State Of Louisiana VS Ronald Ensminger
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NOT DESIGNAT DFOR PUBI ICATION STATE F L OUISIANA COLRT Ok APPEAL FIRST CIRCUIT NO 2012 KA 1614 STATE OF LOUISIANA RSUS VE RONALD ENSMINGER Judgment Rendered aPR 2 6 2 3 On Appeal from the G 18th Judicial Distcict Court In and for the Parish of West Baton Rouge State of Louisiana Tria1 Court Na 07 334 Honorable J Robin Free Judge Presiding Richard J Ward Attorneys for Plaintiff Appellee District Attorney Elizabeth A Engolio Assistant District Attorney Plaquemine LA SYate of Louisiana Margaret S Sollars Thibodaux LA Attorney for Defendant Appellant Ronald Ensminger BEFORE WHIPPLE C McCLENDON AND HIGGINBOTHAM JJ J TBOTHAM HIGGL J The defendant Ronald Emsiniyiger v charged by g jury ndictment ras and with second degree m vioPatic a R 14 i pled not guilty and urder nofL Se 30 3 1e following a jury rzal was fcsund gufl9ty mfti r anszve anse i anslaughter s of c rr a violation oiLd R 14 I3e vas se to tvv y ia S 3Y d five tenc r nty ears prisonment at hard labox Thm to r s t efendax t c ioza der ence cons sen was denied he now appeals designating two assigrunents of error We affirm the conviction and sentence CTS F On September 9 2007 the deiFendant and his girlfriend Karen Ferrier were invited by the defendant boss to a cookout at the Cajun Countzy Campground in s Port Allen Louisiana The defendant was staving in a travel trailer pxovided to him by his employer at the campgrc At the cookout gathering the defendant und and Karen swam and drank alcokiol and retumed to the defendant strailer later that same evening The defendant wezi outside to eali tiis daugb in Florida and ter during the phone call he s to kzis x According to he defendant whc ke wife testified at trial Kar became n ab hir talking to his ex She began en r ut wafe screaming for Yhe defendant Yo gei oi the phon w k t ihez E3ecause ich el ziged Karen was still an when he anded tais caRl the defendant stayed aut tor ry ide about thirty minutes Whern the defendant went inside the trailer ren demanded that he give her the cell phone and when he did sh threw it on the floor The dlefendant grabbed s Karen cell phone off the table and likewise thr it on the floor and told Karen w that neither one of them would be talking to anybody ihen according to the defendant Karen grabbed her 22 rifle When the defendant asked her w she hat was going to do witta the rifle Karen said she was going to kalt him with it and Kazen owned a Glenfield 22 semirifle autorelatic 2 raised the barrel The defendant gz the barrel and a struggle ensued over abbed control of the rifle Karen kicked at the d and grabbed his groin The fendant defendant stuck his thumb in Karer neck and chok her unril she released the s rifle Karerz sat dawn on the bed a the de dropped t i the bed d endarii e r le on The defenda s on a stoQfl tie aren t t zn ow ad Fa briet interlude of both recovering from the fray the de t k she would have to take her bag endant ld ren and leave When Karen said she would not deave the defendant Lold her he was going to get his boss to make her esve Karen screamed no and grabbed her rifle again Once more they strugglecf fo control ofthe rifle What happened next is not entir cleaa because what the defendant told the ly police following the shooting differed from 1 Ma1 testimony s At trial the defendant stated that during the struggle Karen kneed him in the groin and he passed out while she fell t the grQUnd as well When the defendant regained consciousness Karen while still holding Che xifle was screaatling at him to get up The defendant gabbed at t butt of the xixle and Karen heid on to the barrel As ie they struggled over the weapoz ir dis The defentlarii walked to h boss harged is and told him that he shot Karen T i ed tha he did not mean to ie endant testif shoot Karen and that it was an aacideni Shortly following ihe shootia the defend was arrested and spqke to nt several police officera During h interview at the police station the de s fendant stated that when I grabbed the ri the s tam she loaded it and pointed aren e cond it at him The defendant took the rifle from Karen told her to open i mouth er stuck the barrel of tl rifle ir her mouth and pulled the trigger The defendant e related the same account to other police officers at th scene shortly following his e arrest Karen died short time later