Judgment rendered April 9, 2025. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 56,200-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
DAVID RAY BOSWELL Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 375,445
Honorable Ramona L. Emanuel, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Peggy J. Sullivan
DAVID RAY BOSWELL Pro Se
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
FERNANDO BERNARD GRIDER, JR. SENAE DENEAL HALL ERIC MATTHEW WHITEHEAD Assistant District Attorneys
Before STONE, THOMPSON, and HUNTER, JJ. STONE, J.
This appeal arises from the First Judicial District Court, the Honorable
Ramona Emanuel presiding. On May 7, 2020, David Ray Boswell
(“Boswell”) was charged by a bill of information with several counts of
burglary and one count of illegal use of weapons or dangerous
instrumentalities. At the conclusion of his jury trial, Boswell was found
guilty of eight counts of simple burglary, one count of illegal use of a
weapon, and attempted aggravated burglary. On December 14, 2023,
Boswell was sentenced on all convictions to concurrent terms of
imprisonment of fifteen years. This appeal followed.
FACTS
On May 4, 2020, Shreveport Police Officer Robert Brice (“Ofr.
Brice”) was off duty when he was awakened by his wife at approximately
3:00 a.m. informing him of a “couple of guys” walking up their driveway.
Ofr. Brice, after instructing his wife to dial 9-1-1 and arming himself with
his service weapon, went outside to investigate the intrusion. In his garage,
Ofr. Brice saw and apprehended Brendan “Slade” Hanshew (“Hanshew”) —
later determined to be Boswell’s co-arrestee. After getting Hanshew to the
ground, Ofr. Brice saw another man — later identified as Boswell — step
into the driveway in front of his home and immediately fire a gun. After
firing, Boswell stepped back around the corner of the house and yelled for
Hanshew to flee with him.
Upon hearing the gunshots, Ofr. Brice’s neighbor (also an off-duty
police officer) came to assist in detaining Hanshew. At this point, Boswell
had already fled on foot. With Hanshew detained, Ofr. Brice began
inspecting his property. He discovered some of his belongings — that he maintained in his garage — inside a pickup truck that was parked in front of
his home. At some point after the incident, Ofr. Brice saw Boswell across
the street from his home at a church wearing an orange shirt and carrying a
backpack. This description was provided to the police, who had arrived at
the scene and begun their investigation. Boswell was later apprehended near
the church. Ofr. Brice subsequently identified Boswell as the man who shot
at him.
During a separate incident at another location, a Shreve City Car Care
employee, Tobey Meeler (“Meeler”), arrived at work to find vehicles —
including his own — broken into with items missing from them. From his
vehicle (a 2001 Ford F-150 King Ranch), Meeler noticed broken windows
and his antenna, two rear wheels, side-by-side tires, and tailgate missing.
Also missing were stereo speakers and tailgate from a GMC Sierra,
belonging to a Robert Bookout. In yet another incident in Shreveport,
Samuel Halphen — like Meeler — arrived at his workplace (BHP) to find
that five trucks and a Ford Escape had been broken into; windshields and
windows were broken, tailgates had been removed, and additional items
were missing from the burglarized vehicles.
Common to and connecting all the burglaries was the pickup truck
(which belonged to Hanshew’s parents) parked outside of Ofr. Brice’s
residence. The pickup was towed to the SPD impound lot, where officers
were able to recover a wallet, debit/credit cards of BHP victims, and several
items in the back of the truck including car audio equipment, truck tailgates,
and tires. Additionally, in the center console of the pickup were .39 caliber
live rounds. During the investigation, Boswell admitted to having a gun and
2 provided information about its location to police. Based on this information,
Boswell’s gun was recovered two days later.
Shreveport Police Officers took both blood and DNA samples, as well
as fingerprints, from all burglarized vehicles. The collected samples were
compared to a known sample of Boswell’s DNA and were found to be a
consistent match. The fingerprints provided such sufficient detail for
examination, that testimony at trial confirmed the fingerprints found at the
scenes of the crimes were Boswell’s. Hanshew was excluded as a
contributor of DNA in all of the burglaries. SPD returned all the stolen
items taken from the crime scenes to their rightful owners.
Defense counsel at trial pointed out that Boswell’s probation card was
displayed on the courtroom projector for the jury to see. Although the
defense makes clear they did not believe this was done intentionally or
maliciously, they still moved for mistrial on the grounds that the jury had
seen evidence of Boswell’s previous criminal history, which is otherwise
inadmissible evidence. No admonishment was requested by the defense due
to their belief that it may only increase any potential harm done. The trial
court denied the motion for mistrial, finding that it was not supported by law
and the state’s actions did not rise to the level of mistrial in accordance with
the law.
