author: MICHAEL E. KIRBY, Judge. BELSOME, J.,

text:
    STATE of Louisiana v. Martha V. CHAMBERS.
    No. 2007-KA-0398.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 22, 2007.

      Eddie J. Jordan, Jr., District Attorney, Alyson R. Graugnard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellant.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR., Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

STATEMENT OF THE CASE:

On August 19, 2005, in case number 462-293 “C”, the state filed a bill of information charging ' defendant, Martha Chambers, with possession of cocaine, in violation of La. R.S. 40:967(C)(2). Defendant pleaded not guilty at her arraignment on August 24, 2005. A hearing on motions was set for September 13, 2005 but, because of the aftermath of Hurricane Katrina, the district court was closed. A hearing on motions was conducted on December 30, 2005; the case was set for trial on January 24, 2006. On that date the state made an oral motion for a continuance which was denied; the state entered a nolle prosequi, and defendant was released.

The case was reinstated approximately three months later on April 19, 2006 as case number 464-924, which was allotted to Section' “J” and subsequently transferred to Section “C” to follow case 462-293 “C”. Arraignment was set for on July 27, 2006. However, because defendant had not been properly served the matter was continued to August 21, 2006. On that date, counsel for defendant filed a motion to quash. The arraignment was continued to August 22, 2006. On that |?date, the district court granted the motion to quash; the state entered a nolle prosequi; and defendant was released. The state appeals.

FACTS OF THE CASE:

Because the record in case number 462-293 is unavailable, the facts surrounding defendant’s arrest, which can be adduced from the instant case, are limited to what is stated in the bill of information. On July 30, 2005, defendant willfully and unlawfully possessed a control dangerous substance, to-wit: cocaine.

TIMELINESS OF STATE’S APPEAL:

Defendant asserts that the state’s appeal was not timely filed and should be dismissed. Specifically, defendant argues that on August 22, 2006, the date of the granting of the motion to quash, the state announced, “Note the State’s intent to seek an appeal in this matter.” The district court responded, “Not a problem.” No return date was given at that time. The notice of appeal filed on October 4, 2006 notes that the motion for appeal was granted on October 4, 2006 and the return date was December 15, 2006. Defendant argues that the October 4, 2006 motion for an appeal was filed forty-four days after the granting of the motion to quash. Defendant asserts that the state’s oral statement of an “intent to seek an appeal” does not constitute a motion for an appeal as required by La.C.Cr. P. art. 914 which states in pertinent part:

A. A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion shall be entered in the minutes of the court.
B. The motion for an appeal must be made no later than:
lii(l) Thirty days after the rendition of the judgment or ruling from which the appeal is taken.
* * *

In support of her claim defendant relies on this court’s holding in State v. Garrus, 02-1940 (La.App. 4 Cir. 6/4/03), 849 So.2d 796. In Garrus, the state orally noted its intent to seek writs immediately after the trial court granted the defendant’s motion to quash. The docket master indicated that on the same day the trial court quashed the proceedings, it allowed the state until May 29, 2002 to take a writ. On that day, the state filed a notice of intent to file an appeal, followed by a motion for appeal on June 10, 2002, which the trial court granted. The state argued that, by orally noting its intent to seek writs the day the motion to quash was granted, it adhered to the time constraints of La.C.Cr.P. art. 914 by placing the defense on notice it would seek review of the judgment. Further, the state maintained that neither the trial court nor the defense objected to or claimed prejudice when the state orally noticed its intent to seek a “writ”, or when it filed a notice of intent to appeal, albeit a late notice. The state further argued that appeals are favored in the law and should not be dismissed on “hyper technical” interpretations of a statute which can be reasonably interpreted to preserve the appeal, particularly in the absence of any claim of prejudice by the opposing party. This Court dismissed the state’s appeal in light of the Louisiana Supreme Court’s ruling in State v. Gray, 98-2902 (La.5/7/99), 740 So.2d 1291.

|4In Gray, the State objected to the granting of the motion to quash, and was allowed one month to file for a writ of certiorari. One day after the due date for filing the writ, the state filed a motion for appeal, which was granted. Vacating this court’s decision and reinstating the judgment granting the motion to quash, the Supreme Court concluded that “... the district court’s judgment became final when the state failed to take a timely appeal from the disputed ruling.” Id. at p. 798.

In the instant case, the state noted its intent to seek an appeal which distinguishes the instant facts from those in Garrus and Gray. By using the term “appeal” the state clearly notified the defendant that the judgment would be appealed. Accordingly, we conclude that the state’s appeal was timely filed pursuant to La. C.Cr. P. art. 914.

DISCUSSION:

On August 22, 2006, defendant filed a two-paragraph motion to quash. In the motion and at the motion hearing defendant argued that her constitutional right to a speedy trial was violated because the state nolle prosequied the charges and subsequently reinstated them after the state was denied a continuance.

In a single assignment of error, the state counters that the trial court improperly granted defense counsel’s motion to quash the bill of information, reinstituting prosecution because defendant failed to carry her burden of proving |sthat the delay between the filing of the original bill of information and the filing and granting of the motion to quash was presumptively prejudicial and triggered a violation of defendant’s constitutional right to a speedy trial. In response, defendant argues that the delay was presumptively prejudicial because it exceeded one year. In addition, defendant argues that the charges involved a small amount of cocaine and a crack pipe which do not justify such a long delay because the delays in failing'to serve the defendant and in reinstituting the charges were totally in the state’s control. Furthermore, defendant asserts the filing of a motion for a speedy trial was not necessary, and she has no legal burden to-prove that she was not prejudiced by the delays. Defendant’s arguments are without merit.

A defendant has the right under the Sixth Amendment to thé U.S. Constitution and Article I, Section 16 of the Louisiana Constitution to a speedy trial. This constitutional right attaches when an individual becomes an accused either by formal indictment or by arrest and actual restraint. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Sweeney, 443 So.2d 522 (La.1983). In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court set out the following four factors to determine whether a defendant’s constitutional right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the prejudice to the defendant as a result of the delay. The court stated that the length of the delay was the triggering mechanism; and, until the delay was presumptively prejudicial, there was no need to inquire into the other factors. (Emphasis added.) The Court further stated that the length of the delay, which would provoke such an inquiry, was dependent upon the peculiar circumstances of the case. The Court noted that the reason for the delay was ftclosely related to the length of the delay and that different weights would be given to different reasons. As to the defendant’s assertion of his right to a speedy trial, the Court stated that the assertion of the right was entitled to strong evidentiary weight in determining whether the defendant was deprived of his right. Regarding the final factor, the court stated that prejudice was to be assessed in light of the interests of the defendant which the speedy trial right was designed to protect. The Court identified those interests as preventing oppressive pretrial incarceration, minimizing the anxiety and concern of the defendant, and limiting the possibility that the defense would be impaired.

In State v. Reaves, 376 So.2d 136 (La.1979), the defendant was charged with possession of one marijuana cigarette, a misdemeanor, and trial was set and continued four times in the three and one-half months since charges had been brought. On the fourth trial date, the state moved for a continuance because its principal witness was absent. The trial court denied the continuance, and the state nolle prose-quied the bill of information. The state then filed a new bill of information which the defendant moved to quash on the basis that he had been denied his right to a speedy trial. The trial court granted the motion, and the Louisiana Supreme Court affirmed. The Court stated that, although the defendant had not been subjected to an extremely long delay, he was denied his right to a speedy trial. The continuances had been caused by the failure of the arresting officer to appear at trial to testify for the state, and the Court stated that the responsibility for these repeated absences had to rest with the state. The defendant had not moved for a speedy trial before filing his motion to quash. The Court stated that because the defendant was charged with a misdemeanor, the prejudice requirement was not as stringent.

In State v. DeRouen, 96-0725, pp. 2-3 (La.App. 4 Cir. 6/26/96), 678 So.2d 39, 42, fifteen months elapsed between institution of prosecution and the granting of the motion to quash. Two of the trial continuances were attributable to the state and the balance to weather, a crowded docket, and the actions of codefendants. Furthermore, the defendant was not incarcerated during the pendency of the proceedings. In finding that the trial court erred, this court stated that the defendant was not prejudiced to the extent found in State v. Esteen, 95-1079 (La.App. 4 Cir. 4/3/96), 672 So.2d 1098.

