State Of Louisiana VS Joshua Phillip Dean

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 KA 1020 STATE OF LOUISIANA VERSUS JOSHUA PHILLIP DEAN Judgment Rendered December 22 2010 Appealed from the Thirty Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana Case Number 507 564 Honorable David W Arceneaux Presiding Joseph L Waitz Jr District Attorney Counsel for Appellee State of Louisiana Houma LA Ellen Daigle Doskey Assistant District Attorney Houma LA Bertha M Hillman Louisiana Appellate Project Counsel for Defendant Appellant Joshua Phillip Dean Thibodaux LA Joshua Phillip Dean Appellant Defendant Jackson LA Pro Se BEFORE PARRO GUIDRY AND HUGHES JJ GUIDRY J The defendant Joshua Phillip Dean was charged by bill of information with two counts of attempted first degree murder in violation of La R 14 S 30 1 A and 14 27 He pled not guilty Following a trial by jury the defendant was convicted as charged The defendant moved for post verdict judgment of acquittal and for a new trial The trial court denied both motions The defendant was sentenced to imprisonment at hard labor for fifty years without the benefit of probation parole or suspension of sentence on each count The court ordered that the sentences be served consecutively The defendant moved for reconsideration of the sentences The trial court denied the motion The defendant now appeals urging the following assignments of error by counseled and pro se briefs t ni od vo L The trial court erred in denying the defendant motion for a new trial s 2 The trial court erred in denying the defendant motion to reconsider s sentences Prn ro 1 The trial court committed reversible error patent on the face of the record when it allowed the state to amend the substance of the bill of information to charge a new offense after the start of trial 2 The evidence at trial was insufficient to identify the defendant as the perpetrator of the crimes for which he was convicted 3 The trial court erred in admitting over the defendant objection s testimony regarding a photograph depicting the defendant with guns in his hand and waistband Finding no merit in any of the assigned errors we affirm the defendant s convictions and sentences FACTS On June S 2008 at approximately 11 p Shannon Brunet left the High 00 m Tides Bar in Houma Louisiana with his friends and went to a cafe where he stayed until 1 a Thereafter Brunet left the cafe deciding that he would walk 30 m 2 to the nearby residence of his exgirlfriend Boulevard Brunet heard a vehicle approach As he walked down New Orleans The vehicle drove up alongside Brunet and the passenger pointed a gun out of the widow Aiming directly at Brunet the passenger fired a single shot Brunet fell to the ground and the vehicle immediately sped away According to Brunet there was no confrontation andor dialog between him and the occupants of the vehicle prior to the shooting Later that same morning Freddie Kelly was also shot by the passenger of a vehicle Kelly an offshore worker routinely rode his bicycle for exercise on his off days He preferred riding in the early morning hours because the traffic was minimal and his family was asleep At approximately 3 a Kelly was riding 30 m in the area near Legion Avenue when a vehicle approached him The passenger in the vehicle asked Kelly for directions to Williams Avenue As Kelly turned around to gesture in response the passenger pointed a gun directly at Kelly heart s and fired a single gunshot Kelly attempted to jump off of his bicycle to avoid being hit but he was unsuccessful Kelly sustained a single gunshot wound that left him paralyzed from his waist down The vehicle immediately left the scene Both shootings were immediately reported to the police Meanwhile at approximately 3 a the defendant contacted his exgirlfriend Brittany 30 m Breaux and asked her to pick him up Breaux picked up the defendant and Dwayne Lee by Maple Park According to Breaux the defendant told her he had just shot two people and asked her to drive over to the area where one of the s shootings occurred The defendant told Breaux he wanted to see if the victim bicycle was still out there Breaux complied Next Breaux drove the defendant and Lee over to New Orleans Boulevard At some point thereafter Breaux dropped Dwayne Lee off and she and the defendant continued to ride around Eventually Breaux and the defendant became involved in a verbal altercation which ended with the defendant throwing Breaux cellular telephone out of the s 3 vehicle The defendant also threw a beer bottle towards Breaux vehicle after he s exited it Breaux eventually went to the police and advised them of the information the defendant had relayed to her regarding the shootings In connection with the police investigations the defendant and Dwayne Lee were developed as suspects in both shootings Both men were arrested The Dwayne Lee on the other defendant denied any participation in the shootings hand confessed to his participation in the incidents and identified the defendant as the shooter Lee admitted that he was the driver and the defendant was the passenger in the vehicle that approached each of the victims Kristy Aleman the defendant livein girlfriend was also questioned s following the defendant arrest Aleman provided two different statements s At approximately 8 a Aleman provided her first statement