Judgment rendered February 26, 2025. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 56,075-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
ERIK A. SHEPHERD Appellant
Appealed from the Second Judicial District Court for the Parish of Claiborne, Louisiana Trial Court No. 34,403
Honorable Walter E. May, Jr., Judge
WEEMS, SCHIMPF, HAINES & MOORE Counsel for Appellant By: Kenneth P. Haines
RONALD J. MICIOTTO
DANIEL W. NEWELL Counsel for Appellee District Attorney
JAMES H. COLVIN, JR. P. NELSON SMITH, JR. Assistant District Attorneys
Before STONE, HUNTER, and ELLENDER, JJ. ELLENDER, J.
Erik Shepherd appeals his conviction, after a bench trial, of
aggravated assault with a firearm, La. R.S. 14:37.4, and sentence of five
years at hard labor (all but 30 months suspended) plus a fine of $1,000, with
six months in default. For the reasons expressed, we affirm the conviction,
affirm the sentence in part, vacate the sentence in part, and remand for
compliance with La. C. Cr. P. art. 875.1.
FACTUAL BACKGROUND
The incident occurred in the late afternoon of March 2, 2023. Larry
Ford, a wood hauler from Haynesville, was clearing trees from a tract across
the road from a convenience store near Athens, Louisiana. Ford called the
Claiborne Parish Sheriff’s Office (“CPSO”) to report a disturbance involving
a firearm.
Dep. Brian Davis, of CPSO, arrived shortly before 5:00 pm, equipped
with a body cam; the recording was introduced in evidence and viewed
multiple times at trial. On the video, Ford said he was wrapping up for the
day when a person he did not know (later identified as Shepherd) came onto
the property, talked “sh*t” to him, acted belligerent, and accused him of not
knowing what a pink flag meant.1 Shepherd thought Ford’s crew had
dropped several trees onto his (Shepherd’s) property, and Shepherd was
unhappy about it. Ford replied that if anything was wrong, he would “fix it.”
After they exchanged words, the man pulled a revolver from his right pants
1 The state offered no evidence regarding what a pink flag means. From context, it seems to be a temporary or provisional boundary marking, less permanent than spray painting on tree trunks. pocket, pointed it at Ford’s stomach, and said, “I’ve got something for you.”
Ford backed up until he could jump into his truck and leave the scene. Ford
initially described the gun as a “gray and black .38”; later, he said the stock
was black and the metal part gray; then, the stock was black and the barrel
grey; still later, he said he “thought” there was a gold emblem on the side of
the stock.
On the video, Dep. Davis then talked to Shepherd, who had already
been stopped by Athens Police Chief Keith Watkins. Shepherd said Ford’s
crew had been logging, the line was flagged, but the men had dropped trees
over his property. Shepherd said Ford “went ballistic,” walked over to his
(Ford’s) truck, and reached inside; at this point, Shepherd “showed” him a
gun, but did not pull it out. Shepherd insisted only the handle was showing:
“It never left my pocket.” Shepherd described his gun as a Charter Arms .38
revolver with a black handle, silver barrel, and no gold emblem.
Dep. Davis testified that even though Ford was very agitated and
Shepherd quite calm, he was impressed that Ford had described the gun “to a
T,” which he could not have done unless Shepherd pulled it on him. He
placed Shepherd under arrest.
Ford testified that Shepherd, whom he did not know, came onto their
job site, pounded the hood of his crew’s truck, and told them to stop
working; Ford walked over to see what the problem was. Shepherd instantly
called him a “m*therf*cker” and said, “I’m here to show you what pink
flagging is.” Ford offered to “fix” anything that was wrong, but Shepherd
responded, “You don’t get it.” After a few more exchanges in this vein, the
two men took a few steps toward each other, when Shepherd “come out [sic]
with his gun” and pointed it at Ford’s stomach, saying, “I got something for 2 you.” Ford testified it was a .38 revolver with a black stock and silver
barrel, similar to one he (Ford) had used before, and he had a clear,
unobstructed view of it. He admitted that, on the video, he mentioned a gold
emblem, which Shepherd’s gun did not have. However, he said he might
have been seeing “the end of the bullets,” the “gold tips on the bullets,” as
close as they were to him.
