State of Louisiana v. Brian Keith Thomas

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-269

STATE OF LOUISIANA

VERSUS

BRIAN KEITH THOMAS

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 75061-F
HONORABLE THOMAS F. FUSELIER, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Jimmie C. Peters, Billy Howard Ezell, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Carey J. Ellis, III
La. Appellate Project
707 Julia St.
Rayville, LA 71269
(318) 728-2043
Counsel for Defendant/Appellant:
Brian Keith Thomas

Trent Brignac
District Attorney, 13th Judicial District Court
P. O. Box 780
Ville Platte, LA 70586
(337) 363-3438
Counsel for Plaintiff/Appellee:
State of Louisiana

Julhelene E. Jackson
Assistant District Attorney, 13th Judicial District Court
P.O. Drawer 780
Ville Platte, LA 70586
(337) 363-3438
Counsel for Plaintiff/Appellee:
State of Louisiana

Brian Keith Thomas
Louisiana State Penitentiary
Camp J-Gar3A#12
Angola, LA 70712
Counsel for Defendant/Appellant:
Brian Keith Thomas

GREMILLION, Judge.

After a bench trial, Defendant, Brian Keith Thomas, was found guilty of

attempted second degree murder. He was sentenced to imprisonment for forty years,

at hard labor, without benefit of parole, probation, or suspension of sentence. He has

perfected this appeal wherein he alleges insufficient evidence to sustain a verdict of

attempted second degree murder and that the sentence is excessive under the

circumstances of the case. For the following reasons, we affirm.

FACTS

In the early morning of October 21, 2007, Defendant and one of his co-

defendants, Carvanski Fontenot, exchanged gunfire with persons outside the End

Zone Bar in Ville Platte, Louisiana. The victim, Shannon Fontenot, who was also

outside the bar, was shot. She survived the shotgun injury.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the State failed to prove beyond a reasonable doubt that

he possessed or shot a gun on the morning the victim was injured. Defendant argues

that it was his co-defendant who shot the victim by accident.

In State v. Bishop, 01-2548 (La. 1/14/03), 835 So.2d 434, the defendant argued

there was insufficient evidence to sustain his conviction for attempted second degree

murder. However, the supreme court affirmed the conviction. Discussing the

standard to be used to determine whether the evidence was sufficient, the supreme

court stated:

“In reviewing the sufficiency of the evidence to support a
conviction, an appellate court in Louisiana is controlled by the standard
enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he appellate
court must determine that the evidence, viewed in the light most
favorable to the prosecution, was sufficient to convince a rational trier

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of fact that all of the elements of the crime had been proved beyond a
reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).

To sustain a conviction for attempted second degree murder, the
state must prove that the defendant: (1) intended to kill the victim; and
(2) committed an overt act tending toward the accomplishment of the
victim's death. La. R.S. 14:27; 14:30.1. Although the statute for the
completed crime of second degree murder allows for a conviction based
on “specific intent to kill or to inflict great bodily harm,” La. R.S.
14:30.1, attempted second degree murder requires specific intent to kill.
State v. Huizar, 414 So.2d 741 (La.1982). Specific intent may be
inferred from the circumstances surrounding the offense and the conduct
of the defendant. La. R.S. 14:10(1); State v. Butler, 322 So.2d 189
(La.1975); State v. Martin, 92-0811 (La.App. 5 Cir. 5/31/94), 638 So.2d
411.

Id. at 437.

Furthermore, as stated by the Louisiana Supreme Court in State v. Hampton,

98-331, p. 13 (La. 4/23/99), 750 So.2d 867, 880, cert. denied, 528 U.S. 1007, 120

S.Ct. 504 (1999):

A person may be convicted of an offense even if he has not personally
fired the fatal shot. The law of principals states that all persons involved
in the commission of a crime, whether present or absent, are equally
culpable. See La. Rev Stat. 14:24. However, the Defendant’s mere
presence at the scene is not enough to “concern” an individual in the
crime. State v. Schwander, 345 So.2d 1173, 1174-1175 (La.1977). A
principal may be connected only to those crimes for which he has the
requisite mental state. State v. Holmes, 388 So.2d 722 (La.1980); State
v. McAllister, 366 So.2d 1340 (La.1978).

