author: | .EDWARD A. DUFRESNE, JR, Chief Judge.

text:
    STATE of Louisiana v. Roland BRIGHT.
    No. 03-KA-489.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Gregory M. Kennedy, Thomas Block, Assistant District Attorneys, Gretna, LA, for Plaintiff-Appellee.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, for Defendant-Appellant.
    Roland Bright, In Proper Person, Ferri-day, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and SUSAN M. CHEHARDY.
   | .EDWARD A. DUFRESNE, JR, Chief Judge.

By this appeal, defendant, Roland Bright, challenges his conviction of possession of cocaine as well as his adjudication and sentence as a second felony offender. For the reasons set forth herein, we affirm defendants conviction and sentence.

This case arises from an incident that occurred on January 4, 2000, in Jefferson Parish. On that evening, Sergeant Freddie Yorsch of the Jefferson Parish Sheriffs Office Street Crimes Unit conducted a traffic stop of a vehicle in which defendant was a passenger. Specifically, from his position at the foot of the Huey Long Bridge, he observed a blue Jeep Cherokee that did not have a brake tag. In addition, he noticed that the driver of the vehicle was not wearing a seat belt. As Sergeant Yorsch pulled the vehicle over, Sergeant Ed Manix of the Jefferson Parish Sheriffs Office, arrived to render assistance.

During the course of the stop, the officers asked the three occupants of the vehicle to exit. After defendant got out of the rear seat of the jeep, he fled. Sergeant Manix pursued the defendant on foot and grabbed him by his leather jacket. As defendant fled, he reached into his jacket, pulled out an amber prescription bottle, and threw it to the ground. At this point, Sergeant Manix was able to subdue and handcuff defendant. The prescription bottle Lwas then retrieved and found to contain seventy off white colored rocks, which tested positive for cocaine. A pat-down search, conducted pursuant to defendants arrest, revealed that defendant was also in possession of $433 in cash.

As a result of this incident, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession with intent to distribute cocaine, LSA-R.S. 40:967(A). The matter proceeded to trial before a twelve person jury which found defendant guilty of the responsive verdict of possession of cocaine, LSA-R.S. 40:967(C). The trial judge sentenced defendant to imprisonment at hard labor for five years with credit for time served. The state thereafter filed a habitual offender bill, alleging that defendant was a second felony offender, LSA-R.S. 15:529.1. Following the denial of his motion to quash the multiple offender bill, defendant admitted to being a second felony offender. The trial judge accepted defendants admission, and then sentenced him to agreed upon sentence of seven and one-half years of imprisonment at hard labor without benefit of probation or suspension of sentence. Defendant now appeals. We will first address the issues raised in appellate counsels brief, and then the additional issues which were raised by defendant in his pro se brief.

DENIAL OF MOTION TO SUPPRESS

In his first assigned error, defendant challenges the trial courts denial of his motion to suppress evidence. Defendant contends that the seizure of evidence arose from an illegal stop and unlawful arrest, and therefore, the evidence should have been suppressed.

At the May 2, 2001 hearing on the motion to suppress, Sergeant Yorsch testified that he made a traffic stop of a blue Jeep Cherokee near the Huey P. Long Bridge on January 4, 2000. According to Officer Yorsch, he observed | ¿that the vehicle did not have a brake tag, and that the driver was not wearing a seat belt. As a result, the officer activated his lights and sirens, and stopped the car which contained three individuals. Sergeant Yorsch approached the driver side of the vehicle while Sergeant Manix, who had come to his assistance, approached the passenger side. Sergeant Yorsch asked the driver of the vehicle, Michael Morganstern, for his license, registration and insurance. He also asked the driver to exit the vehicle. As he did so, both officers observed that the vehicle had a broken steering column which suggested to them that the vehicle might be stolen.

Sergeant Manix asked the front seat passenger, Brad Mabile, to exit the vehicle and step towards the rear, which he did. The officer then turned his attention to defendant, the rear seat passenger, who was fidgeting and acting nervously. Before Sergeant Manix could properly position himself for defendants exit from the vehicle, defendant swiftly pushed open the door, bumping Sergeant Manix in the process. After defendant exited, he was ordered to place his hands on the vehicle, so a pat down search for weapons could be conducted. Defendant started to raise his hands, but then pushed off of the vehicle and ran away. Sergeant Manix gave chase and grabbed defendant by his jacket. As defendant fled, he reached into his jacket, pulled out an amber prescription bottle, and discarded it. At this point, the officer was able to subdue and handcuff defendant. The bottled was then retrieved and found to contain seventy rocks of crack cocaine. Currency in the amount of $433 was recovered from defendants front pants pocket in a search of the defendant after his arrest. Following the hearing on the motion to suppress the evidence, the trial judge denied the motion, finding the search was not unreasonable. Defendant now challenges the denial of this motion.

|sThe Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by LSA-C.Cr.P. art. 215.1, as well as by both the federal and state jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Manson, 01-159 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755. Reasonable suspicion for an investigatory stop is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individuals right to be free from governmental interference. The right to make an investigatory stop and question the particular individual detained must be based upon reasonable suspicion to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Hicks, 98-1231 (La.App. 5 Cir. 3/30/99), 733 So.2d 652.

In the present case, defendant asserts that the officers actions, in removing him from the vehicle following the traffic stop, were unreasonable. Defendant basically challenges the credibility of the police officers testimony relating to the brake tag violation. He alleges that Officer Yorsch could not see the absence of an inspection sticker from where he was located and further his testimony on this subject is inconsistent. Additionally, defendant alleges that at the time of this incident, a seat belt infraction was a secondary infraction which could not support the legality of the stop. We find no merit to these arguments.

The evidence at both the suppression hearing and at trial revealed that Officer Yorsch stopped the vehicle because of brake tag and seat belt | ¿violations. It has been held that traffic violations constitute reasonable cause for a stop. State v. Curtis, 98-1283 (La.App. 5 Cir. 6/1/99), 738 So.2d 657. Thus, Officer Yorsch clearly had reasonable cause to stop the vehicle.

Regarding the officers inconsistent testimony, the record indicates that at defendants first trial, which ended in a mistrial, Officer Yorsch testified that he stopped the subject vehicle because of an expired brake tag. Thereafter, at the motion to suppress hearing and the defendants second trial, Officer Yorsch testified that he stopped the vehicle because it did not have a brake tag. He was questioned about the discrepancy during his cross-examination at defendants second trial, and he explained that he was mistaken when he said the stop was for an expired brake tag.

At the hearing on the motion to suppress, the trial judge heard the officers testimony and apparently found it to be credible. The trial judge also heard the testimony from the officer that he saw the missing brake tag, which prompted the traffic stop, and apparently believed what he said in this regard. These are credibility determinations which will not be reweighed on appeal. State v. Calvert, 01-826, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1081, 1084.

Defendant also argues that, at the time of this traffic stop, failure to wear a seat belt was a secondary violation for which the officer would not have been justified in stopping the vehicle. Even assuming that defendant is correct in his supposition that the violation was secondary, that fact is of no consequence, since the absence of the inspection sticker alone would have provided reasonable cause for the traffic stop.

After the officers effected the stop, they were thereafter justified in ordering the occupants out of the car. Recently, in Knowles v. Iowa, 525 U.S. 113, 117, 119 S.Ct. 484, 488, 142 L.Ed.2d 492 (1998), the United States Supreme Court reaffirmed its position first espoused in Pennsylvania v. Mimms, 434 U.S. 106, 110-111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977), that officer safety concerns during routine traffic stops justify the minimal additional intrusion of ordering a driver and passenger out of the vehicle. The courts of this state have also affirmed this practice in order to protect both the officer and the vehicles occupants during a traffic stop. State v. Benoit, 01-2712 (La.5/14/02), 817 So.2d 11, 15.

