author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Francis BROWN.
    No. 08-1204.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Francis Brown.
    Earl B. Taylor, District Attorney, Jennifer Ardoin, Assistant District Attorney, 27th Judicial District Court, Opelousas, LA, for Plaintiff/Appellee, State of Louisiana.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

|, The Defendant, Francis Brown, appeals his conviction for second degree murder. He asserts that the evidence was insufficient to prove guilt; that the trial court made erroneous evidentiary rulings on his alternative theories of the crime’s commission and impeachment of the State’s witnesses; and erred in failing to declare a mistrial because of an improper jury verdict.

We conclude that these assertions are meritless and affirm the Defendant’s conviction.

Insufficiency of the Evidence

Defendant contends that, although the State proved he had been with the victim at some point, the prosecution failed to prove he was the one who committed the crime. Defendant further claims the State failed to exclude the reasonable hypothesis that someone else committed the murder.

The prosecution responds that there was a substantial mass of both direct and circumstantial evidence against Defendant. It correctly points out that the evidence, when viewed in a light most favorable to the prosecution, was sufficient to establish Defendant’s guilt beyond a reasonable doubt.

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, 448 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).... A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. A reviewing court may impinge on the fact-finding function of the jury only to the extent necessary to assure the Jackson standard of review. It is not the function of an appellate court to assess credibility or re-weigh the evidence.

2State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86 (citations omitted).

At the time of the offense, second degree murder included “the killing of a human being: (1) when the offender has a specific intent to kill or to inflict great bodily harm....” La.R.S. 14:30.1.

The evidence, when viewed in the light most favorable to the prosecution, shows that Defendant and the victim had recently ended a romantic involvement, but they were still arguing over rumors of the victim’s infidelity. In the time leading up to the victim’s death, Defendant persistently attempted to maintain telephone contact with the victim, and the victim was heard arguing with Defendant over the phone late in the night on May 8, 2006, and into the early morning of the following day. Around 2:00 a.m. on May 9, 2006, the victim reluctantly allowed Defendant to enter her home. The victim’s sister observed Defendant was wearing blue-jean shorts and a white T-shirt.

An hour later, at around 3:00 a.m., Robin Gradnigo and Jordan Gradnigo, residents of Azeline Drive, heard a woman’s loud screams. These witnesses testified that the screams sounded as if someone was being killed. The Gradnigos decided to drive up and down the street, looking and listening unsuccessfully for whoever had been screaming. They returned home around 3:12 or 3:15 a.m.

Reginald Laviolette and his parents, who also lived on Azeline Drive, were awakened by a woman’s screams thirty minutes to an hour after the Gradnigos had been awakened in the same manner. