State of Louisiana v. Ronald G. Acker, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1116

STATE OF LOUISIANA

VERSUS

RONALD G. ACKER, JR.

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-2011-447
HONORABLE MARTHA ANN O‟NEAL, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and Phyllis M. Keaty,
Judges.

CONVICTIONS AFFIRMED; SENTENCE FOR FIRST DEGREE
ROBBERY AFFIRMED; SENTENCES FOR ARMED ROBBERY
VACATED; REMANDED FOR RESENTENCING.

David W. Burton
District Attorney – Thirty-Sixth Judicial District
Richard F. Blankenship
Assistant District Attorney
P. O. Box 99
DeRidder, LA 70634
(337) 463-5578
COUNSEL FOR APPELLEE:
State of Louisiana

Teresa Culpepper Carroll
Bobby L. Culpepper & Associates
525 East Court Ave.
Jonesboro, LA 71251-3497
(318) 259-4184
COUNSEL FOR DEFENDANT-APPELLANT:
Ronald G. Acker, Jr.

PICKETT, Judge.
FACTS

Three young men, Joshua Porter, Darrell Darden, and Ronald G. Acker, Jr.,

the defendant in this case, went on a crime spree between May 16 and 17, 2011. In

four separate incidents, the three men robbed persons at gun point.

The defendant was originally charged by a bill of information with four

counts of armed robbery with the use of a firearm, violations of La.R.S. 14:64 and

14:64.3. On September 9, 2011, he pled guilty to all four counts. However, the

defendant filed a “Motion to Withdraw Plea of Guilty” on January 11, 2012. On

January 23, 2012, the motion was granted and trial was scheduled. On May 17,

2012, the state filed an amended bill of information, charging the defendant with

three counts of armed robbery. The defendant was arraigned and pled not guilty to

the three charges.

Jury trial commenced on May 21, 2012, and on May 24, 2012, the defendant

was found guilty of one count of first degree robbery and two counts of armed

robbery with use of a firearm. He was sentenced on May 31, 2012, to fifteen years

at hard labor on each of the convictions, to be served concurrently, without the

benefit of parole, probation, or suspension of sentence.

The defendant has perfected a timely appeal, wherein he alleges six

assignments of error.

ASSIGNMENTS OF ERROR

1. The jury erred, as a matter of law, in convicting the defendant of
armed robbery and first degree robbery based on insufficient evidence
to support the convictions.

2. The District Court erred, as a matter of law, in ruling that the
defendant‟s full statement to law enforcement officials was admissible
when it contained information about other crimes for which the

defendant was not on trial and in apparently not having the pre-trial
hearing on same recorded.

3. The District Court erred, as a matter of law, in failing to rule on the
record (according to the trial transcript) on numerous objections made
by counsel during trial.

4. The District Court erred, as a matter of law, in failing to amend the
jury instructions as requested by defense counsel regarding the
repeated use of the word “principal” in connection with the elements
of the crimes to be proven by the State.

5. The District Court erred as a matter of law, in allowing S-15 (a
photograph of the defendant and two co-defendants) to be introduced
and published to the jury over defense objection.

6. The District Court erred, as a matter of law, in rendering an
excessive sentence in this case as to the first degree robbery
conviction.

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 is an error concerning the sentences imposed for armed robbery with

use of a firearm.

Louisiana Revised Statutes 14:64 requires imposition of a sentence of not

less than ten nor more than ninety-nine years without benefit of parole, probation,

or suspension of sentence. Louisiana Revised Statutes 14:64.3(A) states:

When the dangerous weapon used in the commission of the
crime of armed robbery is a firearm, the offender shall be imprisoned
at hard labor for an additional period of five years without benefit of
parole, probation, or suspension of sentence. The additional penalty
imposed pursuant to this Subsection shall be served consecutively to
the sentence imposed under the provisions of R.S. 14:64.

The defendant was convicted of armed robbery with a use of a firearm on

Counts 2 and 3. On Count 1, he was convicted of first degree robbery. He was

sentenced as follows:

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And, therefore, at this time, on each count, one, two, and three,
you are sentenced to serve 15 years on each count, concurrent one
with the other, with the Department of Corrections, at hard labor,
which the entirety of this sentence is without benefit of parole,
probation, or suspension of sentence.

The absence of a specification by the trial court that the defendant‟s

sentences for armed robbery with use of a firearm included a term under La.R.S.

14:64.3 renders them indeterminate.

This court addressed a similar issue in State v. McGinnis, 07-1419, pp. 8-9

(La.App. 3 Cir. 4/30/08), 981 So.2d 881, 888-89, stating in pertinent part:

The trial court did not specify what portion, if any, of the Defendant‟s
habitual offender fifty-year hard labor sentence, imposed for the
conviction of armed robbery with use of a firearm, included the
enhanced penalty of La.R.S. 14:64.3. . . .

....

In State v. King, 06-1903 (La.10/16/07), 969 So.2d 1228, the
supreme court held that a defendant convicted of armed robbery and
sentenced under the habitual offender law can be sentenced to an
additional five years under La.R.S. 14:64.3, when the dangerous
weapon used is a firearm.

