Opinion
NUMBER 2016 KA 0096
09-20-2016
STATE OF LOUISIANA v. BRANDON HICKERSON
Hillar C. Moore, III District Attorney Baton Rouge, LA Dylan C. Alge Assistant District Attorney Baton Rouge, LA Counsel for Appellee State of Louisiana Prentice L. White Louisiana Appellate Project Baton Rouge, LA Counsel for Defendant/Appellant Brandon Hickerson
NOT DESIGNATED FOR PUBLICATION
Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Docket Number 04-11-0912 Honorable Bonnie Jackson, Presiding Hillar C. Moore, III
District Attorney
Baton Rouge, LA Dylan C. Alge
Assistant District Attorney
Baton Rouge, LA Counsel for Appellee
State of Louisiana Prentice L. White
Louisiana Appellate Project
Baton Rouge, LA Counsel for Defendant/Appellant
Brandon Hickerson BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ. GUIDRY, J.
The defendant, Brandon Christopher Hickerson, was charged by grand jury indictment on count one with second degree murder, a violation of La. R.S. 14:30.1; on count two with attempted second degree murder, a violation of La. R.S. 14:30.1 and La. R.S. 14:27; and on count three with possession of a firearm or carrying a concealed weapon by a convicted felon, a violation of La. R.S. 14:95.1. The defendant pled not guilty. After a trial by jury, the defendant was found guilty on count one of the responsive offense of manslaughter, a violation of La. R.S. 14:31; not guilty on count two; and guilty as charged on count three. The defendant was sentenced on count one to forty years imprisonment at hard labor. On count three, the defendant was sentenced to twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, to be served consecutive to the sentence imposed on count one. The defendant now appeals, challenging the sufficiency of the evidence in support of the conviction on count one. For the following reasons, we affirm the convictions and sentences.
According to the minutes, one week after imposing the sentences, the trial court, ex proprio motu, clarified or amended the sentencing minute entry to confirm that the restriction of benefits is applicable to the sentence imposed on count three only.
STATEMENT OF FACTS
On April 10, 2011, approaching midnight, officers of the Baton Rouge Police Department were dispatched to a residence located at 4546 Clayton Avenue due to a shooting. Upon arriving on the scene, the officers began securing the area, as witnesses who scattered when the shots were fired returned to the scene. According to witnesses on the scene at the time of the shooting, the defendant had an altercation with Julia Grayer outside of the residence just before the gunshots were fired. Witnesses specifically indicated that Julia, who was related to the residents, pushed the defendant after he touched or attempted to touch her on the buttocks, and that the defendant pulled out a gun and started firing it after being pushed. One of Julia's cousins who resided at the scene, Everette Charles Collins (the victim), was outside when the shots were fired and suffered a fatal gunshot wound to the neck that travelled to his lungs, destroyed blood vessels, and caused a large amount of bleeding. The victim was transported to the emergency room, where he died of exsanguination.
While on the scene, within approximately ten minutes of their arrival, the police received another dispatch indicating that the suspected shooter (the defendant) was still in the area. The defendant was located on the porch of the home at the address provided by dispatch, within a short walking distance of the scene. As the defendant was being placed under arrest and escorted to one of the police units at the scene of the shooting, several onlookers identified him as the shooter.
As later noted herein, one of the witnesses (Jennifer Grayer) indicated that after the defendant was placed in the police unit, he made statements complaining about the police being called but admitting to shooting a gun.
ASSIGNMENT OF ERROR
In the sole assignment of error, the defendant argues that the evidence was insufficient to support the verdict on count one. According to the defendant, an unknown person pulled out a firearm and began shooting at him just before he returned fire in an effort to protect himself. Considering the supposed presence of another person with a firearm, the defendant argues it is "less likely" that he was trying to hurt the victim when he "began shooting towards unarmed people in an effort to protect himself." The defendant contends that the unknown gunman may have been coming to Julia Grayer's aid. The defendant also argues that the State's witnesses were unreliable. The defendant specifically notes that two of the witnesses had schizophrenia, including Melvin Collins, the brother of the victim and a cousin of Grayer, and Antonio Walker, who was previously convicted of sexual battery. The defendant further notes that Julia Grayer and Melvin Collins were unable to identify him as the shooter in a pretrial photographic lineup. The defendant claims that Byron Floyd and Antonio Walker (who had pending criminal charges and admitted that at the time of the shooting, it was dark and he was drunk) testified that they did not see the defendant with a gun. The defendant also avers that there were many factual discrepancies among the witnesses. Noting that many of the witnesses were related to the victim and to each other, the defendant argues that the witnesses targeted him as the culprit.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, as adopted by the Legislature in enacting La. C.Cr.P. art. 821, requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to conclude that the State proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The Jackson standard of review is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Graham, 02-1492, p. 5 (La. App. 1st Cir. 2/14/03), 845 So. 2d 416, 420. When a case involves circumstantial evidence and the trier of fact reasonably rejects a hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So. 2d 126 (La. 1987). When a key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. State v. Hughes, 05-0992, p. 6 (La. 11/29/06), 943 So. 2d 1047, 1051.
