source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Quincy Vidal WILLIAMS, Appellant.
    No. 41,731-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.

      William Jarred Franklin, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Edward M. Bros-sette, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, STEWART, and CARAWAY, JJ.
   BROWN, Chief Judge.

1Defendant, Quincy Vidal Williams, was convicted by a jury of aggravated rape and was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Defendant has appealed his conviction and sentence. For the following reasons, we affirm.

Facts

In the summer of 2003, while staying with her adult sister, Malinka Simmons, the 11-year-old victim alleged that defendant had sexual intercourse with her on two occasions. Defendant, Quincy Williams, who had fathered two children with Malinka, was also staying with Malin-ka at this time and the victim was occasionally left in his care.

In December 2003, the victim confided to Malinka’s neighbor that Quincy Williams had engaged in sex with her. The neighbor told Malinka, and Malinka told the victim’s mother who called the police. In January 2004, defendant was arrested and interviewed by Shreveport Police Detective Rod Demery. In a tape recorded statement, defendant admitted to having sexual relations with the victim.

Defendant was indicted for aggravated rape that occurred between the dates of June 1 and July 25, 2003. Thereafter, the state filed a notice to use other crimes evidence: Williams had been accused, but never charged, of raping the six-year-old daughter of another girlfriend in 1998. Defendant filed a motion to exclude this evidence. A hearing on the district attorney’s notice was conducted, and the court found that the other crimes evidence would be allowed. Defendant also filed a motion to suppress his | ^confession, which, following an evidentiary hearing, the trial court denied. Defendant filed motions for discovery asking for, among other things, a copy of any record of his criminal arrests and convictions. In response, the state provided defendant with, inter alia, a copy of his criminal history, which showed three arrests and two applications for licenses. One of the arrests was for shoplifting, a violation of La. R.S. 14:67.10, in Bossier City in 2002. The history did not contain a disposition of this matter, and showed “0” in the field for “convictions.” Because defendant was convicted of misdemeanor theft in Bossier City, this became an issue when defendant requested a mistrial when, on cross-examination, the ADA questioned his statement on direct that he had never been convicted of a crime.

By a vote of eleven to one, the jury convicted defendant as charged of aggravated rape. Defendant filed a motion for a mistrial and a motion for post-verdict judgment of acquittal. The court denied both motions. The court sentenced defendant to the mandatory term of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The court further stated that it deemed defendant’s right to file a motion to reconsider sentence waived because the sentence was set by the statute. Defendant has appealed both his conviction and sentence.

3Discussion

Sufficiency of Evidence

In his first assignment of error defendant urges that the state failed to prove the elements of the crime beyond a reasonable doubt. In particular, he argues that the state failed to exclude the possibility of no penetration.

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.02/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.08/29/02), 827 So.2d 488, writ denied, 02-2634 (La.09/05/03), 852 So.2d 1020. 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.10/04/96), 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. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, a sexual assault victim’s testimony, if believed by the ptrier of fact, is sufficient support for a requisite factual conclusion. State v. Robinson, 36,147 (La.App. 2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App. 2d Cir.8/23/00), 766 So.2d 678, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490.

La. R.S. 14:41 provides, in part:

A. Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.
B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime. (Emphasis added).

At the time of this offense, La. R.S. 14:42 provided, in part:

A. Aggravated rape is a rape committed ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.

Both the victim and her adult sister testified that the victim was 11 years old at the time of this incident. The victim testified that defendant penetrated her vagina with his penis. According to the victim, she was lying on her back “hanging off the side of the bed” during the encounter and defendant put his “private,” which she identified as his penis, inside her vagina. The victim testified that the act was painful. She said that defendant told her that “if I wouldn’t cooperate with him, he would tell my sister” that she had had sex with a teenage neighbor. By “cooperate,” she | ¡¡explained that defendant meant “have sex.” She also said that she and defendant had sex a second time on the floor of the bathroom. ■

Detective Demery testified that he read defendant his Miranda rights and had him sign the back of a Miranda card. The tape recording of the interview with defendant was played to the jury. At the beginning of the interview, defendant denied having any sexual contact with the victim. Subsequently, however, he admitted that he had engaged in sexual conduct with her. Specifically, defendant stated that the victim bent over the bed while he stood on the floor. He then said that “not even (unintelligible) half my head [of Williams’ penis] [went inside the child’s vagina].” Because the statement was longer than 30 minutes, the detective had to switch sides on the tape when the interview reached the 30-minute point. Defendant admitted to putting his penis in the child’s vagina before the tape reached the cut-off point and the detective denied threatening defendant at any time.

The next witness was a 14-year-old girl, who testified that a man named Quincy Williams had been her mother’s live-in boyfriend in 1998. Although the teenaged witness did not recognize defendant in court, her mother subsequently identified defendant as her former boyfriend. The teenager testified that when she was six years old defendant repeatedly made her engage in sexual acts; more specifically, she described the acts by saying “he put his privacy in my rear” and he “made me suck his privacy.” The witness eventually told her mother what was happening, and her mother called the Shreveport Police Department. The police investigated the crime but the case was never prosecuted. SPD Officer John Schmelz was the | ¡¡initial responder to the call. Officer Schmelz testified that the SPD detective to whom the case had been assigned left the force during the course of the investigation and Officer Schmelz did not have any further contact with the investigation.

Dr. Anne Springer, a pediatrician with expertise in child sexual abuse, testified generally about the typical presentation of child sexual abuse victims and specifically about her examination and findings regarding the victim in the case at bar. Dr. Springer examined the victim in January 2004. Her examination revealed no physical evidence of penetration, but the doctor explained that this did not rule out penetration because the tissues involved heal quickly and frequently there is no physical evidence to show penetration.

The evidence was sufficient for a reasonable juror to convict. The child’s testimony alone was sufficient; however, it was corroborated by defendant’s confession that slight penetration occurred. The jury found defendant’s recantation of his confession not credible. Therefore, this assignment of error is without merit.

Other Crimes Evidence

In his second assignment of error defendant urges that the trial court should not have allowed the evidence showing that he engaged in sexual conduct with another child in 1998.

La. C.E. art. 412.2 provides:

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 was under the age of seventeen at the time of the ' offense, evidence of the accused’s commission of 17another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children 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.
B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.
C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule.

In State v. Miller, 98-0301 (La.09/09/98), 718 So.2d 960, 962, the supreme court discussed the additional concerns in similar cases:

Several other statutory and jurisprudential rules also play a role in determining the admissibility of such evidence. First, one of the factors listed in Article 404(B) “must be at issue, have some independent relevance, or be an element of the crime charged in order for the evidence to be admissible.” State v. Jackson, 625 So.2d 146, 149 (La.1993). Second, the state is required to prove the defendant committed these other acts by clear and convincing evidence. Id.; State v. Davis, 449 So.2d 466 (La.1984). Third, even if independently relevant, the evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403. Finally, the requirements set forth in State v. Prieur, 277 So.2d 126 (La.1973) must be met. Thereunder, the state must, within a reasonable time before trial, provide written notice of its intent to use other acts or crimes evidence and describe these acts in sufficient detail. The state must show the evidence is neither repetitive nor cumulative, and is not being introduced to show the defendant is of bad character. Further, the, court must, at the request of the defendant, offer a limiting instruction to the jury at the time the evidence is introduced. The court must also charge the jury at the close of the trial that the other crimes evidence serves a limited purpose and that the defendant cannot be convicted for any crime other than the one charged or any offense responsive to it.

|sLouisiana Code of Evidence article 412.2 was enacted following State v. Kennedy, 00-1554 (La.04/03/01), 803 So.2d 916. and allows admission of evidence of other similar crimes even for general intent crimes such as aggravated rape when the victim in the case at issue is a child under the age of seventeen. State v. Zones, 34,070 (La.App. 2d Cir.04/03/02), 814 So.2d 113, writ denied, 02-1280 (La.11/27/02), 831 So.2d 269. As in State v. Zones, defendant in the case at bar asked the jury to believe that the entire event was fabricated. The evidence that defendant had previously committed a similar offense against a female child left in his care while the mother was away at work is relevant and probative of the occurrence of the crime and of defendant’s disposition toward children. Further, the evidence presented was clear and convincing. The differences between the offenses, including the variation in the victims’ ages and the manner of sexual contact, are comparatively minor. Accordingly, this assignment of error is without merit.