In State v. White, 42,725 (La.App. 2 Cir. 10/24/07), 968 So.2d
901, the defendant was convicted of two counts of armed robbery with
a firearm, and sentenced to thirty years at hard labor without benefit
of parole, probation, or suspension of sentence on each count to run
concurrently. On error patent review, the court noted that the trial
court did not specify what portion, if any, of the defendant‟s thirty-
five year hard labor sentence without benefits was imposed under
La.R.S. 14:64.3. The court found that the absence of a specification
that the defendant‟s sentences included a term under La.R.S. 14:64.3,
rendered the defendant‟s sentence indeterminate. Therefore, the court
vacated the sentences and remanded for resentencing according to law
for clarification of whether the defendant‟s sentences included any
additional punishment under La.R.S. 14:64.3.

This court finds that the absence of a specification that the
Defendant‟s habitual offender sentence included an enhanced term of
imprisonment under La.R.S. 14:64.3 renders this sentence
indeterminate. Therefore, this court hereby vacates the habitual
offender sentence and remands for resentencing in accordance with

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La.R.S. 15:529.1 and 14:64.3. The trial court should clearly set forth
the portion of the sentence enhanced under La. R.S. 14:64.3.

See also State v. Billingsley, 11-1425 (La.App. 3 Cir. 3/14/12), 86 So.3d 872.

Accordingly, we vacate the defendant‟s sentences for armed robbery with

use of a firearm and remand the case for resentencing in accordance with La.R.S.

14:64 and 14:64.3. The trial court is instructed to set forth the portion of the

sentences enhanced pursuant to La.R.S. 14:64.3.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant argues that the state failed to prove beyond a reasonable

doubt that he was guilty of two armed robberies with use of a firearm and first

degree robbery. He maintains that although he was present during the robberies, he

was totally unaware that robberies were taking place until after the incidents

commenced. Accordingly, the evidence was insufficient.

In State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724,

726-27, this court held:

When the issue of sufficiency of evidence is raised on appeal,
the critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v.
King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105
(La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of
the fact finder to weigh the respective credibility of the witness.
Therefore, the appellate court should not second-guess the credibility
determination of the trier of fact beyond the sufficiency evaluations
under the Jackson standard of review. See King, 436 So.2d 559,
citing State v. Richardson, 425 So.2d 1228 (La.1983).

Louisiana Revised Statutes 14:24 provides: “All persons concerned in the

commission of a crime, whether present or absent, and whether they directly

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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.”

Furthermore:

Only those persons who “knowingly participate in planning or
execution of a crime” are principals to that crime. State v. King, 06-
554, pp. 7-8 (La.App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ
denied, 07-0371 (La.5/4/07), 956 So.2d 600 (quotation omitted). An
individual may only be convicted as a principal for those crimes for
which he personally has the requisite mental state. King, supra. The
mental state of one defendant may not be imputed to another
defendant. Thus, mere presence at the scene of a crime does not make
one a principal to the crime. Id. However, it is sufficient
encouragement that the accomplice is standing by at the crime scene
ready to give some aid if needed, although in such a case it is
necessary that the principal actually be aware of the accomplice‟s
intention. State v. Anderson, 97-1301, p. 3 (La.2/6/98), 707 So.2d
1223, 1225 (per curiam) (quotation omitted).

State v. Mason, 10-284, p. 9 (La.App. 5 Cir. 1/11/11), 59 So.3d 419, 425-26, writ

denied, 11-306 (La. 6/24/11), 64 So.3d 216.

First degree robbery is defined as “the taking of anything of value belonging

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

another, by use of force or intimidation, when the offender leads the victim to

reasonably believe he is armed with a dangerous weapon.” La.R.S. 14:64.1(A).

Armed robbery is defined as “the taking of anything of value belonging to another

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

of force or intimidation, while armed with a dangerous weapon.” La.R.S. 14:64(A).

At trial, all the victims testified. Craig Naquin testified that on May 16,

2011, he finished his shift at Boise at 11:00 p.m. On his way home he made several

stops. The last stop was at Chase Bank‟s ATM in Deridder where he deposited a

check and some cash. As he was driving home, he noticed a white SUV-type of

vehicle following him at a distance. It turned down a street before his street, but he

5

saw that it circled around and stopped a short distance away from where he parked

in his driveway. Mr. Naquin was getting some groceries out of his vehicle when he

saw two men rapidly approaching him. He attempted to get back in his vehicle to

pull away but dropped his keys. He recognized them as black males. One of the

men had a handgun. They were dressed all in black, including black masks and

gloves. One was tall, about six feet one or two inches, and skinny. The other man

was about five feet nine inches in height. The taller man demanded money. Mr.

Naquin gave him his wallet. He had no money in the wallet; however, it contained

a debit card. He stated that the two men then rushed back to the waiting SUV. He

stated one of the men jumped into the backseat on the passenger side of the

vehicle. A few days later, he found two unauthorized charges on his debit card at

an Exxon station totaling ninety dollars.

Steven Hanchey, Jonathan Miller, and Gregory Paul Taylor each testified

regarding an incident that occurred the next night on May 17, 2011. At about 9:30

p.m., Mr. Hanchey drove to West Park where he met up with Mr. Miller and Mr.