After exiting the vehicle, defendant fled. Before the officer subdued defendant, he discarded a bottle containing seventy rocks of crack cocaine. If a citizen abandons or otherwise disposes of property prior to any unlawful intrusion into the citizens right to be free from governmental interference, then such property may be lawfully seized and used against the citizen in a resulting prosecution. State v. Butler, 01-0907 (La.App. 5 Cir. 2/13/02), 812 So.2d 120, 127; State v. Snavely, 99-1223 (La.App. 5 Cir. 4/12/00), 759 So.2d 950, writ denied, 2000-1439 (La.2/26/01), 785 So.2d 840. Having found no unlawful intrusion on the- part of the police officers prior to the abandonment of the cocaine, we find that the evidence was lawfully seized. Additionally, defendants arrest justified the search of his person, during which time $433 was recovered from his pants pocket. The seizure of these funds was lawful as a search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

Based on the foregoing discussion, we conclude that the trial judge did not err in denying defendants motion to suppress evidence. This assigned error is without merit.

INCOMPLETE APPELLATE RECORD

On appeal, defendant contends that he should be granted a new trial because a full record is not available for appellate review.

|RIn Louisiana, a defendant is constitutionally guaranteed the right of judicial review. The Louisiana State Constitution provides that no person shall be subjected to imprisonment ... without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. La. Const, art. I, 19. In addition, LSA-C.Cr.P. art. 843 requires that all of the proceedings in a felony case be recorded.

Material omissions from the transcript of the proceedings at trial bearing on the merits of an appeal will require reversal. On the other hand, inconsequential omissions or slight inaccuracies do not require reversal. An incomplete record may nonetheless be adequate for appellate review. Finally, a defendant is not entitled to relief in this situation absent a showing of prejudice based on the missing portions of the transcript. State v. Frank, 99-553 (La.1/17/01), 803 So.2d 1, 19-20; State v. Parent, 02-835 (La.App. 5 Cir. 12/30/02), 836 So.2d 494, 502.

Prior to briefing this matter, defendant filed a motion with this court seeking to supplement the record and suspend briefing dates. In the motion, defendant noted that, during the district court proceedings, in particular on the first day of trial, counsel sought a continuance which was denied. Also, on the second day of trial, he made an objection to a jury charge concerning flight. Defendant alleged that these objections and the pertinent arguments were not available for review. He also alleged that after closing arguments, there is nothing in the record about the jurys deliberations or decision. This court ordered the production of the requested documentation. A response filed in the record by the court reporter indicated he could not complete the requested transcripts, because the paper notes, the tapes, a tape recorder and other related court equipment has disappeared from Division E, and could not be found.

| ¡¡On appeal, defendant alleges that, without a transcript of counsels objections and the circumstances surrounding them, as well as the polling and verdict of the jury, his conviction should be reversed and a new trial ordered because this court cannot reach a just decision. We find no merit to this argument.

With regard to the polling and verdict of the jury, the record contains the jury verdict signed by the foreperson. In addition, the written polling of the jury is contained in the record in the exhibit folder. Therefore, defendant cannot demonstrate any prejudice form the failure of the record to include the transcript of the polling and verdict of the jury.

Concerning the continuance, the record indicates that defendant sought to continue the trial in order to secure the testimony of a defense witness, Brad Ma-bile. The record reveals that Mr. Mabile was present and testified on the second day of trial. In addition, the motion itself, setting forth the grounds for the continuance, is contained in the record and could have been raised as a substantive error notwithstanding the absence of a transcript of the matter. However, defendant did not designate the denial of the motion to continue as a designated error on appeal. For these reasons, defendant cannot demonstrate prejudice resulting from the failure of the record to contain a transcript of his argument concerning the continuance.

We also find no merit to defendants argument concerning his objection to the jury charge on flight. Missing jury charges and counsel arguments are not evidentiary and have previously not been found to warrant reversal of a defendants conviction. State v. Hawkins, 688 So.2d at 480; State v. Simpson, 01-1850 (La.App. 4 Cir. 10/16/02), 829 So.2d 650, 660; State v. Parent, supra.

Based on the foregoing discussion, we find that defendant has failed to demonstrate the materiality of the missing items or to show how he is [inprejudiced by the missing portions of the record. Accordingly, the arguments raised by defendant in this assigned error are without merit.

DENIAL OF MOTION TO QUASH MULTIPLE OFFENDER BILL

On appeal, defendant asserts that the trial judge erred in denying his motion to quash the habitual offender bill of information.

In the present case, the state filed a multiple offender bill alleging that defendant was a second felony offender based on a 1995 guilty plea to possession with intent to distribute cocaine. Defendant denied the allegations of the habitual offender bill and filed a motion to quash bill. In the memorandum filed with the trial court, defendant did not contend that his plea was deficient relative to the Boy-kin rights or that he was not the same person convicted of the prior offense. His argument in the motion to quash was that his predicate conviction was defective because the plea to the offense constituted double jeopardy relative to his guilty plea to another offense on that date. At the hearing on the motion to quash, no evidence or argument was presented by either the state or defendant. Defendant merely submitted the matter on his motion and supporting memorandum. The trial judge denied defendants motion to quash. After being advised of his rights, defendant thereafter admitted to the allegations of the multiple bill, in exchange for a stipulated sentence. In addition, he reserved his right to appeal the denial of the motion to quash.

In challenging the denial of the motion to quash on appeal, defendant asserts that the underlying guilty plea resulted from a defective Boykin. In the trial court, defendant claimed that the underlying plea was defective because it violated double jeopardy provisions. He did not claim that the prior plea resulted from a defective Boykin. Since defendant failed to raise the issue of a defective Boykin in the trial court, he cannot now raise the issue hifor the first time on appeal. LSA-R.S. 15:529.1(D)(1)(b). State v. Randolph, 98-965 (La.App. 5 Cir. 2/23/99), 731 So.2d 365. We further note that in the motion to quash, defendant admitted that he was advised of his Boykin rights in the predicate plea.

On appeal, defendant also complains that his due process rights were violated when the state alleged that he was a second felony offender and was allowed to secure that adjudication in the absence of any proof. This argument ignores the fact that, by entering a plea to the multiple bill, he specifically admitted to the prior conviction and to being the same person involved in the prior conviction. He also admitted that the prior guilty was constitutionally sound, because he conceded that he was advised of the three core Boykin rights.

Defendant also argues that his due process rights were violated because the trial judge denied the motion to quash without making the state put on any evidence. We likewise find no merit to this argument. In multiple bill proceedings, the presumption of regularity of judgment shall be sufficient to meet the states original burden of proof beyond a reasonable doubt on any issue of fact. Thereafter, the person who claims that a conviction was obtained in violation of the state or federal constitution must set forth his claim, and the factual basis therefore, with particularity in his response, and shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. LSA-R.S. 15:529.1(D)(l)(b).

In the present case, defendant recognized in his motion to quash that the Boy-kin was not defective and further noted that he had already served the full term of his sentence relative to the predicate conviction. Thus, he basically acknowledged the finality of the judgment relative to the prior plea and that the state met its initial burden of proof. Thereafter, the burden was on |12defendant to prove the allegations in the motion to quash. We find that he failed to satisfy that burden. In defendants collateral attack on his prior guilty plea, he made no claim that the same evidence of possession of cocaine was used to support the drug charge and the firearm charge. Moreover, he presented no particularized factual basis for his claim of double jeopardy, as required by LSA-R.S. 15:529.1(D)(l)(b), nor did he make a facial demonstration, by presentation of the pri- or record, that would support a claim that he was prosecuted twice for the same offense or that he was receiving multiple punishments for the same offense. As defendant did not satisfy his burden of proof, we find that the trial judge did not err in denying the motion to quash the multiple offender bill of information.

Defendant also complain because the trial judge did not give written reasons for her finding that defendant was a second felony offender nor did she give reasons for the sentence imposed. In the present case, defendant stipulated to his status as a second felony offender and also agreed to the sentence imposed. Therefore, the trial judges failure to issue reasons is of no consequence.

Based on the foregoing discussion, we find that the arguments raised by defendant in this assigned error are without merit.

SENTENCING ERROR

In this assignment, defendant argues that the multiple offender sentence was improperly imposed because the trial judge did not first vacate the original sentence.