Motion to Suppress

In his next assignment of error defendant claims that the trial court erred in denying his motion to suppress.

Before a confession can be introduced into evidence, the state must affirmatively prove that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La. R.S. 15:451; La. C. Cr. P. art. 703(D); State v. Bowers, 39,970 (La.App. 2d Cir.08/19/05), 909 So.2d 1038; State v. Roddy, 33,112 |a(La.App. 2d Cir.04/07/00), 756 So.2d 1272, writ denied, 00-1427 (La.05/11/01), 791 So.2d 1288. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. Id.

The admissibility of a confession is a question for the trial court. Great weight is placed upon the trial court’s factual determinations because of its opportunity to observe witnesses and assess credibility. State v. Thibodeaux, 98-1673 (La.09/08/99), 750 So.2d 916, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000). Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Bowers, supra; State v. Henderson, 31,986 (La.App. 2d Cir.08/18/99), 740 So.2d 240.

The transcript of the statement corroborates Detective Demery’s testimony that he informed defendant of his Miranda rights, including the rights to remain silent and to the presence of an attorney prior to the interview, and the transcript further reflects that defendant voluntarily waived these rights and elected to speak to the detective. At the suppression hearing, the court had the opportunity to hear the detective deny threatening or coercing defendant, and the trial judge elected to credit the testimony of the officer. There is no evidence to undermine the trial court’s conclusion that defendant’s statement was voluntary apart from defendant’s self-serving testimony at trial, which the state refuted by showing that defendant had admitted to the crime prior to the 30-minute point in the tape when he | lf)claimed to have been threatened by the detective. This assignment of error is without merit.

Mistrial Motion

In his fourth assignment of error defendant argues that the trial court erred in denying his motion for mistrial based upon the state’s violation of discovery rules. In discovery, the state gave defendant a copy of his “rap sheet” which showed an arrest for theft in Bossier City. No disposition was shown. During the trial and before defendant testified, the state learned that the defendant was convicted and sentenced on this misdemeanor theft charge.

After the state rested, defendant chose to testify. During cross-examination, the following exchange occurred:

Q: ... And you also stated earlier that you’ve never been convicted of a crime, right?
A: Yes.
Q: Okay. What about that theft you pled guilty to in—
Defense counsel — Objection, Your Hon- or. Ask for the jury to be removed. [Jury is removed.] ... Your Honor, I’m referring to discovery filed February 17th, 2004. The record reflects five arrests, two implications (applications), from Mr. Williams, no convictions. I don’t have any information about a conviction.
Prosecutor: Your Honor, the defendant has a conviction from Bossier for theft.
Court: Is this part of discovery?
Prosecutor: Your Honor, it shows his arrest on the rap sheet, it doesn’t list a disposition.
11Court: And when did you (ADA) just learn of it (conviction) that you could not share that with defense counsel?
Prosecutor: Shortly before we began this trial I got a call from my secretary. I asked her to call Bossier because I saw no disposition on the arrest sheet. I did not know that the defendant was going to take the stand and claim that he never had a conviction, which he did under [defense counsel’s] direct.

Defendant made a motion for mistrial under La. C. Cr. P. art. 729.5 because the ADA did not provide defense counsel with this information. According to defense counsel, he would have brought out the information during direct examination had he known about it; he later said that he also would have questioned the jurors about this on voir dire. The court asked the prosecutor when he learned of the conviction, and the ADA said that he had the information before the state rested its case and before defendant testified.

The trial court found that the state had violated its obligation under La. C. Cr. P. art. 717 to provide defendant with discovery and found that the state’s failure substantially prejudiced defendant because the evidence of a prior conviction weighs heavily upon the decision of defendant to take the stand. However, the court observed that defendant himself knew about his own conviction and that the trial was a very difficult process for the victim and her family. The court found that the prejudice to defendant did not warrant a mistrial but elected to admonish the jury to disregard testimony about defendant’s theft conviction. The defendant objected to the court’s denial of his motion for a mistrial and asked that the court not admonish the 11 ¿jury. At that point, the defendant took the stand again, the state withdrew its last question, and as there were no further questions, the defense rested. La. C. Cr. P. art. 717 provides:

Upon motion of the defendant, the court shall order the district attorney or the appropriate law enforcement agency to furnish to defendant a copy of any record of his criminal arrests and convictions that is in their possession or custody.

La. C. Cr. P. art. 729.8 provides:

If, subsequent to compliance with an order issued pursuant to this Chapter and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspection.

|1aLa. C. Cr. P. art. 729.5 provides:

A. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

This matter needs to be put forth in the proper perspective. The state did give defendant a copy of his rap sheet which showed the theft arrest. Obviously, defendant knew that he was convicted on that charge and lied to the jury when asked by his attorney about any prior convictions.

As this court observed in State v. Moms, 28,312 (La.App. 2d Cir.08/21/96), 679 So.2d 482, 484:

The state’s failure to comply with discovery procedures which results in prejudice to the defendant constitutes reversible error. However, the state’s failure to comply with the discovery procedure will not automatically command reversal. The defendant must show prejudice in order for his conviction to be reversed. Sanctions for failure to comply with discovery motions are solely within the discretion of the trial judge and reversal is warranted only when there is an abuse of discretion and prejudice is shown. State v. Gantt, 616 So.2d 1300 (La.App. 2d Cir.1993), writ denied, 623 So.2d 1302 (La.1993); State v. DeMoss, 582 So.2d 964 (La.App. 2d Cir.1991). Mistrial is a drastic measure and is warranted only when substantial prejudice will otherwise result to the defendant sufficient to deprive him of a fair trial. State v. Smith, 418 So.2d 515 (La.1982). Determining whether such prejudice has resulted is within the sound discretion of the trial judge. State v. Matthews, 552 So.2d 590 (La.App. 2d Cir.1989), writ denied, 559 So.2d 137 (1990); State v. Brown, 557 So.2d 1085 (La.App. 2d Cir.1990). It is not mandatory that the trial court declare a mistrial when it is brought to the court’s attention that one of the parties has not complied with a discovery request. As stated above, a mistrial is only warranted if a party is prejudiced by the other party’s failure to comply with the discovery request. State v. DeMoss, supra.

114This information that he pled guilty was clearly available had either the ADA or defense counsel properly prepared their case. Even so, it was not prejudicial. Defendant is arguing that he would not have lied if he had known that the ADA was aware of his conviction. The trial court should have allowed the ADA’s question and permitted the jury to hear of the misdemeanor conviction. In fact, as shown by one juror’s question to the court, not explaining that it was a misdemeanor shoplifting conviction was likely more harmful than saying nothing. This assignment of error is without merit. La. C. Cr. P. art. 921.

Excessiveness of Sentence

In his last assignment of error defendant urges that his sentence is constitutionally excessive. In the case sub judice, the sentence is dictated by statute: An offender convicted of aggravated rape must receive a sentence of life imprisonment at hard labor without benefit. Where there is a mandatory sentence, there is no need for the trial court to justify, under La. C. Cr. P. article 894.1, a sentence it is legally required to impose. State v. Burd, 40,480 (La.App. 2d Cir.01/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/09/06), 941 So.2d 35; State v. Koon, 31,177 (La.App. 2d Cir.02/24/99), 730 So.2d 503. Because this offense is of such a shocking and heinous nature and there is nothing to suggest that the punishment is constitutionally excessive, this assignment of error is without merit.