Taylor. The three friends were sitting in Mr. Hanchey‟s car when they noticed two

men approaching the car from across the park. They had first seen a white SUV,

later identified as a 2006 Envoy, drive around the park a few times then stop a

short distance away. Mr. Hanchey stated that one of the men asked if he could

borrow a cell phone. He and his friends hesitated, but then said they could borrow

it. As they got out of the vehicle the man pointed a gun at them. He ordered them

out to get down on the ground. Mr. Hanchey and Mr. Miller got down on the

ground. Mr. Taylor, who was sitting in the backseat, ran and got away. The man

with the gun stood over Mr. Hanchey and the second robber stood over Mr. Miller

on the other side of the car. Mr. Miller stated the man standing over him did not

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have a gun. When Mr. Taylor ran, the man with the gun started after him but

returned when Mr. Hanchey sat up and hit him with the gun. The robbers took two

dollars from Mr. Hanchey and approximately thirty dollars from Mr. Miller. They

also took their cell phones. Mr. Hanchey described the two men as wearing all

black including black ski masks. The physical descriptions of the two robbers were

the same as the description given by Mr. Naquin. Finally, Mr. Hanchey testified

that he believed there were three persons involved because when the two robbers

ran back to the white SUV, the two appeared to get into the front and back

passenger side of the vehicle, and the vehicle “took off immediately after they

jumped in.”

Jordan Wisby and Trevor West were talking in Mr. West‟s car in front of a

convenience store about midnight on May 17, 2011, when a white SUV-type of

vehicle pulled into the area. Three men came up to their vehicle, one man on the

driver‟s side and two men on the passenger‟s side. The men were dressed all in

black and their faces were covered. At trial Ms. Wisby stated they all had on black

ski masks, but she admitted she told the police two of the men wore bandanas.

They began banging on the windows, yelling for Mr. West and Ms. Wisby to get

out of the car. The man on the driver‟s side banged on the window with a gun and

demanded money. Ultimately, the men took Mr. West‟s and Ms. Wisby‟s cell

phones then left. Mr. West identified the men as black. He stated the man on his

side of the car wore a bandana over his face.

Ricky Johnson, a detective with the Beauregard Parish Sheriff‟s Office, was

investigating the Naquin robbery which took place on May 16, 2011. He obtained

video of the white Envoy driving back and forth in the street as Mr. Naquin was

depositing money in the Chase Bank ATM. Two days later, on May 18 th, Joshua

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Porter was pulled over for a traffic violation. He was driving a white Envoy that fit

the description of the vehicle seen in the video driving past the ATM. Reese

Martin, a sergeant with the DeRidder City Police Department, testified that he

obtained a search warrant and went to Mr. Porter‟s house to search the Envoy and

Mr. Porter‟s residence. The Envoy, which belonged to Mr. Porter‟s mother, was

not at the residence, but an old unused vehicle was in the driveway. A search of the

vehicle located a gun case for a Taurus pistol, 9 mm Luger. The case had the serial

number on it. After the Envoy arrived at the residence, a search of that vehicle

turned up a 9 mm round in the car. Sergeant Martin further testified that he was

able to obtain video from the Exxon Station where Mr. Naquin‟s debit card was

used on May 16th. He testified that the video showed the white Envoy filling up at

the gas station, then two additional cars, a white Ford Taurus and a yellow Cobalt

fill up, all on the same debit card. It was later determined that the latter two cars

belonged to the defendant and Mr. Darden. It was learned that on the morning of

the 18th, the defendant and Mr. Darden left for Texas. When they returned on the

19th, the defendant was approachedby the police and he agreed to be interviewed.

The defendant did not testify at trial. However, the jury viewed the video

recording of the interrogation, while reading along with the transcript of his

interrogation. During the interrogation, the defendant insisted that Joshua Porter

was the robber with the gun in each case and that he mostly had no knowledge Mr.

Porter was going to commit the robberies until the robberies were occurring. His

statement to the police was very elusive and difficult to follow. Pertaining to the

robbery on May 16th, he said he “kind of knew” there was something up when they

stopped and watched a person at Chase Bank‟s ATM late at night and then

followed the person home. He indicated that Mr. Porter and Mr. Darden got out of

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the car but he had no clue Mr. Porter was going to rob the man until he pulled out

the gun. He also admitted he gassed up his car after the robbery with the victim‟s

debit card. He further admitted that he got out of the car with Mr. Porter the next

night and approached the three boys in West Park. He stated he wanted to borrow a

phone from one of the boys because his phone was dead. He said he did not know

Mr. Porter intended to rob the boys until he pulled out the gun. He said that he told

Mr. Porter to “let me use the phone first” before he robbed them. The defendant

also discussed an incident that happened shortly after they left West Park and went

to Circle K. He said a young man approached them and asked if they knew where

he could get some marijuana. They led him to a dead end road, where Mr. Porter

took the man‟s money at gun point. He said he again did not know Mr. Porter

intended to rob the man. Finally, he discussed the robbery of Mr. West and Ms.

Wisby. When they got back to the convenience store where they had first met the

young man looking for marijuana, he said there was a car parked with two people

in it. The defendant thought they thought were having some kind of sex. He said he

wanted to see, so they got out of the car, but again Mr. Porter pulled a gun. He said

he just stood in front of the couple‟s car and did nothing while Mr. Porter robbed

them of their phones. Finally, he admitted that he and Mr. Darden went to

Houston, Texas the next day, attempted to sell the iPhone there, and disposed of

Mr. Porter‟s gun—although he did not remember what happened to the gun.

Finally, Joshua Porter took the stand as a witness for the defense. While Mr.

