Judgment rendered October 2, 2024. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,840-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
DAVID D. WINDHAM Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 380,099
Honorable Christopher T. Victory, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas Lee Harville
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
REBECCA ARMAND EDWARDS SAMUEL S. CRICHTON MICHAEL T. ANDERSON Assistant District Attorneys
Before COX, HUNTER, and MARCOTTE, JJ. COX, J.
This case arises out of the First Judicial District Court, Caddo Parish,
Louisiana. Defendant, David D. Windham (“Windham”), was convicted of
two counts of resisting an officer with force or violence in violation of La.
R.S. 14:108.2. Following a unanimous jury verdict of guilty for both counts,
Windham was sentenced to three years at hard labor for both counts, to be
served consecutively, and ordered to pay a $1,000 fine for each count. For
the following reasons, we affirm Windham’s conviction and sentence.
FACTS
On June 19, 2023, by an amended bill of information, the State
charged Windham with two counts of resisting an officer with force or
violence in violation of La. R.S. 14:108.2. Windham pled not guilty to both
counts. A jury trial was held on September 21, 2023, where the following
testimony was presented:
Constable Melvin Presley (“Constable Presley”) testified that he was
elected as constable in Caddo Parish for Ward 3 and has served in that
position for the last 12 years, where he conducts traffic stops and other tasks
in his official capacity. Constable Presley stated that the boundaries of his
jurisdiction are marked by “the 12-mile Bayou on North Market and goes to
Caddo Lake, to the Red River, to the state line.” He explained that those
boundaries included the townships of Blanchard, Longwood, and
Mooringsport.
In recalling the events of the instant offense, Constable Presley
testified that on December 8, 2020, he and his deputy, Constable Samuel
Yount (“Constable Yount”) left a meeting for the Fraternal Order of Police
in the Cross Lake area. Constable Presley explained that although he was in plain clothes, he had his badge and was in a marked vehicle equipped with
lights and sirens. He then stated that when he is in his jurisdiction, he is “on
duty 24-7.” Constable Presley testified that he drove southbound on
Blanchard Furrh Road, toward Blanchard, and that as he began to make a
left turn onto Billie Lee Drive,1 another vehicle almost struck him.
Constable Presley recalled that the vehicle traveled at a high rate of speed,
and it seemed as though the driver was distracted and unaware of what
happened.
Constable Presley stated that if he had not been paying attention and
had not moved his vehicle out of the way, it was likely the other vehicle
would have struck his driver’s door. He stated that at that point, he activated
his lights and followed the vehicle, where he observed the driver make
several traffic violations including speeding, reaching up to 70 miles an hour
in a 55-mile-an-hour, crossing over into the center line of the highway, and
generally weaving as he drove.
Constable Presley explained that as he followed behind the vehicle, he
noticed the driver had the interior vehicle lights on and was doing something
in the passenger seat. Constable Presley further stated that he followed the
vehicle for almost a quarter of a mile before the driver finally stopped. He
explained that as he approached the vehicle, he stood near the left rear of the
driver’s vehicle, and Constable Yount stood by the rear passenger side of the
vehicle. He stated that the driver approached him and asked, “What do you
need?” Constable Presley explained that he then identified himself and
asked if the driver was okay or needed help, to which the driver responded,
1 The incident report generated for this matter indicates that the intersection was between Par Road 4/Blanchard Furrh Road and Billie Lee Lane. 2 “You’re a constable?” and “F*** a constable,” before he shoved Constable
Presley in the chest with both hands.
Constable Presley stated that after this, the driver then went back to
his vehicle and put the vehicle in gear. Constable Presley stated that he
managed to get a hold of the driver before he drove off to try and pull him
out of the vehicle, but the driver took off anyway, leaving him hanging out
of the vehicle. Constable Presley testified that he was in the vehicle from
the waist up and was dragged approximately two or three yards before the
vehicle finally came to a stop. He explained that during this time, the driver
struggled against him and continued to resist until Constable Yount was able
to grab the driver and pull him out of the vehicle. Constable Presley stated
that he and Constable Yount struggled to restrain the driver for about two or
three minutes because of his actions. Constable Presley stated that
approximately six or ten minutes later, a Caddo Parish Sheriff’s deputy
arrived to transport the driver.
On cross-examination, Constable Presley clarified that his incident
report did not reflect that he was wearing his badge because it was standard
procedure to wear it, and did not feel the need to include this information.