15Conclusion

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

      . The defendant obtained permission from this court to file a pro-se brief, but he did not do so.

      . This was amended to thirteen years by Act 178 of 2006.

      . Appeal after remand 02-214 (La.App. 5th Cir.06/26/02), 823 So.2d 411, writ denied, 02-2088 (La.01/24/03), 836 So.2d 43.

      . A juror then engaged the judge in this exchange:
      Juror: Can I ask a question?
      Court: Yes, ma'am.
      Juror: What was the thing that he is withdrawing, and we’re supposed to exclude? It was something that ya’ll talked about and we're not to consider it in testimony?
      Court: That’s correct.
      Juror: Yeah, so what was it?
      Court: That's the answer. You’re not to consider it.
      Juror: Okay. That’s what I want to know. What don't we consider?
      Court: Listen to me carefully. I understand your question, I really do. The answer is that because you’re not to consider it, we're not telling you, we're not saying, and leave it at that, okay?
      Juror: I'm not supposed to know, because I don't remember.
      Court: Very good. Let me make certain the record's clear. The Court is not avoiding your answer. The court appreciates your answer, okay?
      Juror: Yes, sir.

      . That is, unless the state decides to seek the death penalty where the victim is under a prescribed age.


author:
BROWN, C.J.
      STEWART, J.,

text:
    STATE of Louisiana, Applicant v. Verna J. WALLACE, Respondent State of Louisiana, Applicant v. Kevin D. Waller, Respondent.
    Nos. 41,837-KW, 41,838-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 31, 2007.

      Minifield & Harper, by L. Charles Mini-field, for Verna J. Wallace, Kevin D. Waller.
    Walter E. May, Jr., District Attorney, James Richard Hatch, Assistant District Attorney, for State of Louisiana.
    Before BROWN, STEWART, and MOORE, JJ.
   ON REHEARING

BROWN, C.J.

1Claiborne Parish Deputy Paul Brazzel stopped Kevin Waller (‘Waller”) to issue a ticket for a routine traffic violation, but Waller told the officer that his name was “Dante Malone.” When Deputy Brazzel learned Waller’s true identity, the officer obtained a warrant for Waller’s arrest. Accompanying Deputy Brazzel to execute this arrest warrant were Haynesville Police Chief Anthony Smith, Lieutenant Jimmy Brown, and Sergeant John Barnette. Waller and Verna Wallace (Wallace”) lived together at the residence on Roland Street. Deputy Brazzel knocked on the front door and asked Ms. Wallace if Waller was there, and she told |2him that Waller was not there. In the meantime, Chief Smith went around to the back and found Waller and Jeremy Smith coming out of the back door of the residence. Chief Smith brought Waller around to the front of the residence, at which time Deputy Brazzel placed Waller under arrest and put him in the back of the patrol car.

Chief Smith and Lieutenant Brown then went to the front door. Chief Smith testified that when Ms. Wallace opened the door, he could smell the odor of marijuana smoke and saw other people inside. Chief Smith testified that he then asked permission to come inside the residence and that Ms. Wallace gave him permission. Chief Smith testified that once inside, he then saw marijuana and cocaine residue in plain sight on a cabinet. Chief Smith then arrested Ms. Wallace for possession of marijuana, possession of cocaine, and resisting arrest due to her lying about Waller’s whereabouts when asked by Deputy Braz-zel.

The trial court granted defendants’ motion to suppress, finding that the state did not meet its burden of proving that there was consent for the search. This court granted the state’s writ and reversed on the basis that the search was incidental to a lawful arrest and conducted with probable cause and under exigent circumstances. On rehearing, the defendants argue that the original order suppressing the contraband should be reinstated for the following reasons: (1) the officers had no right to go on the premises to arrest Kevin Waller; (2) Verna Wallace did not actually commit a crime, but even if she had, Chief Smith had no knowledge of the crime; and, (3) Chief Smith had no consent, probable cause, or exigent circumstances to justify his entry into the residence. The application for rehearing is denied for the reasons below.

| ¡¡In support of the argument that the presence of law enforcement officers on the premises to arrest Kevin Waller was illegal for lack of a search warrant, defendants cite Steagald v. U.S., 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), wherein the United States Supreme Court held that law enforcement officers must obtain a search warrant in addition to an arrest warrant when searching for the subject of the arrest warrant in the home of a third party, absent the presence of exigent circumstances or consent. The absence of a , search warrant before executing the arrest warrant on Waller is immaterial because Ms. Wallace testified that she and Waller were living together at the residence at the time of the arrest. An arrest warrant, founded on probable cause, gives law enforcement officers “the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); see also State v. Barrett, 408 So.2d 903 (La.1981). Therefore, the absence of a search warrant did not render the officers’ presence on the premises illegal because Kevin Waller lived at that residence, and the existence of the arrest warrant was sufficient to justify the officers’ presence.

Defendants next argue that whether or not Verna Wallace committed the offense of resisting arrest, there was no justification for Chief Smith to enter her home without a warrant. In pertinent part, La. C. Cr. P. art. 213(3) provides that a peace officer may, without a warrant, arrest a person when the peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer. The statute does not require the arresting officer to have actually witnessed the offense. Further, probable cause, and not absolute certainty, is the test to be applied in judging the validity of an arrest, and all possible lawful explanations of a situation need not by negated |4before making an arrest. State v. Ceaser, 02-3021 (La.10/21/03), 859 So.2d 639; State v. Winfrey, 359 So.2d 73 (La.1978); State v. Phillips, 347 So.2d 206 (La.1977).

Rather, under article 213, probable cause for a warrantless arrest exists when the facts and circumstances known to the officer and of which he has reasonable and trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. State v. Arceneaux, 425 So.2d 740 (La.1983), State v. Davis, 359 So.2d 986 (La.1978); State v. Cantanese, 493 So.2d 725 (La.App. 2d Cir.1986). Therefore, it is immaterial if Chief Smith actually witnessed Verna Wallace commit the act of resisting arrest because Officer Brazzel provided reasonable and trustworthy proof to justify such a belief. Chief Smith had the authority under La. C. Cr. P. art. 213 to arrest Verna Wallace.

Even so, a warrantless arrest pursuant to La. C. Cr. P. art. 213 may not be made inside the home of the suspect unless there is consent or exigent circumstances. State v. Cantanese, supra (citations omitted). The trial court found that there was no consent given to enter the residence, and this court previously concluded that the trial court did not abuse its discretion in making that finding.

Chief Smith did, however, have probable cause coupled with exigent circumstances to justify the search. He lawfully approached the front door of the house, detected the odor of marijuana emanating from inside the residence and saw that there were people inside the residence who could hide or destroy the suspected contraband. To avoid this result, defendants argue that Chief Smith had no authority to come to the front door. This court, however, has previously found |fithat law enforcement officers have the same right as the general public to approach the entrance of a home:

The curtilage of a home, that “area to which extends the intimate activity associated with the sanctity of a man’s home and privacies of life,” is considered part of the home itself and is therefore afforded Fourth Amendment protection. State v. Brisban, 00-3437 (La.02/26/02), 809 So.2d 923. The front porch of a private residence falls within the curti-lage of the home and is therefore accorded Fourth Amendment protection. Id. However, because of “an almost implicit understanding and custom in this country that, in the absence of signs or warning, a residence may be approached and occupants summoned to the door by knocking,” the front porch does not enjoy the same measure of Fourth Amendment protection as the home. Id. The police have the same right as other members of the public to approach the doorway of a home and see what was exposed by the owner to the view of the general populace. State v. Deary, 99-0627 (La.01/28/00), 753 So.2d 200.