On count one, the defendant was charged with a violation of La. R.S. 14:30.1, second degree murder, and, as noted, convicted of the responsive offense of manslaughter. Second degree murder is, in pertinent part, defined as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). Manslaughter consists, in part, of a homicide committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection, requiring the presence of specific intent to kill or inflict great bodily harm. La. R.S. 14:31(A)(1); State v. Hilburn, 512 So. 2d 497, 504 (La. App. 1st Cir.), writ denied, 515 So.2d 444 (La. 1987). 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). Since specific intent is a state of mind, it need not be proved as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So. 2d 1126, 1127 (La. 1982). Thus, specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Buchanon, 95-0625, p. 4 (La. App. 1st Cir. 5/10/96), 673 So. 2d 663, 665, writ denied, 96-1411 (La. 12/6/96), 684 So. 2d 923. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Delco, 06-0504, p. 4 (La. App. 1st Cir. 9/15/06), 943 So. 2d 1143, 1146, writ denied, 06-2636 (La. 8/15/07), 961 So. 2d 1160. The doctrine of transferred intent provides that when a person shoots at an intended victim with the specific intent to kill or inflict great bodily harm and accidentally kills or inflicts great bodily harm upon another person, if the killing or inflicting of great bodily harm would have been unlawful against the intended victim actually intended to be shot, then it would be unlawful against the person actually shot, even though that person was not the intended victim. State v. Henderson, 99-1945, p. 3 (La. App. 1st Cir. 6/23/00), 762 So. 2d 747, 750, writ denied, 00-2223 (La. 6/15/01), 793 So. 2d 1235. Moreover, the discharge of a firearm in the direction of a crowd has repeatedly been recognized in the jurisprudence as sufficient to prove specific intent to kill. See State v. Mart, 419 So. 2d 1216, 1217 (La. 1982); State v. Allen, 94-1941, pp. 9-10 (La. App. 1st Cir. 11/9/95), 664 So. 2d 1264, 1272, writ denied, 95-2946 (La. 3/15/96), 669 So. 2d 433; State in the Interest of L.H., 94-903, pp. 2-4 (La. App. 3rd Cir. 2/15/95), 650 So. 2d 433, 435-36; State v. Thomas, 609 So. 2d 1078, 1083 (La. App. 2nd Cir. 1992), writ denied, 617 So. 2d 905 (La. 1993).
In addition to the above portion of the manslaughter statute, the State relied upon the section of the statute that negates the requirement of the intent to kill. Specifically, under La. R.S. 14:31(A)(2)(a), the defendant is guilty of manslaughter if a homicide is committed while the offender, who has no specific intent to cause death (or great bodily harm), is engaged in either a felony not enumerated in the first and second degree murder statutes or an intentional misdemeanor directly affecting the person. Herein, the jury was instructed to consider illegal use of weapons, a non-enumerated felony, and aggravated assault, an intentional misdemeanor directly affecting the person. Illegal use of weapons is, in part, the "criminally negligent discharging of any firearm." La. R.S. 14:94. An assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery. La. R.S. 14:36. Aggravated assault is an assault committed with a dangerous weapon. La. R.S. 14:37.
Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances. La. R.S. 14:12.
When the defendant in a homicide prosecution claims self-defense, the State must prove beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Williams, 01-0944, p. 5 (La. App. 1st Cir. 12/28/01), 804 So. 2d 932, 939, writ denied, 02-0399 (La. 2/14/03), 836 So. 2d 135. A homicide is justifiable when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger. La. R.S. 14:20(A)(1). However, a person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:21. On appeal, the relevant inquiry is whether or not, after viewing the evidence in the light most favorable to the prosecution, a rational fact finder could have found beyond a reasonable doubt that the defendant did not act in self-defense. Williams, 01-0944 at pp. 5-6, 804 So. 2d at 939.
