May 16th, ‘97, Leon County Florida; third, April 17, 1999, Leon

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County, Florida. The first one involved his former wife Gwendolyn
Baker or wife equivalent; the second incident involved his live-in
girlfriend, D[i]edr[e] Holmes; and the third involved another girlfriend,
LaSh[o]n Irvin[], the third one in ‘99.

Each of these involved violence by the defendant against
girlfriend, spouse, or spouse equivalence. The same kind of domestic
abuse violence that we are dealing with in this case.

And as I said in my motion, this evidence is offered to show his
intent, his pattern of behavior towards domestic partners, his motive
insofar as his intentions in this case to kill and rape and burglarize Ms.
Carla Pol[]and’s home. I think that’s proper under the case of State
versus Rose.

The state subsequently stated, “it is my understanding Mr. Baker was actually
convicted.”

Defense counsel then stated he was concerned because the convictions

involving Baker, Holmes, and Irvin were general intent crimes and the state wanted

to offer those convictions to establish specific intent in the case at bar. Defense

counsel additionally argued that the introduction of other crimes evidence was

prejudicial and would tend to confuse the jury. Further, defense counsel stated that

it was unfortunate that state intended to use evidence of crimes committed in 1993.

He additionally noted there was no indication “that these are unique patterns,” as they

involved different “witnesses” and “difficult alleged instrumentalities.” It appears

that defense counsel was arguing against the admissibility of evidence which the

same counsel stipulated was admissible on May 8, 2007.

The trial court then stated the following:

The Court has, of course, heard those arguments on Monday and
reached the conclusion that these incidents that are in question are part
of a pattern that establishes that the defendant is - - could have had the
intent to act as he has.

I think State versus Welch which I cited on Monday, 394, 1181,
So.2d, which is a Supreme Court case, along with the Rose case make
it clear that the evidence is admissible. I recognize that it is prejudicial.

8

Most evidence admitted by the State against any defendant in trial
is prejudicial by the nature of it. I think this is important and
appropriate evidence, and it’s not unduly prejudicial under the standards
that we apply in the Code of Evidence Article 403.

There is no transcript of the proceedings held on Monday, May 21, 2007, in the

record and the minute entry for that date does not reflect the trial court made a ruling

regarding other crimes evidence. The Beauregard Parish Clerk of Court’s Office has

informed this court that it had no record of such a ruling made on May 21, 2007. In

brief to this court, the state asserts that the exchange above occurred in response to

discussions in chambers on the subject and the trial court mistakenly said it had ruled

on this subject on Monday. We must confine our review to what is of record and will

address the issues presented by the defendant in brief to this court by using the ruling

set forth by the trial court on May 24, 2007, and the arguments presented by the

parties at that time.

In brief to this court, the defendant argues that, while the state gave notice

pursuant to State v. Prieur, 277 So.2d 126 (La.1973), it elected not to use other

crimes evidence under La.Code Evid. art. 404(B) in its case-in-chief. Thus, the state

waived any use of article 404(B) evidence in its cross-examination of him. The

defendant further argues that La.Code Evid. art. 609.1 governs the issue and the

details of the other crimes evidence presented at trial should have been ruled

inadmissible.

The defendant alternatively argues that should this court find Article 404(B)

applies to this case, the evidence at issue is inadmissible nonetheless. The defendant

asserts the evidence at issue is inadmissible for the following reasons:

1) prior arrests and convictions for domestic abuse with different
complainants have no bearing on the Defendant’s relationship with
Poland;

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2) the other crimes evidence had no bearing on any contested element
of the charged offenses and impermissibly attempted to show he had the
propensity to commit these acts;

3) the trial court erred in finding these acts admissible as “[p]art of a
pattern that establishes that the defendant . . . could have had the intent
to act as he has;”

4) the other crimes at issue involved different complainants dating back
to 1993 and are factually dissimilar;

5) the balancing test prohibits the use of details of the other crimes at
issue because they had no probative value in establishing an essential
element of this case; and

6) the admission of the other crimes at issue resulted in grave prejudice
to the defendant.

Louisiana Code of Evidence article 404(B) states:

B. Other crimes, wrongs, or acts. (1) Except as provided in
Article 412, evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident, provided that upon
request by the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, of the nature of any such evidence
it intends to introduce at trial for such purposes, or when it relates to
conduct that constitutes an integral part of the act or transaction that is
the subject of the present proceeding.

(2) In the absence of evidence of a hostile demonstration or an
overt act on the part of the victim at the time of the offense charged,
evidence of the victim's prior threats against the accused or the accused's
state of mind as to the victim's dangerous character is not admissible;
provided that when the accused pleads self-defense and there is a history
of assaultive behavior between the victim and the accused and the
accused lived in a familial or intimate relationship such as, but not
limited to, the husband-wife, parent-child, or concubinage relationship,
it shall not be necessary to first show a hostile demonstration or overt
act on the part of the victim in order to introduce evidence of the
dangerous character of the victim, including specific instances of
conduct and domestic violence; and further provided that an expert's
opinion as to the effects of the prior assaultive acts on the accused's state
of mind is admissible.