Constable Presley also stated that although he did not use his radar gun to
determine the driver’s precise speed, he was certified in 1979 by the
Shreveport Police Department to determine the speed of a vehicle and “ran
radar for three years in selective enforcement on motorcycles and in radar
cars.” Constable Presley reiterated that he stopped the driver because of the
near collision, that there were no tags on the vehicle, and because the driver
was speeding, and driving erratically. Constable Presley explained again
how he had to climb in the driver’s vehicle and the ensuing struggle he and 3 Constable Yount endured to arrest him. He then stated that once the driver
was taken into custody, he was originally charged with speeding and battery
of an officer.
Constable Presley then stated that he wasn’t issued a police unit and
was required to pay for the vehicle himself and have his official decals put
on it. He then identified a picture of his patrol unit. Constable Presley then
admitted that he was subject to a few disciplinary matters, including an
incident where he “crossed into another district” without permission from
his supervisor. He then testified that normally, when he makes a stop, he is
in uniform but has effected arrests and stops in plain clothes as well.
Constable Presley also stated that he usually presents his identification card
but was unable to do so in this case because the driver shoved and fled
before he had the opportunity to do so. On redirect, Constable Presley
clarified that he also had to increase his speed to catch up to the driver, and
his speedometer reflected that he reached approximately 70 miles per hour
during the chase.
Next, Constable Yount testified that he worked for the Blanchard
Police Department and served as a constable for Ward 3 in Caddo Parish.
He testified that on December 8, 2020, he and Constable Presley left a
meeting together in a marked vehicle equipped with lights and the words
“Constable” on it. Constable Yount explained that as Constable Presley
attempted to make a left turn from Blanchard Furrh Road, a vehicle nearly
hit them. Constable Yount stated that to avoid being hit, Constable Presley
was forced to yank the wheel to the right. Constable Yount stated that the
sudden motion caused him to slam into his passenger door. He then recalled
seeing the other driver leave the road, drive down into a ditch, and then back 4 onto the road. Constable Yount noted that they had to accelerate to catch up
with the driver and estimated that the other driver traveled around 65 to 70
miles per hour in a 55-mile-an-hour zone.
Constable Yount testified that after he noticed that the vehicle did not
have any tags, Constable Presley activated his lights and pursued the vehicle.
He then confirmed that a traffic stop can be lawfully executed for missing
vehicle tags. Constable Yount stated that the vehicle did not come to an
immediate stop, and the driver “was all over the road and kept reaching to
the passenger side of the vehicle.” Constable Yount stated that when the
vehicle finally stopped, he approached the passenger side of the vehicle to
see if there was a passenger inside, and Constable Presley exited and
approached the driver’s side of the vehicle. Constable Yount stated that
although he could not see if Constable Presley had his badge on when he
exited the vehicle, he knew that Constable Presley always carried his badge.
Constable Yount stated that he wore his badge on his holster, and that it was
easily identifiable.
Constable Yount testified that as Constable Presley approached the
vehicle, the driver exited his vehicle and went immediately toward
Constable Presley. Constable Yount explained that because the driver
moved quickly, Constable Yount went toward the passenger door to ensure
there were no weapons or other passengers that would be a safety hazard.
Constable Yount stated that as he checked through the front windshield,
Constable Presley identified himself to the defendant, and in response, the
defendant stated, “F*** a constable,” and then shoved Constable Presley in
the chest before getting back in the vehicle. Constable Yount explained that
as he was coming around the front of the vehicle, the driver “threw the car in 5 gear and it lunged toward me.” He stated that at that time, he drew his
weapon, but when he noticed Constable Presley was halfway in the vehicle,
attempting to shut the ignition off, he withdrew his weapon. He stated that
he attempted to assist; however, the vehicle accelerated, went past him,
caught him in the left knee with the door, and spun him around.
Constable Yount testified that when he got oriented, he saw Constable
Presley being pulled down the road and got back in the patrol unit to follow.
Constable Yount stated that the vehicle eventually came to an abrupt stop,
and when he exited the vehicle to assist, he heard Constable Presley
repeatedly state, “stop resisting.” Constable Yount stated that after he pulled
the defendant out of the vehicle, the defendant began to fight him and
continued to do so even when he was pinned against the vehicle. Constable
Yount stated that the defendant continued to resist until he drew his weapon,
to which the defendant then apologized. Constable Yount noted that when
another deputy arrived to assist, the defendant still struggled some, but that it
was not as violent, and stopped resisting only when he was handcuffed.