from her wounds Dr Alfredo Suarez the pathologist who performed the auiopsy on Karen testified at trial that IKaren was 3 shot in the mouth at very close range Dr Suarez stated the gun was outside of her mouth when it was fired He stated the gun couid have been a few inches up to twelve inches away from Karen when it was fired The trajectory of the bullet was front to back and straight The bnllet perforated Karen upper lip and as it s traveled through her mouth it dug a tutmel defect lacerating her tongue iike fracturing her upper jaw and severing her spinal cord at th C4 level The spinal cord injury was lethal The bullet was recovered from the back of Karen neck s The autopsy report which was introduced into evidence listed the manner of death as homicide ASSIGNMENT OF ERROR NO 1 In his first assignment of error the defendant argues the evidence was insufficient to support his conviction for manslaughter Specifically the defendant contends the State did not prove beyond a reasonable doubt that he did not kill Karen in self defense A conviction based on insufficient evidence cannot stand as it violates Due Process S See U Const amend XIV La Const art I 2 The standard of review far the sufficiency of the evidence to uphold a convictian is whether ar not 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 beyond a reasonable doubt Jackson v Virginia 443 U 307 319 99 S 2781 2789 S Ct 61 L 560 1979 See also La Code Crim P art 821 State v Ordodi 2d Ed B 0207 2006 La 11 946 So 654 660 State v Mussall 523 So 1305 06 29 2d 2d 09 1308 La 1988 The Jackson standard of review incorporated in Article 821 is an objective standard for testing the overall evidence both dir and ect circumstantial fox reasonable doubt When analyzingcircumstantial evidence La S 438 R 15 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence See State v Patorno 2001 4 2585 La App lst Cir 6822 So 141 1440 21102 2d While the defendant was charged with second degree murder he was found guilty of mansJaughter which is a proper responsive verdict far a charge of second degree murder La Code Crim P art 14 Louisiana Revised Statute 3 A 1 A 31 14 defines manslaughYer ici pertinent part as follows A homicide which wo be eithe ald frst degree murder or second degree murder but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self and cool reflection control Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender blood had actually cooled or that an average s s person blood would have cooled at the time the offense was committed The existence of sudden passiod and heat of blood are not elements of the offense but rather are factors in the nature of mitigating circumstances that may reduce the grade of homicide State v Maddox 522 So 579 582 La App lst 2d Cir 1988 Manslaughter requires the presence of specific intent to kill or inflict great bodily harm See State v Hilburn 512 So 497 504 La App lst Cir 2d writ denied 515 So 444 La 1987 2d Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act La R 14 Such state of nnind can be S 10 1 farmed in an instant State v Cousan 94 La 11 684 So 382 2503 96 25 2d 390 Specific intent need not be proyeri as a fact but may be inferred from the circumstances of the transaction and the actions of the defend nt State v Graham 420 So 1126 ll27 T i982 Deliberately pointing and firing a 2d a deadly weapon at close range are circumstances that support a finding of specific intent to kill State v Broaden 99 La 2 780 So 349 362 cert 2124 O1 21 2d denied 534 U 884 122 S 192 151 L 135 2001 S Ct 2d Ed See La R S A 1 30 14 State v Ducre 596 So 1372 1382 La App lst Cir writ 2d 5 denied 600 So 637 La 1992 2d When self is raised as an issue by the defendant the has the defense State burden of proving beyond a reasonable doubt that the homicide was not perpetrated in self State v Ducre 596 So 1382 Thus the issue defense aY 2d 83 in tilis case is w a ratio factfi vie the ei in the light most ether ral der rring idence favarable to the prosecution could have Yound beyond a reasonable doubt that the defendant did not ki11 the victim in self Id defense Louisiana Revised Statute 14 provides in pertinent part 20 A A homicide is justifiable 1 When committed in self by one who defense reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger Louisiana Revised Statute 14 provides 21 A person who is the aggressor or who brings on a difficulty cannot claim