NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

NO. 2023 KA 0115
STATE OF LOUISIANA

VERSUS

r JOSHUA CHAISSON Judgment Rendered. 

### SEP 15 2023

Appealed from the 1.7th Judicial District Court In and for the Parish of Lafourche

State of Louisiana Case No. 599880, Division B 

### The Honorable Steven N. Miller,Judge Presiding

X C X 7F x 7ti X ZF Prentice L.White Counsel for Defendant/Appellant Baton Rouge, Louisiana Joshua Chaisson Kristine Russell 

### District Attorney Joseph S. Soignet Shaun George Assistant District Attorneys Thibodaux, Louisiana Counsel for Appellee State of Louisiana

BEFORE: THERIOT, PENZATO, AND GREENE, JJ.THERIOT, J.



### The defendant, Joshua Chaisson, was charged by bill of information with armed robbery (count two), a violation of La. R.S. 

### 14:64, being a convicted felon in possession ofafirearm or carrying a concealed weapon (countthree), a violation of La. R.S. 14:95. 1, and attempted second degree murder (count four), a violation La. R.S. 14:27 and La. R.S. 14:30. 1.' 

### He pled.not guilty, and, after atrial byjury, was found guilty as charged on all three counts. The trial court denied a motion for 

### new trial and a motion for post - verdict judgment of acquittal filed by the defendant. The trial court sentenced the defendant to ninety-nine years imprisonment at hard labor without the benefit ofprobation, parole, or suspension 

### ofsentence on count two, twenty years imprisonment at hard labor on countthree, 

### and fiftyyears imprisonment at hard laborwithoutthe benefit ofprobation, parole, or suspension of sentence on count four. The trial court ordered that the sentences 

### on countstwo andthree be served concurrently, andthatthe sentenceon countfour be served consecutively to the sentences on counts two and three. The defendant now appeals, assigning error to the sufficiency ofthe evidence and the admission 

### ofa pretrial photographic lineup identification at trial. For the following reasons,
we affirm the convictions and sentences. STATEMENT OF FACTS 

### On August 3, 2020, Deputy Thomas Duhig and Detective Elizabeth Leon of the Lafourche Parish Sheriffs Office ( LPSO), responded to complaints, first 

### reported at 8:21 p.m., of gunshots heard in the Raceland/Greentown community. 

### Priortothe shooting, Leroy Allen,the victim,received text messages' from Hailey

The defendant was also charged on countone with aimed robbery with afirearm, a violation of La. R.S. 14:64 and La. R.S. 14:64.3. However, prior to the commencement oftrial, the State nol-prossed this charge. The text messages were of a sexual nature, in which Hailey Curole invited Allen to her residence and told him to come alone.

### Curole, whom he knew as the mother of his cousin' s child, and then drove to

Curole' s residence. As Allen exited his truck, an individual armed with a gun approached him, 

### put the gun up to Allen's head, and told him to give him 

### everything he had. Allen surrendered his keys, glasses, cell phone, and wallet containing $400. The gunman ordered Allen to get back into his truck. As the gunman entered the passenger side of the truck, he told Allen to drive to a secluded area known as the " Forties." 

### Allen refused, believing that the gunman wanted to kill him without any witnesses. The gunman then put the gun to Allen' s head again and pulled the trigger. 

### The gun made a clicking sound but did not discharge. As 

### thegunman attempted to unjam thegun, Allenjumped out ofthe moving truck. As 

### he ran into a store parking lot, he heard approximately ten gunshots being fired in his direction. 

### Deputy Duhig and Detective Leon made contact with Allen and located ten shell casings in and around the store parking lot,where Allen ran when he escaped from the truck. Detective Leon went to Curole' s residence and learned that a truck 

### parked in her driveway was registered in the defendant's name. Allen identified 

### the defendant as the gunman in a six - person photographic lineup and again in court 

### during the trial. The defendant did not testify at trial. 

### Priorto trial, during an interview by Detective Leon, the defendant stated that he had no knowledge ofthe incident.

ASSIGNMENT OF ERROR NUMBER ONE In assignment of error number one, the defendant argues that the evidence presented was insufficient to support the convictions. He argues the victim' s identification of him was inadequate and contends that there was no physical

