text:
    BANK ONE, NA, Plaintiff-Appellee, v. Floyd DUNN, Jr. d/b/a Dunn Electric, Defendant-Appellant.
    No. 40,718-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      Davis Law Office, LLC, by S.P. Davis, for Appellant.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, L.L.P., by Leland David Cromwell, Felix J. Bruyninekx III, Joseph Samuel Woodley, Shreveport, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   DREW, J.

_JiThis case involves an international scam and allegations which can only be described as bizarre. Floyd Dunn appeals a judgment granting Bank One’s motion for summary judgment against his recon-ventional demand. We affirm.

FACTS

Floyd Dunn, an electrician by trade, had the good fortune, or misfortune as the case may be, of making the acquaintance of the son of the President of Zaire, Mobutu Sese Seko, while traveling to California in the 1980s. Dunn took up the son’s invitation to visit Zaire and met with President Mobutu. Dunn asserted that he was hired as a lobbyist for Zaire in the United States, and registered with the Justice Department as a foreign agent. Among Dunn’s actions on behalf of Zaire was an attempt to establish a consulate office for Zaire in Shreveport.

Dunn stated that he lobbied for Zaire for approximately three years. Seeking compensation for his efforts, he sent a bill for $500,000 to Zaire, which was not paid. Dunn explained that after he met with the leader of Nigeria, General Sani Abacha, it was then arranged that he would also begin lobbying in the United States on behalf of Nigeria, although Dunn never registered as a lobbyist for Nigeria. In order to pay Dunn for his lobbying, Zaire agreed to trade computers to Dunn, who would then sell these ^computers to Nigeria for $32,100,000. Dunn added that he was given a contract number for the transaction.

Dunn estimated that he lobbied for Nigeria until 2000, when there was a change in the government of Nigeria. Af-terwards, he visited Nigeria and Zaire in hopes of receiving his money, but he was unsuccessful. Dunn claimed that he was later contacted by a “Senator Frank” from Nigeria, whom Dunn did not know. Senator Frank, who apparently knew Dunn’s contract number, told Dunn that he owed back taxes to Nigeria which had to be paid before Dunn would receive his $32,100,000. Senator Frank offered to send Dunn a check for $315,000 in order to pay these taxes. As requested, Dunn provided Senator Frank with the number of his checking account at Bank One. Senator Frank told Dunn that $315,000 would be deposited into the account, but he did not tell Dunn the payor of the check. Dunn stated that he never personally deposited the check and never saw the check before it was deposited.

Floyd Dunn had opened a checking account at Bank One in August of 1997 in the name of Floyd Dunn d/b/a Dunn Electric. On August 1, 2001, a check in the amount of $315,000 was deposited into the account. Prior to that time, the account balance had never exceeded $5,000. The check was payable to Dunn Electric Co. and was drawn on the account of Argenbright Security Incorporated at First Union National Bank of Georgia. Provisional credit was given for this amount. On August 2, 2001, Dunn wrote a check on his Bank One bank account for $250,000 to First Guaranty Bank in Oil | sCity, where Dunn had another account. Pursuant to Senator Frank’s instructions, Dunn then wired $250,000 to an account at a Virginia bank held by a Walter Cleves, whom Dunn did not know.

On August 2, 2001, the $315,000 check was sent out in transit to the Federal Reserve, which attempted to process the cheek to First Tennessee Bank. This check was returned to the Federal Reserve and then to Bank One on August 7. Believing that the check contained an incorrect routing number, Bank One wrote the routing number of First Union National Bank of Georgia on the check and sent the check back to the Federal Reserve on August 9. First Union returned the check as counterfeit to the Federal Reserve on or about August 15. The check was returned to Bank One on August 16, and Bank One charged back the check to the account of another customer on that date.

On August 23, 2001, Dunn completed a wire transfer of $27,000 from his Bank One account to an account held by Cleves in Virginia. Dunn had originally attempted to wire this amount two days earlier, but it had been sent to an incorrect location. On September 21, 2001, Bank One was alerted that it had charged back the counterfeit check against the wrong account. On September 24, the counterfeit check was charged back against Dunn’s account.

Dunn claimed that he eventually received a cashier’s check payable on a Citi Bank account for $32,100,000. That check was sent by courier. Apparently still hopeful that he would receive his windfall, Dunn took the |4check to First Guaranty Bank and asked for it to be verified. Dunn stated that he contacted the FBI after discovering the scam.

Bank One filed suit against Dunn on June 6, 2003, alleging that Dunn owed $281,019.11, together with legal interest and attorney fees, for the overdraft of the checking account. Dunn filed an answer and reconventional demand in which he sought, among other damages, an offset of any amount rendered against him in judgment on the original demand. Dunn alleged that Bank One was negligent in giving credit for the counterfeit check when its fraudulent nature could have been determined through due diligence and reasonable prudence.

Bank One filed a motion for summary judgment as to the original and reconven-tional demands. The trial court granted the motion for summary judgment on the original demand, but held the motion for summary judgment on the reeonventional demand in abeyance to allow the parties to make additional filings. Bank One’s motion for summary judgment on the recon-ventional demand was later granted. Dunn appealed the judgment dismissing the reeonventional demand.

DISCUSSION

Dunn’s first assignment of error is that the trial court erred in granting Bank One’s motion for summary judgment against his reeonventional demand. Dunn has not appealed the judgment granting Bank One’s motion for summary judgment as to the main demand.

The summary judgment procedure is designed to secure the just, speedy, and inex^ pensive determination of every action, and the procedure is |sfavored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith 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 the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under ■ the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,-555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

Dunn asserts that a genuine issue of material fact remains regarding whether the damages sustained were caused by Bank One’s negligence. Dunn’s argument is that contrary to Bank One’s deposit policy, Bank One immediately gave his account credit for the $315,000 before verifying that the check was legitimate. Dunn contends that had he known that his account was being credited for the $315,000 before Bank One verified the check, then he would not have transferred the money from his account. In essence, his argument is that Bank One should have protected him from himself. Under the circumstances of this case, Bank One owed Dunn no such duty.

The facts of this case would be incredibly comical were it not for the huge amounts of money involved. It is apparent from Dunn’s deposition testimony that he was at least cognizant that such fraud schemes existed in the world:

| rQ: Before this time did you have any familiarity with what we commonly call Nigerian fraud schemes?
A: I had heard about it, yes.
Q: Were you aware of it prior to August 1, 2001?
A: No.
Q: So it’s only after the $315,000 check was deposited that you became aware of the Nigeria fraud schemes?
A: I saw something pertaining to this on TV at one time, but I never thought I would be involved in it.
Q: Was that prior to this check being deposited or after?
A: Prior to that.

At the very least, Dunn’s suspicions should have been raised when his $500,000 lobbying fee was suddenly increased to $32,100,000 through a scheme involving a computer transaction. Certainly, Dunn would have had to ask himself why Zaire would part with computers worth over $32 million when the country only owed less than l/50th of that amount to Dunn in the first place.

