author: JjCOOKS, Judge.

text:
    STATE of Louisiana v. Michael D. MOORE.
    No. 03-16.
    Court of Appeal of Louisiana, Third Circuit.
    May 14, 2003.
    Rehearing Denied June 25, 2003.

      Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for Appellant, State of Louisiana. ■
    Matthew D. Henrich, Lake Charles, LA, for Appellee, Michael D. Moore.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, MICHAEL G. SULLIVAN, Judges.
   JjCOOKS, Judge.

STATEMENT OF THE CASE

On July 27, 1994, Michael D. Moore was charged by bill of information with one count of Aggravated Crime against Nature and one count of Indecent Behavior with a Juvenile. On November 15, 1994, he pled guilty to one count of Indecent Behavior with a Juvenile (La.R.S. 14:81) and was sentenced to serve five years. His sentence was suspended and he was placed on supervised probation for five years. A condition of Moore’s probation required him to register as a sex offender in the parish of his residence under the sex offender registration and notification statute, La.R.S. 15:540 et seq.

Moore failed to register as a sex offender and the State filed a motion and order for a hearing to revoke his probation. Following a hearing, on October 2, 1999, Moore’s probation was revoked by the trial court and he was ordered to serve his jail time in the Avoyelles Correctional Center. He sought a writ of review from the Third Circuit regarding his probation revocation. This court granted Moore’s writ and made it peremptory. The Louisiana Supreme Court granted the State’s writ of review and reversed the appellate decision, finding “the state presented more than adequate factual support showing that Moore violated a term of his probation by violating a law, La.C.Cr.P. art. 895(A); R.S. 15:542, and because Moore knew of the law.” State v. Moore, 98-0262 (La.5/15/98); 719 So.2d 59.

On December 5, 1996, Moore filed a Uniform Application for Post Conviction Relief, which was denied by the trial court. He then filed another Uniform Application for Post Conviction Relief, which was also denied by the trial court. On October 30, 1997, Moore sought a writ of review with the Third Circuit. When his writ application was denied, he filed a writ application with the Louisiana Supreme Court. The Louisiana Supreme Court denied his request for relief.

| PMoore then filed a pro se application for a writ of habeas corpus with the United States District Court for the Western District of Louisiana. Moore argued Louisiana’s neighborhood notification requirement, which was added by the legislature in 1995, after Moore’s conviction, was a constitutionally prohibited ex post facto law. The district court held the sex offender neighborhood notification requirements do not constitute “punishment,” and thus, do not violate the constitutional proscription against ex post facto laws and dismissed Moore’s habeas corpus petition. The United States Fifth Circuit Court of Appeals affirmed the decision. Moore v. Avoyelles Correctional Center, 253 F.3d 870 (5 Cir. 6/25/01). The United States Supreme Court denied Moore’s petition for writ of certiorari. Moore v. Baron Kaylo, Warden, 534 U.S. 1008, 122 S.Ct. 492, 151 L.Ed.2d 404 (2001).

In May 1999, Moore completed his term of incarceration in the Avoyelles Correctional Center and was released. Following his release from prison he did not register as a sex offender. On August 8, 2002, Moore was arrested by the Calcasieu Parish Sheriff’s Office and charged with failure to register as a sex offender, a violation of La.R.S. 15:542(F)(1). Moore appeared in court without counsel and advised the trial court he obtained a pardon on the conviction for which he was ordered to register. The defendant later retained counsel, entered a plea of not guilty to the charges and requested a jury trial.

On September 20, 2002, the Defendant filed a pro se Motion to Quash the indictment on the basis he obtained an automatic first offender pardon under La.R.S. 15:572 and La. Const, art. IV, section (E)(1). On October 16, 2002, a hearing' was Lheld on The Defendant’s Motion to Quash. The trial court found Indecent Behavior with a Juvenile is a crime which is covered by the automatic first offender pardon provision. He then found Moore served his term of incarceration; obtained an automatic pardon from the Department of Public Safety and Corrections; and, as a result, he is exempt from the ten year registration and notification mandate of the sex offender statute. The trial court relied on La.R.S. 15:542.1(H)(1) which provides in relevant part:

A person required to register under this Section as a sex offender or child predator shall register and maintain his registration pursuant to the provisions of this Section for a period of ten years after the date on which the person was released from prison, placed on parole, supervised release, or probation for a conviction giving rise to the requirement to register, unless the underlying conviction is reversed, set aside or vacated, or the offender is pardoned.

(Emphasis added.)

The trial court distinguished between those first time sex offenders who have served their term of imprisonment, parole or probation and those who were still on probation or parole. The court reasoned, a first time sex offender who served his term of imprisonment, probation or parole has completed his sentence, and is eligible for a first offender pardon. Once a pardon is obtained the sex offender is relieved of the ten year registration and notification requirement. The trial court stated:

[The sex offender registration and notification provisions] won’t apply to a first offender who completes his sentence, but its going to apply to him while he’s on parole, it’s going to apply to him if he’s on probation.... I think that Mr. Moore’s — by the language of this statute, has been — does have a first offender pardon for the offense and that based on what I’ve just analyzed, he’s not covered by the requirement to register for 10 years following his conviction. Second offenders are going to be required to, and anybody else, but that’s my ruling. So, I grant the Motion to Quash and I dismiss the bill of information.

The State appeals the decision of the trial court. Two issues are presented for our review: first, whether a convicted first-time sex offender, who has served his term of incarceration, probation or parole, can obtain an automatic first offender pardon, |4and, thereby, avoid the mandatory ten year registration and notification requirements found in La.R.S. 15:540 et seq; and, second, since this case presents an issue of first impression in the state, whether Moore should be prosecuted for Failure to Register in violation of La.R.S. 15:542(F)(1).

We have examined the constitutional provision and the statutes in question and find Moore’s pardon was not obtained in compliance with the terms of the automatic first offender provision and does not release him from his obligation to register. Therefore, for the reasons assigned below, we reverse the decision of the trial court.

LAW AND DISCUSSION

Louisiana’s Sex Offender Registration and Notification Provisions

Louisiana’s sex offender registration and notification provisions (Megan’s Law), enacted in 1992, are found in La.R.S. 15:540 et seq. and apply to a “conviction for the perpetration or attempted perpetration of R.S. 14:78 (incest), R.S. 14:78.1 (aggravated incest), R.S. 14:89 (crime against nature), R.S. 14:89.1 (aggravated crime against nature), R.S. 14:92(A)(7) (contributing to the delinquency of juveniles), R.S. 14:98.5 (sexual battery of the infirm) or any provision of Subpart C of Part II or Subpart A(l) of Part V of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950.” Moore’s conviction for Indecent Behavior with a Juvenile falls within Subpart A(l) of Part V of Chapter lof Title 14.

The requirements of registration and notification under the statute apply to convicted sex offenders who have been “released from prison, placed on parole, supervised release, or probation.” The statute mandates the sex offender “shall, within twenty-one days of establishing residence in Louisiana, or if a current resident, within twenty-one days after conviction or release from confinement” register with Ifithe proper authorities. “Any person required to register pursuant to this Section shall update his registration annually on the anniversary of the initial registration with the appropriate law enforcement official.... Such annual registration shall continue for the period of registration required under the provisions of 15:542.1(H).” This provision mandates a convicted sex offender must register and maintain registration “for a period of ten years after the date on which the person was released from prison, placed on parole, supervised release, or probation.”

Without question, the two related provisions apply to defendants placed on probation or parole. When a sex offender has been placed on probation, “the court shall order the offender to register as a sex offender and to provide notification in accordance with the provisions of La.R.S. 15:540 et seq.” When the Department of Public Safety and Corrections determines “parole is permitted by law and the offender is otherwise eligible, and when the board releases an offender on parole, the board shall order the offender to register as a sex offender and provide notification in accordance with the provisions of R.S. 15:540 et seq.” The failure by a sex offender to register and give notification is a separate felony for which he can be prosecuted.

Although defendants placed on probation or released on parole are clearly required to register and give notice, Moore argues he is not required to comply with the provisions because he served his full term of incarceration. Since his release Ifjfrom prison was unconditional, Moore maintains he was entitled to a first offender pardon which now exempts him from complying with the registration and notification provisions. The trial judge found Moore’s argument persuasive.

In addressing the propriety of the trial court’s ruling, we first turn to consider the purpose which moved our State legislature to enact the sex offender registration and notification statutes. In 1992, Louisiana adopted sex offender registration and notification provisions. The purpose for the statute is clearly expressed in La.R.S. 15:540 which provides in relevant part:

A. The legislature finds that sex offenders, sexually violent predators, and child predators often pose a high risk of engaging in sex offenses, and crimes against victims who are minors even after being released from incarceration or commitment and that protection of the public from sex offenders, sexually violent predators, and child predators is of paramount governmental interest ...
B. Therefore, this state’s policy is to assist local law enforcement agencies’ effort to protect their communities by requiring sex offenders, sexually violent predators, and child predators to register with state and local law enforcement agencies ... and to authorize the release of necessary and relevant information about sex offenders, sexually violent predators, and child predators to members of the general public as provided in this Chapter.