In the present case, the minute entry indicates the trial judge vacated the original sentence before imposing the multiple offender sentence. The transcript, however, evidences no such action by the trial judge prior to sentencing the defendant as a second felony offender.

| ^Generally, where the transcript and the minute entry conflict, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). However, in, State v. Mayer, 99-3124 (La.3/31/00), 760 So.2d 309, reh’g denied, 99-3124 (La.5/12/00), 761 So.2d 557, the Louisiana Supreme Court found that an enhanced sentence in such circumstances was valid:

To the extent that the ... commitment/minute entry reflects that the trial judge vacated the defendant’s original sentence and thereby eliminated any possible confusion as to the terms of the defendant’s confinement, the failure of the transcript to show that the court did so before sentencing the defendant as a multiple offender did not affect the substantial rights of the defendant.

This Court has followed Mayer in State v. Triche, 03-149 (La.App. 5 Cir. 5/29/03), 848 So.2d 80, State v. Simmons, 02-960 (La.App. 5 Cir. 1/28/03), 839 So.2d 239, and State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01), 792 So.2d 126.

Accordingly, this issue requires no action by this court.

SUFFICIENCY OF THE EVIDENCE

On appeal, defendant, in his pro se brief, challenges the sufficiency of the evidence used to convict him of possession of cocaine.

In determining sufficiency of the evidence, this court must decide whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Sylvia, 01-1406 (La.4/9/03), 845 So.2d 358, 361.

In the present case, defendant was found guilty of possession of cocaine. LSA-R.S. 40:967(C). To support a conviction for this offense, the state must prove beyond a reasonable doubt that the defendant was in possession of the cocaine and that he knowingly or intentionally possessed the cocaine. The | uelement of possession may be established by showing that the defendant exercised either actual or constructive possession of the substance. State v. Williams, 01-644 (La.App. 5 Cir. 11/27/01), 802 So.2d 909, 912-913. Actual possession means having an object in ones possession or on ones person in such a way as to have direct physical contact with and control of the object. State v. Parfait, 02-348 (La.App. 5 Cir. 10/16/02), 831 So.2d 360, 368. The fact finder may draw reasonable inferences based upon the evidence presented at trial to support contentions of knowledge and intent. State v. Gentras, 98-1095 (La.App. 5 Cir. 3/30/99), 733 So.2d 113, 117, writ denied, 99-1302 (La.10/15/99), 748 So.2d 464.

At trial;. Officer1 .Manix testified that after defendant exited the vehicle, he fled. As defendant ran, the officer saw defendant reach into his jacket, retrieve an amber prescription bottle, and throw it down. The bottle contained seventy off white colored rocks which tested positive for cocaine.

To challenge this evidence, the defense presented the testimony of the driver of the vehicle, Michael Morganstern, and the front seat passenger, Brad Mabile. Ma-bile testified that it was Morganstern who discarded a bottle from the vehicle. Mor-ganstern invoked the Fifth Amendment when asked at trial whether he threw anything from the Jeep that night. During cross-examination, Mabile admitted that he never informed the police or the District Attorney of this alleged fact. He also admitted being arrested and convicted for possession of cocaine as a result of his actions which occurred the same night. Additionally, Morganstern admitted that he lied to police on the night of the stop and that he also was a convicted felon.

The jury was faced with this conflicting testimony, and obviously chose to believe the testimony of the police officers over that of the defense witnesses. Where there is conflicting testimony about factual matters, the Irresolution of which depends on a determination of credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency. It is not the function of the appellate court to access the credibility of witnesses or reweigh the evidence. State v. Kinsel, 00-1610 (La.App. 5 Cir. 3/28/01), 783 So.2d 532, 537, writ denied, 01-1230 (La.3/28/02), 812 So.2d 641.

The defendant argues on appeal that Sergeants Manix and Yorsch gave perjured and inconsistent testimony, in particular with regard to the presence of other officers at the scene and the broken steering column. With regard to the steering column, both Sergeants Manix and Yorsch testified that they saw the broken steering column. Additionally, Sergeant Yorsch, who wrote the report, testified that it had been his intention to eventually report this item, but as the events unfolded at the scene the night of this incident, his paramount concern was to secure officer safety. With regard to the presence of other officers at the scene, there was conflicting testimony. Defense witnesses said that there were several other officers at the scene, while the police officers’ testimony indicated that they were the only two there. Defendant also points to the dispatch sheet which allegedly shows that there was another narcotics agent at the scene that night. As noted previously, it is not the function of this court to determine the credibility of the witnesses. The jury heard all this testimony and apparently believed the officers. Moreover, we note that any testimony concerning the steering column or the presence of other officers at the scene is not relevant to the issue of whether defendant possessed the cocaine.

Viewing the record as a whole, a rational trier of fact could have found that the state proved beyond a reasonable doubt that the defendant knowingly and intentionally possessed cocaine in violation of LSA-R.S. 40:967(C). This assigned error is without merit.

\ ^INEFFECTIVE ASSISTANCE OF COUNSEL

On appeal, defendant also alleges ineffective assistance of counsel. Defendant contends that his retained counsel was ineffective in failing to properly represent him and in failing to introduce certain key evidence which could have been used to impeach the credibility of the arresting officers.

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. Where the issue is raised on appeal and the record discloses sufficient evidence to rule on the merits, the reviewing court may address its merits in the interest of judicial economy. State v. Revader, 98-1268 (La.App. 5 Cir. 5/19/99), 735 So.2d 875, 878.

In the present case, defendant makes several specific allegations of ineffectiveness, all of which relate to trial strategy. Where the issue of ineffectiveness is linked to counsels choices for trial strategy, an evaluation of the claim can best be made after an evidentiary hearing. State v. Revader, 735 So.2d at 878. Based on the record before us, we find that defendants allegations of ineffectiveness would be better addressed by an application for post conviction relief where an evidentiary hearing can be conducted.

ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975). Our review reveals no errors which require corrective action.

For the reasons set forth herein, we hereby affirm defendants conviction and sentence.

AFFIRMED.


source: Caselaw Access Project

author: JgCLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. William E. OLIVIERI.
    No. 03-KA-563.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alan D. Alario, II, Andrea F. Long, Richard R. Pickens, Assistant District Attorneys, Gretna, LA, for State.
    Bruce G. Whittaker, Gretna, LA, for defendant-appellant.
    Panel composed of THOMAS F. DALEY, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   JgCLARENCE E. McMANUS, Judge.

Defendant, William Olivieri, was indicted by a Jefferson Parish grand jury on October 4, 2001 with one count of aggravated kidnapping, one count of armed robbery, and two counts of aggravated rape in violation of LSA-R.S. 14:44, 14:64, and 14:42. He pled not guilty and filed several pretrial motions. Defendant proceeded to trial on June 18, 2002. After a three-day trial, defendant was convicted as charged on all four counts by a unanimous twelve-person jury. He was sentenced on July 12, 2002 to life imprisonment for each of his aggravated kidnapping and two aggravated rape convictions and ninety-nine years of imprisonment for the armed robbery conviction. Each sentence was imposed without the benefit of parole, probation or suspension of sentence and was ordered to run consecutively with each other.

The State subsequently filed a multiple offender bill of information based on count two of the original indictment, armed robbery. The State alleged defendant to be a third felony offender based on a 1989 conviction for simple burglary and a |s1990 conviction for forcible rape. Defendant denied the allegations contained in the multiple bill and after an August 7, 2002 hearing on the multiple bill, defendant was found to be a multiple offender. The trial court vacated defendant’s original ninety-nine-year sentence as to count two, armed robbery, and imposed an enhanced sentence of life imprisonment, to run consecutively with the other three counts, without the benefit of parole, probation or suspension of sentence under LSA-R.S. 15:529.1. FACTS

At approximately 2:15 p.m. on July 2, 2001, D.L. left her office on the seventh floor of the AmSouth Bank building, located on North Causeway Boulevard in Me-tairie, to make a bank deposit and grab lunch. As she walked to her car on the first floor of the parking garage, she saw a man in front of her. The man walked left and D.L. walked right, toward her car. She unlocked her car with her keyless remote and put her keys and purse on the passenger seat. D.L. then heard someone approach from behind. She felt something pressed to the back of her head and was pushed into her car. The man, later determined to be defendant, told D.L. not to move. He took her cigarette from her and handcuffed her hands behind her back. He then forced her to climb over the center console and into the passenger seat.