“Second degree murder is the killing of a human being: (1) When the offender

has a specific intent to kill or to inflict great bodily harm.” La.R.S. 14:30.1(A).

“Attempt” is defined as:

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.

La.R.S. 14:27(A).

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Finally, a principal is defined as “[a]ll persons concerned in the commission of

a crime, whether present or absent, and whether they directly commit the act

constituting the offense, aid and abet in its commission, or directly or indirectly

counsel or procure another to commit the crime, are principals.” La.R.S. 14:24.

In brief and at trial, Defendant argued that there was continuous acrimony

between the co-defendant, Carvanski Fontenot, and another person who was at the

bar, Mario Wilson; that it was Fontenot who was firing a gun at Wilson and

accidently shot the victim; and that Defendant was simply attempting to keep the

peace.

Carvanski Fontenot was the first to testify for the State. He explained that a

week prior to the shooting at the End Zone Bar, he and Defendant had a run-in with

a man named Raven Gallow. During this particular confrontation, a gold chain was

taken from Gallow and Fontenot fired a gun at Gallow’s car. Fontenot was arrested

and charged with offenses involving this event. Defendant had possession of the gold

chain. Fontenot testified that the argument over the gold chain continued until the

night of the current shooting when Mario Wilson got involved. At the bar, Gallow

began cursing at Fontenot and Wilson stepped in and told Fontenot that they

(Fontenot and Defendant) would have to go through him to get to Gallow.

Eventually, they all went outside.

Fontenot stated that Defendant had a 9 millimeter gun. Fontenot had a .357

revolver. Fontenot had initially given his gun to Kevin Wilson, who left the gun in

a car in a tire store parking lot across the street from the bar. After the two groups of

people left the bar and Fontenot and his group crrossed the street, Kevin Wilson gave

Fontenot his gun. Mario Wilson and Fontenot continued arguing and at some point,

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shots were fired from somewhere else. Fontenot testified that both he and Defendant

began shooting at Mario Wilson, who was attempting to flee. He said that he heard

Defendant fire three or four times, while he fired three times. He saw the victim fall,

but stated he did not know from which gun she was shot. He and Defendant then ran

behind the tire store where they gave their guns to Defendant’s sister and together

with Defendant’s girlfriend, they all left and drove to his aunt’s house. Shortly

thereafter, the police arrived and arrested them.

Kevin Wilson was at the bar the night of the shooting. He was also charged

with attempted second degree murder as a result of the victim’s gunshot injury. He

testified that although he knew Fontenot prior to the shooting, he did not know

Defendant. He stated he was at the bar with another friend. However, he testified

that when Fontenot had asked him to keep his gun, he put the gun in his sister’s car,

which was parked across the street from the bar. When the argument from the bar

came out to the street, he gave the gun to Fontenot upon his request. He said that

Defendant and Mario Wilson were arguing over the gold chain. When a gunshot

from somewhere else rang out, Defendant and Fontenot began shooting at Mario

Wilson. Defendant shot three or four times and Fontenot shot two or three times.

Patricia Eddings, a trace analyst with the Tarrant County Medical Examiner’s

Office in Fort Worth, Texas, testified that she found gunshot residue on both

Defendant’s and Fontenot’s hands. Craig Nickolas, a detective with the Ville Platte

Police Department, applied gunshot residue swab kits to both men shortly after they

were arrested the morning of the shooting. Detective Nickolas further testified that

he recovered three 9 millimeter casings from the tire store parking lot and recovered

the core bullet removed from the victim.

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Christopher Henderson, a forensic chemist with Acadiana Criminalistic

Laboratory analyzed the casings and the core bullet and testified that the casings were

fired from the same gun. He stated that the core bullet was consistent with a .38

caliber which included a 9 millimeter, .357, or a .38 special.

