The defendant, Zolton Omarsheriffe Adams, Jr., was charged by an amended bill of information with attempted armed robbery, a violation of La. R.S. 14:64 and La. R.S. 14:27. He pled not guilty. Following a trial, the jury unanimously found the defendant guilty as charged. The trial court denied the defendants motion for new trial. Thereafter, the trial court sentenced the defendant to forty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The trial court denied the defendants oral motion to reconsider sentence. The defendant now appeals, assigning error to the trial courts denial of his motions for mistrial, new trial, to reconsider sentence, and as to the constitutionality of his sentence. For the following reasons, we affirm the defendants conviction and sentence.
STATEMENT OF FACTS
On November 24, 2021, the Lafourche Parish Sheriffs Office dispatched Captain Ricky Breaux, Jr. to The Hardware Store, located at 128 Barataria Street in Lockport, after receiving a report of an armed robbery in progress. When Captain Breaux entered the store, he observed the stores owner, James Folse, Jr., on top of the defendant and holding a gun to him. Prior to Captain Breauxs arrival, a store employee, Terry Martin, observed as the defendant entered the store and jammed a block of wood between the store doors. The defendant pulled out what Martin believed to be a gun, which he pointed at Martin. The defendant told Martin he was there to rob the store and began fumbling with the cash register in an attempt to get it open. Folse—who was armed—exited his office, pulled out his gun, and pointed it at the defendant. Folse told the defendant to drop his weapon and get down on the floor. When the defendant did not comply, Folse grabbed the defendant, tripped him, pinned him down on the floor, and placed his arm behind his back, causing the defendant to release his purported gun. Folse also pulled down the mask the defendant had covering his face. Folse told Martin to call the police and held the defendant at gunpoint on the floor until Captain Breaux arrived. Captain Breaux detained the defendant and seized the defendants presumed gun, identified as a toy BB-gun designed to look like a Glock pistol.
ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO
In assignment of error number one, the defendant argues that the trial court erred in denying his motion for mistrial based on the admission of unrelated other crimes evidence presented by the State during its opening statement. In assignment of error number two, the defendant contends that the trial court erred in denying his subsequent motion for new trial asserting, in part, the same ground.
As prescribed by La. C.Cr.P. art. 766, the States opening statement shall explain the nature of the charge and set forth, in general terms, the nature of the evidence by which the State expects to prove the charge. The trial judge has broad discretion in controlling the scope of opening and closing arguments. This court will not reverse a conviction on the basis of improper argument unless thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Mills, 2013-0573 (La. App. 1st Cir. 8/27/14), 153 So.3d 481, 496, writs denied, 2014-2027 (La. 5/22/15), 170 So.3d 982, and 2014-2269 (La. 9/18/15), 178 So.3d 139.
Louisiana Code of Evidence article 404(B)(1)(a) provides that evidence of other crimes, acts, or wrongs is generally not admissible. However, other crimes evidence is admissible “when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.” La. C.E. art. 404(B)(1)(a). This exception, formerly known as res gestae, incorporates a rule of narrative completeness without which the States case would lose its narrative momentum and cohesiveness. Such evidence forms part of the res gestae when it is so nearly connected to the charged offense that the State cannot accurately present its case without reference to that evidence. See State v. Taylor, 2001-1638 (La. 1/14/03), 838 So.2d 729, 741, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004); State v. Swan, 2018-0320 (La. App. 1st Cir. 12/17/18), 2018 WL 6599023, *15 (unpublished), writ denied, 2019-0151 (La. 5/20/19), 271 So.3d 1270.
Close proximity in time and location is required between the charged offense and the other crimes evidence to ensure that the purpose served by the admission of other crimes evidence is not to depict the defendant as a bad man, but rather, to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. Taylor, 838 So.2d at 741 (citing State v. Colomb, 98-2813 (La. 10/1/99), 747 So.2d 1074,1076 (per curiam)). The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances.
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Taylor, 838 So.2d at 741.
Under La. C.Cr.P. art. 770(2), upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the district attorney in argument refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. Although La. C.Cr.P. art. 770 is couched in mandatory terms, it is a rule for trial procedure. Thus, the introduction of inadmissible other crimes evidence results in atrial error subject to a harmless error analysis. State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, 101-02; State v. Murphy, 2016-0901 (La. App. 1st Cir. 10/28/16), 206 So.3d 219, 231. The test for determining whether an error is harmless is whether the verdict actually rendered in this case “was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); Johnson, 664 So.2d at 100.
