Opinion
NO. 2013 KA 0279
11-01-2013
STATE OF LOUISIANA v. LEROY THOMAS, III
Ricky L. Babin District Attorney Donald D. Candell Assistant District Attorney Gonzales, Louisiana Counsel for Appellee State of Louisiana John A. Gutierrez Prairieville, Louisiana Counsel for Defendant/Appellant Leroy Thomas, III
NOT DESIGNATED FOR PUBLICATION
Appealed from the
23rd Judicial District Court
In and for the Parish of Ascension
State of Louisiana
Case No. 28,512
The Honorable Thomas J. Kliebert, Jr., Judge Presiding
Ricky L. Babin
District Attorney
Donald D. Candell
Assistant District Attorney
Gonzales, Louisiana
Counsel for Appellee
State of Louisiana
John A. Gutierrez
Prairieville, Louisiana
Counsel for Defendant/Appellant
Leroy Thomas, III
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
THERIOT, J.
The defendant, Leroy Thomas, III, was charged by amended bill of information with two counts of second degree cruelty to juveniles (count I concerning T.T. and count II concerning L.T.), violations of La. R.S. 14:93.2.3, and pled not guilty on both counts. Following a jury trial, on count I, Thomas was found guilty as charged; and on count II, Thomas was found not guilty. Thomas was sentenced to twenty-five years at hard labor. He now appeals, contending the trial court erred in: (1) allowing the State to elicit the testimony of expert witnesses that was based on insufficient data; (2) allowing the State to elicit the testimony of expert witnesses that was the product of unreliable principles and methods; (3) allowing the State to elicit testimony of expert witnesses that disclosed inadmissible facts and data to the jury without the court determining that their probative value outweighed their prejudicial effect; (4) failing to give the jury specific instructions as to the limited purpose of other crimes evidence; (5) allowing the State to use propensity evidence; (6) allowing the State to introduce other crimes evidence without a Prieur notice and hearing; (7) allowing the State to introduce evidence as to the defendant's character; and (8) imposing a sentence that is grossly out of proportion to the severity of the crime, thereby imposing an excessive sentence. For the following reasons, we affirm the conviction and sentence on count I.
The minor children are referenced herein only by their initials. See La. R.S. 46:1844(W).
State v. Prieur, 277 So.2d 126, 130 (La. 1973).
FACTS
Latisha Walker and the defendant, her live-in boyfriend, had three children at the time of the incident - a three-year-old boy and three-and-a-half-month-old twin girls, L.T. and T.T. On April 3, 2011, at approximately 1:00 p.m., Walker left the defendant with the children and went to pick up a friend from work. When Walker left, the victim was not injured and had no marks on her face. Approximately fifteen to twenty minutes later, however, the defendant telephoned Walker and told her to come home because something was wrong with the victim. Walker arrived home approximately five minutes later. The defendant was sitting on the sofa, holding the victim, who was not breathing and was unresponsive. He told Walker he had tried to give the victim a bottle, and "she was crying and she had spit up, and she just wasn't moving." Walker told the defendant to call 911. The defendant did not claim he had dropped the victim until he and Walker were at the hospital. Walker denied hurting her children on or before the day of the incident.
Ascension Parish Sheriff's Office Deputy Shakema Leblanc advised the defendant of his Miranda rights and spoke to him after the victim was taken to the hospital. The defendant claimed he left the children in the living room alone after Walker left, and was in another room when he heard one of them crying. He went in the living room, noticed the victim was crying, gave her a bottle, and left again. He claimed he returned approximately five minutes later when she cried again and picked her up and left her alone in a room. He indicated when he left the victim she was still a little whiny and crying. He stated he subsequently went to check on her, and found her "flimsy" and not moving. He claimed he "didn't do anything to his baby."
