Judgment rendered June 30, 2021. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,791-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
Versus
GARY P. SIMS, JR. Appellant
Appealed from the Third Judicial District Court for the Parish of Union, Louisiana Trial Court No. 2017-F-55013
Honorable Jeffrey L. Robinson, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Peggy J. Sullivan
JOHN F.K. BELTON Counsel for Appellee District Attorney
E. MICHAEL MAHAFFEY CLIFFORD ROYCE STRIDER III Assistant District Attorneys
Before MOORE, STONE, and STEPHENS, JJ.
MOORE, C.J., concurs and assigns reasons.
STONE, J., dissenting in part. STEPHENS, J.
This criminal appeal by defendant, Gary P. Sims, Jr., arises from the
Third Judicial District Court, Union Parish, State of Louisiana. Sims was
convicted of one count of aggravated battery and six counts of aggravated
assault on a peace officer with a firearm and sentenced to a total of 30 years
at hard labor. For the following reasons, we affirm Sims’ conviction and
sentence for aggravated battery and reverse his convictions and sentences for
aggravated assault on a peace officer with a firearm.
FACTS AND PROCEDURAL HISTORY
On April 11, 2017, Sims discharged a firearm from inside his
residence in Downsville, Louisiana, after a deputy with the Union Parish
Sheriff’s Department had approached the residence to serve a warrant on
him. Multiple law enforcement agencies responded after Sims’ shot was
reported. Over the course of several hours, Sims remained inside his
residence, which was surrounded by tactical law enforcement teams. Sims
later fired from within the residence a second time and was ultimately taken
into custody after law enforcement deployed chemical agents into the home.
No law enforcement officers were injured during the incident. Sims was
charged by amended bill of information with seven counts of attempted first
degree murder.
A jury trial began on September 23, 2019. Sims was convicted of one
count of aggravated battery and six counts of aggravated assault on a peace
officer with a firearm. On December 18, 2019, the trial court sentenced
Sims to 10 years at hard labor on each count, with three counts to be served
consecutively, and the other four counts to be served concurrently, for a total
sentence of 30 years at hard labor. Defense counsel’s oral motion for reconsideration based on the consecutive and excessive nature of the
sentences was denied by the trial court. This appeal by Sims ensued.
DISCUSSION
On appeal, Sims asserts three assignments of error: (1) there is
insufficient evidence to support the aggravated battery conviction; (2)
aggravated assault on a peace officer with a firearm is not a responsive
verdict to attempted first degree murder; and (3) the sentences imposed are
excessive.
Overview of Relevant Testimony
On April 11, 2017, around 8:30 a.m., Deputy Bruce McCrell of the
Union Parish Sheriff’s Department arrived to serve a warrant on Sims at his
residence in Downsville, Louisiana. Deputy McCrell was dressed in official
uniform and driving a marked unit. Deputy McCrell knocked on the front
door of Sims’ mobile home but received no response. He then went to the
back door and knocked. Still receiving no response, Dep. McCrell used a
broken axe handle found outside the residence to reach over a bush and
knock on the front of the home near a window, where he believed the
bedroom would be located. Deputy McCrell heard someone inside the
residence respond but could not understand what was said. Deputy McCrell
identified himself, asked the person to meet him at the front door to talk, and
walked back to the front door. When no one came to the door, Dep. McCrell
again knocked on the wall near the window with the axe handle, at which
time “a gunshot come through the side of the trailer,” slightly to the right of
where Dep. McCrell was standing. Deputy McCrell retreated from the
mobile home and requested assistance from dispatch.
2 A number of officers responded to the location, including members of
the Union Parish Sheriff’s Department, the Monroe Police Department
SWAT Team, the Ouachita Parish SWAT Team, and the Louisiana State
Police SWAT Team. The officers used loudspeakers in an unsuccessful
attempt to establish contact with Sims and get him to surrender. Around
12:00 p.m., the Monroe SWAT Team breached the front door of the mobile
home with their armored vehicle, the “bearcat,” so they could throw in a
phone, but Sims slammed the door shut. At 12:35 p.m., two teams of
officers deployed multiple ferret rounds of CS powder into the mobile home.
The team positioned behind the home consisted of Scotty Sadler, Donnell
Gray, James Crouch, and Kevin Cope of the Monroe Police Department
SWAT Team, and Chris Wright and Nathan Sharbono of the Louisiana State
Police. As that team was deploying CS powder into the rear of the mobile
home, they heard one or two gunshots.1 The shots came from inside the
residence through the window on the back door. None of the officers were
injured, and they did not return fire. More CS powder and CS gas were
deployed, and an unarmed Sims eventually exited the mobile home through
the back door. Sims was shot with a beanbag round and finally apprehended
around 1:30 p.m.
Sims’ home was positioned on a slope, with the ground in front of the
mobile home being higher than the ground in the rear. The first shot exited
the residence at a slight upward angle, and the shotgun pellets hit a utility
pole positioned approximately four feet seven inches from the home, as well
as the rear driver’s side window of Sims’ truck. Pellets from the subsequent
1 Officer Sadler and Trooper Wright heard two gunshots; Officer Gray heard one gunshot; Officer Crouch heard at least one gunshot. 3 shot(s) fired were not recovered, and officers were unable to determine their
trajectory. Police recovered a total of two shell casings from the residence:
one casing was found on top of the refrigerator (where Sims said he placed
the casing from the first shot fired at Dep. McCrell), and the other casing
was found on the floor in the kitchen.
At trial, Sims testified that he had been at his friend’s house the night
before the incident, drinking all night, and that he “felt like crap.” This
incident started shortly after he got home that morning. When he got to his
house, he made a drink, Seagram’s Seven, nearly straight. Sims turned on
the window A/C unit in the bedroom to high, finished his drink, and lay
down on the bed. Sims heard somebody knock on the bedroom window by
the window unit. He thought somebody was breaking into his home because
a couple of nights before, a light on his shed was torn down and disabled.