the right of self unless he defense withdraws from the conflict in gaod faith and tn such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict The defendant argues in his brief that he shot Karen in self He defense maintains that Karen was the aggressor who sought to kill him According to the defendant Karen became angry with the defendant when he called his ex wife Gary Wigginton the defendant semployer testified at trial that he saw Karen in a truck with her 22 rifle lying on the seat of the truck Gary testified he heard Karen say she was going to ki11 the defendant It is not clear when this was allegedly said in relation to when the Shooting occurred but on cross Gary stated examination Karen made the remark about two hours before the shooting In any event when Karen and the defendant were together in the trailer the defendant asserts in his brief that they began struggling over the rifle that Karen kicked at him and that she grabbed his testicles The defendant apparently obtained control of the rifle 6 and pointed it at Karen rtaouth s Vietnain War arid ac cordin to The def was a ec soldier in the ndant mbat n hi ointin gun at sorr uth was a smc eone tactic he learned to gain ubmi How z con to struggle and siqr ver en inued the gun wei off Finally the cc1aYr zn s irief that the shooting was t t r efend fls also an accicient Thus incompaY mutua xa tk are pr9pounded e L lz lusa Aor es by the defsndarit cidental atiz a sh and self se defen g he dei too ndant was a victim in this case and he did not desire Karen death It was an ccident s just as he described and told Deputy Bouquet Yet ne was also in ear for his life and acted in self e defen Despite defendant assertions in his brief the testi of the police s nony officers who spoke to the de following the shooting suggests that the t end defendant did not shoot Karen in seflf defense but rather after gaining controi of the rifle he turned it on Karen and in aa shot her at point range ger 61ank Sergeant I enneth Pitre of the es B Rouge Parish Sheriff Office testified ton s at trial that as he approached the t the c was standing in the doorway er ai efendant lien V SergeanY Pitre asked w h h defend sdid I shot her The at apperaed ant defendant was handcuffed anc piaced ir h back of a police unit Vlirandized Detectzve Charle Hotard with he es aton Rou Parish Sheriff e s Office testified at trial that he s to tr d br th back o the u The aake e fez dant it defendant told tY detective that Karen praliec a rifl and poin it at l head e d c is The defendaz tkien took the rifle froan her ch her down shoved the rifle in t kecl her mouth and shoz her The deiendar taid not mention there was any truggle with the rifle but stated that he ust tool i ro nher and shot her The defendant told the d that he was z claiming self and that he knew he had tective ot defense messed up Deputy James Chustz Jr with the West Baton Kouge iarish Sheriff c Office testified at trial that he also spoke to the defendant when he tivas irfl back qf the police unit This conversation was recurd dand the DVD raf the recording was introduced into evidence and layec for e tl jun JDuring the recorded conversation the defendant tolcl Dgputy Cl that they both got drunk Karen rustz went off th deep end and issed m oif 2anci she stuck a rifle to his head He tried to wrestle the rifle away fr hcr I alefen cc la cisen I got zn ae iant ci c inueu real pissed yQU kn and sYuck it in he rnout an pulled the Yrigger When w iP Deputy Chustz stated b I thought ou loved This vorr sir the defendant ut an replied that h did Iove her but added that I get so mad you kns You caz w t believe the anger The defendant was transport to the police station and questioned by d Detective Bryan Doucet of the VVest Baton Rou Parish Sheriff Office The e s s defendant interview was vzdeotaped and the DVD of tb interaiew svas e introduced into evidence arad play for th jury In the interview they discussed d whether Karen had survived and Detecti eDoucet suggested that she xnay stild be alive Based on the defer reactiori tF deCective told ium he sounded s dant e surprised that she was still aliveo T defendaa responded that vhen you ut a h2 rifle in s someone mouth and pu11 the trigger they usually do not live The defendant told the detective that Karen was mad but he ciid not know why The defendant had called his ex to Yeil her happy b This may have