Porter‟s testimony was more coherent than the defendant‟s statement to the police,

he was still evasive and circuitous about the facts of the robberies. He stated that

he had pled guilty to three counts of armed robbery with a firearm but had not yet

been sentenced. He acknowledged that as a part of his plea agreement he would

9

receive fifteen years at hard labor on each count to be served concurrently. While

he agreed that he initially told the police that the defendant and Mr. Darden

conspired with him on all the robberies, he testified he only lied about their

participation because he thought if he spread the blame thin enough it would go

easier for him. Contrarily, he claimed at trial the two men had no idea what he

intended to do in each case. He claimed they never asked him what he was doing

because they had all been drinking and intoxicated people do not ask questions. He

further explained that he had to persuade the defendant and Mr. Darden to fill up

their tanks at the gas station on Mr. Naquin‟s debit card after the Naquin robbery.

He admitted he owned a Taurus tactical 9 mm pistol. He did state that the

defendant got out of the car and approached the three men in West Park. In his

statement to the police, the defendant had stated that it was he who wanted to

borrow one of the men‟s cell phone in the West Park robbery. However, Mr. Porter

testified that when he and the defendant approached the three men in the park, it

was to borrow the cell for Mr. Darden, who had remained in the vehicle. He also

stated that he planted the iPhone and gun in Mr. Darden‟s car when he learned they

were going to Texas so that no one would find the items.

In brief, the defendant argues that “[b]ecause of the nature of the crimes and

the multiple co-defendants, the jury had to make the determination that Mr. Acker

was a principal to the crimes at issue in finding him guilty.” He further argues that

“the state had to prove that Mr. Acker was „concerned‟ with the commission of the

theft.”

Armed robbery with use of a firearm

The jury found the defendant guilty to two counts of armed robbery with the

use of a firearm. The two counts were the robberies of the three friends in West

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Park and the couple in the car at the convenience store, committed on May 17,

2011. In brief, the defendant argues that “the state failed to prove that Mr. Acker

was a principal in either of these armed robbery [sic] because he lacked the

requisite knowledge of Mr. Porter‟s criminal intent to rob anyone much less use a

dangerous weapon.” Armed robbery is a general intent crime.

An offender therefore has the requisite intent when “from the
circumstances the prohibited result may reasonably be expected to
follow from the offender‟s voluntary act, irrespective of any
subjective desire on his part to have accomplished such result.” State
v. Elzie, 343 So.2d 712, 714 (La.1977); R.S. 14:10. Thus, “in the case
of armed robbery, when the proof shows that the perpetrator armed
with a dangerous weapon causes another to surrender to him whatever
was the object of the robbery, the necessary criminal intent has been
furnished by the very doing of those criminal acts.” [State v.] Holmes,
388 So.2d [722 (La.1980)] at 727.

State v. Smith, 07-2028, p. 10 (La. 10/20/09), 23 So.3d 291, 298.

In the instant case, the defendant admitted he got out of the car with Mr.

Porter and approached both the friends in the park and the couple in the car. While

he claimed he did not know that Mr. Porter was going to rob the victims at gun

point, he admitted he stood by and said nothing. This was after he claimed he was

shocked and very upset the night before when Mr. Porter robbed Mr. Naquin at

gun point. The defendant further claims that the state failed to prove that he “knew

that his co-defendant was armed with a dangerous weapon at the time of the

robbery.” Again, this was after Mr. Porter used a gun to rob Mr. Naquin the night

before. Furthermore, at trial, Mr. Porter testified that that he carried the gun “98%”

of the time and that the defendant knew he generally carried a gun. In Smith, the

defendant argued that although she and her boyfriend cruised Wal-Mart‟s parking

lot looking for “an easy snatch,” she was not aware that he had a hand gun on his

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person when he used the gun to snatch a purse out of the victim‟s shopping basket.

Id. at 298. The supreme court noted:

Some jurisprudential support exists for the position taken by the
court of appeal and defendant that defendant must have subscribed to
Castro‟s decision to arm himself before he stepped from the car to
render her a principal in the offense of armed robbery. See State v.
Doucet, 93-1523, p. 6 (La.App. 3rd Cir.5/4/94), 638 So.2d 246, 249
(reducing first degree robbery conviction to simple robbery because
“[t]he evidence does not support a conclusion that the defendant knew
of the existence of the knife before or during the robbery or that [the
co-perpetrator] might lead the victim to believe that he was armed
with a dangerous weapon. . . . Additionally, [the co-perpetrator]
testified that the defendant was not aware that he had a knife on his
person until after the robbery.”); State v. Smith, 450 So.2d 714, 716-
17 (La.App. 4th Cir.1984)(reducing armed robbery conviction to
simple robbery because the evidence revealed that the co-perpetrator
spontaneously armed himself with a hammer belonging to the victim
in the middle of the robbery and used it to intimidate the victim while
defendant stood on the other side of the counter urging his accomplice
to get all of the money but not mentioning the hammer). Both
decisions rely on the general rule that “[a]ll principals to a crime are
not necessarily guilty of the same grade of the offense. A principal
may be convicted of a higher of [sic] lower degree of the crime,
depending upon the mental element proved at trial.” Smith, 450 So.2d
at 717 (citing State v. Holmes, 388 So.2d 722 (La.1980)). Thus, under
Smith and Doucet, the requisite intent of a principal who concerns
himself in a robbery by aiding and abetting another in the commission
of the offense is the intent to commit either armed or simple robbery,
and in the latter case, the intent of the co-perpetrator to arm himself
before or during the offense may not be imputed to the principal.