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Deputy Leblanc told the defendant that his account of the incident did not "go to what was going on with [the victim] at the time," and asked him if he could remember anything else taking place. The defendant stated "it was a mistake," and he "didn't mean to hurt his baby." He claimed after he picked up the victim, she began "squirming," fell out of his arms, and "hit the vent." He indicated the victim had been injured by striking an air conditioning vent in the floor. He stated she was "flimsy" when he picked her up, and her limbs were "just dropping." He claimed he took her to the bedroom and began hitting her in the face "to try and wake her up." He indicated he called Walker when the victim did not respond.
Subsequently, in a third version of the incident, the defendant claimed after the victim did not respond to being slapped, he "picked her up under her arms using both hands and ... started shaking her trying to wake her up."
Dr. Christina Zeretske was accepted by the trial court as an expert in pediatric emergency medicine. She treated the victim on April 3, 2011. The victim displayed seizure-like activity and decerebrate posturing (arm extended or toes pointed) upon arrival. Decerebrate posturing was indicative of severe head trauma. The victim also had a bulging anterior fontanel (the soft spot on a baby's head) and her pupils were unreactive. A bulging anterior fontanel was indicative of increased pressure, and unreactive pupils were indicative of head trauma. The victim also had "finger[-]like abrasions" on her right temporal region and a larger abrasion and contusion on her left temporal region. The defendant gave his first account of the incident to Dr. Zeretske. She determined that account was inconsistent with the "very severe" injuries of the victim.
Dr. Zeretske testified, without objection, that a CT scan of the victim's chest showed a lower lobe contusion, healing left 5th,6th, and 7th rib fractures, as well as a new rib fracture to the right 5th rib. The lobe contusion was a pulmonary contusion or bruise to the lung. The healing fractures were old fractures.
Dr. Zeretske also testified, without objection, that a CT scan of the victim's head showed chronic subdural effusions, as well as fresh blood at the tentorium along the midline falx, and a left-sided parietal skull fracture. The chronic subdural effusions were "old blood."
Additionally, Dr. Zeretske testified, without objection, that within medical reasonable certainty, the injuries suffered by the victim, i.e., old fractures of the ribs, new fractures of the ribs, old brain bleeding, new brain bleeding, and skull fracture were inconsistent with a classic fall from midlevel height, but were consistent with abuse.
On cross-examination, Dr. Zeretske testified that although the new fresh-blood injury to the victim could have resulted when she hit the air conditioner vent, "it would be hard to explain with one injury old healing fractures in addition to new fractures." Dr. Zeretske also indicated rib fractures were highly-indicative of non-accidental trauma. She stated that until a child is at the developmental stage of crawling, these kinds of patterned injuries are unlikely to occur.
Dr. Catherine Elkins was accepted by the trial court as an expert in the field of pediatrics. She was the victim's primary care physician. Prior to the incident, the victim was hospitalized on two occasions. The first occasion was for bronchitis, and the second was for "[f]ailure to thrive and vomiting." The victim had no neurological problems prior to the incident.
Dr. Brandon St. Amant was accepted by the trial court as an expert in the field of radiology. He examined the CT scan of the victim's chest taken a few hours after the incident. He testified, without objection, that the 5th, 6th, and 7th ribs on the left side were fractured and were in a healing phase so the fractures were likely several weeks old. He also indicated there was a fracture of the 5 rib on the right side. He stated it was difficult to tell how old that fracture was, but it was "definitely not acute" and "was likely weeks old but not quite as old as the others." All of the fractures were posterior rib fractures. Dr. St. Amant indicated the front and sides of the ribs "more easily break," and posterior rib fractures were more indicative of an "unusual type of trauma."
Dr. St. Amant also examined the CT scan of the victim's head taken a few hours after the incident. He testified, without objection, that the victim had a skull fracture of the left parietal bone that extended into the back of the head. She also had suffered bleeding around the brain between the skull and the brain "that was at various phases of blood breakdown." The new bleeding in the brain was less than seven days old.
