State of Louisiana v. Willis J. Mouton AKA Willis James Mouton

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-836

STATE OF LOUISIANA

VERSUS

WILLIS J. MOUTON AKA
WILLIS JAMES MOUTON

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 130280.1
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

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Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery,
Judges.

AFFIRMED; SENTENCE VACATED
AND REMANDED WITH INSTRUCTIONS.

Michael Harson
District Attorney
J. N. Prather, Jr.
Assistant District Attorney
Post Office Box 3306
Lafayette, Louisiana 70502-3306
(337) 232-5170
Counsel for Appellee:
State of Louisiana

Edward Kelly Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602-1641
(337) 491-0570
Counsel for Defendant/Appellant:
Willis J. Mouton

KEATY, Judge.

Defendant, Willis J. Mouton, also known as Willis James Mouton, was

charged by bill of information filed on August 24, 2010, with simple burglary of an

automobile, a violation of La.R.S. 14:62, and public intimidation, a violation of

La.R.S. 14:122. Defendant entered a plea of not guilty on August 30, 2010.

Defendant waived his right to trial by jury on November 8, 2011, and the matter

proceeded to trial before the bench. Defendant was subsequently found guilty as

charged. On December 12, 2011, Defendant was sentenced to twelve years for

simple burglary and to five years at hard labor for public intimidation. The

sentences were to be served concurrently.

Defendant filed a motion for appeal on December 20, 2011, asserting two

assignments of error. Therein, he contends the evidence was insufficient to

support his convictions for simple burglary and public intimidation, and his

sentences are excessive.

FACTS

Defendant was convicted of the simple burglary of a car belonging to Vergie

Clay (Clay) and of the public intimidation of Officer Calvin Parker (Officer

Parker).

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,

there is an error patent regarding Defendant‟s simple burglary sentence. Louisiana

Revised Statutes 14:62 carries a term of imprisonment for not more than twelve

years with or without hard labor. The trial court imposed a twelve-year sentence

for simple burglary without specifying whether it was to be served with or without

hard labor.

Although the court minutes and the commitment order indicate the simple

burglary sentence was imposed at hard labor, the transcript does not reflect this.

“[W]hen the minutes and the transcript conflict, the transcript prevails.” State v.

Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied,

00-2051 (La. 9/21/01), 797 So.2d 62. The trial court‟s failure to specify whether

the sentence for simple burglary was to be served with or without hard labor

rendered the sentence indeterminate, requiring the sentence be vacated and the case

remanded for resentencing with the trial court being instructed to specify whether

the sentence is to be served with or without hard labor. See State v. Matthew, 07-

1326 (La.App. 3 Cir. 5/28/08), 983 So.2d 994, writ denied, 08-1664 (La. 4/24/09),

7 So.3d 1193. Accordingly, Defendant‟s sentence for simple burglary is vacated,

and the case is remanded for resentencing. At the resentencing, the trial court is

ordered to specify whether the sentence is to be served with or without hard labor.

Additionally, there is an error patent regarding the trial court‟s advisement

of the prescriptive period of La.Code Crim.P. art. 930.8. Following sentencing, at

a separate proceeding in which Defendant was not present, the trial court in open

court set forth the prescriptive period for filing post-conviction relief pursuant to

La.Code Crim.P. art. 930.8. Defendant‟s attorney was present at the proceeding.

Louisiana Code of Criminal Procedure Article 930.8(C) provides:

At the time of sentencing, the trial court shall inform the
defendant of the prescriptive period for post-conviction relief either
verbally or in writing. If a written waiver of rights form is used
during the acceptance of a guilty plea, the notice required by this
Paragraph may be included in the written waiver of rights.

The record before this court does not indicate that the notice of the

prescriptive period was given to Defendant. Thus, the trial court is ordered to

inform Defendant of the provisions of Article 930.8 at resentencing.

2

ASSIGNMENT OF ERROR NO. 1

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

finding him guilty of simple burglary of an automobile and public intimidation.

The standard of review in a sufficiency of the evidence claim is
“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.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108,
170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100
(2007) (citing 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)). The Jackson standard of review is now legislatively
embodied in La.Code Crim.P. art. 821. It does not allow the appellate
court “to substitute its own appreciation of the evidence for that of the
fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d
517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d
1165). The appellate court‟s function is not to assess the credibility of
witnesses or reweigh the evidence. State v. Smith, 94-3116
(La.10/16/95), 661 So.2d 442.