On cross-examination, Ford admitted he had said, on the video, the
stock was gray, but he was sure he told Dep. Davis it was black; he insisted
that he correctly identified the gun.
The state called two more witnesses, Smith and Haynes, employees of
Ford’s who had been on the job site when Shepherd arrived. They
confirmed that he walked up, pounded on their truck, and demanded to know
who was in charge, but they drove away before his encounter with Ford
occurred.
Athens Police Chief Watkins, who had known Shepherd for years,
testified for the defense that Shepherd called him to report “crazy stuff”
going on. Chief Watkins reached the scene and found Ford “hooping [sic]
and hollering” that the man “down there” had a gun, a “black and gold
pistol, revolver.” Hearing this, Chief Watkins glanced down the road and
saw what he thought was Shepherd’s truck; he rode to it and told Shepherd
to wait until the deputy arrived. After this, his conversation with Shepherd
was recorded on Dep. Davis’s body cam. Chief Watkins recalled Shepherd
admitting he grabbed the gun by the handle and pulled it out just enough for
Ford to see it, but not all the way. On cross-examination, Chief Watkins
admitted he called Dep. Davis and offered to pay Shepherd’s bond so he
3 would not lose his job at the railroad. He admitted, nonetheless, that
Shepherd may have done what he was accused of.
Shepherd called two witnesses, Rhodes and Jackson, who had worked
with him at the railroad and said he had a reputation for integrity and
honesty.
Shepherd took the stand in his own defense. He introduced photos
showing the west line of his property where Ford’s crew was “dropping
every tree over on me”; he went to tell them about it. He arrived, seeing
Ford’s men leaving in a white truck; he “tapped” on the window and was
told Ford was in charge. According to Shepherd, he asked if Ford knew
what a pink ribbon means; Ford replied they would move anything off his
property, “if you ask nicely.” Shepherd admitted he mocked this, asking,
“Nicely?” Ford then called him a “r*dn*ck m*therf*cker” and “dumb*ss,”
asked, “Do you want some sh*t?,” walked over to his truck, and raised his
fist. Shepherd admitted he put his hand on his gun, which was in his pants
pocket, but only to let Ford know he was armed. He insisted he never took it
out of the pocket or pointed it at Ford. After Ford left, Shepherd put the gun
in the truck and called Chief Watson to report a “situation.”
On cross-examination, Shepherd denied the incident with the trees
made him mad, but admitted he jumped in his truck, armed with the gun, and
drove over to confront the men. He also admitted Ford did not have a gun.
On rebuttal, the state recalled Ford, who insisted he never gave any
description of the gun to Chief Watkins.
ACTION OF THE DISTRICT COURT
The court ruled orally that this was not just a “he said, she said” case,
but the witnesses’ own “words and contradictions” made it much more than 4 a 50/50 proposition. The court found Ford credible and “completely sound”
in saying he was in reasonable apprehension of receiving a battery, and his
ability to describe the gun was “extremely persuasive.” It found Shepherd
not credible in his claims that he never took the gun out of his pocket and he
thought Ford was reaching in his own truck to grab a weapon. In fact, the
court found, Ford was backing away from Shepherd when the gun was
drawn. The court found Shepherd guilty as charged.
At sentencing, the court noted the PSI incorrectly stated Shepherd had
pled guilty but accepted its view that he showed no penitence for his
conduct; there was a lack of appreciation for the seriousness of the crime and
its consequences. The court listed the Art. 894.1 factors, finding a
suspended sentence would be inappropriate. Admitting it had “never
agonized over a sentence like this,” it gave Shepherd five years at hard labor,
with all but 30 months (2½ years) suspended, a fine of $1,000 plus costs, or
60 days in default, and the usual conditions of probation.
Shepherd appealed, raising two assignments of error.
DISCUSSION
Sufficiency of the Evidence
By his first assignment of error, Shepherd urges the state presented
insufficient evidence to prove the crime of aggravated assault with a firearm.
He concedes the standard of review, Jackson v. Virginia, 443 U.S. 307, 99 S.