After the conclusion of trial, Boswell was unanimously convicted and
immediately sentenced to ten years at hard labor for each count of simple
burglary, fifteen years at hard labor for attempted aggravated burglary and
two years at hard labor for illegal use of a weapon. All sentences were
ordered to be served concurrently for a total imprisonment of fifteen years.
Boswell’s sentence was imposed without providing him the mandatory 24- 3 hour delay and without a waiver of that delay. Boswell filed a motion for a
new trial and a motion for post-judgment verdict of acquittal; both were
denied. He now appeals asserting assignments of error directed toward
excessive sentence, sufficiency of the evidence and several errors on the part
of the trial court.
DISCUSSION
Insufficient evidence and trial errors
In his pro se assignments of error, Boswell argues insufficiency of the
evidence and abuse of discretion by the trial court throughout the
proceedings. Specifically, he argues that the state did not prove all essential
elements of aggravated burglary, i.e. it failed to show that he entered any
inhabited dwelling. He asserts that no rational trier of fact would have found
him guilty of this crime.
When issues are raised on appeal, both as to the sufficiency of the
evidence and as to one or more trial errors, the reviewing court should first
determine the sufficiency of the evidence. The reason for reviewing
sufficiency first is that the accused may be entitled to an acquittal if a
rational trier of fact, viewing the evidence in the light most favorable to the
prosecution, could not reasonably conclude that all of the elements of the
offense have been proven beyond a reasonable doubt. Hudson v. Louisiana,
450 U.S. 40, 101 S. Ct. 970, 67 L. Ed. 2d 30 (1981); Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Dennis,
46,471 (La. App. 2 Cir. 9/21/11), 72 So. 3d 968, writ denied, 11-2365 (La.
5/18/12), 89 So. 3d 1189. State v. Cooley, 51,895 (La. App. 2 Cir. 5/23/18);
247 So. 3d 1159, writ denied, 18-1160 (La. 3/6/19), 266 So. 3d 899.
4 The standard of appellate review for a sufficiency of the evidence
claim is whether, after 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 proven beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979);
State v. Tate, 01-1658 (La. 05/20/03), 851 So. 2d 921, cert. denied, 541 U.S.
905, 124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Ladell, 52,847 (La.
App. 2 Cir. 9/25/19), 280 So. 3d 932. This standard, now legislatively
embodied in La. C. Cr. P. art. 821, does not provide the appellate court with
a vehicle to substitute its own appreciation of the evidence for that of the
factfinder. State v. Pigford, 05-0477 (La. 02/22/06), 922 So. 2d 517.
The evidence, whether established directly or inferred from the
circumstances, 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); State v.
Freeman, 50,282 (La. App. 2 Cir. 4/13/16), 194 So. 3d 1, writ denied, 2016-
0927 (La. 5/1/17), 220 So. 3d 743. Cooley, supra. The appellate court does
not assess credibility or reweigh the evidence. State v. Smith, 94-3116 (La.
10/16/95), 661 So. 2d 442; State v. Green, 49,741 (La. App. 2 Cir.
04/15/15), 164 So. 3d 331. If the entirety of the evidence, both admissible
and inadmissible, is sufficient to support the conviction, the accused is not
entitled to an acquittal and the reviewing court must then consider the
assignments of trial error. State v. Hearold, 603 So. 2d 731 (La. 1992).
Aggravated burglary is the unauthorized entry of any inhabited
dwelling, or of any structure where a person is present, with the intent to
commit a felony or any theft therein if the offender is armed with a 5 dangerous weapon. La. R.S. 14:60. A garage or carport is part of an
inhabited dwelling. State v. Mitchell, 50,188 (La. App. 2 Cir. 11/18/15), 181
So. 3d 800, writ denied, 15-2356 (La. 1/9/17), 214 So. 3d 863. La. R.S.
14:27(A) provides that any person who, having a specific intent to commit a
crime does or omits an act for the purpose of and tending directly toward the
accomplishing of his object is guilty of an attempt to commit the offense
intended; and it shall be immaterial whether, under the circumstances, he
would have actually accomplished his purpose. Lying in wait with a
dangerous weapon with the intent to commit a crime shall be sufficient to
constitute an attempt to commit the offense intended. La. R.S. 14:27(B).