In this statement 14 m Aleman claimed she and the defendant were together on the night before the shootings She stated the defendant left home at approximately 11 p and 00 m returned approximately 30 to 45 minutes later According to Aleman the defendant was in bed with her when she went to sleep at approximately 12 a 30 m She stated she did not wake up until the following morning when the police arrived at the residence looking for the defendant Aleman stated that she did not know if the defendant went anywhere else during the time she was asleep but he was still in bed when she awoke the following morning In her second statement at approximately 10 a Aleman provided the 30 m same details leading up to her falling asleep around 12 a However this 30 m time she stated that the defendant must have left after she fell asleep because he In the trial transcript this witness name is spelled Cristy Alleman However in her statement to the s police the witness signed her name Kristy Aleman rd woke her up at around 4 a and told her he had shot two people She claimed 00 m the defendant stated that he had shot one individual in the shoulder but he was unsure where he hit the other individual He explained that he had shot the individuals because he was angry with Aleman According to Aleman the defendant advised that he had put the weapon he used in the shootings a small 9 millimeter handgun under the right corner of the shed located in the backyard of their residence The aforementioned information was placed in an affidavit for a search warrant A warrant was issued allowing a search of the defendant residence and s any other detached structures on the Gouaux Avenue property Upon executing the warrant the Houma Police Department officers recovered a small 9 millimeter handgun from beneath the right corner of the storage shed behind the defendant s home COUNSELED ASSIGNMENT OF ERROR 1 DENIAL OF MOTION FOR A NEW TRIAL By this assignment of error the defendant contends the trial judge erred in denying his motion for a new trial despite new evidence suggesting that Dwayne Lee was actually the shooter In his motion the defendant alleged that a new trial was warranted because there were two witnesses Andrew T Vargas and Malcolm Smith who would testify that Dwayne Lee made a statement while incarcerated at Angola confessing that he shot one or more of the victims in this case The motion for new trial is based upon the supposition that injustice has been done the defendant and unless such is shown to have been the case the motion shall be denied no matter upon what allegations it is grounded P Cr C art 851 La In order to obtain a new trial based on newly discovered evidence the defendant has the burden of showing 1 the new evidence was discovered after trial 2 the failure to discover the evidence at the time of trial 61 was not caused by lack of diligence 3 the evidence is material to the issues at trial and 4 the evidence is of such a nature that it probably would have produced a different verdict State v Smith 96 0961 p 7 La App 1st Cir 6 697 97 20 2d So 39 43 see also La C art 851 P Cr 3 At the hearing on the motion for a new trial counsel for the defendant advised the court that while being housed at Angola Penitentiary Dwayne Lee had a conversation with Andrew Vargas wherein he indicated that he was the person who shot one of the individuals Counsel also noted that Malcolm Smith had been in the same room and overheard the conversation between Lee and Vargas Counsel advised that Vargas had been released from prison and could not be located at the time of the hearing Counsel presented a written statement from Vargas The statement was dated January 6 2009 and was witnessed by several other inmates Before ruling on whether the statement would be allowed into evidence the court allowed defense counsel to question Dwayne Lee regarding the alleged statement In his testimony Lee admitted that he was acquainted with both Vargas and Smith Lee also admitted that he engaged in general discussions with Vargas regarding his case but he denied ever stating that he was the shooter of either victim Lee testified he never discussed his case with Smith When questioned regarding how Vargas and Smith would know information regarding the details of the case Lee advised that the defendant was also housed in the same area at Angola as he Vargas and Smith Lee further explained that he previously had provided a written affidavit which was introduced into evidence at the defendant s trial stating that the information provided to the police in connection with his confession during interrogation was not true In the affidavit Lee stated that he and the defendant had nothing to do with the shootings At the trial and again at the hearing on the new trial motion Lee explained that this affidavit was prepared by the defendant Lee claimed the defendant threatened him and pressured him to sign the affidavit Malcolm Smith testified he was acquainted with both the defendant and Lee He met the men while housed at Angola Smith testified that he overheard Lee tell Vargas that he shot one of the victims and the defendant shot the other He claimed Lee stated that the defendant shot one of the victims at a party and that later that same day Lee shot the other while he was driving Over the state objection the court