While the defendant raises a self-defense claim, he also contends that he was not trying to hurt the victim, cites the definition of criminal negligence, and notes that the jury was instructed to consider negligent homicide as a possible verdict on count one. Negligent homicide is in part defined as the killing of a human being by criminal negligence. La. R.S. 14:32.
Everette Collins (the victim) lived at the residence where the shooting took place along with his brother Melvin Tyrone Collins and his cousin Byron Floyd. Julia Grayer, a cousin of the victim, Melvin, and Byron, testified that when she arrived at the home on the night of April 10, 2011, the defendant was there and she agreed to give him a ride to a nearby grocery store. Julia did not know the defendant before the night in question. Julia testified that the defendant was acting "like he was drunk" during their drive to the nearby store. Other occupants of the vehicle included State witnesses Jennifer Grayer (Julia's niece) and Ursula Young. When they returned to the residence on Clayton Avenue, Julia and the defendant exited the vehicle, and according to Julia, the defendant grabbed her buttocks. Julia became angry, pushed the defendant, and told him not to touch her in that manner again. When she pushed the defendant, he fell down but balanced himself with his hand. At that point, Julia picked up a crowbar off of the ground, noting that she would have hit the defendant with the object if he had attempted to hit her after she pushed him.
Though he did not testify at the trial, another individual, Jeffery Williams, was also a passenger in the vehicle that night and present at the time of the shooting.
As the defendant regained his footing, he pulled out a gun and Julia immediately dropped the crowbar. Julia testified that she and the victim were standing near the defendant as he angrily brandished the gun and cursed, noting that he was mad because she had pushed him. Julia testified that she saw the defendant fire the gun but denied that he pointed it specifically toward her. She indicated the defendant was "fanning" the gun back and forth before firing once, and that she and the victim ran as the defendant fired more shots. The victim and Julia bumped into each other as they tried to get away; Julia fell and crawled toward the back of the residence. When she stood up to run, she heard the victim state, "Cuz, I'm hit." Julia heard more gunshots as she attempted to jump over a fence. Julia ran around the corner and hid until the police arrived in the area. She confirmed that she was certain that the defendant fired the shots.
Ursula and Jennifer also testified at the trial. Both indicated that they stayed in the truck when they went to the store and when they returned to the residence on Clayton Avenue. Ursula, who was not related to anyone at the scene and did not know the victim, was Julia and Jennifer's friend. Ursula recalled that the defendant was wearing a gray tank top that night. Ursula and Jennifer sat in the back seat while the defendant was in the front passenger seat when they rode to the store. When they got back to the scene, the defendant and Julia exited the vehicle, and Ursula moved to the front of the vehicle. Ursula and Jennifer looked outside after the commotion started and heard statements regarding the defendant grabbing Julia on the buttocks. They saw the defendant fall down when Julia pushed him. Ursula and Jennifer both specifically saw the gun and saw the defendant fire the gun. Ursula and Jennifer testified that no one else on the scene had a gun. Ursula specifically testified that after Julia pushed the defendant, he came back up with a gun in his hand. According to Jennifer, after Julia pushed the defendant, they momentarily stepped out of the vehicle but immediately got back in the vehicle when the defendant pulled out the gun. Ursula testified that she got down on the floor of the vehicle in a fetal position, while Jennifer stated that she stayed up out of concern for her aunt, Julia. Jennifer testified, "When he started shooting ... Everette tried to go to the door ... it looked like him and Julia collided so they both went, like ... in a downward motion, and I seen Julia crawl and I seen Everette run around the building." The defendant left the scene on foot.
When the defendant was escorted back to the scene, Julia, Ursula, and Jennifer positively identified him as the shooter. According to Jennifer, while in the police unit the defendant stated in part, "Y'all called the police because a n-----was shooting? I ain't hurt nobody." Thereafter, Jennifer was able to positively identify the defendant as the shooter in the photographic lineup. Julia and Ursula were unable to identify the defendant in a photographic lineup with certainty that night. Ursula noted that while the defendant was bald at the time of the shooting, the photographs in the lineup featured subjects with hair, while Julia noted that the defendant was wearing a hat that night. Julia, Ursula, and Jennifer positively identified the defendant as the shooter during their trial testimony.
The victim, his brother Melvin, and his cousin Byron were at home on the night of the shooting, along with a friend of the defendant and the victim, Antonio Walker. Byron had known the defendant for many years, as they had attended the same elementary school. Melvin, Byron, and Antonio testified that they were present when the defendant asked Julia for a ride to the store, and they were outside when the defendant and Julia exited the vehicle after returning from the store.