Sims did not look out the window, but grabbed his shotgun, went over to the
wall by the window, asked who was there, and said he was going to shoot if
he didn’t get an answer. When Sims did not hear anything, he fired a shot
through the wall. Sims stated that he felt threatened and was not trying to
kill anybody, just trying to scare off the person.
Sims took the shell casing to the kitchen and made himself another
drink. He then went back into the bedroom, finished his drink, and passed
out. According to Sims, the next thing he remembered was the bathroom
window being knocked out, which scared him. Sims grabbed his shotgun,
went into the kitchen, and fired a shot out the back door, believing that
somebody was stealing stuff from his shed. He stated that he did not aim at
the officers and did not even know they were there. Sims testified that he
never heard the loudspeaker and did not remember slamming the front door 4 shut. When he saw the tear gas in the kitchen, Sims realized that it was
probably the police, not regular criminals, so he went out the back door, and
he was arrested. During his arrest, Sims suffered injuries requiring stitches
in his ear and staples to the back of his head.
Sufficiency of the Evidence: Aggravated Battery
In his first assignment of error, Sims asserts the evidence presented at
trial is insufficient to support his conviction of aggravated battery. Sims
argues that because there was no physical contact to support his conviction
for aggravated battery, the state had to produce sufficient evidence to prove
that he was guilty of attempted first degree murder, the charged offense, in
order for the conviction to stand. Sims maintains that because he was not
shooting at anyone and only intended to scare the person banging on the side
of his home, he did not have the requisite specific intent to kill.
The standard of appellate review for a sufficiency of the evidence
claim is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found all the essential
elements of the crime beyond a reasonable doubt. La. C. Cr. P. art. 821;
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
State v. Tate, 2001-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541
U.S. 905, 124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Young, 51,711
(La. App. 2 Cir. 1/18/18), 245 So. 3d 353, writ denied, 2018-0309 (La.
11/14/18), 256 So. 3d 283. The Jackson standard does not provide the
appellate court with a vehicle to substitute its own appreciation of the
evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.
5 2/22/06), 922 So. 2d 517; State v. Kirby, 53,661 (La. App. 2 Cir. 1/13/21),
309 So. 3d 946, writ denied, 2021-00254 (La. 5/11/21), __ So. 3d __.
The Jackson standard is applicable in cases involving both direct and
circumstantial evidence. An appellate court reviewing 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 thus viewed, 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 defendant was guilty of every essential element of the crime.
State v. Sutton, 436 So. 2d 471 (La. 1983); State v. Robinson, 50,643 (La.
App. 2 Cir. 6/22/16), 197 So. 3d 717, writ denied, 2016-1479 (La. 5/19/17),
221 So. 3d 78.
The appellate court does not assess the credibility of witnesses or
reweigh evidence. State v. Smith, 1994-3116 (La. 10/16/95), 661 So. 2d
442. A reviewing court accords great deference to a jury’s decision to
accept or reject the testimony of a witness in whole or in part. State v.
Jackson, 53,497 (La. App. 2 Cir. 5/20/20), 296 So. 3d 1156. Where there is
conflicting testimony about 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. Dyas, 53,597 (La.
App. 2 Cir. 1/13/21), 309 So. 3d 955; writ denied, 2021-00256 (La. 5/4/21),
__ So. 3d __.
When a defendant does not object to a legislatively established
responsive verdict, the defendant’s conviction will not be reversed, whether
or not that verdict is supported by the evidence, as long as the evidence is 6 sufficient to support the offense charged. State ex rel. Elaire v. Blackburn,
424 So. 2d 246 (La. 1982), cert. denied, 461 U.S. 959, 103 S. Ct. 2432, 77
L. Ed. 2d 1318 (1983); State v. Jones, 45,450 (La. App. 2 Cir. 8/11/10), 46
So. 3d 711, writ denied, 2010-2082 (La. 2/11/11), 56 So. 3d 1000. See also
La. C. Cr. P. art. 814(C) (which authorizes the trial court to exclude a
legislatively authorized responsive verdict “[u]pon motion of the state or the
defendant, or on its own motion, ... if, after all the evidence has been
submitted, the evidence, viewed in a light most favorable to the state, is not
sufficient reasonably to permit a finding of guilty of the responsive
offense.”).
Aggravated battery is a responsive verdict to attempted first degree
murder. La. C. Cr. P. art. 814(A)(2). A battery is the intentional use of
force or violence upon the person of another. La. R.S. 14:33. An
aggravated battery is a battery committed with a dangerous weapon. La.
R.S. 14:34.
La. R.S. 14:30(A) provides, in pertinent part, that first degree murder
is the killing of a human being when the offender has a specific intent to kill
or inflict great bodily harm upon a peace officer engaged in the performance
of his lawful duties.
An attempt to commit a crime is defined in La. R.S. 14:27(A), which
provides:
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.
7 The crime of attempted murder, whether first or second degree,
requires proof of the specific intent to kill and the commission of an overt
act tending toward the accomplishment of that goal. State v. Hust, 51,015
(La. App. 2 Cir. 1/11/17), 214 So. 3d 174, writ denied, 2017-0352 (La.
11/17/17), 229 So. 3d 928. Specific intent is that state of mind which exists
when the circumstances indicate that the offender actively desired the
prescribed criminal consequences to follow his act or failure to act. La. R.S.
14:10(1). Such state of mind can be formed in an instant. Because specific
intent is a state of mind, it does not have to be proven as a fact, but may be
inferred from the circumstances and the conduct of the accused. State v.
Frost, 53,312 (La. App. 2 Cir. 3/4/20), 293 So. 3d 708, writ denied, 2020-
00628 (La. 11/18/20), 304 So. 3d 416. Specific intent to kill may be inferred
from a defendant’s act of pointing a gun and firing it at a person. State v.
Reed, 2014-1980 (La. 9/7/16), 200 So. 3d 291, cert. denied, __ U.S. __, 137
S. Ct. 787, 197 L. Ed. 2d 258 (2017). The fact that multiple shots are fired
at a victim indicates a defendant’s culpable state of mind and satisfies the
specific intent to kill requirement for murder. State v. Frost, supra; State v.