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## evidence connecting him to the offenses.3 Thus,he argues his convictions should

be reversed. A conviction based on insufficient evidence cannot stand, as it violates due

process. See U.S. Const. amend. XIV, La. Const. art. 1, § 2. The standard of 

### review for sufficiency ofthe evidence to support a conviction is whether or not, viewing the evidence' in the light most favorableto the prosecution, a rational trier offact could conclude that the State proved the essential elements ofthe crime, and 

### the defendant's identity as the perpetrator of that crime, beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 ( 1979); 

### State v. Currie, 2020-0467 (La.App. 1 st Cir. 2122121), 321 So.3d 978, 982. When a conviction is based on both direct and circumstantial evidence, the 

### reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence 

### isthusviewed,the facts established bythe direct evidence andthe facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to 

### conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Currie, 321 So.3d at 982. When a case involves 

### circumstantial evidence andthejury reasonably rejects the hypothesis ofinnocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Dyson, 2016- 

### 3 The defendant is not arguing that the offenses did not occur, but ratherchallenges his identity as the perpetrator ofthe offenses. a The admission ofAllen' s pretrial identification is at issue in assignment of error number two. 

### We note thatthe entirety ofthe evidence, both admissible and inadmissible, must be considered in determining the sufficiency ofthe evidence. Ifthe entirety ofthe evidence, both admissible and inadmissible, is insufficient to support the conviction, the accused is entitled to an acquittal and no further inquiry as to trial errors is necessary. See State v. Hearold, 603 So.2d 731, 734 La. 1992). 

### On the other hand,when the entirety ofthe evidence, admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must consider assignments oftrial error to determine whether the accused is entitled to a new trial. id;State v. Duhon, 2018-0593 (La.App. ist Cir. 12128118), 270 So.3d 597, 609, writ denied, 2019-0124 (La. 5/28119), 273 So.3d 315. 41571 ( 

### La.App. 1st Cir. 612117), 222 So.3d 220, 228, writ denied, 2017- 1399 ( La.

6115118), 257 So.3d 685. 

## Armed robbery isthetakingofanything ofvalue belongingto anotherfrom the person ofanother orthat is in the immediate control ofanother, by use offorce
or intimidation, while armed with a dangerous weapon. La. R.S. 14: 64(A). 

### Possession ofafirearm orcarrying a concealed weapon bya convicted felon is the 

### possession of a firearm by any person who has been convicted of a statutorily enumerated felony.' La. R.S. 14:95. 1( A). Attempted second degree murder is the specific intent to kill' 

### and the commission of an overt act tending toward the accomplishment of that goal. See La. R.S. 14:27 and 1.4:30. 1; State v. Barnett, 

### 96-2050 (La.App. 1st Cir.9/23/97), 700 So.2d 1005, 1009.

Specific intent is that state of mind which exists when the circumstances 

## indicate thatthe offender actively desiredthe prescribed criminal consequences to follow his act or failure to act. La. R.S. 14: 10( 1), Though intent is a question of fact, it need not be proven as a fact. 

### It may be inferred from the circumstances of the transaction. 

### 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. Currie, 321 So.3d at 982-83. 

### The State bears the burden of proving the elements of the offense, along 

### with the burden ofproving the identity ofthe defendant as the perpetrator. When 

### the key issue is the defendant's identity as the perpetrator, rather than whetherthe Herein. the parties stipulated that the defendant was previously convicted of the underlying 

### felony of possession with intent to distribute rnethamphetamine and that ten years had not elapsed between the date ofcompletion of sentence, probation, parole, or suspension ofsentence and the date ofthe instantoffenses. See La. R.S. 14:95. 1( Q. Although the statute for the completed crime of second degree murder allows for a conviction based on " specific intent to kill or to inflict great bodily harm," La. R.S. 14:30. 1, attempted second degree murder, requires specific intent to kill. State v. Bishop, 2001-2548 (La. 1114103), 835 So.2d 434, 437.

