DREW, J.
Lynette Gail Blow was found guilty of two counts of solicitation for murder. La. R.S. 14:28.1. Ordered to serve 15 years at hard labor concurrently on each count, she filed a timely motion to reconsider sentence, which was denied.
She appeals. We affirm in all respects.
Shortly after midnight on June 14, 2008, a Shreveport 9-1-1 operator received a frantic call from an hysterical woman claiming someone was in her home. Initially, the operator had difficulty understanding the caller, but eventually she was able to determine that the caller was in Greenwood, Louisiana, at a home on Waterford Drive. The call was transferred to the Greenwood Police Department, whose officers quickly responded to the scene.
One officer made contact with Michael Blow, a bloodied man sitting on a sofa inside the home. The other officer went to the back of the home searching for the 9-1-1 caller, where he made contact with Lynette Blow, defendant, as she was standing in a rear bedroom, screaming, "They might still be in the house." The officer was able to get the defendant's attention and assist her in climbing out of the bedroom window. Meanwhile, the other officer was able to get Mr. Blow to unlock the front door. Mr. Blow was transported to LSU Hospital, where he was treated for shotgun wounds to his hip and back area.
Nothing had been taken, and the ransacked parts of the home appeared to have been staged. The victim had been telling others that he believed his wife would attempt to kill him. The detectives subsequently found two men who testified that Mrs. Blow asked them to kill her husband or arrange the contract killing of him.
The defendant had an extramarital affair with Edward Glover in 2004 when she asked him if he or someone he knew would kill her husband for $10,000. Glover responded in the negative, and the defendant broke off contact with him.
In 2007, she made the exact same monetary proposal to a former coworker, when she asked him to find someone to kill Mr. Blow.
The defendant argues that the state presented insufficient evidence to validly convict her of the offenses, as there was testimony from only one fact witness in connection with each crime. We disagree. The evidence was overwhelming. Our law on review for sufficiency of the evidence is well settled.
1. Officer
He parked his vehicle and moved toward the home, taking cover behind a tree in the yard, at which time Officer Eaken arrived. Scheen directed Eaken toward the back of the house to look for the victim. Eaken made contact with the defendant, who gave her husband's name and a description of his clothing.
Once Scheen confirmed the person inside the home to be Mr. Blow, he yelled for the man to identify himself; he did so. Scheen told him the door was locked and he needed to get inside. Mr. Blow was quite bloody, but was able to crawl to the door and open it. Mr. Blow told Scheen that there had been two people in the home, but that he did not know if they were still present. Scheen radioed for a fire department EMT, and called for additional assistance at the scene. Scheen never spoke with the defendant that night, as she remained in the back with Eaken. Once sheriff's deputies arrived, Scheen turned the scene over to them.
2. Greenwood Police Department Officer
Eaken walked around the house, peering through the windows. He found an open gate and moved toward the back of the home searching for the caller. Noticing a dim light in a bedroom, Eaken shined his flashlight into the window and identified himself. The defendant was standing inside and was on the phone.
Eaken told the jury that he wore a video-audio recorder on the night he responded to the scene and the recording was preserved and turned over as evidence in the case. The recording was played for the jury.
The defendant's demeanor seemed unusual to Eaken, in that she seemed surprised that the victim was reported to be sitting on the couch. She would get very excited and hysterical and then become calm for a period. Eaken recalled that the defendant appeared to be crying at times, though he saw no tears. The defendant's cries, according to Eaken, were contrived. He helped her out through a window.
Eaken acknowledged the fact that the defendant asked "quite a few" times about the victim's condition. As Eaken's video recording was played for the jury again, Eaken stated he did hear the defendant say "thank God" in response to being informed that the victim was sitting on the couch after the shooting. The defendant also responded "good, good" after being told that the victim was conscious and
3. Sergeant
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5. Sergeant
One photo depicted a broken window, about which Baird concluded that, to have been a point of entry, it would have had to have been opened. Even though some panes had been broken from the outside, cobwebs and debris found on the inside and outside of the window convinced him that it had not been opened, a necessary predicate for a person to have entered in this way on the evening in question.
