STATE OF LOUISIANA v. JESSIE BELL (2025)

Defendant, Jessie D. Bell, was charged with two counts of aggravated assault upon a peace officer with a firearm, violations of La.R.S. 14:37.2; resisting a police officer with force or violence, a violation of La.R.S. 14:108.2; and illegal carrying of weapons while committing a crime of violence, a violation of La.R.S. 14:94. The State also invoked the firearm sentencing enhancement of La.Code Crim.P. art. 893.3, and in addition to convicting Defendant of the four charged offenses, the jury found a firearm was possessed and used during the commission of each of the four offenses. Subsequently, the trial court sentenced Defendant to seven years at hard labor for each count of aggravated assault upon a peace officer, three years at hard labor for resisting a police officer, and six years without benefit of parole, probation, or suspension of sentence for illegal carrying of weapons. The court ordered the four sentences to run concurrently. Defendant is now before this court challenging his convictions and sentences.

FACTS

The facts of this case will be fully discussed in connection with Defendant's assignment of error challenging the sufficiency of the evidence.

ASSIGNMENTS OF ERROR

Before this court on appeal, Defendant asserts the following assignments of error:

1. The State failed to sufficiently prove Defendant was guilty of two counts of aggravated assault upon a peace officer, one count of resisting a police officer with force of violence, and one count of illegal carrying of a weapon.

2. Defendant's convictions for both aggravated assault of a peace officer and illegal carrying of a weapon constituted Double Jeopardy and the aggravated assault convictions should be reversed.

3. The sentences in this case are constitutionally and statutorily excessive.

4. The sentence imposed on counts 1 and 2 are indeterminate and the sentences should be vacated and remanded for resentencing.

ASSIGNMENT OF ERROR NUMBER 2

In this assignment of error, Defendant contends his convictions for one count of aggravated assault upon a peace officer and illegal carrying of a weapon constitute double jeopardy, requiring reversal of one of his convictions for aggravated assault upon a peace officer. Aggravated assault upon a peace officer is defined as “an assault committed upon a peace officer who is acting in the course and scope of his duties.” La.R.S. 14:37.2(A). Assault is defined in La.R.S. 14:36 as “an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.” Battery is defined in pertinent part as “the intentional use of force or violence upon the person of another.” La.R.S. 14:33. Louisiana Revised Statutes 14:95(E) provides:

If the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while unlawfully in the possession of a controlled dangerous substance except the possession of fourteen grams or less of marijuana, or during the unlawful sale or distribution of a controlled dangerous substance, the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence. Upon a second or subsequent conviction, the offender shall be imprisoned at hard labor for not less than twenty years nor more than thirty years without the benefit of probation, parole, or suspension of sentence.

Even though the bill of information did not specify the crime of violence used to charge Defendant with La.R.S. 14:95(E), the jury instructions stated:

Thus, in order to convict the defendant of illegal carrying of weapons, you must find that the State has proved, beyond a reasonable doubt, that the defendant: Number 1, the defendant was engaged in the commission or attempted commission of aggravated assault upon a peace officer; and Number 2, the defendant used, possessed, had under his immediate control a firearm, an instrumentality customarily used or intended for probable use as a dangerous weapon while committing or attempting to commit such offense.

Because the elements of illegal carrying of a weapon in La.R.S. 14:95(E) completely subsumed the elements of aggravated assault upon a peace officer, Defendant claims there was no “additional fact” required to prove aggravated assault upon a peace officer. In arguing his claim, Defendant relies on the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180 (1932). He contends his conviction for Count 1 of aggravated assault upon a peace officer should be reversed and the sentence vacated as it is the less punishable offense. This assignment of error is being addressed first as it concerns a jurisdictional issue. See, e.g., State v. Toby, 22-386 (La.App. 3 Cir. 3/8/23), 358 So.3d 289, writ denied, 23-491 (La. 12/5/23), 373 So.3d 714; State v. Sarrabea, 12-1013 (La.App. 3 Cir. 5/1/13), 157 So.3d 1, aff'd, 13-1271 (La. 10/15/13), 126 So.3d 453; State v. Crooks, 23-218 (La.App. 3 Cir. 11/8/23), 374 So.3d 241.

The Louisiana Supreme Court dispensed with the “same evidence” test in favor of the Blockburger test in State v. Frank, 16-1160, p. 1 (La. 10/18/17), 234 So.3d 27, 28. In Frank, the supreme court discussed the criticism drawn and problems inherent with the “same evidence” test for double jeopardy violations before clearly ruling that Blockburger is the test to be applied by courts of this state:

Thus, Louisiana's anticipation of U.S. Supreme Court double jeopardy jurisprudence (and specifically the notion that the Double Jeopardy Clause bars prosecution for the underlying felony after a conviction for felony murder) has led to the present state of the jurisprudence denounced by Judge Drew's insightful dissent in [State v.] Balentine, [47,858 (La.App. 2 Cir. 7/10/13), 119 So.3d 979, writ denied, 13-1989 (La. 3/21/14), 135 So.3d 615,] which is perceived as a two-stage process in which a lesser federally-mandated standard is first applied followed by the application of heightened state standard. These two levels of protection, however, are not grounded in any substantive difference in the constitutional texts. Compare U.S. Const. amend. V (“[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”) with La. Const. Art. I, § 15 (“No person shall be twice placed in jeopardy for the same offense, ․”). Accordingly, we take this opportunity to make clear that the protections against double jeopardy mandated by the federal constitution, as restated in this state's constitution, fall within the analytical framework set forth in Blockburger and Louisiana courts need only apply that framework in analyzing questions of double jeopardy. Because no double jeopardy violation is apparent here under Blockburger,9 we reverse in part the court of appeal and reinstate defendant's conviction and sentence for attempted felony carnal knowledge of a juvenile.10

9 Defendant appears to concede there is no obstacle presented here by Blockburger. See Brief in Opposition, p. 6 (“It is not argued that the language in the two statutes at issue—malfeasance in office and attempted felony carnal knowledge of a juvenile—reveals a double jeopardy violation by virtue of the strict ‘Blockburger’ distinct fact test, but the inquiry does not end there.”).

10 Because we dispense with the “same evidence” test, we need not resolve the disagreement between the majority and dissent in the court below as to its correct application here.