Drashandra Thomas, Defendant’s first cousin, testified she was at the End Zone

Bar when the shooting occurred. She was aware of the animosity between Fontenot

and Wilson inside the bar. She stated she was with the victim outside and saw

Defendant, Fontenot, Kevin Wilson, and one other person with guns. She said that

she saw Defendant’s sister give him the gun.

In brief, Defendant argues that Carvanski Fontenot’s and Kevin Wilson’s

testimonies were self-serving as they, too, were charged with the offense of attempted

second degree murder, but had not yet been tried. He argues that there was never a

gun recovered connected to him and that he was actually attempting to defuse the

matter at the time of the shoot-out. Several witnesses testified that he did not have

a gun. Kimberly Jack, a jailer with the local marshall’s office, was at the bar the

morning of the shoot-out. She stated she knew both Defendant and Fontenot and said

she did not see anyone with a gun inside the bar. Avery Wilson, the father of the

victim’s children, stated he saw only Carvanski Fontenot shooting. He initially

testified he did not see Defendant in the tire store parking lot, but later stated that he

saw Defendant and Fontenot walk together across the street to parking lot. Raven

Gallow testified that Defendant gave the gold chain back to him prior to the shoot-

out. He stated that although he heard the shots, he did not see who was shooting

guns.

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Savannah Wilson, Mario Wilson’s cousin and Avery Wilson’s brother, testified

that the problem at the bar was between Carvanski Fontenot and Mario Wilson, and

that they had no problem with Defendant. When asked if he saw Defendant with a

gun, he replied, “No sir. I ain’t seen nobody had a gun.” Gene Wilson, Mario

Wilson’s brother, testified he was at the bar with his girlfriend, Drashandra Thomas.

He testified that he saw Fontenot with a gun when the shooting first started, but he

did not see Defendant with a gun. He said he grabbed his brother and ran after the

first shots rang out.

Finally, Defendant argues Drashandra Thomas’s trial testimony was “fraught

with inconsistencies and contradictions,” and in conflict with her statement given to

the police. Further, she admitted to the police she was high on ecstacy at the time of

the shooting and at the time she gave her statement. However, Defendant does not

point to where her trial testimony was in conflict with her statement to the police. A

review of the statement shows that her trial testimony was consistent with her

statement in that she named Defendant, Carvanski Fontenot, Kevin Wilson, and one

other person as participating in the shoot-out.

Following his discussion of the facts, Defendant concludes in brief, that the

State failed to show that he possessed the specific intent to kill Shannon Fontenot;

therefore, there was insufficient evidence to support the verdict of attempted second

degree murder. However, the State was not required to prove that Defendant had the

specific intent to kill the victim. In this case, the State had only to prove that there

was specific intent to kill the intended victim, which according to Fontenot’s

testimony was Mario Wilson. The acrimony between the two men was well-

established by both the State’s witnesses and Defendant’s witnesses.

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Specific intent may be established by the circumstances surrounding an

accused’s actions. 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. It is well-settled that the act

of pointing a gun at a person and firing the gun is an indication of the intent to kill

that person. State v. Pierre, 02-277 (La.App. 3 Cir. 6/11/03), 854 So.2d 945, writ

denied, 03-2042 (La. 1/16/04), 864 So.2d 626; State v. Reed, 00-1537 (La.App. 3 Cir.

3/6/02), 809 So.2d 1261, writ denied, 02-1313 (La. 4/25/03), 842 So.2d 391; State v.

Clark, 93-1470 (La.App. 3 Cir. 10/5/94), 643 So.2d 463, writ denied, 94-2715 (La.

2/9/95), 649 So.2d 418. Testimony established that each shooter, Defendant and

Fontenot, fired their guns three to four times at the intended victim.