Defendant started the car and drove away with D.L. He told D.L. he needed her car to get out of town. D.L. was scared and begged the man not to rape or hurt her. He explained he would not hurt her and that he would let her go' when he got far enough. They stopped for gas, in an area later determined to be New Orleans East, at which time defendant asked D.L. for her money and credit cards. He took off one of the handcuffs to allow her access to her purse after which D.L. gave defendant her wallet. Defendant repeatedly told D.L. not to turn around and not to Llook at him. After getting gas, they continued to drive on the interstate toward Slidell.

During the drive, defendant engaged D.L. in conversation telling her he was from Tennessee and that his mother had died. D.L. never looked at defendant but at one point turned briefly in his direction and saw a tattoo on his upper left arm.

Defendant took the Pearl River Turnabout exit and told D.L. they were stopping so he could look through her purse. He parked the car near an abandoned house or deer camp by a gravel pit and overhead train track, later determined to be Honey Island Swamp Road, put the handcuffs back on D.L., and blindfolded her. Defendant walked around to the passenger side of the car and opened the door. He lifted D.L.’s shirt, unfastened her pants and fondled her. He then forced her into the backseat of the car where he pulled down her pants and underwear and inserted his penis inside of her. Defendant did not wear a condom and D.L. begged him not to ejaculate inside of her. Defendant complied and ejaculated onto the floor of the car. He then penetrated D.L. again before ordering her to get dressed.

Defendant then forced D.L. back into the front passenger’s seat and drove off looking for a place for D.L. to wash off his “gism.” He continued back on the interstate and exited in Picayune, Mississippi. Defendant eventually located a creek under a bridge and drove toward it down a dirt path. He ordered D.L. out of the car and told her to walk toward the creek. Prior to D.L. exiting the car, defendant put a gun to her side and told her if anything happened she knew what would happen. D.L. understood this to mean if she screamed or ran, defendant would shoot her.

Defendant guided D.L. to the creek and made her face a cement block and put her hands upon it. Defendant then pulled down D.L.’s pants and underwear and fondled her again. He put her hand on his “private area” and told her to masturbate him. D.L. told defendant she could not do that so he vaginally Impenetrated her from behind. Defendant then forced D.L. to the creek and ordered her to squat down. He splashed water on her and ripped her underwear off to wipe her leg. He then threw her underwear into the creek and ordered her to get dressed.

Thereafter, defendant took D.L. to a Wal-Mart in Picayune where he released her. Upon releasing D.L., defendant wiped D.L.’s cell phone and house keys and gave them back to her. He took one of her business cards and a check out of her checkbook. He told D.L. to call the police and report that she had been carjacked but not raped. Defendant then drove off in D.L.’s car. D.L. never saw her attacker’s face but later described her assailant as a white male, possibly Hispanic, approximately 35 years old, 5' 7" with a medium build, tan complexion, moustache, and dirty hands. She described a tattoo on his upper left arm and stated he had an odor similar to a mechanic.

D.L. immediately called her father and her boss telling them what had happened. She then went into Wal-Mart and asked a lady to call the police. When the police arrived, she was taken to Crosby Memorial Hospital in Picayune where a rape kit examination was performed by Dr. Thaddeus Erato. Dr. Erato noted several small red scratch marks on each of D.L.’s wrists which were consistent with her description of being handcuffed. Dr. Erato testified that there were no tears or lacerations to the vaginal area but explained that such a finding does not indicate a rape did not occur. The rape kit evidence was subsequently processed by the FBI in its laboratory in Washington, D.C. where semen was detected on several of the vaginal swabs.

Meanwhile, at approximately 5:30-6:00 p.m., defendant parked D.L.’s car at Mickey’s # 1 Quick Stop in Picayune and went to a nearby friend, Michael Gott’s, house. Defendant told Gott he had stolen a car from a “pretty” lady in a bank parking lot. Gott testified that defendant had parked the car at Mickey’s # 1 Quick Stop, which was four blocks from Gott’s house, and that defendant wanted to get Lthe car back after learning of a news broadcast relating to a kidnapping and assault. Gott drove defendant to Mickey’s # 1 Quick Stop but the car was not there. Defendant went inside the convenience store, inquired about the ear, and was told the police had towed it. Thereafter, Gott and defendant returned to Gott’s house. They watched the news which reported the rape. After learning of the rape, Gott made defendant leave his house. One week later, Gott reported what he knew about the crimes to his parole officer and was subsequently interviewed by the FBI.

D.L.’s car was recovered by the Picayune Police Department and processed for evidence by the FBI. Several white stains were visible on the back seat of the car and additional stains were discovered on the rear floor mat and rear carpet by the use of a forensic light source. Testing of the stain specimens revealed the stains to be semen. DNA was developed from the semen found on the floor mat and the back seat cushion and was later determined to match defendant’s DNA. Additionally, several latent fingerprints were developed from items found inside the vehicle. Two of the fingerprints were later matched to defendant. A black bandanna that did not belong to the victim was also found in the car. The victim testified she believed it was the bandanna that defendant used to blindfold her.

The FBI obtained an arrest warrant for defendant and subsequently arrested him on July 15, 2001. Upon his arrest, defendant waived his rights and gave a statement to the FBI. The statement was not recorded pursuant to FBI policy. According to the FBI agent’s notes regarding the statement, defendant admitted to forcing the victim into her car at gun point using a black BB gun that looks like a real gun. Defendant stated that after handcuffing and blindfolding the victim, he drove to Picayune with the victim and released her after demanding all her money. He then parked the car at a convenience store and walked across the street to a strip mall where he threw the handcuffs into a dumpster. When he returned for the car, pit was gone. He was told by the convenience store clerk that the police had towed it. Defendant then stated he returned to Louisiana with a friend and threw the gun into the Mississippi River. Defendant further stated he shaved off his moustache and the hair on top of his head. He did not discuss any sexual assault or rape of the victim during his statement.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant argues the trial court erred in refusing to grant a mistrial after the State repeatedly referred to defendant’s post-arrest silence during its opening statement and its direct examination of Agent David Riker. Defendant asserts the trial court’s instruction attempting to cure the problem simply made matters worse by further emphasizing defendant’s post-arrest silence. While he admits not every reference to a defendant’s post-arrest silence mandates a mistrial or reversal, defendant contends the State did more than make an oblique reference to his post-arrest silence by developing the details of his post-arrest silence in its case in chief.

The State responds that the brief reference to defendant’s post-arrest silence was merely an effort to provide the jury with a sequential order of events regarding the investigation of the case and to explain under what circumstances defendant terminated his interview with Agent David Riker. The State maintains no attempt was made to impeach defendant by referring to his post-arrest silence. The State further contends any error does not warrant reversal because the evidence of defendant’s guilt was overwhelming.

During its opening statements, the State stated:

On July 15th, Agent Riker arrested the Defendant. He arrested him at a hotel at Chef Highway and Downman Road, where he had been staying in a room obtained for him by a Mend. The Defendant was taken to FBI headquarters. He was read his rights, allowed to smoke, given a soft drink, and he made a statement. He confessed to David Riker that he did, indeed, kidnap the Isvictim and rob her. He said that he handcuffed her, he said that he used a weapon, and he said that he threw both the handcuffs and the weapon away. He said he was the only one involved in that crime. And then when Agent Riker asked him about the rapes, the Defendant decided he didn’t want to talk any more.

Defense counsel immediately objected and moved for a mistrial on the basis the State referred to the defendant invoking his right to remain silent and made an implicit reference to the defendant invoking his right to counsel. The trial court denied defendant’s request for a mistrial.

Thereafter, during the State’s direct examination of Agent David Riker, the State asked Agent Riker to summarize the oral statement defendant gave to him upon defendant’s arrest. Agent Riker recounted the contents of the statement and then concluded with the following testimony:

WTien the Defendant was done speaking, I then told him that I believe you’re leaving some of the facts and details out of the incident; I want to go over it again. And I told him I think you know where I’m going with this. At that point the Defendant put his head down. He said, I need a lawyer, I’m sorry. Don’t be mad at me, but I feel more comfortable with a lawyer.