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### crime was committed,the State is required to negate any reasonable probability of

misidentification. 

### A positive identification by only one witness is sufficient to support a conviction. State v. Coleman, 2017- 1045 ( 

### La. App. 1st Cir. 4113118), 249 So.3d 872, 877-78, writ denied, 2018-0830 (La. 2118119), 263 So.3d 1155. In this case, 

## the defendant only challenges the evidence as to the identity of the perpetrator, not the elements ofthe offenses.

At trial, 

### the State provided overwhelming evidence of the defendant's identity as the perpetrator of the instant offenses, including Allen's positive identification and the defendant' s admissions in jail phone calls. On the night of the incident, Allen described the gunman?

### to Deputy Duhig as an approximately six feet tall, 150 to 180 pound, white or Hispanic male with " a bunch oftattoos." Two days later, on August 5th, Allen told Detective Leon that the perpetrator had a child with Curole and showed the detective Facebook images that were on his replacement cell phone, 

### including photographs ofthe defendant. Detective Josh 

### Borskey ofthe LPSO then conducted the photographic lineup. Allen selected the 

### defendant from the lineup within twenty seconds of reading the instructions. At 

### trial, Allen testified that he picked the defendant out ofthe lineup because "[ tlhat' s who it was." He again identified the defendant in court. Allen denied that the 

### defendant was only shooting in the air,noting that the bullets passed very close to him. The State further introduced at trial the defendant' sjail phone calls with his 

### sister, made shortly after the incident occurred. The defendant implicated himself 

### in the first phone call, in which he told his sister that he would not be convicted of attempted murder, explaining, " because I didn' t hit him." The defendant further

On crass -

examination, Detective Leon stated that Allen described the perpetrator as a white, short, bald-headed male with tattoos. When Allen testified, he clarified what he meant by bald, 

### confirming that he did not mean completely bald, but instead meant the perpetrator had a " low cut." 

### The photograph ofthe defendant in the lineup is consistent with Allen's description, inthat the defendant appeared to be a white male with a low haircut.

nrelayed that there was no evidence and stated, " 

### They don't know ... it's my word

against his." 

## During the second phone call, the defendant's sister asked him ifhe was wearing a mask that night. 

### The defendant again implicated himself, confirming 

### that he was not wearing a mask and that his face was visible. The defendant further stated that " 

### Hailey" 

### was not going to show up for court ifshe really loved him as she claimed and that there was no case without her. He also stated, in reference to his police interview, that the police tried to get him to " tell on myself[,]" 

### but he did not do so, reiterating thattheyonly had Curole's statement.

In a third call, the defendant told his sister to make " her" ( presumably Curole) 

### understand that ifthey were to get married, they could not be forced to testify against each other and to tell herto " stick to the plan." 

### During the third and 

### fourth calls, the defendant also coached his sister regarding his alibi, telling her 

### that she picked him up, that he spent time at her house, and that she brought him home right before midnight. Further, in the fourth call, the defendant' s sister 

### statedthat she had afriend manipulate the timestamp on a picture ofthe defendant in her bed, in an attempt to make it appear that the defendant was at her house on the night ofthe offenses. 

### During a fifth call, the defendant again instructed his sister to let " Hailey" 

### know that ifshe did not stickto the plan, she would be going tojail as well. The 

### defendant repeatedly detailed a " story" 

### in which he apparently wanted Curole to 

### admitto inviting " ole dude" ( 

### presumably Allen)to her residence,to say that Allen was drunk when he arrived and tried to force himself on her, and that she refused his advances. Also introduced at trial, the defendant had a two-part recorded jail phone call in April of2021, 

### with Allen, in which the defendant fully confessed to being the shooter. 

### The defendant told Allen that he was protecting his kids and that

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### Allenjust pulled up atthe wrong time and thatthe " sh* t wasn't for me and you[,}"