A portion of the information excluded by article 404(B) would be admissible

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under La.Code Evid. art. 609.1, which provides, in pertinent part, as follows:

A. General criminal rule. In a criminal case, every witness by
testifying subjects himself to examination relative to his criminal
convictions, subject to limitations set forth below.

B. Convictions. Generally, only offenses for which the witness
has been convicted are admissible upon the issue of his credibility, and
no inquiry is permitted into matters for which there has only been an
arrest, the issuance of an arrest warrant, an indictment, a prosecution, or
an acquittal.

C. Details of convictions. Ordinarily, only the fact of a
conviction, the name of the offense, the date thereof, and the sentence
imposed is admissible. However, details of the offense may become
admissible to show the true nature of the offense:

(1) When the witness has denied the conviction or
denied recollection thereof;

(2) When the witness has testified to exculpatory
facts or circumstances surrounding the conviction; or

(3) When the probative value thereof outweighs the
danger of unfair prejudice, confusion of the issues, or
misleading the jury.

In his May 8, 2007, filing with the trial court, the defendant waived his

opposition and stipulated to the admissibility of other crimes evidence set forth in the

state’s March 8, 2007, motion. The defendant now claims that because the state did

not introduce evidence of the other crimes during its case-in-chief, the state is

precluded from introducing evidence of other crimes during the cross-examination

of the defendant. We disagree. We find that the defendant waived his objection to

the other crimes evidence on May 8, 2007, and cannot object to its admissibility now.

This assignment of error lacks merit.

Excessive Sentences

In his second assignment of error, the defendant contends the consecutive

sentences imposed are excessive for this first offender. The defendant asserts that he

11

received upper range sentences for aggravated criminal damage to property and the

maximum sentence for aggravated battery. The defendant argues that considering

the facts of the crimes and his personal history, the sentences imposed are excessive.

He then asserts the total sentence of twenty-two years is excessive and a lesser

sentence should have been imposed.

Although defense counsel objected to the sentences at the sentencing hearing,

a review of the record shows that the defendant failed to file a written motion for

reconsideration of sentence as required by La.Code Crim.P. art. 881.1. Thus, the

defendant is precluded from raising the excessiveness of his sentences on appeal.

State v. Hillman, 613 So.2d 1053 (La.App. 3 Cir.), writ denied, 617 So.2d 1181

(La.1993). Although the defendant’s sentencing claims are barred pursuant to

La.Code Crim.P. art. 881.1, this court will review the defendant’s sentences for

aggravated criminal damage to property “for bare excessiveness in the interest of

justice.” State v, Davis, 06-922, p. 2 (La.App. 3 Cir. 12/29/06), 947 So.2d 201, 203

(citing State v. Graves, 01-156 (La.App. 3 Cir. 10/3/01), 798 So.2d 1090, writ denied,

02-29 (La.10/14/02), 827 So.2d 420). This court has also reviewed claims regarding

the consecutive nature of sentences using a bare claim of excessiveness analysis. Id.

The Eighth Amendment to the United States Constitution and La.
Const. art. 1, § 20 prohibit the imposition of cruel or excessive
punishment. “ ‘[T]he excessiveness of a sentence becomes a question
of law reviewable under the appellate jurisdiction of this court.’ ” State
v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v.
Sepulvado, 367 So.2d 762, 764 (La.1979)). Nevertheless, the trial court
is given wide discretion in imposing a sentence, and, absent a manifest
abuse of that discretion, we will not deem as excessive a sentence
imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir.
3/6/96), 670 So.2d 713. “Maximum sentences are reserved for the most
serious violations and the worst offenders.” State v. Farhood, 02-490,
p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant
question for us to consider on review is not whether another sentence
would be more appropriate, but whether the trial court abused its broad

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discretion in sentencing a defendant. 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. Davenport, 07-254, pp. 3-4 (La.App. 3 Cir. 10/3/07), 967 So.2d 563, 565.

The penalty for aggravated criminal damage to property is a fine of not more

than ten thousand dollars, imprisonment with or without hard labor for not less than

one nor more than fifteen years, or both. La.R.S. 14:55. The defendant received a

sentence of one hundred forty-four months, twelve years, at hard labor on each count,

to run concurrently.

After imposing the sentences at issue, the trial court stated it had considered

the presentence investigation report, the evidence adduced at trial, and the

defendant’s criminal history. The trial court then noted that it had concluded the

defendant was “potentially a violent and dangerous person, who should be separated

from society.” The trial court further noted the defendant’s temper was explosive, he

acted without regard to the consequences of his actions to others, he had a history of

domestic violence against women that began almost fifteen years earlier, he had twice

been charged with felony assault against paramours which had successfully been pled

down to misdemeanors, and his probation had been revoked. The trial court then

stated the defendant had outstanding warrants in Florida for “battery, great bodily

harm, and misdemeanor grade battery,” which crimes were similar to his current

convictions. The trial court then stated the following:

I believe that you have a great propensity to commit a crime of
violence in the future. Your offenses in this case were particularly
violent and life-threatening. Your outrageous behavior in ramming your
vehicle into another parked vehicle at a fast food restaurant, causing the
second vehicle to crash through the plate glass window of the restaurant,
which was filled with patrons during the noon hour, placed a number of
people at risk for serious injury or death. It was only luck that no life
threatening injuries resulted from your irrational behavior.