(Emphasis added)

The statutory provisions become operative upon conviction and its requirements become obligatory when the convicted sex offender has been “released from prison, placed on parole, supervised release, or probation.” The legislature recognized “even after being released from incarceration or commitment” sex offenders “often pose a high risk of engaging in sex offenses, and crimes against victims who are minors.” The provisions of the act do not distinguish between the |7terms of the release (probation, parole or completed term of incarceration). The requirement to register and give notice are triggered by the release of the sex offender into the community. It is at this point the requirement to register and give notice become essential for the protection of innocents. The burden of registration continues for a period of ten years, which may extend well beyond the period of probation or parole. Continued monitoring of sex offenders for ten years by law enforcement officials, even after they have served their prison term, probationary period or been released from parole is deemed of “paramount governmental interest.” In State ex rel. Olivieri v. State, 2000-0172 (La.2/21/01); 779 So.2d 735, the Louisiana Supreme Court recognized:

It is clear that the laws were enacted to protect communities, aid police in their investigation of sex offenders, and enable quick apprehension of sex offenders. These enactments were further founded on the finding of the Legislature that this legislation was of paramount governmental interest because: (1) sex offenders pose a high risk of engaging in sex offenses, (2) sex offenders have a high incidence of recidivism, and (3) unless there was registration and community notification, sex offenders could remain hidden and thereby increase the risk to public safety.

Id. at pp. 19-20; 747.

We find, from the statute and legislative purpose, the requirements of registration and notification are an essential part of a convicted sex offender’s sentence. He must fulfill these requirements before his sentence can be deemed “complete” and he is released from all supervision. The requirements are so essential, the statute provides once an individual is charged with a sex offense, the court must “provide written notification to any defendant charged with a sex offense of the registration requirements of R.S. 15:542. Such notice shall be included on any guilty plea forms and judgment and sentence forms provided to the defendant.” Failure to so inform an individual may be considered to be a factor that undercuts the | voluntariness of the plea. See State v. Calhoun, 96-0786 (La.5/20/97); 694 So.2d 909; State v. Blanchard, 00-1147 (La.4/20/01); 786 So.2d 701, State v. Blaine Andre Williams, 02-0707 (La.App. 3 Cir. 3/5/03); 839 So.2d 1095.

The statute further provides a convicted sex offender is relieved of his obligation to register only if his “underlying conviction is reversed, set aside or vacated, or the offender is pardoned.” The trial court relied on this language in the statute to find an automatic first offender pardon relieves a convicted sex offender of his obligation to register.

Automatic First Offender Pardon

The automatic first offender pardon provision is found in Louisiana Constitution Article IV, 5(E) which provides in relevant part:

(1) The governor may grant reprieves to persons convicted of offenses against the state and, upon recommendation of the Board of Pardons, may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses. However, a first offender convicted of a non-violent crime, or convicted of aggravated battery, second degree battery, aggravated assault, mingling harmful substances, aggravated criminal damage to property, purse snatching, extortion, or illegal use of weapons or dangerous instrumentalities never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.

(Footnote omitted); (emphasis added).

Louisiana Revised Statute 15:572 provides in relevant part:

B. A first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence without a recommendation of the Board of Pardons and without action by the governor.
D. On the day that an individual completes his sentence the Division of Probation and Parole of the Department of Corrections, after satisfying itself that (1) the individual is a first offender as defined herein and (2) | fhe individual has completed his sentence shall issue a certificate recognizing and proclaiming that the petitioner is fully pardoned for the offense, and that he has all rights of citizenship and franchise, and shall transmit a copy of the certificate to the individual and to the clerk of court in and for the parish where the conviction occurred. This copy shall be filed in the record of the proceedings in which the conviction was obtained. However, once an automatic pardon is granted under the provisions of this Section, the individual who received such pardon shall not be entitled to receive another automatic pardon.
E. Notwithstanding any provision herein contained to the contrary, any person receiving a pardon under the provisions of Subparagraph (1) of Paragraph (E) of Section 5 of Article IV of the Louisiana Constitution of 1974 and this Section may be charged and punished as a second or multiple offender as provided in R.S. 15:529.1.

(Emphasis added.)

In State v. Adams, 355 So.2d 917 (La.1978), the Louisiana Supreme Court discussed the difference between a gubernatorial pardon and an automatic first offender pardon and found an automatic first offender pardon is not equivalent to a full gubernatorial pardon. Discussing the effect of a gubernatorial pardon the court stated:

In State v. Lee, supra, we stated that “... the [gubernatorial] pardon restores the original status of the pardoned individual, i.e., a status of innocence of crime.” 171 La. 744 at 746, 132 So. 219 at 219 (1931). We also quoted with approval a statement made by the United States Supreme Court in Ex Parte Garland, 71 U.S. 333, 380, 18 L.Ed. 366 (1866), that “... when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.” 171 La. at 747,132 So. at 220.

Id. at 922.

However, a first offender pardon is a different sort of pardon all together. In Adams, the Louisiana Supreme Court held the automatic first offender pardon did not preclude use of a first conviction in a later habitual offender proceeding. Additionally, In State v. Lewis, 366 So.2d 1355, the Louisiana Supreme Court discussed the automatic first offender pardon, stating:

Examining the constitutional debates and the related constitutional h (¡provision of Art. 1, Section 20, we found that the constitutional intent was only to save a first offender from appearing before the pardon board to secure restoration of his basic rights of citizenship. The constitutional provision was not intended to restore the status of innocence, nor to affect the use of the prior conviction for purposes of enhanced sentence as a multiple offender upon subsequent convictions.

Id. at 1358.

A gubernatorial pardon returns the defendant to the status of innocence while a first offender pardon is only for the restoration of the basic rights of citizenship. Naturally, if an individual obtains a full gubernatorial pardon, and is returned to the status of innocence, the requirements of the statute no longer apply to him. The same result occurs if the individual’s sentence is reversed, vacated or set aside. It is undisputed Moore does not have a gubernatorial pardon only a first offender pardon.

Criteria for Obtaining an Automatic First Offender Pardon

To obtain a first offender pardon the defendant must establish: (1) the crime is non-violent or one specifically enumerated in the constitutional provision; (2) the defendant has never been previously convicted of a felony; and (3) the defendant has completed his sentence.

In this case, the record indicates Moore has never been previously convicted of a felony and Indecent Behavior with a Juvenile is designated as a non-violent crime. However, we find Moore has failed to satisfy the third requirement of the first offender pardon statute. He has not completed his sentence. Moore, as a convicted sex offender, was required to register as an essential part of his sentence. Only after compliance with the ten year registration provision can his sentence be deemed “complete” and only then may he obtain an automatic first offender pardon. The ten year registration requirement is, by operation of law, an essential part of his sentence. He was fully informed of this condition at every critical stage of the sentencing process and provided with written notice of the registration and notice requirements. InThe automatic first offender pardon certificate Moore obtained from the Department of Public Safety and Corrections can have no more validity than the Department had authority to give it. We are satisfied the pardon Moore received was not obtained in compliance with provisions of La.R.S. 15:572 and La. Const, art. IV, section 5(E) and does not release him from the requirements of his sentence to register and give notice under the statute.

Moore argues if the legislature had intended for Indecent Behavior with a Juvenile to be exempt from the first offender pardon statute, they could have excluded it from the list of enumerated crimes. We find the legislature did not necessarily intend that a first time sex offender, having fulfilled all of the requirements of his sentence, be forever barred from restoring his basic rights of citizenship. Once the defendant has “completed his sentence ” he may obtain a first offender pardon to restore the rights granted by the automatic pardon.

Moore argues that the sex offender statute does not distinguish between first offender pardons and gubernatorial pardons and the legislature must have intended for a first offender pardon to be a “pardon” within the meaning of the sex offender statute. It is not necessary for the legislature to distinguish between the two types of pardons. A first offender pardon, by its terms, is not available to a sex offender until he has “completed his sentence,” which cannot be accomplished unless and until the registration and notice requirements are met. Therefore, we conclude, the “pardon” which appears in the sex offender registration statute means a gubernatorial pardon. We do not believe the legislature intended to allow convicted sex offenders, who may represent a real and present danger to the unsuspecting public, to circumvent the registration requirements by obtaining an automatic first offender pardon. Interpreting the statute as Moore suggests, would exempt first time sex offenders, who have served their term of incarceration, probation or parole, and whose crime is |1?not listed as violent under La.R.S. 15:572 and La. Const, art. IV, Section 5(E), from the registration provisions. Using the trial court’s reasoning, first time sex offenders convicted of the following crimes could obtain an automatic pardon and be exempt from registration: La.R.S. 14:78 incest; La.R.S. 14:78.1 aggravated incest; La.R.S. 14:89 crime against nature; La.R.S. 14:92(A)(7) contributing to the delinquency of juvenile; La.R.S. 14:93.5 sexual battery of the infirm; La.R.S. 14:43.3 oral sexual battery; La.R.S. 14:80 felony carnal knowledge of a juvenile; La.R.S. 14:81 Indecent behavior with juveniles; La.R.S. 14:81.1 Pornography involving juveniles; La.R.S. 14:81.2 Molestation of a juvenile. Clearly, this was not the intent of the legislature and we find the trial judge erred in so reading the statute to allow this result. Moore’s pardon was not obtained in compliance with the terms of the automatic first offender provision and does not relieve him of his obligation to register and give notice.