Id. at 33–34 (first and second alterations added).¹

Applying the Blockburger test, we find there was no violation of the prohibition against double jeopardy in this case. Aggravated assault on a peace officer requires proof of 1) assault (an attempt to commit a battery or intentionally placing another in reasonable apprehension of receiving a battery; 2) on a peace officer who is; 3) acting in the course and scope of his duties. La.R.S. 14:36 and 37.2. Illegal carrying of weapons requires that 1) an offender uses, possesses, or has under his immediate control; 2) any firearm or other instrumentality customarily used or intended for probable use as a dangerous weapon; 3) while committing or attempting to commit a crime of violence. La.R.S. 14:95(E). Each provision requires proof of an additional distinct element that the other does not. Illegal carrying of weapons requires proof of neither an assault nor that the victim is a peace officer. Likewise, aggravated assault on a peace officer does not require the offender to possess, use, or have a firearm under his immediate control.² Committing or attempting to commit a crime of violence is also not an element of aggravated assault upon a peace officer. Thus, convictions of aggravated assault upon a peace officer and illegal carrying of weapons do not violate the prohibition against double jeopardy under Blockburger.³

The State relies on State v. Allen, 01-2494 (La. 6/21/02), 824 So.2d 344, where the supreme court found no double jeopardy violation occurred when the defendant was convicted of both La.R.S. 14:94(F), illegal use of weapons, and La.R.S. 14:64, armed robbery, the offense during which the weapon was used. Louisiana Revised Statutes 14:94(F), similar to La.R.S. 14:95(E), provides in pertinent part:

Whoever commits the crime of illegal use of weapons or dangerous instrumentalities by discharging a firearm while committing, attempting to commit, conspiring to commit, or soliciting, coercing, or intimidating another person to commit a crime of violence or violation of the Uniform Controlled Dangerous Substances Law, shall be imprisoned at hard labor for not less then [sic] ten years nor more than twenty years, without benefit of parole, probation, or suspension of sentence. If the firearm used in violation of this Subsection is a machine gun or is equipped with a firearm silencer or muffler, as defined by R.S. 40:1751 and R.S. 40:1781, respectively, the offender shall be sentenced to imprisonment for not less than twenty years nor more than thirty years, without benefit of parole, probation, or suspension of sentence.

In finding no double jeopardy violation existed, the Allen court stated:

Regarding the court of appeal's finding of double jeopardy, the defendant's convictions arise out of a single proceeding, and the Double Jeopardy Clause does not prohibit conviction and sentence in a single trial for two crimes which would be the same under Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), if the legislature has otherwise manifested its intent to impose cumulative penalties. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). R.S. 14:94(F) prohibits, inter alia, illegal use of a weapon by discharging a firearm during the commission of a crime of violence. 1992 La. Acts 1015 § 1. In the same act, the legislature also added paragraph 13 to R.S. 14:2, defining armed robbery as a crime of violence. Because the plain language of R.S. 14:94(F) proscribes behavior above and beyond that of an armed robbery as defined by R.S. 14:64, and because the 20–year maximum sentence for violation of R.S. 14:94(F) is much less severe than the maximum 99–years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence articulated, the legislature appears to have intended discrete and cumulative punishment for both the attempted armed robbery (the crime of violence) and the actual discharge of a weapon during commission of that offense. Cf. State v. Smith, 475 So.2d 331, 334 (La.1985) (“Where [the legislature] has failed to make its intention manifest, courts should proceed cautiously, remaining sensitive to the interests of defendant and society alike. All relevant criteria must be considered, and the most useful aid will often be common sense.”). Accordingly, the court of appeal erred in its determination that defendant's convictions violate double jeopardy principles. Cf. State v. Smith, 95–0061, p. 1 (La.9/11/96), 679 So.2d 380 (Calogero, C.J. concurring in denial of reh'g) (“In the single trial context, the Double Jeopardy Clause serves only to constrain the sentencing court to punishing according to legislative intent.”)(citing Hunter, 459 U.S. at 366, 103 S.Ct. at 678).

Accordingly, the decision below is reversed to the extent that it vacates the defendant's conviction and sentence for discharging a firearm in violation of La.R.S. 14:94(F). In all other respects, the court of appeal's decision is affirmed.

Id. at 344–45 (alteration in original).

Similarly, La.R.S. 14:95(E) was amended in 1992 to increase the penalty for use of a weapon in connection with crimes of violence and drug offenses. 1992 La. Acts No. 1017, § 1. Additionally, La.R.S. 14:95(E) proscribes behavior above and beyond that of crimes of violence, which now includes aggravated assault upon a peace officer. La.R.S. 14:2(B)(32). However, unlike the offenses at issue in Allen, the maximum sentence for the first violation of La.R.S. 14:95(E) is ten years at hard labor without the benefit of parole, probation, or suspension of sentence, and the maximum sentence for the first violation of aggravated assault upon a peace officer is ten years with or without hard labor. Nevertheless, it appears as in Allen, that the legislature intended to impose cumulative penalties in La.R.S. 14:95(E). Thus, even if the convictions for aggravated assault upon a peace officer and illegal carrying of weapons constituted a double jeopardy violation under Blockburger, there would be no double jeopardy violation because the legislature manifested its intent to impose cumulative penalties. For the reasons discussed, this assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER 1

In this assignment of error, Defendant contends the evidence presented at trial was insufficient to establish his guilt beyond a reasonable doubt on his convictions. The analysis when sufficiency of the evidence is challenged is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983).

State v. Freeman, 01–997, p. 3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580.

Furthermore, we have stated:

In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Johnson, 00–1552 (La.App. 5 Cir. 3/28/01) 783 So.2d 520, 527, writ denied, 01–1190 (La.3/22/02), 811 So.2d 921. The question of the credibility of the witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Id. The credibility of the witnesses will not be re-weighed on appeal. Id.

State v. Dixon, 04–1019, p. 12 (La.App. 5 Cir. 3/15/05), 900 So.2d 929, 936.

Trial Testimony

At trial, Garron Greene testified that on the night of April 4, 2021, he heard repeated knocking on his front door. Upon opening the door, he saw a panicked, crying woman who told him her husband was trying to kill her. Mr. Greene immediately called 911, and shortly thereafter, law enforcement arrived. Mr. Greene relayed the situation to the responding police officer, and the woman was placed into the police unit. After doing so, Mr. Greene returned to his house.

Allen Parish Sheriff's Sergeant of Dispatch and Communications Supervisor Allison McCullough testified that around 9:01 p.m. on April 4, 2021, Catlynn Bell called 911 asking for help. She testified that Mrs. Bell sounded out of breath and was speaking softly. Mrs. Bell told Sergeant McCullough that she thought her husband was going to kill her. Shortly thereafter, Sergeant McCullough received a call from Mr. Greene who relayed the same message. Sergeant McCullough dispatched the Elizabeth Chief of Police, Katrina Ford, who arrived at Mr. Greene's house at 9:05 p.m.

