The defendant, Joshua Sorina, was charged by amended bill of information with four counts of armed robbery with a firearm (counts I - IV), violations of La. R.S. 14:64 & La. R.S. 14:64.3. He pled not guilty. Following a jury trial, on counts I - IV, on each count, he was found guilty of the responsive offense of first degree robbery, a violation of La. R.S. 14:64.1. On counts I - IV, on each count, he was sentenced to thirty years imprisonment at hard labor, sentences to run concurrently.
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He now appeals, challenging the sufficiency of the evidence and the sentences. For the following reasons, we affirm the convictions and sentences.
FACTS
On July 19, 2018, at approximately 9:30 p.m., the victims, L.P., who was sixteen years old; her sister, C.P., who was fourteen years old; E.P., who was sixteen years old; and B.B., who was fourteen years old, rode together in a 2016 white Toyota Camry to the Sonic restaurant near Dutchtown High School in Geismar.
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L.P. drove the vehicle, and E.P. was the front passenger. B.B. sat behind L.P., and C.P. sat behind E.P.
On the way to Sonic, B.B.’s “baby tooth” fell out and her mouth was bleeding. After arriving at Sonic, L.P. unlocked the vehicles doors to let B.B. and C.P. out so that B.B. could rinse her mouth. After B.B. and C.P. returned, L.P. did not relock the doors.
While the girls were waiting for their ice cream orders, L.P. saw a black shadow in her side mirrors. Thereafter, her door was “[flung] open.” A “dark figure,” wearing a mask, pointed a small black gun at her head. L.P. was 100 percent certain the assailant had a gun. L.P. was so scared that she urinated on herself. The assailant also pulled on her shoulder, demanding that she “[g]et out, get out.” L.P. knew the assailant was male because of his voice. C.P. pulled L.P. the opposite way pleading, “[n]o, dont get out. Dont get out.” L.P. screamed at the assailant, “I cant get out, like I am buckled, I cannot get out, like yall need to let me unbuckle so I can get out.” L.P. unbuckled her seat belt and exited the vehicle. She left her phone and wallet in the car. The assailant and his accomplice got into “the drivers seat and the passenger seat.”
E.P. testified that while L.P. was being forced out of the car, she felt a gun on her own neck. She saw “another guy.” He yelled “[g]et out, get out, hurry up, [h]urry the ‘f up.” The assailant tried to pull E.P. out of the car, but she had her seat belt on. The assailant threw E.P. out of the car, and her head hit the Sonic sign. B.B. ran off, and C.P. also got out of the vehicle. After exiting the vehicle, C.P. tried to get back into the car to retrieve her purse and her phone. The assailants reversed the vehicle, and the door slammed on C.P., causing her to fall. E.P. testified “[the assailants] came really close to running [C.P. over], an inch away from her head.” E.P. was 100 percent certain that she saw two guns during the incident. She described the gun that was pointed at her neck as small, black, and “like L shaped.”
C.P. testified “two black figures, all in black” were beating on the front two windows during the incident. The assailants opened the doors of the vehicle and “yank[ed] on” the girls. C.P. was 100 percent certain that both assailants had guns. She described the gun held on L.P. as a small, black L-shaped gun. C.P. retrieved her phone from the car, but the assailants left with her purse.
B.B. testified she got out of the vehicle after two men with guns came to the drivers side and passengers side of the vehicle and were screaming at her and her friends to leave their stuff and get out. B.B. was 100 percent certain that both assailants had guns. However, she indicated no one pointed a gun at her or threatened her with a gun. The assailants were wearing all black and covered their faces. The assailants left with B.B.’s Kate Spade purse, money, and phone.
Josh Edgar was a customer at Sonic during the incident. As he was reversing to leave with his food, he saw two people jump through a part of the fence with missing pickets. He saw the assailants “jerking” and “throwing” the victims from their vehicle. He saw one assailant get into the drivers seat and the other assailant get into the passenger seat. Edgar testified “I dont know how one of the girls didnt get run over or shot because the way - the way they jumped through the fence - also too, the body language I could see like holding like this you could see the weapon[.]” However, Edgar did not see the assailants point “the weapon” at any of the victims. Indeed, he later testified that he did not actually see a weapon. He also did not see the faces of the assailants.
Edgar followed the assailants as they fled from the scene. He provided mile marker locations to the police during the chase, which exceeded speeds of 100 miles per hour. Edgars vehicle began “shutting off’ at 100 miles per hour, and he located a deputy at the T anger Mall exit, whom he advised of the direction in which the assailants had fled.