Ct. 2781 (1979), and the court’s discretion as to credibility, State v. Casey,
99-0023 (La. 1/26/00), 775 So. 2d 1022, but argues that internal
contradiction or irreconcilable conflict with physical evidence will warrant
discrediting a witness, State v. Lambert, 52,004 (La. App. 2 Cir. 5/23/18),
248 So. 3d 621. 5 He raises two arguments. He first contends that, owing to massive
inconsistencies in Ford’s testimony, no rational trier of fact could have
accepted his claim that Shepherd actually took the gun out of his pocket. He
carefully and meticulously recounts the five different accounts Ford gave on
video at the scene, the one he gave to Chief Watkins, and the one he gave at
trial. He also cites Ford’s inaccurate description of his assailant as “clean-
shaven.” All this, he submits, demolished Ford’s credibility. He concludes
that on this conflicting evidence, no rational factfinder could conclude that
Ford described the gun “to a T” or that Shepherd took it out of his pocket.
The second argument is the state failed to prove Ford was in
reasonable apprehension of receiving a battery, an element of R.S. 14:37.4.
He contends Ford was highly agitated, angry that Shepherd was trespassing
on his job site, and admitted he “prayed” he had a gun in his own truck.
Without proof of this element, he concludes, the conviction cannot stand.
The standard of appellate review for a sufficiency of the evidence
claim in a criminal case 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 beyond a reasonable doubt. Jackson v.
Virginia, supra; State v. Tate, 01-1658 (La. 5/20/03), 851 So. 2d 921, cert.
denied, 541 U.S. 905, 124 S. Ct. 1604 (2004). The Jackson standard, now
legislatively embodied in La. C. Cr. P. art. 821, does not provide the
appellate court with a means to substitute its own appreciation of the
evidence for that of the factfinder. State v. Pigford, 05-0477 (La. 2/22/06),
922 So. 2d 517; State v. Galloway, 55,591 (La. App. 2 Cir. 4/10/24), 384 So.
3d 1167.
6 Where there is conflicting testimony concerning factual matters, the
resolution of which depends on a determination of the credibility of the
witnesses, the matter is of the weight of the evidence, not its sufficiency.
Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 2211 (1982); State v. Galloway,
supra. The appellate court neither assesses the credibility of witnesses nor
reweighs evidence. State v. Kelly, 15-0484 (La. 6/29/16), 195 So. 3d 449;
State v. Galloway, supra. Rather, the reviewing court affords great
deference to the factfinder’s decision to accept or reject the testimony of a
witness in whole or in part. State v. Robinson, 02-1869 (La. 4/14/04), 874
So. 2d 66, cert. denied, 543 U.S. 1023, 125 S. Ct. 658 (2004); State v.
Galloway, supra. In the absence of internal contradiction or irreconcilable
conflict with the physical evidence, one witness’s testimony, if believed by
the trier of fact, is sufficient to support a factual conclusion. State v. Reed,
14-1980 (La. 9/7/16), 200 So. 3d 291, cert. denied, 580 U.S. 1166, 137 S.
Ct. 787 (2017); State v. Jones, 55,464 (La. App. 2 Cir. 1/10/24), 379 So. 3d
828, writ denied, 24-00194 (La. 10/8/24), 394 So. 3d 267.
Aggravated assault with a firearm is defined as “an assault committed
with a firearm.” La. R.S. 14:37.4. Assault is defined as “an attempt to
commit a battery, or the intentional placing of another in reasonable
apprehension of receiving a battery.” La. R.S. 14:36. To convict a
defendant of aggravated assault with a firearm, the state must prove the
defendant made an attempt to commit a battery, or intentionally placed the
victim in reasonable apprehension of receiving a battery by the discharge of
a firearm. State v. Payne, 52,310 (La. App. 2 Cir. 1/16/19), 262 So. 3d 498,
and citations therein. An actual discharge of the firearm is not an element of
7 the offense. Id.; State in Interest of CB, 52,245 (La. App. 2 Cir. 6/27/18),
251 So. 3d 562.
In brief, Shepherd has done an exemplary job of cataloguing Ford’s
descriptions of the gun: five of them to Dep. Davis on the body cam, one at
trial, and one to Chief Watkins at the scene (although Ford denied giving a
description to Chief Watkins). While these are not completely uniform, they
are predominantly consistent, always saying the barrel was gray or silver and
mostly saying the stock was black. The only anomaly was the mention of
the gold emblem, but this was plausibly explained as seeing the “end of the
bullets.” On this record, the district court did not abuse its discretion in
finding Ford gave a convincing description of the revolver, a description that
would not have been possible had Shepherd not pulled the gun on him.