Sergeant McCullough dispatched Allen Parish Sheriff's Department Shift Lieutenant Josh Manuel and Deputy Jeff Strahan to join Chief Ford at Mr. Greene's house. Sergeant McCullough noted that Lieutenant Manuel then went to Defendant's home, arriving at about 9:16 p.m., and Deputy Strahan arrived approximately four minutes later. At 9:24 p.m., the officers advised Sergeant McCullough that their taser was deployed, but no contact was made. Defendant was subsequently arrested and placed in the back of a patrol unit. At 9:34 p.m., per department protocol, Lieutenant Manuel provided a serial number for an AR-style pistol they recovered along with serial numbers for two other guns.

Lieutenant Manuel testified that he and Deputy Strahan responded to the dispatch call from Sergeant McCullough. He proceeded to the intersection of Highway 112 and Beech Street where Chief Ford and the victim were located. Lieutenant Manuel was provided the victim's address and was informed that Defendant “was supposed to be armed with a small pistol that could be kept in the pocket.” Lieutenant Manuel's plan was to contact Defendant, render the scene safe, and allow Chief Ford to go in and conduct her investigation. Once Deputy Strahan arrived, the two deputies proceeded to Defendant's residence.

When they arrived, Defendant, who was cursing, was “in the drive, in the yard of the residence and began moving toward [the] vehicle like waiving [sic] [Lieutenant Manuel] off, yelling at [me] to go away, get out of here, I don't want you here.” Lieutenant Manuel stopped his vehicle before pulling into the driveway because Defendant was moving toward him. Lieutenant Manuel testified that he exited his vehicle, which was a marked unit with solid blue lights, and identified himself as a deputy sheriff. He was wearing his uniform. Before Lieutenant Manuel could tell Defendant to come toward him so they could talk, Defendant began moving away. Lieutenant Manuel told Defendant to stop, but he did not, so Lieutenant Manuel followed him to keep him in sight. Defendant moved to an area between his residence and a pickup truck parked parallel to his residence. Based on Lieutenant Manuel's training and experience in SWAT tactics, he knew the truck provided cover from potential gunfire from certain positions. Thus, he felt the need to position himself to deprive Defendant of that advantage. Lieutenant Manuel followed Defendant as he proceeded along the side of the truck, and Deputy Strahan approached from the side. After Defendant was told to stop and refused, Deputy Strahan attempted to stop him by deploying his taser. At this point, Lieutenant Manuel saw no weapon, but he had been told Defendant had a concealed pistol. Still, at that time, he testified he did not treat Defendant as armed. Defendant proceeded to move alongside the truck, briefly looking in the passenger window. Defendant then grabbed an AR-style pistol from the hood of the vehicle. Defendant stepped away from the vehicle, let the gun drop to his side, turned to face Lieutenant Manuel, and said, “I'll kill y'all.” He then began to advance toward Lieutenant Manuel. As soon as Lieutenant Manuel saw Defendant grab the gun, he immediately “presented [his] service weapon and began repeating loud verbal commands” such as “drop the gun, put the gun down, let go of the gun.” He gave several commands before Defendant complied by dropping the gun to the ground. Lieutenant Manuel testified that after Defendant said he would kill them, because Defendant had a firearm, he felt he would have been justified in using lethal force. He explained that this type of force is used to preserve his or another person's life. However, his decision not to shoot was based on the fact that Defendant had not started to lift the weapon from “its up and down orientation.” Had Defendant started to lift the weapon, Lieutenant Manuel said he would have used lethal force. Lieutenant Manuel testified that he removed a magazine and a round from the chamber of Defendant's gun.

During the entire time Lieutenant Manuel observed and interacted with Defendant, Defendant was unsteady on his feet and slurred his words, indicating to Lieutenant Manuel that he was highly intoxicated. This factored into Lieutenant Manuel's assessment of whether this was a lethal situation.

Once Defendant dropped the gun, Lieutenant Manuel ordered Defendant to come toward him, away from the gun. Lieutenant Manuel told Defendant to get on the ground. When he refused to comply, Lieutenant Manuel holstered his weapon and placed Defendant on the ground. Deputy Strahan's assistance was required to handcuff Defendant, who resisted violently. During the scuffle, Defendant elbowed Lieutenant Manuel three times to pull his hand away. While the deputies were attempting to gain control of Defendant's hands, Defendant continuously reached for his waistband and right pocket area. However, Lieutenant Manuel continued to control Defendant's hand, attempting to keep it away from the area to which he was reaching. After Defendant was handcuffed and arrested, Lieutenant Manuel retrieved a small revolver from Defendant's right pocket. Defendant was placed in a marked patrol unit and transported for booking at the Allen Parish Sheriff's Office.

A subsequent search of the scene revealed several AR-style pistol magazines located near the front of Defendant's vehicle and a loaded 12-gauge automatic shotgun near the trashcan where Lieutenant Manuel made contact with Defendant when Defendant grabbed the weapon.

Lieutenant Manuel explained that Defendant's firearms were arranged in a specific way. The AR-style gun was located near cover, and the shotgun was near the “egress route back into the house,” allowing Defendant to take the shotgun with him if he retreated to the house. A total of one hundred thirty-one rounds of ammunition were removed from the searched area.

Deputy Strahan testified that he responded to the scene with his shift supervisor, Lieutenant Manuel. He confirmed that they were told that Defendant was armed with a small pistol and that he had access to other weapons. As they approached the scene, Defendant was standing at the end of his driveway. Before they could stop, Defendant turned and ran toward his residence, flailing his arms and saying something, but Deputy Strahan could not understand what he was saying. The deputies announced themselves as sheriff's deputies, and Deputy Strahan ran after Defendant to get close enough to fire his taser. After Deputy Strahan was unsuccessful in making taser contact with Defendant, the two deputies formed an “L formation” to prevent getting caught in crossfire and to both have “different [visual] angles” on Defendant. Deputy Strahan's view was partially obstructed, allowing him to see Defendant only from the sternum area up, but he heard Lieutenant Manuel verbally command Defendant to drop his weapon. He could not see Defendant's weapon at that time, but he did see Defendant grab something off the hood. Deputy Strahan repeated Lieutenant Manuel's commands, took out his gun, and aimed it at Defendant. When Deputy Strahan got a full view of Defendant, he no longer had the gun, but Deputy Strahan did see it lying on the ground near Defendant. Once Deputy Strahan and Lieutenant Manuel took Defendant to the ground and were trying to gain control of his arms and hands, Defendant began reaching in his waistband, and they lost sight of his hands. The deputies told him to stop resisting and give them his hands, and they eventually got his hands under control and cuffed Defendant. According to Deputy Strahan, Defendant did not voluntarily put his hands behind his back as most people do. Lieutenant Manuel's search of Defendant's waistband area/front pocket revealed a small pistol.

According to Deputy Strahan, Defendant showed signs of intoxication and was angry, belligerent, and slurring on the way to the sheriff's office. Deputy Strahan testified he did not hear Defendant say he was going to kill them. He was about the same distance from Defendant as Lieutenant Manuel, but there was a truck between Defendant and Deputy Strahan.