The police were able to track the location of the stolen car using the cell phone of one of the victims, which was still in the vehicle. In St. James Parish, Ascension Parish Sheriffs Office Deputy Carson Fee attempted to initiate a traffic stop of the vehicle, which turned into a pursuit. During the pursuit, a black object, possibly a plastic bag, was thrown from the drivers-side window of the vehicle. The vehicle ultimately left the roadway and drove into a field near St. James High School. The police set up a perimeter around the high school. Deputy Fee was advised by residents in the area that a black male had been seen running across St. Emma Street, which was a main road around the high school. Deputy Fee attempted to locate the male on foot, but was unsuccessful. Deputy Fee located the stolen vehicle behind the high school. It had been crashed through a chain link fence into an awning. Thereafter, while searching the high school football field, Deputy Fee and another deputy discovered a black male, DeSean Landry, underneath a ramp going up to the football stadium seating. Landry was approximately 100 yards from the vehicle. Deputy Fee also located a black hoodie in tall grass along St. Emma Street.
Ascension Parish Sheriff s Office Detective Sergeant Jake Garcia testified the vehicle at St. James High School was confirmed to be the stolen vehicle by license plate and vehicle type. A Kate Spade wallet purse, containing the drivers license of L.P., was recovered in the area between the vehicle and a gate that the vehicle had apparently crashed through. In addition to the black hoodie recovered by Deputy Fee, a black short-sleeved collared shirt was also recovered from the area. The object thrown from the car was never recovered. No weapons were found at the scene.
Ascension Parish Sheriffs Office Sergeant Scott Charleville testified that a few hours after the discovery of the vehicle at St. James High School, the defendant was arrested for resisting an officer and lying about his name. The defendant had gone to the Plains, a highly guarded chemical plant, and asked to use the phone at the guard shack. The Plains was approximately one mile from St. James High School. The defendant was wearing a sleeveless undershirt, and was muddy and sweaty. He stated he had “just broke down” on River Road 18, a road near the plant. He identified himself as “Rodney Sorina.” The police, however, determined he was actually Joshua Sorina.
On July 20, 2018, St. James Parish Sheriffs Office Deputy Raymond T. Marzilli investigated a report of a suspicious male at the Plains. The man did not appear to know where he was and “didnt really go into where he was going.” He identified himself as “Rodney Sorina.” After Deputy Marzilli was unable to find a match for the name and date of birth provided by the defendant, a supervisor suggested checking for “Joshua Sorina.” A dispatcher sent Deputy Marzilli a picture of “Joshua Sorina,” and he was able to identify the defendant on the basis of a tattoo and facial features. Deputy Marzilli advised the defendant of his Miranda
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rights and asked him some questions. The defendant claimed he had been with a male and a female in a car that had broken down somewhere down the road. He then stated that they had run out of gas. Thereafter, he stated that they had a flat tire. The defendant was unable to provide the names of the male and female. Additionally, Deputy Marzilli did not see any broken down cars in the area.
Ascension Parish Sheriffs Office Detective Staff Sergeant Marc Dufren processed and photographed the contents of the stolen vehicle. He found a red and black Franklin glove on the back seat of the vehicle and a matching glove on the floorboard. There was also a Kate Spade purse on the back seat. He also found a pair of grey and black gloves in the vehicle. A Coach purse on the passenger-side floorboard contained some cash, a key fob, a key ring, and the drivers license of E.P.
Ascension Parish Sheriffs Office Sergeant and Louisiana State Police Crime Lab DNA analyst Tayla Pinell was accepted by the court as an expert in forensic DNA. She testified the DNA profile obtained from a swab taken from the interior of the left hand of the black and grey (Hyper Tough brand) glove was consistent with being a mixture of DNA from a minimum of three contributors, with one major contributor, and Landry could not be excluded as a major contributor to the profile. She also testified that a swab taken from the interior of the left hand of the Franklin brand glove and a swab taken from the interior of the right hand of the Franklin brand glove were consistent with being a mixture of DNA from a minimum of three contributors, with one major contributor, and the defendant could not be excluded as a major contributor to the profiles. Assuming one contributor to the DNA profile for the left hand of the Franklin brand glove, the probability of finding the same deduced DNA profile if the DNA had come from an unrelated, random individual other than the defendant was approximately 1 in 33.6 decillion in the Caucasian population, 1 in 14.3 nonillion in the African American population, and 1 in 20.6 undecillion in the Southwest Hispanic population. Assuming one contributor to the DNA profile for the right hand of the Franklin brand glove, the probability of finding the same deduced DNA profile if the DNA had come from an unrelated, random individual other than the defendant was approximately 1 in 23.1 billion in the Caucasian population, 1 in 1.64 billion in the African American population, and 1 in 32.6 billion in the Southwest Hispanic population.
SUFFICIENCY OF THE EVIDENCE
In assignment of error number one, the defendant contends he was developed as a suspect “solely on the fact that he was seen approximately one mile away from the site where the 2016 Toyota Camry crashed at the St. James High School campus.” In regard to the fact that his DNA was found in a glove inside of the vehicle stolen during the robbery, he argues “[i]t is highly possible that the two men who drove away in the 2016 Toyota Camry stole a pair of gloves that belonged to [the defendant] and used these gloves to commit these offenses.”