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Following this event, you fled the State of Louisiana and were
arrested on a fugitive warrant after you had returned to the State. After
your arrest and release on bond on the charges of CR-245-2006, you
committed the offense for which you were convicted in CR-538-2006.
After committing this second offense, you again fled the State and had
to be arrested and extradited from Florida for trial.

The victim in the two cases was the same. Even though you were
ordered as a condition of bond in the first case not to have contact with
the victim pending trial. The evidence which the Court heard at trial
suggests the Jury may well have reached a compromised verdict. As in
the Court’s view, the evidence at trial, could well have supported a
conviction on more serious offense. Your attack on the victim was
vicious and brutal. She suffered serious knife wounds and could have
lost her life as a result of your attack. Again, you were lucky. Your
offenses against the victim may have arisen out of the same relationship
that you had with her, but they were separate and distinct and occurred
on different occasions. They were completely different crimes arising
out of two different transactions.

For this reason, I have made the sentences imposed in CR-245-
2006 and CR-538-2006 to run consecutively.

Even though you appear before this Court as a first felony
offender, I have chosen lengthy sentences in each case due to your
criminal history of violence and the intensity of the violence in each of
these criminal events.

Further, you still appear to blame the victim for your behavior and
do not accept your own culpability for the actions taken. This attitude
is disturbing to the Court and suggests that you are still a danger to
society.

Your denials of culpability are unconvincing in view of all of the
evidence in the case. Even your statements to the probation officer in
connection with the preparation of the Presentence Investigation Report
continued to reflect your refusal to acknowledge the truth and your
responsibility by blaming your circumstances on the victim’s lies. From
your history and your trial testimony, I conclude that in your mind, fault
is always with others. You appear before this Court with three prior
misdemeanor convictions, all involving violence against the person.
Your criminal history shows numerous other arrests for which
disposition is not known. You have been on probation without success.
Given the facts of this case and your apparent refusal to accept
responsibility, the Sentence imposed hereby is both just and fair under
the circumstances. It’s clearly not excessive, given your history.

14

The trial court considered the presentence investigation report and the nature

and background of the defendant at the sentencing hearing. We note the two

sentences for aggravated criminal damage to property were ordered to run

concurrently. We find the defendant’s sentences for the two counts of aggravated

criminal damage to property are not excessive based on the fact that he caused an

automobile to go through the plate glass window at a Popeye’s restaurant,

endangering the lives of the patrons therein. Therefore, those sentences are affirmed.

The penalty for aggravated battery is a fine of not more than five thousand

dollars, imprisonment with or without hard labor for not more than ten years, or both.

La.R.S. 14:34. The defendant received a sentence of one hundred twenty months, ten

years, at hard labor, to run consecutively with the sentences imposed for aggravated

criminal damage to property. Thus, he received the maximum sentence.

In State v. Sullivan, 02-35 (La.App. 5 Cir. 4/30/02), 817 So.2d 335, the

defendant attacked his sixty-year-old neighbor, causing bruises to his arm and an

extensive cut over his left eye. The court noted that were it not for the diligence and

assistance of another neighbor, the victim may have been stabbed full force in his

back and the forceful use of the knife during the attack resulted in the handle of the

knife breaking away from the blade. The court found the defendant’s sentence of ten

years at hard labor was not excessive despite the fact that he was a first offender and

suffered from mental illness, since the defendant posed an extreme and escalating

danger to his community and the sentence was within statutory guidelines.

In State v. Richardson, 01-239 (La.App. 5 Cir. 6/27/01), 790 So.2d 717, the

court found a ten-year sentence for aggravated battery was not constitutionally

excessive, where the defendant stabbed the victim as the victim tried to escape and

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the victim underwent exploratory surgery and missed seven months of work due to

being stabbed.

Based on the cases cited herein, the facts and circumstances regarding the

offense of aggravated battery, the defendant’s prior convictions, and the fact that the

defendant committed the offense while he was out on bond for the offenses of

aggravated criminal damage to property, we cannot say the trial court abused its

discretion when imposing the maximum sentence upon the defendant.

Although the defendant was sentenced for all offenses on the same date, the

offenses of aggravated criminal damage to property and aggravated battery occurred

on different dates and under different circumstances. Therefore, the trial court did not

err when it ordered the sentences to run consecutively. La.Code Crim.P. art. 883. See

also State v. Charles, 02-443 (La.App. 3 Cir. 10/2/02), 827 So.2d 553, writ denied,

02-2707 (La. 3/28/03), 840 So.2d 569. This assignment of error lacks merit.

Conclusion

The conviction and sentence for aggravated battery in CR-538-2006 are

affirmed. The sentences imposed for the two counts of aggravated criminal damage

to property in CR-245-2006 are affirmed.

AFFIRMED.

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