More importantly, Dunn should have recognized a red flag when he first heard the details of the arrangement concocted by Senator Frank, whom he had never met prior to their one telephone conversation. Dunn’s trust of Senator Frank was premised on Senator Frank’s knowledge of Dunn’s contract number. Dunn should have wondered why Senator Frank, acting either as a private citizen or on behalf of Nigeria, would offer to pay back taxes supposedly owed by Dunn.

Perhaps Dunn was simply naive for trusting someone he did not know with his bank account information and then by actively participating in thej^scheme by wiring money on three occasions. Perhaps Dunn lost all common sense once he spied the $32,100,000 pot of gold at the end of the rainbow. Regardless, under these circumstances, Bank One owed no duty to protect Dunn from his notably poor judgment.

Dunn also contends that Bank One is hable for damages because it acted unreasonably by its delay in determining the counterfeit nature of the check. In making this argument, Dunn relies on La. R.S. 10:4-214(a), which provides:

If a collecting bank has made provisional settlement with its customer for an item and fails by reason of dishonor, suspension of payments by a bank, or otherwise to receive settlement for the item which is or becomes final, the bank may revoke the settlement given by it, charge back the amount of any credit given for the item to its customer’s account, or obtain refund from its customer, whether or not it is able to return the item, if by its midnight deadline or within a longer reasonable time after it learns the facts it returns the item or sends notification of the facts. If the return or notice is delayed beyond the bank’s midnight deadline or a longer reasonable time after it learns the facts, the bank may revoke the settlement, charge back the credit, or obtain refund from its customer, but it is liable for any loss resulting from the delay. These rights to revoke, charge back, and obtain refund terminate if and when a settlement for the item received by the bank is or becomes final.

Emphasis added.

A bank is required to exercise ordinary care in sending notice of dishonor after learning that the item has not been paid or accepted. La. R.S. 10:4-202. Notifying the customer of dishonor after the bank’s midnight deadline may constitute the exercise of ordinary care if the bank took proper action within a reasonably longer time, but the bank has the burden of establishing timeliness. Id.

IsComment six to La. R.S. 10:4-214 states that the right of charge back does not relieve the bank from any liability for failure to exercise ordinary care in handling the item, and the measure of damages for such failure is stated in La. R.S. 10:4-103(e), which provides:

The measure of damages for failure to exercise ordinary care in handling an item is the amount of the item reduced by an amount that could not have been realized by the exercise of ordinary care. If there is also bad faith it includes any other damages the party suffered as a proximate consequence.

Comment six to La. R.S. 10:4-103 explains, “When it is established that some part or all of the item could not have been collected even by the use of ordinary care the recovery is reduced by the amount that would have been in any event uncollectible.”

Dunn’s liability is not diminished because of Bank One’s delay in notifying Dunn that the check was counterfeit. Even if Dunn had received earlier notice from Bank One that the check was counterfeit, he still had no recourse against Argenbright Security. The $315,000 was uncollectible against Argenbright Security. We emphasize that Dunn showed great alacrity in moving most of the funds from his account, as indicated by Dunn’s $250,000 check to First Guaranty that was dated the day after the $315,000 deposit. The motion for summary judgment was properly granted on the reconventional demand.

Dunn next argues that the trial court erred in holding him personally liable for the judgment rendered against Dunn Electric. This argument, which is raised for the first time on this appeal, is without merit. Dunn testified that his company was incorporated. Nevertheless, his account was Ropened up under the name of Floyd Dunn, Jr. d/b/a as Dunn Electric. We also note that in August of 2001, although his Bank One checks bore the name of Dunn Electric Company, his Bank One account statements still listed “Floyd Dunn, Jr. dba Dunn Electric” as the account owner.

DECREE

At appellant’s costs, the judgment is AFFIRMED.

      . JP Morgan Chase Bank, N.A. acquired Bank One after this suit was filed.

      . Zaire is now known as the Democratic Republic of the Congo. Originally a Belgian colony, the Republic of the Congo gained its independence in 1960. Col. Joseph Mobutu, who declared himself president in a November 1965 coup, changed the name of the country to Zaire, and his own name to Mobutu Sese Seko. Mobutu was toppled in 1997, and the country was given its present name. http://www.cia.gov/ cia/publications/ fact-book/geos/cg.html

      . Bank One gave credit for this check on August 6.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Thomas Lee HUMPHRIES, Jr., Appellant.
    No. 40,810-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      Louisiana Appellate Project by W. Jarred Franklin, Kurt J. Goins, Assistant Indigent Defender, for Appellant.
    Thomas Lee Humphries, Jr., pro se.
    Paul J. Carmouche, District Attorney, William J. Edwards, Dhu Thompson, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before PEATROSS, DREW & MOORE, JJ.
   PEATROSS, J.

1 Phis appeal arises from the conviction of Thomas Lee Humphries, Jr. (“Defendant”) on two counts of aggravated rape and two counts of molestation of a juvenile involving minors, H.F. and K.H. Defendant was sentenced to life imprisonment at hard labor for each of the aggravated rape counts and to 12 years on each of the molestation of a juvenile counts. He now appeals, urging four assignments of error. For the reasons set forth herein, Defendant’s conviction and sentence on all counts are affirmed.

FACTS

In early September 2002, while responding to a call, police officers in Oil City, Louisiana, noticed that the children residing with Defendant and his wife, mother of H.F. (d.o.b. 1/20/95) and K.H. (d.o.b. 9/1/97), were living in unsanitary conditions. As a result, H.F. was temporarily placed with Laura Morris, the mother’s sister; and K.H. was placed with her grandmother, Bobbie Broom. During this time, Ms. Morris contacted authorities claiming that H.F. had been molested by Defendant. H.F. was interviewed at the Gingerbread House, where she disclosed several instances of Defendant’s sexual misconduct towards her. H.F. was given a physical examination by Dr. Jennifer Rodriguez, a board certified pediatrician specializing in examining child abuse victims at the LSU-HSC. Dr. Rodriguez found no medically objective evidence of sexual molestation.

In light of the situation, K.H., H.F.’s half-sister, was also interviewed at the Gingerbread House, and she too claimed that Defendant “touched her” inappropriately. K.H. was given a physical examination by Dr. Ann | ¡¾Springer, a board certified pediatrician specializing in examining child abuse victims and certain behavioral disorders, who found that the minor child’s hymen was distorted and diagnosed her as having sexual molestation with traumatic penetration and “a hymeneal laceration with urethral distortion.” The victims claimed that the offenses were committed against both of them sometime between September 2001 and September 2002.

On March 18, 2005, a jury of 12 returned with guilty verdicts on every count. Defendant timely filed a motion for new trial and a motion for post-verdict judgment of acquittal and/or modification, both of which were denied. On April 4, 2005, Defendant was sentenced to life imprisonment at hard labor for each aggravated rape count and 12 years at hard labor for each molestation of a juvenile count. From this conviction and sentence, he now appeals, urging four assignments of error. ■

DISCUSSION

Assignment of Error Number One and Number Two: There was insufficient evidence produced at trial to prove beyond a reasonable doubt that the defendant committed the offenses of aggravated rape and molestation of a juvenile upon H.F. and KM.