On cross-examination, Constable Yount stated that as a deputy
constable, he was required to be certified every two years. He explained that
on the date of the offense he had not received his certification, but he had
one year from date of hire to receive his certifications, so he was still
authorized to execute detentions and arrests but with supervision from
another officer. Constable Yount reiterated that both he and Constable
Presley were in plain clothes, but his badge was still visible. On redirect,
Constable Presley stated that at no point did the defendant ever ask for either
officer to identify themselves, and if asked, either would have provided
further information beyond the initial identification. 6 Next Deputy Jon Daughtery (“Deputy Daughtery”), of the Caddo
Parish Sheriff’s Office, testified that he was dispatched to assist Constable
Presley and Constable Yount following the detention of an erratic and
combative driver. He stated that when he arrived, he saw both officers
restraining the defendant against a vehicle. Deputy Daughtery recalled that
he saw both officers’ badges when he handcuffed the defendant before
transporting him to Caddo Correctional Center. On cross-examination,
Deputy Daughtery stated that while he remembered seeing both officers
wearing their badges, he could not recall where the badges were located. He
also clarified that since he arrived after the incident, he did not witness the
events which led to the detention. Deputy Daughtery stated that he could
not recall if either officer was injured, and that his focus was on getting the
defendant handcuffed.
Deputy Daughtery stated that when he arrived the defendant was
agitated and resisting both officers, but the defendant was calm by the time
he was handcuffed. He then recalled that the defendant stated that he did not
know that “constables were the real police.” Deputy Daughtery explained
that constables are empowered with the ability to conduct arrests and
detentions and that he has assisted constables in the past.
Finally, Rodger Swan (“Swan”), an investigator for the public
defender’s officer, testified. Defense counsel then introduced photographs
of Constable Presley’s vehicle with the lights activated. Swan explained that
the pictures depicted the vehicle from the front, rear, and side views of the
vehicle. He stated that the word “constable” is displayed on the tailgate and
an emblem of the State of Louisiana is on the driver’s door. Swan also
7 described another picture of radar equipment mounted on the inside of the
vehicle with the light on projecting the word “patrol” below it.
At the close of testimony, the jury returned a unanimous verdict of
guilty for both counts. Following a hearing, the defendant’s motions for
post-verdict judgment of acquittal and motion for new trial were both
denied. Windham waived sentencing delays, and the trial court sentenced
him to pay a fine of $1,000 on each count and to serve three years at hard
labor for each count, with both sentences to be served consecutively. This
appeal followed.
DISCUSSION
Sufficiency of the Evidence
By his first assignment of error, Windham argues that the State
presented insufficient evidence to convict him of resisting an officer with
force or violence. Specifically, Windham claims that the Blanchard Furrh
Road and Billie Lee Lane intersection, where the incident occurred, is
outside the geographical boundaries of Ward 3 where Constable Presley and
Constable Yount are limited for purposes of exercising their authority. In
support, Windham included a copy of a map in his brief that he claims
reflects the intersection of Blanchard Furrh Road and Billie Lee Lane,
allegedly showing that these roads lie outside Ward 3.
From this, Windham argues that when the incident occurred, neither
constable had the authority to effect the arrest and they were not acting in
the performance of their official duties, so he could not have resisted arrest
while either officer was acting in the official performance of their duties.
In response, the State argues that the map included in Windham’s
brief does not accurately and readily identify whether the intersection of 8 Blanchard Furrh Road and Billie Lee Lane is within Ward 3’s jurisdiction.
It requests instead that this Court take judicial notice of the official map of
Ward 3 located on the Caddo Parish Public Works website because it is
readily available and accurately reflects that the intersection is located
within Ward 3.
The standard of appellate review for a sufficiency of the evidence
claim in a criminal case is whether, after reviewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime proven beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed. 2d 560 (1979);
State v. Tate, 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S.
905, 124 S. Ct. 1604, 158 L.Ed. 2d 248 (2004). The Jackson standard, now
legislatively embodied in La. C. Cr. P. art 821, does not afford the appellate
court with a means to substitute its own appreciation of the evidence for that
of the fact finder. State v. Pigford, 05-0477 (La. 2/22/06), 922 So. 2d 517;
State v. Steines, 51,698 (La. App. 2 Cir. 11/15/17), 245 So. 3d 224, writ
denied, 17-2174 (La. 10/8/18), 253 So. 3d 797.