Catlynn Bell, Defendant's wife, testified for the defense. The day after the incident, she found out she was pregnant. Mrs. Bell testified that she did not remember anything from the evening in question, and she denied that Defendant had ever tried to hurt her, hit her, or point a gun at her. Mrs. Bell described her relationship with Defendant as “great,” noting they had been married for twelve years and had five children.

On cross-examination, Mrs. Bell remembered “some stuff” from the night of April 4, 2021. She recalled having an argument with her husband, but she could not specify what it was about. She said Defendant did not threaten her, and he had never pointed a gun at her. Mrs. Bell did identify a petition for a protective order she had signed and filed against Defendant. Although the petition indicated that Defendant had threatened her with bodily harm, Mrs. Bell explained that someone assisted her in filling out the paperwork because she did not understand it very well. She then testified that she said untrue things on the petition and denied “checking off” that Defendant threatened her with bodily harm and threatened her with a weapon. Mrs. Bell then said she did not recall filling out the petition, which stated, “[H]e threatened to kill me; He is an alcoholic and pulled guns on me; He also tries to punch and hit me; He just went to jail last night.” She further confirmed the document also stated, “past incidents, threatened me, hit me, tried to kill me, put a gun in my face.” The petition requested “an order prohibiting defendant from abusing, harassing, assaulting, stalking, following, tracking, monitoring, threatening [her] in any manner whatsoever.” Mrs. Bell said she was told by the clerk of court who assisted her to “put that” because Mrs. Bell did not understand it. On re-direct examination, Mrs. Bell said the petition was filed the day after Defendant was arrested, and she had the petition dismissed the following day.

Defendant testified that on April 4, 2021, his wife was taking seizure medication that had recently been drastically increased. He said his wife would “get[ ] mad to a point that she doesn't even know what she is doing.” Defendant testified that he was not a “gun person” and that his son owned all the guns at his house except the “L-15 [sic]” which was registered to him. Defendant explained that on the night in question, he did not want his wife to have access to the guns. Thus, he called and asked his son to come get him, and he planned to take the guns to his son's house for a few days until his wife “cool[ed] off.” Defendant did not want to drive because he had been drinking.

Before Defendant's son arrived, Lieutenant Manuel drove into Defendant's yard. At the time, Defendant was behind his truck. Lieutenant Manuel yelled to Defendant to stay where he was and then shot Defendant with a taser, but it did not make full contact. Later, Defendant said when Lieutenant Manuel stepped out of the vehicle, “he never talked to me or said nothing” before shooting him with the taser. According to Defendant, after deploying the taser, Lieutenant Manuel told him to get on the ground, so Defendant lay on the ground.

Once Defendant was on the ground, Lieutenant Manuel jumped on his back and legs and bruised Defendant's legs “all the way up [his] side.” Defendant testified he told the deputies he had a gun which he never attempted to access. According to Defendant, Lieutenant Manuel searched his pockets, which contained $4,500.00, the pistol, and his wallet (which contained $1,000.00.)⁴ When he left the jail the following morning, he stated he was not given his money or his wallet.

Defendant denied ever hitting his wife or pointing a gun at anyone. He said he kept his guns in his safe, but that night he took them out because he was scared that his wife was “gonna [sic] hit [him] with it.” Defendant testified that he never told Lieutenant Manuel he would kill him, and he never “hollered and fussed.” He denied “waiv[ing] him out of the yard.” Rather, he said he “stood him [sic] in the yard for him to pull in there, cause [sic] [he] wanted to talk to him.” Defendant denied placing the AR-style rifle by his side. Rather, he said he placed two guns on the hood of his vehicle and said he would never have put the guns on the ground. Defendant was asked whether he had any problem with domestic violence, and he said, “only two other times.” Both times, he said, were due to his wife's medication.

On cross-examination, Defendant testified that he started drinking about 5:00 that day, and he drank about half of a half-pint of brandy before his wife poured out the remainder of the bottle around 7:30 p.m. Defendant's wife wanted to go to the casino, but he did not, which is why she poured out his alcohol. They “fuss[ed] back and forth,” and Defendant called his son to pick him up and take him to his house. Defendant said he was not too intoxicated to drive, but he did not want to take a chance knowing he “would have blew something.” When asked whether he was mad at this point, Defendant said he gets “disappointed sometimes, but never mad.” When asked what made him decide to take the guns out of the house that night, he said his wife could get into the gun safe very easily, and he did not want to be shot. Defendant was asked whether his wife said or did anything to make him move the guns, and he responded, “Sir, she has beat a box trailer up with a crowbar. She has beat the windows out of a Ford Ranger. She has beat a Saturn Vue totally all the windows out of it, beat the motor to pieces on it.” However, he acknowledged she did not do any of this that night because she knew he was leaving. After Defendant's wife left the house, he saw her running down the road, and he assumed she was going to call law enforcement.

When asked about a previous domestic abuse case, Defendant acknowledged that he admitted in the previous case that he elbowed his wife on the chin by mistake while he was defending himself. Defendant also testified he had previously taken the guns to his son's house a couple of other times.

Defendant's son, Jessie Bell, II, testified that he owned some guns that were kept at his father's house. He testified that the “AR 12, 12 gauge” was his gun and that was the only one that was his. The AR pistol and the other pistol were not his.

Aggravated Assault Upon a Peace Officer

Defendant was convicted of two counts of aggravated assault upon a peace officer which is defined as “an assault committed upon a peace officer who is acting in the course and scope of his duties.” La.R.S. 14:37.2(A). Assault is defined in La.R.S. 14:36 as “an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.” Battery is defined in pertinent part as “the intentional use of force or violence upon the person of another[.]” La.R.S. 14:33.

On appeal, Defendant first argues that Deputy Strahan was not put in reasonable apprehension of receiving a battery, and he was never assaulted because he did not see a gun in Defendant's hands. Additionally, Defendant argues that Deputy Strahan did not hear Defendant's statement that he was going to “kill y'all.”

In State v. Boutte, 10-1257, pp. 5–6 (La.App. 3 Cir. 5/11/11), 65 So.3d 793, 796–97, this court, reviewing the sufficiency of the evidence presented for a conviction of aggravated assault, stated:

Circumstantial evidence of a victim's state of mind can be used to prove the element of reasonable apprehension. In State v. Blaise, 504 So.2d 1092 (La.App. 5 Cir.1987), circumstantial evidence alone was relied upon in sustaining the defendant's conviction. The fifth circuit noted that the lack of testimony from the victim as to whether or not she was apprehensive was not necessarily dispositive of the issue. The court reviewed the victim's actions when the defendant came into the barroom brandishing a gun and determined that her actions clearly established her apprehension.