In two other cases, this court has held that the right to a speedy trial was not violated by a nineteen-month delay and a twenty-two-month delay between the filing of the bill of information and the defendant’s motion to quash. In State v. Brown, 93-0666 (La.App. 4 Cir. 7/27/94), 641 So.2d 687, there were eight continuances during the nineteen months between the institution of prosecution and the granting of the motion to quash, and only two were directly attributable to the state; furthermore, the defense did not object to the delays until the filing of his motion to quash, and no prejudice to the defendant was shown.

In State v. Johnson, 622 So.2d 845 (La.App. 4 Cir.1993), the defendant argued in a pro se assignment of error on appeal that he had been denied a speedy trial. Although there'was a twenty-two-month delay between the date of arrest and the day of trial, this court found that much of the delay was due to the failure of the defendant to appear in court. Additionally, he did not argue that he was prejudiced by lathe delay.

In State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198, the Louisiana Supreme Court discussed the relationship of the appellate and trial courts and stated:

Because of the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion.

Id., at pp. 9-10, 847 So.2d at 1206. In addition, in State v. Harris, 2003-0524 (La.App. 4 Cir. 9/10/03), 857 So.2d 16, this court stated:

Thus, •... the proper approach to the question of whether the defendant’s right to a speedy trial was violated is not merely a review of the dates and circumstances of the hearings, but an examination of the entire record in order to discern whether there was “palpable abuse” on the part of the trial court in granting the motion to quash. (Emphasis added.)

Id., at p. 4., 857 So.2d at 18. Recently, in State v. Batiste, 2005-1571, (La.10/17/06), 939 So.2d 1245, the Supreme Court stated:

A court’s resolution of motions to quash in cases where the district attor- - ney entered a nolle prosequi and later ■ reinstated charges should be decided on a case-by-case basis. State v. Love, GO-3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1209. In those cases “where it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the State- at the ...expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant a motion to quash and - an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation.” Id.

Id., at p. 5, 939 So.2d at 1248.

In Batiste, the Court found that the reason for the dismissal of the earlier charge was because the victim was unavailable to testify. The Court then considered the defendant’s speedy trial claim and found that although nineteen months elapsed j 3between the filing of the original bill and the quashing of the charges in the second case, the reasons for the delay were not solely those of the state. The Court found that there was no intentional delay on the state’s part to gain a tactical advantage, that the defendant did not assert his speedy trial right prior to filing his motion to quash, and that there was no suggestion that his defense was impaired by the delay. The Court then reversed the trial court’s quashing of the charge and this court’s affirmation- of the trial court’s ruling.

In the instant case, slightly over twelve months elapsed between the filing of the original bill of information and the filing and granting of the motion to quash. The felony charge of possession of cocaine carries a fine of not more than $5,000.00 and not more than five years in prison with or without hard labor, or both. Thus, a twelve-month delay does not appear to be presumptively prejudicial. Furthermore, the other Barker factors do not support defendant’s claim. In the reinstated case, 464-924, defendant was not incarcerated during any of the proceedings. In the original case, 462-293, relator was in custody for slightly less than six months from the date of her arrest on July 30, 2005 until her release on January 24, 2006. During this time a motion hearing had been scheduled for September 13, 2005 but did not proceed because of the aftermath of Hurricane Katrina. The state rescheduled the motion hearing for December 19, 2005, which proceeded as scheduled. Trial was set for January 24, 2006, which is the date the motion to quash was granted and defendant was released. The charges were reinstated three months later. While the failure to reinstate the charges sooner and to properly serve defendant during the pendency of the reinstated case are | inattributable to the state, defendant was not in continued custody during this time, and she has not demonstrated in her motion to quash any prejudice caused by these delays. She has not alleged that any witness or evidence has been lost or compromised due to these delays. Therefore, taking all of the Barker factors into consideration, it appears that there was “palpable abuse” on the part of the trial court in granting defendant’s.motion to quash.

Accordingly, we reverse the ruling of the district court granting the motion to quash and remand the case for further proceedings.

REVERSED AND REMANDED.

BELSOME, J., dissents with reasons.

BELSOME, J.,

Dissents With Reasons.

hi respectfully dissent from the majority’s opinion as it relates to the timeliness of the State’s appeal. I disagree that the State’s oral notice of their intent to file an appeal and the court’s response, “[n]ot a problem”, meets the requirements set forth in La.C.Cr.P. art. 914. The language of the statute clearly states that “[t]he motion shall be entered in the minutes of the court” and the motion for appeal must be made within thirty days of the ruling. The minutes fail to reflect a motion for appeal filed by the State until October 4, 2006, 45 days after the judge’s ruling. Accordingly, I would dismiss the appeal as untimely.

      . La.C.Cr.P. art. 912(B) provides in pertinent part:
      ... Adverse judgments or rulings from which the state may appeal include, ... (1) A motion to quash an indictment ...

      . In Garrus, this Court did not explain whether it considered the deficiency the use of the term ''writ” rather than the more specific term ''appeal” or if the deficiency included the use of the words "intent to seek”.

      . In her motion to quash defendant did not assert a violation of her statutory right to a speedy trial pursuant to La.C.Cr. P. art. 578 which requires that trial in a non-capital case be commenced within two years of the institution of prosecution. Pursuant to La.C.Cr.P. art. 580, the time period set forth in article 578 is suspended until the trial court’s ruling when the defendant files a motion to quash or other preliminary plea; but in no case shall the state have less than one year after the ruling to commence trial.

      . In Esteen, this court affirmed the trial court’s granting of a motion to quash. The court found that a two and one-half year delay between the filing of the charges and trial was presumptively prejudicial, triggering an inquiry into the other factors. The case was continued twenty-two times, mostly due to the state and the trial court. Twice the state nolle prosequied the charges when it was not ready to begin the trial. Although the defendant did not move for a speedy trial nor object to any of the continuances, this court concluded that these omissions were not dispositive, and found that they were only one factor to consider. This court also found that the defendant was "clearly prejudiced” by the delays since he spent eleven months incarcerated, and his defense was severely hampered by the death of a crucial witness.

      . It is not known when defendant was rearrested after the charges were reinstated but the record indicates that she was not in continued custody after her arrest.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Kevin BOWMAN, Appellant.
    No. 42,533-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, for Appellant.
    Paul J. Carmouche, District Attorney, Lea Hall, John Ford McWilliams, Jr., Assistant District Attorneys, for Appellee.
    Before BROWN, DREW and MOORE, JJ.
   MOORE, J.

kThe defendant, Kevin Bowman, was originally charged with aggravated rape, aggravated kidnapping and simple robbery. A jury convicted Bowman of the responsive verdict of simple kidnapping but was unable to reach a verdict on the aggravated rape and simple robbery charges. The trial court sentenced Bowman to serve ten years imprisonment at hard labor for simple kidnapping, and Bowman now appeals. We affirm the defendant’s conviction and sentence.

FACTS

The events that led to the charges against the defendant in this case occurred in Shreveport on the night of May 28, 2004, but the defendant and the 20-year-old female victim, E.M., were acquainted with each other long before these events. When E.M. was a 16-year-old high school student, she had a romantic relationship with the defendant, who at that time was 20 or 21 years old. That relationship ended when E.M. was in the 10th grade, but she and the defendant remained friends; the defendant was sometimes a dinner guest at E.M.’s house.

On the evening of May 28, 2004, E.M. was staying at her grandparents’ house when the defendant called her and then came over. When the defendant arrived, he and E.M. visited with E.M.’s aunt for a while until E.M. decided to go to a convenience store to buy cigarettes. Sometime between 7:00 and 8:00 p.m., E.M. drove the defendant to the store; E.M. had just been paid and had approximately $100 in cash. They returned to E.M.’s grandparents’ house briefly until the defendant asked E.M. to drive him to his grandmother’s house.

laThe defendant did not testify, so the following version of events presented to the jury came solely from E.M. E.M. agreed to take the defendant to his grandmother’s house; the defendant directed E.M. to drive to an address in Mooretown. E.M. said that on the drive there, the defendant twice put his hand on her leg and rubbed it, but E.M. moved the defendant’s hand away each time.

When they arrived at the home, the defendant got out <rf the car and went to the front door. The defendant tried to enter the home through both the front and side doors, but was-unable to get inside; E.M. said that this made the defendant angry. E.M. testified that the defendant returned to her and then loudly demanded that she engage in oral and vaginal sex with him; E.M. refused. The defendant then told E.M. to follow him to the backyard, and E.M. complied. As they went to the back, the defendant again demanded sex from E.M., and this time the defendant said that he would hurt E.M. “real bad” if she did not comply. Unable to get into the house, the defendant walked to a trailer parked in the backyard, laid down, and ordered E.M. to perform oral sex on him. E.M. said that the defendant hit her in the face twice and grabbed her by her neck before making E.M. put the defendant’s penis in her mouth.