Furthermore, its irrelevant that the two men were aiming at Mario Wilson and

not the actual victim, the doctrine of transferred intent applies in this case. The third

circuit explained transferred intent in State v. Wright, 99-1137, p. 11 (La.App. 3 Cir.

3/1/00), 758 So.2d 301, 307, writ denied, 00-1614 (La. 3/9/01), 786 So.2d 118, as

follows:

The law of transferred intent was explained by our brethren of the
first circuit in State v. Druilhet, 97-1717 (La.App. 1 Cir. 6/29/98); 716
So.2d 422, a case similar to the case sub judice. In Druilhet, the
defendant was charged with aggravated battery and, after a trial by jury,
was found guilty of the responsive offense of second degree battery. In
his claim that the evidence was insufficient to support his conviction,
the defendant argued that he lacked the intent necessary for a conviction
of second degree battery because he meant to hit his brother and did not
mean to hit or cause serious injury to the victim. The court noted that
under the theory of transferred intent, if the defendant possessed the
necessary intent to inflict serious bodily injury when trying to hit his
brother, but missed and accidentally hit someone else instead, such
intent is transferred to the actual victim. See also State v. Johnson,
29,629 (La.App. 2 Cir. 8/20/97); 698 So.2d 1051; State v. Jordan,
97-1756 (La.App. 4 Cir. 9/16/98); 719 So.2d 556, writ denied, 98-2595
(La.1/15/99); 736 So.2d 207. Thus, if the Defendant had the specific
intent to stab Searile with the scissors, and inadvertently stabbed

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Pickney, then the Defendant possessed the necessary intent for the
conviction of the second degree battery of Pickney.

See also, State v. Henderson, 99-1945 (La.App. 1 Cir. 6/23/00), 762 So.2d 747, writ

denied, 00-2223 (La. 6/15/01), 793 So.2d 1235, and State v. Gilliam, 36,118 (La.App.

2 Cir. 8/30/02), 827 So.2d 508, writ denied, 02-3090 (La. 11/14/03), 858 So.2d 422.

Finally, it is of no consequence which man’s bullet injured the victim. When

the two men began shooting together, they were acting in concert and each became

a principal to whatever damage the other’s gun inflicted, as each exhibited the

requisite mental state to inflict death on the intended victim. Three eyewitness

testified that Defendant and Fontenot discharged their guns, aiming for Mario Wilson.

The victim, who was standing in the vicinity of the intended victim, was struck by a

bullet. The witnesses’ testimonies were consistent with each other and with the

physical evidence. Both men had gunshot residue on their hands. Considered in a

light most favorable to the prosecution, the evidence was sufficient for the trial court

to conclude beyond a reasonable doubt that Defendant was guilty of the crime

charged.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that under the circumstances of the case, the sentence of forty

years imprisonment is excessive. Furthermore, he argues that because his co-

defendant, Carvanski Fontenot, received only a ten year sentence pursuant to a plea

agreement, his sentence by comparison constitutes cruel and unusual punishment.

Defendant was convicted of attempted second degree murder, a violation of

La.R.S. 14:30.1 and 14:27, which provides for a range of punishment of not less than

ten years and not more than fifty years imprisonment, without the benefit of parole,

probation, or suspension of sentence. Defendant received forty years.

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To determine whether a sentence is constitutionally excessive, this court has

stated:

La. Const. art. 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
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.

Moreover, in 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, this court held that in

order to decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, the following factors may be

considered:

[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.

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At the hearing, the trial court stated for the record:

The Court is called upon to sentence the defendant, Mr. Brian
Keith Thomas, who was convicted by this Court of the crime of
Attempted Second Degree Murder. In arriving at the sentence, the Court
has carefully considered the pre-sentence investigation report, the
victim’s impact statement, and all of the sentencing guidelines of
Louisiana Code of Criminal Procedure Article 894.1. Specifically, the
Court considered the fact that the defendant has an extensive criminal
record, including at least four other felony convictions which include at
least two for violent crimes. In the present case, Mr. Thomas fired his
weapon at another individual with total disregard for the welfare of
others, striking a pregnant, innocent bystander, causing serious injuries.
It is obvious that Mr. Thomas cannot properly function in society and is
in need of additional correctional treatment and a custodial environment
provided by his commitment to a penal institution. A modest sentence
would greatly deprecate the seriousness of defendant’s crimes.