made wi1Fe rthda5r Karen angry but accordir to the defendant she was angry be Fore he called his ex g wife The defendant explained that wha aKaren grabbed tlit rifle and pointed it at him a struggle ensued and she began k athis groin The def got the cking ndant rifle from Karen and put it down Karen then grabbed the rifle again and loaded it According to the defendant the rifle was not load the first ticn he wrested it d from Karen The defendant then apparently again took the rifle from Karen told her to open her mouth stuck it ira her mouth and pulled the trigger The defendant stated I got a bad temper and I came unglued Detective Doucet added during 8 his testimony that throughout the entire intervyew the defendant never said that the shooting was an accident The defendant testified a triaL His testimony suggested that the shooting was accidental rather than self as he argues in his brie The defendant defens stated that after he and Karen atcended a cookout with friends that included swimming and drinking they went back to the defendant trailex The defendant s went outside to call his daughter in Florida His ex answered the phone and wife he spoke to her for a bit and he wished her a belated happy birthday Karen went outside and became angry about him spealcing to his ex wife She told the defendant to hang up tk phone and to give the phone to her since it was hers then e she went back inside the trailer The defendant hung up walked to the end of the campground and returned to his trailer about thirty minutes later At that point Karen asked for the phone and when the defendant gave it to her she threw it on the floor The defendant then took Karen phone off the table and threw it to the s floor According to the defendant thax is when Karen reached for her 22 rifle The defendant asked Karen what she was going to do with the rifle and she said she was going to kill him with it As she brought tl rifle up the defendant e grabbed the barrel and they struggled over the rifle in the bedroom of the trailer The defendant wrested the rifle from Karen hand and brought it down behind her s pulling Karen toward hirn and holding her tight to his body as she tried to head butt and kick him As Karen continned to struggle she fell to her knees At that point she grabbed the defendant stesticles The defendant responded l grabbing y s Karen throat and sticking his thumb against her trachea As Karen was being choked and could no longer breathe she released her grip on the rifle The defendant took the rifle and placed it on the bed Karen sat on the bed and the defendant sat on a stool next to her They sat there until Karen could catch her breath 9 The defendant then tolci Karen that he had had it and that she needed to take her bag and leave Karen told the defendant that she was not going anywhere and that he could not make her The defendant then told her that he would have to get his boss to get her to leave Karen screamed o I will kill yo and she grabbed ner rifle again The defendant grabbed the rifle and Karen kneed him in the groin The defendant passed aut and they both fell tc the T1oor When the defendant came to Karen was screaming at him to get up The defendant could not see Having been in combat the defendant was looking for a weapon because he figured she was going to shoot him Somehow the defendant then had the weapon and Karen apparently grabbed the barrel The defendant repeatedly told her to let go of the rifle but she refused to let go and told the defendant that when she got it she would kill him This is when the defendant told her to put the rifle in her mouth The defendant eaplained that this is what they had done in Vietnam they would stick rifles in the faces of enemies and tell them to put the barrels in their mouths which would cause them to fall on their knees crying and release their weapons Karen however cc to pull on the rifle and it fired ntinued During the rest of his direct examination the defendant testified that the shooting was accidentaL I stated I didn mean to shoot her Later he was e t asked Do you deny that you shot Karen in the upper lip that killed her The defendant replied I don tdeny it but it was an accident When asked if he intended to kill her the defendant stated No sir On cross the examination defendant testified that the shooting was an acc The defendant explained that dent Karen was holding on to the barrel while he held on to the butt of the rifle The sfinger was on the trigger but the rifle fired because it got jerked defendant The guilty verdict of manslaughter indicates that the jury accepted the testimony of the prose witnesses to the extent such testimony established the ution defendant did not kill Karen in self See State v Spears 504 Sa2d 974 defense 10 78 977 La App 1st Cir writ denied 507 So 225 La 1987 Further in 2d finding the defendant guilty it is cl2ar the jw rejeated the defendanYs claim of an accidental shooting The trier of fact is free to accept or reject in whole or in part the testimony of any witness Moreover when there ic conflictin testimony about factual matters the resolution of whiclr d apon a determination of the nds p credibility of the witnesses the matter is on of the weight of the evidence not its sufficiency The trier of fact determination of the weight to be given evidence is s not subject to appellate review An appellate court will not reweigh the evidence to overturn a factfinder detezmination of guilt State v Taylor 97 La App s 2261 1 st Cir 9 721 So 929 932 We are constitutionally precluded from 98 25 2d acting as ajuror in assessing what weight to give evidence in criminal thirteenth cases See State v Mitchell 99 La 10 772 So 78 83 The fact 3342 17I00 2d that the record contains evidence which conflicts with the testimony accepted by a trier of facY does not render the evidence accepted by the trier of fact insufficient State v 2d Quinn 479 So 592 596 La App lst Cir 1985 See State v Johnson 99 La App lst Cir 11 74S So 217 223 writ denied 0385 99 5 2d 0829 2000 La 11 774 So 97 13i00 2d i The jurors clearly did not believe the defendant sclaim of self The defense jury may have determined the aggressor doctrine applied since the defendant escalated the canflict by arming himself with the rifle after having taken it from Karen See State v Loston 2003 La App l st Cir 2874 So 197 0977 04 23 2d 205 writ denied 2004 La 9 882 So 1167 With the gun now in 0792 04 24 2d his possession the defendant chose to shoot Karen who was unarmed at point blank range The jury may have c the defendant did not reasonably tetermined believe he was in imminent danger of losing his life or receiving great bodil harm when he shot Karen and did not act xeasonably under the circumstances Loston 874 So at 205 2d ll See When the defendant haci co of tYte u he could have simply walked rql t a away and called the poli Ljurisprudence has been consistent in its e uisiar treatment of the s vvher a vlctinn is disarrra The appzllate enario gressor a ed courts have fbund that durimg uch ez whe the def disarms the counters e ndant gresaar ad victim a then ki11s hixn o azses the victim a iveapon sou ressar ag s against him ta ill c injure hir1 tiie de becc a Y sth a and loses the enda nn grNSSOr right to claim seif defense See State v Bates 95 La Spp lst Cir 1513 96 Ili8 683 So 1370 3 State v Pettman 93 La A lst Cir 2d 78 377 0892 p 94 418 636 So 299 303 State v Smith 490 So 365 369 La App 2d 04 2d 70 lst Cir writ denied 444 SQ 324 La 1986 State v Patton 4 So 625 2d 9 2d La App 1st Cir 19 See also State v Mackens 35 La App 2d Cir 5 350 O1 28 12 803 So 454 460 rvrit denied 2002 La 1 836 2d 62 0413 03 24 2d So 37 State v Jenkins 98 I App 4th Cir 12l29 7S0 So 366 1603 a 99 2d 77 76 writ den 2000 La 11 773 So 157 State v 5tevenson ed 0556 00 13 2d S14 So 651 655 La App 2d Cir 19 writ denied 519 So 141 Lz 2d 7 2d 1988 Thus a rational tr of fact ouldl have reasonably concluded that the er killing was not neeessary ta save the defendar fronn the danger envision by L t d S 20 r R 14 andl that t def had abandoned tT rol o defender and 1 ie z dant e taken on the roie c an aggres aad s such was not entit to claim self f ox ed defense S La 14 Bates 683 o at 1377 e lii 21 aS 2dl Regarding the theory qt an accidenial shooting the defendant own s testimony suggested he shot Karen not because he believed he was in that imminent dangex of losin nis life and that the killing vas necessary to save himself from that danger but because while struggling for control ftihe rifle it accidentally fired However the defendant description of events te police s officers inimediately following the shooting and ihe medical testimony belie an accidental shooting In his own vords during his interview with Detecti Doucet i2 the defendant described h w he had the rifle