The Jackson standard also applies in cases involving both direct and
circumstantial evidence. An appellate court which reviews the sufficiency
of the evidence in such cases 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 viewed as such, the facts established by the
direct evidence and inferred from the circumstances established by that
evidence must be sufficient for a rational trier of fact to conclude beyond a
reasonable doubt that the defendant was guilty of every essential element of
the crime. State v. Sutton, 436 So. 2d 471 (La. 1983). 9 Likewise, if a case rests essentially upon circumstantial evidence, that
evidence must exclude every reasonable hypothesis of innocence. La. R.S.
15:438; see also, State v. Mingo, 51,647 (La. App. 2 Cir. 9/27/17), 244 So.
3d 629, writ denied, 17-1894 (La. 6/1/18), 243 So. 3d 1064. The appellate
court will review the evidence in the light most favorable to the prosecution
and determine whether an alternative hypothesis is sufficiently reasonable
that a rational juror could not have found proof of guilt beyond a reasonable
doubt. State v. Calloway, 07-2306 (La. 1/21/09), 1 So. 3d 417; State v.
Garner, 45,474 (La. App. 2 Cir. 8/18/10), 47 So. 3d 584, writ not cons., 12-
0062 (La. 4/20/12), 85 So. 3d 1256.
In the absence of any internal contradiction or irreconcilable conflict
with physical evidence, the testimony of the witness, if believed by the trier
of fact, alone, is sufficient support for a requisite factual conclusion. State v.
Elkins, 48,972 (La. App. 2 Cir. 4/9/14), 138 So. 3d 769, writ denied, 14-
0992 (La. 12/8/14), 153 So. 3d 438; State v. Wiltcher, 41,981 (La. App. 2
Cir. 5/9/07), 956 So. 2d 769.
Where there is conflicting testimony concerning 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. Allen, 36,180 (La. App. 2 Cir. 9/18/02), 828 So. 2d 622, writ denied,
02-2997 (La. 6/27/03), 847 So. 2d 1255. The appellate court neither
assesses the credibility of witnesses nor reweighs evidence. State v. Smith,
94-3116 (La. 10/16/95), 661 So. 2d 442. Rather, the reviewing court affords
great deference to the jury’s decision to accept or reject the testimony of a
witness in whole or in part. State v. Gilliam, 36,118 (La. App. 2 Cir.
10 8/30/02), 827 So. 2d 508, writ denied, 02-3090 (La. 11/14/03), 858 So. 2d
422.
In the present case, Windham was charged with two counts of
resisting a police officer with force or violence, in violation of La. R.S.
14:108.2. This statute provides, in pertinent part:
A. Resisting a police officer with force or violence is any of the following when the offender has reasonable grounds to believe the victim is a police officer who is arresting, detaining, seizing property, serving process, or is otherwise acting in the performance of his official duty:
(1) Using threatening force or violence by one sought to be arrested or detained before the arresting officer can restrain him and after notice is given that he is under arrest or detention.
(2) Using threatening force or violence toward or any resistance or opposition using force or violence to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
(3) Injuring or attempting to injure a police officer engaged in the performance of his duties as a police officer.
(4) Using or threating force or violence toward a police officer performing any official duty.
On appeal, Windham does not argue whether he reasonably knew the
constables were officers, or that he used force or violence against either
during the arrest. He only asserts that neither constable was within their
jurisdiction to effectuate the arrest, and thus, were not acting within the
“performance of [their] official duty.”
In this case, Constable Presley testified that on the night of the
incident, he and Constable Yount left a meeting in the Cross Lake area. He
then provided a general boundary description of his jurisdiction in Ward 3,
which was marked by “the 12-mile Bayou on North Market and goes to
Caddo Lake, to the Red River, to the state line.” Constable Presley then
11 stated that when he is in his jurisdiction, he is “on duty 24-7.” Regardless of
Constable Presley’s general boundary description of his jurisdiction, La. C.
Cr. P. art. 213 provides, in part, that a peace officer may, without a warrant,
arrest a person when the offense has been committed in his presence, and if
the arrest is for a misdemeanor, it must be made immediately or on close
pursuit.
It is undisputed that on the night in question, Windham nearly struck
Constable Presley’s vehicle, that he was seen speeding, traveling some 70
miles per hour in a 55-mile-an-hour zone, that Windham crossed over the
center line of the highway, that Windham was seen weaving in and out as he
drove, and had expired tags on his vehicle. Having witnessed Windham
drive erratically and commit several traffic violations, Constable Presley and
Constable Yount were well within their authority to stop Windham.