Hust, supra. The determination of whether the requisite intent is present is a
question for the trier of fact. State v. Frost, supra; State v. Apodaca, 50,113
(La. App. 2 Cir. 9/30/15), 180 So. 3d 465.
In Count One, Sims was charged with attempted first degree murder
of Dep. McCrell; however, he was convicted of aggravated battery, a
statutorily provided responsive verdict. The defense did not object to the
jury charges or the inclusion of aggravated battery as a responsive verdict.
The jury’s reasoning for returning this responsive verdict is unclear; no
battery occurred—Dep. McCrell was not hit by the shot fired by Sims. 8 Nevertheless, because Sims did not object to the inclusion of aggravated
battery as a responsive verdict, the jury’s verdict should be affirmed as long
as the evidence presented at trial is sufficient to support a conviction for the
charged offense of attempted first degree murder.
Sims asserts the state failed to prove he had the requisite specific
intent to kill Dep. McCrell. Sims testified he never looked out the window,
never heard Dep. McCrell identify himself, and believed the person
knocking was trying to break in. He stated he shot because he felt
threatened and was trying to scare the person off and that he was not trying
to kill anybody. However, Dep. McCrell testified that when he knocked on
the front side of the mobile home with the axe handle, he announced himself
as a deputy with the Union Parish Sheriff’s Department. He spoke in a loud
voice because he could hear the window A/C unit was on. When Dep.
McCrell identified himself, he heard someone inside the residence respond,
but he could not understand what was said. He stated the gunshot came out
of the side of the mobile home slightly to his right—directly in the area
where he had knocked.
Sims relies on State v. Whins, 1996-0699 (La. App. 4 Cir. 4/9/97), 692
So. 2d 1350, writ denied, 1997-1227 (La. 11/7/97), 703 So. 2d 1263, in
which the Fourth Circuit affirmed the trial court’s granting of a post-verdict
judgment of acquittal on grounds that there was insufficient evidence of
specific intent to kill. In that case, the defendant fired shots at the doorknob
and into the windows of a mobile home where his ex-girlfriend, her father,
and two children were present, when his ex-girlfriend refused to come out.
However, no one was near the windows, the shotgun pellets lodged upward
into the ceiling, and no one inside was struck. The court found that, viewing 9 the evidence in the light most favorable to the prosecution, the state had not
excluded the reasonable hypothesis that the defendant had fired at the mobile
home in an effort to intimidate his ex-girlfriend into coming outside or that
he shot the doorknob in an effort to gain entrance into the mobile home.
This case is distinguishable from State v. Whins—the evidence does
not support that Sims’ shot at Dep. McCrell was a warning shot or an effort
to intimidate. When considered together, the gunshot hole in the side of the
trailer, the location of the recovered pellets, and the slope of the ground
around the mobile home clearly establish Sims aimed and fired directly
where Dep. McCrell was knocking on the trailer. We note that had Dep.
McCrell navigated the shrubbery along the front of the mobile home in order
to knock near the window with a customary closed fist instead of reaching
across to knock with an axe handle, he might not have survived his
encounter with Sims.
Based on the testimony and the physical evidence presented at trial,
the jury could have reasonably rejected Sims’ self-serving, and arguably
outlandish, testimony that he shot a hole through an exterior wall of his
home without first looking out the window to see who he was shooting at.
Accordingly, the jury could have likewise reasonably concluded Sims was
aware the person outside his residence was a police officer rather than a
trespasser who needed to be scared away. Viewed in the light most
favorable to the state, the evidence was sufficient to prove that Sims had the
specific intent to kill Dep. McCrell. This assignment of error is without
merit.
10 Non-responsive Verdict: Aggravated Assault on a Peace Officer with a Firearm
In his second assignment of error, Sims asserts aggravated assault on a
peace officer with a firearm is not a responsive verdict under La. C. Cr. P.
art. 814 to the offense of attempted first degree murder, and that it was error
patent for the trial court to instruct the jury as to this responsive verdict
instead of aggravated assault with a firearm. Accordingly, Sims argues his
convictions for aggravated assault on a peace officer with a firearm should
be vacated.
A non-responsive verdict is “error patent on the face of the record and
therefore reviewable on appeal despite absence of an objection during trial.”
State v. Turnbull, 377 So. 2d 72 (La. 1979); State v. Campbell, 1995-1409
(La. 3/22/96), 670 So. 2d 1212 (although defendants “acquiesced in the list
of responsive verdicts given jurors by the trial judge,” the jury’s “return of
the unresponsive verdicts ... constitutes an error patent on the face of the
record”); State v. Robinson, 52,308 (La. App. 2 Cir. 11/28/18), 259 So. 3d
1244.
Responsive verdicts prescribed by La. C. Cr. P. art. 814 are by the
express terms of that article the “only responsive verdicts which may be
rendered” where the indictment charges the crimes set forth in Article 814.
A trial court lacks the authority to vary or add to the prescribed verdicts
mandated by La. C. Cr. P. art. 814. State v. Simmons, 357 So. 2d 517 (La.
1978).
The jury’s return of a non-responsive verdict constitutes an “implicit
acquittal” of the crimes charged. State v. Price, 2017-0520 (La. 6/27/18),
250 So. 3d 230. See, State v. Graham, 2014-1801 (La. 10/14/15), 180 So.
11 3d 271; State v. Robinson, supra. In State v. Price, the Louisiana Supreme
Court found that the jury’s verdict of guilty of simple kidnapping was non-
responsive to the crime charged of second degree kidnapping, and in State v.