The factfinder‟s role is to weigh the credibility of witnesses.
State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268.
Thus, other than insuring the sufficiency evaluation standard of
Jackson, “the appellate court should not second-guess the credibility
determination of the trier of fact,” but rather, it should defer to the
rational credibility and evidentiary determinations of the jury. Id. at
1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir.
9/30/98), 720 So.2d 724, 726-27).

However, an appellate court may impinge on the
fact finder‟s discretion and its role in determining the
credibility of witnesses “only to the extent necessary to
guarantee the fundamental due process of law.” State v.
Mussall, 523 So.2d 1305, 1310 (La.1988). In
determining the sufficiency of the evidence supporting a
conviction, an appellate court must preserve “ „the
factfinder‟s role as weigher of the evidence‟ by
reviewing „all of the evidence . . . in the light most
favorable to the prosecution.‟ ” McDaniel v. Brown, 558
U.S. 120, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,
2789, 61 L.Ed.2d 560 (1979)). When so viewed by an
appellate court, the relevant question is whether, on the
evidence presented at trial, “any rational trier of fact
could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson, 443 U.S. at 319,
99 S.Ct. at 2789. Applied in cases relying on
3

circumstantial evidence, . . . this fundamental principle of
review means that when a jury “reasonably rejects the
hypothesis of innocence presented by the defendant[ ],
that hypothesis falls, and the defendant is guilty unless
there is another hypothesis which raises a reasonable
doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother, 09-2357, pp. 10-11 (La.10/22/10), 49 So.3d 372,
378.

State v. McKithern, 11-1402, pp. 6-7 (La.App. 3 Cir. 5/2/12), 93 So.3d 684, 691.

Defendant was convicted of simple burglary of an automobile.

In order to obtain a conviction for simple burglary, the elements
of the crime must be proven beyond a reasonable doubt. The
elements of the crime at issue, simple burglary, are contained in
La.R.S. 14:62:

Simple burglary is the unauthorized entering of
any dwelling, vehicle, watercraft, or other structure,
movable or immovable, with the intent to commit a
felony or any theft therein. . . .

Like most felonies, burglary consists of an act element and an intent
element. La.R.S. 14:7, 14:8. The act element, or actus reus, is the
unauthorized entry of a dwelling or vehicle. The intent element, or
mens rea, is the specific intent to commit a theft (or other felony) in
the dwelling or vehicle. State v. Maxie, 614 So.2d 1318 (La.App. 3
Cir.1993). Theft is defined by La.R.S. 14:67(A) as follows:

Theft is the misappropriation or taking of anything
of value which belongs to another, either without the
consent of the other to the misappropriation or taking, or
by means of fraudulent conduct, practices, or
representations. An intent to deprive the other
permanently of whatever may be the subject of the
misappropriation or taking is essential.

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

72.

Defendant was also convicted of public intimidation.

La.R.S. 14:122(1) defines public intimidation as the use of
violence, force or threats upon a public officer or employee with the
intent to influence his conduct in relation to his position, employment
or duty. Without question, a law enforcement officer is such a public
officer or employee.
4

The offense of public intimidation requires specific criminal
intent. Public intimidation is not simply the intentional use of force or
threats upon an officer, but rather the use of force or threats upon the
officer with the specific intent to influence the officer‟s conduct in
relation to the officer‟s duties. State v. Jones, 00-980 (La.App. 5th
Cir.10/19/00), 772 So.2d 788; State v. Meyers, 94-231 (La.App. 5th
Cir.09/14/94), 643 So.2d 1275.

Specific intent is defined as that state of mind which exists
when the circumstances indicate that the offender actively desired the
prescribed criminal consequences to follow his act or failure to act.
La.R.S. 14:10(1). Specific intent is a state of mind and, as such, need
not be proven as a fact but may be inferred from the circumstances
and actions of the accused. State v. Harris, 00-3459 (La.02/26/02),
812 So.2d 612; State v. Kahey, 436 So.2d 475 (La.1983); State v.
Ellis, 28,282 (La.App.2d Cir.06/26/96), 677 So.2d 617, writ denied,
96-1991 (La.02/21/97), 688 So.2d 521.

State v. Mead, 36,131, pp. 1-2 (La.App. 2 Cir. 8/14/02), 823 So.2d 1045, 1046-47,

writ denied, 02-2384 (La. 3/14/03), 839 So.2d 34.