Moore’s Prosecution for Failure to Register as a Sex Offender

Moore was arrested by the Calcasieu Parish Sheriff’s Office and charged with failure to register as a sex offender under La.R.S. 15:542(F)(1). Violation of this statute is a felony and carries a fine “not more than one thousand dollars or imprisonment with or without hard labor for not less than one year nor more than five years, or both.” Moore did not register as required because he relied on the automatic first offender pardon he obtained from the Department of Public Safety and Corrections. He claims he mistakenly believed this pardon released him from his obligation to register. The trial judge agreed with Moore’s interpretation.

However, prior jurisprudence clearly held the automatic first offender pardon is very limited in its scope and effect. For example, a first offender pardon does not preclude the consideration of a first felony conviction when adjudicating a person as a habitual offender, State v. Adams, 355 So.2d 917 (La.1978); does not prevent a person from being convicted of unlawful possession of a weapon on the basis of the 11sfirst felony conviction, State v. Wiggins, 432 So.2d 234 (La.1983); does not alter the prohibition against certain sentence suspensions, State v. Derouin, 00-01150 (La.App. 3 Cir. 01/31/01); 778 So.2d 1186; does not automatically restore one’s right to hold public office, Cook v. Skipper, 99-1448 (La.App. 3 Cir. 9/27/99); 749 So.2d 6; does not prevent the state nursing board from denying a nursing student’s application to take the registered nurse’s exam on the basis of a felony conviction, Davis v. State Board of Nursing, 96-0805 (La.App. 1 Cir. 2/14/97); 691 So.2d 170; writ denied, 97-0689 (La.4/25/97); 692 So.2d 1094; and does not prevent the denial of professional licenses to persons with first offender pardons including real estate and liquor licenses. La.Atty. Gen.Op. No. 83-805, Eicher v. Louisiana State Police, Riverboat Gaming Enforcement Division, 97-0121 (La.App. 1 Cir. 2/20/98); 710 So.2d 799, writ denied, 98-0780 (La.5/8/98); 719 So.2d 51.

Given the jurisprudential restrictions on the legal effect of the automatic first offender pardon, it may have been imprudent for Moore to rely on that pardon to justify his decision to ignore his mandatory obligation to register and give notice under the sex offender statute.

On the other hand, we note, State v. Riser, 30-201 (La.App. 2 Cir. 12/12/97); 704 So.2d 946 and State v. West, 33,133 (La.App. 2 Cir. 3/1/00); 754 So.2d 408, two second circuit cases addressing the mistake of law defense in situations when a defendant has received a first offender pardon.

In Riser, the Defendant was charged with possession of a firearm by a convicted felon. At trial, the Defendant introduced the certificate from the Department of Public Safety and Corrections granting a first offender pardon. The Defendant claimed the pardon vitiated the criminal intent necessary to convict him of the crime of possession of a firearm. Further, he argued the jury improperly ignored evidence that he reasonably relied on the language of the automatic first | ^offender pardon. With regard to the mistake of law defense the appellate court stated:

Based on the language of La.R.S. 14:17(1) and in view of the labored jurisprudential distinctions regarding “pardon” as that term is twice expressed, without elaboration, in Art. 4, § 5(E)(1), a mistake of law defense might be proven in this instance. A first offender, who receives a formal notice from a state agency expressing the substance of La. R.S. 15:572 D’s restoration of “all rights of citizenship and franchise” and using the constitutional term “pardon,” may reasonably rely upon those legislative and constitutional expressions and conclude that he may possess a firearm like other citizens.

Id. at p. 8; 951.

However, State v. West, supra, declined to follow the reasoning in Riser. In West, the Defendant was charged by bill of information with possession of a firearm by a convicted felon. The Defendant relied on the automatic first offender pardon certificate he received from the Department of Public Safety and Corrections in asserting the affirmative defense of mistake of law found in La.R.S. 14:17 which provides in relevant part:

Ignorance of the provision of this Code or of any criminal statute is not a defense to any criminal prosecution. However, mistake of law which results in the lack of intention that consequences which are criminal shall follow, is a defense to a criminal prosecution under the following circumstances:
(1) Where the offender reasonably relied on the act of the legislature in repealing an existing criminal provision, or in otherwise purporting to make the offender’s conduct lawful; or
(2) Where the offender reasonably relied on a final judgment of a competent court of last resort that a provision making the conduct in question criminal was unconstitutional.

The trial court denied the State’s motion to prohibit the Defendant from raising the defense of mistake of law. The appellate court reversed, stating:

The defendant has not set forth facts sufficient to sustain a defense of mistake of law. In order for the defendant to assert this affirmative defense, he must prove that he reasonably relied on the act of the legislature in repealing an existing criminal provision, or in otherwise purporting to make the offender’s conduct lawful, or that he relied on a final judgment of a competent court of last resort that a provision making the conduct in question criminal was unconstitutional.
11sThe only acts of the legislature at issue here are LSA-R.S. 14:95.1, which criminalizes a defendant’s conduct, and LSA-R.S. 15:572, which directs the Department of Corrections to inform the pardonee of his pardon and that his citizenship has been restored. LSA-R.S. 15:572 merely informs the pardonee of what has taken place by operation of law. The statute does not repeal an existing criminal provision, nor does it otherwise purport to make the offender’s conduct lawful.
Contrary to the defendant’s argument, these statutes are not conflicting, since LSA-R.S. 15:572(D) restores the rights of citizenship subject to the limitations of those rights imposed by LSA-R.S. 14:95.1. See State v. Wiggins, supra. The defendant’s affirmative defense of mistake of law is based solely on his interpretation of a letter from a state agency.

Id. p. 4; 411.

In West and Riser, there existed a specific provision of law which prohibited convicted felons from possessing a firearm. Moore’s case is slightly different. There is no specific provision requiring sex offenders, who received an automatic first offender pardon, to register. In fact, the sex offender registration provision specifically exempts “pardoned” offenders from registration. The trial judge interpreted this “pardon” to mean an automatic first offender pardon. Prior jurisprudence notwithstanding, we must acknowledge considerable confusion still exists regarding the nature and extent of the “pardon exemption” found in the sex offender registration statute.

We do not decide today whether Moore has a valid defense of mistake of law lifiOn the underlying felony charge of Failure to Register nor do we address constitutional due process issues. Those issues are not presently before us and must be first raised at the district court level.

DECREE

Our decision today is limited in scope and addresses only whether a first time sex offender, who has served his term of incarceration, probation or parole, and who has obtained a first offender pardon, is exempt from the mandatory ten year registration and notification provisions of the sex offender statute. We think not. We reverse the trial judge’s decision quashing the bill of information and remand the case to the district court for further proceedings.

REVERSED AND REMANDED.

      . In Smith v. Doe, - U.S. -, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) the United States Supreme Court recently held Alaska's Sex Offender Registration Act did not violate the ex post facto clause because its provisions were part of a civil regulatory scheme and were nonpunitive in nature. Our state supreme court in State ex rel. Olivieri v. State of Louisiana, 00-0172 (La.2/21/01); 779 So.2d 735, held earlier Louisiana's sex offender registration and notification provisions did not violate the ex post facto clause because the legislation was enacted for purposes of public safety and not to punish convicted sex offenders.

      . La.R.S. 15:541 (14.1).

      . La.R.S. 15:542.1(H).

      . La.R.S. 15:542(B).

      . La.R.S. 15:542(C)(1).

      . La.R.S. 15:542.1(H).

      . La.Code Crim.P. art. 895(H)(1).

      . La.R.S. 15:574.4(H)(2).

      . La.R.S. 15:542(F)(1) provides: "A person who fails to register as required by this Section shall, upon first conviction, be fined not more than one thousand dollars or imprisoned with or without hard labor for not less than one year nor more than five years, or both.”

      . "In 1994, Congress passed the Jacob Wet-terling Crimes Against Children and Sexually Violent Offender Registration Act, title 17, 108 Stat.2038, as amended, 42 U.S.C. § 14071, which conditions certain federal law enforcement funding on the States’ adoption of sex offender registration laws and sets minimum standards for state programs. By 1996, every State, the District of Columbia, and the Federal Government had enacted some variation of Megan’s Law.” Smith v. Doe, — U.S. -, -, 123 S.Ct. 1140, 1145, 155 L.Ed.2d 164 (2003).

      . La.R.S. 15:543(A).