Additionally, Dr. St. Amant was asked, without objection, if his findings were consistent with non-accidental trauma. He replied his findings were entirely consistent with non-accidental trauma. He defined "non-accidental trauma" as a type of traumatic event that is not accidental and as another term for abuse. He described his findings as "classic textbook findings of child abuse" and went on to state that "when you see injuries that are in various stages of healing, acute injuries mixed with old injuries in a three month old child, it's almost diagnostic."
Dr. St. Amant testified that in cases involving a patient of the victim's age, with the type of bleeding suffered by the victim, in the absence of a bleeding disorder, 99.9% of the time the cause is trauma. He stated that by "trauma" he meant, "[a] large amount of force." He went on to say that the type of bleeding in the brain the victim suffered is commonly seen with cases of violent shaking because the brain moves side to side and bounces against the dural surfaces (the covering of the brain between the bone and the brain surface). Dr. St. Amant had never seen another three-month-old with the type of injuries suffered by the victim whose injuries were not due to abuse.
Dr. Lalania Schexnayder was accepted by the trial court as an expert in the field of pediatric neurology. She examined the victim on April 14, 2011. The victim was in a persistent vegetative state. Her eyes were open, but she was unresponsive. She had little or no cerebral activity, which indicated "a severe disturbance in brain function." Dr. Schexnayder said the following about the victim's prognosis:
I think that in general in a child or adult who has an EEG that looks the way hers looked the likelihood of meaningful neurologic recovery is poor. The likelihood of sustaining long-lasting severe neurological dysfunction is extremely likely, almost certain, with an EEG such as that. And with imaging such as what we saw on her CT and MRJ it was clear that she had severe irreversible brain damage.
Dr. Schexnayder was asked, without objection, if "old injuries" were considered in determining whether a child had been abused. She replied:
Yes, because it's very unlikely that someone would have multiple episodes of severe injury at different times from accidental causes. In general that's very concerning for a pattern of repeated injury. Repeated injury to us in pediatrics, especially repeated injury of this severity, is really suspicious for abuse.
Dr. Schexnayder testified the victim's injuries were inconsistent with her being dropped. She added:
In general, dropping an infant does not result in serious injury. Although it may cause a contusion or a hemorrhage, it would not cause this pattern of diffuse subdural effusions. It would not cause rib fractures. These types of injuries would be more consistent with either shaking a baby or repeatedly hitting the head against some fixed surface such as the floor or piece of furniture. It's also very difficult to break an infant's ribs by dropping them. That would be more consistent with a forceful blow to the ribs either with a fist or with hitting the ribs against some fixed object.
Dr. Matei Stefan Petrescu testified as an expert in the field of pediatric critical care. Dr. Petrescu examined the victim on April 3, 2011. He testified that the victim was close to a 3 on the Glasgow Coma Scale, which assesses the level of eye response, verbal response, and motor response on a scale from 3 to 15. The victim's left pupil was dilated and unresponsive to light, and her "soft spot" was bulging, indicating pressure within her skull.
Dr. Petrescu testified, without objection, that the initial CT scan of the victim showed a skull fracture on the left side and old or chronic fluid accumulation outside the brain within the skull and the brain itself, as well as new or acute blood. He also indicated the victim had "healing" fractures on her back at the 5th, 6th, and 7th left ribs and a fracture to one of her right ribs of an "undetermined age." Dr. Petrescu stated that posterior rib fractures were "typically associated with shaking," and the location of the victim's rib fractures were "highly suggestive of abuse because during shaking that's exactly where you have to hold the baby."
Dr. Petrescu was asked, without objection, if he was able to make a determination of what had caused the victim's injuries. He replied:
Yes. We tried to rule out any other cause that could explain all the findings. Skull fractures can occur at this age with falls; however, we had a skull fracture, we had extensive bruising in the brain, we have the rib fractures, and then we called an eye doctor and the eye doctor showed that there was a lot of hemorrhages in the back of the eye, retinal hemorrhages that were so extensive that in his note he said that the finding in the eye is suggestive of non-accidental trauma. So we could not find any mechanism to account for all the findings, the fractures, the rib, the skull fracture, the brain contusion and the eye hemorrhages.