Defense counsel objected and again moved for a mistrial based on the impermissible reference to defendant’s post-arrest silence and invocation of his right to counsel. The State responded the testimony was a mere account of what defendant said and noted that any prejudice could be cured by an instruction. Defense counsel argued an instruction would not cure the prejudice and insisted on a mistrial. The trial judge denied the motion for a mistrial and instructed the jury that a defendant has a right to remain silent and is not required to testify. The trial judge further explained a defendant has a right to obtain counsel. He instructed the jury that the fact defendant chose to remain silent at a certain point and made a request for an attorney cannot be held against him. The trial judge pointed out that the testimony was only allowed into evidence to show how the interview ended.

|9In Doyle v. Ohio, 426 U.S. 610, 620, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court held that reference to a defendant’s silence at the time of his arrest and after he has received the Miranda warnings for impeachment purposes violates the defendant’s due process rights. The Supreme Court explained, “every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested ... it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Doyle v. Ohio, 426 U.S. at 617-618, 96 S.Ct. at 2244-2245, 49 L.Ed.2d at 97-98.

In State v. Montoya, 340 So.2d 557 (La.1976), the Louisiana Supreme Court found that reference to a defendant’s post-arrest silence was reversible error even when the defendant does not take the stand. The Supreme Court found that the reasoning in Doyle should apply with even stronger force when a defendant does not take the stand. The Supreme Court stated:

In the instant case the defendant did not take the stand. Thus, there is even less justification here for the State to call attention to his silence at the time of arrest than there was in Doyle, because the argument cannot be made that he was under cross-examination and thus fair game for impeachment by use of his silence at the time of his arrest. Therefore, we conclude it was clearly reversible error for the trial court to permit the State to use the arrested person’s silence against him at trial.

Montoya, supra, at 560.

Thus, a prosecutor cannot make reference to the fact an accused exercised his constitutional right to remain silent, after he had been advised of the right, solely to ascribe a guilty meaning to his silence or to undermine, by inference, an exculpatory version related by the accused, for the first time at trial. State v. Arvie, 505 So.2d 44, 46 (La.1987); State v. Ledesma, 01-1413 (La.App. 5 Cir. 4/30/02), 817 So.2d 390, 393.

■Jjjln contrast, an oblique and obscure reference to a defendant’s post-arrest silence, where the examination does not stress the right to remain silent or attempt to elicit testimony regarding the defendant’s failure to respond to police questioning, does not constitute reversible error. State v. Ledesma, supra at 393. Thus, the State may pursue a line of questioning that attempts to summarize the extent of the investigation, when such questions are not designed to exploit the defendant’s failure to claim his innocence after his arrest in an effort to impeach his testimony or attack his defense. Id.

Under LSA-C.Cr.P. art. 771, when the prosecutor or a witness makes a reference to a defendant’s post-arrest silence, the trial court is required, upon the request of the defendant or the State, to promptly admonish the jury. In such cases where the trial court is satisfied that an admonition is not sufficient to assure the defendant a fair trial, the court may grant a mistrial upon motion of the defendant. State v. Kersey, 406 So.2d 555, 559 (La.1981). The granting of a mistrial is within the discretion of the trial court if the trial court is satisfied that an admonition is not sufficient to assure the defendant a fair trial. State v. Procell, 365 So.2d 484, 491 (La.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2164, 60 L.Ed.2d 1046 (1979). A brief reference to a defendant’s post-arrest silence does not mandate a mistrial or reversal when the trial as a whole was fairly conducted, the proof of guilt is strong, and the prosecution made no use of the silence for impeachment purposes. State v. Ledesma, supra at 393.

In State v. Kersey, supra, the defendant challenged the prosecutor’s examination of the arresting officer on the basis it elicited testimony regarding defendant’s post-arrest silence. The prosecutor asked the arresting officer, “[d]id [defendant] give any further statements or did he assert his right to remain silent at this point?” to which the arresting officer responded defendant asserted his right. The Supreme Court found the reference to defendant’s silence, when considered in h context with the rest of the officer’s testimony, was made in an attempt to show that the entire statement made to the officers had been provided to the jury. The Supreme Court noted the testimony showed defendant was advised of his Miranda rights and then willingly answered a succession of questions. The Supreme Court further noted the reference to defendant’s post-arrest silence “arose at the close of the officer’s testimony and was more a way of exploring how the interrogation was concluded than an effort to call attention to the silence.” Id., at 559. The Supreme Court held defendant was not prejudiced by the reference to his post-arrest silence and, therefore, a reversal of the conviction was not warranted.

In the present case, Agent Riker’s testimony, which briefly referenced defendant’s post-arrest silence, was elicited for the purpose of presenting to the jury a description of how the police investigation culminated and showing the jury that defendant’s entire statement was before them. The prosecutor did not pose a specific question regarding the defendant’s post-arrest silence, but rather inquired about the contents of the statement defendant made to police. Furthermore, the prosecutor did not draw attention to the fact defendant invoked his right to remain silent subsequent to giving a statement. After Agent Riker testified that defendant terminated the statement, the prosecutor did not pursue the issue of defendant’s post-arrest silence but rather moved on and questioned Agent Riker on an unrelated topic pertaining to the photographing and fingerprinting of defendant and gathering of additional evidence. The State did nothing further to emphasize defendant’s post-arrest silence or try to get the jury to make a negative inference from his silence. The judge also admonished the jury that it could not hold defendant’s post-arrest silence against him.

Thus, as in Kersey, defendant was not prejudiced by the reference to his post-arrest silence during the testimony of Agent Riker. Furthermore, the trial l12judge was within his discretion under LSA-C.Cr.P. art. 771 to give an admonishment to the jury instead of declaring a mistrial.

Defendant also challenges the comment made by the State in its opening statement referencing defendant’s post-arrest silence. Specifically, the State stated, “And then when Agent Riker asked him about the rapes, the Defendant decided he didn’t want to talk any more.” While such a remark appears impermissible, it does not warrant reversal.

The prosecutor’s reference to defendant’s post-arrest silence during opening statement was brief. The record shows the State’s opening statement was approximately 18 pages and only one sentence out of the 18 pages referenced defendant’s post-arrest silence. There is no indication that the brief reference by the prosecutor was a deliberate attempt to inject or exploit the issue. The remark was made at the beginning of a three-day trial and there is no indication the State attempted to stress or make continued references to defendant’s post-arrest silence. Additionally, the evidence against defendant was overwhelming. Defendant admitted he kidnapped and robbed the victim. His DNA matched the DNA found in the semen stains located in the victim’s car and his fingerprint was found on an item in the victim’s car.

The record shows that the trial as a whole was conducted fairly and defendant’s guilt was overwhelming. Under these circumstances, a mistrial was not warranted. While defendant was entitled to an admonishment for the prosecutor’s improper remark, defendant did not request it. Nonetheless, the failure of a trial court to admonish the jury is considered harmless error when there is considerable evidence of the defendant’s guilt. See, State v. Jones, 94-0926 (La.App. 4 Cir. 12/28/94), 648 So.2d 472, 480, writ denied, 95-0272 (La.6/16/95), 655 So.2d 346; State v. Stelly, 93-1090 (La.App. 1 Cir. 4/8/94), 635 So.2d 725, 729, writ denied, 94-1211 (La.9/23/94), 642 So.2d 1309; State v. Smith, 336 So.2d 867, 869-870 (La.1976).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues the trial court erred in allowing the State to present evidence of other crimes, namely his prior conviction for forcible rape. Defendant acknowledges that LSA-C.E. art. 412.2 allows evidence of past sexual offenses but contends the evidence must still be relevant. Defendant asserts his past sexual offense was completely irrelevant to any issue regarding the present offense. He contends the State offered evidence of his prior conviction solely to show he was a bad person and that his past behavior made it more likely that he committed the present offense. Defendant also contends the manner in which the State presented the evidence of other crimes, through the testimony of the prior victim, was highly prejudicial and robbed him of a fair trial.

The State responds defendant’s past conviction for forcible rape was very similar to the present offense and was relevant to show intent, system or plan, identity, motive and absence of mistake. The State further contends that even if the past conviction was inadmissible, ’ the error was harmless because of the overwhelming evidence of defendant’s guilt.