## indicatingthathe had an issuewith another person whowas supposed to be inthe area that day. The defendant further told Allen that he did not have any " beef' 

### with him,that he was nottrying to harm him, and that he was only shooting in the
air. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness' s testimony, 

### if believed by the trier of fact, is sufficient to support a factual conclusion. Further, 

### where there is conflicting testimony about factual matters, the resolution of which depends upon a 

### determination ofthe credibility ofthe witnesses, the matter is one ofthe weight of 

### the evidence, not its sufficiency. State v. Alexander, 2014- 1619 ( 

### La. App. 1st Cir. 9/ 18/ 15), 182 So.3d 126, 131, writ denied, 2015- 1912 (La. 1125116), 185 So.3d 748. 

### Accordingly, on appeal, this court will not assess the credibility ofwitnesses or reweigh the evidence to overturn a fact finder' s determination ofguilt. State v. 

### Lavy, 2013- 1025 (La. App. 1st Cir. 311 1114), 142 So.3d 1000, 1006, writ denied, 2014-0644 (La. 10131/ 14), 152 So.3d 150. While the defendant argues that he was misidentified, the verdicts rendered 

### in this case indicate thatthejury rejected the defendant's hypothesis ofinnocence. The State presented to thejury Allen's positive identification ofthe defendant as the perpetrator both at trial and during a pretrial photographic lineup, as well asthe 

### defendant's own incriminating statements during recordedjail phone calls. Allen' s 

### testimony was consistent with the evidence found by the police, including the ten shell casings and the location of the defendant' s vehicle where Allen said he was

accosted. 

### In reviewing the evidence presented at trial, we cannot say that the 

### jury' s determination was irrational under the facts and circumstances presented. See State v. Ordodi, 2006-0207 (La. 11129/06), 946 So.2d 654, 662.

### An appellate court errs by substituting its appreciation ofthe evidence and



### credibility ofwitnesses forthat ofthe factfiroderand therebyoverturning averdict on the basis ofan exculpatory hypothesis ofinnocence presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 ( La. 1121109), 1 So.3d 417, 418 ( per curiam). 

### Viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found that the State 

### proved beyond a reasonable doubt all ofthe elements of armed robbery, convicted 

### felon in possession of a firearm or carrying a concealed weapon, and attempted second degree murder, 

### and the defendant's identity as the perpetrator of those

offenses. Thus, we find no merit in assignment oferror number one.

ASSIGNMENT OF ERROR NUMBER TWO In assignment of error number two, the defendant argues that the six - man 

### photographic lineup used to identify him before the trial was unduly suggestive. He arguesthe trial court should have ruledthe lineup inadmissible.

In Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L.Ed.2d 140 ( 1977), the Supreme Court concluded, " 

### reliability is the linchpin in determining the admissibility of identification 

### testimony[.]" A defendant 

### attempting to suppress an identification must prove the identification was 

## suggestive and that the totality of circumstances presented a likelihood of

misidentification. 

### An identification procedure is unduly suggestive if it displays the defendant so that the witness's attention is unduly focused on the defendant. State v. Carter, 2014-0742 (La.App. 1st Cir.3125/ 15), 167 So.3d 970, 973. Even if the identification is considered suggestive, that alone does not indicate a violation of the defendant' s right to due process. It is the likelihood of 

### misidentification that violates due process, not merelythe suggestive identification

9procedure.' 