Dr. Petrescu stated that there was no type of reflux or disease that led to excessive vomiting that could have caused the victim's injuries. Although a skull fracture could result from a baby being dropped, and a brain contusion could result if the baby was dropped from a height greater than 3 feet, Dr. Petrescu had no explanation for the multiple rib fractures suffered by the victim, and added that one fall would not explain the extent of retinal hemorrhages suffered by the victim.
The defendant also testified at trial. He was 6'2" tall and weighed between 290 and 300 lbs. He testified that on the day of the incident, he heard the victim crying in another room after her mother left, and tried to give her a bottle. He claimed when he returned to the living room, the victim cried again and he thought his son was "messing" with her, so he made his son go to his room. The defendant stated he picked up the victim, her bottle, and a blanket and walked to the bedroom. He claimed the victim "threw her body back," slipped out of his hands, and hit her head on the A/C vent, which was right under him. He stated that when he picked her up, her body was "very limp," and he panicked and rushed her to the bedroom. He claimed he slapped the victim in the face "a couple of times" "not in a way to hurt her." Additionally, he stated he shook the victim to try to revive her. He indicated he may have hit or shaken the victim too hard because he was panicking. He had "no idea" how the victim sustained "old bleed" injuries and old rib fractures.
IMPROPER TESTIMONY
In assignment of error number 1, the defendant argues the trial court erred in allowing the State to elicit the testimony of expert witnesses which was based on insufficient data because they failed to perform tests to confirm or deny whether the injuries to the victim were the result of something other than child abuse. In assignment of error number 2, the defendant contends the trial court erred in allowing the State to elicit the testimony of expert witnesses which was the product of unreliable principles and methods. He relies on his arguments concerning assignment of error number 1 in support of this assignment of error. In assignment of error number 3, the defendant contends that the trial court erred in allowing the State to elicit testimony of expert witnesses as to "old injuries," without the court determining that their probative value outweighed their prejudicial effect. He also argues the testimony as to "old injuries" should have been excluded as inadmissible other crimes evidence and, without this evidence, the evidence was insufficient to support the conviction.
Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. Code Evid. art. 401. All relevant evidence is admissible, except as otherwise provided by positive law. Evidence which is not relevant is not admissible. La. Code Evid. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. La. Code Evid. art. 403.
It is well settled that courts may not admit evidence of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. La. Code Evid. art. 404(B)(1). Evidence of other crimes, wrongs, or acts committed by the defendant is generally inadmissible because of the substantial risk of grave prejudice to the defendant. State v. Rose, 2006-0402, p. 12 (La. 2/22/07), 949 So.2d 1236, 1243. However, the State may introduce evidence of other crimes, wrongs, or acts if it establishes an independent and relevant reason such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. La. Code Evid. art. 404(B)(1). Upon request by the accused, the State must provide the defendant with notice and a hearing before trial if it intends to offer such evidence. Even when the other crimes evidence is offered for a purpose allowed under Article 404(B)(1), the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defendant's defense. The State also bears the burden of proving that the defendant committed the other crimes, wrongs or acts. Rose at p. 13, 949 So.2d at 1244.
Any inculpatory evidence is prejudicial to a defendant, especially when it is probative to a high degree. State v. Germain, 433 So.2d 110, 118 (La. 1983). As used in the balancing test, "prejudicial" limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. Id; see also Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997) ("The term 'unfair prejudice,' as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged;"). Rose at p. 13, 949 So.2datl244.
La. Code Evid. art. 404(B)(1) also authorizes the admission of evidence of other crimes, wrongs, or acts when the evidence "relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding." In State v. Brewington, 601 So.2d 656, 657 (La. 1992) (per curiam), the Louisiana Supreme Court indicated its approval of the admission of other crimes evidence under this portion of La. Code Evid. art. 404(B)(1), "when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it."
In a criminal case, every expert witness must state the facts upon which his opinion is based, provided, however, that with respect to evidence which would otherwise be inadmissible, such basis shall only be elicited on cross-examination. La. Code Evid. art. 705(B).