Clay testified that on or about June 26, 2010, she owned a 2004 Ford Focus.

Clay stated that someone whom she did not know busted her car window. She

further testified that she did not know Defendant and did not give him permission

to break the window or enter the car.

Detective Andrew Vanhoossier (Detective Vanhoossier) testified that he was

conducting a special operation on the date in question due to a rash of car

burglaries in the area surrounding Jefferson Street. Detective Vanhoossier testified

that at approximately 2:00 a.m. Officers Calvin Parker and Moniqua Porter

observed a car with a shattered window. They observed suspects in the area, and

when they drove up, the suspects ran. As the first suspect ran by, Detective

Vanhoossier caught him. Police then began searching for the second suspect, a

black male wearing a light blue shirt with braided hair. Ten to fifteen minutes

later, Detective Vanhoossier saw a black male who was not wearing a shirt sitting

on the curb of the Acadiana Outreach Center, a homeless shelter. Detective
5

Vanhoossier approached the man and detained him. Next to the man was a light

blue shirt and a bandanna which had a chain wrapped in it and which contained

glass fragments. The man was brought back to the scene and was identified by the

other suspect as the person he had previously been with. Detective Vanhoossier

testified that the second man apprehended had braids in his hair.

Detective Vanhoossier and Officer Parker testified that neither saw

Defendant enter the car. Further, they both testified that, to their knowledge,

Defendant did not take anything from the car.

Officer Parker was also questioned regarding threats made by Defendant as

follows:

BY MR. PRATHER:

Q: Also, during the apprehension and detention of Willis Mouton,
this defendant, did he threaten to – did he make any threats to you?

BY OFFICER PARKER:

A: Yes, he kept saying we would be sorry for arresting him. He‟s
was going to sue us and he was going to get our jobs. So, --

BY MR. PRATHER:

Q: Do you think he was trying to influence your behavior at that
time?

....

A: Yes.

....

BY MR. ALONZO:

Q: Just on that subject, while we are on that. He didn‟t threaten you
with any bodily injuries, correct?

BY OFFICER PARKER:

A: No, sir. He was handcuffed.

6

BY MR. ALONZO:

Q: He didn‟t threaten to kill you or anything?

BY OFFICER PARKER:

A: No, sir.

BY MR. ALONZO:

Q: Just told you he was going to exercise his right to a civil law suit,
right?

BY OFFICER PARKER:

A: No, he said he was going to take my job; he was going to get my
job.

BY MR. ALONZO:

Q: He also told you that –

BY OFFICER PARKER:

A: He was going to sue me.

Simple Burglary

Defendant asserts the State failed to prove he shattered the window of the

car belonging to Clay or that he entered the car with the specific intent to commit a

felony or theft therein. Defendant points out that no one testified they saw him

break the window. Additionally, nothing was removed from the car. Defendant

asserts the only evidence of a possible crime was the glass fragments in the

bandana found next to him and the fact that he fled from police. Defendant

contends that this evidence was not sufficient to prove he had the specific intent to

commit a felony or theft inside the car.

In support of his argument, Defendant cites State in Interest of S.P., 11-1598

(La.App. 4 Cir. 5/2/12), 90 So.3d 528. Therein, the juvenile was adjudicated

delinquent for simple burglary of an automobile. He appealed, alleging the

7

evidence was insufficient to support his adjudication. Evidence adduced at the

adjudication hearing indicated the window of an automobile was broken.

The fourth circuit found:

Even viewed in the light most favorable to the prosecution,
although the window was smashed there is no evidence of entry into
the vehicle. Further, although smashing a window constitutes
evidence of the intent to damage the vehicle . . . it does not necessarily
constitute evidence of an intent to enter the vehicle as, concomitantly,
would be required to find him guilty of the lesser criminal offense of
attempted simple burglary. See La.Code Crim. Proc. art. 814(A)(43);
La.Rev.Stat. 14:62. Accordingly, the judgment of the juvenile court is
reversed with respect to the adjudication for simple burglary.

Id. at 533.

In the present case, we affirm the trial court‟s ruling with respect to simple

burglary in light of the supreme court‟s ruling in State v. Bryant, 12-233 (La.