In the present case, the victim, Mr. Broussard, did not testify directly that he was placed in apprehension of receiving a battery. We must, therefore, review the circumstantial evidence submitted.

Louisiana Revised Statutes 15:438 sets forth:

The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

The testimony established that the vehicle was brought to Mr. Broussard's shop by a dealer. He had not been paid for the work. Prior to this incident, Mr. Broussard had talked to three different individuals who claimed the vehicle. A lady named Quintina, who was apparently the defendant's girlfriend, had called the shop wanting to retrieve the car. The victim had an apparent argument with her about the vehicle as she was not the person who had brought it to be repaired. Subsequently, Quintina's father had contacted the victim and the two had a verbal altercation regarding the car. On the day of this incident, the defendant called the victim on the phone and the two argued about the car. Mr. Broussard was unwilling to relinquish possession of the vehicle to any of these individuals. When the defendant appeared at the shop, he and Mr. Broussard again had an argument about the vehicle. The defendant then pulled a gun and shot into the ground at Mr. Broussard's feet. Mr. Broussard immediately instructed Mr. Richard to give the defendant the keys. Mr. Richard handed over the keys and the defendant left. As soon as the defendant left, Mr. Broussard called the police. Although Mr. Broussard testified at trial that he did not remember who called the police, the police records, as well as the statement given to the police at the time of the incident by Mr. Prejean, clearly indicate that Mr. Broussard made the phone call. The only conclusion we can reach is that the victim's actions immediately following the gunshot establish that he was placed in apprehension of receiving a battery. When viewed in a light most favorable to the prosecution, we find there was sufficient evidence to establish the defendant's guilt beyond a reasonable doubt.

In State v. Blaise, 504 So.2d 1092 (La.App. 5 Cir.1987), the court found sufficient evidence was presented to uphold a conviction of aggravated assault. In that case, the victim, a barmaid, testified that the defendant, who appeared to be looking for someone, entered the bar brandishing a gun. The victim left the barroom through a back door and called police from a nearby pay telephone. While doing so, she saw the defendant fighting with two other people outside the bar. On appeal, the defendant argued that the victim was not placed in apprehension of receiving a battery due to her quick departure from the bar and the lack of testimony that his actions caused concern for her safety. The court concluded:

[T]he fact that Ms. Bailko left the bar and the fact that she did not testify as to whether or not she was apprehensive is not dispositive. She testified she did not leave the room until defendant focused his attention on his girlfriend and her date. At that time she told “the rest of the people that there was a man there with a gun.” Taking one of the customers with her she then proceeded to immediately leave the scene and to contact the police. We find this evidence to be sufficient to prove her apprehension, viewing it in the light most favorable to the prosecution as required by the Jackson standard.

Id. at 1094.

In the present case, although Deputy Strahan admitted that he did not hear Defendant's statement that he was going to kill them, he arrived at the scene knowing Defendant was likely armed and had firearms at his home. After Deputy Strahan was unsuccessful in his attempt to tase Defendant, he saw Defendant grab an object from the hood of his truck. Shortly thereafter, although his view was partially obstructed, Deputy Strahan heard Lieutenant Manuel, who had a full view of Defendant, order Defendant to drop his weapon. Thus, Deputy Strahan repeated this command, drew his firearm, and aimed at Defendant. Deputy Strahan's actions clearly establish he was placed in reasonable fear of receiving a battery. Thus, the evidence presented at trial proved beyond a reasonable doubt that Defendant committed aggravated assault of Deputy Strahan.

Next, Defendant argues that Lieutenant Manuel was not placed in reasonable apprehension of receiving a battery. He contends that by holding a gun and making a verbal threat he admittedly may have raised the tension of the situation, but it was not reasonable to believe that Lieutenant Manuel would risk being shot if he felt it was likely Defendant would shoot. Defendant points out that he never raised the gun, making de-escalation of the situation possible. As discussed above, Defendant, with a gun by his side, faced Lieutenant Manuel and said, “I'll kill y'all” as he advanced toward him. Lieutenant Manuel responded by drawing his weapon and loudly commanding Defendant to drop the gun. Thus, the evidence presented at trial clearly proved beyond a reasonable doubt that Lieutenant Manuel was placed in reasonable apprehension of receiving a battery. Accordingly, both convictions for aggravated assault of a peace officer are affirmed.

Resisting a Police Officer with Force or Violence

Defendant also contends that the evidence was insufficient to establish he resisted a police officer with force or violence, noting that Defendant's act of elbowing Lieutenant Manuel did not result in any injury to the officer, who was 6’ 6” tall and 218 pounds at the time. At most, Defendant claims he should have been found guilty of the lesser offense of misdemeanor resisting arrest.

In 2021, resisting an officer with force or violence was defined in La.R.S. 14:108.2 as:

A. Resisting a police officer with force or violence is any of the following when the offender has reasonable grounds to believe the victim is a police officer who is arresting, detaining, seizing property, serving process, or is otherwise acting in the performance of his official duty:

(1) Using threatening force or violence by one sought to be arrested or detained before the arresting officer can restrain him and after notice is given that he is under arrest or detention.

(2) Using threatening force or violence toward or any resistance or opposition using force or violence to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.

(3) Injuring or attempting to injure a police officer engaged in the performance of his duties as a police officer.

(4) Using or threatening force or violence toward a police officer performing any official duty.

B. For purposes of this Section, “police officer” shall include any commissioned police officer, sheriff, deputy sheriff, marshal, deputy marshal, correctional officer, constable, wildlife enforcement agent, state park warden, or probation and parole officer.

Defendant was charged under all sections of paragraph (A). The evidence presented at trial clearly proved beyond a reasonable doubt that Defendant used threatening force or violence towards the deputies who were performing their official duties. Once Defendant was taken to the ground after he refused to comply with the deputies’ verbal commands, he resisted violently, continuously reaching for his waistband area and pocket where he had a pistol. Therefore, this conviction is affirmed.

Illegal Carrying of Weapons

Defendant claims this crime was not proven as a separate offense given that it was a necessary element of the offense of aggravated assault of a peace officer. The issue of whether the convictions for both offenses constituted double jeopardy was discussed above in Assignment of Error Number 2. The State correctly notes Defendant's argument essentially concedes that if the predicate offense is proven, then the illegal carrying charge is also proven. However, we will briefly review the sufficiency of the evidence presented in support of Defendant's conviction.

The jury in this case was instructed that the crime of violence was aggravated assault on a peace officer. As discussed above, Defendant had the AR-style pistol in his hand as well as a smaller pistol in his pocket when he committed the aggravated assaults on the two deputies. Accordingly, sufficient evidence was presented to prove Defendant committed the offense of illegal carrying of weapons beyond a reasonable doubt.