Graham, supra, it likewise found that the jury’s verdict of guilty of
molestation of juvenile was non-responsive to the charged crime of
aggravated incest. Both the Price and Graham courts reversed the
defendant’s conviction and sentence and remanded the matter to the trial
court for entry of a post-verdict judgment of acquittal. In doing so, the
Louisiana Supreme Court applied longstanding principles to find that the
double jeopardy clause bars a defendant from being retried following an
implicit acquittal on the crime charged. See, Price v. Georgia, 398 U.S. 323,
329, 90 S. Ct. 1757, 1761, 26 L. Ed. 2d 300 (1970) (“[T]his Court has
consistently refused to rule that jeopardy for an offense continues after an
acquittal, whether that acquittal is express or implied by a conviction on a
lesser included offense when the jury was given a full opportunity to return a
verdict on the greater charge.”) (footnote omitted); see also, Green v. United
States, 355 U.S. 184, 188, 78 S. Ct. 221, 223-24, 2 L. Ed. 2d 199 (1957)
(verdict of acquittal is final, “ending a defendant’s jeopardy, and even when
‘not followed by any judgment, is a bar to a subsequent prosecution for the
same offence’ ”) (quoting Ball v. U.S., 163 U.S. 662, 671, 16 S. Ct. 1192,
1195, 41 L. Ed. 300 (1896) ).
In State v. Mayeux, 498 So. 2d 701 (La. 1986), the Louisiana Supreme
Court addressed a verdict that was not only non-responsive but was also for
a non-enumerated crime. The defendant in Mayeux was charged with
aggravated battery, and the jury returned a verdict of attempted aggravated
battery. Finding that in addition to being unresponsive to the crime charged, 12 the verdict purported to convict the defendant of an offense not specifically
designated as a crime in Louisiana, the court held the verdict was “wholly
invalid,” amounted to conviction of a “non-crime,” and could therefore
operate neither as a conviction nor an acquittal for purposes of double
jeopardy. The court concluded the appropriate action was to set aside the
conviction and remand for retrial.
However, Mayeux subsequently obtained habeas relief from a federal
district court, which held the jury’s verdict, although non-legal, constituted
an acquittal on the aggravated battery charge, and that a second trial on that
charge put defendant twice in jeopardy. Mayeux v. Belt, 737 F. Supp. 957,
961-62 (W.D. La. 1990). That court found:
Even though the jury at Mayeux’s first trial returned an improper verdict, that jury had been “given a full opportunity to return a verdict” on the charge of aggravated battery, and instead reached a verdict on what the judge had instructed was a lesser charge. The judge had clearly told the jury that if they were not convinced that Mayeux was guilty of aggravated battery, but were convinced beyond a reasonable doubt that he was guilty of attempted aggravated battery, the form of their verdict should be, “We, the jury, find the defendant guilty of Attempted Aggravated Battery.” When the jury brought back precisely that verdict, it clearly showed that the jury had acquitted Mayeux of aggravated battery. Therefore, Mayeux’s second trial unconstitutionally put him in jeopardy a second time on the charges of aggravated battery.
...
Even though the verdict of the jury at Mayeux’s first trial could operate neither as a conviction nor acquittal of the non-crime of “attempted aggravated battery”, there is no reason why it could not operate as an acquittal of the charge of aggravated battery, because the judge’s instructions so directed. Even though the judge’s instructions concerning a possible verdict of “attempted aggravated battery” were egregiously erroneous, that judicial error does not give the State a basis for retrying Mr. Mayeux.
After the federal court’s ruling in Mayeux v. Belt, the appellate courts
of this state have continued to follow the ruling of the Louisiana Supreme 13 Court in Mayeux by ordering new trials when a defendant is convicted of a
non-crime, although numerous courts have deemed the federal court’s
reasoning persuasive and questioned the continued viability of State v.
Mayeux. See, State v. Marsh, 2017-0584 (La. App. 4 Cir. 11/8/17), 231 So.
3d 736; State v. Norman, 2003-248 (La. App. 5 Cir. 5/28/03), 848 So. 2d 91,
writs denied, 2003-1934, 1938 (La. 1/9/04), 862 So. 2d 981, 982. State v.
Nazar, 1996-0175 (La. App. 4 Cir. 5/22/96), 675 So. 2d 780; but see, State
v. Hurst, 2010-1204 (La. App. 3 Cir. 4/13/11), 62 So. 3d 327, writ denied,
2011-0975 (La. 10/21/11), 73 So. 3d 383 (appellate court entered acquittal
on the charged crime after defendant was convicted of a non-crime, noting
that although it preferred to follow Mayeux, it “refuse[d] to waste the limited
judicial resources of this state in vain and futile acts.” Id. at 332 (quoting
State v. Campbell, 1994-1268 (La. App. 3 Cir. 5/3/95), 657 So. 2d 152, writ
granted, 1995-1409 (La. 11/17/95), 663 So. 2d 724, and aff’d in part,
vacated in part, 1995-1409 (La. 3/22/96), 670 So. 2d 1212).
At the time of Sims’ trial, the responsive verdicts for attempted first
degree murder were as follows: (1) guilty; (2) guilty of attempted second
degree murder; (3) guilty of attempted manslaughter; (4) guilty of
aggravated battery; (5) guilty of aggravated assault with a firearm; and (6)
not guilty. La. C. Cr. P. art. 814(A).2
As to each count of the seven counts of attempted first degree murder
Sims was charged with, the trial court instructed the jury as to the following
responsive verdicts: (1) guilty as charged of attempted first degree murder;
2 Aggravated assault with a firearm was added as a responsive verdict listed under La. C. Cr. P. art. 814(A)(2) by amendment in 2018. See, Acts 2018, No. 680. Amendments to responsive verdicts are procedural, and the list of responsive verdicts in effect at the time of trial, not the time of the offense, should be used. State v. Martin, 351 So. 2d 92 (La. 1977); State v. Smith, 41,048 (La. App. 2 Cir. 6/30/06), 935 So. 2d 797. 14 (2) guilty of attempted second degree murder; (3) guilty of attempted
manslaughter; (4) guilty of aggravated battery; (5) guilty of aggravated
assault on a peace officer with a firearm; and (6) not guilty. The jury
instructions provided in pertinent part:
In order to convict the defendant of Attempted First Degree Murder, of any or all of the various Counts, you must find beyond a reasonable doubt that the state proved every element of Attempted First Degree Murder. If you are not convinced that the defendant is guilty of the offense charged for any, one or some of the counts, you may find the defendant guilty of a lesser offense, if you are convinced beyond a reasonable doubt that the defendant is guilty of a lesser offense.