Baird photographed a cordless telephone on the bed in a bedroom. The last number dialed was 9-1-1, and the line was still open. The officer found undisturbed laptop computers, video game equipment, and stereo equipment, though the master bedroom had been ransacked. He photographed shotgun blast damage to a wall; he agreed that a shotgun is not a typical weapon for a home invasion or robbery. He prepared several diagrams of the crime scene. Baird agreed that it was possible the white powdery substance found on the defendant's pants could have been deposited there as a result of damage to the Sheetrock, and that she could have been standing in front of the shotgun blast, though he discounted the possibility that any alleged burning on defendant's leg could have been caused by any contact with the shotgun.
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7.
She said that the entire incident lasted 15 minutes or less. She did not hear any noises like breaking glass or voices. After the car fled, lights were turned on in the house, and a few minutes later, police and paramedics started to arrive. She admitted that she had been drifting off to sleep when she saw the lights in her window and could not be certain of the exact time frame of events.
8. Corporal
Thomas photographed and collected a black purse and wallet from the backyard of the house. The contents of the purse included the defendant's driver's license, gift card, and other miscellaneous pieces of paper, but no currency.
9.
Prior to meeting the defendant, Mr. Blow and a friend purchased a laundry business. The partner later sold the business to Mr. Blow, and the enterprise has grown through the years to add cleaners and several drop-off locations.
Mr. Blow testified that:
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On one occasion, she told Glover that if she could get rid of her husband she could have it all. She said she would pay someone to handle it. He did not believe the defendant was serious, and he was not sure that the defendant had a husband because he had not seen any pictures or anything in the house that would indicate she was married. Glover did mention the incident to his cousin, Carlos Johnson, who was also Spencer Combs' brother-in-law. Glover testified his last meeting with the defendant occurred in Cargill Park, which was near the apartment complex where Glover worked. She told him that they would have to stop seeing each other because he could not do anything for her. He could not pin down the date of her offer, other than 2003 or 2004, and he never referred her to others.
13.
A few days later, Ms. White noticed that Mrs. Blow had lost some weight. As they hugged, they both began to cry.
Ms. White stated she was not aware of any marital problems between the Blows, and she believed Mrs. Blow would have shared that information with her if there had been. She had never told Ms. White anything about wanting to hurt Mr. Blow, and she was a good friend and a good person.
14.
There were no threats of violence during his divorce, and he had not spoken with defendant for five years, and he did not have any reason to lie for her in court.
Phelps had never heard that the defendant was interested in hiring someone to kill Mr. Blow. Though he did know Wayne McKinney, he denied ever having a conversation with him about the defendant's attempt to find someone to hurt Mr. Blow. He never considered defendant to be a violent person who would go to the extent of causing physical harm or causing someone's death.
15.
She always admired the Blows as a couple and as grandparents and extended family to her children. Mr. Blow always cared for the defendant and the family.
She knew that the Blows had a flawed, yet happy, relationship.
16.
Never had he seen the two physically fight during their marriage, nor had he heard the defendant threaten Mr. Blow. He saw nothing in the Blows' relationship that would have indicated they were planning to divorce.
17.
Lee had no indication that the Blows were thinking about divorcing, and he thought he would have known. After the shooting, Lee thought the defendant appeared disturbed, shaken up and mentally confused. She lost weight during Mr. Blow's convalescence, and for several weeks did not appear to be herself. She had never told him that she wanted to hurt Mr. Blow or have someone hurt him.
18.
When they arrived home, Ashley could see police lights, fire trucks, and an ambulance near the house, which greatly upset her. When Ashley saw her mother at the
Her mother spent much time at the hospital, sleeping very little, not eating much and losing weight the week following the shooting.
Ashley recalled a brief split-up in 2003 or 2004, but she never saw any change in the Blows' relationship in the months before the shooting. She believed her mother would have told her if she had planned to leave Mr. Blow. She never heard her mother talk about wanting to hurt Mr. Blow in any way.
19.
Mrs. Ary knew of no marital problems between the Blows, and she believed Mrs. Blow would have discussed with her any plans to leave Mr. Blow. Mrs. Blow never told her about wanting to hurt Mr. Blow or wanting to have someone hurt him. Mrs. Ary admitted not knowing of the defendant's extramarital affairs but she did not believe the affairs would indicate a divorce was imminent.
The charges were proven. The testimonies of Edwin Glover and Wayne McKinney were apparently believed, and were sufficient to support the convictions.