      . La.R.S. 15:542.1(H)(1). (Emphasis added)

      . Proposed Senate Bill No.480 would add the following provision to R.S. 15:572(B), the first offender pardon statute:
      (2) No person convicted of a sex offense as defined in R.S. 15:541(14.1) or determined to be a sexually violent predator or a child predator under the provisions of R.S. 542.1 et seq. shall be exempt from the registration requirements of R.S. 542.1 et seq., as a result of a pardon under the provisions of this Subsection.
      Additionally, proposed Senate Bill No. 480 would add the following language to La.R.S. 15:542.1(H), Duty to Register: "or the offender is pardoned by the governor of the state through his authority under the provisions of R.S. 15:572(A).” (Emphasis added). Since this bill is only a proposal, we need not address what impact, if any, it may have on our decision today or whether Moore would ultimately benefit from this language. We do take note of this Senate proposal only to illustrate the confusion which currently exists in reconciling the pardon provision in the sex offender registration statute with the automatic first offender pardon provision.


source: Caselaw Access Project

author: JjDREW, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Kelvin A. SIMTON Appellant.
    No. 36,948-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      Stephen A. Glassell, Shreveport, for Appellant.
    Paul Joseph Carmouche, District Attorney, J. Thomas Butler, Donna • Frazier Hall, Assistant District Attorneys, for Ap-pellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   JjDREW, J.

Convicted at a bench trial of possession of a firearm by a convicted felon, Kelvin A. Simton was sentenced to the minimum prison term of ten years at hard labor without benefit of parole, probation, or suspension of sentence. He now appeals. We affirm.

FACTS

It is undisputed that on Christmas night of 2001, Kelvin A. Simton was operating a black Hyundai, in the company of the following passengers:

• his girlfriend, Georgia Lee;
• their minor child, Kayla Lee;
• Georgia Lee’s brother, Owen Roberson;
• Owen’s wife, Tamala Roberson; and
• the three young Roberson children. The trial court apparently made these further findings:
• The defendant, who was drinking, began arguing with his girlfriend.
• He threatened to go to his mother’s house to get a gun.
• The defendant then drove to a residence in Keithville, Louisiana, exited the vehicle, and took the car keys with him. Ms. Lee had an extra set of keys to the vehicle with her, and when he got out, she left in the Hyundai.
• Ms. Lee drove to a Circle K on Youree Drive in Shreveport, where she stopped to use a pay phone.
• The defendant, now driving a Ford truck, pulled up behind the Hyundai.
• He got out of his vehicle holding a shotgun and threatened to shoot Ms. Lee.
• Owen Roberson exited the Hyundai to confront the defendant in defense of his sister.
!?• Roberson attempted to disarm the defendant and the weapon discharged, striking the front left quarter panel of the Hyundai while the minor children were still inside the vehicle.
• No one in the car sustained any injuries.
• The shotgun fell to the ground as the defendant and Owen Roberson were rolling back and forth on the Circle K parking lot.
• Tamala Roberson retrieved the firearm and leaned it against the wall of the Circle K store.
• Scott Richards, one of the Circle K clerks on duty that night, took the gun inside the store and secured it until the police arrived.
• The officers detained both the defendant and Owen Roberson.
• The defendant resisted arrest and attempted to run away from the police.

At trial, the state and the defense presented different versions of the altercation. However, independent witnesses provided corroboration for the state’s theory of the case, particularly that the defendant was in possession of a shotgun as he pulled into the Circle K parking lot.

The defense witnesses (Georgia Lee, Owen Roberson, and Tamala Roberson) were not believed by the trial court. They testified that Ms. Lee had the shotgun in the trunk of the car and that SHE retrieved the gun to scare the defendant as the defendant and Owen Roberson began fighting. They alleged that the defendant had a pipe and not a gun in his hand when he exited the Ford truck.

However, the police did not recover a pipe or any other weapon, other than the shotgun, from the scene. Police officers did recover a 20-gauge single-shot shotgun, two live-shot 20-gauge shotgun rounds, and one spent round from the scene of the incident.

1 .DISCUSSION

Sufficiency of the Jury Trial Waiver

The defendant alleges that he lacked comprehension of what he was doing in giving up his right to a jury trial. He complains that the trial court failed to determine his literacy and competency, as it did not make any inquiries as to his educational background and his ability to read and write English. Admitting that he responded affirmatively to the questions put to him by the trial court, while represented by counsel, he nonetheless complains there was no showing that he was competent enough to understand the right he was giving up.

The right of a jury trial in criminal cases is fundamental to our system of justice. State v. Muller, 351 So.2d 143 (La.1977). A defendant’s knowing and intelligent waiver of his right to a jury trial must be sufficiently demonstrated by the record. State v. Mandigo, 29,913 (La.App.2d Cir.10/31/97), 702 So.2d 351, citing, State v. Muller, supra, and State v. McCarroll, 337 So.2d 475 (La.1976). In this instance, the record sufficiently indicates that defendant knowingly and intelligently waived his right to a jury trial. Excerpts from the transcript clearly support this conclusion:

Mr. Casey: We are ready and we’d like to waive a jury trial and be tried by the Court. We are talking about the possession charge?
Ms. Hall: That is correct.
By the Court:
Q. All right. Mr. Simton, you understand that you are charged with a | ¿felony, and because you are charged with a felony you are entitled to a trial by jury. Do you understand that?
A. Yes, sir.
Q. Do you understand also that you have the right to waive your right to a trial by jury and be tried by a judge?
A. Yes sir.
Q. All right. After discussing the matter with your attorney do you wish to waive your right to a trial by jury and be tried by a judge?
A. Yes sir.
Q. All right. So ordered. We’ll pass this matter temporarily. We are going to take the jury trials first.

The defendant never objected to the waiver of his right to a jury trial during trial, nor did he challenge the sufficiency of his waiver by filing a motion in arrest of judgment prior to sentencing. That being said, had the claim been addressed on the merits, this assignment of error must still fail, due to the clear verbalization of defendant in giving up this right in the presence of his lawyer. The trial court advised the defendant of his right to a jury trial and his ability to waive that right. In open court, the defendant himself waived his right to a trial by jury and elected to be tried by the judge alone. This colloquy, in its simple clarity, amply satisfies jurisprudential requirements for a jury trial waiver.

Sufficiency of the Evidence

The defendant argues that the evidence taken as a whole does not prove beyond a reasonable doubt that he possessed a firearm, in that three witnesses | .^testified that he never had the shotgun in his possession on the night in question. He further complains that the state’s witnesses were from Arkansas and only saw the defendant on one occasion.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132. This 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. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165.

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. 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. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writ denied, 02-2595 (La.3/28/03) 840 So.2d 566. 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. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So.2d 760, and 98-0282 (La.6/26/98), 719 So.2d 1048.

| (¡To support the conviction of possession of a firearm by a convicted felon, the state must prove beyond a reasonable doubt that: (1) defendant possessed a firearm; (2) defendant was convicted of a prior enumerated felony within the ten-year statutory time limitation; and (3) general intent to commit the offense. Possession must be intentional. General intent is shown when the proof shows that the perpetrator carried on his person a firearm. State v. Haddad, 99-1272 (La.2/29/00), 767 So.2d 682, cert. denied.

The state and the defense stipulated to the fact that the defendant was convicted of the charge of illegal use of a weapon in 1997. The state presented two independent witnesses who testified that they saw the defendant in actual possession of a 20-gauge shotgun in the parking lot of a Circle K convenience store on the night of December 25, 2001.

Although the defendant presented witnesses who testified that the defendant did not possess the shotgun, some of this testimony was inconsistent with:

• prior statements made to the police on the night of the incident,
• prior testimonies during the preliminary examination, and
• actual physical evidence.

The record indicates that Tamala Roberson, a witness for the defense, gave a statement to police on the night of the incident. In that statement, she told police that Simton had stopped at a residence in Keithville, Louisiana, to get a gun, and that when Simton exited the car, Ms. Lee got into the driver’s seat and drove away. The record also indicates that Ms. Roberson told police that when Simton pulled up behind them in the Circle K parking lot, he exited his truck with a shotgun. During her trial testimony, Ms. Roberson denied |7making any such statements to the police and had totally changed her story, now testifying that Ms. Lee retrieved a shotgun out of the trunk of the Hyundai.

During the trial, Ms. Lee testified that Simton was armed with a pipe and not a shotgun. She testified that she retrieved the shotgun out of the trunk of the car she was driving. On cross examination, Ms. Lee admitted that she had not testified about the defendant having a pipe during her preliminary examination testimony. The record also indicates that there was no pipe recovered from the scene of the incident. Ms. Lee also testified in the preliminary examination that the shotgun belonged to her, and that it previously belonged to her grandmother. She testified that she had been familiar with the gun all her life. During the preliminary exam, Ms. Lee described the shotgun as a two-barrel shotgun. The record reveals that the shotgun recovered from the scene of the incident was a single-barrel shotgun.