The jury found Sims guilty of six counts of aggravated assault on a
peace officer with a firearm, which is not a responsive verdict to attempted
first degree murder. Furthermore, aggravated assault on a peace officer with
a firearm is not an enumerated offense in Louisiana.3
The law is clear that a return of a non-responsive verdict operates as
an acquittal to the charged offense and a bar to any subsequent prosecution
of the charged offense, but in addition to being non-responsive, the verdict
in this case also purported to convict Sims of an offense not specifically
designated as a crime in Louisiana. Pursuant to State v. Mayeux, supra,
there is no double jeopardy bar to the defendant’s retrial after being
convicted of a non-crime. We must disagree.
There are numerous Louisiana cases regarding verdicts non-
responsive to the crime charged. Some simply involve whether the
3 In 2017, the date of the offenses in this case, aggravated assault on a peace officer with a firearm was not an enumerated offense. Aggravated assault on a peace officer, La. R.S. 14:37.2, and aggravated assault with a firearm, La. R.S. 14:37.4, were enumerated offenses. The requirement that an aggravated assault on a peace officer be committed with a firearm was removed from La. R.S. 14:37.2 in 2016. See Acts 2016, No. 225. Notably, neither aggravated assault on a peace officer with a firearm nor aggravated assault on a peace officer have ever been responsive verdicts to attempted first degree murder. 15 responsive verdict is provided for by C. Cr. P. art. 814. Others address
whether, when Article 814 provides no legislatively authorized responsive
verdicts, the responsive verdict is truly a lesser included offense in
accordance with C. Cr. P. art 815, in that all of its essential elements are also
essential elements of the greater offense charged. While the analysis may
differ among these cases, the holdings are consistent: a conviction of a non-
responsive verdict is illegal and serves as an acquittal of the crime charged.
These cases likewise apply the longstanding principle that a verdict of
acquittal ends a defendant’s jeopardy and is a bar to subsequent prosecution
for the charged crime.
For the purpose of double jeopardy, whether or not a non-responsive
verdict is for an offense specified in our criminal law is a distinction without
a difference. Either way, the jury was given a full opportunity to return a
verdict on the greater charge, and either way, a retrial would put the
defendant twice in jeopardy. While we agree with Mayeux that a verdict that
is both non-responsive and a non-crime is wholly invalid and can serve
neither as a conviction or acquittal, we nevertheless find such a verdict is an
implicit acquittal of the crime charged, and as an acquittal, express or
implied, it is a bar to any subsequent prosecution of the charged offense.
If this matter were remanded for a new trial, Sims would again face
six counts of attempted first degree murder—crimes for which a jury already
had a full opportunity to return a verdict of guilty. Furthermore, he would
be exposed to a sentence significantly greater than the one previously
imposed.4
4 If Sims was convicted of six counts of attempted first degree murder on remand and the trial court was again inclined to sentence Sims to the maximum sentence on each 16 State v. Mayeux, and its reluctant progeny, is an outlier among a
legacy of Louisiana and United States Supreme Court cases that uphold both
the sanctity of jury instructions and verdicts and the Fifth Amendment right
against double jeopardy. Allowing Mayeux to stand without limitation
encourages the continuation of careless prosecution, ineffective defense, and
judicial error. This sometimes leads to the state having a second bite at the
apple, which thwarts the Fifth Amendment’s explicit prohibition of double
jeopardy. We find that the jury’s verdict of guilty as to the non-crime of
aggravated assault on a peace officer with a firearm implicitly acquitted
Sims of the charged offense of attempted first degree murder. Therefore, the
matter is remanded to the trial court for entry of a post-verdict judgment of
acquittal as to Counts Two through Seven.
Excessive Sentence
In his final assignment of error, Sims asserts the sentences imposed in
this matter are unconstitutionally harsh and excessive given the facts and
circumstances of the case. He argues consecutive sentences are not
warranted, noting his actions constituted one incident or transaction, none of
the officers were actually injured, and there was no particular viciousness in
his actions. Sims further points out that he is 40 years old, employed, has no
significant criminal history, admitted to firing the shots, and admitted
alcohol was a problem for him. The sentences on Count Two through Seven
will be vacated in accordance with the above holding; therefore, Sims’
arguments regarding the excessiveness and consecutive nature of those
sentences is pretermitted and analysis of this assignment of error will be
charge and to again run some or all of his sentences consecutively, Sims would face 50- 300 years of imprisonment at hard labor. 17 limited to the excessiveness of the 10-year hard labor sentenced Sims
received on Count 1, the aggravated battery of Dep. McCrell.
An appellate court utilizes a two-pronged test in reviewing a sentence
for excessiveness. First, the record must show that the trial court took
cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge
is not required to list every aggravating or mitigating circumstance so long
as the record reflects that he adequately considered the guidelines of the
article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. DeBerry, 50,501
(La. App. 2 Cir. 4/13/16), 194 So. 3d 657, writ denied, 2016-0959 (La.
5/1/17), 219 So. 3d 332. The articulation of the factual basis for a sentence
is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance
with its provisions. Where the record clearly shows an adequate factual
basis for the sentence imposed, remand is unnecessary even where there has
not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419
So. 2d 475 (La. 1982); State v. DeBerry, supra. The important elements
which should be considered are the defendant’s personal history (age, family
ties, marital status, health, employment record), prior criminal record,
seriousness of the offense, and the likelihood of rehabilitation. State v.
Jones, 398 So. 2d 1049 (La. 1981); State v. DeBerry, supra. The trial court
is not required to assign any particular weight to any specific matters at
sentencing. State v. Parfait, 52,857 (La. App. 2 Cir. 8/14/19), 278 So. 3d
455, writ denied, 2019-01659 (La. 12/10/19), 285 So. 3d 489.