Defendant initially argues that the State did not carry its burden of proof as required by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), as embodied in La. C. Cr. P. art. 821. More to the point, he urges that the State failed to introduce sufficient evidence that Defendant committed aggravated rape under La. R.S. 14:42, which states:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or 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:
_k- • •
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

Defendant contends that the State did not prove that he committed an act of anal, oral or vaginal sexual intercourse with the alleged victims without their consent and that the alleged victims were under the age of 12.

Defendant further argues that there was insufficient evidence to convict him of molestation of a juvenile on H.F. or K.H., as set forth by La. R.S. 14:81.2(A), which states:

A. Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

Defendant contends that the only evidence presented at trial to prove that he committed aggravated rape and molestation of a juvenile upon K.H. was the third taped interview at the Gingerbread House and the testimony of Dr. Springer. He argues that Dr. Springer’s testimony is unreliable as she did not know the medical history of K.H., and, more particularly, that K.H. had vaginal problems in January 2000, for which a doctor had prescribed cream to be put on the vaginal area every day which, he argues, could have caused the laceration of her hymen. Defendant further remarks that, on KH.’s third interview (where she describes what happened to her), she, for Rthe first time, described her vagina as her “toot-toot” and that she must have been taught this word by someone since the time of her first interview.

Defendant argues that the only evidence presented at trial to prove the aggravated rape and molestation of a juvenile upon H.F. was H.F.’s testimony. No physical evidence was introduced. He asserts that this created an emotional jury, and the jury erred in finding that the State met its burden of proof beyond a reasonable doubt. Defendant cites State v. Rives, 407 So.2d 1195 (La.1981), and asserts that, in the case sub judice, many inconsistencies and irreconcilable conflicts with the physical evidence leave a reasonable doubt as to whether he committed the offense.

To the contrary, the State first sets out that the evidence reflects that the victims were sisters who had different biological fathers and that they were, at the time of the offenses, approximately four and seven years of age. H.F.’s aunt learned from the minor child that Defendant touched her private parts and this led to his investigation and eventual arrest. Wendy Westerman, who qualified as a forensic interviewer expert and specialized in interviewing children subjected to sexual abuse, interviewed H.F. and K.H. In addition to the victims’ testimony, Ms. Wester-man utilized drawings to demonstrate the areas of the body that the children alleged Defendant touched and linked these drawings in her testimony.

The State further points out that Dr. Rodriguez explained how 80 percent of the time a child who has been the victim of abuse has a normal exam. Although no physical evidence was found on H.F., she did inform |fiDr. Rodriguez that Defendant touched her in the wrong place and that is why she was seeing the doctor.

Similarly, Dr. Springer examined K.H. at the LSU-HSC. The exam revealed that she had a healed laceration of her hymen and that an object too big to fit had penetrated that area. The State further acknowledged that K.H. denied that there was penetration by Defendant’s penis, but Dr. Springer explained that child abuse victims often blanked such trauma from their minds.

Additionally, Deborah Brown, Ph.D., an expert in counseling with abused children worked with K.H. in the fall of 2002. K.H. told her that Defendant had hurt her very bad in her private area. It was Dr. Brown’s opinion that a traumatized child would find it hard to open up and tell everything in a courtroom setting. From this, the State submits there was sufficient evidence to convict Defendant for the charged offenses; and, therefore, his first two assignments of error lack merit. We agree.

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, supra; State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/5/03), 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.10/4/96), 680 So.2d 1165.

An 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, 02-3090 (La.11/14/03), 858 So.2d 422. Where there is conflicting testimony regarding 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, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (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 case sub judice, several experts with whom the victims interviewed opined that there was ample evidence of sexual abuse upon the minor children. In addition, there was direct testimony from the victims explaining, with specificity, what Defendant did to them. We note that the testimony of the victim alone is sufficient to prove the elements of the offense. State v. Ingram, 29,172 (La.App.2d Cir.1/24/97), 688 So.2d 657, writ denied, 97-0566 (La.9/5/97), 700 So.2d 505; State v. Walters, 26,888 (La.App.2d Cir.5/10/95), 655 So.2d 680. Here, the jury found the evidence compelling and found Defendant guilty on all counts. We further note, per Gilliam, supra, a reviewing court accords great deference to a Ljury’s decision to accept or reject the testimony of a witness in whole or in part.

Defendant complains that the inconsistencies and the irreconcilable difference with the physical evidence lend to the merit of the insufficiency of evidence to prove the offenses beyond a reasonable doubt; however, 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. See, Allen, supra.

Defendant would have this court second guess the validity of the treating physicians’ testimony, but the appellate court does not assess the credibility of witnesses or re-weigh evidence. See, Smith, supra. In light of the evidence presented and the appellate standard of review, the first two assignments of error are, therefore, without merit.

Assignment of Error Number Three (verbatim): The court erred in allowing other crimes evidence against the defendant.

Defendant next argues that the trial court erred in admitting his prior criminal act as evidence in the State’s case-in-chief, pursuant to La. C.E. art. 412.2. Defendant contends that the application of this article is 1 Rdiscretionary and is not without limitation or restriction because it is subject to the balancing test of La. C.E. art. 403, which states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

Accordingly, Defendant argues that the prejudicial effect of admitting his prior criminal act and its lack of relevance to the instant case far outweighed its probative value.

In 1986, when he was 14 years of age, Defendant was convicted of the forcible rape of his younger sister. He asserts that the facts were substantially different from those in the present case; and, therefore, the State should not have used this prior bad act to show a pattern. Defendant argues that, when this prior rape occurred, he was in the midst of puberty and was a “mixed-up” child. From this, he argues that the court erred in not finding the prior bad act had a more prejudicial effect than a.probative value.

Defendant further asserts that this erroneous admission of evidence is not harmless error. Defendant cites Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), which stated that the test is “whether there is a reasonable possibility that the evidence might have contributed to the verdict, and whether the reviewing court is prepared to state beyond a reasonable doubt that it did not.” By extension, Defendant asserts that the introduction of his prior bad act constitutes reversible error.

In response, the State argues that notice was provided pursuant to La. C.E. art. 412.2, supra, to introduce the evidence of Defendant’s prior | flcriminal act. It notes that Defendant filed a motion in limine to exclude the evidence. A pre-trial hearing was held on the issue, and the court ruled the evidence was admissible pursuant to Art. 412.2, supra. As such, the trial court found the balancing test favored the admission of the evidence as being more probative than prejudicial. The State asserts that the evidence showed a common mode of action and demonstrated a propensity for sexual acts with a young child where Defendant held a position of authority. The State submits that the elements of the relevant code of evidence articles have been met; and, therefore, this assignment lacks merit. We agree.

Generally, a trial court’s ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996); State v. Blackwell, 30,281 (La.App.2d Cir.11/10/97), 701 So.2d 1389, writ denied, 97-3073 (La.2/13/98), 709 So.2d 755. In State v. Olivieri, 03-563 (La.App. 5th Cir.10/28/03), 860 So.2d 207, the court stated:

Under LSA-C.E. Article 412.2, evidence of a prior sexual offense is admissible if relevant and if its probative value outweighs its prejudicial value. Rulings on the admissibility of evidence will not be disturbed, absent an abuse of discretion. (Citations omitted.)