Prior to trial, the State filed a notice of intent to use evidence of other crimes. In its notice, the State indicated it planned to introduce evidence under LSA-C.E. art. 404(B) and LSA-C.E. art. 412.2 of a 1990 incident where defendant pled guilty to robbery, rape and attempted kidnapping of another female victim. A Priew hearing was held during which the State argued the evidence was admissible to show pattern, plan, preparation, identity, motive and absence of mistake or accident. The trial court took the matter under advisement and 11 subsequently issued a judgment ruling the evidence of defendant’s other crimes was admissible.

At trial, the State presented the testimony of C.K. At the beginning of C.K.’s testimony, defense counsel objected, arguing C.K.’s testimony was inadmissible evidence of other crimes. The trial court overruled defendant’s objection.

C.K. proceeded to testify that, on the night of January 15, 1990, a man approached her while she was getting out of her vehicle at her apartment complex. The man grabbed her vagina and shoved her into the car. She resisted and a fight ensued during which the man beat her in the face with his fists. The man threatened to kill her and made her get into the back seat of the car where he threw his jacket over her head. He told C.K. not to look at him or he would kill her. Once in the backseat, the man raped her. C.K. managed to escape when the man got back into the front seat of the car. The man drove off in C.K.’s car and was ultimately-caught while driving her car. C.K. testified defendant was the man who raped her. She stated she never had to testify in court because defendant pled guilty.

At the conclusion of the direct examination of C.K., defense counsel moved for a mistrial on the basis of improper 404(B) evidence that only served to show defendant as a bad person. He argued C.K’s testimony and accompanying photographs of her injuries were highly prejudicial. Noting that it had previously ruled on the issue several times, the trial court denied defendant’s request for a mistrial. The trial court gave a limiting instruction to the jury at the conclusion of C.K’s testimony. The trial court further instructed the jury that it could not find defendant guilty of the present offense simply because he committed another offense.

|1RThe State then presented the testimony of Lieutenant Don English, who investigated the rape, robbery and attempted kidnapping of C.K. in 1990. Lt. English testified that defendant gave a statement on the night of the incident wherein he admitted vaginally raping C.K. Lt. English stated defendant pled guilty. Defense counsel again moved for a mistrial based on a violation of 404(B). His request was again denied and another limiting instruction was given to the jury.

In 2001, by Act 1130, the Legislature enacted LSA-C.E. art. 412.2 which provides in pertinent part:

A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who is under the age of seventeen at the time of the offense, evidence of the accused’s commission of another sexual offense may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

In State v. Williams, 02-1030 (La.10/15/02), 830 So.2d 984, 986-987, the Louisiana Supreme Court reviewed the transcript of the committee hearing of Act 1130 that enacted Article 412.2 and explained the purpose of the article as follows:

Act 1130 was prompted primarily by two decisions of this Court, State v. McArthur, 97-2918 (La.10/20/98), 719 So.2d 1037, and State v. Kennedy, 2000-1554 (La.4/3/01), 803 So.2d 916. Both cases involved prosecutions for aggravated rape in which the state sought to introduce evidence of other sexual offenses committed by the defendants pursuant to what the state labeled a “lustful disposition” exception to other crimes evidence. In both cases, this Court refused to recognize the so-called “lustful disposition” exception to Article 404’s other crimes prohibition, but, in doing so, noted that the evidence sought to be introduced would be admissible if Louisiana had a rule similar to Federal Rule of Evidence 413. The enactment of Article 412.2 was apparently the legislature’s response to this Court’s statements in McArthur and Kennedy as the language of Article 412.2 closely follows that of Federal Rule of Evidence 413. However, one distinction exists between the federal rule and the Louisiana rule. Federal Rule of Evidence 413 provides that the “defendant’s commission |1fiof another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.” Conversely, Louisiana’s counterpart, Article 412.2 provides that the evidence “may be admissible ... subject to the balancing test provided in Article 403.” Although the legislature opted not to make the evidence automatically admissible, it nonetheless determined evidence of past sexual behavior of an accused should not be totally foreclosed to the state. Prior to Article 412.2, evidence pertaining to other crimes in sexual assault could only be admitted under the limited exceptions of 404(B).

(Footnotes omitted; emphasis as found in the original.) In Williams, the Supreme Court held that a Prieur hearing is not required prior to admitting evidence under LSA-C.E. art. 412.2.

Since the Louisiana Supreme Court has noted that Article 412.2 is similar to Federal Rule 413, a review of federal jurisprudence pertaining to Federal Rule 413 provides helpful insight into its application. Although the wording of the federal rule differs from the Louisiana rule, as observed by the Louisiana Supreme Court in Williams, a review of federal jurisprudence reveals the two rules are virtually identical in application. In particular, the federal courts have held that evidence introduced under Federal Rule of Evidence 413 is subject to the Federal Rule of Evidence 403 balancing test. United States v. Mound, 149 F.3d 799, 800 (8th Cir.1998), cert. denied, 525 U.S. 1089, 119 S.Ct. 842, 142 L.Ed.2d 697 (1999); United States v. Guardia, 135 F.3d 1326, 1330 (10th Cir.1998). Federal Rule 403 and LSA-C.E. art. 403 provide for the exclusion of relevant evidence when its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay” or waste of time. The Federal Rule has the additional factor of “needless presentation of cumulative evidence.” Thus, like Article 412.2, Federal Rule 413 evidence is not automatically admissible.

| ^Historically, evidence of prior bad acts (or propensity evidence) has been inadmissible to prove the .character of a person in order to show he acted in conformity therewith. The United States Supreme Court explained the ban as follows:

The state may not show defendant’s pri- or trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so over persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of the issues, unfair surprise and undue prejudice. (Footnotes omitted.)

Michelson v. United States, 335 U.S. 469, 475-476, 69 S.Ct. 213, 93 L.Ed. 168 (1948).

Over the years, exceptions have been made to this exclusionary rule. For example, evidence of prior bad acts may be used to prove motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. LSA-C.E. art. 404(B); United States v. Enjady, 134 F.3d 1427, 1430-1431 (10th Cir.1998), cert. denied, 525 U.S. 887, 119 S.Ct. 202, 142 L.Ed.2d 165 (1998). The federal courts have found Federal Rule 413 to be another exception to the ban on propensity evidence. Enjady, supra; United States v. Tyndall, 263 F.3d 848, 850 (8th Cir.2001). The federal courts have noted that “Rule 413 is based on the premise that evidence of other sexual assaults is highly relevant to prove propensity to commit like crimes, and often justifies the risk of unfair prejudice.” United States v. Enjady, supra at 1431. The courts have concluded that “Rule 413 supersedes Rule 404(b)’s restriction and allows the government to offer evidence of a defendant’s prior conduct for the purpose of | ^demonstrating a defendant’s propensity to commit the charged offense.” United States v. Guardia, supra at 1329. Furthermore, the courts have noted there is no inherent error in admitting evidence under Rule 413 that would be inadmissible under Rule 404(b). United States v. Mound, supra at 802.

In discussing the effect Federal Rule 403 has on Rule 413, the federal courts have stated that propensity evidence is relevant. United States v. Guardia, supra at 1328. The courts caution that, in applying the 403 balancing test, careful attention must be given to “both the significant probative value and the strong prejudicial qualities inherent in all evidence submitted under 413.” Id. at 1330. The United States Tenth Circuit observed that “[i]f Rule 413 evidence were always too prejudicial under 403, Rule 413 would never lead to the introduction of evidence.” Id. The federal courts have recognized “the strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible” and have read Rule 413 to create somewhat of a presumption that the evidence is admissible. United States v. LeCompte, 131 F.3d 767, 769 (8th Cir.1997); United States v. Enjady, supra at 1431.