Second, the court must determine whether the sentence is
constitutionally excessive. 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. 18 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, 2001-0467 (La. 1/15/02), 805 So. 2d 166;
State v. Meadows, 51,843 (La. App. 2 Cir. 1/10/18), 246 So. 3d 639, writ
denied, 2018-0259 (La. 10/29/18), 254 So. 3d 1208.
The trial court has wide discretion in the imposition of sentences
within the statutory limits and such sentences should not be set aside as
excessive in the absence of a manifest abuse of that discretion. State v.
Williams, 2003-3514 (La. 12/13/04), 893 So. 2d 7; State v. Allen, 49,642
(La. App. 2 Cir. 2/26/15), 162 So. 3d 519, writ denied, 2015-0608 (La.
1/25/16), 184 So. 3d 1289. A trial judge is in the best position to consider
the aggravating and mitigating circumstances of a particular case, and,
therefore, is given broad discretion in sentencing. State v. Allen, supra. 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. Adams, 53,055 (La. App. 2 Cir. 11/20/19), 285 So. 3d 526, writ
denied, 2020-00056 (La. 9/8/20), 301 So. 3d 15.
As a general rule, maximum or near-maximum sentences are reserved
for the worst offenders and the worst offenses. State v. Cozzetto, 2007-2031
La. 2/15/08), 974 So. 2d 665; State v. Hogan, 47,993 (La. App. 2 Cir.
4/10/13), 113 So. 3d 1195, writ denied, 2013-0977 (La. 11/8/13), 125 So. 3d
445.
La. R.S. 14:34(B) provides that a person convicted of aggravated
battery shall be fined not more than $5,000.00, imprisoned with or without
hard labor for not more than 10 years, or both. 19 At the sentencing hearing, the trial court noted that it had reviewed the
PSI report, the sentencing memorandum submitted by the defense, and
letters submitted on behalf of Sims. The trial court heard testimony from
Union Parish Sheriff Dusty Gates5 and Lisa McCrell, Dep. McCrell’s wife,
who both expressed the hardships faced by police officers and their families
and requested a sentence that reflects respect for law enforcement. The trial
court considered the facts of this case, and noted that although nobody was
injured, firing a shotgun three times in the direction of law enforcement
officers is an “incredibly serious offense.” In considering the sentencing
factors set forth in La. C. Cr. P. art. 894.1, the trial court stated that Sims
knowingly created a risk of death or great bodily harm to more than one
person, that Sims used actual violence in the commission of the offense,
Sims used a dangerous weapon, there were seven victims in this case, and
Sims foreseeably endangered human life. The trial court also reviewed
Sims’ minimal criminal history, noting that he is a first-felony offender and
has only several misdemeanor arrests.6
The reasons stated by the trial court, the record, and the PSI report
provide an adequate factual basis for the sentence imposed. Further, Sims’
10-year sentence for aggravated battery is not constitutionally excessive.
Considering Sims would have faced 20-50 years at hard labor had the jury
returned a verdict of guilty as charged of attempted first degree murder, the
5 Sheriff Gates was not one of the victims in this case. 6 Specifically, in 2002, charges for simple possession of marijuana and simple battery were dismissed. In 2005, a charge of simple battery was dismissed based on Sims’ completion of a diversion program. No disposition was known for 2014 charges of failing to identify and a liquor violation. In 2015, Sims received probation for charges of criminal trespass and possession of a Schedule I CDS, and a charge for disturbing the peace was dismissed. 20 maximum sentence of ten years for the compromise verdict of aggravated
battery does not shock the sense of justice, nor is it grossly disproportionate
to the severity of the offense.7
CONCLUSION
For the foregoing reasons, the conviction and sentence of Gary P.
Sims, Jr., as to Count One are affirmed. The convictions and sentences of
Count Two through Seven are reversed. The matter is remanded to the trial
court to enter a post-verdict judgment of acquittal on Counts Two through
Seven in accordance with this opinion.
AFFIRMED IN PART; REVERSED IN PART; REMANDED
WITH INSTRUCTIONS.
7 La. R.S. 14:27(D)(1)(b) provides that if the offense so attempted is punishable by death or life imprisonment and is attempted against an individual who is a peace officer engaged in the performance of his lawful duty, the defendant shall be imprisoned at hard labor for not less than twenty nor more than fifty years without benefit of parole, probation, or suspension of sentence.
21 MOORE, C.J. concurring.
Although I respectfully concur in the result reached in this case, I
write this concurrence to express my disagreement with the majority’s
conclusion that whether a non-responsive verdict is a designated or not
designated crime under Louisiana criminal law is “a distinction without a
difference” because “either way, a [remand for] retrial would put the
defendant twice in jeopardy.” This conclusion, of course, is contrary to
State v. Mayeux, 498 So. 2d 701 (La. 1986) wherein the court expressly
stated that a conviction for an unspecified crime cannot have the same effect
as a conviction for a crime that is non-responsive to the charge. In Mayeux,
the non-crime, non-responsive verdict of “attempted aggravated battery”
occurred as a result of judicial error that resulted in neither a conviction nor
an acquittal. Finding that the Double Jeopardy Clause of the Fifth
Amendment did not apply, the court said:
The Double Jeopardy Clause forbids a second trial when the prosecution fails to muster sufficient evidence to convict the defendant in the first proceeding. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). However, double jeopardy does not preclude the state from retrying a defendant whose conviction is set aside because of judicial error. This reflects a balancing of the defendant’s interest in seeing that criminal proceedings against him are resolved once and for all in a single prosecution against society’s valued interest in enforcement of its criminal laws. United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971). To allow another prosecution when patent error has occurred at trial, “reflects the judgment that the defendant’s double jeopardy interests, ... do not go so far as to compel society to so immobilize its decision making resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error.” Jorn, supra, 400 U.S. at 484, 91 S. Ct. at 556.
1 The case was remanded for retrial.
The supreme court reiterated this Mayeux distinction between a non-
responsive verdict and a non-crime verdict in State v. Graham, 14-1801 (La.