Moreover, the officers were also within their authority to arrest Windham
after he shoved Constable Presley and fled, dragging Constable Presley
down the road to stop Windham from leaving the scene.
Accordingly, this Court finds that there is no need to take judicial
notice of the map associated with Ward 3, which encompasses Constable
Presley’s and Constable Yount’s jurisdiction. The constables in this case
observed Windham commit several traffic violations and were within their
authority to stop him, and then initiate the arrest thereafter. Therefore, we
find that this assignment of error lacks merit.
Excessive Sentence
By his second assignment of error, Windham argues that the
imposition of six years at hard labor is constitutionally excessive because he
has no prior felony convictions or any previous convictions for resisting 12 arrest. Windham essentially argues he is not the worst of offenders and a
maximum sentence for both counts is not an appropriate punishment for this
offense. Moreover, Windham notes that his criminal history does not justify
the imposition of consecutive sentences such that a consecutive maximum
sentence is grossly disproportionate and serves nothing more than a needless
infliction of pain and suffering.
Appellate review to determine whether a sentence is constitutionally
excessive is a two-pronged inquiry whereby the court first considers whether
the trial court took cognizance of the guidelines set forth in La. C. Cr. P. art.
894.1, and the second considers constitutional excessiveness. State v. Wing,
51,857 (La. App. 2 Cir. 2/28/18), 246 So. 3d 711. However, in this case, no
motion to reconsider sentence was filed; therefore, this Court’s review is
limited to the constitutional excessiveness of the sentence alone. La. C. Cr.
P. art. 881.1; State v. Williams, 51,667 (La. App. 2 Cir. 9/27/17), 245 So. 3d
131, writ not cons., 18-0017 (La. 8/3/18), 248 So. 3d 322; State v. Turner,
50,221 (La. App. 2 Cir. 1/20/16), 186 So. 3d 720, writ denied, 16-0283 (La.
2/10/17), 215 So. 3d 700.
A sentence violates La. Const. art. I, § 20, if it is grossly out of
proportion to the seriousness of the offense or nothing more than a
purposeless and needless infliction of pain and suffering. State v. Smith, 01-
2574 (La. 1/14/03), 839 So. 2d 1; State v. Mandigo, 48,801 (La. App. 2 Cir.
2/26/14), 136 So. 3d 292, writ denied, 14-0630 (La. 10/24/14), 151 So. 3d
600. A sentence is considered grossly disproportionate if, when the crime
and punishment are viewed in light of the harm done to society, it shocks the
sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166;
State v. Wing, supra. The trial court maintains wide discretion in the 13 imposition of sentences within statutory limits, and absent a showing of
manifest abuse, an imposed sentence will not be set aside as excessive. State
v. West, 53,526 (La. App. 2 Cir. 6/24/20), 297 So. 3d 1081. Therefore,
appellate review does not consider whether another sentence may have been
more appropriate, but whether the trial court abused its discretion. State v.
Dale, 53,736 (La. App. 2 Cir. 1/13/21), 309 So. 3d 1031; State v. Davis,
50,149 (La. App. 2 Cir. 11/18/15), 181 So. 3d 200.
In this case, Windham was sentenced under La. R.S. 14:108.2 (C),
which provides a penalty for this crime of a fine of not more than $2,000
and/or imprisonment with or without hard labor for not less than one year
and not more than three years. The trial court ordered each sentence to be
served consecutively.
With respect to whether two or more sentences should be served
concurrently or consecutively, La. C. Cr. P. art. 883 provides in part:
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.
In cases involving multiple offenses and sentences, the trial court has limited
discretion to order that the multiple sentences are to be served concurrently
or consecutively. State v. Nixon, 51,319 (La. App. 2 Cir. 5/19/17), 222 So.