allowed the written statement signed by s Andrew Vargas to be introduced into evidence In the statement Vargas claims Lee told him and Smith that he was incarcerated because he shot two people Vargas claimed Lee described in detail the events that led up to the shootings According to Vargas statement Lee stated that he and the defendant were in the s area where Brunet was shot when they observed a man urinating outside The defendant yelled at the man and a verbal altercation ensued During the argument the man pulled a knife on the defendant and the defendant walked away Later when the defendant and Lee were driving on New Orleans Boulevard they observed the man walking Lee claimed he shot at the man According to Vargas Lee told him I was just joking when 1 shot at him I just wanted to scare him Vargas also stated that Lee admitted to shooting the second victim as the victim rode down Legion Avenue on a bicycle Following argument by counsel the court denied the motion The court noted that this alleged newly discovered evidence would have been the only evidence that pointed to Lee as the shooter All of the other evidence presented at the trial pointed to the defendant The court noted that the first victim Brunet although unable to identify any of the occupants of the vehicle specifically indicated that he was shot by the passenger Kelly the second victim testified that the driver of the vehicle was a white male and the shooter the passenger was an VA Indian male The court then noted that Lee was obviously a Caucasian male and the defendant appeared to be of Indian descent The court further noted that the physical characteristics of these men were obviously apparent to the jury The court also noted that the evidence presented at the trial clearly established that the defendant was the passenger in the vehicle driven by Lee Finally the court pointed out that according to Smith testimony Lee indicated that he shot the s second victim simply because the defendant had shot somebody so he wanted to shoot somebody too This information the court noted is in direct contrast to the evidence presented at the trial because Kelly the victim in the second shooting identified the defendant the Indian male as the individual who shot him Considering the foregoing the court concluded that the evidence presented by the defendant at the hearing on the motion for a new trial was apparently another effort by the defendant to fabricate evidence in an effort to thwart the jury verdict and it absolutely would not have changed the verdict of guilt in this case After a careful review of the record we do not find that the defendant has met all the requisites for the granting of his motion for new trial based upon newly discovered evidence We find no merit in the defendant argument that the s uncorroborated testimony of two inmates whose credibility is highly questionable if presented would have produced different verdicts in this case As the trial court noted this new evidence would have been the only evidence suggesting that anyone other than the defendant was the shooter The evidence at the trial clearly established that Lee was the driver of the vehicle at the time of each of the shootings and that the shots were fired by the passenger Also Breaux and Aleman both told the police the defendant told them that he shot two people on the night in question Although Aleman later changed her story the recorded telephone conversations between her and the defendant clearly show that the 8 defendant was the shooter and Aleman was aware of this fact Given this direct evidence establishing the defendant identity as the shooter it is unlikely that the s uncorroborated inmate testimony claiming that Lee allegedly indicated that he did one or both of the shootings would have produced a different verdict Therefore considering the incredible nature of the testimony and evidence presented at the hearing we find no abuse of discretion in the trial court denial of defendant s s motion for new trial This assignment of error is meritless COUNSELED ASSIGNMENT OF ERROR 2 DENIAL OF MOTION TO RECONSIDER SENTENCE In this assignment of error the defendant contends the trial court erred in imposing excessive sentences and in denying his motion for reconsideration of the sentences Specifically the defendant argues maximum sentences were not warranted in this case because he is not the worst type of offender He asserts that of the twenty aggravating circumstances listed in the sentencing guidelines of La P Cr C art 894 twelve are inapplicable in this case Thus he contends there 1 were not sufficient aggravating circumstances to justify the imposition of maximum sentences in this case The defendant further asserts the trial court failed to give adequate mitigating consideration to the fact that he was only twenty years old at the time of the offenses and there was no evidence that he had any prior arrests or convictions He argues that imposition of consecutive fiftyyear sentences is equivalent to imposition of a life sentence and amounts to nothing more than a needless imposition of pain and suffering Article 1 Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment State v Lanieu 98 1260 p 12 La App 1st Cir 99 1 4 734 So 89 97 writ denied 991259 La 10 750 So 962 2d 99 8 2d Although a sentence may be within