The record also provides an adequate basis for the district court to
disbelieve Shepherd’s more benign version of the encounter. On the body
cam, he never mentioned showing “only part” of the gun to Ford, or that
Ford raised a fist at him, but he brought up these exculpatory facts only at
trial. He admitted bringing the gun to the site, having it in his right pants
pocket, and putting his hand on it, facts that conform to Ford’s testimony.
The body cam shows Shepherd making light of the whole incident. Given
the body cam and the parties’ testimony, the district court was entitled to
accept Ford’s version that the gun was drawn, and to reject Shepherd’s that
it wasn’t.
The record also supports the district court’s finding that Ford was in
reasonable apprehension of receiving a battery. Ford testified he was afraid
that Shepherd would shoot him. Shepherd concedes that, on the body cam,
Ford was highly agitated, a reaction that might normally flow from having a 8 gun drawn and pointed at him. In short, the evidence is sufficient to show
Shepherd intentionally placed Ford in reasonable apprehension of receiving
a battery by the discharge of a firearm. This assignment of error lacks merit.
At oral argument, counsel additionally argued that Shepherd could
have been charged under two separate offenses: aggravated assault with a
firearm, R.S. 14:37.4, carrying up to 10 years at hard labor; or aggravated
assault, R.S. 14:37 (an assault committed with a dangerous weapon, which
could include a firearm), carrying only up to six months. The thrust of the
argument is that the evidence more fairly met the definition of the latter,
lesser offense, so he should have been convicted for that crime. The district
attorney has broad discretion in both the institution and handling of criminal
prosecutions. La. Const. art. V, § 26(B); La. C. Cr. P. art. 61; La. R.S.
16:1(B). When conduct is made criminal under one section of the revised
statutes and is also criminal under some other statute, the prosecution may
proceed under either provision, at the discretion of the district attorney. La.
R.S. 14:4(2). This court has found no error when the district attorney
elected to charge a defendant with illegal use of a weapon during a crime of
violence, La. R.S. 14:94, when the facts would have also supported
prosecution for aggravated battery, La. R.S. 14:34, which carries a lesser
penalty. State v. Ruffins, 41,033 (La. App. 2 Cir. 9/20/06), 940 So. 2d 45,
writ denied, 06-2779 (La. 6/22/07), 959 So. 2d 494. The same rationale
applies here.
This assignment of error lacks merit.
Excessive Sentence
By his second assignment of error, Shepherd urges the sentence
imposed is unconstitutionally excessive. He cites the sentencing factors of 9 La. C. Cr. P. art. 894.1 and the guarantee against cruel and unusual
punishment, La. Const. art. I, § 20, and concedes the sentence of five years
“at first glance appears to be well within” the court’s discretion. He
contends, however: (1) no battery occurred, (2) no shots were fired, and (3)
the weapon was not even cocked, so this is nowhere near midrange for the
gravity of the offense. He argues his sentence is similar to the four years
imposed in State v. Davis, 22-548 (La. App. 3 Cir. 2/1/23), 355 So. 3d 742,
and the five years in State v. Brown, 17-124 (La. App. 4 Cir. 12/12/17), 234
So. 3d 978, writ denied, 18-0100 (La. 6/15/18), 257 So. 3d 678, but those
cases involved much more serious conduct. He also cites his completely
clean criminal history, his long, productive life in Claiborne Parish, and
submits there is nothing to show he would be “rehabilitated” by spending
time in jail. He concludes that even if the conviction is affirmed, the
sentence should be reduced or entirely suspended.