## Strict identity ofphysical characteristics among the persons depicted

in a photographic array is not required; however, there must be sufficient 

## resemblance to reasonably test the identification. A trial court's deterinination of the admissibility ofidentification evidence is entitled to great weight and will not be disturbed on appeal in the absence ofan abuse ofdiscretion. State v. Johnson, 2000-0680 ( 

### La. App. 1st Cir. 12122100), 775 So.2d 670, 677, writ denied, 2002- 1368 (La. 5130103), 845 So.2d 1066. Herein, while the defendant did not file a motion to suppress the 

### identification, he did objectto the admission ofthe photographic lineup during the trial. 

### The defendant argued the pretrial photographic lineup was suggestive because the victim described the shooter as a short, bald, white man, and no bald

### headed men were included in the lineup, only men who favored the defendant. The trial court overruled the initial objection because there hadyet to be testimony 

### that the victim described the shooter as stated by the defense attorney and no pretrial motion to suppress had been filed. The defendant re -urged his objection 

### during Detective Borskey' s testimony, and the trial court again overruled the 

### objection, finding that the lineup was properly constructed and was not required to match the preliminary description provided by thevictim. 

### We are not persuaded by the defendant's claim that the depictions in the photographs were inconsistent with the victim' s initial description of the perpetrator. The victim testified at trial that when he described the perpetrator as 

### bald,he did not mean afully bald head and instead meantthatthe perpetratorhada low haircut. 

### This description is wholly consistent with the photographs in the

8 We note that if the identification procedure is determined to be suggestive, courts look to the totality of the circumstances" as informed by the five factors set forth by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382, 34 L.Ed.2d 401 1972). These factors include the opportunity ofthe witness to view the criminal at the time of the crime,the witness's degree ofattention,the accuracy ofthe witness's prior description ofthe 

### criminal, the level ofcertainty demonstrated by the witness atthe confrontation, and the length oftime between the crime and the confrontation. Irl. 10

### array, including the photograph ofthe defendant. A review ofthe lineup reveals

that all of the individuals pictured appear to be white males with the same or similar hair color, the background of each picture looks to be similar, and no 

### individual appears to be wearing an item of clothing that would draw undue attention to that person. 

### Based on the totality of the characteristics of the 

### individuals in the photographic lineup, we agree with the trial courtthatthe lineup

was not suggestive.' Thus, we find no abuse of discretion in the admission ofthe identification in this case. Assignment oferror number two is without merit. PATENT SENTENCING ERROR Pursuant to Louisiana Code of Criminal Procedure article 920, this court 

### routinely conducts a review for error discoverable by mere inspection of the pleadings and proceedings and without inspection ofthe evidence. After a careful 

### review ofthe record, we have found a sentencing error. La. Code Crim. P. art. 920(2). Louisiana Revised Statute 14:95. 1( B) mandates imposition ofa fine ofnot less than $ 1, 000, nor more than $5, 000. The defendant' s sentence on count three does not include a fine. 

### As the sentence imposed on count three does not comply with Section 14:95. 1( B), 

### it is illegally lenient. 10 However, since the error is not 

### inherently prejudicial to the defendant, and neitherthe State northe defendant has objected to or raised this sentencing issue on appeal, we decline to remand for the imposition of a fine. 

### See State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06),

9 Moreover, there was no substantial likelihood of misidentification in this case. Allen had a 

### significant opportunitytoviewthe perpetrator,as he closelyapproached him and then rode in the same vehicle with him until Allenjumped out ofthe car. Allen had a high degree ofattention in 

### this case as, although he was notveryfamiliarwiththe area, he was able to describe tothe police the number of gunshots fired and the location at which they were fired. He identified the defendant quickly, in less than twenty seconds, in the lineup two days after the incident and testified as to the identification with certainty. Considering the five factors of Neil v. Biggers and Manson v-. Brathwaite,we find that Allen's identification ofthe defendant was reliable. 

### 10 We also notethatwhen imposing the sentence on countthree, thetrial courtdid notstate that the sentence would be served without the benefit ofparole, as statutorily required. See La. R.S. 14:95. 1($). Nonetheless, as La. R.S. 15: 301. 1( A) provides, any applicable " without benefits" provision is self -

activating. See State v. Williams, 2000- 1725 ( La. 11128101), 800 So.2d 790, 799. 11952 So.2d 112, 124-25 ( en banc), writ denied, 2007-0130 (La. 2122108), 976 So.2d

1277. CONVICTIONS AND SENTENCES AFFIRMED.

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