he told k to open her w en aren mouth he placed the rifle barrel bn hec m and he pulled the tngger ath This information coupied with the riedical testimc tha y rtKaren was shot at extremely close range wherein khe bu enYer t l dher riaczrat i rt ao dher rongu perforated her pharyn se her spinal cord at h C leveZ and oa in the ha4k of her ed neck would ha al a jux e c wed rYm rzascnab concl tl tne eienciant y zde at s testimony about the rifle accrdentally discharging was not truthful When a case involves circurnstantiai vidence and the jury reasonably rejects the hygothesi of innocence presented by the defendant own t s stimorry that hypothesis falls and the defenda is guilty unle there is another hypothe5is s which raises a reasonable doubt State v Captville 448 So 676 680 La Ld 1984 The defen shypothesis of ix was based on the theory ofan dant ocence r accidental shooting In finding the defendant guilty of manslaughter it is clear the jury did not believe the defendant rzonv regarding an accidental discharge stesti but found the mitigating circumstances of sudden passion and heat of biood or See Maddox 522 2d Sa at 2 S The poss oi a comprornise verdict bility notwithstanding the guilty v of mansYaughter 5uggests the juryT concluded rdivt either that the cor was suffic pxc te deprive an average firontaiion ient vocatior person of his self and cool x or that an average persan blood ontroi ction fl s would not have cooled before the def shot Kacen Cf Ducre S96 So at ndant 2d 1384 The jurors apparently concluded that the defendant version of the evexits s irnmediately preeeding the fatal sh tivas a fabrication designed to deflect blame from him The conclusion by the jurors that th defendant did not testify truthfully could asonably support r survivor an inference that the truth if told by him as the oxily would have been unfavorable to his accidental ciischar the In e ry rejecting a claim of self the jury obviously concluded that the orce used defense 13 by the defendant against Karen was unreasQnalble and unjustifiable As such the hypotheses of innocence presented by the defendant and the defense fall See Captville 448 So at 680 See also State v Moten 510 So 55 61 La App 2d 2d 1 st Cir writ denied S 14 So l26 La 1987 2d Finally ive bxiefly address i sake of clarification the defendant or the sclaim that he shot Karen both in selt and accidentaily defense Since the defendant testified that he did not have the intention to shoot or kill Karen then he could not have killed her in self since justifiable homicide requires the specific intent defense to kill or to inflict great bodily harm In other words if the defendant kiiled Karen in self all of the elements of second degree murder or manslaughter defense would have been present including specific intent except that the homicide would be excused because the defendant in defending himself would have been justified See La R 14 Also if the defendant had killed Karen in self S 20 1 A defense then the shooting could not have been accidental or even a killing by criminal negligence which requires neither specific nor general intent See La R 14 S 12 1 A 1432 In any event the jury verdict is a clear refutation of either theory s or defense After a thorough review of the xecord we find the evidence supports the s jury unanimous verdict e are convinced that viewing the evidence in the light most favarable to the State any rationa trier of faat could have found beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the defendant did not kill his victim in self or accidentally defense and as such was guilty of manslaughter 5ee State v Calloway 2007 La 2306 09 21 3d 1 1 So 417 422 per curiam This assignment of error is without merit NT ASSIGNME OF ERROR NO 2 In his second assignment of error the defendant argues the trial court erred in imposing an excessive sentence 14 The Eighth Amendment to the United States Cqnstitution and Article I 20 of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment Although a sentence falls within statutory limits it may be excessive State v Sepulvado 367 So 762 767 La 1979 A sentence is considered d constitutionally excessive if it ie giossly disproportiar to the seri of the ate usness offense or is nothing more thar a purposeless and needless infliction of pain and suffering A sentence is considered 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 Andrews 