statutory limits it may violate a defendant s constitutional right against excessive punishment and is subject to appellate 9 review State v Sepulvado 367 So 762 767 La 1979 2d A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering State v Dorthey 623 So 1276 1280 La 1993 A sentence is 2d grossly disproportionate if when the crime and punishment are considered in light of the harm done to society it shocks the sense of justice State v Hogan 480 2d So 288 291 La 1985 A trial court is given wide discretion in the imposition of sentences within statutory limits and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion State v Lobato 603 So 739 751 La 1992 2d The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence La C art 894 The P Cr 1 trial court need not cite the entire checklist of Article 894 but the record must 1 reflect that it adequately considered the guidelines State v Herrin 562 So 1 2d 1 La App 1st Cir writ denied 565 So 942 La 1990 In light of the 2d criteria expressed by Article 894 a review for individual excessiveness must 1 consider the circumstances of the crime and the trial court stated reasons and s factual basis for its sentencing decision State v Watkins 532 So 1182 1186 2d La App 1st Cir 1988 Remand for full compliance with Article 894 is 1 unnecessary when a sufficient factual basis for the sentence is shown State v Lanclos 41 So 475 478 La 1982 9 2d A person convicted of attempted first degree murder faces a sentence at hard labor for not less than ten nor more than fifty years without benefit of parole probation or suspension of sentence See La R 14 S 27 a 1 D C 30 As he notes the defendant herein received the maximum sentence on each conviction Generally maximum sentences are reserved for the worst offenders State v Easley 432 So 910 914 La App 1st Cir 1983 The Louisiana Supreme 2d 111 1 Court has emphasized that the only relevant question on review of a sentence is whether the trial court abused its broad sentencing discretion and not whether the sentence imposed may appear harsh or whether another sentence might be more appropriate See State v Cook 95 p 3 La 5 674 So 957 959 2784 96 31 2d per curiam cert denied 519 U 1043 117 S 615 136 L 539 1996 S Ct 2d Ed Prior to imposing sentence the trial court reviewed the facts of the case and noted Particularly the court would note that the evidence in this case indicated that these crimes for which Mr Dean was convicted were about as random as criminal activity could get There was some very slight indication by evidence that one victim Mr Brunet had had words with Mr Dean earlier in the evening before he was shot by Mr Dean The evidence also indicated that there was absolutely no connection between Mr Dean and the second victim who was shot minutes later that same night that being Mr Kelly There was absolutely no justification for either shooting and in the case of Mr Kelly positively absolutely no indication of any possible reason why he would have been shot but for the fact that he was in the wrong place on Mr Dean time Mr Kelly is apparently s now confined to a wheelchair as a result of injuries suffered in the shooting by Mr Dean Fortunately Mr Brunet appears to have made a complete recovery but as good as his recover sic was Mr Kelly recovery s was not The court has also considered that these were two shootings in the same night Those factors are the principal reasons why the sentence which the court has decided to impose the court feels is justified The defendant now complains that the sentences are excessive because he is not the worst offender nor did he commit the worst type of offenses However our review of the record and evidence contained therein indicates otherwise The defendant engaged in a senseless unprovoked shooting spree which resulted in serious injury to the two innocent victims The consecutive sentences were justified by the dangerous propensities exhibited by the defendant on this occasion He clearly poses a risk to the safety of the public Considering the circumstances of the offenses we find that the trial court did not manifestly abuse its discretion in imposing the statutory maximum sentences upon the defendant The maximum sentences are neither grossly disproportionate to the severity of the offenses in light of the harm to the victims nor so disproportionate as to shock our sense of justice The factual circumstances and nature of the instant offenses shooting the unarmed victims without any provocation are clearly among the worst attempted murder offenses found in the jurisprudence The defendant who showed absolutely no regard for the law or for human life is certainly the worst type of criminal offender and poses an unusual risk to public safety Therefore considering the extremely violent nature of the instant offenses and the extensive injuries suffered by the victims we do not find the sentences to be unconstitutionally excessive Although the trial court did not articulate all of the aggravating andor mitigating factors considered the sentences are clearly supported by the record The trial court did not err in denying the s defendant motion for reconsideration of the sentences This assignment of error is without merit PRO SE ASSIGNMENT OF ERROR 1 AMENDMENT OF THE BILL OF INFORMATION In this assignment of error the defendant contends that the trial