10/16/12), 101 So.3d 429. In Bryant, the defendant was convicted of simple

burglary of an inhabited dwelling and aggravated burglary. Upon finding that the

evidence was insufficient to establish that the defendant had entered the victim‟s

home, the second circuit set aside the conviction and sentence for aggravated

burglary and remanded for entry of judgment of conviction on the charge of

attempted aggravated burglary. Upon the State‟s application for certiorari, the

supreme court held the victim‟s testimony that the defendant never entered his

home did not preclude a finding of an entry based on the legal definition of entry in

the context of an alleged burglary offense. The supreme court thereafter reversed

the second circuit‟s ruling and reinstated the trial court‟s conviction for aggravated

burglary.

Specifically, the supreme court held:

Based on the evidence presented at trial, the fact of entry was a
reasonable inference when defendant kicked in the door of the house
and fully extended his arm in shooting the gun from the step. Thus,
we find the court of appeal erred when it held that the State was
8

required to directly prove that defendant‟s foot crossed the threshold
of Mr. Goetz‟s house. Viewing the evidence in the light most
favorable to the prosecution, we find the evidence was sufficient
under Jackson for the trial judge to find an entry was made.
Considering the reasons given by the trial judge, we cannot say his
finding was erroneous. For the above reasons, we reverse the ruling
of the court of appeal and reinstate defendant‟s conviction for
aggravated burglary as well as the second-felony habitual offender
adjudication and sentence on that count.

Id. at 435.

In the present case, the following circumstantial evidence indicates

Defendant broke the glass and had an intent to commit a felony or theft therein:

1. The owner of the car did not know Defendant or give him
permission to break her car window. There was no reason to break
the window shown by the evidence except that Defendant was
attempting a simple burglary;

2. Testimony from Detective Vanhoossier that he was conducting a
special operation on the date in question due to the rash of car
burglaries surrounding Jefferson Street;

3. The incident occurred at approximately 2:00 a.m. in the very area
where the car burglaries were occurring;

4. When Defendant and his accomplice saw the police arrive, they
took off running. Detective Vanhoossier caught the first suspect,
Defendant‟s accomplice, as he ran by. Defendant was
subsequently apprehended less than fifteen minutes later. Thus,
Defendant was thwarted by the police and was actually running
away from the police before he could accomplish his intended
purpose of burglarizing the vehicle. “Flight indicates
consciousness of guilt and is a circumstance from which a jury
may infer guilt.” State v. Gatti, 39,833, p. 9 (La.App. 2 Cir.
10/13/05), 914 So.2d 74, 85, writ denied, 05-2394 (La. 4/17/06),
926 So.2d 511;

5. Defendant was the individual sitting on the curb and had on a light
blue shirt and a bandana, which had a chain wrapped in it and
contained glass fragments consistent with the broken car window.
He also matched the description given of the fleeing suspect;

6. Defendant was brought back to the scene and was positively
identified by the first suspect, the accomplice, as the person he, the
accomplice, had previously been with at the scene; and

9

7. Officer Parker testified that Defendant was one of the persons he
saw running from the scene, but he did not see the actual breaking
of the glass as the window was already shattered when Officer
Parker came upon the vehicle.

Based on the foregoing evidence presented at trial, the fact of entry was a

reasonable inference when Defendant broke the glass window. By breaking the

glass window, some part of Defendant‟s person would have extended inside of the

car. Viewing the evidence in the light most favorable to the prosecution, we find

the evidence was sufficient under Jackson for the trial court to have found that an

unauthorized entry of the victim‟s vehicle was made for the purpose of committing

a felony or theft. We cannot say its finding was erroneous. For the above reasons,

we affirm Defendant‟s conviction for simple burglary.

Public Intimidation

Defendant contends the evidence was insufficient to support his public

intimidation conviction, as there was no evidence that he tried to influence the

conduct of Officers Parker and Porter by the statements he made. Defendant

asserts he was merely venting his anger, as he felt he was being harassed by police

for no reason. He further asserts that he did not have the specific intent to attempt

to influence the conduct of the officers in relation to their position, employment, or

duty.

In Mead, 823 So.2d 1045, the defendant was arrested in his home after a

domestic violence incident. While being transported to the police station, the

defendant stated: “„I should have shot you this time,‟ and something to the effect

of, „if you come back again you better bring your arsenal.‟ Additionally, defendant

said, „I‟ll do everything I can to get your damn badge,‟ and „in about two hours

you make the trip back to my house.‟” Id. at 1048. The officer testified that he

thought the threats were made to influence his actions. The second circuit affirmed
10

the public intimidation conviction, stating that the defendant made the threats

“before he actually arrived at the police station and was booked with the specific

intent to influence” the officer‟s conduct, “i.e., to persuade him not to complete the

arrest or certainly not to respond to any other calls from defendant‟s residence after

defendant‟s release on bond.” Id. at 1048.