After that, the defendant ripped E.M.’s pants in a forcible effort to take them off; E.M. said that she tried her utmost to resist but was unable to do so. The defendant pulled E.M.’s- pants down and inserted his penis inside E.M.’s vagina. E.M. continued to struggle and was able to get .up, but the defendant grabbed E.M,’s car keys and threw them into a nearby | spasture. E.M. screamed and tried to get to her keys by climbing the fence between the yard and the pasture, but the defendant grabbed her shirt and pulled her off of the fence. The defendant then climbed over the fence first; E.M. climbed the fence behind the defendant, trying to get to her keys. The defendant reached the keys first and took them, so E.M. screamed again and tried to run to a neighboring house to get help.

In this exchange with the prosecutor, E.M. described what happened next:

Q: What happened to you because you screamed?

A: He grabbed me by my neck again.

Q: And this time it was more serious than what we’ve talked about?

A: Yes.-

Q: Tell me what happened?

A: He grabbed my neck, I fell, that’s when he grabbed my shirt and started dragging me down the street.

Q: You’re being dragged down the street, you remember I asked you did your feet get hurt? ,

A: ■ Yes.

Q: What happened to your feet?

A: My legs and my feet got all scratched up pretty badly.

Q: Now, as he starts dragging you down the street, what happens?

A: He drags me around to where .my car was parked.

E.M. was unclear about whether the defendant was armed during this encounter. The defendant forced E.M. back to her car and then the |4defendant demanded E.M.’s money. When E.M. refused to surrender the money, the defendant choked E.M. so hard that she nearly fainted, reached into E.M.’s pocket and took her money. The defendant then threw down E.M.’s keys and ran away.

E.M. drove to the home of her fiancé who urged E.M. to go to the police, but E.M. did not do so because she was embarrassed about what had happened to her and frightened of possible retaliation from the defendant, who lived on the same street as her grandmother. E.M.’s fiance testified that E.M. was scratched and bruised, that her clothes were torn and bloody and that E.M. was crying and “having a fit.” E.M. did not tell her flaneé that she had been raped. E.M. left her fíancé’s house and went back to her grandparents’ home, where she met her aunt. Her aunt observed scratches on E.M.’s neck and bruises on E.M.’s face,, arms and legs. E.M. told her aunt that she had been raped and robbed.

The next morning, she went to the Shreveport Police Department (“SPD”) to report the crime. E.M. reported the crime to a male officer; the male officer called in a female officer, Corporal Fonto-nia Davis, to examine and photograph E.M. Corporal Davis observed bruises on E.M.’s face, neck, breasts, stomach and legs, and saw abrasions on E.M.’s feet and lower legs as if E.M. had been dragged. Although pictures were taken of E.M., the pictures were misplaced and could not be found for trial. No physical evidence or “rape kit” was taken from E.M.

Further, the SPD report about E.M.’s case did not get assigned to SPD’s sex crimes detective, Rita Caldwell, so the case involving E.M. was | snot investigated until the early part of 2005, when police were investigating a report of a similar crime made by another victim, K.H., who (according to the responding officer and the detective) also had bruise injuries to her neck. DNA evidence, taken from a “rape kit” sample from K.H., matched Bowman and was introduced at this trial relating to Bowman’s conduct with E.M.

E.M. remained reluctant to speak with police due to her fear of the defendant, but early in 2005 E.M. told Det. -Caldwell that the defendant had kidnapped, raped and robbed her. E.M. readily identified the defendant in a photo lineup. Police and E.M. were unable to find the location of the home where the events with E.M. took place.

The defendant did not testify. Two of the defendant’s sisters testified that they took the defendant to a convenience store to meet E.M. on the night these events occurred; both women said that at the time they saw the defendant and E.M. together, there did not appear to be any problems between them.

The case went to the jury, but the jury was only able to reach a verdict on the kidnapping charge, returning a responsive verdict of guilty of simple kidnapping. The defendant filed a motion for post-verdict judgment of acquittal, which the trial court denied.

The state filed a habitual offender bill against Bowman, charging that he was a second felony offender. The court conducted a multiple offender hearing, at which time SPD Corporal Tommy Rachal testified. Corporal Rachal took the defendant’s fingerprints and compared them to those on two Rbills of information for offenses (unauthorized use of a motor vehicle-the basis for the habitual offender bill- and illegal possession of stolen things) to which Bowman pled guilty on the same day, May 29,. 2003; the fingerprints matched each other. Accordingly, the court found Bowman to be a second-felony habitual offender.

The matter returned for sentencing in September 2006, at which time the court heard testimony from both of Bowman’s grandmothers; both of these women said that Bowman had been raised in church and that he never gave either of them any trouble. No pre-sentence investigation appears in this record that is related to this offense; however, there is a presentence investigation from 2002 attached to a bill of information from the 11th JDC, DeSoto Parish. In that matter, Bowman pled guilty to unauthorized use of a vehicle on January 7, 2002. Bowman, born on August 4, 1979, has at least three prior felony convictions; further, he has several juvenile adjudications of delinquency including first degree robbery (pled down from armed robbery; Bowman, at- age 14, used a handgun to rob a Circle K clerk), aggravated assault (on two separate occasions), and simple battery.

In sentencing Bowman to serve ten years imprisonment at hard labor, the trial judge gave an extensive review of Bowman’s criminal history and related the details of the instant offense. The court also related that Bowman had apparently used at least two different aliases during his life. The court noted that Bowman has a 19-month-old son-about which his grandmothers knew nothing-and had a sporadic employment history, mainly as a dishwasher. The court found that a lesser sentence than the |7maximum sentence would deprecate the seriousness of the offense and noted that Bowman had not shown any remorse for his actions.

The record contains a ruling on October 20, 2006, by the trial court denying Bowman’s motion to reconsider sentence which itself does not appear in the record. In denying the motion, the court restated those reasons that it gave at the sentencing hearing. Bowman now appeals, urging two assignments of error.

DISCUSSION

Assignment of Error 1. The evidence presented was not sufficient to convict Kevin Bowman of the simple kidnapping of E.M.

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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (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. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2 Cir. 8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 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. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; 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. 2 Cir. 8/30/02), 827 So.2d 508, writ denied, 2002-3090 (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. Burd, 40,480 (La.App. 2 Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35; State v. Jones, 31,613 (La.App. 2 Cir. 4/1/99), 733 So.2d 127, writ denied, 99-1185 (La.10/1/99), 748 So.2d 434. This rule is equally applicable to the testimony of victims of sexual assault. State v. Robinson, 36,147 (La.App. 2 Cir. 12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App. 2 Cir. 8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490. See also State v. Simpson, 39,268 (La.App. 2 Cir. 1/26/05), 892 So.2d 694. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, supra; State v. Ponsell, supra. See also State v. Johnson, 96-0950 (La.App. 4 Cir. 8/20/97), 706 So.2d 468, writ denied, 1998-0617 (La.7/2/98), 724 So.2d 203, cert. denied, 525 U.S. 1152, 119 S.Ct. 1054, 143 L.Ed.2d 60 (1999).

The charged offense in this case was aggravated kidnapping, which carries a life sentence without benefit of probation, parole, or suspension of ^sentence. It is defined by La. R.S. 14:44 as “the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or apparent control:

(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.”

Viewing the evidence in the light most favorable to the state, a reasonable juror could have concluded beyond a reasonable doubt that the elements of the offense were met in this case. Defendant persuaded E.M. to leave her grandmother’s house to allegedly drive him to his grandmother’s house. After they arrived at the house, he ordered her to the back yard and demanded sex from her. He threatened her if she refused to comply and actually struck her in the face. A jury could easily conclude that Bowman forcibly detained E.M. and forced her to have sex with him as well as taking her money. State v. Grubbs, 93-2559 (La.App. 4 Cir. 10/25/94), 644 So.2d 1105, writ denied, 94-2880 (La.5/5/95), 654 So.2d 323.

The jury convicted the defendant of simple kidnapping, a responsive verdict to the charged offense. A jury has the prerogative to compromise and render a lesser verdict whenever it could have convicted as charged, which it clearly could have done in this case. State ex rel Elaire v. Blackburn, 424 So.2d 246 (La.1982), cert denied, Elaire v. Blackburn, 82-6254, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983); State v. Bryant, 33,078 (La.App. 2 Cir. 3/1/00), 754 So.2d 387; State v. Tatum, 27,301 (La.App. 2 Cir. 9/27/95), 661 So.2d 657.