Attempt requires both the specific intent to commit a crime and an act for
the purpose of, or an “overt act,” tending directly toward accomplishment of
that crime. State v. Prine, 44,229 (La. App. 2 Cir. 5/20/09), 13 So. 3d 758,
writ denied, 09–1361 (La.2/5/10), 27 So. 3d 298; State v. Davillier, 46,625
(La. App. 2 Cir. 11/2/11), 83 So. 3d 22.
We resolve that the evidence was more than sufficient to convict
Boswell of attempted aggravated burglary for the following reasons. First,
items from Ofr. Brice’s garage were located in the pickup truck that Boswell
and Hanshew drove to his home, making it abundantly clear they indeed
committed a burglary therein. Boswell’s contention that he did not enter an
inhabited dwelling is erroneous as it is well settled that a garage is part of an
inhabited dwelling. Second, considering that Ofr. Brice and his wife were
asleep inside their home during early morning hours with Boswell — a
prowler — on their property, a rational trier of fact can infer that he lacked
the requisite authorization to be there. Finally, an armed Boswell fired his
weapon, fled the scene, and was later identified by Ofr. Brice as the man 6 who shot at him. Therefore, viewing the evidence in the light most
favorable to the prosecution, we find that the state presented sufficient
evidence for a reasonable trier of fact to convict Boswell of attempted
aggravated burglary. This assignment lacks merit.
Motion to suppress
Boswell argues that he was denied a fair trial when the trial court
failed to rule on his pro se motion to suppress evidence. The trial court is
afforded great discretion in ruling on a motion to suppress, and its ruling will
not be disturbed absent an abuse of that discretion. State v. Lee, 05–2098
(La. 1/16/08), 976 So. 2d 109, 122; State v. Montejo, 06-1807 (La. 5/11/10),
40 So. 3d 952. A defendant is limited on appeal to the grounds he
articulated at trial and a new basis for a claim, even if it would be
meritorious, cannot be raised for the first time on appeal. Montejo, supra.
When a defendant proceeds to trial without raising an issue which was the
subject of a pending pretrial motion, he waives his right to have the motion
heard or ruled upon. State v. Robinson, 46,091 (La. App. 2 Cir. 4/20/11), 63
So. 3d 1113, writ denied, 11-0901 (La. 11/23/11), 76 So. 3d 1148, and writ
denied, 11-1016 (La. 11/23/11), 76 So. 3d 1149; State v. Cooper, 45,568
(La. App. 2 Cir. 12/8/10), 55 So. 3d 873.
In his pro se assignment, we note that Boswell did not specify what
evidence he was looking to suppress but stated, rather vaguely, that he was
“seeking to suppress certain evidence” that would have given him the
opportunity to a fair trial. Boswell proceeded to trial without objecting or
raising the issue that his pretrial motion to suppress was neither heard nor
ruled upon. The general rule is that appellate courts will not consider issues
7 raised for the first time on appeal. Boswell’s alleged error is not properly
before us for review. This assignment of error is therefore pretermitted.
Abuse of Discretion
In his last pro se assignment, Boswell argues the trial court erred in
denying his motion for mistrial after the state inadvertently displayed — in
the presence of the jury — his probation identification card on a courtroom
projector. Boswell contends that this misconduct by the state clearly
prejudiced him and resulted in an unfair trial, thereby violating his
constitutional rights. At the trial, the state conceded that displaying
Boswell’s probation identification card was indeed an unintentional
oversight, but nonetheless was not sufficient to constitute prejudicial
misconduct under La. C. Cr. P. art. 770.
La. C. Cr. P. art. 775 requires a mistrial on motion of the defense
when prejudicial conduct inside or outside the courtroom makes it
impossible for the defendant to receive a fair trial. Upon motion of a
defendant, a mistrial shall be ordered when a remark or comment, made
within the hearing of the jury by the judge, district attorney, or a court
official, during the trial or 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. La. C. Cr. P. art. 770.
Mistrial is a drastic remedy which is authorized only where substantial
prejudice will otherwise result to the accused. State v. Roberson, 46, 697
(La. App. 2 Cir. 12/14/11), 81 So. 3d 911, writ denied, 12-0086 (La.
4/20/12), 85 So. 3d 1270. The determination of whether actual prejudice has
occurred lies within the sound discretion of the trial court and will not be
disturbed on appeal absent an abuse of that discretion. State v. Wilson, 50, 8 589 (La. App. 2 Cir. 5/18/16), 196 So. 3d 614; State v. Authier, 46, 903 (La.