court erred in allowing the state to substantively amend the bill of information during the trial The record reflects that the original bill of information filed July 18 2008 charged the defendant and Dwayne Lee with two counts of attempted first degree murder and provided as follows DID THEN AND THERE unlawfully and intentionally attempt to kill one Freddie Kelly and the said defendants were engaged in the perpetration or attempted perpetration of an assault by driveby shooting when the said defendant and Dwayne Cody Lee had a specific intent to kill or to inflict great bodily harm to the said Freddie Kelly in violation of La R 14 14 S 27 30A 1 12 COUNT TWO DID THEN AND THERE unlawfully and intentionally attempt to kill one Shannon Brunet and the said defendants were engaged in the perpetration or attempted perpetration of an assault by driveby shooting when the said defendant and Dwayne Cody Lee had a specific intent to kill or to inflict great bodily harm to the said Shannon Brunet in violation of La R S 27 30A 14 14 I Emphasis added On December 2 2008 after the jury was selected but prior to opening statements on the urging of the trial judge the state filed an amended bill of information that deleted the language or to inflict great bodily harm 2 Counsel for defendant indicated he had no objections to the amendment The amended bill of information was filed and the defendant was rearraigned On appeal the defendant now argues that such a substantive change in the bill constituted a defect and warrants reversal of his conviction Louisiana Code of Criminal Procedure article 487 provides A An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection in or omission of any matter of form only or because of any miswriting misspelling or improper English or because of the use of any sign symbol figure or abbreviation or because any similar defect imperfection omission or uncertainty exists therein The court may at any time cause the indictment to be amended in respect to any such formal defect imperfection omission or uncertainty Before the trial begins the court may order an indictment amended with respect to a defect of substance After the trial begins a mistrial shall be ordered on the ground of a defect of substance In a jury trial trial begins when the first prospective juror is called for examination La C art 761 P Cr A defect of substance as contemplated by Article 487 of the Code of Criminal Procedure is intended to mean a defect which will work to the prejudice of the party accused City of Baton Roue v Norman 290 So 865 870 La 2d z Although specific intent to inflict great bodily harm may support a conviction for murder such intent is insufficient to support a conviction for attempted murder See State y 14ongo 962060 pp 23 La 97 2 12 706 So 419 420 2d 13 1974 see also State v Harris 478 So 229 231 La App 3 Cir 1985 writ 2d denied 481 So 1331 La 1986 The purpose of requiring the state to file an 2d amendment to the indictment before trial is to provide the defendant with adequate notice of the charge so that he may properly prepare his defense When the indictment against him provides sufficient notice of the crime with which he is charged a defendant suffers no prejudice See State v Young 615 So 948 951 2d La App 1st Cir writ denied 620 So 873 La 1993 2d At the outset we note that the defendant did not object to the amendment of the bill of information In fact the record reflects that the counsel for the defendant specifically indicated that the defense had no objection to the amendment La P Cr C art 841 provides in pertinent part that a irregularity or error A n cannot be availed of after verdict unless it was objected to at the time of occurrence The defendant failure to object to the amendment of the bill of s information or to request a continuance or to move for a mistrial precludes relief on this claim See State v Johnson 20081156 pp 11 12 La App 5th Cir 09 28 3d 4 9 So 1084 1092 writ denied 20091394 La 2 28 So 268 10 26 3d Moreover under the particular facts of this case the defendant failed to prove any prejudice flowing from the amendment of the bill of information Our review of the record in this case reflects that the amendment to the bill of information was merely to clarify the charges While the amendment deleted a portion of the description of the actions constituting the offenses it did not change the offenses charged The original bill of information informed the defendant of the nature and cause of the accusations against him in sufficient detail to allow him to prepare for trial Such an amendment even if considered erroneous was harmless beyond a reasonable doubt State v Leonard 051382 p 12 La 6 932 So 2d 660 06 16 667 668 see also La C art 921 P Cr 14 Therefore the trial court committed no error in allowing the amendment after the commencement of trial Thus this assignment of error is without merit PRO SE ASSIGNMENT OF ERROR 2 SUFFICIENCY OF THE EVIDENCE In this assignment of error the defendant challenges the sufficiency of the evidence used to convict him of attempted first degree murder He specifically argues that the state evidence which consisted of uncredible witnesses and s unreliable identification testimony failed to negate the possibility of misidentification In support of his argument the defendant points out that Brunet