ASSIGNMENT OF ERROR NUMBER 3

Defendant claims his sentences are constitutionally and statutorily excessive. Because trial counsel filed a motion to reconsider sentence alleging trial errors rather than sentencing errors, the trial court allowed appellate counsel to file a supplemental motion to reconsider sentence. In the motion, he alleged the trial court insufficiently considered the La.Code Crim. P. art. 894.1 factors and should have considered a downward departure from the minimum sentences pursuant to State v. Dorthey, 623 So.2d 1276 (La.1993). The motion was denied. On appeal, counsel focuses on several factors listed in La.Code Crim.P. art. 894.1. Specifically, counsel notes there were substantial grounds tending to excuse or justify Defendant's conduct, namely, his intoxication, a problem he professes to have found help with through recommitment to his faith and his church. Counsel further notes that Defendant is the sole breadwinner for his wife and five young daughters, he is a businessman, a church attendee, and a productive member of the Allen Parish community, with a clean criminal record. Counsel additionally asserts there is no undue risk Defendant will re-offend, and he is particularly likely to respond favorably to probation.

The well-settled standard of review for a claim of excessiveness was recently discussed by this court in State v. Clues-Alexander, 24-95, pp. 11–13 (La.App. 3 Cir. 4/16/25), 409 So.3d 532, 542–43 (alterations in original):

In reviewing a sentence for excessiveness, an appellate court uses a two-step process. 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 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. State v. Kelly, 52,731 (La.App. 2 Cir. 6/26/19), 277 So.3d 855, writ denied, 2019-01845 (La. 6/3/20), 296 So.3d 1071. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La. 1983); State v. Kelly, 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. Thompson, 50,392 (La.App. 2 Cir. 2/24/16), 189 So. 3d 1139, writ denied, 2016-0535 (La. 3/31/17), 217 So. 3d 358. There is no requirement that specific matters be given any particular weight at sentencing. State v. Thompson, supra.

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 severity of the crime or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Kelly, supra. 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. Kelly, supra.

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. Kelly, supra. 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, 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. 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. Kelly, supra.

State v. Bell, 53,712, pp. 5-7 (La.App. 2 Cir. 1/13/21), 310 So.3d 307, 311–12.

Further, in reviewing the defendant's sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ denied, 99-433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:

While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir. 1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La. 5/31/96)[,] 674 So.2d 957, 958.

State v. Soileau, 13-770, 13-771, p. 5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005–06, writ denied, 14-452 (La. 9/26/14), 149 So.3d 261. “Generally, maximum sentences are reserved for the most serious violation of the offense and the worst type of offender.” State v. Herbert, 12-228, p. 5 (La.App. 3 Cir. 6/13/12), 94 So.3d 916, 920, writ denied, 12-1641 (La. 2/8/13), 108 So.3d 78.

State v. Harville, 23-413, pp. 3-5 (La.App. 3 Cir. 11/29/23), 374 So.3d 1139, 1142–43. Additionally, in State v. Wortham, 47,431, pp. 4-5 (La.App. 2 Cir. 11/14/12), 107 So.3d 132, 135–36 (emphasis added), the second circuit provided a useful recitation of the law:

Where the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even where the trial court has not fully complied with the sentencing guidelines of La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. McGraw, [616 So.2d 262 (La.App. 2 Cir. 1993).] The important elements which should be considered are the defendant's personal history, prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. McGraw, supra. The trial court is not required to weigh any specific matters over other matters. State v. Moton, 46,607 (La.App.2d Cir.9/21/11), 73 So.3d 503, writ denied, 11-2288 (La. 3/30/12), 85 So.3d 113; State v. Caldwell, 46,645 (La.App.2d Cir.9/21/11), 74 So.3d 248, writ denied, 11-2348 (La. 4/27/12), 86 So.3d 625.

As for a downward departure from the mandatory minimum sentence, this court has explained the Dorthey criteria as follows:

In Berniard, the fifth circuit noted:

In State v. Fobbs, 99–1024 (La. 9/24/99), 744 So.2d 1274, 1275 the Louisiana Supreme Court held that the sentencing review under State v. Dorthey, 623 So.2d 1276, 1280 relative to downward departures from mandatory sentences in a habitual offender case is not limited to those sentences. In [State v.] Brown, [01–160 (La.App. 5 Cir. 5/30/01), 788 So.2d 667], a case involving aggravated kidnapping, we applied the principles set out in Dorthey, as reexamined in [State v.] Johnson [97–1906 (La. 3/4/98), 709 So.2d 672]. There we noted that downward departures from a mandatory minimum sentence should only occur in rare cases. Brown, 01–160 at 15, 788 So.2d at 675, citing Johnson, 97–1906 at 8, 709 So.2d at 677. In addition, we have held that the trial court may not depart from the mandatory minimum sentence because of some subjective impression about the defendant. State v. Bell, 97–1134, p. 17 (La.App. 5th Cir.2/25/98), 709 So.2d 921, 927, writ denied, 98–0792 (La. 9/16/98), 721 So.2d 477.

When a defendant seeks a downward deviation from the mandatory sentence, the defendant has the burden to rebut the presumption of constitutionality by showing by clear and convincing evidence that he is exceptional, namely, that he is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender, and the circumstances of the case. Brown, 01–160 at 15, 788 So.2d at 675.

Berniard, 860 So.2d at 75.

We cannot conclude that the trial court erred in finding that Defendant failed to prove by clear and convincing evidence that his case is exceptional.

State v. Smith, 16-188, p. 10 (La.App. 3 Cir. 10/12/16), 204 So.3d 1003, 1009 (alterations in original).

Each count of aggravated assault upon a peace officer exposed Defendant to a fine of not more than five thousand dollars, or imprisonment for not less than one year nor more than ten years with or without hard labor, or both. Because the jury found Defendant used a firearm during the commission of these felonies, La.Code Crim.P. art. 893.3(B) required a minimum sentence of not less than five years nor more than the maximum term of imprisonment provided for the underlying offense, ten years at hard labor. If the maximum sentence for the underlying offense was less than five years, the court was required to impose the maximum sentence.⁵ As stated above, Defendant was sentenced to seven years at hard labor on each of the two counts of aggravated assault upon a peace officer.

Resisting a police officer with force or violence carried a fine of not more than two thousand dollars or imprisonment with or without hard labor for not less than one year nor more than three years, or both. Pursuant to La.Code Crim.P. art. 893.3, however, the court was required to impose the maximum sentence of three years.

Finally, for illegal carrying of weapons, the penalty range was a fine of not more than ten thousand dollars and imprisonment at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence. Although the jury found a firearm was used during the commission of this offense, La.Code Crim.P. art. 893.3, the State conceded at sentencing that this charge could not be enhanced under the firearm sentencing provision. The court imposed a six-year hard labor sentence without the benefit of parole, probation, or suspension of sentence. The trial court ordered all sentences to run concurrently.