State v. Stephens, 40,343 (La.App. 2d Cir.12/14/05), 917 So.2d 667, 674, writ denied, 06-0441 (La.09/22/06), 937 So.2d 376. Therefore, regardless of whether Chief Smith had the authority to arrest Verna Wallace under La. C. Cr. P. art. 213, he had every right to approach the front door of the residence.

In State v. Traylor, 31,378 (La.App. 2d Cir.12/09/98), 723 So.2d 497, this court found that the odor of marijuana emanating from a vehicle gave the officer probable cause to suspect that the defendant was smoking, and thus possessing, marijuana. As this court noted in State v. Thompson, 543 So.2d 1077, 1080 (La.App. 2d Cir.1989), citing State v. Garcia, 519 So.2d 788, 793 (La.App. 1st Cir.1987), “ ‘there is no reasonable expectation of privacy from lawfully positioned officers with inquisitive nostrils.’ ” See also State v. Risin, 02-0100 (La.App. 4th Cir.01/22/02), 807 So.2d 1042; State v. Gordon, 93-1928 (La.App. 1st Cir.11/10/94), 646 So.2d 1005; State v. Gordon, 93-1922 (La.App. 1st Cir.11/19/94), 646 So.2d 995. Because Chief Smith had the same right as any other citizen to approach the front door of the residence, he was in a lawful position at | fithe time he detected the odor of marijuana emanating from inside the residence when Verna Wallace opened the door. This gave Chief Smith probable cause to believe that there was marijuana inside the residence.

Defendants’ claim that the odor must be of raw marijuana, instead of burned marijuana, to provide probable cause, is without merit. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (the smell of burned marijuana emanating from the vehicle, along with plain view of an envelope marked “Supergold,” gave the officer probable cause); State v. Risin, 807 So.2d at 1043 (the odor of burning marijuana emanating from a stolen vehicle provided probable cause to search the vehicle); State v. Traylor, 723 So.2d at 498-499 (the smell of marijuana smoke emanating from the vehicle provided probable cause to believe the defendant possessed marijuana); State v. Gordon, 646 So.2d at 1010 (the odor of burned marijuana on the defendant and co-occupant of the vehicle in combination with plain view of contraband provided probable cause for search).

Chief Smith had probable cause to believe there was marijuana inside the residence and that there were people inside the home with the ability to hide or destroy the suspected contraband. These were exigent circumstances justifying Chief Smith’s warrantless search of the residence. Exigent circumstances coupled with probable cause is also a well-established exception to the warrant requirement. State v. Ledford, 40,318 (La.App. 2d Cir.10/28/05), 914 So.2d 1168, 1172-1173, citing Kirk v. Louisiana, 536 U.S. 635, 637, 122 S.Ct. 2458, 2459, 153 L.Ed.2d 599 (2002). The exigent circumstance of evidence being lost or destroyed is specifically problematic in narcotics investigations:

The need to preserve evidence that may be lost or destroyed if a search is delayed, has long been recognized as an exigent circumstance. U.S. v. Hultgren, 713 F.2d 79 (5th Cir.1983). This kneed may be particularly compelling where narcotics are involved, for “narcotics can be easily and quickly destroyed while a search is progressing.” United States v. Johnson, 802 F.2d 1459, 1462 (D.C.Cir. 1986). In United States v. Socey, 846 F.2d 1439 (D.C.Cir.1988), the Court noted that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic. Before such an exigency is present, according to United States v. Napue, 834 F.2d 1311 (7th Cir.1987), the police must have a reasonable basis for believing that there was someone in the house who will likely destroy the evidence.

State v. Wimberly, 588 So.2d 1343, 1347 (La.App. 2d Cir.1991), writ denied, 592 So.2d 1333 (La.1992). Therefore, an additional reason the motion to suppress should have been denied is because the search was a constitutional one conducted with probable cause coupled with exigent circumstances, which is a well-established exception to the warrant requirement. Once the contraband was discovered, any further search of the residence would also be justified as a search incident to a lawful arrest.

STEWART, J., dissents with written reasons.

STEWART, J.,

dissenting.

1The trial court granted the motion to suppress upon finding conflict in the testimony of Chief Smith and Deputy Brazzel as to whether the defendant gave consent to Chief Smith to enter her house. In light of the contradictory testimony and the lack of any other corroboration, the trial court did not find Chief Smith credible. This court found no error on the part of the trial court, yet the majority still reversed upon finding probable cause for the search incident to a lawful arrest along with exigent circumstances. The majority’s findings are based upon the testimony of Chief Smith, a witness whose testimony lacks credibility. If no error was found in the trial court’s conclusion that the defendant did not consent to the search, as claimed by Chief Smith, then I fail to see how can this court can consider the testimony of Smith otherwise credible so as to justify his intrusion into the defendant’s home after he had accomplished the arrest of Kevin Waller for whom a warrant had been issued. For these reasons, I respectfully dissent.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Henry DUPREE, Appellant.
    No. 41,658-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 31, 2007.

      G. Paul Marx, Lafayette, for Appellant.
    Jerry L. Jones, District Attorney, Stephen T. Sylvester, Assistant District Attorney, for Appellee.
    Before WILLIAMS, GASKINS and SEXTON (Pro Tempore), JJ.
   WILLIAMS, J.

1A Ouachita Parish grand jury returned an indictment charging the defendant, Henry Dupree, with aggravated rape, a violation of LSA-R.S. 14:42. Following a trial, a jury convicted the defendant of the responsive verdict of forcible rape. The defendant was adjudicated a second felony habitual offender, and the trial court sentenced him to serve 50 years in prison without benefit of suspension of sentence or the accrual of good time credit, with credit for time served. The defendant now appeals. For the following reasons, we affirm the defendant’s conviction. However, we vacate the defendant’s sentence and remand this matter for a determination of the portion of the sentence to be served without benefit of parole or probation.

FACTS

During the early morning hours of June 22, 1995, R.B.G. was asleep in the home she shared with her daughter, niece and foster child in Ouachita Parish when “something” awakened her. From the bed she was sharing with her ailing foster child, R.B.G. opened her eyes and saw an unknown nude black male standing in the doorway of her bedroom. After the intruder moved out of the doorway, R.B.G. looked for the telephone she always kept on the table next to her bed, but the telephone was not there. R.B.G. then got up to check on her daughter and niece, who were asleep in a nearby bedroom. As R.B.G. reached for the doorknob to pull the children’s bedroom door closed, she was approached by the intruder, who grabbed her arm and pulled her down the hallway toward the living room. R.B.G. | ^testified that she could only see one of the intruder’s hands at all times and believed he had a weapon. The intruder repeatedly admonished R.B.G. not to look at him. He then ordered her to remove her t-shirt and sweat pants, but before she could comply, he removed her underwear and sweat pants. He pushed her onto the living room floor and performed oral sexual intercourse on her. The assailant then climbed on top of R.B.G. in a missionary position. R.B.G. could not recall whether or not the assailant had vaginal sexual intercourse with her. R.B.G. testified that she was never verbally threatened by her assailant, and she did not see a weapon in his hands. However, she stated that she only acquiesced because she felt physically threatened and feared for her life and the lives of the children. R.B.G. also stated that she did not push the perpetrator away or scream because she thought he would kill her and her children. Throughout the attack, R.B.G. asked her assailant, “Why are you doing this?” . However, he did not answer.

After the attack, the assailant left the living room and entered the kitchen where he dressed and then fled through the kitchen door. R.B.G. used the kitchen telephone to call the police. She looked for but could not find the telephone she always kept near her bed.

Deputy Mickey Watts of the Ouachita Parish Sheriffs Office responded to the call and interviewed R.B.G. Deputy Watts testified at trial after refreshing his memory by looking over his police report. He testified that R.B.G. told him that an intruder performed oral sex upon her and raped her. Over the defense’s hearsay objection, Deputy Watts was allowed to Istestify that the victim related to him that the perpetrator threatened to choke her. R.B.G. was then transported to a local hospital for a rape examination.