The trial court heard the testimony, weighed the evidence, and made its witness-credibility decisions. The record supports the verdict of guilty. The state presented evidence that the defendant was in actual possession of a shotgun, that he was a convicted felon, and he had the general intent to commit the offense. Viewing all the evidence, a rational fact-finder could be convinced beyond a reasonable doubt that all elements of the crime of possession of a firearm by a convicted felon were present in this case. Therefore, this assignment of error is without merit.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . The sentence is illegally lenient in that violation of this statute requires a fine ranging from $1,000 to $5,000.

      . The Louisiana Supreme Court, in a per cu-riam opinion, has recently allowed counsel to waive defendant’s right to a jury trial outside the presence of defendant, if the client’s decision was knowing and intelligent. State v. Pierre, 02-K-2665 (La.3/28/03), 842 So.2d 321.


author: I,STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Derrick D. WINN, Appellant.
    No. 37,165-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      Louisiana Appellate Project, by James E. Beal, Peggy J. Sullivan, Monroe, for Appellant.
    Richard Ieyoub, Attorney General Jerry L. Jones, District Attorney, H. Stephens Winters, Assistant District Attorney, for Appellee.
    Before WILLIAMS, STEWART and PEATROSS, JJ.
   I,STEWART, J.

A jury found Derrick Winn (“Winn”) guilty as charged on one count of possession of cocaine with intent to distribute, a violation of La. R.S. 40:967 punishable by imprisonment at hard labor for no less than two nor more than thirty years, with the first two years to be served without benefits, and an optional fine. The district court imposed a sentence of six and one-half years, with the first two and one-half years to be served without benefits. Although he failed to file a motion for reconsideration of sentence, Winn argues that his sentence is excessive and that the court failed to give adequate consideration to his youth — age 19 — at the time of sentencing. We find no merit in these claims. Therefore, we affirm the conviction, amend the sentence to provide for the denial of benefits as to the first two years only, and as modified, affirm the sentence.

FACTS

The record discloses that on January 5, 2002, Winn and a companion shoplifted two jackets at a store in the Pecanland Mall in Monroe. They were arrested after a brief foot pursuit. While Winn was being booked into jail, the police found 35 rocks of crack cocaine and some marijuana in his pants pocket. Winn told the arresting officers he had paid $60 for the cocaine and had received a little extra to sell to make money. Following a trial on the merits, a jury convicted Winn of one count of possession of cocaine with intent to distribute. This appeal followed.

DISCUSSION

When, as here, a defendant fails to file a motion for reconsideration of sentence he is relegated to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992).

Prior to imposing sentence, the trial court reviewed a pre-sentence investigation report and considered the facts of the case and the defendant’s social history. The court noted that at the time of this offense Winn was on probation following his conviction, two months earlier, for attempted simple burglary. He had never reported to the assigned probation officer. Winn had also been institutionalized as a juvenile for unauthorized use of a motor vehicle and had a pending bench warrant on an unrelated shoplifting charge. Accordingly, the court determined Winn was in need of a custodial environment.

On this record, we do not find constitutional error. Winn faced a sentencing exposure of up to 30 years. The sentence imposed is only slightly more than one-fifth of that range. Thus, the sentence, as amended, is not illegal. Moreover, we do not find the sentence to be grossly disproportionate to the severity of the offense or shocking to the sense of justice. Winn is a second felony offender who committed the instant offense while in probationary status. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence which, under the facts and circumstances of this case, is not constitutionally excessive.

We also note that even had defense counsel filed a motion for reconsideration of sentence, our disposition would not change. There is no | ¡¡requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979.

However, the statute of conviction, as amended by Acts 2001, No. 403, effective June 15, 2001, allows only two years to be without benefits. Accordingly, this court must amend the sentence to provide for the denial of benefits as to the first two years only. See, e.g., State v. Fontenot, 2001-0178 (La.App. 4th Cir.8/8/01), 795 So.2d 410, 412, writ denied, 2001-2627 (La.10/4/02), 826 So.2d 1114.

CONCLUSION

The record adequately indicates the trial court was aware of defendant’s age and gave that fact such weight as was deemed appropriate. Therefore, the conviction and sentence, as amended, are affirmed.

AMENDED AND AFFIRMED AS AMENDED.


author: 11 DREW, J.

text:
    Dina D. BROWN, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 37,151-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      Sir Clyde Lain, II, Monroe, for Appellant, Dina D. Brown.
    G. Larry Arbour, for Appellees, Allstate Insurance Company, Allstate Indemnity Company, Floyd J. Collins, and Edward Bryant.
    Beychok & Walsh, by Benjamin David Beychok, for Appellee, U.S. Agencies Casualty Insurance Company, Inc.
    Before BROWN, CARAWAY and DREW, JJ.
   11 DREW, J.

This dispute concerns the application of the “no pay, no play” provision in La. R.S. 32:866. Dina Brown complains that the trial court erred in finding her Nissan automobile was uninsured at the time of the accident. For the following reasons, we affirm.

On March 24, 2000, Dina Brown was driving her 1990 Nissan Maxima south on South Grant Street in Monroe, Louisiana, when her vehicle was struck from the rear by a vehicle driven by Floyd Collins, owned by Edward Bryant, and insured by Allstate Indemnity Company. Brown later filed suit against Collins, Bryant, and Allstate for damages allegedly suffered in the accident. The defendants’ answer included the affirmative defense that Brown had terminated automobile liability insurance on her Nissan earlier on the very date of the accident, which meant her vehicle was not covered by any motor vehicle liability insurance policy or security. Therefore, under the provisions of La. R.S. 32:866, the defendants alleged that Brown could not recover the first $10,000 of bodily injury and could not collect for the first $10,000 of property damage, as per La. R.S. 32:866(A)(1).

Brown subsequently added U.S. Agencies Casualty Insurance Company, Inc. as a defendant, alleging that her Nissan had been insured by U.S. Agencies, and that on the morning of the accident she had gone to U.S. Agencies not only to have a 1979 Ford Granada added to her policy, but also to have the Nissan deleted from the policy, but with these changes to become effective on April 28, 2000, the anniversary date of her policy. Brown alleged that due to the error, negligence, and omission of U.S. | ¡Agencies in handling her request, and also due to U.S. Agencies providing erroneous information to Allstate, she had suffered damages.

After trial on the merits, the trial court found that Brown had no insurance on her Nissan at the time of the accident, and that Brown’s damages did not exceed the $10,000 recovery restrictions of La. R.S. 32:866. Accordingly, the trial court dismissed Brown’s claims against all the defendants. This appeal followed.

TRIAL EVIDENCE

On the morning of trial, the parties stipulated that the accident in question occurred on March 24, 2000, at approximately 1:20 p.m. Furthermore, they stipulated that Brown’s Nissan was a total loss, and that the vehicle value was $3,771. Certain medical records, statements, and bills were introduced into evidence, and showed that Brown’s medical costs were less than $750. Also introduced into evidence at that time was the declarations page for Brown’s original insurance application with U.S. Agencies for her Nissan. That page indicated the policy period was from 04/29/1999 to 04/28/2000, and that the only vehicle being insured was Brown’s Nissan.

Brown was the first witness to testify. She stated that on the morning of March 24, 2000, she drove her Nissan to the U.S. Agencies office to transfer her insurance from one car to another. She planned on transferring the insurance from the Nissan to a 1979 Ford Granada located at her parents’ house, and the transfer was supposed to occur at “the end of the policy” that expired on April 28, 2000. Brown testified that the Granada | ¡¡was not in operating condition on March 24, 2000, and did not become operable until the latter part of April. The Granada and the Nissan were the only two vehicles she owned, and she testified she did not plan on having the insurance cancelled on the morning of March 24.

On cross-examination, counsel for U.S. Agencies used Brown’s testimony to admit into evidence her original application for insurance showing the Nissan as the only vehicle on which Brown requested insurance. Similarly, the policy declaration sheet showed that Brown had 10/20/10 insurance on the Nissan, that the premium charges were $500.83, and the total amount charged was $638.

A subsequent application for insurance, with an effective date of 3/24/2000 and an expiration date of 4/28/2000, listed only the 1979 Ford Granada as the vehicle upon which insurance was sought. Brown admitted that her initials appeared at the bottom of the page indicating that she had read and agreed to the contents of the application. Brown also was asked to look at the declarations page for the more recent policy which stated that one car was being deleted and another ear added, with the new premium being $648 and the new total payment being $703. The vehicle identification numbers for the deleted vehicle and the added vehicle matched those of the Nissan and the Granada, respectively. The remainder of Brown’s testimony concerned medical treatment.