Prior to imposing Defendant's sentences, the court stated:

Under the law the minimum sentence that he could get for Counts 1, 2, and Count 4, is five years. That is the minimum, and they cannot be suspended. So, I couldn't give you a suspended sentence and probation even if I wanted to. Not that I want to in a case like this. I don't get it. Mr. Bell was armed with assault rifles. You don't hunt rabbits and squirrels with assault rifles. The ironic thing about a case like this is that a person like Mr. Bell who arms himself with these assault rifles, I figure in their mind they need to protect themselves and their families from the crazies out there. So many times the people who are harmed and threatened are the family members, the same family members the people that the defendant intends to protect with these assault rifles is turned against family members, and we find ourselves in a situation like this. So, the harm and the risks posed to the family members with people that possess these firearms are often the very family members who purchase those and use those guns for that purpose. And that is just, in the Court's opinion, is a sad tragedy and very ironic. And that is what happened here. Mr. Bell was drunk and got into it with his wife. Wife went down the street in a panic. And maybe she has some mental health issues or whatever. But she went down the street. She called 911. And she got her neighbor to call 911 at 9:00 o'clock at night. What were the police officers expected to do, Mr. Bell? They are gonna [sic] come. And in testimony you knew they were coming. And you waited in the front yard for them to come.

․

And there was assault rifles positioned at strategic locations. You tried to present an argument that oh, I was gathering my guns for my son to come. That didn't pan out. The jury did [not] buy that. I didn't buy that. What I see this was, that you were in a rage. You were filled with masculinity and testosterone, being drunk, ready for the police to come and having a showdown with the police, as you see a lot of times happens. That is something that you would never do if you were sober, not in a million years. But in a rage preparing for the showdown, and you had these police officers, and this police officer, Josh Manuel don't back down, he comes forward. And there you have it. And thank God that you apparently chickened out or maybe came to your senses, however you want to call it, and then you dropped the assault rifle instead of picking it up. Because Josh Manuel was justified in shooting you. If you were walking toward him holding an assault rifle by your side you would have been shot by a lot of cops. Now, I don't think you will probably ever see that, but that is how everybody else in this courtroom - - well, I don't know about everybody else in the courtroom, you got family members here, and they are suffering too. But that is how the jury saw it. And that is how people who are disassociated with the case saw it. And now I know that you are remorseful cause you are sober and you are realizing that you are in a bad spot. But I can't suspend the sentence if I wanted to. But this sentence does not deserve to be suspended under these circumstances. Because we have the chance to see - - you know when police officers behave badly it bothers me very, very much. But occasionally you see the police officers, in a situation like this are force[d] to act heroically. And they walk into the teeth of danger, with people holding assault rifles, who are drunk, who are angry. And sometimes - - we had a case not long ago, very similar to this where shots were fired. Luckily no one got killed then. Luckily no one got killed in this case. But the crime is a serious crime. I agree with everything that the State has presented by way of their opinions that we are to back police officers when they do good and they do right. If they don't do right and they don't do good then they need to be held accountable. But they also need - - you need to back them if they do right in a situation such as, dangerous situation such as this. You are a first offender. I am not gonna [sic] sentence you to the max. However, I am not gonna [sic] sentence you to the minimum either based upon these circumstances. So for these reasons the Court, for Counts 1 and Count 2, the Court sentences you to seven (7) years with the Department of Corrections. For Count 3, for the - - Counts 1 and 2, is aggravated assault with a police officer, your sentence is seven (7) years at hard labor with the Department of Corrections. For Count 3 the mandatory sentence is three (3) years, and that is the sentence of the Court, at hard labor. For Count Number 4, for the charge of illegal carrying of a weapon the Court sentences you to six (6) years with the Department of Corrections. And that is to be served without probation, parole, or suspension of sentence. The Court will run all four sentences concurrent with each other. And the Court will grant Mr. Bell credit for time served under law․ The Court also makes a finding that the implementation of Code of Criminal Procedure Article 893.3 is not an excessive sentence under these circumstances.

As noted above, defense counsel's motion to reconsider sentence alleged trial error and was denied on its face. Thus, appellate counsel filed a supplemental motion to reconsider sentence claiming Defendant's sentences were excessive, that the factors of La.Code Crim.P. art. 894.1 were not adequately considered, and that relief was justified under Dorthey, 623 So.2d 1276. At the hearing on the motion, the judge further explained the reasons for the sentences he imposed:

They [Defendant's son and wife] did not reveal information that was a surprise to me at sentencing, even though there was not a pretrial investigation. The Court was aware that this was Mr. Bell's first felony offense. The Court was aware that Mr. Bell had a family, that his wife and he were together, that he had children to support, and a job, that he was going to church, and things of that nature. So, the Court was aware of those things when the Court sentenced. The Court felt that at that time that there was some mandatory requirements, mandatory minimum requirements as a result of the firearm enhancement, and as a result of the nature of the charge. It kind of tied the Court's hands in sentencing. So, the Court did sentence Mr. Bell as a first offender, knowing some of those things that I have just discussed. However, if you wish to call a couple of witnesses to briefly put on some information that you claim did not get presented at the sentencing, the Court will permit that.

Defense counsel called Gregory Willis, a friend of Defendant, to present a statement prepared by Defendant's family asking for sentencing leniency, especially considering Defendant's mother's advanced age of ninety-three. Defendant's nine-year-old daughter made an in-person plea of leniency to the court, explaining the hardship she and her siblings faced due to her father's imprisonment. Defendant's imprisonment also created hardship on the businesses he owned with his son, including jobs that remained uncompleted due to Defendant's absence. Defense counsel pointed out that Defendant was not a threat to the community, that he was a church attendee, that he lacked a criminal record, that he would not likely repeat the offense, and that a downward departure was warranted, preferably a probated sentence. The State focused on the risk created to the deputies’ lives and Defendant's life by this incident and the fact that the defense had notice that the La.Code Crim.P. art. 893.3 enhancement was being sought, yet Defendant balked at repeated plea offers. Defense counsel clarified for the court that the offers involved imprisonment, not probation.