3d 123, writ denied, 17-0966 (La. 4/27/18), 239 So. 3d 836; State v. Allen,
52,318 (La. App. 2 Cir. 11/14/18), 260 So. 3d 703. Concurrent sentences
that arise from a single course of conduct are not mandatory; likewise,
consecutive sentences under those circumstances are not necessarily
excessive. Id. 14 A judgment directing that sentences arising from a single course of
conduct be served consecutively requires particular justification from the
evidence or record. Id. Accordingly, when consecutive sentences are
imposed, the court shall state the factors considered and its reasons for the
consecutive terms. Among the factors to be considered are: (1) the
defendant’s criminal history; (2) the gravity or dangerousness of the offense;
(3) the viciousness of the crimes; (4) the harm done to the victims; (5)
whether the defendant constitutes an unusual risk of danger to the public;
and (6) the potential for the defendant’s rehabilitation. However, the failure
to articulate specific reasons for consecutive sentences does not require
remand if the record provides an adequate factual basis to support
consecutive sentences. Id.
As a general proposition, maximum or near-maximum sentences are
reserved for the worst offenders and the worst offenses. State v. Collins,
53,704 (La. App. 2 Cir. 1/13/21), 309 So. 3d 974; State v. Cotten, 50,747
(La. App. 2 Cir. 8/10/16), 201 So. 3d 299. However, the trial court
nevertheless remains in the best position to consider the aggravating and
mitigating circumstances of a particular case and is given broad discretion in
sentencing. State v. Cook, 95-2784 (La. 5/31/96), 674 So. 2d 957, cert.
denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L.Ed. 2d 539 (1996).
In sentencing Windham, the trial court considered the art. 894.1
factors, and reviewed Windham’s criminal and personal history, as well as
the particular facts that led to Windham’s arrest. Specifically, the trial court
highlighted that after Windham was pulled over, he shoved Constable
Presley, proceeded to flee the scene, and in the process hit Constable Yount
with the vehicle, while simultaneously dragging Constable Presley down the 15 road. The trial court found that Windham’s actions constituted “deliberate
cruelty” and created the risk of death or great bodily harm to more than one
person. The trial court then detailed Windham’s criminal history, which
consisted of:
• 2015: Windham pled guilty to simple battery; suspended sentence and placed on probation for six months.
• 2016: Windham pled guilty to possession of marijuana; suspended sentence and placed on supervised probation for six months.
• 2017: Windham pled guilty to possession of marijuana; suspended sentence and placed on supervised probation for six months.
• 2019: Windham pled guilty to possession of marijuana; placed on supervised probation for one year.
• 2022: Windham pled guilty to felony possession of a Schedule II narcotic; sentence was suspended and placed on supervised probation for three years. Windham also pled guilty to battery of a dating partner.
From this, the trial court noted that at the time of the current offense,
Windham was on felony probation. After reviewing the aggravating factors,
the trial court determined that there were no applicable mitigating factors in
this case and found that these crimes reflected Windham’s “violent
tendencies.”
Although the trial court noted that Windham expressed that he was
sorry for his actions, and was unaware that the constables were police
officers, it nevertheless highlighted the seriousness of Windham’s conduct,
reiterating that Windham dragged a constable down the road in his attempt
to flee, and that either constable could have been seriously injured by his
actions. Moreover, the trial court considered Windham to be a risk of
danger to the public given Windham’s past criminal history and conduct in
16 this offense and that his potential for rehabilitation was low given the
numerous times he received a suspended sentence and was placed on
supervised probation, yet continued to commit offenses, which culminated in
the present offense.
In addition to the trial court’s findings, this Court also highlights that
the testimony in this case reflects that Constable Yount stated that Constable
Presley repeatedly told Windham to “stop resisting,” and that he had to assist
Constable Presley in getting Windham out of the vehicle because of the
ensuing struggle. Constable Yount further testified that even when he did
manage to get Windham out of the vehicle, Windham continued to struggle
and fought him even while pinned against the vehicle. Constable Yount
stated that only when he drew his weapon did Windham stop struggling and
resisting but still struggled some until another officer arrived and placed him
in handcuffs. Deputy Daughtery also testified that when he arrived as
backup, Windham was agitated and resisting both officers.
After a thorough review of this case, this Court finds that although
Windham was given a maximum sentence for both counts, neither sentence
was illegal, and both sentences fall within the sentencing range for this
offense. Moreover, the trial court thoroughly articulated its reasonings for
imposing maximum consecutive sentences for the particular facts of this
case. Based on the foregoing, this Court finds that the sentence imposed is
not disproportionate to the offense committed, nor can we say that the
sentence is constitutionally excessive in light of the facts of this case.
Accordingly, we find that the trial court did not err in imposing this
sentence, and this assignment of error lacks merit.
17 CONCLUSION
For the foregoing reasons, Windham’s conviction and sentence are
affirmed.