In United States v. Enjady, supra, defendant was convicted of aggravated sexual abuse. During trial, the State introduced evidence under Federal Rule 413 of a prior rape defendant allegedly committed through the testimony of the alleged victim. The defendant appealed claiming prejudicial error in the admission of the evidence of the prior rape. The United States Tenth Circuit found the trial court properly ruled the evidence admissible under Rule 413 and properly considered Rule 403 in balancing the probative value of the evidence against prejudice to the defendant. The court noted “the exclusion of relevant evidence under Rule 403 should be used infrequently, reflecting Congress’ legislative judgment that the evidence ‘normally’ should be admitted.” United States v. Enjady, 134 F.3d at 1432.

hflIn discussing “unfair prejudice” as contemplated by Rule 403, the United States Eighth Circuit stated, “Rule 403 is concerned only with ‘unfair prejudice, that is, an undue tendency to suggest decision on an improper basis.’ ” United States v. Gabe, 237 F.3d 954, 959 (8th Cir.2001), quoting United States v. Yellow, 18 F.3d 1438, 1442 (8th Cir.1994). The court noted that evidence under Federal Rule 414 is prejudicial for the same reason it is probative, it shows the defendant’s propensity to molest young children. The court concluded that “because propensity evidence is admissible under Rule 414, this is not unfair prejudice.” Id. at 960.

Under LSA-C.E. Article 412.2, evidence of a prior sexual offense is admissible if relevant and if its probative value outweighs its prejudicial value. Rulings on the admissibility of evidence will not be disturbed, absent an abuse of discretion. State v. Bridgewater, 98-658 (La.App. 5 Cir. 12/16/98), 726 So.2d 987, 993.

In the instant case, evidence of the prior rape is highly relevant to show defendant’s propensity to sexually assault women as they tend to matters near their vehicles and to attempt to kidnap the women and drive away in their vehicles. For the same reason it is probative, the evidence of the prior rape is prejudicial to defendant.

Like Congress, the Louisiana Legislature saw a need to lower the obstacles to admitting propensity evidence in sexual assault eases. Considering the purpose behind Article 412.2, the evidence is not so prejudicial as to warrant exclusion. There is no indication evidence of the prior rape confused or misled the jury. The evidence was presented in an orderly manner with evidence of the prior rape being presented at the end of the trial, clearly and succinctly through two witnesses. Thus, there was little chance the jury could confuse the facts of the two crimes. |2n Additionally, the fact that approximately twelve years passed between the prior rape and the current rape, does not mandate the exclusion of the evidence. The Legislature, like Congress, did not see fit to impose any time limit on the admission of prior sex offenses. See, United States v. Gabe, supra at 960.

Accordingly, the trial judge did not err in admitting other crime evidence. This assignment of error is without merit.

As requested by defendant, the record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

First, although defendant was charged as a third felony offender, the trial judge failed to specify that it found defendant to be a third felony offender. Rather, the trial judge stated, “the Court concludes that the State has met its burden of establishing that the Defendant is a Multiple Offender pursuant to La. R.S. 15:529.1 and should be sentenced accordingly.” Since the trial judge failed to specify that defendant was a third felony offender, the sentence is defective because it is not determinate. State v. Jones, 516 So.2d 396, 402 (La.App. 5 Cir.1987). Therefore, we vacate the sentence on the multiple offender finding and remand the case for a determination of the number of felonies proven by the State and for re-sentencing following that determination.

Second, there is no indication in the record that the trial court gave defendant notice of the registration requirements for sex offenders as required by LSA-R.S. 15:543(A). LSA-R.S. 15:542 requires that all persons convicted of a sex offense must register with the sheriff of the parish where the person resides. LSA-R.S. 15:543(A) requires the trial court to provide written notification of the registration requirements to the defendant upon judgment and sentencing. This Court has recognized the failure of the trial court to give said notice as an error patent. State v. Stevenson, 00-1296 (La.App. 5 Cir. 1/30/01), 778 So.2d 1165, 1166-1167. Additionally, the record does not reflect defendant was advised when he was originally sentenced, or when he was sentenced as a multiple offender, of the two-year prescriptive period for post-conviction relief as required by LSA-C.Cr.P. art. 930.8. Accordingly, we order the trial judge to inform the defendant of the provisions of LSA-C.Cr.P. art. 930.8 and the registration requirements of LSA-R.S. 15:542 following re-sentencing on the multiple offender finding.

CONVICTIONS AND SENTENCES AFFIRMED, SENTENCE ON MULTIPLE BILL VACATED, MATTER REMANDED FOR RESENTENCING.

      . The victim's initials are used under the authority of LSA-R.S. 46:1844(W)(3) which allows the Court to identify a victim of a sex offense by using his or her initials.

      . State v. Prieur, 277 So.2d 126 (La.1973).

      . Federal Rule 414 relates to the admissibility of propensity evidence in child molestation cases whereas Rule 413 relates to propensity evidence in sexual assault cases.


author: |,THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Carlos CARCAMO.
    No. 03-KA-589.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Paul D. Connick, Jr., District Attorney, Alan D. Alario, II, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellant.
    Letita J. Parker-Davis, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and CLARENCE E. McMANUS.
   |,THOMAS F. DALEY, Judge.

The State of Louisiana appeals the trial court’s grant of defendant Carlos Carea-mo’s Motion to Quash. We affirm.

On January 4,1999, the Jefferson Parish District Attorney’s Office filed a Bill of Information charging defendant with one count of aggravated incest in violation of LSA-R.S. 14:78.1 and one count of molestation of a juvenile in violation of LSA-R.S. 14:81.2. On May 7, 1999, defendant failed to appear for arraignment and the matter was continued without date. The minute entry on that date indicates that defendant had yet to be arrested. The record indicates that the State made two unsuccessful attempts at service on defendant at 2317 Guiffrais Street, Apartment C, Metairie, Louisiana. On February 8, 1999, the sheriffs return for the service attempt for the arraignment stated “numerous attempts made, no response.” On March 22, 1999, the sheriffs return states “not at this address per resident.” After learning defendant had moved to Virginia, the State made a third and final attempt at service via certified mail addressed to defendant at 2143 IsNewbury Road, Nor-cross, Virginia. The subpoena was not served as the certified letter was “returned for a better address.”

On January 6, 2003, after having been arrested, defendant was arraigned on the charges and entered a plea of not guilty. On January 8, 2003, defendant filed various pretrial motions, including a Motion to Quash the Bill of Information based on LSA-C.Cr.P. arts. 382 and 578. On February 5, 2003, the State and defendant submitted the matter on the record, and the trial court granted the Motions to Quash on both grounds. Thereafter, the State filed a timely Motion for Appeal.

ASSIGNMENT OF ERROR NUMBER ONE

Whether the trial judge erred in granting the Motion to Quash.

The trial judge granted the defendant’s Motion to Quash on two grounds: (1) the State improperly instituted prosecution by using a “direct bill,” a method not recognized under LSA-C.Cr.P. art. 384, and (2) the State failed to bring defendant to trial within two years of the institution of prosecution as required by LSA-C.Cr.P. art. 578(2). The State contends that the trial court erred in granting defendant’s Motion to Quash because prosecution was properly instituted by a Bill of Information. Additionally, the State argues that, while trial was not commenced within two years from the institution of prosecution, the period of limitation was interrupted when defendant remained outside of the State for the purpose of avoiding detection. Defendant responds that prosecution was instituted by a “Direct Bill,” which is not authorized by LSA-C.Cr.P. art. 578. Also, defendant contends that the State failed to carry its burden of proving that the reason he remained outside of the State was for the purpose of avoiding detection.

LSA-C.Cr.P. art. 382 sets forth the methods of instituting criminal prosecutions and provides in pertinent part: “[a] prosecution for an offense punishable by death, or for an offense punishable by life imprisonment, shall be | instituted by indictment by a grand jury. Other criminal prosecutions in a district court shall be instituted by indictment or by information.” In the instant case, defendant was charged with one count of aggravated incest in violation of LSA-R.S. 14:78.1 and one count of molestation of a juvenile in violation of LSA-R.S. 14:81.2. Because neither offense is punishable by death or life imprisonment, prosecution could have been instituted by indictment or by information. LSA-R.S. 14:78.1 and LSA-R.S. 14:81.2. Defendant contends that neither of these methods was utilized in instituting prosecution because defendant was charged by “direct bill,” a method not provided for in LSA-C.Cr.P. art. 382.