was unable to positively identify him as the shooter Kelly initially selected someone other than the defendant from a photographic lineup there was no ballistics evidence to connect the gun recovered from the defendant residence to s the offenses at issue Aleman and Breaux were not credible witnesses and the recorded conversations should not have been considered because they were not properly introduced The standard of review for the sufficiency of the evidence to uphold a conviction is whether viewing the evidence in the light most favorable to the prosecution any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt Jackson v Virginia 443 U 307 319 99 S 2781 2789 61 L 560 1979 see also La Code S Ct 2d Ed P Cr art 821 State v Mussall 523 So 1305 130809 La 1988 B 2d When analyzing circumstantial evidence La S R 438 15 provides assuming every fact to be proved that the evidence tends to prove in order to convict it must exclude every reasonable hypothesis of innocence This statutory test is not a purely separate one from the Jackson constitutional sufficiency standard On appeal the reviewing court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory 15 explanation of the events Rather the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt State v Mitchell 993342 p 7 La 10 772 00 17 2d So 78 83 Ultimately all evidence both direct and circumstantial must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt State v Shanks 971885 pp 3 4 La App 1st Cir 6 98 29 715 So 157 1 Specific criminal intent is that state of mind which exists 2d 59 when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act La R 14 S 10 1 Specific intent may be proved by direct evidence such as statements by a defendant or by inference from circumstantial evidence such as defendant s actions or facts depicting the circumstances State v Cummings 99 3000 p 3 La App 1st Cir 11 771 So 874 876 00 3 2d In the instant case the defendant was convicted of attempted first degree murder Louisiana Revised Statute 14 provides as follows 1 A 30 First degree murder is the killing of a human being 1 When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping second degree kidnapping aggravated escape aggravated arson aggravated rape forcible rape aggravated burglary armed robbery assault by driveby shooting first degree robbery second degree robbery simple robbery terrorism cruelty to juveniles or second degree cruelty to juveniles Under La R 14 a person is guilty of an attempt to commit an S 27 A offense when he has a specific intent to commit a crime and does or omits an act for the purpose of and tending directly toward the accomplishing of his object The gravamen of the crime of attempted murder whether first or second degree is the specific intent to kill and the commission of an overt act tending 1011 toward the accomplishment of that goal State v Huizar 414 So 741 746 La 2d 1982 Although specific intent to inflict great bodily harm may support a conviction for murder such intent is insufficient to support a conviction for attempted murder See State v Hon o 962060 pp 23 La 12 706 So 97 2 2d 419 420 Where the key issue in a case is the defendant identity as the perpetrator s rather than whether or not the crime was committed the state is required to negate any reasonable probability of misidentification in order to meet its burden of proof State v Millien 20021006 pp 23 La App 1st Cir 2 845 So 506 03 14 2d 509 However positive identification by only one witness may be sufficient to support a defendant conviction State v Coates 2000 p 3 La App 1 st s 1013 Cir 12 774 So 1223 1225 00 22 2d In the instant case the facts and circumstances surrounding the commission of the offenses are essentially undisputed The defendant does not contest that the offenses were committed identity as the shooter Rather he only challenges the state evidence of his s Our review of the record in this case reveals that the evidence of the defendant identity as the shooter was overwhelming Dwayne s Lee testified he was with the defendant on the morning of the shootings and provided a detailed description of their activities before and after the shootings Lee testified that he and the defendant were riding around in Lee vehicle when s they saw an unidentified man urinating on the side of the road Lee was driving and the defendant was the passenger The defendant and the man eventually became engaged in a verbal altercation The defendant and Lee left the area and went to the defendant house The defendant armed himself with a gun which he s showed to Lee Lee and the defendant drove back towards the area where they had encountered the man Upon seeing a man walking down the street the defendant fired a single gunshot out of the passenger window of the vehicle 17 Lee drove away According to Lee he was not aware that the defendant was going to shoot the man and the defendant never discussed why he shot him Lee testified that he and the defendant went back to the defendant house s got into the defendant vehicle and left again They drove back toward the scene s of the shooting Later as the men drove to the east side of town the defendant s vehicle stopped working The men got a ride back to the defendant residence to s get Lee vehicle s Lee explained that he and the defendant did not discuss the previous shooting incident at all