94 La App 1st Cir 5 655 So 448 0842 95 2d 454 The trial court has great discretiorn in imposing a sentence within the statutory limits and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion See State v Holts 525 So 1241 1245 La App 2d 1 st Cir 1988 Louisiana Code of Criminal Procedure article 894 sets forth the 1 factors for the trial court to consider when imposing sentence While the entire checklist of La Code of Crim P art 894 need not be recited the recard must 1 reflect the trial court adequately considered the criteria State v Brown 2002 2231 La App lst Cir 5 849 So 566 569 9I03 2d The articulation of the factual basis for a sentence is the goal of La Code Crim P art 894 not rigid or mechanical compliance with its provisions Where 1 the record clearly shows an adequate factual basis far the sentence imposed remand is unnecessary even wnere Yhere has not been full compliance with La Code Crim P art 894 State v Lanclos 419 Sa2d 475 478 La 1982 The 1 trial judge should review the defendant spersonal history his prior criminal record the seriousness of the offense the likelihood that he will commit another crime and his potential for rehabilitation through correctional services other than confinement See State v 2d 52 Jones 39 So 1049 1051 La 1981 On appellate review of a sentence the relevant question is whether the trial court 15 abused its broad sentencing discret not whether another sentence might have on been more appropriate State v Thomas 98 La 10 719 So 49 50 1144 98 9 2d per curiam In the instant matter the defendant facing a maximum sentence of forty years at hard labor was sentenced to twenty years at hard labor Sez La R five S B 1431 The defendant argues n hia brief that the trial court failed to consider mitigating factors and did not consider that he had no criminal history of violent crimes since his only previous felony conviction was for possession with intent to distribute marijuana These assertions are inaccurate The trial court ordered a presentence investigation report which has been made a part of the appellate record specifically to learn of the defendant criminal history and his military s record a potentialiy mitigating factar Following the reading of the verdict at trial the trial caurt statc In this case I am going to order a pre d sentence investigation because I heard some things I want to check out regarding his criminal history I want to check out some tkings on that I want to hear about his military services sic The defendant further rgues in his brief that his sentence is excessive because he did not intend for Karen to die and that she had been the aggressor the entire time The defendant adds that it was reasonable for him to believe he was in grave danger after Karen pointed the rifle at his head The defendxnt insists the trial court evid put the onus on him to withdraw from his own home and ntly retreat from the situation while Iiaren had the gun and there was no opportunity for escape and further the trial courk placed no blame on Karen for causing the situation These issues raised by the defendant relate to the sufficiency of the evidence and not to whether or not a sentence is excessive Having addressed sufficiency in the first assignment of error we decline to revisit these issues Finally the defendant asserts the trial court gave no reasons for the 16 imposition o the sentenc aYeer hearing a vicrim impact siatemerit and the sheartf defendant eit remor al v had occuxred out riat While the trial court did not refer to La Code Crim P art 89 by rYame it is clear the court co 1 sidered aggravating and mitigatin circumstances Mc ever had there noY been full reover compliance ir d 8 renn wc be z becaus trecard a rticle 4 nd ufld 1 4 before us clearly es an adequate aci asis for the senCene imposed on ablishes aal the defendant for the taking of a human life Considering the trial court review of ttie circumstances the nature of the s crime and the fact the defendant was sentenced to well below the maximum number of years allowable unciex tha la we nd no abuse of discretion by th trial v court Accordingly the sentence iAnposed b the trial court is not gros iy disproportionate to the severity of the e offen and therefore unconsrtutionally excessive Thzs assignment of error is without merit CQNVZCTION AND S fSFF NTENCE IKME D 17 is not
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