Accordingly, this assignment is without merit.

Assignment of Error 2. The sentence of ten years hard labor-the maximum sentence — was excessive.

La. R.S. 14:45 provides, in part:

B. Whoever commits the crime of simple kidnapping shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than five years, or both.

La. R.S. 15:529.1(A)(1)(a) makes the penalty for a second felony habitual offender not less than one half of the longest term and not more than twice the longest term for a first conviction. Bowman’s ten-year sentence-twice the maximum for a first offense-is the maximum sentence.

Appellate review of sentences for alleged excessiveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Quiambao, 36,587 (La.App. 2 Cir. 12/11/02), 833 So.2d 1103, writ denied, 2003-0477 (La.5/16/03), 843 So.2d 1130. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lanclos, 419 So.2d 475 (La.1982). The court is not required to assign any particular weight to any specific [^matters at sentencing. State v. Quiambao, supra. In selecting a proper sentence, the court is not confined to evidence of prior convictions but may consider all prior criminal activity. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218; State v. Houston, 40,642 (La.App. 2 Cir. 3/10/06), 925 So.2d 690, writ denied, 2006-0796 (La.10/13/06), 939 So.2d 373. The court has great discretion in imposing a sentence within the statutory limits; absent a manifest abuse of that discretion, the appellate court will not disturb a legal sentence. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158.

The second prong is constitutional excessiveness. A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 92-3120 (La.9/10/93), 623 So.2d 1276; State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in fight of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, supra. Maximum sentences are reserved for the most serious violations of the charged offense and the worst kind of offender. State v. Quebedeaux, 424 So.2d 1009 (La.1982); State v. Gatti, 39,833 (La.App. 2 Cir. 10/13/05), 914 So.2d 74, writ denied, 2005-2394 (La.4/17/06), 926 So.2d 511.

In the instant case, the trial court carefully considered Bowman’s criminal history — which was extensive — as well as his social and employment history; The trial court noted that the defendant had a long history of serious offenses .dating back to his childhood and had only sporadically been employed. The trial court also considered the | ^circumstances of the instant offense — which were extraordinary— and the defendant’s lack of remorse. The trial court’s reasons were adequate under La. C. Cr. P. art. 894.1. Moreover, there is no hint of constitutional excessiveness about the defendant’s maximum sentence; this was a very violent incident that traumatized the victim and the defendant’s long criminal history at a relatively young age demonstrates that he is among the worst types of offenders. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Bryan Clayton ROBERTS, Appellant.
    No. 42,417-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.

      Louisiana Appellate Project, by Mark O. Foster, for Appellant.
    Paul J. Carmouche, District Attorney, Geya Williams Prudhomme, John Ford McWilliams, Jr., Assistant District Attorneys, for Appellee.
    Before PEATROSS, DREW & LOLLEY, JJ.
   PEATROSS, J.

|-i Defendant, Bryan Clayton Roberts, was convicted by a jury of molestation of a juvenile, in violation of La. R.S. 14:81.2. The trial court found Defendant to be a third-felony habitual offender and sentenced him to 20 years at hard labor without benefit of probation, parole or suspension of sentence. Defendant now appeals. For the reasons stated herein, Defendant’s conviction is affirmed and his sentence is amended and, as amended, is affirmed.

FACTS

Defendant was convicted of molesting J.O., the eight-year-old daughter of his girlfriend, L.O. On the night of January 20, 2005, L.O. was wondering why it was taking Defendant, her live-in boyfriend of three years, so long to come to bed, and she decided to get something to drink .-from the kitchen. As she walked through the living room on her way to the kitchen, L.O. saw Defendant sitting on the couch next to J.O., who was sleeping. L.O. saw Defendant moving his hand away from between J.O.’s legs. When he realized L.O. was there, Defendant jumped up suddenly and moved in front of the window. L.O. asked Defendant what he was doing; Defendant said that he was covering J.O. because she looked cold. L.O. saw that J.O. was uncovered from below the waist and told Defendant that he did not do a good job of covering J.O. Defendant then “got up” in L.O.’s face, acted very angry, and asked L.O. what she thought he was doing to his daughter. The record indicates that Defendant had been physically abusive to L.O. in the past and, for this reason, L.O. was afraid and decided to act as |gif nothing was wrong. L.O. testified that she did not sleep any that night because Defendant’s defensive behavior made her wonder if he had been sexually abusing her daughter.

The next morning as L.O. was getting J.O. ready for school, L.O. asked J.O. if anyone had been “messing with, her in an inappropriate way or making her feel uncomfortable by touching her.” J.O. told L.O. that she could not tell because he would hurt them if she told; L.O. told J.O. that she could fix it. After five minutes of crying, J.O. told L.O. that “daddy has been messing with my private area.” J.O. told L.O. that Defendant had been touching her on her private parts; that sometimes it hurt when he did this; that he would put his fingers inside her and tell her that this is the way that daddies show their love for their children; that he made her put his private part in her mouth and ask her to lick it; that he kissed her private part with his lips and tongue; and that he told her that no one would believe her if she told anyone and that he would kill her mother if she told. L.O. told J.O. that she was going to go to the school that day, but that J.O. should tell someone at school what Defendant had done in case she did not make it there.

That same morning, L.O. told Defendant that she had a meeting at the school. Defendant told L.O. that he wanted to go with her, but L.O. told him she did not need him to go with her. Defendant became angry and pushed L.O. on the couch, but then agreed to let her go to the school without him. As L.O. left the house, Defendant threw the vacuum cleaner over the balcony towards her, followed her into the yard and yelled | ¡¡obscenities at her in front of the neighbors. Defendant followed L.O. as she walked to the school and threatened to blow up the school and hurt the children if she did not come home with him. He also threatened to beat up anyone who came between them and threatened that, if the police came to arrest him, he would make sure that they killed him. L.O. told him that he could come back to the school at noon to walk her home if he was worried about the safety of the neighborhood, and Defendant agreed to this. L.O. waited for Defendant to walk around the corner, then she went inside and told the school secretary and principal about what Defendant had been doing to J.O., about Defendant’s physical abuse towards her and about the threats he made in regard to the school.

School officials contacted Shreveport Police, and Detective Paula Moreno responded to the call. L.O. told Det. Moreno what happened, and Det. Moreno took L.O., J.O. and J.O.’s twin brother to the YWCA shelter. Later, Det. Moreno transported them to the Gingerbread House for an interview. LiO. denied that she coached J.O. on what to say during the interview, and she testified that she had no further contact with Defendant after that day. J.O. testified at trial that she went to the Gingerbread House, and the video tape of her interview was played before the jury. The girl testified that she knew the difference between true and false and that she was telling the truth in the interview. On cross-examination, J.O. testified that someone else had touched her private parts, but that it happened after Defendant did it. J.O. also denied making up the allegations in order to get Defendant out of the house.

l4The video tape of the interview showed J.O. talking with the interviewer, Latonya Hocker of the Gingerbread House, who began by asking her some introductory questions. J.O. told the interviewer that she lived with her mom, dad and her twin brother, but that she did not live with her dad now because he messed with her and touched her private part. J.O. indicated on a drawing that the area between her legs was the area which she considered to be her private part. J.O. said that Defendant had touched her private part with his hands, on top of her clothes and on one occasion while she was playing in her mom and dad’s room after her brother left the room. J.O. stated that Defendant had done this four or five times. J.O. said the first time it happened was while she was at her Uncle Tommy’s house with Defendant and her brother; her mother and Uncle Tommy had gone to court because he was trying to get his children back. J.O. said that she was six years old when this happened and that Defendant touched her between her legs, inside her clothes. She remembered that it was daytime and cold outside during this particular incident. J.O. said it happened again in her bedroom at their old house and that Defendant touched her inside her clothes and between her legs. She stated that this happened more than once in her mom’s and dad’s room and that it happened one time in the kitchen, but that Defendant touched her outside her clothes then. She further stated that it happened in her bedroom. J.O. said that Defendant did not touch the inside of her body, and Defendant told her not to tell anyone or he would kill her. J.O. admitted that she told her mom and that her mom told her to tell the school.

bln addition, J.O. related that one time Defendant got on top of her and “humped” her while her mom was watching a movie; J.O. said that she was wearing her clothes, but that his private part was touching her private part. J.O. demonstrated what Defendant did to her with two toy bears. She indicated on a diagram that Defendant’s penis was his private part and said that, once, Defendant showed her his private part in the kitchen and said “the f-word.” J.O. said that Defendant called his private part a “pecker” and that he had put his pecker on her private part when she was wearing clothes, but that he was not wearing clothes at the .time. She explained that Defendant wanted her to touch his pecker, but that he did not make her touch it. J.O. said that Defendant bit her private part while she was asleep and her mom had noticed a bite mark on her private part when getting her ready for school. J.O. said that Defendant put his pecker on her buttocks, on the outside of their clothes,' and that they both were wearing clothes at the time. J.O. also said that Defendant put his tongue in her mouth. At the end of the interview, the interviewer asked J.O. if her mother told her to say anything and J.O. said that her mother told her to tell the truth. The interviewer asked if Det. Moreno told her to say anything, and J.O. said that the lady with the badge did not tell her anything. The interviewer asked J.O. if she had made up any of what she said during the interview, and J.O. said that she did not make up anything.