The next witness was Yolanda Huckleberry, the U.S. Agencies employee who served Ms. Brown on March 24, 2000. Although Huckleberry did not remember Brown, after looking at notes that she typed Linto the U.S. Agencies computer, she testified that she had deleted one car and added another for Brown on March 24, 2000. The notes indicated this action took place at 9:02 a.m., and Huckleberry indicated she thought that the transaction was already completed by that time. On cross-examination, Huckleberry admitted that she did not know why the policy period for the Granada did not go from 3/24/2000 to 3/23/2001, when the $703 total payment was for one year. However, Huckleberry did state that if she endorsed the policy for 3/24/2000, then Brown requested that the change be implemented that date, i.e., that she did not request that Huckleberry wait and add the Granada after the original policy expired.

The next witness was Barbara Lynn, a regional manager for U.S. Agencies who was Huckleberry’s supervisor on 3/24/2000. Lynn testified to her familiarity with the U.S. Agencies policy, and after reviewing the original application for insurance, she indicated the various information supplied by the application, including the effective date of 4/29/1999 and the expiration date of 4/28/2000. In response to a question by the court, she indicated the date of 4/29/1999 was the time the customer came to U.S. Agencies to begin the policy, and that the time of 12:30 that day indicated the time the customer was in the office and the time the policy went into effect.

After thoroughly describing the information listed in the application, Lynn lookéd at the document executed on March 24, 2000, at 8:59 a.m. She indicated that she saw an endorsement of a different vehicle, with Brown’s Nissan replaced by the Granada. According to Lynn, the only car then | .¡covered by U.S. Agencies was the Granada. Lynn also explained the difference in payments, noting that at the time Brown added the Granada to the policy, she had already completed her finance contract on the original policy. Thirty-four days still were left on that contract. When Brown came in to make the change of vehicles, Brown could not finance it because the finance contract was “paid out and closed.” Thus, Brown’s only option was to pay any additional premium in full at that time. In Brown’s case, there was a premium payment of $6.00 made on the morning of 3/24/01, due to the difference in the availability of discounts on the Nissan versus the Granada. Lynn also testified that if both the Nissan and the Granada had been insured under the same policy at the same time, a multiple-vehicle discount would have applied, making the total cost $996 instead of the original $638 for the Nissan alone. If the Nissan had not been deleted from the policy at the time the Granada was added, then the additional cost for the remainder of the term of the policy would have been $40.87.

Rose Noble, who was with Brown on the day of the accident, testified that Brown owned both the Nissan and the Granada on the date of the accident, but the Granada was not working at the time and could not be driven.

At the end of the trial, the trial court concluded that the documented evidence showed the substitution of one vehicle for the other. The court stated that the payment made by Brown was only for the increased cost because of the reductions available on the Nissan that were not available on the Granada. The court also noted that Brown had initialed indicating that |fishe was advised on the policy and that she had read it. Finding that a substitution took place by endorsement, and that the damages did not approach the $10,000 in damages required by La. R.S. 32:866, the court ruled in favor of Allstate. With respect to U.S. Agencies, the court found that Brown had not proven clerical mistakes on the part of U.S. Agencies. Thus, the court also found in favor of U.S. Agencies.

DISCUSSION

The provisions of La. R.S. 32:866(A), (B) and (C) state:

A.(1) There shall be no recovery for the first ten thousand dollars of bodily injury and no recovery for the first ten thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security.
B.Each person who is involved in an accident in which the other motor vehicle was not covered by compulsory motor vehicle liability security and who is found to be liable for damages to the owner or operator of the other motor vehicle may assert as an affirmative defense the limitation of recovery provisions of Subsection A of this Section.
C.If the owner of a motor vehicle, who fails to own or maintain compulsory motor vehicle liability security, institutes an action to recovery damages in any amount, regardless of whether such owner or operator is at fault, and is awarded an amount equal to or less than the minimum amount of compulsory motor vehicle liability security, then such owner or operator shall be assessed and held hable for all court costs incurred by ah parties to the action.

In the instant case, there is no dispute that Brown’s damages did not exceed the $10,000 recovery restrictions under the statute.

On appeal, Brown argues that the purpose of the statute is to penalize persons who intentionally fail to comply with the Compulsory Motor |7Vehide Liability Security Law. Brown argues that the statute should exclude her because she had insurance on the date of the accident, but through a misunderstanding between her and her insurer, liability coverage was prematurely cancelled. She points to the fact that she had recently purchased an inoperable vehicle that would become operable near the expiration of her policy, and argues that it would not be reasonable for her to purchase liability insurance on a vehicle that was inoperable.

While we agree that the purpose of the statute, also known as the “no pay, no play” statute, is to discourage the operation of uninsured vehicles, we do not agree that application of the statute requires examination of the intent of the would-be insured, certainly not where the documentation is clear. Recovery limitations apply to an owner or operator of a motor vehicle involved in an accident who fails to own or maintain compulsory motor vehicle liability security on the vehicle involved in the accident. La. R.S. S2:866(B). Thus, the only question for purposes of statutory application is whether or not Brown’s Nissan was covered at the time of the accident. The trial court found that it was not.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Cole v. Department of Public Safety, 2001-2123 (La.9/4/02), 825 So.2d 1134; Stobart v. State of Louisiana, 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the |sfact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989).

In the case at bar, we find that the trial court’s view of the evidence was reasonable. No manifest error exists in the trial court’s conclusion on coverage. Both the documentary evidence and the testimony of the employees of the U.S. Agencies established that Brown’s Nissan was removed from coverage under the policy, while Brown’s Granada was substituted for it on the very morning before the accident occurred. Brown’s application for insurance on the Granada clearly states that the effective date was 3/24/2000 and not 4/28/2000, the expiration date of the original term. Furthermore, Brown clearly had the opportunity to read the application as evidenced by her initials next to four statements on the application concerning ownership, vehicle usage, special equipment, and the reading of her policy.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is hereby affirmed at Dina Brown’s cost, as per La. R.S. 32:866(C).

AFFIRMED.

BROWN, C.J., concurs.


author: 1,BROWN, C.J.,

text:
    STATE of Louisiana, Appellee, v. Keith Lynn BARNES, Appellant.
    No. 37,155-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      Carey J. Ellis, III, Louisiana Appellate Project, Rayville, for Appellant.
    Keith Lynn Barnes, In Proper Person.
    Richard Ieyoub, Attorney General, Jerry Jones, District Attorney, Geary Aycock, Assistant District Attorney, for Appellee.
    Before BROWN, PEATROSS, and KOSTELKA (Pro Tempore), JJ.
   1,BROWN, C.J.,

Defendant, Keith Lynn Barnes, was convicted of possession of cocaine and sentenced as a habitual offender to eight years at hard labor without benefit of probation, parole or suspension of sentence. Defendant now appeals from that conviction. Finding no error, however, we affirm.

Facts

On June 29, 2000, Detective Triche Pass-man, assigned to the Monroe Police Department Jump Team (a narcotics interdiction unit), received a telephone call from a confidential informant (“Cl”). The Cl said that defendant, a convicted drug felon, wanted him to find a buyer for some cocaine defendant was planning to purchase and resell. Det. Passman told the Cl to arrange for defendant to sell the drugs to an undercover officer. The Cl picked defendant up in a car belonging to the Cl’s mother and drove defendant to a house where defendant picked up a bag of drugs from defendant’s cousin. The Cl witnessed the exchange in the front yard of the residence. Detective Passman called the Cl and, speaking in code, learned that defendant had the drugs and was riding in the front passenger’s seat of the vehicle, a maroon four-door Pontiac Grand Am, and they were heading toward South Eighth Street.

Det. Passman notified the other members of the narcotics interdiction team. Two of the officers spotted a vehicle matching the description given by Det. Passman and pulled the car over. Both the Cl and defendant were ordered to get out of the vehicle. Defendant was patted down and no drugs were found on his person. Detective Passman and other members of the team arrived at the scene and the Cl gave consent to search the vehicle. A ^plastic bag containing what was later confirmed to be crack cocaine was found on the rear floorboard of the car. The Cl identified it as the drugs that defendant had obtained. Defendant was arrested.

The contraband weighed 23.5 grams and defendant was charged with possession of cocaine with intent to distribute. A jury found defendant guilty of possession of cocaine, a responsive verdict to the intent to distribute charge. The state filed a habitual offender bill and defendant was adjudicated a second felony offender. Defendant was sentenced tp eight years at hard labor without benefit.

Discussion

Sufficiency of the Evidence

Defendant asserts that the jury erred in finding him guilty of possession of cocaine based upon the testimony of a convicted felon/paid police informant.

An appellate court does not review facts except for due process under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson v. Virginia standard for appellate review of a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. State v. Ponsell, 33,543 (La.App.2d Cir.08/23/00), 766 So.2d 678, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490.

La.R.S. 40:967(A) provides in part that it shall be unlawful for any person knowingly or intentionally:

|a(l) to produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II;

Cocaine is a schedule II controlled dangerous substance. La.R.S. 40:964, Schedule 11(A)(4).

The state’s case turns on the testimony of the Cl. The informant stated that he drove defendant to defendant’s cousin’s home and observed defendant get a bag of drugs from his cousin. The Cl then left with defendant, whose intent was to sell the drugs to a third person. The two were pulled over before the intended sale, the car was searched and a bag of crack cocaine was seized. The Cl stated that this was the same bag of cocaine that defendant had picked up from defendant’s cousin.