An appellate court uses a two-prong test to review sentences for
excessiveness. First, the court must find that the sentencing court took
cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The
sentencing court is not required to list every aggravating or mitigating
circumstance, so long as it adequately considered them in particularizing the
sentence to the defendant. State v. Smith, 433 So. 2d 688 (La. 1983). The
goal of Art. 894.1 is to articulate an adequate factual basis for the sentence,
not to achieve rigid or mechanical compliance with its provisions. State v.
Lanclos, 419 So. 2d 475 (La. 1982). There is no requirement that any
specific factor be given any particular weight at sentencing. State v. Taves,
03-0518 (La. 12/3/03), 861 So. 2d 144.
10 The district court listed several factors working to Shepherd’s
detriment: this was a crime of violence; Shepherd showed a lack of
appreciation for the offense and its consequences, particularly by giving a
video statement laced with laughing and vulgarity, and evasive testimony at
trial; he seemed to think there would be no charges because the evidence
was “he said, she said”; there was some economic loss, as Ford was unable
to complete the job that day and now avoids going near Homer to work; a
dangerous weapon was involved; Shepherd must have contemplated the
possibility of serious harm; and there was some provocation, but no
justification. The court also mentioned factors in Shepherd’s favor: he had
no prior convictions; his conduct showed no deliberate cruelty; the victim
was not particularly vulnerable and suffered no physical injury; Shepherd
was otherwise law-abiding and such misconduct was unlikely to recur. We
find the court adequately complied with Art. 894.1.
The second prong is review for constitutional excessiveness. 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. Dorthey, 623 So. 2d 1276
(La. 1993). A sentence is deemed grossly disproportionate if, when 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.
The sentencing court has wide discretion in imposing a sentence within
statutory limits, and such a sentence will not be set aside as excessive in the
absence of manifest abuse of that discretion. State v. Williams, 03-3514 (La.
12/13/04), 893 So. 2d 7. The reviewing court may consider a comparison of
11 the punishment in the appealed case with sentences imposed for similar
crimes. State v. Fruge, 14-1172 (La. 10/14/15), 179 So. 3d 579.
We find no abuse of the district court’s vast discretion. Although the
midrange sentence appears severe for a first-time offender and an offense
that resulted in no injuries, much of the argument is premised on Shepherd’s
narrative: he approached Ford and his men respectfully, Ford taunted and
threatened him, and he never actually drew the revolver or pointed it at Ford
but only “showed” it. The court obviously discredited this version in favor
of Ford’s: Shepherd approached belligerently, pounded on the hood of the
truck, baited Ford into a heated argument, and pulled a revolver in an effort
to intimidate. Viewed in this perspective, the conduct is similar to that
reported in State v. Davis, supra, which affirmed a sentence of four years.
Shepherd’s sentence of five years, with 2½ years suspended, does not seem
disproportionate.
Error Patent Review
Since August 1, 2022, the law has required that, prior to ordering the
imposition or enforcement of any financial obligation, “the court shall
conduct a hearing to determine whether payment in full of the aggregate
amount of all the financial obligations to be imposed upon the defendant
would cause substantial financial hardship to the defendant or his
dependents.” La. C. Cr. P. art. 875.1 (C)(1); State v. Jamison, 55,361 (La.
App. 2 Cir. 11/29/23), 375 So. 3d 619; State v. Adams, 55,696 (La. App. 2
Cir. 5/22/24), 387 So. 3d 914. The court sentenced Shepherd, on April 4,
2024, to a term of imprisonment and a fine of $1,000 with 60 days in default
for nonpayment. However, the record does not show that the court 12 conducted such a hearing or that Shepherd waived it. We note that both at
trial and on appeal Shepherd has been represented by retained counsel and
does not appear to be indigent. However, Art. 875.1 refers to the imposition
of “any financial obligation” and uses the mandatory “shall.” We are,
therefore, constrained to vacate the portion of the sentence that imposed the
fine with default time and remand for compliance with Art. 875. State v.
Jamison, supra; State v. Adams, supra.
CONCLUSION
For the reasons expressed, we affirm the conviction, affirm the
sentence in part, vacate the sentence in part, and remand for compliance with
La. C. Cr. P. art. 875.1.
CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART
AND VACATED IN PART; CASE REMANDED.