Defendant was convicted of forcibly raping his younger sister. The State gave notice of intent to submit into evidence his prior bad act, as required by Article 412.2(B). The trial court held a pre-trial hearing on the matter after Defendant filed a motion in limine and found the prior bad act to be admissible and relevant. Moreover, Defendant’s sister testified to the [ mprior sexual offense, and the record reflects no indication that the jury was confused with the introduction of the evidence. If nothing else, the record is replete with evidence that Defendant has shown a repeated propensity towards sexually predatory behavior. Accordingly, after reviewing the record, we can find no evidence of an abuse of discretion in the trial court’s ruling. This assignment is, therefore, without merit.

Assignment of Error Number Four (verbatim): The sentence imposed is excessive for this offender and offense.

In his final assignment of error, Defendant argues that his sentences are grossly disproportionate to the crimes allegedly committed by him and an unnecessary imposition of pain and suffering. To the contrary, the State argues that no evidence was introduced to show why the court should not impose the mandatory sentence. To support its assertion, it cites State v. Stevens, 33,700 (La.App.2d Cir.8/23/00), 766 So.2d 634, which stated that “the defendant bears the burden of showing that a deviation beneath the mandatory minimum is warranted.” Accordingly, the State submits that the sentence imposed is not excessive.

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. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864. Further, as a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207.

In the case sub judice, the sentence imposed was within the range provided by the sentencing guidelines. The court looked at Defendant’s relationship with the minor victims, the victims’ ages and the gravity and seriousness of the crime in determining his sentence. After a complete review of the record, we find the sentence is not cruel or unusual, nor does it shock our sense of justice. For these reasons, we find that this assignment is without merit.

Error Patent Review

The record indicates that Defendant was convicted by a unanimous jury of 12 people, rather than 6, as prescribed by law. The Louisiana Constitution, Article 1, Section 17 (1974), which is embodied in La. C. Cr. P. art. 782, states, in part:

A. Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict. (Emphasis ours.)

Further, the sentencing guidelines for molestation of a juvenile are set forth in La. R.S. 14:81.2(C), which states:

Whoever commits the crime of molestation of a juvenile when the offender has control or supervision over the juvenile shall be fined not more than ten thousand dollars, or imprisoned, \Kwith or without hard labor, for not less than one nor more than fifteen years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with Code of Criminal Procedure Article 893. (Emphasis added.)

Accordingly, it may be argued that a 12-person jury composition for the molestation of a juvenile conviction is incorrect and should be considered an error patent under the holding in State v. Nedds, 364 So.2d 588 (La.1978), which held, inter alia:

As both the Constitution and statute require a six-person jury to try a case which is punishable with or without hard labor, trying the defendant with a twelve-person jury was fatal error. We have consistently held that, in cases tried by a jury composed of either more than or less than the correct number of jurors, the verdict is null. (Citations omitted.)

We do not, however, find Defendant’s conviction by a 12-person jury to be reversible error in this case. In 1997 the legislature enacted LSA-C.Cr.P. 493.2, which allows a 12-person jury for the charged offenses in the instant case and sets forth, in pertinent part:

[Ojffenses in which punishment is necessarily confinement at hard labor may be charged in the same indictment or information with offenses in which the punishment may be confinement at hard labor, provided that the joined offenses are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. Cases so joined shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. (Emphasis ours.)

The supreme court recently took up State v. Jones, 05-0226 (La.2/22/06), 922 So.2d 508, a first circuit court of appeal case that abrogated Nedds, supra, in which the issue was whether or not a criminal trial decided by a unanimous jury composed by ■ a greater number of [ 1spersons than constitutionally required, violated a defendant’s constitutional rights. The supreme court held that it did not. In so ruling, the court stated:

While the Louisiana Constitution and La. C. Cr. P. art. 782 required that a six person jury hear [the defendant’s] case, we find that his conviction by a unanimous twelve person jury does not rise to the level of a structural error.
We find that [the defendant] has not shown, nor do we find, that he was prejudiced by having his case decided by a unanimous jury of twelve. Twelve persons unanimously convicted [the defendant] of DWI. Furthermore, we find that the empaneling of a jury composed of a greater number of persons than constitutionally required is no longer a non-waivable jurisdictional defect subject to automatic nullity. Hence, we find [defendant’s] unanimous verdict by twelve jurors, when the constitution requires a unanimous jury of six person, was harmless error.

Moreover, this court encountered a similar issue in State v. Houston, 925 So.2d 690 (La.App.2d Cir.3/10/06), which was sent to the panel in January 2006. In that case, the incorrect number of jurors for a charged offense was not an assigned error. In Houston, we stated:

La. C. Cr. P. art. 493.2 permits joinder of offenses that require hard labor sentences with those in which a hard labor sentence is optional in a single indictment when the offenses are of the same or similar character or are based on two or more acts constituting part of a common plan or scheme. Cases so joined must be tried by a jury of twelve, ten of whom must concur to render a verdict.

Since each victim in this case suffered at least one act of rape and an additional act of molestation of a juvenile, joinder of these two cases would be proper; and, accordingly, there is no error.

1 ^CONCLUSION

For the reasons set forth herein, the convictions and sentences of Defendant, Thomas Lee Humphries, Jr., are affirmed.

AFFIRMED.

      . This article states:
      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 another 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.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Eddie Robert LANE, Jr., Appellant.
    No. 40,816-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      Louisiana Appellate Project by Peggy J. Sullivan, Monroe, for Appellant.
    Eddie Robert Lane, Jr., pro se.
    Paul J. Carmouche, District Attorney, Dhu Thompson, Ron C. Stamps, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and DREW, JJ.
   STEWART, J.

I,The defendant, Eddie Robert Lane, Jr., was convicted of armed robbery. He was sentenced as a fourth felony offender to life imprisonment at hard labor without benefits. For the reasons explained herein, we affirm his conviction and sentence.

FACTS

In the early morning hours of March 12, 2004, Yolanda Burnom drove to meet friends at the H and H Lounge in Shreveport. She testified that the defendant first stopped her as she entered the club and that he sat in the passenger seat of a white Buick at that time. She said that he asked her if she “had a smoke” and that she replied that she did not smoke or drink. After staying in the club approximately 30 to 45 minutes, Burnom walked out to call a friend on her cell phone.

While she talked on the phone and unlocked her car door, Lane pointed a gun at her side, told her to get off of the phone, and demanded money. Burnom identified the gun as a Glock .09-mm, explaining that she had completed firearms training while contemplating working for the sheriffs department before deciding to instead attend graduate school. She stated that she had also learned about firearms in her career as a readjustment counselor for veterans. She testified that she put the cell phone on the driver’s seat and tried to tell her Mend what was happening. Burnom then lied to the defendant and told him that she was an FBI agent and that he should not rob her. She testified that this conversation continued for about 20 minutes. She finally gave him $15.00, and he started patting her down. Burnom pushed him and ran toward an officer |gthat she had seen parked near the club. Burnom told Corporal Joseph “J.M.” Sharpley her account of the events. She stated that after talking to Sharpley, she realized that the defendant had also stolen another wallet with money, a Palm Pilot, and her car keys.