A mistrial is a drastic remedy that should be granted only when a defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial; mere possibility of prejudice is not sufficient. The trial court has sound discretion in determining whether a mistrial should be granted. Its denial of a motion for mistrial will not be disturbed on appeal without abuse of that discretion. State v. McIntosh, 2018-0768 (La. App. 1st Cir. 2/28/19), 275 So.3d 1, 5, writ denied, 2019-00734 (La. 10/21/19), 280 So.3d 1175 (citing State v. Caminita, 2016-0121 (La. App. 1st Cir.9/16/16), 203 So.3d 1100, 1106, writ denied, 2016-2045 (La. 9/6/17), 224 So.3d 988). A reviewing court should not reverse a defendants conviction and sentence unless the error has affected the substantial rights of the accused. La. C.Cr.P. art. 921; McIntosh, 275 So.3d at 5.
During its opening statement, the prosecution noted that upon his arrival to the crime scene, Captain Breaux located a small bag of marijuana on the defendant as he was taken into custody. Defense counsel objected, stating the defendant was on trial for armed robbery, not for possession of marijuana. The State argued that the evidence, the small bag of marijuana, should be considered res gestae. In response, defense counsel contended that the State was capable of presenting its case without reference to the marijuana. After further noting that the marijuana possession did not constitute an element of the charged offense of attempted armed robbery, defense counsel moved for a mistrial.
The trial court indicated that it would admonish and instruct the jury to not consider the prosecutions statement about the defendants possession of marijuana made during the States opening statement. The trial court agreed with defense counsel that the possession of marijuana was not res gestae. Defense counsel objected to the trial courts decision to issue an admonishment and instruction, arguing that the prosecutions statement was highly prejudicial. The trial court then admonished the jury that the evidence was inadmissible and instructed the jury to not consider the defendants possession of marijuana in making its ultimate determination.
In later denying the defendants motion for new trial, based in pertinent part on the prosecutions statement at issue, the trial court found that its admonition and instruction to the jury was sufficient. The trial court further stated that it did not find the reference to the defendants possession of marijuana prejudicial, as there was no indication that the marijuana was being illegally possessed or that the defendant was selling the substance. The trial court further noted that when the prosecutions statement was made, the State listed items that were collected at the crime scene, including the BB-gun, a hat the defendant was wearing, and the mask that was covering the defendants face when he first entered the store.
The trial court is correct that the defendants possession of a small amount of marijuana may not have constituted or been perceived by the jury as a crime or bad act. However, unless obtained by prescription, order from a practitioner, or as provided in La. R.S. 40:978, possession of marijuana is a punishable, criminal offense under La. R.S. 40:966(C)(2). In its opening statement, the State could have omitted listing the items found on the defendants person after the attempted armed robbery was thwarted and the police took the defendant into custody. The information about the evidence collected at the scene was not so intertwined with the attempted armed robbery offense that it was necessary to achieve narrative completeness since the State did not need to present that information in order to accurately present evidence of all of the elements of attempted armed robbery. Nonetheless, assuming the prosecutions statement constituted a reference to an impermissible other crime or bad act that was improperly presented to the jury, the introduction of such evidence is subject to a harmless error analysis.
The evidence in this case consisted of eyewitness testimony and surveillance footage capturing the incident. The defendant was held at the scene and was present when the police arrived, at which point the defendant was apprehended. The toy BB gun used by the defendant was collected at the scene, and the defendant, after being advised of his rights, confessed to the offense. Further, the trial court admonished the jury to disregard the prosecutions reference to the defendants possession of a small amount of marijuana, a statement that was made during the States opening statement, prior to the presentation of the compelling and overwhelming evidence against the defendant.
Much credit should be accorded to the good sense and fair-mindedness of the jurors who have seen the evidence, heard the arguments, and been instructed by the trial judge that arguments of counsel are not evidence. State v. Dupre, 2022-1228 (La. App. 1st Cir. 4/14/23), 367 So.3d 81, 90, writ not considered, 2023-01333 (La. 12/19/23), 374 So.3d 979. There is no indication that the jury was unable to discern and distinguish the acts constituting the offense of attempted armed robbery from the brief reference to the other act of possession of marijuana. We are convinced that the verdict rendered in this case was surely unattributable to any error in the admission of the prosecutions statement. Thus, we find that the drastic remedy of a mistrial was not warranted in this case, and the trial court did not err in denying the defendants subsequent motion for new trial. Accordingly, we find no merit in the defendants assignments of error numbers one and two.
ASSIGNMENTS OF ERROR NUMBERS THREE AND FOUR
In assignment of error number three, the defendant argues that the trial court inadequately considered the sentencing guidelines and imposed an excessive sentence. Thus, in assignment of error number four, the defendant contends that the trial court erred in denying his motion to reconsider sentence.