Byron testified that the defendant was wearing a gray tank top, a cap, and black or blue jeans and had gold teeth. As Byron and Melvin were sitting on the steps in front of the house, the defendant was "trying to grab [Julia] and all that." Byron further stated that the defendant reached for Julia's butt, they started "tussling," and she slapped his hand down. When the defendant "raised up," he had a gun in his hand and started walking towards them and waiving the gun around. As Julia and Everett asked the defendant why he was waiving the gun around, Byron and Melvin arose from the steps and went inside of the house. Byron stated that once inside, he heard gunshots, ducked down, and crawled through the kitchen to the back door. Byron admitted that he did not see the defendant fire the gun but confirmed that he saw the defendant with the gun just before entering the home. Byron initially heard two gunshots, then three or so more gunshots were fired within the next few seconds. Byron indicated that the defendant was "acting drunk" that night. According to his testimony, Byron was sober that night and had not been drinking or doing drugs. After hearing the gunshots, Byron and Melvin exited the house through the back door and saw the victim who stated, "That dude just shot me," the final words that Byron heard him speak. Byron and Melvin helped the victim into the vehicle, and they took him to the hospital. Byron testified that Julia and the defendant were the only ones who had a confrontation. On cross examination, Byron confirmed that Julia never hit the defendant with an object. Byron met with the police on May 3, 2011, and identified the defendant in a photographic lineup.
Consistent with Byron's testimony, Melvin testified that a physical altercation ensued when the defendant "grabbed Julia on the butt." He stated that the defendant tried to touch Julia again, she pushed him, and he landed on the victim. As the defendant got up, he pulled a gun out from his waistline and cocked it. Melvin testified, "He pointed it at me and asked me what I wanted to do -- did I have something with anything ... I told him no I was trying to go in the house ... and he let me go in the house." Once Melvin made it in the house, he heard the gunshots. He testified that when he and Byron got outside, they saw the victim lying in the backyard, carried him to the vehicle, and took him to the hospital. Melvin further testified that his brother did not have a gun, and that the defendant was the only person he saw with a gun that night. Melvin was unable to positively identify anyone from the photographic lineup but testified that he was certain that the defendant pulled the gun out.
Antonio, who admitted that he did not want to testify at the trial, arrived at the residence that night with the defendant. He testified that he saw the defendant and Julia arguing and heard Julia stating that the defendant had touched her but claimed that he did not see the gun. He indicated that he was drunk at the time and that it was dark outside. Although he denied seeing the gun, he stated that he heard seven or eight gunshots and started running. Antonio confirmed that he returned to the scene after the shooting, cooperated with the police, and identified the defendant that night in a photographic lineup as the shooter. Melvin and Antonio both testified that they were on medication for schizophrenia but neither indicated that it affected their ability to accurately and truthfully recall their observations that night.
Several officers who arrived on the scene on the night of the shooting testified at the trial. Officer Glynn Averette photographed the scene; Corporal Kevin Adcock marked and collected evidence; and Detective John Dauthier was the case agent. The police recovered five spent shell casings from the front yard, recovered a sixth shell casing from a wall inside of the home, and photographed damage to the tailgate of the vehicle that was consistent with a bullet hole. Based on the crime scene, a nine millimeter was fired, as the shell casings that were collected were all nine millimeter Lugers. The police did not see or recover a crowbar or tire iron. Officer Shannon Helaire, one of the officers who escorted the defendant back to the scene after they received the dispatch providing his whereabouts, noted that the defendant had a hat with him at the time, and that an odor of an alcoholic beverage was on the defendant's breath and person. He confirmed that several people on the scene identified the defendant as the shooter as he escorted him to the patrol unit.
Detective Dauthier constructed the photographic lineups and noted that due to limited time and resources, he had to use a photograph of the defendant wherein he had hair, although he was bald on the night of the shooting.
Detective Dauthier testified that he changed the position of the defendant's photograph in presenting the lineups to the witnesses. Detective Dauthier noted that Antonio Walker was interviewed in addition to being presented with the lineup. During the interview, Antonio identified the defendant as being at the scene, possessing/brandishing a firearm, and shooting the firearm. Antonio specifically stated that he saw the defendant fire the gun. Antonio was not made any promises, was never considered a suspect, and was cooperative. Antonio did not appear to be intoxicated, and the interview took place over four hours after the shooting, during which time Antonio was at the police station. Detective Dauthier confirmed that both Antonio and Melvin were able to coherently answer questions. Detective Dauthier further confirmed that Jennifer, Antonio, and Byron positively identified the defendant as the shooter from the photographic lineups. The day after the shooting, the police were approached by an unidentified person who provided a .38 caliber revolver purportedly found at the address of the shooting. However, the police consistently testified that only nine millimeter casings that could not have been fired from a .38 revolver were recovered from the scene. The jury was shown surveillance footage (obtained by Detective Dauthier) from Lee's Grocery (the store that Julia took the defendant to just before the shooting) at the time that the defendant and Julia were in the store. The individual believed to be the defendant was wearing a cap, a gray tank top, and black pants. He entered closely behind a female, purportedly Julia, who was wearing a white tank top and shorts. The defendant did not testify at the trial.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when 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. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. Thus, an appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. Williams, 01-0944 at p. 6, 804 So. 2d at 939. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 07-2306, pp. 1-2 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam).