Burnom started her car with an extra set of keys and gave a friend a ride home. While driving her friend home, Burnom saw Lane approximately three blocks away. She stated that she rolled the window down and told her friend that Lane was the man who had robbed her. Bur-nom testified that the defendant started backing up when he noticed her, dropped his beer, and took off running. Burnom then called the police and reported seeing the defendant. Burnom later testified that she received information the next day that included the defendant’s nickname and first name as well as his address. At trial, Burnom identified the defendant as the man who robbed her.

Corporal Sharpley testified that Burnom was shaking and upset when he arrived on the scene. He said that the victim told him that the defendant had held what appeared to be a Glock handgun at her side and demanded her money. He corroborated Burnom’s account of the items she claimed that the defendant had taken and Burnom’s statement about the incident and her subsequent call to the police except regarding whether she gave police a license plate number. Sharpley also testified that he took fingerprints from the car door, but that attempts to match the prints had been inconclusive.

Detective Michael McConnell testified that Burnom talked to him about the man she spotted with Lane one hour after the robbery. From that | ¡¡conversation, she was able to give police the defendant’s name, nickname (Pootie Loe), and a partial address. McConnell stated that he arrested the defendant about 14 days after the robbery. He stated that Burnom identified the defendant from a photo lineup without hesitation.

The defense called Laquondra Golston who testified that she owned a white Oldsmobile, a car similar to the one in which the victim stated she saw the defendant sitting. She said that she had driven the car to the H and H Lounge that night, but that she did not know Lane very well and that no one had been in her car that night except her.

Following a trial, the defendant was convicted of armed robbery. He was adjudicated a fourth felony offender and was sentenced to life imprisonment at hard labor without benefits.

DISCUSSION

Sufficiency of Evidence

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64. The proper 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. 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. 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.

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge or jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, State ex rel. Gilliam v. State, 02-3090 (La.11/14/03), 858 So.2d 422. 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, 98-0282 (La.6/26/98), 719 So,2d 1048.

|BThe defendant argues that the victim s testimony was not corroborated and was insufficient to support the conviction. He claims that she should have, given a more detailed description of the robber. The defendant argued that the tattoos on his face would have been the first thing she should have seen and described, yet the victim did not mention this obvious physical feature. He also argues that the fingerprints taken were never identified as his. He argues that while the victim said she saw him sitting in a car, the owner of the car testified that she had gone to the club alone and that the defendant had no access to the car. Lane asserts that the victim only claimed she knew he was the robber when she saw him later because she saw a young black man wearing similar clothing. Lane contends that the entire basis of her identification of him stems from this sighting.

The state counters that the victim’s testimony about the identity of the man who robbed her was supported by her brief conversation with the defendant before entering the club, personal observations during the robbery, and seeing him drop his can of beer and run when she saw him later that night at a different location. The state claims that the victim identified the defendant as the robber from a photo line-up. The state argues that the car owner’s testimony actually supported the victim’s testimony because it proved that the automobile the victim described was at the club at the time of the robbery.

We find that the victim’s identification of the defendant as her assailant is supported by the evidence. She identified the defendant as the |fiman who robbed her in the photo lineup and in court. During her in-court identification of the defendant, Bur-nom pointed out the tattoos on the side of his face. The evidence as to identity presented on rebuttal is discussed below in the first pro-se assigned error. The victim had multiple opportunities to observe the defendant on the date of the robbery. She identified him without hesitation during the photo lineup. While the fingerprints were not matched to the defendant, the evidence presented was sufficient to support the victim’s identification of the defendant as the robber.

Finally, Laquondra Golston, the owner of a white Oldsmobile, testified that she drove her car to the H and H Lounge that night with other people. She said that she knew the defendant, but that she never allowed him access to her vehicle. Gol-ston’s testimony put the car at the scene where the victim stated she had seen it. The victim’s credibility in testifying as to the defendant’s identity was a decision for the jury, and this court accords great deference in that decision. Therefore, this assignment is without merit.

Adjudication as a Fourth Felony Offender

The defendant argues that he should not have been adjudicated a fourth felony offender because he was not advised of enhancement penalties and the right to compulsory process at the prior pleas. The state argues that case law does not require counseling that the guilty plea may later be used to enhance the penalty of a subsequent conviction. The state also claims that the trial court is not required to advise the defendant of the right to |7compuIsory process in order to insure that a guilty plea is knowingly and intelligently made. In a habitual offender proceeding, the state is only required to establish a prior felony conviction and that the defendant is the person convicted of the earlier offense. State v. White, supra.

A valid guilty plea requires a showing that- the defendant was informed of and waived his constitutional rights of trial by jury and confrontation and the privilege against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). La. C. Cr. P. art. 556.1 requires that in a felony case, the court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:

(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if financially unable to employ counsel, one will be appointed to represent him.
(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.
(4) That if he pleads guilty or nolo con-tendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial.

The article also provides that the trial court must determine that the plea is voluntary and not the result of force or threats or- of promises apart from a plea agreement. Id.

|sIn State v. Shelton, 621 So.2d 769 (La.1993), the Louisiana Supreme Court discussed the state’s burden of proof in a habitual offender proceeding as follows:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that the defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving the defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boy-kin rights. (Footnotes omitted.)

Neither Boykin, nor La. C. Cr. P. art. 556.1, Louisiana’s guilty plea requirement statute, include the right to compulsory process. State v. Crayton, 34,990 (La.App.2d Cir.9/26/01), 796 So.2d 87. A court is not required to inform a defendant that his guilty plea may be used as a basis for the filing of a future multiple offender bill. State v. Nuccio, 454 So.2d 93 (La.1984); State v. Jackson, 31,849 (La.App.2d Cir.3/31/99), 734 So.2d 54.

The state filed a fourth felony habitual offender bill of information listing the instant conviction and the defendant’s prior guilty pleas for |asimple robbery in 2001, illegal possession of stolen things in 1997, and aggravated battery in 1995. The state presented bills of information, minutes, and plea transcripts from each of the prior convictions. The defense counsel filed an objection to the habitual offender bill of information, alleging that all three guilty pleas were defective because the court did not inquire into the defendant’s background, determine his proficiency in the English language, advise him of his right to compulsory process, or advise him that the guilty plea could be used to enhance future sentences. Those objections were argued orally immediately before the hearing on habitual offender adjudication and were denied, with the trial court noting the defense counsel’s objections for the record.

The minutes for each of the three pleas state that the defendant was informed of his rights as per Boykin v. Alabama. The record shows that the defendant was advised by counsel at each of the hearings where a guilty plea was entered. The transcripts for each of the three convictions show that the defendant was advised of his right to a jury trial, the right to confrontation, and the right against self-incrimination. The objection regarding inquiry into the defendant’s ability to understand English was not raised in the assigned error. However, the defendant told the court he had a GED in 1995, was asked if he could read and write English in 1997, and was again asked if he could read and write in 2001.

As noted by this court in Crayton, supra, the advisement of a defendant to the right of compulsory process is not required by Boykin, supra, or La. C. Cr. P. art. 556.1. See also State v. Salter, 515 So.2d 609 (La.App. 1 Cir.1987), where that court held that advisement of the right to compulsory process is not required to insure that a guilty plea is knowingly and intelligently made. Therefore, the defense’s argument regarding the failure of the trial court to advise the defendant as to his right of compulsory process at the prior pleas fails to show error in the habitual offender adjudication.