, Det. Moreno testified that she watched the interview on a closed-circuit television as it was being conducted and that the interviewer wore an “ear bug” so that she could talk to her directly, suggest questions or let her |fiknow if they could not understand what was being said. Det. Moreno testified as to what she saw during the interview and testified that J.O.’s demeanor seemed calm. She related that, when listening to such an interview, she listens to see if the child is able to give specific details and the way in which the child describes things in order to make sure that the child has not been led to say something or that the child is not repeating something she heard from adults. Det. Moreno further testified that J.O.’s words appeared to be her own and that she did not see any signs of J.O. being “coached” to make these allegations. According to Det. Moreno, J.O.’s statement in the interview was consistent with what L.O. told her before the interview. Det. Moreno testified that there was no physical evidence of molestation found, but that sometimes there is no physical evidence when the crime does not involve penetration or enough physical contact to cause damage. Det. Moreno also testified that sometimes children heal so fast that there is no physical evidence by the time the doctor conducts a physical examination.

Defendant testified that he considered J.O. to be his daughter during the three years he was in a relationship with L.O. He denied touching J.O. inappropriately and denied having any physical or sexual desires for J.O. Defendant testified that he believed J.O. had been coerced to make the allegations and that J.O. and L.O. made up the allegations because of his physically abusive behavior towards L.O., which he conceded the children had observed. He further conceded on cross-examination that he had previously pleaded guilty to obscenity and to possession of Schedule ÍI with |7intent to distribute. Defendant, however, also testified that he considered himself to be a law-abiding person. Based on the evidence presented at trial, as previously stated, the jury found Defendant guilty of molestation of a juvenile.

DISCUSSION

Assignment of Error Number One (verbatim): The evidence was insufficient to support the conviction.

Defendant argues that the State’s evidence was insufficient to support his conviction for molestation of a juvenile. On the record before us, we find that the evidence presented by the State was sufficient to support Defendant’s conviction for molestation of a juvenile.

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, reviewing 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 v. 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. 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. In the absence of internal contradictions or irreconcilable conflict with physical evidence, the testimony of one witness is sufficient support for a requisite factual conclusion if that witness is believed by the trier of fact. State v. Jones, 31,613 (La.App. 2d Cir.4/1/99), 733 So.2d 127, writ denied, 99-1185 (La.10/1/99), 748 So.2d 434, citing State v. Ford, 28,724 (La. App. 2d Cir.10/30/96), 682 So.2d 847, writ denied, 99-0210 (La.5/14/99), 745 So.2d 12.

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, the matter is one of the weight, |anot the sufficiency, of the evidence. 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 and 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). 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.

According to La. R.S. 14:91.2(A), the offense of molestation of a juvenile is defined as follows:

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 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.

The offender is subject to an increased penalty range pursuant to Subsection C if he or she commits molestation of a juvenile while having control or supervision of the juvenile victim. Thus, in order- to determine whether the State presented sufficient evidence to support a-conviction, for molestation of a juvenile, this court must view the evidence in the light most favorable to the prosecution and examine whether any rational trier of fact could have found the essential elements of molestation of a juvenile were proven beyond a reasonable doubt.

| inDefendaht testified that he was born August 31, 1979, and the victim was between the ages of six and seven years old when these incidents of sexual abuse occurred; thus, the State presented sufficient evidence to show that Defendant was over the age of seventeen, that the victim was under the age of seventeen and that the age difference was more than two years. The -testimony of J.O. from the video described many lewd and lascivious acts committed upon her by Defendant. Defendant’s specific intent to arouse or gratify his sexual desires need not be proven as a fact; rather, it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Hill, 42,025 (La.App. 2d Cir.5/9/07), 956 So.2d 758, citing State v. Graham, 420 So.2d 1126 (La.1982); 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. J.O. testified that Defendant threatened to kill her if she told anyone. This constitutes evidence that Defendant committed these acts through a threat of great bodily harm. Further, Defendant lived with them, J.O. called Defendant “daddy” and Defendant committed many of these lewd and lascivious acts while J.O. was in his care. These facts support the conclusion that Defendant accomplished these acts by use of influence by virtue of being in a position of control or supervision over J.O. Accordingly, we find that the State presented sufficient evidence to support Defendant’s conviction for molestation of a juvenile.

This assignment is, therefore, without merit.

Assignment of Error Number Two (verbatim): The trial court erred in denying Mr. Roberts’ motion in limine to exclude the video tape interview of the child victim from evidence.

InDefendant argues that the trial court erred in denying his motion in limine, which allowed the State to present the video tape of the interview conducted with J.O. at the Gingerbread House. Defendant argues that the video should have been excluded because the interviewer asked leading questions and because the interviewer was not present at trial for cross-examination. Defendant argues that the State did not meet the procedural requirements of La. R.S. 15:440.1, et seq., which are necessary before admitting the video tape. Specifically, Defendant argues that the State failed to offer evidence that Det. Moreno supervised the interview and failed to call Latonya Hocker to testify because she was the actual person who conducted the interview. Defendant further argues that the State offered no proof that Det. Moreno was statutorily authorized or qualified to supervise the interview or that she actually supervised the interview. Defendant argues that this deprived him of the right to meaningfully confront and cross-examine the person who actually conducted the interview or the person who actually supervised the interview. He further asserts that this deprived him of the opportunity to ask questions regarding the interviewer’s education and qualifications, the supervisor’s education and qualifications, whether Det. Moreno was familiar with procedures and protocol of the agency conducting the interview, the reasons for why certain questions were asked or whether Det. Moreno actually supervised the interviewer. Defendant maintains that Ms. Hocker was not unavailable because she had moved to Kentucky and he argues that the State did not want to incur the cost of producing her. Defendant asserts that the trial |iacourt agreed with the premise of his argument, but that it denied the motion in limine because he did not properly raise the argument that the statute was unconstitutional. Defendant asserts on appeal that he was never arguing that the statute was unconstitutional, but that the State did not comply with the statute by producing a properly qualified witness, which violated his confrontation right to cross-examine a competent witness to the hearsay evidence contained within the video tape.

The State argues that the tape was properly admitted under La. R.S. 15:440.1, et seq. It urges that some leading questions are allowed when dealing with child victims and that the trial court did not abuse its discretion in finding that the leading questions were permissible. The State further argues that the leading questions were harmless because Defendant had the opportunity to cross-examine the child. The State also submits that Det. Moreno was a proper witness because she is a police officer and that the training requirements to which Defendant refers only apply to personnel of the Department of Social ■ Services according to the plain language of La. R.S. 15:440,4(B).

The trial court viewed the video tape and determined that, under the totality of the circumstances, the leading questions that were asked were permissible in order to get specific information. In regard to the absence of Ms. Hocker, the trial court opined that it thought the interviewer should be available for cross-examination, but that the statute did not require the State to present the interviewer. The trial court noted that Defendant had not followed the proper procedure for challenging the statute as | ^unconstitutional. The trial court, therefore, denied the motion in limine on the ground that Det. Moreno’s testimony as the officer supervising the interview was sufficient to comply with the requirements of the statute. We conclude that the trial court’s ruling was proper.