In State v. Stamps, 06-971 (La.App. 5 Cir. 5/15/07), 960 So.2d 237, the

defendant, Damond Stamps, was convicted of public intimidation. At trial, Deputy

Douglas Graffeo testified that he responded to a domestic disturbance involving

Stamps‟ brother, and Stamps “kept interjecting himself into the investigation while

[he] was attempting to interview [the victim].” Id. at 238. Officer Graffeo further

testified:

[I] told Stamps to leave or he would be arrested for interfering with
the investigation. As Stamps left, he put up his hand in a motion
imitating a firearm and said, “[Y]ou screwing up, we gonna get you”
and imitated a hammer falling.

Deputy Graffeo testified he then told Stamps he was under
arrest and to go to the patrol car. He stated that Stamps responded,
“[Y]ou don‟t tell me what to do bitch, you don‟t know who I am.”
According to Deputy Graffeo, Stamps started to puff out his chest and
held his arms out as if he was preparing to fight but became compliant
after Deputy Graffeo pulled out his Taser. Deputy Graffeo testified
Stamps yelled, “[Y]a‟ll [sic] f* * *ing up, you don‟t know who I am.
My uncle‟s a representative. Ya‟ll [sic] fired. I‟m going to have your
jobs for this. Ya‟ll [sic] fired.” Deputy Graffeo testified he then
placed Stamps in the rear of his patrol car and began to advise him of
his rights but was interrupted with Stamps stating, “[Y]ou don‟t tell
me my rights. I know my rights. I‟ve been arrested like a thousand
times. I‟m a bad mother f* * *er.” Thereafter, Stamps repeated his
rights to Deputy Graffeo.

According to Deputy Graffeo, while Stamps was in the car and
they began to drive away, Stamps then made several threats against
Sergeant Ragas, indicating he had allowed Sergeant Ragas to live on
three separate occasions previously and that would no longer be the
case. Although Sergeant Ragas was by the car at this time, he did not
know if Sergeant Ragas heard these threats against him because he
was engaged in a discussion with someone on the scene.

11

Deputy Graffeo testified that had he not drawn his Taser, he
would have had to physically fight Stamps. He further stated that he
felt Stamps would most likely file a complaint with internal affairs,
that he believed Stamps could conceivably carry out his threat, and
that he thought his job could be in danger. Deputy Graffeo testified
he believed Stamps‟ statements were made to influence him to „„un-
arrest‟‟ him or go with a lower charge. Deputy Graffeo believed
Stamps meant he was going to have their jobs because they were
arresting him. On cross-examination, Deputy Graffeo testified that
Stamps did not specifically state that “I am going to have your job if
you don‟t release me from arrest,” although it was implied.

. . . Sergeant Ragas testified that, while he was trying to get Stamps to
keep his hands on the patrol car and pat him down, Stamps made
threats against the officers‟ jobs because someone in his family was a
representative. Sergeant Ragas had personal knowledge this might be
true and was intimidated, believing he might be in internal affairs the
next day. He believed that Stamps made these statements to get out of
going to jail and that he was trying to influence them to release him or
not arrest him. At one point, Sergeant Ragas testified that he believed
that the threats toward him were made after the arrest but then stated
that Stamps did intimidate him prior to the arrest until the time they
“affected the arrest.”

Id. at 238-39.

In Stamps, the fifth circuit stated the following:

This Court has previously reviewed the cases cited above [State
v. Love, 602 So.2d 1014 (La.App. 3 Cir. 1992), and State v. Hall, 441
So.2d 429 (La.App. 2 Cir. 1983)] and found that the common thread
running through them is the consideration of whether the threats are
made in anger as revenge or retaliation, or whether they are made in
an attempt to influence the conduct of the public officer in relation to
his or her duties. Each case turns on the facts presented. . . .