10/14/15), 180 So. 3d 271, 278 (2015). Regarding its Mayeux decision, it
noted that Mr. Mayeux had subsequently obtained federal habeas relief from
federal district court, which concluded that retrying Mr. Mayeux on the
aggravated battery charge was improper since “there is no reason why a
conviction or acquittal for a non-crime could not operate as an acquittal of
the charge of aggravated battery.” Mayeux v. Belt, 737 F. Supp. 957 (W.D.
La. 1990). It went on to say, however:
Regardless of whether this Court’s decision in Mayeux remains viable, defendant [Graham] here was not found guilty of a non-crime. He was convicted of molestation of a juvenile, a crime established in Revised Statute 14:81.2.
In my view, the significance of Graham is that, while finding that the
jury’s verdict of molestation of a juvenile was neither a responsive verdict
under La. C. Cr. P art. 814 nor a lesser and included offense under La.
C. Cr. P. art. 815 such that it would operate as an acquittal under La.
C. Cr. P. art. 598, it still concluded that the verdict was an implicit acquittal
of the initial charge of aggravated incest and molestation of a juvenile
because the state did not adduce the evidence of one essential element to
support either of the offenses:
Given the state’s failure to prove familial affinity between the defendant and the alleged victim at the time of the incident—an essential element of aggravated incest—the jury implicitly acquitted defendant of that charge by returning a verdict of guilty of molestation of a juvenile. The jury’s implicit acquittal is a bar to any subsequent prosecution for aggravated incest.
2 The court further concluded that the proceedings were rendered
“fundamentally unfair” by the district court when it allowed the state to add
molestation of a juvenile to the list of responsive verdicts with the defendant
having no opportunity to mount a defense to the charge.
In State v. Price, 17-0520 (La. 6/27/18), 250 So. 3d 239 (2018), the
defendant was charged with five counts of second degree kidnapping and
three counts of second degree murder. The defendant was found guilty of
five counts of simple kidnapping and two counts of negligent homicide.
However, there are no statutorily authorized responsive verdicts to the crime
of second degree kidnapping in La. C. Cr. P. art. 814. Therefore, pursuant
to La. C. Cr. P. art. 815, for simple kidnapping to be a responsive verdict for
second degree kidnapping, it must be a lesser and included grade of second
degree kidnapping. Lesser and included grades of the charged offense are
those in which all of the essential elements of the lesser offense are also
essential elements of the greater offense charged. In a per curiam opinion,
the court concluded that the verdicts for simple kidnapping were non-
responsive because it is possible to commit second degree kidnapping (at
least 10 ways) without committing simple kidnapping.
The court concluded that the non-responsive verdicts implicitly
acquitted the defendant of the second degree kidnapping charge citing the
passage in Graham, supra, quoted above.
In both Graham, supra and Price, supra, the court found that, under
the facts of the case, a verdict for a crime non-responsive under La. C. Cr. P.
art. 814, or not a lesser and included grade of charged offense results in an
implicit acquittal of the charged offense. Graham also distinguishes the
non-crime, non-responsive verdict in State v. Mayeux from the non- 3 responsive verdict of molestation of a juvenile, because the latter is a
designated crime. Furthermore, the Graham court stressed the fundamental
unfairness of the proceedings and the lack of evidence adduced by the state
to prove an essential element of the offense charged as well as the non-
responsive verdict.
In view of these considerations, State v. Mayeux is still viable in cases
where the jury returns a guilty verdict for a non-crime. See State v.
Anderson, 17-0927 (La. App. 1 Cir. 4/8/18), writ denied, 18-0738 (La.
3/16/19), 266 So. 3d 901. However, such cases do not always automatically
require remand for a new trial. State v. Mayeux can be read to require the
reviewing court to weigh the defendant’s interest in seeing that criminal
proceedings against him are resolved once and for all in a single prosecution
against society’s valued interest in enforcement of its criminal laws. In
those cases where the facts show that the judicial error thwarted the will of
the jury and society’s interest in enforcement of its criminal laws, remand
for a new trial may be called for. On the other hand, in cases in which the
facts show that the state failed to provide evidence to prove one or more
essential elements of the charged offense or that the proceedings were
fundamentally unfair to the defendant, and the jury returns a non-responsive
verdict that is not an assigned offense under the law, remand for post-
judgment of acquittal is very likely appropriate.
It has long been held that jeopardy for an offense ends after an express
acquittal or acquittal implied by a conviction on a lesser included offense
when the jury was given a full opportunity to return a verdict on the greater
charge. Price v. Georgia, 398 U.S. 323, 329, 90 S. Ct. 1757, 1761, 26 L.
Ed. 2d 300 (1970). This, of course, is embodied in La. C. Cr. P. art. 598(A). 4 The instant case before this court involves a conviction for an offense that is
neither an express acquittal of the charged offense, nor an implied acquittal
on a lesser included offense, however. The “responsive verdict” is neither a
lesser included offense, nor a responsive verdict, nor a crime defined by
Louisiana Criminal Law. Graham and Price indicate that there are
circumstances where even a non-responsive verdict that is also a non-lesser
included grade of the charged offense serves as an implicit acquittal.
Sims was charged with seven counts of attempted first degree murder
in this case. The court instructed the jury as to the six responsive verdicts it
could return:
(1) Guilty as charged of attempted first degree murder; (2) Guilty of attempted second degree murder; (3) Guilty of attempted manslaughter; (4) Guilty of aggravated battery; (5) Guilty of aggravated assault on a police officer with a firearm; (6) Not guilty.
The jury returned a guilty verdict for the lowest guilty charge on the list,
which is not an assigned crime by the legislature because it included the
phrase “on a police officer,” which would be an added element to the
offense. Since the alleged victims in this case were police officers, the
evidentiary burden of proof was de minimis. Nevertheless, the offense is a
non-crime and it is neither a responsive verdict nor a lesser included grade of
the charged offense, inasmuch as one can commit attempted first degree
murder without committing aggravated assault on a peace officer.