In La. R.S. 15:440.1, et seq., the Louisiana Legislature declared that protected persons who were the victims of violent crime should not be subjected to more “intrusion” than necessary, so a hearsay exception was created to allow the video tape of an interview conducted with the victim to be presented as evidence at trial when the victim is 14 years of age or younger, when the victim has a developmental disability or when the victim has mental retardation. The method for. recording the video tape and the competency of that evidence is explained in La. R.S. 15:440.4, as follows:

A. A videotape of a protected person may be offered in evidence for or against a defendant. To render such a videotape competent evidence, it must be satisfactorily proved:
(1) That such electronic recording was voluntarily made by the protected person.
(2) That no relative of the protected person was present in the room where the recording was made.
(3) That such recording was not made of answers to interrogatories calculated to lead the protected person to make any particular statement.
(4) That the recording is accurate, has not been altered, and reflects what the protected person has Said.
(5) That the taking of the protected person’s ’ statement was supervised by a physician, a social worker, a law enforcement officer, a licensed psychologist, a licensed professional counselor, or an authorized representative of the Department of Social Services.
B. The department shall develop and promulgate regulations on or before September 12, 1984, regarding training requirements and certification for department personnel designated in Paragraph (A)(5) of this Section who supervise the taking of the protected person’s statement.

1 uFurther, the admissibility of the video tape is explained, in pertinent part, by La. E.S. 15:440.5, as follows:

A. The videotape of an oral statement of the protected person made before the proceeding begins may be admissible into evidence if:
(1) No attorney for either party was present when the statement was made;
(2) The recording is both visual and oral and is recorded on film or videotape or by other electronic means;
(3) The recording is accurate, has not been altered and reflects what the witness or victim said;
(4) The statement was not made in response to questioning calculated to lead the protected person to make a particular statement;
(5) Every voice on the recording is identified;
(6) The person conducting or supervising the interview of the protected person in the recording is present at the proceeding and available to testify or be cross-examined by either party;
(7) The defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence; and
(8) The protected person is available to testify.
B. The admission into evidence of the videotape of a protected person as authorized herein shall not preclude the prosecution from calling the protected person as a witness or from taking the protected person’s testimony outside of the courtroom as authorized in R.S. 15:283. Nothing in this Section shall be construed to prohibit the defendant’s right of confrontation.

Both La. R.S. 15:440.4(A)(3) and La. R.S. 15:440.5(A)(4) clearly prohibit questions leading the protected person from making a particular statement. The Louisiana Supreme Court, however, has found that the rule forbidding leading questions may “yield somewhat to the trial court’s discretion in the examination of young victims.” State v. Abbott, 29,497 (La.App. 2d Cir.6/18/97), 697 So.2d 636, writ denied, 97-1929 (La.1/9/98), 705 So.2d 1097, citing State v. Carthan, 377 So.2d 308 (La.1979). In State v. Watson, 39,362 (La.App. 2d Cir.4/20/05), 900 So.2d 325, this court explained that some leading questions do not render such video tapes inadmissible under these statutes:

With regard to leading questions, the court in State v. Feazell, 486 So.2d 327 (La.App. 3d Cir.1986), writ denied, 491 So.2d 20 (La.1986), considered the issue .of the competency of a videotape of a child victim in which some leading questions had been asked under LSA-R.S. 15:440.4. There, the court found:
Leading questions are ordinarily prohibited when propounded to one’s own witness unless such witness is unwilling or hostile. LSA-R.S. 15:277. However, it is well settled that an exception is usually made when questioning a young child. State v. Kelly, 456 So.2d 642 (La.App. 2d Cir.1984), writ denied, 461 So.2d 312 (La.1984); State v. Kahey, 436 So.2d 475 (La.1983); State v. Bolton, 408 So.2d 250 (La.1981); State v. Francis, 337 So.2d 487 (La.1976). Furthermore, notwithstanding the general rule against leading questions, the matter is largely within the discretion of the trial court and in the absence of palpable abuse of that discretion resulting in prejudice to the accused, a finding of reversible error is not warranted. State v. Kelly, supra; State v. Francis, supra.
The court in Feazell found that the leading nature of the questions constituted harmless error “especially since the defense viewed the videotape prior to trial and cross-examined the child during trial.” In State v. Isaac, 544 So.2d 531 (La.App. 5th Cir.1989), the fifth circuit agreed with the analysis of the third circuit in State v. Feazell, supra, and extended that reasoning to include the issue of leading questions under LSA-R.S. 15:440.5 involving the admissibility of such videotapes. Since the defendant in that case cross-examined the child during the trial and viewed the videotape prior to trial, the court found that to whatever extent the questions of the interviewer were leading, the error1 was harmless. The court found no abuse of discretion on the part of the trial court in admitting the videotape into evidence. State v. Isaac, supra. See State v. Abbott, 29,497 (La.App. 2d Cir.6/18/97), 697 So.2d 636, writ denied, 97-1929 (La.1/9/98), 705 So.2d 1097.

| ^Furthermore, some leading quéstions may be allowed when necessary to elicit particular details for purposes of clarifying the protected person’s statement. In State v. Houston, 40,642 (La.App. 2d Cir.3/10/06), 925 So.2d 690, writ denied, 06-0796 (La.10/13/06), 939 So.2d 373, the defendant challenged the admissibility of a video tape of' an interview with a child on the ground that the interviewer asked leading questions. The trial court asked the defendant for an example of a leading question; he proffered that if was improper for the interviewer to ask “Was he standing next to you or where was he?” because it suggested the child’s answer, which was “standing next to me.” On appeal, this court found that such questions did not render the video tape inadmissible because “[t]he explicit answers as well as much information given that did not originate with the interviewer show that this child was voluntarily testifying and was not misled or prompted to give responses.” Id. In State v. Watson, supra, this court found that the trial court did not err in allowing the admission of the video tape interview of a child victim, despite leading questions, because the questions were for clarification purposes and were appropriate under the circumstances. See also State v. Guerra, 36,347 (La.App. 2d Cir.12/18/02), 834 So.2d 1206, writ denied, 03-0072 (La.4/25/03), 842 So.2d 398 (Trial court did not abuse discretion by admitting video tape interview, in spite of some leading questions, because the questions were appropriate under the circumstances, considering the child’s age and the context of the interview, and there was no indication in the record that the child acquiesced to suggestive questions.).

|17In the case sub judice, when the trial court considered Defendant’s motion in limine to exclude the video tape on the basis of leading questions, the trial court viewed the video tape and determined that, under the totality of the circumstances, the leading questions that were asked were permissible in order to get specific details. Our review of the video tape shows that J.O. told the interviewer that she no longer lived with her “dad” because he had “messed with her” and had touched her private parts. The video tape shows that, when the interviewer asked J.O. about when this had happened, she gave detailed accounts about different occasions and places in which the abuse occurred. The interviewer asked J.O. leading questions as to whether Defendant touched her inside or outside of her clothes, but these questions do not appear to have suggested an answer because J.O. stated that it was inside her clothes on some occasions and outside her clothes on other occasions.

After J.O. told the interviewer that Defendant had shown his “pecker” to her, the interviewer asked her to describe what it looked like, and J.O. answered that it was round and white. Defendant argued that asking if it was white like skin or white like a piece of paper was improperly leading, but the context of the interview shows that the question was for clarification. The video tape indicates that J.O. was voluntarily testifying, that the information gathered in the interview originated with J.O. and that any leading questions asked were for purposes of clarification. Further, Defendant viewed the video tape before trial and J.O. was available for cross-examination at trial. Accordingly, the trial court did not abuse its 11sdiscretion in finding that the video tape was admissible in spite of Defendant’s objection to the leading questions.

Defendant also argues on appeal that the trial court erred in allowing the video tape because it did not present Ms. Hocker and because the State did not present evidence that Det. Moreno was actually supervising the interview or that she was qualified to do so. The trial court denied the motion in limine on the basis that Ms. Hocker was not present to testify because the statute allows either the person who conducted the interview or the person who supervised the interview to testify and because the State was presenting the testimony of Det. Moreno as the person who supervised the interview. Defendant did not argue at the trial level that the State failed to present evidence that Det. Moreno was the actual supervisor of the interview or that the State failed to present evidence that Det. Moreno was qualified to supervise the interview. Essentially, Defendant now argues that the State failed to present the proper foundation for Det. Moreno’s testimony as the person who supervised the interview. This issue was not raised before the trial court, nor was it addressed by the trial court. Although Defendant alleges on appeal that his motion in limine preserves the issue for appellate review, our jurisprudence clearly holds that a new basis for an objection cannot be raised for the first time on appeal. State v. Sims, 40,300 (La.App. 2d Cir.10/26/05), 914 So.2d 594, citing La. C. Cr. P. art. 841; State v. Cressy, 440 So.2d 141 (La.1983); State v. O'Neal, 501 So.2d 920 (La.App. 2d Cir.1987), writ denied, 505 So.2d 1139 (La.1987). Accordingly, this issue is not properly before this court.

|1flWe note, however, that Det. Moreno testified that she and another child protection agent watched the entire interview on a closed-circuit television from a separate room and that the interviewer was wearing an “ear bug” so that they could communicate with the interviewer to suggest questions or to let her know they could not hear what was being said. La. R.S. 15:440.4(B) does not require law enforcement officials to be certified if they are supervising the taking of a child victim’s statement; rather, the fifth circuit found that the “mandated training and certification” required of that statute only applied to personnel of the Department of Health and Human Resources. State v. Guidroz, 498 So.2d 108 (La.App. 5th Cir.1986). We find no merit to Defendant’s contention that Det. Moreno did hot actually supervise the interview or that she was not properly qualified to do so in accordance with the statute.