App. 2 Cir. 4/25/12), 92 So. 3d 494, writ denied, 12-1138 (La. 11/2/12), 99
So. 3d 662, State v. Bell, 51,312 (La. App. 2 Cir. 5/17/17), 222 So. 3d 79.
Even if a mistrial was warranted under La. C. Cr. P. art. 770, 771, or
775, the failure to grant a mistrial would not result in an automatic reversal
of the defendant’s conviction but would be a trial error subject to the
harmless error analysis on appeal. Roberson, supra. Trial error is harmless
where the verdict rendered is “surely unattributable to the error.” Wilson,
supra.
We are unconvinced that Boswell is entitled to a mistrial under the
provisions of La. C. Cr. P. art. 770. It was stipulated at trial that Boswell’s
probation identification card being shown to the jury was inadvertent.
Review of the record shows that neither the state nor other court personnel
made any remarks regarding Boswell, or the charge associated with the
probation identification card. The inadvertent display of Boswell’s
probation identification card was not so prejudicial as to make it impossible
for him to obtain a fair trial. Boswell was positively identified by Ofr. Brice,
the victim of his attempted aggravated burglary, and his fingerprints were a
consistent match according to DNA test results introduced at trial as
evidence from the crime scenes of several burglaries across Shreveport.
Considering the overwhelming evidence against Boswell in this case, his
guilty verdict is surely not attributed to the display of his probation
identification card. We find no abuse of discretion on the part of the trial
court in denying a mistrial. This assignment lacks merit.
9 Excessive sentence
Boswell appeals asserting the trial court failed to adequately tailor his
sentence as an individual and claims that his sentence is unconstitutionally
excessive and harsh. Boswell contends there was no justification for the
imposition of maximum and near maximum sentences and notes that while
the trial court deemed his criminal history “concerning,” there was no
further discussion of mitigating factors he felt should have been considered
during his sentencing. Boswell argues that his conduct did not threaten
serious harm; he does not possess a history of violence; he was acting under
the influence of drugs at the time of the offenses; he is a father of three and
has an extensive employment history working in the oil fields and as an
electrician; despite his drug problem, society and the community are not
served by incarcerating him for fifteen years; he can be a contributing
member of society; he can continue to support his children; and his offenses
were not the worst offenses, and he is not the worst kind of offender.
The state argues that Boswell’s sentence is constitutionally sound, and
the relative fortune that no one was seriously harmed that night should not
deprecate the seriousness of the acts and violations that occurred during his
crime spree.
An excessive sentence claim is reviewed by examining whether the
trial court adequately considered the guidelines established in La. C. Cr. P.
art. 894.1 and whether the sentence is constitutionally excessive. State v.
Dowles, 54,483 (La. App. 2 Cir. 5/25/22), 339 So. 3d 749; State v. Vanhorn,
52,583 (La. App. 2 Cir. 4/10/19), 268 So. 3d 357, writ denied, 20-00745 (La.
11/19/19) 282 So. 3d 1065.
10 Ordinarily, appellate review of sentences for excessiveness utilizes a
two-prong process. However, when the motion to reconsider sentence raises
only a claim of constitutional excessiveness, a defendant is relegated to
review of the sentence on that ground alone. La. C. Cr. P. art. 881.1(E);
State v. Mims, 619 So. 2d 1059 (La. 1993); State v. Parfait, 52,857 (La. App.
2 Cir. 8/14/19), 278 So.3d 455, writ denied, 19-01659 (La. 12/10/19), 285
So. 3d 489.
Boswell, by failing to state specific grounds for his motion to
reconsider sentence, has waived his right to have his sentence reviewed for
compliance with art. 894.1. As a result, the remaining question is whether
his sentence exceeds the punishment allowed by the state and federal
constitutions.
The Eighth Amendment of 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 (La. 1979). The
appellate court must determine if the sentence is constitutionally excessive.
State v. Smith, 01-2574 (La. 1/14/03), 839 So. 2d 1. To assess a claim that a
sentence violates La. Const. art. I, § 20, the appellate court must determine if
the sentence is grossly disproportionate to the seriousness of the offense or
nothing more than a purposeless and needless infliction of pain and
suffering. State v. Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno,
384 So. 2d 355 (La. 1980). 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. Meadows, 51,843 (La. App. Cir. 11 1/10/18), 246 So. 3d 639, writ denied, 18-0259 (La. 10/29/18) 254 So. 3d
1208. The sentencing court has wide discretion to impose a sentence within
the statutory limits, and the sentence imposed will not be set aside as
excessive absent a manifest abuse of that discretion. State v. Williams, 03-
3514 (La. 12/13/04), 893 So. 2d 7. On review, an appellate court does not
determine whether another sentence may have been more appropriate, but
whether the trial court abused its discretion. State v. Gaines, 54,383 (La.