In an attempt to discredit the Cl’s testimony, the defense on cross-examination showed that this witness, the only link to defendant’s ownership and possession of the crack cocaine, was a paid police informant with a prior felony conviction for burglary. The Cl admitted that he was paid in this drug case ($100 or $120), as well as on “numerous” other occasions, was a former “crackhead” and, if he so desired, could obtain drugs. Det. Pass-man testified that he had coordinated the drug bust with the Cl on the date of defendant’s arrest.

Defendant claims that the testimony of the Cl and Det. Passman conflicted regarding the number of telephone conversations they had that day and who initiated the calls. At least two telephone conversations between the Cl and the detective occurred. The first one was to notify Det. Passman that defendant was back into selling drugs and to set up a plan for 1 ¿defendant to sell to an undercover officer. Another phone call was made, and Det. Passman learned that the drugs had been obtained and that defendant was with the Cl in a particular car which would be traveling on a particular route. Whether this was the second or third call of the day and which party initiated this call was unclear. We cannot categorize this as a contradiction. Further, the record is replete with testimony from these two witnesses and other officers in which the details are consistent. The relevancy of the lack of clarity on the number of calls was for the jury to weigh.

Defendant also alleges contradictions in the testimony of Det. Passman regarding where the drugs were located when seized. Det. Passman testified that when he arrived at the scene, the Cl told him that defendant had thrown the drugs into the back seat. On cross-examination, the Cl admitted that he had not actually seen defendant throw the contraband into the back seat. In the initial arrest affidavit, the detective wrote by hand that the drugs were found behind the passenger seat. The typed investigation report states that the crack cocaine was lying on the rear left floorboard in plain view. The detective’s testimony at three different hearings, the preliminary examination, the motion to suppress and the trial, was that the drugs were found behind the driver’s seat on the floor board. When asked to explain, the officer replied, “Yeah, it (when he wrote that the drugs were behind the passenger’s seat) was just a mistake.”

Additionally, the arrest affidavit states that the Cl told Det. Passman that defendant “had just purchased the crack and had gotten into a maroon 15Grand Am driven by a(sic) unknown B/M.” At the preliminary examination, Det. Passman on cross-examination stated that the Cl did not mention the name of the driver. At the trial, however, the driver of the car was identified as the CL At trial, Det. Passman testified that the original plan was for defendant to sell to an undercover agent; had that occurred, the testimony of the Cl would not have been needed and the officer wanted to protect his identity.

Finally, defendant questioned the chain of custody of the drugs because the original plastic bag that contained the cocaine was not sent to the crime lab. Through rebuttal evidence, the state showed that the bag inadvertently remained in the police evidence room.

The jurors listened to and observed the witnesses’ testimony. Two other officers testified independently as to how they learned about defendant being in possession of drugs, how the stop was made and where the drugs were found. Testimony as to the time of day, the location, who was arrested, what was found at the scene and other details of the arrest was consistent. The evidence is clear that the officers were expecting to find defendant in possession of cocaine in a maroon car. The jury chose to believe the testimony of the Cl that the drugs had been obtained by and belonged to defendant, not him. Ambiguity caused by Detective Passman’s attempt to protect the identity of the Cl was for the jury to weigh as was the chain of evidence.

A reviewing court must defer to the trier of fact’s rational credibility calls. It is for the jury to weigh the evidence and the inference drawn | ^therefrom. State v. Mussall, 523 So.2d 1305 (La.1988); State v. Jones, 36,553 (La.App.2d Cir.01/29/03), 840 So.2d 7. It is not the function of the appellate court to assess credibility or reweigh evidence. State v. Marcantel, 00-1629 (La.04/02/02), 815 So.2d 50. 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. Jackson, 33,837 (La.App.2d Cir.09/27/00), 768 So.2d 767, writ denied, 00-3078 (La.11/02/01), 800 So.2d 864.

In light of the above, we find no merit to this assignment of error.

Denial of Motion to Suppress

Defendant next argues that the initial stop was without probable cause and that the evidence seized from the car is therefore inadmissible.

Searches conducted without a warrant, that is without prior approval by a judge, are unreasonable under the Fourth Amendment except under a few specifically established and delineated exceptions. The Louisiana Supreme Court recently stated that the “automobile exception” sets forth two conditions that must be satisfied before a warrantless seizure of evidence from within a movable vehicle is authorized: (1) there must be probable cause to believe that the vehicle contains contraband or evidence of a crime; and (2) there must be exigent circumstances. State v. Thompson, 02-0333 (La.04/09/03), 842 So.2d 330. We note, however, the holding in Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999), in which the U.S. Supreme Court found that the |7automobile exception does not have a separate exigency requirement. In Dyson, the court reasoned that if a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits police to search the vehicle without more. Obviously, when dealing with a readily mobile vehicle, exigency always exists. In that respect the decisions in State v. Thompson and Dyson are reconcilable.

Whether information furnished by a confidential informant provides probable cause for an arrest or search depends on the “totality of the circumstances.” A court must consider, among other things, the informant’s veracity, facts relating to the informant’s basis of knowledge and corroboration of the informant’s information. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Raheem, 464 So.2d 293 (La.1985).

At the motion to suppress hearing, Det. Passman testified that he had used the Cl on numerous occasions. Specifically, information he has received from the Cl has directly led to nine felony drug arrests and has been instrumental in obtaining 35 felony drug arrests and search warrants. Det. Passman also testified that the information provided by the Cl has always been accurate and rehable.

After contacting him and telling him that defendant was trying to get back into the drug trade, the Cl kept Det. Passman abreast of the events as they unfolded. The Cl advised the detective that he was taking defendant to defendant’s cousin’s home to pick up the drugs; thereafter, they had the drugs and were traveling in a particular vehicle and direction. Det. Passman |swas dealing with a “tested” informant giving direct evidence of criminal conduct. Probable cause clearly existed to believe that the vehicle contained evidence of a crime and contraband.

Once probable cause has been established, the question of exigent circumstances presents no problem. Defendant was in a moving vehicle intent on disposing of the drugs he was carrying. The police were not able to timely set up a buyer and had to react quickly. Thus, exigent circumstances existed.

Inasmuch as we have found probable cause and exigent circumstances rendering the search and seizure reasonable, we do not address the argument that something less than probable cause legitimated the stop and that the drugs were in plain view. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and progeny. Nor do we consider the issue of the Cl’s ■ consent to search the vehicle.

Contents of Record

In a pro se brief, defendant complains that the proceedings were not adequately transcribed, thereby preventing judicial review based on a complete record of the case.

La. Const, art. I, § 19 guarantees a defendant a right of appeal based upon a complete record of all the evidence upon which the judgment is based. While this court has reversed when material portions of the trial record are incomplete or unavailable, a slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal does not require reversal of a conviction.

13Our review of the record reveals a mistake in the transcript wherein the court reporter states that the jury returned a verdict of attempted possession of cocaine with intent to distribute. The court minutes reflect, however, that defendant was convicted of the lesser charge of possession of cocaine. The written jury verdict is not included in the record. Defendant was sentenced on the lesser crime. While this is a significant error in the transcription, the error is harmless and does not warrant reversing defendant’s conviction.

According to the reasoning set forth in State v. LaCaze, 99-0584 (La.01/25/02), 824 So.2d 1063, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002), this record contains all significant parts of the proceedings and thus provides a basis for the full judicial review guaranteed to all defendants in Louisiana.

This assignment is without merit.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.


author: BBROWN, C.J.,

text:
    Derrick WILLIAMS, Plaintiff-Appellee, v. John L. BASS, Defendant-Appellant.
    No. 37,156-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      Raymond Lee Cannon, Tallulah, for Appellant.
    Derrick Williams, In Proper Person.
    Before BROWN, PEATROSS, and KOSTELKA (Pro Tempore), JJ.
   BBROWN, C.J.,

Defendant/lessee, John Bass, suspen-sively appeals from a judgment evicting him from a house owned by plaintiff/lessor, Derrick Williams. We affirm.

Facts

Williams is the owner of a house located at Route 2, Box 128, Newellton, Louisiana. On November 29, 2000, Williams leased this home to Bass for one year beginning on December 1, 2000, and ending December 1, 2001. A copy of a Lease Rental Agreement signed only by Bass was filed into evidence by Williams. Included in this agreement was an “Option to Purchase” the leased property “at any time during the term of this lease.” The consideration for the option was the payment of $942 each month. If the option was exercised, the cost of the property would be “The Payoff Price of the Mortgage”.

Bass continued to occupy the home after December 1, 2001. On April 17, 2002, Williams wrote Bass a letter stating in part that Williams had received payment of the rent for January 2002 but not for February, March, or April, 2002. Williams demanded payment of rent and late fees for these months within ten days or else Williams would institute eviction proceedings.