However, neither Doucet nor the Fourth Circuit‟s Smith, nor the
Second Circuit‟s decision in the present case for that matter, takes into
account a general principle of accessorial liability that when two or
more persons embark on a concerted course of action, each person
becomes responsible for not only his own acts but also for the acts of
the other, including “ „deviations from the common plan which are the
foreseeable consequences of carrying out the plan.‟ ” State v. Smith,
98-2078, p. 7 (La.10/29/99), 748 So.2d 1139, 1143 (quoting 2 Wayne
R. LaFave and Austin Scott, Substantive Criminal Law, § 7.5, p. 212
(1986)).

Id. at 296.

In State v. Scroggins, 40,746 (La.App. 2 Cir. 3/22/06), 926 So.2d 64, writ

denied, 06-980 (La. 11/3/06), 940 So.2d 655, the defendant and three other men

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drove around town looking for a car to steal. At one point, they spotted a woman in

an SUV and followed her to where she parked at an apartment complex. While the

defendant sat in the back seat of the vehicle, two of the men got out of the car and

put a gun to the victim‟s head. At this point, the defendant exited the car and left

the scene. Later, he met up with the two men and was told that they had raped and

murdered the woman. The defendant found her credit cards in the back seat of the

car and used the cards to withdraw money. The defendant was later convicted of

armed robbery. He argued on appeal, however, that the state failed to connect him

with the crime other than placing him in the car that “brought the co-defendants to

their victim.” Id. at 65. The second circuit found that the evidence was sufficient,

noting:

Scroggins‟ involvement with this group was from 7:30 p.m.
until the wee hours of the next morning. The group made several
stops along the way before it accomplished what this defendant knew
it had clearly set out to do—“hit a lick.” A person who did not want
to be involved in an armed robbery would not have continued to get
back into the vehicle with a group of men who were specifically
looking for a victim to rob. Since the group of men made so many
stops during the course of the evening, Scroggins had several chances
to leave the group. The incriminating evidence is derived only from
Scroggins‟ admission to his actions that evening and does not include
a confession of any culpability. However, his intent to participate in
this crime can be inferred from his actions of staying with the men
after he knew their plans and knew they were armed, as well as his
action of waiting on Aaron and Monster to return to Fat‟s house. The
evidence supports a finding that the circumstances indicate that the
offender, in the ordinary course of human experience, must have
adverted to the prescribed criminal consequences as reasonably
certain to result from his act or failure to act.

Id. at 69.

The second circuit in Scroggins also noted the holding in State v. Bates, 495

So.2d 1262 (La.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986 (1987), wherein

the defendant‟s role in the armed robbery was not clearly evident from the facts.

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However, the supreme court in Bates determined that the defendant‟s behavior

indicated he was a principal to the robbery. Ultimately, Bates was convicted of first

degree murder. However, on appeal, he argued that the evidence was not sufficient

to support a finding that the murder of the victim was committed while he was

engaged in the perpetration of the armed robbery. The supreme court stated:

All 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. R.S. 14:24. Defendant was present at the time of the
robbery, either outside the car and immediately beside Clark and
Shirley, or seated inside the car when Shirley used the gun and fired
warning shots at Clark. He was certainly present at all times during
the robbery but did nothing and said nothing to prevent the robbery.
He accepted the clothes of the victim from Shirley and went through
the wallet. Items from the victim‟s wallet were later found in Bates‟
wallet and Clark‟s wallet was found in the defendant‟s possession
when he was arrested. He therefore shared in the proceeds of the
robbery. The robbery occurred with the use of Bates‟ gun and his car.
It is true there is no evidence that Bates and Shirley planned the
robbery in advance. Nor did anyone testify Bates held the gun on
Clark during the first confrontation on the bridge or that he threatened
Clark at that time or forced the removal of his wallet or clothing.
Nevertheless, we find ample evidence to conclude Bates was a
principal to the robbery of Clark. This court has affirmed an armed
robbery conviction under similar facts in State v. Gutter, 393 So.2d
700 (La.1981).

Id. at 1269.

In the current case, the defendant‟s actions indicate that he was aware of Mr.

Porter‟s intent to rob people. Although the defendant argues that after the first

robbery on May 16th, he was so distraught that he had nothing to do with Mr.

Porter for a few days, the facts in the case show that the very next day, on May

17th, he, Mr. Darden, and Mr. Porter were again on the road.

As for the couple at the convenience store, this incident occurred right after

two previous robberies wherein Mr. Porter also brandished a gun. Although the

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defendant stated that he was shocked and dismayed again by Mr. Porter‟s actions,

he never left his company.

The evidence was sufficient in this case for the jury to determine that the

defendant‟s “concern” in the robberies was sufficient to find him guilty of the

offenses of armed robbery with the use of a firearm. The jury heard testimony of

the victims, the defendant‟s statement to the police, and Mr. Porter‟s testimony.

The trier of fact is free to accept or reject, in whole or in part,
the testimony of any witness. Moreover, when there is conflicting
testimony about factual matters, the resolution of which depends upon
a determination of the credibility of the witnesses, the matter is one of
the weight of the evidence, not its sufficiency. The trier of fact‟s
determination of the weight to be given evidence is not subject to
appellate review.

State v. Arnold, 07-362, p. 10 (La.App. 1 Cir. 9/19/07), 970 So.2d 1067, 1073, writ

denied, 07-2088 (La. 3/7/08), 977 So.2d 904.

First degree robbery

The jury found the defendant guilty of first degree robbery on count one,

which was the May 16th robbery of Mr. Naquin. To find the defendant guilty of

first degree robbery, the jury had to find, in this case, that Mr. Naquin reasonably

believed that Porter was armed with a dangerous weapon. The defendant argues

that not only did he not know Mr. Porter was going to rob Mr. Naquin, he did not

even get out of the Envoy.