Although Stamps‟ argument focuses on the timing of the threats
as being made after he was arrested, the public intimidation statute
does not have an arrest element, but more broadly includes “conduct
in relation to his position, employment, or duty[.]” LSA-R.S. 14:122.
In the present case, Deputy Graffeo testified that, when he asked
Stamps to step away, Stamps imitated pointing a firearm, saying,
“[Y]ou screwing up, we gonna get you,” prior to Stamps being taken
into custody. Thus, at least some of the threats against the officers
were made prior to Stamps being physically apprehended, being
placed in the rear of the patrol car, and read his Miranda rights. Even
if Stamps was arrested at the time the threats were made, he
threatened the officers before he was transported and booked.

12

The jury could have believed that the officers‟ duties did not
end with the arrest. Once in custody, a defendant must be transported
and booked. Even thereafter, the officers‟ duties could continue,
requiring them to testify as a witness at Stamps‟ trial. The content of
Stamps‟ threats reflect that he thought he had a political connection
which could be used to benefit him in this situation by influencing the
officers‟ conduct. Even if Stamps made the threats to avoid arrest
when he had actually already been arrested, the jury could have
believed that Stamps felt he could still influence the officers‟ conduct
since, at the time, he had not yet been handcuffed, read his rights, put
in the patrol car, or taken to the station and booked. Sergeant Ragas
testified he believed Stamps was trying to influence their decision and
to release him or not arrest him. Also, he testified Stamps intimidated
him prior to the arrest until the time they “affected the arrest.” Deputy
Graffeo testified he believed Stamps‟ statements were made to
influence him to “un-arrest” him or to go with a lower charge.

On the evidence presented, the jury could have found that the
threats were made not in retaliation or revenge but, rather, were made
to influence the officers‟ conduct by means of a political connection.
A rational trier of fact could have inferred the requisite specific intent
to influence the officers‟ conduct from Stamps‟ threats.

Id. at 241-42 (footnotes omitted).

In the case before us, Officer Parker was asked if Defendant made any

threats “during the apprehension and detention.” Officer Parker indicated the

threats were made after Defendant had been arrested and handcuffed. He did not

indicate if they were made in front of the homeless shelter, after Defendant was

identified by the co-perpetrator, on the way to the police department, during

booking, or at some other time. Officer Parker responded affirmatively when

asked if he thought Defendant was trying to influence his behavior but was not

asked what he thought Defendant was attempting to persuade him to do. Further,

there was no testimony regarding Defendant‟s demeanor when he made the

remarks at issue.

In Stamps, 960 So.2d 237, the fifth circuit noted the public intimidation

statute did not have an arrest or temporal element. The fifth circuit stated that

officers‟ duties could continue from arrest through trial. In Mead, 823 So.2d 1045,
13

the second circuit concluded that threats of physical violence and employment

termination before arrival at the police station and booking were made with the

specific intent not to complete the arrest, among other reasons, and the jury could

have reasonably found the defendant guilty of public intimidation.

Although Defendant had been arrested when he made the comments at issue,

Officer Parker testified that he felt Defendant was trying to influence his behavior.

Accordingly, based on the evidence presented and the decisions in Stamps, 960

So.2d 237, and Mead, 823 So.2d 1045, the trial court could have inferred the

requisite specific intent to influence the officers‟ conduct from Defendant‟s threats

and could have found the threats made by Defendant were made not in retaliation

or revenge but to influence the officers‟ conduct. Accordingly, Defendant‟s

conviction for public intimidation is affirmed.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, Defendant contends the trial court erred in

imposing an excessive sentence. We do not agree.

This court discussed the standard of review applicable to claims of

excessiveness in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867

So.2d 955, 958-59, as follows:

The Eighth Amendment to the United States Constitution and
La. Const. art. I, § 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)). Still, 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. However, “[m]aximum 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
14

the trial court abused its broad 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).

The fifth circuit, in Lisotta, 726 So.2d at 58, stated that the
reviewing court should consider three factors in reviewing the trial
court‟s sentencing discretion:

1. The nature of the crime,

2. The nature and background of the offender, and

3. The sentence imposed for similar crimes by the same court
and other courts.

Defendant also was convicted of public intimidation, which is punishable by

a fine of not more than one thousand dollars or imprisonment, with or without hard

labor, for not more than five years, or both. See La.R.S. 14:122. Defendant was

sentenced to serve five years at hard labor to run concurrent with the simple

burglary sentence. No fine was imposed.

Defense counsel failed to object to the sentence or file a motion to

reconsider sentence. In State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772

So.2d 356, the defendant failed to object to the sentence imposed at the sentencing

hearing and did not timely file a motion to reconsider sentence. Thus, this court

found his claim of excessiveness of sentence was barred. See also State v.

Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La.

1/31/03), 836 So.2d 59.

However, this court has reviewed claims of excessiveness where no

objection was made and no motion to reconsider sentence filed. See, e.g., State v.

Quinn, 09-1382 (La.App. 3 Cir. 5/12/10), 38 So.3d 1102, writ denied, 10-1355 (La.

1/7/11), 52 So.3d 885. Accordingly, we review Defendant‟s claim as a bare claim

of excessiveness.

15

At the sentencing hearing, defense counsel noted Defendant refused a plea

agreement that would have gotten him out of jail. The State claimed Defendant

had numerous arrests and prior convictions of unauthorized entry of an inhabited

dwelling and simple battery. Defense counsel then asked for a presentence

investigation report. The trial court denied that request then sentenced Defendant

for the offense of simple burglary, stating: “Now, you had an opportunity to enter

a better plea.” Afterwards, Defendant had an outburst. Defendant was then

sentenced to five years imprisonment at hard labor on the public intimidation

charge to run concurrent to his simple burglary sentence. He was also found in

contempt of court and sentenced to six months imprisonment to run consecutive to

his simple burglary sentence.1

Defendant contends he received the maximum sentence, which he claims is

excessive, as he is not the most egregious offender. Additionally, he claims that

the trial court gave no consideration to La.Code Crim.P. art. 894.1. Finally, he

asserts that it appears the trial court considered his failure to accept a plea bargain

as an aggravating factor.

The State contends this court should conduct a bare bones review of

Defendant‟s sentence because he failed to file a motion to reconsider sentence.

The State also admits the trial court failed to state the considerations it took into

account at sentencing but argues Defendant “greatly benefitted from the sentence

imposed as opposed to the sentencing exposure.”

In State v. Poirrier, 04-825 (La.App. 3 Cir. 12/1/04), 888 So.2d 1123, the

defendant was convicted of public intimidation for threatening to kill a police

officer he sold drugs to and was sentenced to five years at hard labor without

1
Because we have vacated Defendant‟s simple burglary sentence and remanded for
resentencing, we need not determine whether the sentence he received for his simple burglary
conviction is excessive.
16

benefit of probation, parole, or suspension of sentence. This court affirmed the

defendant‟s sentence, stating the following:

In this case, the State agreed to dismiss two additional charges
including attempted distribution of a Schedule II controlled dangerous
substance, cocaine, and possession of marijuana. Possession of
marijuana carried a penalty of up to six months in the parish jail.
Attempted distribution of cocaine carried a penalty of up to fifteen
years in prison. Therefore, Mr. Poirrier received the benefit of fifteen
and one half years less sentencing exposure.

We find that the trial court sufficiently considered Mr.
Poirrier‟s personal and criminal history. The trial court adequately
stated its reasons for sentencing him and, based upon the benefit he
received by pleading guilty, we cannot say that the trial court abused
its wide discretion in sentencing him.

Id. at 1127-28 (footnotes omitted).

In State v. Daniels, an unpublished opinion bearing docket number 08-1100,

(La.App. 1 Cir. 10/31/08), the defendant was convicted of public intimidation for

threatening to kill two police officers and their families while he was being

transported to jail. The defendant was sentenced to serve three years at hard labor

on the public intimidation conviction.2 The first circuit affirmed the defendant‟s

sentences, noting the lower court had specifically pointed out that it had considered

the defendant‟s criminal record when imposing sentence.

Accordingly, we find that Defendant‟s sentence is not excessive based on

the State‟s assertion that Defendant has two prior felony convictions and the

jurisprudence cited above.

DECREE

Defendant‟s conviction for simple burglary is affirmed. Defendant‟s

sentence for simple burglary is vacated, and the case is remanded for resentencing.

At the resentencing, the trial court is ordered to specify whether the sentence is to

2
The defendant was also convicted of simple escape and was sentenced to two years at
hard labor to run consecutive to his public intimidation sentence.
17

be served with or without hard labor. Additionally, the trial court is ordered to

inform Defendant of the provisions of La.Code Crim.P. art. 930.8 at resentencing.

Defendant‟s conviction and sentence for public intimidation is affirmed.

AFFIRMED; SENTENCE VACATED AND REMANDED WITH
INSTRUCTIONS.

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