McKinney testified Mrs. Blow told him she had big problems and needed assistance. According to McKinney, Mrs. Blow stated that she needed to find someone to kill her husband. Mrs. Blow indicated she would pay $5,000 in advance and $5,000 once the murder was completed. The jury accepted McKinney's testimony as truthful. His testimony presented no internal contradiction or irreconcilable conflict with physical evidence; thus that testimony, if believed by the trier of fact, was sufficient support for the requisite factual conclusion that Mrs. Blow was guilty of the charged offense.
Similarly, the testimony of Glover was sufficient to establish the essential elements of the second count of the bill of information. He testified that he began a two-month sexual affair with Mrs. Blow in 2004. For $10,000, she told him that she wanted her husband dead, stressing that she did not like living on an allowance.
Mrs. Blow argues on appeal, for the first time, that the state failed to prove Count One, that she solicited Wayne McKinney to commit first or second degree murder of her husband. Her somewhat specious position now is that there was no evidence that anyone asked him to kill her husband, only to find someone to kill him. The defendant supports this claim by pointing out the difference in the language of each count, in that Count Two charges that she did solicit Edward Dewayne Glover to commit
Had McKinney complied with her request, they both would have faced first degree murder. Requesting this result satisfies the elements of La. R.S. 14:28.1.
We can discern no appreciable legal difference in asking a person to kill her
While the defendant's witnesses testified that she appeared to be in shock for days following the shooting, the video of her statements was contrary to these assertions. She was calm and responded appropriately to questioning by the police. She appeared to be very calculated in her responses, showing little reaction when accused of being involved in her husband's shooting.
The defendant argues that testimony and evidence demonstrating other crimes or prior bad acts was erroneously admitted by the trial judge, and because it cannot be determined that the verdicts were not attributable to the erroneously admitted evidence, the defendant is entitled to a new trial. She argues that the evidence of the food stamp fraud case was not relevant, admissible, or probative because it was not evidence of a similar but disconnected crime relative to the solicitation for murder.
The state responds that the other crimes evidence was properly admitted as it established the defendant's greedy motivation for the charged crimes and lack of affection for her husband.
The state suggests that if this court finds that the other crimes evidence was erroneously admitted, the error would be subject to the harmless error review. Under this review, the state contends the testimony of witnesses Glover and McKinney was sufficient to convict the defendant of the charged offenses.
The defendant argues that a general motive of greed and lack of affection is insufficient to support the admission of 404 B evidence. Additionally, she argues that the state failed to show, in brief or at trial, how evidence of the food stamp fraud could be evidence of her lack of affection for her husband or her intent and willingness to have him murdered.
Our law on the admissibility of other crimes is well settled.
At the hearing, the state argued that it needed to present the 404 B evidence to prove the element of specific intent relative to the 2004 and 2007 solicitations. The defendant's involvement in and orchestration of the 2008 shooting would show that the defendant was serious about the earlier events. The state further argued that the events would show a continuous narrative of the investigation as the charged offenses were discovered only as a result of the investigation of the 2008 event, which is an integral part of the state's case.
The learned trial judge specifically questioned the state's submission that related to the defendant's extramarital affairs. In response, the state argued that the evidence went directly to both the motive, in
The defendant responded that any evidence of affairs committed in 2008 would not go to proving that she committed the crimes but simply to show she was a bad person, which was not the intent of 404 B evidence. The defendant argued that there was no evidence to connect her to the 2008 shooting and the state was only attempting to "coattail" the shooting with the 2004 and 2007 events to bolster its case. She also noted that evidence of fights over finances would establish only that she was a bad person.
The trial court ruled that all of the 404 B evidence was admissible, being relevant to the basic inquiry of the court, and because its probative was not outweighed by its prejudicial effect.
The state showed by clear and convincing evidence that she committed the proffered acts, including her involvement in the 2008 shooting. With one exception, the state also demonstrated that the acts committed by the defendant furthered her chilling motive to be free from her marriage by having someone kill her husband. Also, with one exception, this evidence was relevant, probative, necessary to prove the case, and clearly not outweighed by its prejudicial effect.
The exception to this finding is the relatively minor food stamp issue, which could show little, if anything, about her marital relationship. It bespoke only her general greedy nature. In hindsight, the food stamp evidence was admitted in error, but we find that the verdict was unattributable to this error.