A physician testifying as an expert may properly give an opinion as to the probable manner in which a wound or other traumatic injury was inflicted where such testimony is based on facts within the expert's knowledge. State v. Hicks, 607 So.2d 937, 946 (La. App. 2 Cir. 1992).
The defendant's challenges to the testimony of the expert witnesses at trial, including the testimony concerning "old injuries," were not preserved for appeal. It is well settled that defense counsel must state the basis for an objection when it is made, pointing out the specific error to the trial court. The grounds for objection must be sufficiently brought to the court's attention to allow it the opportunity to make the proper ruling and prevent or cure any error. See La. Code Evid. art. 103(A)(1); La. Code Crim. P. art. 841. See State v. Trahan, 93-1116 (La. App. 1 Cir. 5/20/94), 637 So.2d 694, 704.
Moreover, the testimony concerning "old injuries" was admissible under La. Code Evid. art. 404(B)(1) as evidence that related to conduct that constituted an integral part of the act or transaction that was the subject of the present proceeding. The testimony was related and intertwined with the charged offense to such an extent that the State could not have accurately presented its case without reference to it. The defendant claimed the injuries suffered by the victim occurred when he accidentally dropped her on an air conditioning vent on the day of the incident. The evidence concerning "old injuries' suffered by the victim was used to establish that the injuries were the product of abuse, rather than accident. Further, the prejudicial effect to the defendant from the challenged evidence did not rise to the level of undue or unfair prejudice when balanced against the probative value of the evidence. The "old injuries" suffered by the victim were highly probative of the defendant's motive, intent, and the absence of accident concerning the injuries suffered by the victim on the day of the incident. Prejudice to the defendant from the testimony was mitigated by cross-examination.
Having found the testimony as to "old injuries" properly admitted, we pretermit consideration of whether or not the evidence was sufficient to support the conviction without this testimony.
These assignments of error are without merit.
DENIAL OF SPECIAL JURY CHARGE
In assignment of error number 4, the defendant argues the trial court failed in its duty under La. Code Evid. art. 105 "to restrict the evidence to its proper scope and instruct the jury accordingly." In assignment of error number 5, the defendant argues the trial court erred in allowing the State to use propensity evidence. He relies on his arguments concerning assignments of error numbers 3 and 4 in support of assignment of error number 5.
La. Code Evid. art. 105, provides:
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Failure to restrict the evidence and instruct the jury shall not constitute error absent a request to do so. (Emphasis added.)
This issue was not preserved for appeal. The record indicates the defendant made no request for a limiting instruction in this matter or a special jury charge. See also La. Code Crim. P. art. 807 ("The state and the defendant shall have the right before argument to submit to the court special written charges for the jury." (Emphasis added.))
These assignments of error are without merit.
PRIEUR NOTICE AND HEARING
In assignment of error number 6, the defendant argues the trial court erred in allowing the State to introduce "other crimes" evidence, i.e., the prior injuries to the victim, without a Prieur notice and hearing.
The procedure to be used when the State intends to offer evidence of other criminal offenses used to be controlled by State v. Prieur, 277 So.2d 126, 130 (La. 1973). Prior to its repeal by 1995 La. Acts, No. 1300, § 2, La. Code Evid. art. 1103 provided that the notice requirements and clear and convincing evidence standard of Prieur and its progeny were not overruled by the Code of Evidence. Under Prieur, the State was required to give a defendant notice, both that evidence of other crimes would be offered against him, and of which exception to the general exclusionary rule the State intended to rely upon. Additionally, the State had to prove by clear and convincing evidence that the defendant committed the other crimes. State v. Millien, 2002-1006, p. 10 (La. App. 1 Cir. 2/14/03), 845 So.2d 506, 514.
Louisiana Code of Evidence art. 1104 provides that the burden of proof in pretrial Prieur hearings, "shall be identical to the burden of proof required by Federal Rules of Evidence Article IV, Rule 404."