Lee claimed he was afraid Lee and the defendant were riding back towards the defendant house when they observed an s older man riding a bicycle According to Lee the defendant shot out of the passenger window again as Lee continued to drive Lee denied any dialog between the defendant and the man on the bicycle Lee claimed he drove back to the defendant residence and dropped him off Lee claimed he was at home when s the defendant called him and told him to come back Lee complied because he was afraid of the defendant This time Lee did not drive he walked back towards the defendant residence The defendant met Lee along the way The defendant s then called Brittany Breaux and asked her to pick him up The defendant Lee and Breaux rode around for a little while before eventually returning Lee to his residence On cross examination Lee testified that he assumed that the first man the defendant shot was the same man who had been urinating in the street Lee denied that he and the defendant ever orchestrated a plan to shoot either of the individuals He claimed that he was not aware that the defendant was going to shoot either man Lee testified that he provided a full confession regarding the shootings to the police upon his arrest He also acknowledged that on November S 2008 he signed an affidavit indicating that his confession was a result of police coercion 18 In the affidavit Lee claimed he was under the influence of drugs and alcohol when initially questioned by the police He claimed that a hours of denying the fter evidence the detectives claimed they had against him I finally told them what they wanted me to say so that they would let me get some sleep On re direct examination Lee testified that the affidavit was prepared at the defendant request s when the two men were housed together in Angola According to Lee he signed the affidavit because he was afraid of the defendant Kristy Aleman the defendant then fiancde also testified at the trial s Aleman admitted that she previously provided several inconsistent statements to the police regarding the defendant actions on the morning in question Aleman s agreed that she initially indicated that the defendant was in bed with her and that she was unsure if he ever left the residence after 30 12 m a She also acknowledged that she later told the police the defendant woke her up at 4 a 00 m and told her he shot two people During her testimony Aleman even acknowledged that she once told the police that she was responsible for the shooting Aleman claimed that her initial statement was truthful and that the subsequent statements were not When asked how she knew the defendant was suspected of shooting two people in order to include this information in her allegedly fabricated statement Aleman claimed the police told her this information Aleman further explained that she fabricated the statements about the s defendant confession to her because she wanted to get the defendant in trouble She claimed she also made up her claim that the defendant told her he put the gun under the shed She claimed the defendant never told her anything about hiding a gun To impeach Aleman testimony the state introduced various recorded s conversations that took place between Aleman and the defendant while he was in jail awaiting trial In one of the conversations the defendant can be heard telling IM Aleman that they found the gun When Aleman denied that the defendant ever told her he shot the victims another conversation was played wherein the defendant told Aleman that he was going to say he acted in self During defense another call when Aleman questioned the defendant about being with his ex girlfriend on the morning of the shooting the defendant admitted Brittney sic was a mess up Just like I messed up and shot those people At another time the defendant told Aleman I don know what I was thinking t I damn near took s somebody life During one of the recorded conversations Aleman advises the defendant that she provided the police with two different statements When the defendant expresses frustration with Aleman for making the second statement she stated I could just tell them that I made that statement cause I was pissed at you for being with Brittney sic Brittany Breaux testified that when she picked up the defendant and Lee on the morning in question the defendant told her he had shot two people She further testified that as they rode around Lee repeatedly stated that the defendant was crazy Both victims provided detailed descriptions of the gun the shooter pointed at them Detective Travis Theriot of the Houma Police Department testified that Aleman also provided a description of the gun in her statement Theriot further testified that the gun recovered from beneath the defendant shed fit the s descriptions provided by Aleman and the victims as the weapon used in the shootings Detective Jude McElroy of the Houma Police Department testified that he was responsible for recording the statements Aleman provided in connection with the investigation McElroy denied ever threatening and coercing Aleman or He also denied advising Aleman of the information contained in the statements 20 Aleman freely provided the information and he typed it After she provided her statements McElroy allowed Aleman to review and sign the statements 