App. Cir. 2/22/23), 358 So. 3d 194, writ denied, 23-00363 (La. 6/21/23), 362
So. 3d 428; State v. Tubbs, 52, 417 (La. App. 2 Cir. 11/20/19), 285 So. 3d
536, writ denied, 20-00307 (La. 7/31/20), 300 So. 3d 404, on recons., 20-
00307 (La. 9/8/20), 301 So. 3d 30, and writ denied, 20-00307 (La. 9/8/20),
301 So. 3d 30.
Whoever commits the crime of simple burglary shall be imprisoned
with or without hard labor for not more than twelve years. See, La. R.S.
14:62. Whoever commits the crime of illegal use of weapons or dangerous
instrumentalities shall be imprisoned with or without hard labor for not more
than two years. See, La. R.S. 14:94. The sentencing range for attempted
aggravated burglary is six months to fifteen years at hard labor. See, La. R.S.
14:27 and 14:60.
We find no abuse of discretion in the sentences imposed on Boswell
in this case. While Boswell may be a first felony offender in the state of
Louisiana, we cannot ignore the quantity and progression in which Boswell
committed these offenses over a short period of time. The trial court
referenced Boswell’s criminal record as “concerning,” while pointing out
that he had a slew of other charges, albeit in a different state, of the same
12 nature involving burglaries of residences and vehicles for over a decade.1
His sentences were completely appropriate.
Boswell lists mitigating factors including that his conduct did not
threaten serious harm, he is likely to respond to probationary treatment and
society, and the community is not served by incarcerating him for fifteen
years. We disagree with his perspective as he burglarized several vehicles
throughout Shreveport and attempted to burglarize a family’s home while
armed. Moreover, Boswell proceeded to fire his weapon while in the
commission of the offense, thereby placing both Ofr. Brice and Hanshew in
danger of serious bodily harm. Boswell was given the benefit of probation
for previous crimes, and it is abundantly clear that he has not responded well
to noncustodial treatment because of his seemingly recalcitrant attitude.
Society and the community are better served when its citizens can sleep
comfortably at night without concerns about their personal belongings being
taken by someone who feels entitled to them.
Based on the severity, progression, and pattern of similar offenses
exhibited by Boswell, we conclude the imposition of a concurrent fifteen-
year sentence does not shock the sense of justice and, thus, is not excessive.
ERROR PATENT
Review of the record reveals two errors patent. First, we note the trial
court failed to observe the sentencing delays under La. C. Cr. P. art. 873, and
there was no express waiver of these delays by Boswell.
1 Boswell has a criminal history in the state of Texas dating back to 2005. His offenses include burglary of a building, theft of property, possession of controlled substances, and several incidents involving burglary of vehicles. 13 The failure to observe the delay provided under La. C. Cr. P. art. 873
or for the delay to be waived is considered harmless error in the absence of
an objection or a showing of prejudice. State v. Haynes, 52,331 (La. App. 2
Cir. 11/14/18), 260 So. 3d 738, writ denied, 18-2081 (La. 6/3/19), 272 So.
3d 542. Boswell neither objected to the trial court’s failure to observe the
24-hour sentencing delay nor assert any prejudice that resulted. Thus, the
trial court’s failure to observe the delay was harmless error and remand for
resentencing is not necessary.
The second error patent reveals that the record does not contain a
uniform commitment order. La. C. Cr. P. art. 892(B) requires the clerk of
court to prepare a copy of the Uniform Sentencing Order in the format
authorized by the Louisiana Supreme Court. However, failure to prepare a
commitment order shall not affect the validity of a prosecution, conviction,
or sentence. La. C. Cr. P. art. 892(D). Accordingly, we instruct the trial
court to direct the clerk of court to prepare a uniform commitment order.
CONCLUSION
For the foregoing reasons, we affirm the actions and judgment of the
trial court and remand this case to have the clerk of court prepare a uniform
order of commitment in accordance with La. C. Cr. P. art. 892.
AFFIRMED AND REMANDED WITH INSTRUCTIONS.