The standard of review for 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 the State proved the essential elements of the crime and the defendants identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisianas circumstantial evidence test, which states in part, “assuming every fact to be proved that the evidence tends to prove, in order to convict,” every reasonable hypothesis of innocence is excluded. La. R.S. 15:438; State v. Coleman, 2021-0870 (La. App. 1st Cir. 4/8/22), 342 So.3d7, 11.
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. La. R.S. 15:438; Coleman, 342 So.3d at 12. When the key issue in a case is the defendants identity as the perpetrator, rather than whether 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. White, 2009-0947 (La. App. 1st Cir. 10/23/09), 2009 WL 3452887, *2.
In the instant case, the facts and circumstances surrounding the commission of the offenses are essentially undisputed. The defendant does not contest that the robberies occurred at Sonic on the date in question. Nor does he contest that two assailants committed the robberies. Rather, he only challenges the evidence of his identity as one of the assailants.
The defendants theory at trial was that Landry had the defendants gloves and “another person,” i.e., not the defendant, with him. It is the function of the jury to determine which witnesses are credible. The verdict rendered in this matter indicates the jury found the States evidence of the defendants identity as a participant in the robbery sufficient. The jury apparently rejected the defendants theory of mistaken identity. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a jurys determination of guilt. White, 2009 WL 3452887 at *4.
Viewing the evidence in the light most favorable to the State, we are convinced that any rational trier of fact could have concluded, beyond a reasonable doubt, that the evidence was sufficient to negate any reasonable probability of misidentification and that the defendant was a perpetrator of the offenses. Although there was no direct evidence linking the defendant with the crimes, the circumstantial evidence was sufficient to allow the jury to conclude beyond a reasonable doubt that the defendant participated in the robberies.
Balanced against the defendants denial of any participation in the robbery was the States evidence establishing to a statistical certainty that his DNA was inside a pair of gloves found inside the abandoned stolen vehicle. Additional evidence that the muddy and sweaty defendant was located approximately a mile from the abandoned stolen vehicle only a few hours after it crashed, that he gave inconsistent accounts of why he was there, and that he identified himself with a false name was also highly probative of the defendants guilt in this case. There is no reasonable explanation for the presence of the defendants DNA inside the gloves found with the fruits of the robbery. The jury concluded that the defendant accompanied Landry to the Sonic and participated in the robbery. The jury apparently rejected as unreasonable the defendants claim that Landry had the defendants gloves and “another person” with him. The evidence supports the jurys determination. See White, 2009 WL 3452887 at *4.
Accordingly, in reviewing the evidence, we cannot say that the jurys determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder 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, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). To otherwise accept a hypothesis of innocence that was not unreasonably rejected by the fact finder, a court of appeal impinges on a fact finders discretion beyond the extent necessary to guarantee the fundamental protection of due process of law. State v. Mire, 2014-2295 (La. 1/27/16), 269 So.3d 698, 703 (per curiam).
This assignment of error is without merit.
EXCESSIVE SENTENCES
In assignment of error number two, the defendant contends the district court imposed thirty-year concurrent sentences upon him despite the absence of any evidence to suggest that he was one of the two men who forced the four victims from a car in Geismar. He argues that without sufficient evidence to show he committed the robbery, the thirty-year concurrent sentences must be reversed.
No oral motion to reconsider sentence was made at sentencing in this matter. The defendant also failed to file a written motion to reconsider sentence. See La. Code Crim. P. art. 881.1(A)(1) (“[i]n felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.”).
Under La. Code Crim. P. arts. 881.1(E) and 881.2(A)(1), the failure to make or file a motion to reconsider sentence precludes a defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. State v. Collins, 2021-1048 (La. App. 1st Cir. 2/25/22), 2022 WL 575319, *2, writ denied, 2022-00519 (La. 5/24/22), 338 So.3d 1193; State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc) (per curiam). Thus, where the defendant failed to make or file a motion to reconsider his sentence herein, he is precluded from raising this assignment of error on appeal.
This assignment of error is without merit.
CONVICTIONS AND SENTENCES AFFIRMED.
FOOTNOTES
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. The trial court failed to impose the sentences “without benefit of parole, probation or suspension of imposition or execution of sentence.” See La. R.S. 14:64.1(B). However, the sentences are deemed to contain the provisions relating to their service without benefit of probation, parole, or suspension of sentence. La. R.S. 15:301.1(A).
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. We reference the crime victims, who at the time of the commission of the offenses were minors under eighteen years of age, by their initials. See La. R.S. 46:1844(W).
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. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
WOLFE, J.