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 State v Taylor 97 2261 pp 5 La App 1st Cir 9 721 So 929 932 6 98 25 2d The reviewing court is not permitted to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence State v Marcantel 20001629 p 9 La 4 815 So 50 56 It is not the function of 02 3 2d an appellate court to assess the credibility of witnesses or reweigh the evidence to overturn a factfinder determination of guilt See State v Houston 98 2658 p 5 s La App 1st Cir 9 754 So 256 259 99 24 2d When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt State v Smith 2003 0917 p 5 La App 1st Cir 12 868 So 794 799 03 31 2d After reviewing the trial testimony and evidence we conclude that the identification of the defendant as the person who fired the shots at the victims was established beyond a reasonable doubt It is the function of the jury to determine which witnesses are credible It is obvious from the verdicts rendered that the jury found Lee to be credible and accepted his unequivocal identification of the defendant as the shooter Considering the other evidence introduced as corroboration for Lee testimony most importantly the defendant own words s s on the recorded telephone conversations we find the jury verdicts were s reasonable Faced with the overwhelming evidence of the defendant identity the s jury obviously rejected any theory of mistaken identity In reviewing the evidence 21 we cannot say that the jury determination was irrational under the facts and s circumstances presented to them See State v Ordodi 20060207 p 14 La 06 29 11 946 2d So 654 662 Furthermore an appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the jury State v Calloway 072306 pp 11 12 La 1 1 So 417 422423 per curiam 09 21 3d Considering the foregoing we find that there was sufficient evidence to support the attempted first degree murder convictions and to establish the s defendant identity as the shooter Therefore viewing all the evidence in the light most favorable to the state and giving deference to the credibility determinations of the jurors a rational trier of fact could have concluded beyond a reasonable doubt and to the exclusion of any reasonable hypothesis of innocence that the defendant was guilty of the charged offenses The evidence was sufficient to negate any reasonable probability of misidentification This assignment of error lacks merit PRO SE ASSIGNMENT OF ERROR 3 ADMISSION OF TESTIMONY REGARDING PREJUDICIAL PHOTOGRAPH In his final pro se assignment of error the defendant argues the trial court erred in allowing the prosecutor to question Kristy Aleman regarding a photograph that was displayed on the wall of her bedroom depicting the defendant with one gun in his hand and one in his waistband He maintains any evidence relating to his possession of a weapon was irrelevant and violated La C art 404 which E B prohibits the use of evidence of other crimes or bad acts to show bad character of the defendant or that he acted in conformity therewith The defendant further argues that the probative value of this testimony was outweighed by its prejudicial effect 22 Although Kristy Aleman initially told the police exactly where the defendant hid his handgun at the trial Aleman denied ever observing the defendant in possession of a gun She testified that she did not even know the defendant owned a gun In response the prosecutor asked Aleman about the picture in question Counsel for the defendant objected The trial court overruled the objection and allowed the line of questioning Aleman then admitted that there was a picture of the defendant with two guns in his possession on the bedroom wall Except under certain statutory or jurisprudential exceptions evidence of other crimes or bad acts committed by the defendant is inadmissible at trial See State v Jackson 1 B 404 625 2d So 146 148 49 La 1993 citing La E C art The erroneous admission of other crimes evidence is subject to harmlesserror analysis See State v Morgan 991895 p 5 La 6 791 01 29 2d So 1 001 104 per curiam The test for determining harmless error is whether the verdict actually rendered in the case was surely unattributable to the error Sullivan v Louisian 508 U 275 279 113 S 2078 2081 124 L 182 S Ct 2d Ed 1993 see also Morgan 991895 at p 6 791 So at 104 2d Even if we were to conclude that Aleman testimony regarding the s photograph of the defendant with the possession of guns was an inadmissible reference to other bad acts by the defendant in this case any error in allowing the evidence was clearly harmless beyond a reasonable doubt See State v Leonard 05 1382 at p 12 932 So 2d at 667 see also La C art 921 Even absent 668 P Cr evidence that the defendant was previously in possession of multiple guns the s defendant participation in the shootings in this case was clear The evidence presented at the trial established that the defendant shot the unarmed victims told several others what he had done hid the gun behind his house and later strategized that he would urge a claim of self defense Thus it is clear that the defendant s convictions were unattributable to the introduction of any other crimes or bad acts 23 evidence This assignment of error lacks merit For the foregoing reasons we affirm the defendant convictions and sentences s CONVICTIONS AND SENTENCES AFFIRMED 24

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