LSA-C.Cr.P. art. 384 provides that “[a]n information is a written accusation of a crime made by the district attorney or the city prosecutor and signed by him. It must be filed in open court in a court having jurisdiction to try the offense, or in the office of the clerk thereof.” Furthermore, LSA-C.Cr.P. art. 463 sets forth the form that a Bill of Information may follow. In the present case, the Bill of Information, which contains the handwritten notation, “direct bill,” penned by an unidentified party, substantially follows that form and, in accordance with LSA-C.Cr.P. art. 384, is signed by the Assistant District Attorney and filed with the clerk. A “direct bill” is not listed as a method of instituting prosecution. Here, the Bill of Information in this case was a properly filed Bill of Information. There are cases, however, in which a “direct bill” has been used to institute prosecution. See, State v. Buttner, 411 So.2d 35 (La.1982); State v. Bloomenstiel, 235 La. 860, 106 So.2d 288 (1958); State v. Robinson, 552 So.2d 994, (La.App. 4 Cir.1989).

Based on the foregoing, the trial court erred in granting defendant’s Motion to Quash on this basis.

|sThe State also challenges the trial court’s ruling granting defendant’s Motion to Quash based on the State’s failure to timely commence trial. LSA-C.Cr.P. art. 578(2) provides that trial shall commence in non-capital cases after two years from the date of institution of the prosecution. The date of institution of prosecution is the date when the indictment is returned or the Bill of Information is filed. State v. Gladden, 260 La. 735, 743, 257 So.2d 388, 391 (La.1972), cert. denied, 410 U.S. 920, 93 S.Ct. 1377, 35 L.Ed.2d 581 (1973); State v. Watts, 99-57 (La.App. 5 Cir. 5/19/99), 738 So.2d 628, 629. Upon expiration of this time limitation, the court shall, on motion of defendant, dismiss the indictment and there shall be no further prosecution against defendant for that criminal conduct. LSA-C.Cr.P. art. 581. The right of dismissal is waived unless the Motion to Quash is made prior to trial. LSA-C.Cr.P. art. 581.

On January 4, 1999, the State filed a Bill of Information charging defendant with two non-capital offenses. Therefore, under LSA-C.Cr.P. art. 578(2), the State had until January 4, 2001 to commence defendant’s trial, which the record indicates it had not done. When defendant has brought an apparently meritorious Motion to Quash based on prescription, the State bears a heavy burden to demonstrate either an interruption or a suspension of the time limit such that prescription will not have tolled. State v. Rome, 93-1221 (La.01/14/94), 630 So.2d 1284, 1286. LSA-C.Cr.P. art. 579 provides as follows:

A.The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
| fi(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B.The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

In the instant case, the State contends that the prescriptive period provided in LSA-C.Cr.P. art. 578 was interrupted when defendant fled the State to avoid prosecution. At the hearing on the Motion to Quash, both defendant and the State submitted the matter on the record. An examination of the record reflects that defendant had not been arrested prior to the filing of the Bill of Information. Thereafter, the State made three unsuccessful attempts at serving defendant with a subpoena providing notice of his arraignment. The first two attempts at service, made on January 27 and February 23, 1999 respectively, were made to defendant at 2317 Guiffrais Street, Apartment C, Metairie, Louisiana. Subsequently, the State learned that defendant had moved to Norcross, Virginia. On April 7, 1999, the State made one attempt at service to defendant at 2143 New-bury Road, Norcross, Virginia, via certified mail. The certified letter was “returned for a better address” and defendant remained unserved. The record does not reflect that the State made any further attempts at service.

Athough the prescriptive period of LSA-C.Cr.P. art. 578 may be interrupted by defendant’s presence outside of the State under C.Cr.P. art. 579(A)(1), the State bears the heavy burden of establishing that the purpose of the defendant’s absence from the State was to avoid detection, apprehension, or prosecution. State v. Amarena, 426 So.2d 613 (La.1983); State v. Kraft, 501 So.2d 313, 316 (La.App. 5 Cir.1987), writ denied, 505 So.2d 1140 (La.1987). The periods of limitation 17established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists. LSA-C.Cr.P. art. 579(B).

In the instant case, the record does not reflect when defendant left Louisiana for Virginia, nor was any evidence presented concerning defendant’s reasons for leaving the State. The notations in the sheriffs returns do not indicate that defendant was attempting to avoid service. Further, there is nothing in the record that would indicate defendant was even aware of his charges prior to his move to Virginia. Therefore, it does not appear that the State has met its heavy burden because the record does not reflect that defendant’s absence from the State was to avoid detection, apprehension, or prosecution.

Although the State does not raise the matter in its brief, interruption also arises when defendant’s presence cannot be obtained by legal process or for any other cause that is beyond the control of the State. LSA-C.Cr.P. art. 579(A)(2). The inability to serve a defendant under certain circumstances has been held to constitute interruption. See, State v. Gauthe, 525 So.2d 1193 (La.App. 5 Cir. 1988), writ denied, 532 So.2d 131 (La.1988). However to satisfy its heavy burden in establishing interruption on these grounds, the State is required to exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him. State v. Chadbourne, 98-1998 (La.1/8/99), 728 So.2d 832; State v. Estill, 614 So.2d 709, 710 (La.1993).

In State v. Gauthe, supra, the State issued a subpoena to the defendant for his arraignment directed to the address the defendant furnished at the time of his arrest. The sheriffs return came back three times with the notations “no answer,” “no one by that name,” and “no one by that name.” Eventually, the defendant was arraigned when he appeared in court on another matter. This Court, relying on LSA-C.Cr.P. art. 578(2), concluded that the record reflected the State met its heavy |sburden in éstablishing the prescriptive period was interrupted because the defendant’s presence at trial could not be obtained by legal process and that it was beyond the control of the State. This Court noted that the record reflected that the defendant had moved frequently, had never had a work address, and failed to advise the court of his many changes of address.

In State v. Taylor, 439 So.2d 410 (La.1983), defendant was arrested and charged with a misdemeanor, driving while intoxicated, second offense. After his arrest, defendant posted bond, listing his address. When service was attempted, defendant had since moved and could not be served at that address. No further attempts were made to serve defendant. The Louisiana Supreme Court held that the State had not met its heavy burden of showing legal cause sufficient to interrupt the time for commencement of trial reasoning that the State’s one unsuccessful attempt at service was insufficient. The Supreme Court noted that the one unsuccessful attempt at service did not constitute a due and diligent effort to subpoena the defendant.

Although, as in Gauthe, three unsuccessful attempts at service were made, that case is distinguishable from the instant case, which appears to be more analogous to Taylor. Here, the record does not indicate that defendant was arrested on the charges nor had he provided an address where he could be served. Therefore, it does not appear, as in Gauthe, that he had a duty to inform the court of any changes in address. Also, unlike Gauthe, there is no indication in the record when or the number of times defendant had moved.

Here, after learning defendant had moved to and was residing at a Nor cross, Virginia, address, one attempt at service via certified mail was made on April 7, 1999, but was returned for a better address. An examination of a photocopy of the certified mail envelope reveals the absence of a zip code. Despite this apparent error in addressing the envelope, the record does not reflect any other attempts to 1 Sserve defendant at the Virginia address. As in Taylor, it does not appear that the State’s one unsuccessful attempt at service after learning of defendant’s possible whereabouts constituted a due and diligent effort to subpoena the defendant.

Based on the above, it appears the State failed to carry its heavy burden to show an interruption of the time limitations in accordance with LSA-C.Cr.P. art. 579(A)(2). Therefore, it appears that the two-year limitation provided in LSA-C.Cr.P. art. 578(2) controls, and that the trial judge was correct in granting defendant’s Motion to Quash.

AFFIRMED

      . The correct spelling is Giuffrias.

      . Neither the Code of Criminal Procedure nor the case law explains the difference between a direct bill and a Bill of Information. However, a review of case law indicates that a direct bill is used to institute prosecution after initial charges are nolle pressed. See, State v. Buttner, 411 So.2d 35 (La.1982); State v. Bloomenstiel, 235 La. 860, 106 So.2d 288 (1958); State v. Robinson, 552 So.2d 994 (La.App. 4 Cir.1989).

      . The record indicates that, on February 23, 1999, the State learned from the current resident that the defendant no longer resided at the Metairie address. The record further indicates that the State learned of the defendant's Virginia address on March 22, 1999.