The facts in this case were such that if the jury concluded that the defendant

did not get out of the car but was acting as the get-away driver, the jury could have

found the defendant guilty as a principal to armed robbery. However, the jury

found the defendant guilty of a legislatively approved responsive verdict to armed

robbery, first degree robbery. La.Code Crim.P. art. 814(A)(22). A jury may return

a legislatively provided responsive verdict, “whether or not the evidence supports

15

the verdict, as long as the evidence was sufficient to support a conviction of the

charged offense” absent a contemporaneous objection. State ex rel. Elaire v.

Blackburn, 424 So.2d 246, 249 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct.

2432 (1983). The defendant never objected to the legislatively authorized

responsive verdict of first degree robbery.

In his statement to the police, the defendant indicated he did not get out of

the car when Mr. Porter robbed Mr. Naquin at gun point. Furthermore, Mr. Porter

testified it was Mr. Darden who accompanied him when he approached Mr.

Naquin and demanded money. The evidence was sufficient in this case to have

found the defendant a principal to armed robbery. However, it appears the jury

chose to find the defendant guilty of a lesser included offense of first degree

robbery, perhaps because there was corroborating testimony that the defendant did

not exit the car. This was the jury‟s prerogative.

There is no merit with this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant argues that the trial court erred by allowing the admission of

his statement made to the police because the statement contained references to

other crimes evidence in violation of La.Code Evid. art. 404(B)(1).

Article 404(B)(1) provides:

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.

16

Initially, the defendant contends there was no pretrial hearing concerning the

admission of other crimes evidence. Secondly, he argues that while the trial court

did rule on the issue in open court, there was no transcript provided in the record

regarding the ruling other than what was noted in the minute entry for that date.

However, in this case, a transcript of the trial court‟s ruling has been provided to

the defendant, the state, and this court as a result of a request for supplementation

of the record filed by the defendant.

The other “crime” evidence objected to was originally count three listed in

the bill of information filed on July 6, 2011, which read:

On or about May 17, 2011, DARRELL K. DARDEN, JR., RONALD
G. ACKER, JR. and JOSHUA L. PORTER, did willfully and
unlawfully violate R.S. 14:64 and R.S. 14:64.3, Armed Robbery, Use
of Firearm, by taking money and a cell phone from the person of
Michael Tansy, by the use of force and intimidation while armed with
a dangerous weapon, to wit: a Taurus MM semi-automatic pistol, a
firearm, (a felony)[.]

On May 17, 2012, four days prior to trial, the state amended the bill of

information to eliminate the above count and sever co-defendants, all without

objection. On May 21, 2012, prior to the jury being sworn, counsel for the defense

objected to a DVD and transcript of the interview with the defendant being

admitted into evidence for the reason that the incident alleged in the original count

three was dismissed. According to the minute entry, the trial court heard argument

and then stated it would rule on the issue later in the day. The jury was sworn in at

1:30 p.m. At 2:00 p.m. outside the presence of the jury, the trial court made its

ruling, in pertinent part, as follows:

First of all, there was not a prior notice and a prior notice is not
required in every case. And specifically in this case there was neither
a prior notice nor was there a motion in limini [sic] by either party
addressing this but only the verbal statements made on the record.

17

In this case in review of the count that was previously billed
against Mr. Acker which is no longer contained therein, the Court
does find that the notice apprehende [sic] of all described offenses that
he is charged with are so peculiarly distinctive as to make it a logical
conclusion that they were the work of the same person including this
particular count which would now qualify as other crimes evidence.

....

The law now talks about integral part of the crime as opposed
to the legal term, res gestae; is this an integral part of the crime. And
if it is determined to be an integral part or the res gestae of the crime
then no notice is required. And in this particular situation there was
knowledge of it given to the defendant both through discovery as well
as the original bill.

So the Court at this time finds that this evidence, these acts can
be introduced because it relates to the conduct that constitutes an
integral part of this act or transaction which is subject of the current
proceeding.

On May 17, 2011, the defendant and his cohorts committed robbery with the

use of a firearm on three separate occasions. In each case, they took the victims‟

cell phones and whatever money they could get. These robberies took place within

a three to four hour period. The complained of other crime evidence was the

second of the robberies. The defendant participated in a crime spree. In State v.

Taylor, 01-1638, pp. 10-13 (La. 1/14/03), 838 So.2d 729, 741-43, cert. denied, 540

U.S. 1103, 124 S.Ct. 1036 (2004), the supreme court discussed at length the

admissibility of a seven-day crime spree, which involved dozens of crimes through

several states, when it related to conduct formerly known as res gestae, as follows:

Generally, courts may not admit evidence of other crimes to
show defendant is a man of bad character who has acted in conformity
with his bad character. However, under La. C.E. art. 404(B)(1)
evidence of other crimes, wrongs or acts may be introduced when it
relates to conduct, formerly referred to as res gestae, that “constitutes
an integral part of the act or transaction that is the subject of the
present proceeding.” Res gestae events constituting other crimes are
deemed admissible because they are so nearly connected to the
charged offense that the state could not accurately present its case
without reference to them. A close proximity in time and location is