The trial court informed the defendant of the possible sentencing range before accepting his guilty pleas in 1995, 1997, and 2001. At the plea hearing in 2001, the trial court also informed that his guilty plea could be used against him in the future under habitual offender sentencing. The same advisory warning about future implications of the guilty pleas was not given in 1995 or 1997. However, as stated in Nuccio, supra, and Jackson, supra, a court is not required to inform a defendant that his guilty plea may be used as a basis for the filing of a future multiple offender bill.

Sgt. Owen McDonnell of the Caddo Parish Sheriffs Office was qualified as an expert witness in fingerprint examination and comparison. He identified the fingerprints on the bills of information for the convictions in 1995, 1997, 2001, as matching those taken of the defendant that day in open court. The court took judicial notice of the defendant’s conviction in 2005. The court then adjudicated the defendant as a fourth felony offender. No objections were made. As a result, the state proved the existence of the prior convictions and that the defendant was the same person convicted of those offenses. This assignment is without merit.

Jj¿Excessive Sentence

The defendant argues that the life sentence of imprisonment without benefits was constitutionally excessive and that the trial court failed to discuss factors considered under La. C. Cr. P. art. 894.1. The state claims that the sentence was mandatory for a fourth felony offender and that the trial court considered the sentencing guidelines.

Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than 10 years and for not more than 99 years, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64(B.). Any person adjudicated a habitual offender when the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(13), shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence. La. R.S. 15:529.1(A.)(l)(c)(ii).

The mandatory life sentences the habitual offender law requires are presumptively constitutional and should be accorded great deference by the judiciary. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 675; State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied, 2002-2875 (La.4/4/03), 840 So.2d 1213. Johnson and Wade, supra, also held that the burden was on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so the defendant must “clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are | ^meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” Johnson at 676; Wade, supra.

Because the sentence imposed for the habitual offender adjudication is prescribed by statute, the trial court’s compliance with La. C. Cr. P. art. 894.1 is not required. State v. Gay, 34,371 (La.App.2d Cir.4/4/01), 784 So.2d 714; State v. Owens, 32,642 (La.App.2d Cir.10/27/99), 743 So.2d 890, writ denied, 2000-0438 (La.9/29/00), 769 So.2d 553. It would be an exercise in futility for the trial court to discuss the factors enumerated in that article when the court had no discretion in sentencing the defendant. State v. Johnson, 31,448 (La.App.2d Cir.3/31/99), 747 So.2d 61, writ denied, 99-1689 (La.11/12/99), 749 So.2d 653, cert. denied, Johnson v. Louisiana, 529 U.S. 1114, 120 S.Ct. 1973, 146 L.Ed.2d 802 (2000).

The defendant filed a “motion to deviate from the constitutionally excessive fourth felony habitual offender sentence,” alleging that the sentence was excessive and requesting that the trial court deviate from the mandatory sentencing guideline. The defendant also filed a motion to reconsider sentence, alleging mere excessiveness. Both motions were denied. Because the defendant’s motions alleged mere excessiveness, he is simply relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993).

The court imposed a sentence of life imprisonment without benefits, as mandated by the habitual offender law for fourth felony offenders. The crimes of violence upon which this sentence was predicated include the present conviction of armed robbery entered on January 13, 2005, the 1 isconviction for simple robbery on April 23, 2001, and the conviction for aggravated battery on December 18, 1995. The mandatory life sentence is presumptively constitutional and should be accorded great deference by the judiciary. Wade, supra. The trial court did not list factors under La. C. Cr. P. art. 894.1 considered during the sentencing; however, this was not required. Gay, supra; Owens, supra. This assignment is without merit. Rebuttal Evidence

In a pro se assignment of error, the defendant argues that the state raised new issues on rebuttal and that he was deprived of his rights to defend against those issues. He claims that the state should have raised the evidence as part of its case-in-chief. Finally, he states that the introduction of the evidence on rebuttal caused great prejudice and deprived him of a fair and impartial trial. The state argues that Golstoris testimony that the defendant could not have been in her car that night raised the issue of identity, and that the rebuttal evidence was offered to counter that evidence. The state claims that the rebuttal evidence further corroborated the previous identification made by the victim.

Generally, the discovery rules of the Louisiana Code of Criminal Procedure are intended to eliminate unwarranted prejudice which could arise from surprise testimony. State v. Young, 37,673 (La.App.2d Cir.12/5/03), 862 So.2d 312, writ granted in part (as to sentencing), denied in part, 04-0029 (La.5/14/04) 872 So.2d 505; State v. Richardson, 33,272 (La.App.2d Cir.11/1/00), 779 So.2d 771, writ denied, 00-3295 (La.10/26/01), 799 So.2d 1151. Since the state does not and cannot know what [uevidence the defendant will use until it is presented at trial, the state is given the right of rebuttal. State v. Gantt, 616 So.2d 1300 (La.App. 2d Cir.1993), writ denied, 623 So.2d 1302 (La.1993).

Rebuttal evidence is that which is offered to explain, repel, counteract, or disprove facts given in evidence by the adverse party; in criminal cases, such evidence may be used to strengthen the state’s original case. State v. Widenhouse, 582 So.2d 1374 (La.App. 2d Cir.1991), writ denied, 586 So.2d 567 (La.1991), cert. denied, 503 U.S. 910, 112 S.Ct. 1274, 117 L.Ed.2d 500 (1992); State v. Huizar, 414 So.2d 741 (La.1982). Control of the evidence presented by the state on rebuttal is. within the sound discretion of the trial court and will not be disturbed, except in extreme cases such as when evidence was kept back deliberately for purpose of deceiving and obtaining undue advantage. State v. Williams, 445 So.2d 1171 (La.1984); State v. Williams, 34,359 (La.App.2d Cir.5/9/01), 786 So.2d 203, writ denied, 01-2275 (La.5/10/02), 815 So.2d 835.

In his argument, the defendant does not question the admissibility of the actual evidence presented at trial, but merely whether the evidence was within the scope of permissible rebuttal. The state argued that the defense’s witness raised a question of identity as she testified that the victim could not have seen the defendant in the white car. The defense counsel claimed that the prosecution should not be allowed to present rebuttal information as Golston’s testimony had been about the defendant’s lack of access to the car. The trial court granted the state’s request to present demonstrative evidence on rebuttal. After some discussion and examination as to the Improper form of presentation of the evidence, the defendant was ordered to stand, open his mouth, and allow the jury to view it.

The gap in the mouth was not mentioned in the victim’s testimony during the prosecution’s case-in-chief. However, the trial court has sound discretion in its ruling on allowing rebuttal evidence, except in extreme cases such as when evidence was kept back deliberately for purpose of deceiving and obtaining an undue advantage. There is no showing on the record that this evidence was deliberately held by the prosecution to gain an advantage through later presentation. Instead, the state argued that it presented the evidence to rebut the defense witness’s testimony which brought into doubt the victim’s identification of the defendant as the man in the witness’s car that night. While probably unnecessary to prove the case, the evidence was not admitted in error, and furthermore, is not reversible error. This assignment is without merit.