The Eighth Amendment to the United States Constitution 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.2d 762, 767 (La. 1979). A sentence is considered unconstitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than 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 ones sense of justice. State v. Livous, 2018-0016 (La. App. 1st Cir. 9/24/18), 259 So.3d 1036, 1044, writ denied, 2018-1788 (La. 4/15/19), 267 So.3d 1130.
The trial court has great discretion in imposing a sentence within the statutory limits. Such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Scott, 2017-0209 (La. App. 1st Cir. 9/15/17), 228 So.3d 207, 21L writ denied, 2017-1743 (La. 8/31/18), 251 So.3d 410. Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider before imposing sentence. While the entire checklist of La. C.Cr.P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So.2d 566, 569.
The sentencing judge should review the defendants personal 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. State v. Spikes, 2017-0087 (La. App. 1st Cir. 9/15/17), 228 So.3d 201, 204-05. On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Anderson, 2022-0587 (La. App. 1st Cir. 12/22/22), 357 So.3d 845, 852, writ denied, 2023-00352 (La. 9/6/23), 369 So.3d 1267.
Louisiana Revised Statutes 14:64(B) provides that “[w]hoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.” Pursuant to La. R.S. 14:27(D)(3), the punishment for attempted armed robbery is a fine or imprisonment or both “in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.” Accordingly, the defendants potential sentencing range was zero to forty-nine and a half years, at hard labor, and without the benefit of probation, parole, or suspension of sentence for his conviction for attempted armed robbery. Thus, the imposed sentence of forty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, while within the upper end of the sentencing range, is not a maximum or near maximum sentence. See La. R.S. 14:64(B) and 14:27(D)(3). See also. e,g., State v. Loyd, 35,637 (La. App. 2nd Cir. 2/27/02), 810 So.2d 1214,1225, writ denied, 2002-1159 (La. 4/21/03), 841 So.2d 779.
At the sentencing hearing, the trial court considered the facts of the offense, noting that the offense was a planned scheme that occurred at a small, family-owned business. Indicators of the pre-meditated nature of the attempted armed robbery include that the defendant jammed a block of wood between the store doors to hold them open; that only one person was working at the cash register; and that the BB-gun was intended to look like a handgun. The trial court further noted that the store employee, Martin, was in a vulnerable position because the defendant attempted to take advantage of the fact that she was alone in the store, not initially realizing that the store’ owner, Folse, was also present.
The trial court then read aloud the factors delineated in La. C.Cr.P. art. 894.1 and specifically found that if a sentence were to be suspended or if the defendant were to be placed on probation, there would be a risk that the defendant would commit another crime. The trial court further found that the defendant needed correctional treatment or a custodial environment that could be provided most effectively by his commitment to an institution. The trial court also found that a lesser sentence would depreciate the seriousness of the offense.
The trial court held that the defendant knowingly created a risk of death or great bodily harm to more than one person and used threats of or actual violence in the commission of the offense. See La. C.Cr.P. art. 894.1(B)(5) and (6). As to those factors, the trial court noted that the defendant entered the store with a mask on, demanded money from Martin while brandishing what appeared to be a gun, and provoked Folse to pull out his weapon, believing the defendant was armed with a real handgun. The trial court also found that the offense created long-term effects on both victims, of a mental or psychological nature. See La. C.Cr.P. art. 894.1(B)(9).
The trial court then considered the defendants criminal history, noting his 2018 arrest for simple battery, his 2020 arrests for second degree battery and contributing to the delinquency of juveniles, and his 2021 conviction of second-degree battery. The trial court noted that the instant offense occurred while the defendant was on probation for the 2021 conviction.
We find no error in the trial courts reasoning. While the defendant may have initially believed that the employee, Martin, was alone in the store, he then created the risk of death or great bodily harm to more than one person once the store owner, Folse, appeared and pulled out a real gun. The defendant refused to surrender his toy BB gun, which precipitated a physical confrontation. Considering the facts of the offense of attempted armed robbery and the trial courts reasons for imposing the sentence, we find that the imposed sentence is not grossly disproportionate to the severity of the offense, and therefore, is not unconstitutionally excessive. Accordingly, we find no error in the trial courts denial of the defendants motion to reconsider sentence. Assignments of error numbers three and four are without merit.
CONVICTION AND SENTENCE AFFIRMED.
FOOTNOTES
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. We note that the Louisiana Supreme Court has left open the question of the applicability of the balancing test of La. C.E. art. 403 to integral act evidence admissible under La. C.E. art. 404(B)(1). See Colomb, 747 So.2d at 1076.
WELCH, J.