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As noted in our discussion of assignments of error numbers 1, 2, and 3, the testimony concerning the prior injuries of the victim was admissible under La. Code Evid. art. 404(B)(1) as evidence that related to conduct that constituted an integral part of the act or transaction that was the subject of the present proceeding. The procedural requirements of Prieur are not applicable to evidence of offenses admissible under La. Code Evid. art. 404(B)(1) as an integral part of the charged offense. See La. Code Crim. P. art. 720; State v. Nedd, 93-1906, pp. 4-5 (La. App. 1 Cir. 11/10/94), 647 So.2d 346, 349.
This assignment of error is without merit.
CHARACTER EVIDENCE
In assignment of error number 7, the defendant argues the trial court erred in allowing the State to introduce evidence as to the defendant's character by asking Latisha Walker if the defendant was violent, if he had a "temper" with her, and if she had ever witnessed him being agitated with the children.
A review of the transcript reveals that the State did not ask Walker if the defendant was violent or if he had a temper. The State did ask her, without objection, what the defendant would do when he became angry. Walker testified, without objection, that when the defendant had become angry prior to the incident, he had "hit the wall." The defense, rather than the State, questioned Walker concerning whether she had seen the defendant being aggravated or inpatient with the children, and she answered negatively.
The defendant's challenge to Walker's testimony was not preserved for appeal. It is well settled that defense counsel must state the basis for an objection when it is made, pointing out the specific error to the trial court. The grounds for objection must be sufficiently brought to the court's attention to allow it the opportunity to make the proper ruling and prevent or cure any error. See La. Code Evid. art. 103(A)(1); La. Code Crim. P. art. 841. See Trahan, 637 So.2d at 704.
This assignment of error is without merit.
EXCESSIVE SENTENCE
In assignment of error number 8, the defendant argues the trial court erred in imposing the maximum sentence, which was constitutionally excessive, because he was "26 years old at the time of the commission of the crime, led a crime-free life[,] and the offenses entailed no physical violence." He also argues the trial court failed to articulate any similar cases considered in determining the sentence.
Article I, Section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Hurst, 99-2868, pp. 10-11 (La. App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962.
Initially, we note the defendant did not receive the maximum sentence. Whoever commits the crime of second degree cruelty to juveniles shall be imprisoned at hard labor for not more than forty years. La. R.S. 14:93.2.3(C). The defendant was sentenced to twenty-five years at hard labor.
We also note the record provides no support for the defendant's claim that the offense against the victim "entailed no physical violence." To the contrary, the injuries suffered by the victim indicate physical violence was used against her.
In any event, the sentence imposed was not grossly disproportionate to the severity of the offense, and thus, was not unconstitutionally excessive. In sentencing the defendant, the trial court noted the defendant was twenty-seven years old, had no prior criminal history, and had led a law-abiding life for a substantial period of time before the instant offense. The court also noted, however, that there was an undue risk that during the period of a suspended sentence or probation, the defendant would commit another crime; that the defendant was in need of correctional treatment or a custodial environment that could be provided most effectively by his commitment to an institution; that a lesser sentence would deprecate the seriousness of the offense; that the defendant's conduct during the commission of the offense manifested deliberate cruelty to the victim; that the defendant knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to extreme youth; and that the offense resulted in a significant permanent injury to the victim, i.e., irreparable neurological and medical disabilities, and a significant loss to her family. The court "particularly noted" the severity of the intentional or criminally-negligent mistreatment or neglect of the victim by the defendant. See La. Code Crim. P. art. 894.1(A)(1), (A)(2), (A)(3), (B)(1), (B)(2) & (B)(9).
We also reject the defendant's argument that the trial court erred in failing to articulate any similar cases considered in determining the sentence. There is little value in making sentencing comparisons. 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, 3 (La. App. 1 Cir. 1991).
This assignment of error is without merit.
DECREE
Defendant's conviction and sentence on count I are affirmed.