The defendant argues that because the evidence adduced at trial was insufficient to convict her of the charged offenses, the sentences imposed are excessive. She submits the sentences should be reduced to two five-year concurrent sentences, and that at least a portion of the sentences should be suspended. The sentences would be appropriate, according to the defendant, based on her lack of criminal history; her personal, social, and work history; her daughter's diagnosis with multiple sclerosis; her potential for rehabilitation and the "future positive contributions" to her family, neighborhood, associates, and the city; the seriousness of the offense in comparison with similar crimes; and the existence of reasonable doubt in the case as evidenced by the jury's nonunanimous verdict.
The state argues that the defendant's sentences are not excessive, but are appropriate here, because of defendant's "heinous, calculated, and degenerate conduct" towards her husband.
In a reply brief, the defendant contends the record establishes the fact that the district court failed to consider her personal history, her lack of prior criminal record, and the likelihood of her rehabilitation in determining the sentence. The defendant also argues that the state and the trial court relied too heavily on the 2008 shooting, which did not directly connect her to the incident, to justify the imposed sentence. The defendant indicates her sentences should be substantially lowered if this court does not acquit her or order a new trial.
Whoever commits the crime of solicitation for murder shall be imprisoned at hard labor for not less than five years nor more than twenty years. La. R.S. 14:28.1.
After the denial of her motion for new trial and motion for post verdict judgment of acquittal, the defendant waived delays, and a sentencing hearing was held, where she presented three witnesses.
She discussed her prior marriage as well as her work history before and during her marriage to the victim, acknowledging her pending food stamp fraud charge, but noting that she had no other felony charges. She denied asking anyone to kill or hurt her husband. She rarely talked to the witnesses who alleged she committed the crimes. The defendant stated, "I have never done anything to hurt Michael Blow or any other human. It's not in my nature. I'm a soft, gentle person. I wouldn't hurt anyone. I have never asked those men anything like that."
She denied having sexual relations with Glover at her place of business, further claiming that she was actually raped by him. She admitted sexual relationships with four other men and justified these actions by saying her husband neglected her. She testified that she had sex with each man only one time and any testimony to the contrary by them would have been a lie. Even though she said she had decided not to continue any of these illicit relationships, knowing they were mistakes, she was still engaging in the affairs two weeks before the shooting.
Mrs. Blow admitted mistakes, but said she never wanted to hurt the victim or any other person. She denied arguing with Mr. Blow regarding finances or any other issues, claiming instead that Mr. Blow lied during his testimony about that issue. She agreed that he had provided well for herself, her children, and her parents.
There is sufficient evidence in the record to determine that the factors of La. C. Cr. P. art. 894.1 were considered. The trial court noted that the presentence investigation (PSI) prepared in the case was being circulated between the parties. The PSI throughly reported Mrs. Blow's work history, familial relationships, and employment records. It included a statement from Michael Blow, regarding the impact of the crimes on his life as well as his feelings toward the defendant.
Prior to imposing sentence, the trial court noted the factual basis for imposing the sentence. The court indicated that the facts established at trial showed that the defendant, on two occasions, contacted male acquaintances about having her husband murdered. The trial judge also noted that he considered the other crimes evidence relative to the 2008 shooting, finding defendant's explanation incredible.
On the second prong of the excessiveness test, there is no showing that the defendant's sentence is excessive. She has failed to show that the sentences imposed by the trial judge are constitutionally excessive. Considering this record, these 15-year concurrent sentences are not out of proportion to the seriousness of the offenses. Mrs. Blow's exposure was up to 40 years at hard labor. Additionally, it cannot be said that these midrange sentences inflict purposeless and needless pain and suffering. See State v. Smith,
Mrs. Blow somehow conjures up a structural defect here, in that the jury reached a 10-2 verdict in less than two hours. She views this split verdict and its alacrity as reflecting less than ample consideration of the case. The quick verdicts could more likely be ascribed to the overwhelming nature of the evidence.
La. Const. Art. I, § 17, provides that a case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of 12 persons, 10 of whom must concur to render a verdict. Almost identically, La. C. Cr. P. art. 782 provides that cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of 12 jurors, 10 of whom must concur to render a verdict. Nonunanimous jury verdicts have consistently been upheld by the courts. Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); State v. Bertrand, 2008-2215 (La.3/17/09), 6 So.3d 738.