The record next contains an undated notice of eviction from Williams to Bass ordering him to vacate the premises within ten days or formal eviction proceedings would commence. On May 1, 2002, Bass’s lawyer wrote to Williams and stated that “Mr. Bass desires to enter into a Purchase Agreement with you to buy the residence ... I understand that any pending | ¡.eviction proceedings will be held in abeyance during the course of these negotiations.”

On July 5, 2002, Williams filed a rule to evict Bass from the premises for failure to comply with the written notice to vacate. The matter was continued several times. Trial on this matter was held on October 9, 2002. The court minutes reflect that Williams was present at trial representing himself; he testified and introduced into evidence the lease agreement, his April 17, 2002, letter to Bass, and the undated notice to vacate. The minutes indicate that Williams testified that Bass failed to pay rent “since February of 2002.” Bass was unable to attend the trial for medical reasons but the court agreed to hold the matter open until Bass was available. The minutes next reflect that Bass and another witness, Lamont Bass, appeared and testified at the continuation of the trial on October 23, 2002. The minutes do not reflect the substance of their testimony. Neither party requested that the court proceedings be transcribed, and there is no trial transcript.

On October 28, 2002, Bass filed an answer under oath to the petition. In his answer, he asserted:

I. [Defendant and his family are occupying the residence ... upon the representations of Tony Baldwin, the son-in-law of the plaintiff, Derrick Williams, that plaintiff, Derrick Williams, would deal in good faith in negotiating the sale of the residence at issue in this case to the defendant. Tony Baldwin, plaintiffs son-in-law, also arranged the loan specifically for plaintiff to purchase this residence which was once owned by the defendant with the understanding that plaintiff would sell the residence to defendant after good faith negotiations which would include applying rent payments toward the purchase price.
II. Defendant has done about $6,000.00 ... in repairs on the residence and paid $12,000.00 ... as rent for this residence. | «III. Defendant further shows the court that the plaintiff has failed to communicate with defendant and failed to negotiate a purchase price for the residence at issue in good faith. The defendant shows the court that to permit defendant to evict under these circumstances allows the court to be used to enforce an obligation to the detriment of the innocent defendant.

On October 30, 2002, the trial court signed a judgment evicting Bass from the home. The trial court found that Bass had not paid his rent after January 1, 2002, and that notice to vacate was given. It further held that the matters raised in defendant’s post-trial answer were not before the court in the present posture of the case. Bass now appeals.

Discussion

Standard of Review

The factual findings of a trial court will not be disturbed absent manifest error. Powell v. Regional Transit Authority, 96-0715 (La.06/18/97), 695 So.2d 1326; Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse the trial court’s factual findings, the appellate court must find from the record that no reasonable factual basis exists for the findings and must determine that the record establishes the findings as clearly wrong or manifestly erroneous. Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993).

Lease Agreements

Leases may be made by either written or verbal contract. La. C.C. art. 2683. To be valid, a contract of lease must have three essential elements, the thing, the price, and consent. La. C.C. art. 2670.

|4On appeal, Bass urges that the trial court erred in failing to address the issues raised in his post trial answer regarding the option to purchase the property, credit toward purchase for rent paid, and reimbursement or other claims Bass might have against Williams.

In Citizens Bank & Trust Co. v. Carr, 583 So.2d 864 (La.App. 1st Cir.1991), writ denied, 588 So.2d 109 (La.1991), cited with approval in McTurner v. McTurner, 26,123 (La.App.2d Cir.09/21/94), 649 So.2d 1, 6, writ denied, 94-2876 (La.01/27/95), 650 So.2d 241, the court stated:

A summary action for eviction involves the single issue of whether the owner is entitled to possession of the premises. Roussel v. Dalche, 158 La. 742, 104 So. 637 (1925). An occupant cannot defeat the owner’s right to summary action for eviction by injecting therein issues foreign to the one issue involved and thereby converting the summary proceeding into an ordinary proceeding. See Vicknair v. Watson-Pitchford, Inc., 348 So.2d 695 (La.App. 1st Cir.1977).

See also Williams v. Reynolds, 448 So.2d 845, 847 (La.App. 2d Cir.1984):

La. C.C.P. Articles 4701 through 4705 provide a summary process for eviction of a lessee by a lessor because the lease has ended due to expiration of its term, or for other lawful cause. It is well settled that a summary action for eviction of a tenant or lessee under these articles involves the single issue of whether the lessor is entitled to receive back possession of the leased premises.

Bass’s answer appears to be a demand for specific performance which should have been filed as a reeonventiona! demand. Further, the answer was not filed until after the trial was completed. The trial court was correct in not considering it in this posture.

After reviewing the evidence in its entirety, we find that although the written lease contract was not signed by Williams, it was offered into evidence by Williams as proof of the agreement between the parties. As [fiSuch, it is valid and enforceable. It provided for a term of one year. When Bass continued to occupy the house after the term expired, it became a month-to-month lease. See La.C.C. art. 2689. The reconductive lease, however, would not include an onerous provision such as an option to purchase. Once the lease is terminated, all unexercised option rights are extinguished. Landau v. Groves, 397 So.2d 866 (La.App. 4th Cir.1981). An option agreement which is part of a lease having a definite term (as in the instant case), is necessarily limited to the term of the lease. Snedegar v. Noel Estate, Inc., 438 So.2d 677 (La.App. 2d Cir.1983), writ denied, 442 So.2d 469 (La.1983). Therefore, upon reconduction of the lease on December 1, 2001, Bass’s unexercised option to purchase terminated.

Williams delivered to Bass a written notice to vacate the house as required by La. C.C. art. 4701. He furnished such notice after mailing Bass the April 17, 2002, letter demanding three months’ worth of overdue rental payments. On July 5, 2002, Williams ultimately filed eviction proceedings against Bass due to his successive nonpayment of rent. La. C.C.P. art. 4731 et seq. All formal requirements for a summary eviction procedure have been met.

Conclusion

On this record, we find neither manifest error of fact nor error of law. Accordingly, the judgment of the trial court is AFFIRMED. Costs of this appeal are assessed to John L. Bass.

AFFIRMED.


author: hBROWN, C.J.

text:
    STATE of Louisiana, Appellee, v. Barbara S. LEE, Appellant.
    No. 37,143-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      James Edward Beal, Jonesboro, Mary L. Harried, Assistant Indigent Defender, for Appellant.
    Richard Ieyoub, Attorney General Paul J. Carmouche, District Attorney, J. Thomas Butler, Bruce Dorris, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS, and CARAWAY, JJ.
   hBROWN, C.J.

Defendant, Barbara S. Lee, pled guilty to one count of felony theft (a violation of La. R.S. 14:67) and was sentenced to six years at hard labor. After denial of her timely motion for reconsideration, defendant appeals the sentence. For the following reasons, we affirm.

Discussion

Defendant argues that her sentence is excessive because the trial court failed to adequately consider her age and lack of prior criminal history.

Defendant was a 35-year employee of Lunn, Irion, Johnson, Salley, and Carlisle, a Shreveport law firm. She became the firm’s bookkeeper and in this capacity, from January 1, 1994, through December 31, 2000, defendant embezzled approximately $373,000 from the firm. When confronted, defendant admitted her culpability and said she used some of the money to pay her personal debts but spent most of the money to support her gambling habit at the local casinos. She also wrote several large checks to her daughter-in-law.

Prior to imposing sentence, the district court considered a PSI report which provided detailed information concerning the background of the defendant who, at the time of sentencing, was 66 years old. The court considered the facts of the case and noted that defendant had enrolled in a treatment program for compulsive gamblers. In mitigation, the court considered that this was defendant’s first offense and that she was 66 at the time of sentencing. In aggravation, the court noted the large amount of money involved.

| j>A sentence violates La. Const, art. 1, § 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. 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. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864.

On this record, we do not find constitutional error. The sentence imposed is near the middle of the sentencing range available to the district court. Defendant spent 35 years with the victim law firm. She was in a position of trust which she repeatedly abused in an “ongoing series of criminal acts.” See State v. Daigle, 96-782 (La.App. 5th Cir.01/28/97), 688 So.2d 158, writ denied, 97-0597 (La.09/05/97), 700 So.2d 506. Although she was charged by the state in one aggregate count, her offense was actually an ongoing series of criminal acts. She could have been charged with several individual offenses. Additionally, there is no indication in the record that defendant or her family offered to make restitution to the victim.

Defendant confessed to stealing the firm’s money due to a gambling addiction. While the trial court took under consideration the fact that she was enrolled in a compulsive gamblers’ treatment program, we are cognizant that she sought this treatment almost three months after her guilty plea and just before her sentencing hearing. We note that defendant also |3used the stolen funds for excessive personal items, apparel, restaurant meals, diet products, hotels, and even a cruise trip.

Considering the totality of the facts and circumstances of this matter, we find that the sentence imposed is neither grossly disproportionate to the severity of the offense nor is it shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence which is not constitutionally excessive.

Conclusion

The conviction and sentence are AFFIRMED.

AFFIRMED.