Jury Instructions

In a second pro se assignment, the defendant argues that the trial court failed to distinguish between direct and circumstantial evidence in its instructions to the jury. He also claims that the charge given by the court does not explain burden of proof for a case involving circumstantial evidence. He claims that defense counsel at trial was ineffective for his failure to object to the jury instructions.

Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or 1 ^statutory right. State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Marse, 365 So.2d 1319 (La.1978).

The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App.2d Cir.6/21/00), 764 So.2d 1164. A motion for new trial is also an accepted vehicle to raise such a claim. Id. However, when the record is sufficient, this court may resolve this issue on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673; State v. Smith, 25,841 (La. App.2d Cir.2/23/94), 632 So.2d 887.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

li7The defendant’s pro-se brief states that,

[t]he court should have charge [sic ] the jury to the follows: [sic] Evidence is either direct or circumstantial. Direct evidence is evidence which if believed proves a fact. Circumstantial or indirect evidence is evidence which if believed proves a fact, and from that fact you may logically and reasonably conclude that another fact exists. You cannot find a defendant guilty solely on circumstantial evidence unless the facts proved by the evidence exclude every reasonable hypothesis of innocence, [sic ]

However, review of the record shows that the appropriate instruction was given. The defendant follows with a claim that the trial court failed to explain the appropriate burden of proof and that counsel erred in failing to object to that omission. However, the record shows that the instruction was given, the trial court correctly gave the instruction regarding direct and circumstantial evidence, and that the defense counsel did not err in failing to object to the omission of an instruction that was, in fact, given. Therefore, this assignment is without merit.

CONCLUSION

The evidence, when viewed in a light most favorable to the prosecution, is sufficient to support the guilty verdict of armed robbery. The defendant was properly adjudicated as a habitual offender, and the mandatory sentence imposed was not excessive. The trial court did not commit error in allowing the state to present the rebuttal evidence. The instruction regarding direct and circumstantial evidence was included in the jury instructions given at trial. For these reasons, we affirm the conviction and sentence.

AFFIRMED.


text:
    STATE of Louisiana, Appellee v. Don MORRISON, Appellant.
    No. 40,852-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, Louis G. Scott, for Appellant.

      Jerry L. Jones, District Attorney, Charles L. Brumfield, E. Dion Young, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   STEWART, J.

l,The defendant, Don Morrison, was found guilty as charged of two counts of indecent behavior with a juvenile. He was given consecutive sentences of three and one-half years at hard labor on count one and two years at hard labor on count two. In this out-of-time appeal, he argues that the evidence was not sufficient to support the convictions and that the sentences were excessive. For the reasons stated herein, we affirm his convictions and sentences.

FACTS

Count one of the grand jury indictment charged the defendant with indecent behavior with C.J., a juvenile, occurring between January 1, 1994 and December 11, 1997. Count two charged the defendant with indecent behavior with W.H., a juvenile, occurring between June 1, 1999 and August 31,1999. The matter proceeded to a jury trial.

C. J., who was 21 years old at the time of the trial, testified that she met the defendant when she was in a fourth grade special education class at Southside Elementary School. She testified that she received a bike from the defendant for her good behavior in class. He also gave her cash and a watch. When C.J. was 13, she started going to the Dodson Park Gym (hereafter referred to as the “gym”), with her siblings and friends. Morrison, who was a supervisor at the gym, asked C.J. to help out with cleaning the gym at closing time. Her mother agreed, provided that the defendant drove C.J. home in the evenings.

According to C. J., she and the defendant began having sexual intercourse three to four times a week while she was working at the gym. | ?,She was 13 or 14 years old when it began. She testified that they had sex in a room on the gym’s second floor, in the weight room, and at Morrison’s house. She testified that they would be alone at closing time in the gym when the sex occurred. The defendant continued to give her gifts, usually cash. C.J. testified that the sexual activity continued until she became pregnant. She turned 17 years old on December 11, 1997, and gave birth to a child on September 14, 1998. The defendant signed an acknowledgment of paternity after taking a blood test, and he began paying child support.

C.J. stated that she did not tell anyone, even her twin sister, about her sexual encounters with the defendant. According to C.J., the defendant told her that she would be sorry and would not be believed if she told anyone about them. C.J. stated that she later told her cousin Dorothy Atkins, who then told C.J.’s mother. C.J. was afraid to tell her mother.

Responding to the accusation that she was pursuing the criminal matter for money, C.J. admitted that she filed a civil suit against the defendant and the City of Bas-trop. She explained that she was told by others that the defendant needed to pay for what he had done, and she agreed.

Rosalee Hicks, C.J.’s mother, testified that she allowed her daughters to go the gym, because she trusted the defendant to properly supervise them. She stated that she tried to question C.J. about the father of the child once she learned of C.J.’s pregnancy. She did not learn that Morrison fathered the child until after the birth. She then called the district attorney for help.

13Jeffery Toms, a support enforcement officer, testified that Morrison, C.J., and the baby submitted to blood tests and that Morrison signed an acknowledgment of paternity thereafter.

W.H., who was 18 years old at the time of trial, testified that she met the defendant at the age of 10 when she attended Southside Elementary. She had friends who were special education students, and she visited them in the classroom in which the defendant worked. At age 11 or 12, she began working at the gym where she sold concessions and worked the shot clock. She was paid cash until she turned 13, at which time the city began paying her by check. She was positive that the defendant began having sexual intercourse with her prior to the age of 13 while she was still being paid in cash for working at the gym.

W.H. testified that the defendant gave her money and gifts, such as a radio and Easter baskets, when she was in elementary school and working at the gym. He gave her larger sums of cash as she got older. She stated that when he began giving her gifts, he told her that she would pay him back in the long run. She did not know what he meant until he started having sex with her. She believed that the gifts were to keep her quiet. W.H. testified that she tried to resist by telling him to stop and saying that she did not want to do it. The defendant told her that she did not have to worry about anyone finding out as long as she did not tell.

W.H. testified that she frequently had sex with the defendant during the summer of 1999, the period to which the charges pertain. She stated that the sex occurred mainly at the gym when the defendant would send her to | ¿check the second floor and then follow behind her. When this occurred, the other supervisor, Prince Whitmore, was either checking the lower floor or had left prior to closing time. However, W.H. also claimed to have had sex with the defendant at his house, in his vehicle, and outside.

W.H. admitted that she lied to the police when interviewed in March 2000. She told the officer who interviewed her that the defendant had only tried to touch her. She explained that she was embarrassed and afraid. Also, her mother had been in the hospital, and she did not want to hurt her. She denied that she had been influenced by anyone to change her story. Rather, it was brought to her attention that she was the only one who could tell the truth about what happened to her, and she had gained enough confidence to tell the truth and no longer be embarrassed. She stated she had “no reason to lie about some man penetrating [her] as a little girl.”

In response to W.H.’s testimony, the defense called Rodney Jones, a detective with the Bastrop Police Department. Jones interviewed W.H. on March 21, 2000. He testified that W.H. denied having had sex with Morrison at his house and claimed that they had sexual intercourse only one time. As the state’s rebuttal witness, Jones testified that the defendant was interviewed three times and each time denied having had sex with the victims.