Although there is some discussion by trial counsel and the trial court regarding whether the statute violates Defendant’s constitutional right to confront accusers by not requiring the interviewer to be available for cross-examination, Defendant does not pursue this claim on appeal. Rather, Defendant argues on appeal that the State failed to present a properly qualified witness by not having Ms. Hocker available for cross-examination and by Det. Moreno not being properly qualified to testify. We note that, in State v. Kennedy, 05-1981 (La.5/22/07), 957 So.2d 757, the Louisiana Supreme Court recently concluded that, where the declarant is present to appear for cross-examination, “the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Although | apthis case does not address whether the absence of the interviewer’s testimony adversely affects the defendant’s confrontation rights, this case does illustrate that the core protection in the Sixth Amendment Confrontation Clause is the right to confront the accuser. The interviewer is not the accuser; the child victim making the statement is the accuser. The statute requires that either the interviewer or the person supervising the interview be available to testify or to be cross-examined by either party. La. R.S. 15:440.5(A)(6). This statutory requirement serves the purpose of having a witness who. can authenticate the video tape, and it serves the purpose of having a witness to testify in regard to whether the process of recording and conducting the interview complied with the statutory requirements. Accordingly, the statute is constitutional in spite of allowing' either the person who conducted the interview or the person who supervised the interview to testify or be available for cross-examination because the statute protects the defendant’s confrontation rights by requiring the testimony of the child victim who made the statement. ■

This assignment is, therefore, without merit.

Error Patent

The trial court found Defendant to be a third-felony offender and sentenced him to 20 years at hard labor without benefit of probation, parole or suspension of sentence. According to La. R.S. 15:529.1(G), all habitual offender sentences are to be imposed without benefit of probation or suspension of sentence. Although La. R.S. 15:574.4(A)(1) states that “[a] person convicted of a third or subsequent felony offense shall not be eligible 121for parole,” the Louisiana Supreme Court has consistently held that, when a defendant is sentenced under a statute that contains no prohibition of parole, the district court must sentence the defendant to a term that does not include' such a prohibition because parole eligibility under La. R.S. 15:574.4 is to be determined by the Department of Corrections. St. Amant v.19th Judicial District Court, 94-0567 (La.9/3/96), 678 So.2d 536. Defendant’s parole eligibility as a third habitual offender under La. R.S. 15:574.4 is a determination for the Department of Corrections to make. Defendant’s sentence, therefore, is amended tó delete the denial of parole eligibility.

DECREE

For the foregoing' reasons, the conviction of Defendant, Bryan Clayton Roberts, is affirmed. Defendant’s sentence is amended to delete the- denial of parole eligibility and, as amended, is affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED AND, AS AMENDED, AFFIRMED.

      . The record indicates that Defendant was not the biological father of J.O., but that J.O. called him "daddy.”

      . Counsel for Defendant did not make a separate argument for this assignment of error; but, in the argument regarding the denial of the motion in limine, counsel argues that the conviction was based solely upon hearsay evidence from the video taped interview with J.O. and that there was no other direct testimony regarding the offense. In the "ISSUES PRESENTED FOR REVIEW" section of the brief, counsel for defendant also states that the state relied on the hearsay evidence of the video and that this hearsay evidence was insufficient to support the conviction because it violated his right to fully confront and cross-examine all the witnesses. In this section of the brief, Defendant also notes that the interview contained improper leading questions and contradictory answers. The State argued that J.O.'s testimony via the video tape of the Gingerbread . House interview, along with L.O.'s testimony regarding what she saw, was sufficient to support Defendant’s conviction for molestation of a juvenile.
      Assignments of error which are neither briefed nor argued are considered abandoned. U.R.C.A. 2-12.4; State v. Schwartz, 354 So.2d 1332 (La.1978); State v. King, 41,084 (La.App. 2d Cir.6/30/06), 935 So.2d 815, writ denied, 06-1803 (La.2/16/07), 949 So.2d 411; State v. Kotwitz, 549 So.2d 351 (La.App. 2d Cir.1989), writ denied, 558 So.2d 1123 (La.1990). Further, a mere statement of an assignment of error in a brief does not constitute briefing of the assignment; and, therefore, the assignment is deemed abandoned. State v. Lee, 39,969 (La.App. 2d Cir.8/17/05), 909 So.2d 672, writ denied, 06-0247 (La.9/1/06), 936 So.2d 195, citing State v. Toney, 26,711 (La.App. 2d Cir.3/1/95), 651 So.2d 387. Although the sufficiency argument appears to be abandoned because Defendant’s brief contains no separate argument for it, the argument that can be gleaned from the entirety of the brief indicates that Defendant's sufficiency claim hinges on his premise that the video tape of J.O.'s Gingerbread House interview should not have been admitted. The admissibility of the video tape is addressed in Assignment of Error Number Two.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Anderson BAKER, Appellant.
    No. 42,428-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.

      William Jarred Franklin, Louisiana Appellate Project, for Appellant.
    Schuyler Marvin, District Attorney, C. Sherburne Sentell, III, • Assistant District Attorney, for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   GASKINS, J.

The defendant, Anderson Baker, appeals as excessive his sentence to ten years at hard, labor, without benefit of parole, probation, or suspension of sentence after his plea of guilty to sexual battery. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

In December 2005, the defendant committed sexual battery of a minor by intentionally inserting his fingers in the victim’s vagina and sucking or biting her breast. The defendant’s DNA was found, on the child’s breast. At the time of the offense, the victim was 13 years old and the defendant was 27. The defendant was originally charged with one count of forcible rape and one count of sexual battery.

On September 9, 2006, the defendant entered a plea of guilty to the charge of sexual battery. In exchange for the plea, the charge of forcible rape was dismissed. A presentence investigation (PSI) report was ordered by the trial court.

On November 8, 2006, the defendant appeared before the court for sentencing. The defendant asked to make a statement to the court. He was sworn and stated that the victim lived in his household and, on the night of the incident, she was pulling his hair while he was frying potatoes. He said that he turned around and bit her in the chest.

li>The court noted that the defendant was a first felony offender. A previous simple burglary charge had been reduced to misdemeanor theft and the defendant also had a conviction for disturbing the peace. The court recognized that the defendant was not eligible for probation in this case due to the very nature of the charge. The court ordered the defendant to serve ten years at hard labor, without benefit of parole, probation, or suspension of sentence, and ordered that the sentence be served consecutively with any other sentence imposed. The defendant was given credit for time served and was properly informed of the time for applying for post conviction relief.

The defendant filed a motion to reconsider sentence which was denied by the trial court. The defendant then appealed, claiming that his sentence is excessive.

EXCESSIVE SENTENCE

Law

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La.C.Cr.P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not a rigid or mechanical compliance with its provisions. A trial judge shall exercise his sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829 (La.1981). In tailoring the sentence to the ^individual, the important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and, suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). 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. Bradford, supra.

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. However, in cases where the defendant has pled guilty to an offense which does not adequately describe his conduct, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430; State v. Rankin, 41,128 (La.App.2d Cir.8/23/06), 938 So.2d 1172.

|4A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 1999-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.

Discussion

At sentencing, the defendant addressed the court and admitted the sexual battery, but denied raping the victim. He argues that the physical evidence did not support the victim’s claim that she was raped. According to the defendant, plea bargains should not be used to justify imposition of the maximum sentence for the lesser charge to which a defendant pleads guilty. The defendant maintains that the trial court based his sentence on the rape charge which was dismissed and which the defendant denies.

The defendant claims that he is not a “worst offender” and therefore the imposition of the maximum sentence for sexual battery was excessive. He argues that the trial court failed to consider that he had no prior felony convictions and that he had no misdemeanor convictions for violent or sexual crimes.