The guilty verdict in this case indicates the jury rejected the defendant's claim that he shot the victim in self-defense. Although the defendant now on appeal claims that the trial testimony was riddled with inconsistencies, the witnesses were wholly consistent as to their accounts of the incident. The testimony presented during the trial indicated that the defendant was the aggressor in the incident. Several witnesses consistently indicated that the defendant initiated the physical confrontation with Julia Grayer. While Julia testified that she picked up a crowbar after pushing the defendant away, she stated that she immediately dropped it when she saw the gun. There was no testimony to indicate that anyone else had a firearm. Viewing the evidence in the light most favorable to the prosecution, a rational fact finder could have found beyond a reasonable doubt that the defendant did not act in self-defense when he began firing his gun toward unarmed individuals. Moreover, the defendant's omissions and actions after the shooting, of failing to report the shooting and departing from the scene, are inconsistent with a theory of self-defense. See State v. Emanuel-Dunn, 03-0550, p. 7 (La. App. 1st Cir. 11/7/03), 868 So. 2d 75, 80, writ denied, 04-0339 (La. 6/25/04), 876 So. 2d 829; State v. Wallace, 612 So. 2d 183, 191 (La. App. 1st Cir. 1992), writ denied, 614 So. 2d 1253 (La. 1993).
Herein, the jury may have concluded that the shooting was committed in sudden passion or heat of blood during the physical confrontation between the defendant and Julia Grayer. The defendant repeatedly discharged a firearm, and more than one witness was placed in the reasonable apprehension of receiving a battery. Thus, the jury may have alternatively concluded that the shooting occurred while the defendant was engaged in the commission of illegal use of a weapon and/or aggravated assault with a dangerous weapon. We further note that a jury may return any legislatively provided responsive verdict whether or not the evidence supports that verdict, as long as the evidence was sufficient to support a conviction of the charged offense. State ex rel. Elaire v. Blackburn, 424 So. 2d 246, 249 (La. 1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983). In that regard, we find that specific intent to kill or inflict great bodily harm can be inferred from the circumstances of the shooting in this case. In reviewing the evidence, we cannot say that the jury's determination of guilt was irrational under the facts and circumstances presented to them. See State v. Ordodi, 06-0207, p. 14 (La. 11/29/06), 946 So. 2d 654, 662. Considering the evidence presented in the light most favorable to the prosecution, we conclude that a rational juror could have found that the State established beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence, the defendant's identity as the shooter and that the defendant did not act in self-defense. Thus, the sole assignment of error lacks merit.
REVIEW FOR ERROR
This Court routinely reviews the record for patent errors pursuant to La. C. Cr. P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and "error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." La. C. Cr. P. art. 920(2). After a careful review of the record in these proceedings, we have found no reversible errors. However, in sentencing the defendant on count three, conviction of possession of a firearm or carrying a concealed weapon by a convicted felon, the trial court failed to impose the mandatory fine of not less than one thousand dollars nor more than five thousand dollars. See La. R.S. 14:95.1(B). Although the failure to impose the fine is error under La. C. Cr. P. art. 920(2), it certainly is not inherently prejudicial to the defendant. Because the trial court's failure to impose the fine was not raised by the State either in the trial court or on appeal, we are not required to take any action. As such, we decline to correct the illegally lenient sentence imposed on count three. See State v. Price, 05-2514, pp. 18-22 (La. App. 1st Cir. 12/28/06), 952 So. 2d 112, 123-25 (en banc), writ denied, 07-0130 (La. 2/22/08), 976 So. 2d 1277.
CONVICTIONS AND SENTENCES AFFIRMED. McCLENDON, J., concurs.
While I am concerned with the failure of the trial court to impose the legislatively mandated fine, given the state's failure to object and in the interest of judicial economy, I concur with the majority opinion.