The registered nurse who assisted in the rape examination stated that R.B.G. appeared to be in shock and “cried an awful lot.” The nurse testified at trial that she was present and witnessed the collection of the evidence by use of a rape kit, which included “private vaginal area and hair and scrapings from the skin, oral swabs, vaginal swabs, [and] rectal swabs.”

R.B.G. was subsequently unable to identify her assailant during a photographic line-up, and no suspect was apprehended immediately following the crime. However, at trial, R.B.G. made an in-court identification of the defendant as the man who raped her.

Less than one year after R.B.G.’s attack, the defendant was arrested for aggravated burglary, and subsequent deoxyribonucleic acid (“DNA”) testing linked .him to the rape of R.B.G. In the early morning of May 22, 1996, R.H. was asleep in her bed with her young sons when she was awakened by the feel of an unknown man’s head touching her inner thighs. The man was an uninvited intruder into the home R.H. shared with her mother and sons in Oua-chita Parish. R.H. told the unarmed man that he had to leave and she pushed him. The man got off of R.H. and ran out of her bedroom, but returned to her bedroom doorway. R.H. pushed the man against the wall and ran screaming into her mother’s room to awaken her. The man then left their home. R.H.’s mother looked for the telephone in the kitchen to alert the authorities. The telephone’s receiver was missing, so she used the telephone in another bedroom. The receiver was later ^discovered under the sofa. R.H. did not get a good look at the intruder because she never saw him in the light, but described him to police and in court as a black male who was a little taller than her and had brown skin. The man was wearing short pants and had a white t-shirt in his hand.

A short time after being notified of the crime, the police K-9 unit apprehended a man fitting the description .given by R.H. The man, who was later identified as the defendant, was hiding on top of an abandoned house. The defendant was wearing boxer shorts and his short pants were located on top of the house. He was arrested for the charge of aggravated burglary. After being Mirandized, the defendant refused to answer questions and would not explain why he fled from the police officers and was outside in his boxer shorts at that time of the morning. During a subsequent photographic line-up R.H. was unable to identify the defendant as her assailant.

As the result of a cooperative investigation between the Ouachita Parish Sheriffs Office and the Monroe Police Department, the defendant was developed as a suspect in the rape case with regard to R.B.G. because of the similarities with the aggravated burglary. An order was obtained and blood was drawn from the defendant for DNA testing. The DNA analysis expert compared the DNA sample drawn from the defendant to the DNA sample (sperm fraction) on the vaginal swab from R.B.G.’s rape kit and confirmed that the DNA from both samples were consistent. The DNA expert determined the probability of another African American possessing the same combination of genetic markers was one in 2.2 trillion.

[ sThe defendant was charged by grand jury indictment with the crime of aggravated rape. At arraignment, the defendant entered a dual plea of not guilty and not guilty by reason of insanity. A Sanity Commission was appointed by the trial court. On May 3, 2001, the trial court found the defendant incompetent to proceed or assist counsel and ordered him committed to the Feliciana Forensic Facility. After a status hearing, on August 29, 2003, the trial court ordered the defendant to be returned to the Feliciana Forensic Facility. On October 18, 2004, after reviewing the physician’s report, the trial court found the defendant competent to stand trial (and would be allowed to testify, but would not be subject to cross-examination), and a trial date was set. At a hearing conducted on October 5, 2005, the defendant’s request for the impaneling of a fourth Sanity Commission was denied, and the defendant was again found competent to assist counsel.

Prior to trial, the state filed a notice of intent to use evidence of other crimes/acts. After a pretrial Prieur hearing, the trial court ruled that the testimony of R.H. would be allowed, but that the testimony of another witness, E.B., would not be allowed. After completion of a trial by jury, the defendant was found guilty of the responsive verdict of forcible rape.

The state filed a habitual offender bill against the defendant. A habitual offender hearing was held and the defendant was adjudicated a second felony habitual offender. The defendant was sentenced to serve 50 years’ imprisonment at hard labor without benefit of suspension of sentence |fior the accrual of good time credit. He received credit for time served. The defendant appeals his conviction.

Sufficiency of Evidence

In his first assignment of error, the defendant contends the evidence was insufficient to support his conviction because there was no evidence of penetration, an essential element of the crime of rape. The defendant also points out that the amendments to the rape statutes, adding oral sexual intercourse to the crime of rape, occurred in 2001 and were not in effect when the instant offense took place.

Although the record does not reflect that the defendant filed a motion for post-verdict judgment of acquittal pursuant to LSA-C.Cr.P. art. 821, this court will consider sufficiency of the evidence arguments in the absence of such a motion. State v. Henson, 38,820 (La.App. 2d Cir.9/22/04), 882 So.2d 670; State v. Green, 28,994 (La.App. 2d Cir.2/26/97), 691 So.2d 1273.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. | -¡State n Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

This standard, now legislatively embodied in LSA-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. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence; An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

Where there is conflicting testimony about factual matters, the |sresolution 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, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404,158 L.Ed.2d 90 (2004).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, 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, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048. This is equally applicable to the testimony of victims of sexual assault. State v. Ponsell, 33,543 (La.App. 2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490; State v. Robinson, 36,147 (La.App. 2d Cir.12/11/02), 833 So.2d 1207. Despite absence of scientific evidence of sexual intercourse, the testimony of the victim can be sufficient to establish sexual penetration. State v. Wallace, 2000-1745 (La.App. 5 Cir. 5/16/01), 788 So.2d 578, writ denied, 2001-1849 (La.5/24/02), 816 So.2d 297. Also see State v. Pontiff, 604 So.2d 71 (La.App. 3d Cir.1992); State v. Peters, 441 So.2d 403 (La.App. 4 Cir.1983), writ denied, 530 So.2d 560 (La.1988).

At the time of the offense, June 22,1995, LSA-R.S. 14:41 defined rape as follows:

A. Rape is the act of anal or vaginal sexual intercourse with a male or female person committed without the 19person’s lawful consent.
B. Emission is not necessary and any sexual penetration, vaginal or anal, however slight is sufficient to complete the crime.

Forcible rape was defined in LSA-R.S. 14:42.1 as “a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.”

When viewed in the light most favorable to the prosecution, we find the evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of the crime of forcible rape. Although the victim could not recall whether the defendant penetrated her vagina with his penis, the rape examination revealed evidence of vaginal penetration. A certified copy of the rape kit examination was admitted into evidence and stated:

10SPERMATOZOA WERE DETERMINED TO BE PRESENT IN THE VAGINAL SWAB (10-1). THE DNA TYPING RESULTS FROM ITEM 10-1 (MALE FRACTION) DETERMINED THAT THE DNA WAS CONSISTENT WITH THE GENETIC MARKERS FOUND IN THE REFERENCE BLOOD OF HENRY LEE DUPREE, JR. ITEM 10. THE POSSIBILITY THAT ANOTHER BLACK INDIVIDUAL COULD HAVE THIS COMBINATION OF GENETIC MARKERS IS APPROXIMATELY 1 IN 2.2 TRILLION.

An expert in DNA analysis testified that DNA extracted from a vaginal pool sample, vaginal swab and vaginal washings would be taken from inside the vaginal cavity, not from the outside of the vagina.

This argument lacks merit.

In a separate assignment of error, the defendant contends it was reversible error to allow the police officer who took the initial report of R.B.G.’s rape to testify from his report that the victim had told him the defendant had threatened her. According to the defendant, the state obtained testimony regarding threats to the victim by using the hearsay testimony of the officer. The defense argues that the testimony was prejudicial because it “replaced” the victim’s actual testimony for the benefit of the state’s case.