The verdicts and sentences meet all constitutional and statutory requirements.
The defendant's convictions and sentences are AFFIRMED.
The Jackson standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.
The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Speed, 43,786 (La.App.2d Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La. 11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 2007-2053 (La.3/7/08), 977 So.2d 896.
In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,-032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.
The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).
Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, and 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).
The Jackson standard neither permits a reviewing court to second guess the rational credibility determinations of the fact finder at trial, State ex rel. Graffagnino v. King, 436 So.2d 559 (La. 1983), nor requires a reviewing court to consider the rationality of the thought processes employed by a particular fact finder in reaching a verdict. State v. Marshall, 2004-3139 (La.11/29/06), 943 So.2d 362, cert. denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007).
Generally, evidence of other acts of misconduct is not admissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes him or her as a "bad person." La. C.E. art. 404 B(1); State v. Jackson, 625 So.2d 146 (La. 1993). This rule of exclusion stems from the "substantial risk of grave prejudice to the defendant" from the introduction of evidence regarding his unrelated criminal acts. State v. Prieur, 277 So.2d 126 (La. 1973). However, evidence of other crimes may be admissible if the state establishes an independent and relevant reason, i.e., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. art. 404 B(1); State v. Roberson, 40,809 (La. App.2d Cir.4/19/06), 929 So.2d 789. Even when the other crimes evidence is offered for a purpose allowed under Article 404, the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defense. The probative value of the extraneous crimes evidence must outweigh its prejudicial effect. La. C.E. art. 403; State v. Jacobs, 1999-0991 (La.5/15/01), 803 So.2d 933, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002); State v. Hatcher, 372 So.2d 1024, 1033 (La. 1979).
A trial court's ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996); State v. Caston, 43,565 (La.App.2d Cir.9/24/08), 996 So.2d 480; State v. Cooks, 36,613 (La.App.2d Cir. 12/4/02), 833 So.2d 1034.
For evidence of other crimes to be admissible, the state must: 1) prove with clear and convincing evidence that the other acts or crimes occurred and were committed by the defendant; 2) demonstrate that the other acts satisfy one of the requirements of La. C.E. art. 404 B(1), i.e., motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident; and 3) show that the probative value of the evidence outweighs its prejudicial effect. State v. Jackson, supra.
Evidence of other crimes, wrongs or acts may be introduced when it relates to conduct that forms an integral part of the act or transaction that is the subject of the present proceedings. La. C.E. art. 404 B(1); State v. Colomb, 98-2813 (La. 10/1/99), 747 So.2d 1074; State v. Coates, 27,287 (La.App.2d Cir.9/27/95), 661 So.2d 571, writ denied, 95-2613 (La.2/28/96), 668 So.2d 365.
The erroneous introduction of other crimes evidence is subject to harmless error review. State v. Roberson, supra; State v. Gatti, 39,833 (La.App.2d Cir. 10/13/05), 914 So.2d 74, writ denied, 2005-2394 (La.4/17/06), 926 So.2d 511; State v. Salter, 31,633 (La.App.2d Cir.2/24/99), 733 So.2d 58, writ denied, 1999-0990 (La.9/24/99), 747 So.2d 1114.
Second, a sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir. 1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La. App.2d Cir.4/2/97), 691 So.2d 864.
In selecting a proper sentence, a trial judge is not limited to considering only a defendant's prior convictions but may properly review all prior criminal activity. State v. Pamilton, 43,112 (La.App.2d Cir.3/19/08), 979 So.2d 648, writ denied, 2008-1381 (La.2/13/09), 999 So.2d 1145; State v. Boyte, 42,763 (La.App.2d Cir. 12/19/07), 973 So.2d 900, writ denied, 2008-0175 (La.6/20/08), 983 So.2d 1272. The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Doyle, 43,438 (La.App.2d Cir.8/13/08), 989 So.2d 864.
There is no proportionality guarantee in noncapital cases unless the reviewing court finds the sentence is grossly disproportionate to the circumstances of the offense. See Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), in which the Court ruled "the Eighth Amendment contains no proportionality guarantee." State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, fn. 2, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979.