Therefore, the verdict is non-responsive and legally invalid as a non-crime.
However, balancing the severity of the charges against the defendant
against his right to have the charges against him decided in a single trial
proceeding, and considering the fact that the jury had ample opportunity to
5 hear the evidence and render a verdict on the charged offenses, which
satisfies society’s interest in enforcement of its criminal laws, I concur with
the majority that, in this case, the jury verdicts for counts 2 through 7 should
be treated as implicit acquittals of those counts which bars retrial.
Furthermore, I agree with the majority that the conviction for
aggravated battery on count one is valid and that the conviction and sentence
on count one should be affirmed.
6 Stone, J., dissenting in part.
I agree that Sims’ conviction for aggravated battery must be affirmed.
Contrary to the majority, however, I find that Sims was validly convicted of
aggravated assault with a firearm. To me, the majority’s decision to
reverse/vacate those convictions is based on excessively technical reasoning
which extends State v. Price, 17-0520 (La. 6/27/18), 250 So. 3d 230, and
State v. Mayeux, 498 So. 2d 701 (La. 1986), significantly beyond their
precedential authority. I respectfully dissent in this regard.
Aggravated assault with a firearm: (1) is specifically designated as a
crime under La. R.S. 14:37.4; (2) is explicitly made responsive to the charge
of attempted first degree murder under La. C.Cr.P. art. 814(A)(2); and (3)
was clearly and unambiguously included – as a matter of logic, fact, and
language – in the relevant provision of the verdict sheet (i.e., “aggravated
assault on a peace officer with a firearm”).
The verdict sheet conflated two separate crimes – “aggravated assault
with a firearm” and “aggravated assault on a peace officer.” La. R.S. 14:37.2
& La. R.S. 14:37.4. The former is defined as follows: “Aggravated assault
with a firearm is an assault committed with a firearm.” La. R.S. 14:37.4(A).
Thus, as previously stated, “aggravated assault with a firearm” is statutorily
designated as a crime, and whether the victim is a peace officer or not is
irrelevant to the definition of this crime. Id. The jury could not possibly have
found the defendant guilty of “aggravated assault on a peace officer with a
firearm” without finding that he violated La. R.S. 14:37.4. Simply put,
aggravated assault with a firearm is a crime under La. R.S. 14:37.4 whether
the victim is a peace officer or not.
1 Furthermore, the legislature explicitly made aggravated assault with a
firearm a responsive verdict for attempted first degree murder. La. C.Cr.P.
art 814(A)(2).
The majority relies upon State v. Price, supra, and State v. Mayeux,
supra, in reversing/vacating Sims’ conviction for aggravated assault with a
firearm (on a peace officer). However, neither of these cases is authoritative
in this case.
In State v. Mayeux, supra, the defendant was charged with aggravated
battery, and the jury returned a guilty verdict for “attempted aggravated
battery,” an act which was not designated as a crime by statute. If the
language rendering the verdict a non-crime was stricken, nothing would
have remained but the charged offense itself: “attempted aggravated
battery.” Thus, the verdict: (1) found Mayeux guilty of a non-crime
(attempted aggravated battery); and (2) implicitly acquitted him of the
charged offense (aggravated battery). The federal district court recognized
this implicit acquittal in subsequent habeus corpus proceedings. Mayeux v.
Belt, 737 F. Supp. 957 (W.D. La. 1990).
Conversely, in this case, Sims was charged with attempted first degree
murder, but was convicted of “aggravated assault with a firearm on a peace
officer,” which is not verbatim designated as a crime. If the harmless surplus
language rendering the verdict a “non-crime” were stricken, a statutorily
defined crime specifically made responsive by La. C.Cr.P. art 814(A)(2)
would remain: “aggravated assault with a firearm on a peace officer.” This
distinguishes the holding in State v. Mayeaux, supra, and requires us to
affirm the conviction for aggravated assault with a firearm. To hold
otherwise elevates form over substance. 2 In State v. Price, supra, the defendant was charged with second
degree kidnapping, but the jury convicted him only of the lesser offense of
simple kidnapping. Second degree kidnapping is not covered by La. C.Cr.P.
art. 814, which provides exhaustive lists of responsive verdicts for specified
crimes. Instead, second degree kidnapping is covered by La. C.Cr.P. art.
815, which applies to all crimes not specified in La. C.Cr.P. art. 814, and
allows guilty verdicts for “lesser and included” grades of the charged
offense. Because second degree kidnapping can be committed without also
committing simple kidnapping, the latter is not a “lesser and included” grade
of the former. Conversely, in this case, La. C.Cr.P. art. 814 (A)(2) explicitly
makes aggravated assault with a firearm responsive to the charged offense of
attempted first degree murder.
Additionally, the majority cites State v. Simmons, 357 So. 2d 517 (La.
1978), for the proposition that the trial court has no authority to add to or
vary the responsive verdicts prescribed by La. C.Cr.P. art. 814. State v.
Simmons is not authoritative in this case because it addressed a very
different issue from the one presented in the instant case. Specifically, State
v. Simmons addressed whether the trial court erred in refusing to add a
responsive offense to the exhaustive list provided by La. C.Cr.P. art. 814.
This case addresses whether the erroneous insertion of the phrase “on a
peace officer” invalidated the jury’s verdict finding the defendant guilty of
aggravated assault with a firearm (on a victim who happened to be a peace
officer).
Finally, I point out that the evidence is sufficient to convict the
defendant of aggravated assault with a firearm because he admittedly fired
his shotgun through the wall toward where he (correctly) thought there were 3 people. Therefore, in light of the sentencing range for aggravated assault
with a firearm, and the sentences imposed, the trial court’s conflation of
these two separate crimes on the verdict sheet was not prejudicial to the
defendant.
I would hold that the defendant was validly convicted of aggravated
assault with a firearm; clarify that the defendant was not and could not be
validly convicted of aggravated assault on a peace officer; and affirm the
defendant’s sentences.