Deputy Watts testified that he had not reviewed his report until he talked to the prosecutor about the case on the day of trial. Stating that he had since “looked over” his report, Deputy Watts testified regarding the facts he learned during the investigation. Specifically, over the defense’s hearsay objection, Deputy Watts was allowed to testify that the victim related to him that the perpetrator threatened to choke her. Deputy Watts |nwas cross-examined by the defense regarding details of the investigation, including the victim’s description of the perpetrator, the fact that there was no evidence of a weapon and the lack of physical injuries.

Hearsay is defined as a “statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” LSA-C.E. art. 801(C). Generally, such out-of-court statements are inadmissible. LSA-C.E. art. 802; State v. Logan, 36,042 (La.App. 2d Cir.6/14/02), 822 So.2d 657, writ denied, 2002-2174 (La.9/19/03), 853 So.2d 621. Investigative police reports are inadmissible hearsay. LSA-C.E. art. 803(8)(b)(i); State v. Black, 2003-911 (La.App. 5 Cir. 12/30/03), 864 So.2d 836; State v. Berkeley, 2000-1900 (La.App. 5 Cir. 5/30/01), 788 So.2d 647, writ denied, 2001-1659 (La.4/26/02), 814 So.2d 549. The admission of even hearsay testimony is harmless error where the effect is merely cumulative or corroborative of other testimony adduced at trial. State v. Johnson, 389 So.2d 1302 (La.1980); State v. McIntyre, 381 So.2d 408, 411 (La.1980), cert. denied, McIntyre v. Louisiana, 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 90 (1980).

In general, a defendant’s right to confront his accusers is satisfied if hearsay evidence has sufficient guarantees of trustworthiness to come within a firmly rooted exception to the hearsay rule. State v. Marston, 2000-0589 (La.3/16/01), 780 So.2d 1058; White v. Illinois, 502 U.S. 346, 358, 112 S.Ct. 736, 743,116 L.Ed.2d 848 (1992).

| 12LSA-C.E. art. 803 provides in pertinent part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence and received as an exhibit but may not itself be taken into the jury room. This exception is subject to the provisions of Article 612.

In State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020, two police officers testified at a trial in 2001 with regard to an investigation of a shooting which had taken place in 1978. This court rejected the defendant’s argument that the officers’ statements were inadmissible under LSA-C.E. art. 803(8)(b)(i), stating:

In the present case, [the police officers] were present and testified at trial. They admitted having insufficient recollection of the 1978 incident to testify fully and accurately. Then, each officer used his report, which was shown to have been made by him when the matter was fresh in his memory and was shown to reflect that knowledge correctly. This use of the report is an exception to the hearsay rule under La. C.E. art. 803(5) as a recollection recorded.

13In the instant case, the police officer’s report was not admitted into evidence nor was it read during his testimony. Thus, by “looking over” his 1995 report just prior to trial, the police officer’s use of the report, which was apparently made by him when the events were fresh in his memory, was simply to refresh his memory of the incident that occurred almost a decade earlier. As in Murray, supra, the police officer was present and testified at trial, including testimony on cross-examination by the defense. Thus, we conclude that the police officer’s testimony was admissible under the LSA-C.E. art. 803(5) recorded recollection exception to the hearsay rule.

Capacity to Proceed

In another assignment of error, the defendant argues the trial court erred in concluding that he had the capacity to proceed to trial despite the defendant’s history of schizophrenia and the physicians’ statement that the defendant could not function under cross-examination. The defendant summarizes his history of mental commitments and notes that there is no indication in the record that the defendant has been “cured.” According to the defendant, his testimony at the hearing was “a rambling, disconnected jumble of facts and confusion.”

A criminal defendant has a constitutional right not to be tried while legally incompetent. A state must observe procedures adequate to protect a defendant’s right not to be tried while incompetent, and its failure to do so deprives the defendant of his due process right to a fair trial. Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 2579,120 L.Ed.2d 353, 365-66 (1992) [quoting Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 14L.Ed.2d 103 (1975)]; State v. Cannouche, 2001-0405 (La.5/14/02), 872 So.2d 1020.

Louisiana’s statutory scheme for detecting mental incapacity jealously guards a defendant’s right to a fair trial. State v. Nomey, 613 So.2d 157 (La.1993). In Louisiana, “[m]ental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.” LSA-C.Cr.P. art. 641; see also Nomey, supra. The law also imposes a legal presumption that a defendant is sane and competent to proceed. LSA-R.S. 15:432; State v. Martin, 2000-0489 (La.9/22/00), 769 So.2d 1168; State v. Rankin, 41,128 (La.App. 2d Cir.8/23/06), 938 So.2d 1172.

The defendant has the burden of proving by a preponderance of the evidence his incapacity to stand trial. State v. Frank, 96-1136 (La.10/4/96), 679 So.2d 1365 [citing Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) ]. A reviewing court owes the trial court’s determinations with regard to the defendant’s competency great weight, and the trial court’s ruling thereon will not be disturbed on appeal absent a clear abuse of discretion. State v. Bridgewater, 2000-1529 (La.1/15/02), 823 So.2d 877, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003); State v. Rankin, supra.

In State v. Bennett, 345 So.2d 1129, 1138 (La.1977), the Louisiana Supreme Court set forth the considerations necessary in determining whether a defendant is fully aware of the proceedings against him:

|15The decision as to a defendant’s competency to stand trial should not turn solely upon whether he suffers from a mental disease or defect, but must be made with specific reference to the nature of the charge, the complexity of the case and the gravity of the decisions with which he is faced. Appropriate considerations in determining whether the accused is fully aware of the nature of the proceedings include: whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction. Facts to consider in determining an accused’s ability to assist in his defense include: whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.

(Internal citations omitted).

With regard to the self-incrimination issue, the courts have been in general agreement, although the view is subject to critical comment, that the privilege against self-incrimination does not apply against requiring the accused to participate in a sanity commission. The reasoning is often grounded upon a limited waiver of the privilege, for the limited purposes of the sanity commission. State v. Jones, 359 So.2d 95 (La.1978), cert. denied, 439 U.S. 1049, 99 S.Ct. 727, 58 L.Ed.2d 708 (1978).

In this case, at the sanity hearing held on November 15, 2004, Dr. Saxon Elliott, a clinical psychologist, testified that she was appointed to the Insanity commission and had examined and administered psychological testing on the defendant on at least three occasions from April 2001 until October 2004. She determined that the defendant suffers from chronic paranoid schizophrenia. After the first two examinations, Dr. Elliott found the defendant incompetent to proceed to trial. However, after the October 2004 examination, Dr. Elliott noted that the defendant was responding to anti-psychotic medication and determined that the defendant was competent to stand trial. Counsel for the state questioned Dr. Elliott regarding the Bennett criteria for determining a defendant’s ability to assist in his defense, and Dr. Elliott opined that this defendant met all of the factors under Bennett, with the exception of his ability to relate facts pertaining to his actions and whereabouts and his ability to be cross-examined. Although Dr. Elliott felt that the defendant might experience some difficulty under the rigors of cross-examination, she did not feel that he could not or should not testify.

Dr. Richard Y. Williams, an expert in psychiatry, testified at the sanity hearing that he examined the defendant on October 4, 2004 and diagnosed him as a schizophrenia paranoid type with an anti-social personality disorder. He determined that the defendant met all of the Bennett criteria, and opined that he could tolerate rigorous cross-examination as long as he is maintained on his medication. Dr. Williams found the defendant mentally competent to stand trial, as well as competent at the time of the offense.

The parties stipulated that if the doctor from the forensic unit were |17called to testify, the testimony would be consistent with the report issued on August 3, 2004. The report included an opinion that the defendant was not competent to testify at trial.

The defendant testified at the sanity hearing against the advice of counsel and over counsel’s objection. The trial court questioned the defendant and found his answers to be clear and responsive. He demonstrated an ability to think relevantly and articulate those thoughts. After hearing arguments, the trial court found the defendant competent to stand trial.