In sentencing the defendant, the court referred to the PSI report which, according to the court, showed that the victim had been raped. According to the court, the defendant took advantage of a family member who was a minor. The court also specifically pointed out that the defendant was being sentenced for sexual battery and not for any other offense. The | Bcourt noted that the defendant was not eligible for probation due to the nature of the charge. The court acknowledged that the victim’s mother encouraged the imposition of the maximum sentence possible in this case due to the long-term effects of the defendant’s actions on the victim and her family.

As reflected in the PSI report, the defendant had a prior criminal history. Originally charged with simple burglary in 1996, the defendant pled guilty to misdemeanor theft. The defendant also, had a prior conviction for disturbing the peace. The court recognized that the present offense represented the defendant’s first felony conviction. Based upon these factors, we find that the trial court adequately complied with La.C.Cr.P. art. 894.1 and set forth the factual basis for the sentence.

Even though the defendant received the maximum sentence possible for sexual battery, under the facts of this case, the sentence is. not excessive. The victim was only 13 years old at the time of this non-consensual offense and was a close relative of the defendant. The defendant received the benefit of a favorable plea bargain agreement, which is a valid consideration in sentencing. The sentence imposed does not shock the sense of justice, is not grossly out of proportion to the seriousness of the offense, and does not | ^needlessly inflict pain and suffering. The sentence is tailored to both the offender and the offense.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Anderson Baker, for sexual battery.

AFFIRMED.

C. (1) Whoever commits the crime of sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years.

      . The victim’s name is not used in this opinion due to the confidentiality requirements applicable to this case under La. R.S. 46:1844(W).

      . La. R.S. 14:43.1 provides in pertinent part:


text:
    STATE Of Louisiana, Appellee, v. Montie Banna MONTGOMERY, Appellant.
    No. 42,432-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.

      Louisiana Appellate Project by Paula C. Marx, for Appellant.
    Montie Banna Montgomery, Pro Se.
    J. Schuyler Marvin, District Attorney, Sherburne Sentell, III, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before CARAWAY, PEATROSS and MOORE, JJ.
   MOORE, J.

h Montie Banna Montgomery appeals his sentence of five years at hard labor for being a second felony offender convicted of attempted possession of cocaine. We amend the sentence to delete the previous imposition of 2½ years at hard labor for attempted possession of cocaine, but otherwise affirm.

Procedural Background

Montgomery was charged by bill of information with possession of cocaine arising from a December 2002 incident in which he was stopped for a traffic infraction, fled on foot and tossed away a Ziploc which was found to contain cocaine. A small amount of cocaine was also found in the vehicle. The matter proceeded to trial, after which a six-member jury found him guilty of attempted possession of cocaine. The district court sentenced him to 2½ years at hard labor.

The state then filed the instant bill of information charging Montgomery as a fourth felony offender under La. R.S. 15:529.1. After a bench trial, the district court adjudicated him a second felony offender and’ sentenced him to five years at hard labor, the maximum sentence for a second felony offender convicted of attempted possession of cocaine.

Montgomery has appealed, urging through counsel that the maximum sentence is excessive and that the court erred in failing to vacate the previous sentence of 2½ years at hard labor. By pro se brief, he also urges vindictive prosecution and the failure to advise him of his right of reconsideration.

\9Discussion

By his first assignment of error, Montgomery urges the sentence is excessive. Appellate counsel concedes that because no motion to reconsider was filed on behalf of the defendant, review is limited to the bare claim of constitutional excessiveness. La. C. Cr. P. art. 881.1 E; State v. Mims, 93-0808 (La.6/18/93), 619 So.2d 1059. Counsel contends that the offense of conviction indicates a need for treatment and rehabilitation rather than incarceration; Montgomery had a good work record and was supporting his two children; and he was never convicted of any crime of violence. By pro se brief, Montgomery adds that he is not the worst of offenders.

The state responds that Montgomery’s extensive criminal history fully warrants the sentence.

Appellate review of sentences for alleged excessiveness is a two-pronged inquiry. First the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. However, as conceded in brief, Montgomery filed no motion to reconsider sentence and thus failed to preserve any specific complaints about the court’s factual basis for sentencing. ' He is therefore relegated to the claim of constitutional excessiveness. State v. Mims, supra.

The second prong is constitutional excessiveness. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless- and needless infliction of pain and suffering. State v. Dorthey, 92-3120 (La.9/10/93), 623 So.2d 1276.. A sentence is deemed grossly disproportionate if, when, |athe crime and punishment, are .viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. Maximum sentences are generally reserved for the most serious violations of the offense of conviction and the worst kind-of offender. State v. Quebedeaux, 424 So.2d 1009 (La.1982); State v. Gatti, 39,833 (La.App. 2 Cir. 10/13/05), 914 So.2d 74, writ denied, 2005-2394 (La.4/17/06), 926 So.2d 511.

The five-year sentence imposed here was the maximum. La. R.S. 15:529.1 A(1)(a); R.S. 40:967 C; R.S. 14:27 D(3). However, the record shows that Montgomery possessed 13.55 grams of cocaine when he fled from state police. While this matter was pending, he failed to appear for court hearings on six separate occasions. His criminal record was stunningly unfavorable: according to the PSI, he had at least two prior felony convictions (a 1999 guilty plea to obstruction of justice in Webster Parish and a 2001 guilty plea to possession of cocaine in Nacogdoches County, Texas), 19 arrests for 35 different offenses (including 11 arrests for crimes of violence against the person), and at the time of. sentencing had two pending charges of distribution of Schedule II CDS and one of conspiracy to distribute Schedule II CDS in Webster Parish. This court has previously noted that past records of drug offenses “weigh heavily in the decision to uphold” maximum sentences. State v. Jones, 33,111 (La-App. 2 Cir. 3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385. The same considerations apply here. We perceive no abuse of the Rdistrict court’s sentencing discretion and nothing out of proportion to this offense and this offender. The first assignment of error lacks merit.

By his second assignment of error, Montgomery urges the district court erred in failing to vacate the 21/i-year sentence before sentencing him as a habitual offender to five years at hard labor. La. R.S. 15:529.1 D(3). The state concedes that this was error, and we agree. There is no need to remand to correct this, however. State v. Hampton, 39, 158 (La.App. 2 Cir. 1/26/05), 892 So.2d 714. The sentence is amended to delete the imposition of 2½ years at hard labor.

By his second pro se assignment of error, Montgomery urges the state was vindictive in instituting the habitual offender bill against him. Without elaboration, he suggests that the only reason the state elected to multiple bill him was that he exercised his constitutional right to a jury trial but the jury failed to convict him of the charged offense, possession of cocaine.

The district attorney has the discretionary power to charge a defendant under the habitual offender law just as he has the initial unlimited power to prosecute “whom, when, and how” he chooses. La. C. Cr. P. art. 61; State v. Brisco, 2004-3039 (La.7/6/06), 933 So.2d 754. The use of the habitual offender laws “provides an ancillary sentencing factor designed to serve important and legitimate societal purposes.” Id. A presumption of vindictive prosecution arises only if the habitual offender bill can be explained only by a desire to punish or deter the exercise of legal rights. State v. Heard, 36,191 (La.App. 2 Cir. 7/17/02), 823 So.2d 454, and authorities therein. If the prosecutor’s conduct is equally attributable to 1 ¡-legitimate reasons, the defendant must prove actual vindictiveness. Id. Montgomery failed to appear for six court hearings in the course of this case, resulting in six bench warrants and bond forfeitures. At the time of sentencing, Montgomery faced three other CDS charges in Webster Parish. These are perfectly legitimate reasons for the state to pursue habitual offender proceedings. This assignment of error lacks merit.

By his fourth pro se assignment, Montgomery urges the district court erred by not advising him of his right to reconsideration of sentence under La. C. Cr. P. art. 881.1. Under this article, a defendant may make or file a motion to reconsider sentence within 30 days of the imposition of sentence. La. C. Cr. P. art. 881.1 A(1). However, Montgomery cites no law or jurisprudence holding that the court must advise the defendant of this right at the time of sentencing, and we are aware of none. This assignment of error lacks merit.

Conclusion

We have reviewed the entire record and see nothing we consider to be error patent. For the reasons expressed, Montie Banna Montgomery’s adjudication and sentence of five years at hard labor as a second felony offender is affirmed. The judgment is amended to delete the previous sentence of 2½ years at hard labor for attempted possession of cocaine.

AMENDED AND AFFIRMED.