18

required between the charged offense and the other crimes evidence
“to insure that „the purpose served by admission of other crimes
evidence is not to depict defendant as a bad man, but rather to
complete the story of the crime on trial by proving its immediate
context of happenings near in time and place.‟” State v. Colomb, 98-
2813, p. 3 (La.10/1/99), 747 So.2d 1074, 1076 (quoting State v.
Haarala, 398 So.2d 1093, 1098 (La.1981)). The res gestae doctrine in
Louisiana is broad and includes not only spontaneous utterances and
declarations made before or after the commission of the crime, but
also testimony of witnesses and police officers pertaining to what they
heard or observed during or after the commission of the crime if a
continuous chain of events is evident under the circumstances. State v.
Huizar, 414 So.2d 741, 748 (La.1982); State v. Kimble, 407 So.2d
693, 698 (La.1981). In addition, as this court recently observed,
integral act (res gestae ) evidence in Louisiana incorporates a rule of
narrative completeness without which the state‟s case would lose its
“narrative momentum and cohesiveness, „with power not only to
support conclusions but to sustain the willingness of jurors to draw the
inferences, whatever they may be, necessary to reach an honest
verdict.‟” Colomb, 747 So.2d at 1076 (quoting Old Chief v. United
States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).

....

However, under the rule of narrative completeness incorporated
in the res gestae doctrine “the prosecution may fairly seek to place its
evidence before the jurors, as much to tell a story of guiltiness as to
support an inference of guilt, to convince the jurors a guilty verdict
would be morally reasonable as much as to point to the discrete
elements of a defendant‟s legal fault.” Old Chief, 519 U.S. at 188,
117 S.Ct. 644.

There was no error in the trial court‟s ruling on this issue. The defendant,

however, further argues:

This issue becomes even more confusing during the trial at the
point where the jury is to view the transcript of the defendant‟s
statement. At that time, the Court notes “before we hand out the
transcript of the statement, I need to inform the jury that this statement
from time to time has maybe a blank page or blank area or comment.
The reason for that is, of course, prior today‟s date there were some
procedural issues that were covered, and there are certain things that
are not allowed to be presented in the transcript, so there‟s nothing
you should infer from that in any way.

This entire exchange is absent from the transcript of the trial
which begins in the record at page 613. Although page 617 outlines
the actions in the trial court prior to the calling of the first witness, no

19

mention is made of any pretrial hearing or arguments on this issue.
We would also note that the defense motion for appeal and
designation of the record (Record 559) designated the “entire
transcript of each hearing herein”. A criminal defendant has a right to
complete transcript of the trial proceedings, particularly when counsel
on appeal was not counsel at trial (as in the case sub judice). State vs.
Landry, 97-0499 (La. 06/29/99)[,] 751 So.2d 214.

There was no confusion to the jury regarding the defendant‟s transcribed

interview. Furthermore, there is no confusion with this court. The defendant is

correct in his assertion that the trial transcript for the day he raised the question of

whether the crime alleged in the original bill of information was inadmissible

“other crimes evidence” is not in the record before this court. The objection to the

admission of the interview was raised on May 22, 2011, at the conclusion of voir

dire, which is also not in the record. Although the exclusion of this portion of the

transcript is an error, we find it is a harmless error. The defendant‟s argument can

be clearly discerned, both from the minute entry and from the transcript of the trial

court‟s ruling, wherein the defendant did have an opportunity to state his position.

The trial court had retired and taken the matter under advisement. Two hours later,

the trial court returned with a ruling on the issue of the offense alleged in the

original count three and had concurrently redacted other irrelevant information

from the interview that was prejudicial to the defendant.

There is no merit to this argument.

ASSIGNMENT OF ERROR NUMBER THREE

The defendant complains of objections that were made and argued to the

trial court outside the presence of the jury that were recorded but not transcribed.

Specifically, the defendant refers to objections made in the record at pages 730,

784, 786, 789, and 801. However, these portions of the record have been supplied

to the defendant, the state, and this court as a result of a request for

20

supplementation of the record filed by the defendant. The defendant alleges no

error otherwise. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

The defendant argues that the word “principal” repeatedly used during jury

instructions “unduly focused the jurors on that aspect of the state‟s case and

confused the issues with regard to the elements of the crime that the state had to

prove beyond a reasonable doubt.” While discussing the jury instructions to be

given, defense counsel objected to the use of the word “principal” being used each

time the trial court would tell the jury “what elements must be proven[.]” The

defendant notes that the word “principal” was used six times during the reading of

the definition of the word and the applicable law concerning principals and four

times when the trial court discussed the elements of armed robbery.

The trial court used the words “perpetrator or” each time the word

“principal” was used when reading the definitions of robbery and robbery with the

use of a firearm. Considering that the defendant‟s defense was that although he

was present during the robberies, he was unaware of Mr. Porter‟s intentions or that

he carried a firearm, the words used were necessary instructions to the jury.

Moreover, the defendant does not show in what way or manner the repeated use of

the word was confusing to the jury or prejudicial to the defendant. There is no

merit to this assignment.

ASSIGNMENT OF ERROR NUMBER FIVE

At trial, the defendant objected to the publication of a photograph of the

three co-defendants. He argues the picture was not relevant and the only purpose

the state had for giving the picture to the jury was to alienate the jury against him

by showing him in a bad light. The defendant argues that had the three co-

21

defendants been wearing suits or football uniforms, the state would not have shown

it to the jury. Louisiana Code of Evidence Article 401 provides that “„Relevant

evidence‟ means evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.”