On October 5, 2005, a hearing was held on the defense counsel’s motion for a fourth sanity commission. Defense counsel argued that the defendant had evidenced behavior indicating he would not be able to assist counsel in his defense. Specifically, the defendant did not want to call family members as witnesses, insisted on calling other crime victims as character witnesses, and refused to take his counsel’s advice concerning trial. Defense counsel also contended that the defendant thought his own counsel was working with the state to convict him. It was noted that the defendant was not cooperative in taking oral medication, so injections were being administered. The defense counsel called the defendant as a witness, who answered his questions regarding the above allegations. An employee of the penal institution testified that the defendant has been “a gentleman,” compliant and communicative since being maintained on his medicines by injection. The trial court denied the impaneling of a fourth sanity commission, citing the defendant’s compliance with medication over the fylast year, lucid appearance, appropriate responses, adequate understanding of the proceedings and ability to assist defense counsel. The defense counsel’s objection was noted for the record.

Essentially, the defendant’s various complaints in this assignment of error address the single question of his capacity to stand trial, which was essentially controlled by whether the trial judge was correct when he ruled, following the sanity commission hearing, that defendant was capable of standing trial. Our review of the record supports the trial court’s ruling that the defendant failed to meet his burden of proving by a preponderance of the evidence his incapacity to stand trial. Thus, we conclude that the trial court did not abuse its discretion in concluding that the defendant was competent to stand trial.

This assignment is without merit.

ERRORS PATENT

In accordance with LSA-C.Cr.P. art. 920, all appeals are reviewed for errors patent on the face of the record. A review of the record herein reveals one error patent. In sentencing the defendant, the trial court noted that the defendant is a second felony habitual offender and stated:

[Y]ou are sentenced to fifty years in prison at hard labor, that sentence is to be served without suspension of sentence and without good time.... You’re to be given credit for time served against that fifty year sentence.

However, the trial court did not state how much of the defendant’s sentence was to be served without benefit of parole or probation, as required by LSA-R.S. 14:42.1(B), which provides:

Whoever commits the crime of forcible rape shall be | -^imprisoned at hard labor for not less than five years nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.

While the trial court herein imposed the 50-year sentence “without suspension of sentence and without good time,” it did not state how much of the sentence should be served without benefit of parole or probation. As noted above, LSA-R.S. 14:42.1(B) specifically requires a portion of the sentence to be served “without benefit of probation, parole, or suspension of sentence.” Therefore, we vacate the defendant’s sentence and remand this matter for a determination of the portion of the sentence to be served without benefit of parole or probation. See, State v. Hopson, 39,570 (La.App. 2d Cir.4/6/05), 900 So.2d 237.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction. His sentence is vacated and the matter is remanded to the trial court for resentencing as specified in this opinion.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.

SEXTON, J. (Pro Tempore), concurs.

      . The initials of the victims are used because of confidentiality requirements applicable to the instant case under La. R.S. 46:1844(W).

      . The defendant had been convicted of forcible rape in 1982 and was sentenced to serve 20 years in prison. He was released from prison on May 26, 1994.

      . At the time of the offense, LSA-C.Cr.P. art. 814(8) listed the responsive verdicts for aggravated rape as follows:
      Guilty.
      Guilty of attempted aggravated rape.
      Guilty of forcible rape.
      Guilty of attempted forcible rape.
      Guilty of sexual battery.
      Guilty of simple rape.
      Guilty of attempted simple rape.
      Not guilty.

      . In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless the witnesses are unavailable and defendants had prior opportunity to cross-examine the witnesses, regardless of whether such statements are deemed reliable by the court. The Court further found a violation of the Confrontation Clause with regard to the admission of a wife’s out-of-court statements to police officers regarding an incident in which the defendant, her husband, allegedly stabbed the victim. However, the instant case is distinguishable from Crawford. Unlike in Crawford, R.B.G., the person who supplied the out-of-court statements to Deputy Watts, was available to testify, and did, in fact, do so and was cross-examined by the defense.


author: GENOVESE, Judge.

text:
    Mamie TRAHAN v. ACADIA PARISH SHERIFF’S OFFICE.
    No. 2006-1136.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.
    Christopher T. Lee, Christopher T. Lee, P.L.L.C., Lafayette, Louisiana, for Plaintiff/Appellant, Mamie Trahan.

      Homer Ed Barousse, Jr., Barousse & Craton, Crowley, Louisiana, for Defendant/Appellee, Acadia Parish Sheriffs Office.
    Court composed of MARC T. AMY, DAVID J. PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

1Plaintiff, Mamie Trahan (Trahan), appeals the judgment of the Office of Workers’ Compensation (OWC) granting summary judgment in favor of Defendant, Acadia Parish Sheriffs Office (Acadia). The workers’ compensation judge (WCJ) ruled that Trahan was not entitled to workers’ compensation payments for her injuries because she was a deputy sheriff and, as such, was exempt from workers’ compensation coverage pursuant to La. R.S. 28:1034. The WCJ denied Trahan’s cross-motion for summary judgment, declaring the doctrine of equitable estoppel inapplicable in this case and, as a result, dismissed Trahan’s claims. For the following reasons, we affirm.

STATEMENT OF THE CASE

Trahan filed a disputed claim for workers’ compensation benefits, commonly referred to as a 1008, on December 21, 2005. Acadia initially answered Trahan’s claim admitting she sustained injuries while performing her job-related duties as a medic and denying that any workers’ compensation payments were ever paid to Trahan. Acadia further averred that it was self-insured and not insured for workers’ compensation benefits because sheriffs deputies are excluded from workers’ compensation coverage under La.R.S. 28:1084. Acadia admitted that it had elected, for a certain period, to pay Trahan her salary in lieu of workers’ compensation benefits, yet reserving its right to terminate those voluntary payments.

On May 1, 2006, Acadia filed a motion for summary judgment seeking the dismissal of Trahan’s workers’ compensation claims on the basis that she was a parish deputy sheriff and thereby not covered under the Louisiana workers’ compensation law. In response to Acadia’s motion, Trahan filed a cross-motion for I?,summary judgment on May 26, 2006, maintaining that Acadia was equitably estopped from taking the position that Trahan was ineligible for workers’ compensation benefits pursuant to La.R.S. 23:1034. At the hearing on these cross-motions for summary judgment held on June 22, 2006, the WCJ granted summary judgment in favor of Acadia, dismissing Trahan’s claims, and denied Trahan’s motion for summary judgment. Trahan appeals.

FACTS

This litigation arises from Trahan’s filing of a disputed claim for workers’ compensation benefits (1008). Trahan’s 1008 contains two claims. Trahan’s first claim alleges that on January 17, 2002 she tripped and fell in the parking lot of the American Legion Hospital in Crowley, Louisiana. Trahan’s second claim alleges that on February 28, 2002 she was involved in an automobile accident. Both accidents occurred while Trahan was performing her job-related duties as a deputy/medic. Following these accidents, Acadia paid Trahan “wages in lieu of compensation” and her related medical expenses through May 31, 2005. On December 21, 2005, Trahan filed a 1008 seeking workers’ compensation benefits against Acadia for her work-related injuries.

ISSUE

The only issue raised in this appeal is whether the doctrine of equitable estoppel precludes the exclusion of Trahan, as a deputy sheriff, as set forth in La.R.S. 23:1034.