The defense also presented the testimony of Beverly Ray, her daughter Lakeisha, and Reginald Winston to establish that the defendant bought snacks for many children at the gym. The Rays testified that the defendant often brought C.J. home from the gym at the same time as the Ray liigirls. Prince Whitmore, a supervisor at the gym with the defendant, testified that he never saw the defendant leave for long periods of time with a young female when closing the gym. However, Whitmore did not always work the same days as the defendant.

The defendant, Don Morrison, insisted that he did not commit the offenses. He claimed that both victims were lying. He asserted that W.H. was mad at him for once having told her mother that she left the gym without permission. He also asserted that C.J. was trying to get money from a civil suit and that she was mad at him for having once called her mother to report that she was in the weight room with a young man whom her mother did not want her to see. He claimed that C.J. did not return to the gym after that incident. C.J. admitted the incident happened when she was around 15 and that she was mad at Morrison at the time. Both C.J. and her mother testified that she resumed going to the gym after a week or two.

Having testified that C.J. had quit going to the gym sometime around 1994 when the weight room incident occurred, the defendant claimed that C.J. arrived at his house after she turned 17 and took advantage of him while he was drinking alcohol to ease the tragedy of his mother-in-law’s death. The defendant also testified that he denied the accusations when interviewed by the police, because the interviewer kept referring to what he allegedly did as abuse. He refused to admit to abusing anyone.

After hearing the testimony, the jury found the defendant guilty as charged on both counts of indecent behavior with a juvenile, and he was sentenced as related above. The defendant eventually filed this out-of-time 1 ^appeal to challenge the sufficiency of the evidence and the excessiveness of the sentences.

DISCUSSION

Sufficiency of the Evidence

The defendant asserts that the evidence was insufficient to convict him of either count. Noting that C.J. gave birth to the baby on September 14, 1998, he claims there was no evidence to show that the baby was full term and that the evidence did not establish that he had sex with C.J. prior to her seventeenth birthday on December 11, 1997. Although C.J. and W.H. made similar allegations of sexual abuse, the defendant argues that their claims were refuted by the testimony of other witnesses showing that he did not have the opportunity to be alone with the victims in order for sex to have occurred as often as they claimed.

To convict a defendant of indecent behavior with a juvenile, the state must prove that the defendant: (1) committed any lewd or lascivious act upon the person or in the presence of any child under the age of 17; (2) was over the age of 17 and more than 2 years older that the victim; and (3) had the intention of arousing or gratifying the sexual desires of either person. La. R.S. 14:81. Specific intent to commit the offense of indecent behavior with a juvenile need not be proven as fact; rather, it may be inferred from the circumstances and actions of the defendant. State v. Wade, 39,797 (La.App.2d Cir.8/9/05), 908 So.2d 1220.

Appellate review of a sufficiency of the evidence claim requires us to determine whether, after viewing the evidence in the light most favorable to |7the 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. 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. The Jackson standard applies in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the 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 the 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.

This court’s authority to review questions of fact is limited to the suffieien-cy-of-the-evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). The reviewing court accords great deference to the judge or jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Wade, supra; State v. Bosley, supra. 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 the requisite factual [sconclusion. 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. In eases involving sexual assault, the testimony of the victim alone is sufficient to convict even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Wade, supra.

The victims, C.J. and W.H., were not the same age and testified that they did not know each other well. Notably, they gave similar testimony about the defendant’s pattern of seducing young girls. Both testified that they met the defendant while they were students at Southside Elementary. Both testified that he gave them gifts, including cash, before beginning a sexual relationship with them and continued to do so. Both testified to engaging in sexual intercourse with the defendant in the same places, namely the second floor of the gym and in his home. Both testified that sex usually took place when they were closing the gym for the evening.

The defendant denied the allegations and asserted that both girls were lying. However, the minor incidents he referred to as reasons for the victims’s untruthfulness seem to have occurred well before the investigation into the defendant’s illicit actions began. Moreover, the possibility that the defendant may have had sexual intercourse with C.J. on an occasion after her seventeenth birthday does not refute her claim that he had been having sexual intercourse with her throughout the preceding years.

The jury could have reasonably discredited the defendant’s self-serving testimony and found his assertions implausible. Also, the jury could | flhave reasonably determined that the defense witnesses, Beverly Ray, Lakeisha Ray, and Prince Whit-more, were not privy to every instance that C.J. or W.H. may have been alone with the defendant and that their testimony did not raise reasonable doubt as to the truthfulness of the victims’ testimonies. The members of the jury listened to the witnesses’ testimony and assessed their credibility. By finding the defendant guilty as charged on both counts, the jury rejected the testimony of the defendant and his witnesses. It is the jury’s discretion to accept or reject the testimony of a witness in whole or in part, and this court will not second-guess that exercise of discretion.

A rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that all the elements of the offense of indecency with a juvenile were proven as to each count. See Jackson v. Virginia, supra; State v. Bosley, supra. The jury could have reasonably believed the testimony of the victims, which included striking similarities in describing the defendant’s actions over a period of years as he groomed for seduction and took sexual advantage of two young girls over whom he exercised the role of a seemingly benevolent authority figure. The jury, as trier of fact, chose to believe both victims’ testimony, and their testimony alone is sufficient support for the requisite factual conclusions. State v. White, supra.

Accordingly, we find no merit to this assignment of error and affirm the defendant’s convictions.

| Excessive Sentence

The defendant contends'that because he is a true first-time offender with a steady work history, the sentences are excessive. He seeks remand for re-sentencing. The state contends that the sentences are not out of proportion to the seriousness of the offenses, not an abuse of the trial court’s discretion, and not excessive.

Because the defendant failed to timely file a La. C. Cr. P. art. 881.1 motion to reconsider sentence, his claim is relegated to review for constitutional ex-cessiveness. State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. This review turns upon whether the sentence is illegal or grossly disproportionate to the severity of the offense. State v. Lobato, 603 So.2d 739 (La.1992). A sentence is considered grossly disproportionate when, after viewing the crime and punishment 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.4/2/97), 691 So.2d 864.

A trial judge has broad discretion to sentence within the statutory limits, and the sentence should not be set aside absent a showing of manifest abuse of that discretion. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. La. R.S. 14:81 (C) states “the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both.... ”

|nThe trial court sentenced the defendant to three and one-half years at hard labor for count one and two years at hard labor for count two. The sentences are to run consecutively. The sentences are lawful and are less than half of what the trial court could have imposed under the statute. Although the defendant is a -first offender with a steady work history and supporters in his community, the sentences do not shock the sense of justice. His actions caused irreparable harm. He abused his position as a school and city employee to victimize two young women. At the time the offenses occurred, the victims were in their mid-teens and the defendant was in his mid to late forties. We note that both victims testified that the molestation began at a younger age in both cases. There is no showing that the trial court abused its discretion in imposing consecutive sentences totaling five and one-half years. Under the circumstances, the sentences are not grossly disproportionate to the severity of the offenses, do not shock the sense of justice, and are not excessive. This assignment is without merit.

CONCLUSION

For the reasons expressed, the defendant’s convictions and sentences are affirmed.

AFFIRMED.