Following sentencing, Defendant asked for reconsideration of the sentence,

pointing out to the trial court that Carvanski Fontenot received only ten years for his

involvement in the shoot-out. While Fontenot was originally charged with attempted

second degree murder, under the plea agreement he pled guilty to aggravated second

degree battery, which provides for a maximum sentence of fifteen years

imprisonment. La.R.S. 14:34.7(B). The trial court denied the motion in open court

without giving reasons. In brief, Defendant argues that “[u]nder these circumstances,

and considering the disparity in the sentences of Defendant and his co-defendant,

forty years does seem to shock one’s sense of justice.”

In State v. Dixon, 03-160, p. 11 (La.App. 3 Cir. 6/4/03), 852 So.2d 471, 478,

this court held:

The sentence imposed on the co-defendant has no bearing on the
sentence imposed upon the Defendant. “[I]t is well settled that a
sentence must be individualized as to each defendant....” State v.
Williams, 677 So.2d 692 (La.App. 3 Cir.1996); State v. Lemelle, 502
So.2d 130 (La.App. 3 Cir.1987).” State v. Lofton, 97-00383 (La.App.
3 Cir. 10/8/97); 701 So.2d 712, 715, writ denied, 98-0389 (La.6/5/98);
720 So.2d 679. The disparity in a sentence imposed upon co-defendants

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“is only a factor to be considered along with all other appropriate
considerations when there is no reasonable basis in the record for the
disparity. State v. Sims, 410 So.2d 1082 (La.1982).” State v. Quimby,
419 So.2d 951, 962 (La.1982).

Considering all of the relevant factors, we find the trial court did not abuse its

vast discretion when it sentenced Defendant to forty years imprisonment. The trial

court noted for the record that it had taken into consideration the pre-sentence

investigation report, which summarized Defendant’s background, work history, and

family life. The trial court noted that Defendant had an extensive criminal history,

including four felonies, two of which were crimes of violence. A review of the record

indicates that the trial court took adequate cognizant of the sentencing considerations

set out in La.Code Crim.P. art. 894.1. Moreover, Defendant’s act of firing into a

crowd of people endangered multiple lives, as evidenced by the accidental shooting

of a pregnant woman who happened to be in the crowd.

Furthermore, a forty-year sentence for attempted second degree murder is not

an uncommon sentence under similar circumstances. In State v. McCoy, 34,835

(La.App. 2 Cir. 6/20/01), 792 So.2d 806, writ denied, 01-2186 (La. 6/21/02), 818

So.2d 790, the second circuit affirmed a forty-year sentence imposed on the defendant

who was convicted of attempted second degree murder despite the fact that he did not

have a criminal history. In that case, the defendant had stalked a former girlfriend

and laid in wait for her before shooting her four times.

In State v. Ethridge, 96-1050 (La.App. 3 Cir. 2/5/97), 688 So.2d 1274, this

court affirmed a sentence of forty-five years for attempted second degree murder even

though Ethridge had no prior criminal record. The defendant fired six shots into the

victim’s residence through a bedroom window, severely wounding the victim. In

State v. Owens, 606 So.2d 876 (La.App. 2 Cir. 1992), Owens alleged his thirty-year

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sentence for attempted second degree murder was excessive because he was only

twenty-five and had no prior criminal history. Owens had fired several shots at the

victim in a crowded barroom. The second circuit affirmed the sentence.

Under the circumstances the forty year sentence is not such that would shock

this court’s sense of justice. Accordingly, there is no merit to Defendant’s assertion

that his sentence for forty years imprisonment was excessive under the circumstances

of the case.

DECREE

Defendant’s conviction and sentence are affirmed.

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