3LAW AND DISCUSSION

As this matter comes before us on an appeal of the grant of a summary judgment, we note that such judgments are reviewed de novo using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Albarado v. State Farm Mut. Auto Ins. Co., 05-1084 (La.App. 3 Cir. 4/5/06), 926 So.2d 94; La.Code Civ.P. art. 966(B). In the case at bar, there are no contested facts, the issue before this court is the application of the law to the undisputed facts. Summary judgment shall be granted if “the pleadings; depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

Louisiana Code of Civil Procedure Article 966 charges the moving party with the burden of proving that summary judgment is appropriate. However, 'when the movant will not bear the burden of proof at trial on the matter that is before the court, the movant’s burden on the motion does not require him to negate all of the essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or-more of the elements essential to the adverse party’s claim. See La.Code Civ.P. art. 966(C)(2). If the adverse party fails to produce factual support to convince the court that he can carry his burden of proof at trial, there is no genuine issue of material fact and granting of the motion is mandated. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-281 (La.3/14/97), 690 So.2d 41.
The threshold question in reviewing a trial court’s granting of summary judgment is whether a genuine issue of material fact remains. Kurrvpe v. State, 97-386 (La.App. 3 Cir. 10/8/97), 701 So.2d 498, writ denied, 98-50 (La.3/13/98), 712 So.2d 882. Thereafter, we must determine whether reasonable minds could conclude, based on the facts presented, that the mover is entitled to judgment. Id. Thus, summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts. Id.
| 4Facts are material if they determine the outcome of the legal dispute.” Soileau v. D & J Tire, Inc., 97-318, p. 3 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, 821, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. The determination of the materiality of a particular fact must be made in light of the relevant substantive law. Id.

Nguyen v. Underwriters at Lloyd’s, 05-1407, pp. 3-4 (La.App. 3 Cir. 5/3/06), 929 So.2d 821, 823, writ denied, 06-1332 (La.9/22/06), 937 So.2d 387.

Generally, if an employee is injured or killed in the course and scope of his employment, the exclusive remedy is workers’ compensation. See La.R.S. 23:1032(A). However, La.R.S. 23:1034 excludes deputy sheriffs from workers’ compensation coverage.

We find that the trial court was correct in finding that Trahan was not entitled to workers’ compensation payments for her injuries. In this case, the relevant substantive law, found at La.R.S. 23:1034, provides, in pertinent part:

A. The provisions of this Chapter shall apply to every person in the service of the state or a political subdivision thereof, or of any incorporated public board or commission authorized to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the state or a political subdivision thereof or of any such incorporated public board or commission; and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory; provided that one employed by a contractor who has contracted with the state or other political subdivision, or incorporated public board or commission through its proper representative, shall not be considered an employee of the state, or other political subdivision, or incorporated public board or commission; further, provided that members of the police department, or municipal employees performing police services for any municipality who are not elected officials shall be covered by this Chapter and shall be eligible for compensation; and provided further that criminal deputy sheriffs for the parish of Orleans shall be covered by this Chapter and shall be eligible for compensation as provided herein.
B. Except as expressly and specifically provided to the contrary in Subsection A hereof, the officials excepted from coverage under the provisions of this Chapter, in Subsection A of this Section, include all public officers as defined by [LaJR.S. 4-2:1. In this regard, sheriffs’ | rdeputies are, under [LaJR.S. 42:1, [La. R.S.] 38:1433, and [La.R.S.] 33:9001 et seq., appointed public officers and officials of their respective political subdivisions, the parish law enforcement districts.

(Emphasis added.)

Therefore, because Trahan was a deputy sheriff and, as such, was a public officer, she was excluded from workers’ compensation coverage. Lewis v. Jefferson Parish Sheriffs Office, 01-257 (La.App. 5 Cir. 9/25/01), 798 So.2d 249; citing Kaufman v. City of New Orleans, 98-443 (La.App. 5 Cir. 10/28/98), 720 So.2d 835, writ denied, 98-3169 (La.2/12/99), 738 So.2d 576; Smith v. St. Tammany Sheriff’s Office, 95-960 (La.App. 1 Cir. 2/23/96), 668 So.2d 1331, writ denied, 96-761 (La.5/3/96), 672 So.2d 694.

Trahan argues that the doctrine of equitable estoppel, or estoppel in pais, precludes the exclusion of deputy sheriffs from the Louisiana Workers’ Compensation Act. Specifically, Trahan argues that she relied upon Acadia’s conduct. And, as a result of said reliance, she was forced to change her position. Trahan further alleges that, as a result of said reliance and to her detriment, Acadia should be estopped from asserting that it is exempt from paying her workers’ compensation in accordance with La.R.S. 23:1034. Trahan asserts that she relied upon the conduct of Acadia, i.e., its payments to her of wages in lieu of compensation following her work accidents beginning in early 2002 and continuing until May of 2005, yet Acadia terminated Trahan’s employment and all “wages in lieu of compensation” payments on or about May 31, 2005. Trahan contends that she construed Acadia’s payments to her as Acadia’s compliance and submission with | (¡Louisiana’s workers’ compensation law regarding indemnity payments. Trahan argues that, since the running of prescription is suspended when the employer pays the injured worker wages in lieu of compensation, she should be allowed to proceed with her lawsuit for workers’ compensation benefits against Acadia.

Acadia concedes that after Trahan’s second alleged accident, which occurred on February 28, 2002, it gratuitously paid Trahan her salary and health insurance benefits despite her inability to perform any of her occupational duties. However, Acadia denies that it made any representation to Trahan by conduct or word that said payments to her were workers’ compensation benefits.

This court stated in Roberson v. Lafayette Oilman’s Sporting Clays Shoot, Inc., 02-1275, 02-369, pp. 4-5 (La.App. 3 Cir. 4/30/03), 845 So.2d 1267, 1270, writ denied, 03-1531 (La.9/26/03), 854 So.2d 370:

Equitable estoppel or ‘estoppel in pais’ can be defined as the effect of the voluntary conduct of a party whereby he is barred from asserting rights against another party justifiably relying on such conduct and who has changed his position to his detriment as a result of such reliance. Thus, there are three elements of es-toppel: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the rebanee.
Elliott v. Catahoula Parish Police Jury, 02-9, p. 1 (La.App. 3 Cir. 5/8/02); 816 So.2d 996, 997 (quoting Wilkinson v. Wilkinson, 323 So.2d 120,125 (La.1975)).
In Morris v. Friedman, 94-2808, p. 9 (La.11/27/95); 663 So.2d 19, 25, the supreme court further elaborated on this issue: “[A] party having the means readily and conveniently available to determine the true facts, but who fails to do so, cannot claim estoppel. Further, estoppels are not favored in our law, and properly apply only as to representations of fact.... Finally, ‘[ejquitable considerations and estoppel cannot be permitted to prevail when in conflict with the 17positive written law.’ ”

Considering the facts and applicable law above set forth, we find the doctrine of equitable estoppel is inapplicable in this case. The law exempting deputy sheriffs from workers’ compensation benefits is “positive written law.” Trahan’s reliance on estoppel is in direct conflict with positive written law (La.R.S. 23:1034). Thus, we find Trahan’s argument to be without merit.

DECREE

For the foregoing reasons, the judgment of the OWC granting summary judgment in favor of Acadia and denying Trahan’s cross-motion for summary judgment is affirmed. Costs of this appeal are assessed against Plaintiff/Appellant, Mamie Trahan.

AFFIRMED.

      . In Trahan’s affidavit attached to her cross-motion for summary judgment, she asserts: "On or about May 31, 2005, my employer terminated all payments. Effective this same date, apparently my employer terminated my employment as well."

      . Louisiana Revised Statutes 42:1 defines "public officers” as "any person holding a public office in this state." Louisiana Revised Statutes 33:1433 sets out the requirement that deputy sheriffs take an oath of office. Louisiana Revised Statutes 33:9001 "create[s], in each parish except Orleans, a special district to be known as a law enforcement district for the purpose of providing financing to the office of sheriff for that parish.”

      . Mauldin v. Town of Church Point, 05-1294 (La.App. 3 Cir. 4/5/06), 925 So.2d 1269, writ denied, 06-1043 (La.6/23/06), 930 So.2d 983.