The picture was relevant in this case. Each victim could not identify the

robbers because their faces were covered. However, each of the victims‟ described

their assailants‟ heights as a means of identifying which of the co-defendants were

robbing them, which one had the gun, and which co-defendant remained in the

Envoy. Ms. Wisby testified that the tallest of the three men appeared to be the

boss of the group, and Mr. West testified that the shortest one held the gun. The

picture shows three young men, dressed in jeans and t-shirts, standing shoulder to

shoulder. The picture also shows the range of their respective heights with Mr.

Porter being the tallest of the three and Mr. Darden the shortest. Louisiana Code of

Evidence Article 403 provides that relevant evidence may be excluded if “its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay, or waste of time.”

The defendant has failed to show how the probative value of the picture was

outweighed by the danger of prejudice or that the picture caused confusion at trial

or misled the jury. There is no merit to this assignment of error.

22

ASSIGNMENT OF ERROR NUMBER SIX

The defendant contends his sentence of fifteen years at hard labor without

the benefit of parole, probation, or suspension of sentence imposed on the

conviction for first degree robbery is excessive under the circumstances of his case.

The defendant does not complain of the excessiveness of the fifteen year sentences

imposed on the two convictions for armed robbery with use of a firearm.

Louisiana Revised Statutes 14:64.1 provides that “[w]hoever commits the

crime of first degree robbery shall be imprisoned at hard labor for not less than

three years and for not more than forty years, without benefit of parole, probation

or suspension of imposition or execution of sentence.” The defendant received less

than one half of the sentence he could have received.

This court has previously discussed the standard for reviewing excessive

sentence claims:

[Louisiana Constitution Article] I, § 20 guarantees that, “[n]o
law shall subject any person to cruel or unusual punishment.” To
constitute an excessive sentence, the reviewing court must find the
penalty so grossly disproportionate to the severity of the crime as to
shock our sense of justice or that the sentence makes no measurable
contribution to acceptable penal goals and is, therefore, nothing more
than a needless imposition of pain and suffering. 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. The relevant question is whether the trial
court abused its broad sentencing discretion, not whether another
sentence might have been more appropriate.

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

1035, 1042, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted).

In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, an 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. While a comparison of sentences imposed for similar crimes

23

may provide some insight, “it is well settled that sentences must be
individualized to the particular offender and to the particular offense
committed.” 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. 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 (citations omitted).

Initially, we note that the defendant did not object to the sentences following

imposition. Neither did the defendant file a motion to reconsider the sentences.

Failure to file a motion to reconsider the sentence generally precludes a defendant

from complaining about the excessiveness of a sentence on appeal. La.Code

Crim.P. art. 881.1(E). 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. Johnlouis, 09-235 (La.App.

3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La. 6/25/10), 38 So.3d 336,

cert. denied, __ U.S. __, 131 S.Ct. 932 (2011). Accordingly, we will review the

defendant‟s claim as a bare claim of excessiveness.

At the sentencing hearing, the trial court noted:

While you were found less culpable in count one than your
counterpart, Mr. Porter, who entered into a plea agreement, the Court
still considers this series of criminal activities to be, all the same, part
of the same plan; and I intend to impose the same sentence.

It is with difficulty I come to that, because I now regret
agreeing to the 15 years on Mr. Porter. But I think that since the
district attorney entered into that agreement and thought that that was
enough, considering all the pain and fear that you put these victims
through, that it could have been more than that. But based on the fact
that you were found less culpable slightly than Mr. Porter, I see no
reason why you should not be sentenced to the same sentence.

24

And, therefore, at this time, on each count, one, two, and three,
you are sentenced to serve 15 years on each count, concurrent one
with the other, with the Department of Corrections, at hard labor,
which the entirety of this sentence is without benefit of parole,
probation, or suspension of sentence.

In State v. Bourg, 09-1291 (La.App. 3 Cir. 6/30/10), 42 So.3d 1079, writ

denied, 10-1702 (La. 2/4/11), 56 So.3d 990, this court did not find a fifteen year

sentence imposed on a conviction for first degree robbery to be excessive. The

defendant had been charged with armed robbery but convicted of first degree

robbery. This court noted that the defendant had an extensive prior criminal

history, unlike in the current case. However, this court also noted a fifth circuit

case wherein the defendant was a first time felony offender and received eighteen

years for the offense of first degree robbery. See State v. Washington, 05-210

(La.App. 5 Cir. 10/12/05), 917 So.2d 488. In Washington, there was no proof the

defendant had a weapon during the robbery, he had a history of mild mental

retardation, and the victim was never physically harmed or even touched during the

robbery.

We do not find the trial court abused its considerable discretion when it

sentenced the defendant to fifteen years at hard labor for the offense of first degree

robbery considering the circumstances of the case.

CONCLUSION

We hereby affirm the two convictions for armed robbery with use of a

firearm and the conviction for first degree robbery. We also affirm the sentence of

fifteen years at hard labor imposed on the conviction for first degree robbery.

However, we hereby vacate the defendant‟s sentences for armed robbery with use

of a firearm and remand the case for resentencing in accordance with La.R.S.

25

14:64 and 14:64.3. The trial court is instructed to specify the portion of the

sentences enhanced pursuant to La.R.S. 14:64.3.

CONVICTIONS AFFIRMED; SENTENCE FOR FIRST DEGREE
ROBBERY AFFIRMED; SENTENCES FOR ARMED ROBBERY
VACATED; REMANDED FOR RESENTENCING.

26