Prior to denying the motion, the court stated:

Well, in a situation like that if you guys think that I enjoy doing what I do, this is not a time that I do enjoy this. But when I was elected and sworn in, I was sworn in to uphold the law. Although in many cases a judge does have discretion. Those of you who know me understand or should understand that I do my best to try to maintain or follow what the law is. And so this case had been dragging out for a long time. I really don't know why this case went to trial. Because in all honesty the evidence against Mr. Bell was overwhelming. This was not a case about the fight that he had with his wife. It started off that way when the police were called. But this was not - - the State didn't even call the wife to testify. This was a case about his response to the police who are obligated under the law and their duty to respond in domestic violence situations. And Mr. Bell testified, and Mr. Bell testified at trial that he knew that the police were coming. He did admit that he was drunk. And I blame it on that because a drunk person is not thinking in their right mind. But that is not an excuse and in many cases it is not even a mitigating circumstance. When I was doing defense work I tried to use that excuse on several occasions in front of a jury that the person was drunk and didn't know what they were doing. A jury doesn't buy that, from my experience. So, there was a questionnaire for the jury to answer, whether they believed that a firearm was used, not only possessed but used, and they answered yes to both. And so in that event the law requires - - the minimum that the law requires is that there be a sentence of a minimum of five years, and it cannot be suspended or probation. The Court felt that it was an egregious act by the defendant. The evidence at trial showed that Mr. Bell knew that the police were coming. And he armed himself with assault rifles and assault shotguns. He armed himself when the police arrived. He went to his truck and grabbed a loaded assault rifle. By the door of his house was a loaded assault shotgun, staged there, in the Court's opinion, to have a showdown with the police. And these police officers did not back down. Officer Manuel and the other officer went forward. And just by, I guess, the grace of God nobody was shot. Because in the Court's opinion I think that the police officers were probably within their rights to shoot a man who has retreated to arm himself with such an assault rifle. So this was a bad deal. This was a bad case. And even though shots were not fired the jury saw it as that. And it was kind of - - maybe it took thirty minutes or an hour for the jury to come back with a guilty verdict. So I don't know what Mr. Bell was thinking all these two years about maintaining his innocence, or what kind of advice he was getting from his other attorney. But this was a serious type of a case, and if convicted the consequences and the sentences are mandated. And I am not one to presume to know more or to know better than state legislatures who go and they pass these law[s]. I feel an obligation to follow the laws that are passed and presented by our legislators. And they are the ones who tied the Court's hand. Now, did the Court give Mr. Bell a minimum, no. But he didn't give him the max either. I gave him a little bit more than the minimum because I felt that this was a very egregious circumstance where homicide could have occurred. And so do I feel bad for Mr. Bell and his family, and the people out there, of course I do. But the District Attorney's Office tried to work this out multiple, multiple times. And for whatever reason Mr. Bell felt that he didn't want to go that direction. So, when it comes to trial and a jury finds somebody guilty then that put me - - that paints me in a corner. And the time for negotiation is over at that time. So for those reasons the Court denies the request for re-sentence.

The record reflects that the trial court adequately considered the guidelines of La.Code Crim.P. art. 894.1. The foregoing comments made by the court both at sentencing and at the hearing on the motion to reconsider reveal that in sentencing Defendant, the court considered his intoxication on the night in question, the hardship his family suffered due to his incarceration, his first offender status, his employment status, and his church attendance. The court also considered Defendant's placement of firearms at strategic locations anticipating law enforcement's arrival, that Lieutenant Manuel would have been justified in shooting Defendant, and that this was a serious crime which placed law enforcement in an extremely dangerous situation. The court noted that even if suspended sentences could be imposed, they were not warranted under the circumstances of this case.

For aggravated assault upon a peace officer, the seven-year sentences were two years over the minimum five-year sentence required by La.Code Crim.P. art. 893.3(B). Under the circumstances presented in this case, which were clearly taken into consideration by the trial judge, the trial court did not abuse its vast sentencing discretion in imposing seven-year sentences.

Next, we note the trial court was required to impose a three-year hard labor sentence for resisting an officer with force or violence due to the jury's finding that a firearm was used. La.Code Crim.P. art. 893.3(B).

Similar sentences have been upheld for illegal carrying of weapons. In State v. Dabney, 01-1110 (La.App. 3 Cir. 6/25/03), 848 So.2d 784, this court upheld a seven-year sentence imposed for possession of a firearm while the defendant was in possession of a controlled dangerous substance. The defendant was on probation at the time of the commission of the offense. See also State v. Cook, 09-311 (La.App. 4 Cir. 8/12/09), 19 So.3d 15 (seven-year sentence hard labor sentence upheld where the defendant was on probation for a drug offense when the offense occurred.) Additionally, we note the trial court ran Defendant's four sentences concurrently, effectively resulting in a seven-year hard labor sentence with six of the years to be served without benefit of parole.

Finally, Defendant did not meet his burden of showing by clear and convincing evidence that his case is exceptional. Thus, the trial court did not err in refusing to deviate below the mandatory minimum sentences. This assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER 4

Defendant contends the trial court imposed an indeterminate sentence on the two counts of aggravated assault upon a peace officer because a single sentence was imposed for both counts. Louisiana Code of Criminal Procedure Article 879 requires the trial court to impose a determinate sentence. In sentencing Defendant on these offenses, the court stated:

So, for these reasons the Court, for Counts 1 and Count 2, the Court sentences you to seven (7) years with the Department of Corrections. For Count 3, for the - - Counts 1 and 2, is aggravated assault with a police officer, your sentence is seven (7) years at hard labor with the Department of Corrections. For Count 3 the mandatory sentence is three (3) years, and that is the sentence of the Court, at hard labor. For Count Number 4, for the charge of illegal carrying of a weapon the Court sentences you to six (6) years with the Department of Corrections. And that is to be served without probation, parole, or suspension of sentence. The Court will run all four sentences concurrent with each other.

We find the sentences are not indeterminate as Defendant claims. The court clearly indicated it imposed four sentences when it ran “all four sentences” concurrently.

DECREE

For the foregoing reasons, Defendant's convictions and sentences are affirmed.

AFFIRMED.

FOOTNOTES

1.   Judge Drew's dissent in Balentine stated in pertinent part:Three out of every four states settle Fifth Amendment claims of double jeopardy by simply applying the precepts of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), wherein a defendant can be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other. This is a straightforward test.In Louisiana, courts are required to also add a murky “same evidence” test, which few understand, and none can clearly explain. This double whammy has lead to inconsistent results and wildly uneven double jeopardy analyses. Blockburger, supra, has been the gold standard for 80 years. It is more than sufficient to afford protection against double jeopardy under the Fifth Amendment.State v. Balentine, 119 So.3d at 985–86 (footnote omitted).

2.   We note the previous version of La.R.S. 14:37.2 required the use of a firearm, but the version in effect at the time of the commission of Defendant's offense did not.

3.   The offenses at issue in Frank are very similar to those at issue here in that the sexual act in Frank served as the basis for the malfeasance in office conviction.

4.   Defendant testified that he works with the “worst of the bunch,” the type of people who do metal work, and because he carries cash all the time, he carries the gun for protection.

5.   The jury also found Defendant possessed a firearm during the commission of the felonies. Under that provision, La.Code Crim.P. art. 893.3(A), the required minimum sentence would be two years.

LEDRICKA J. THIERRY JUDGE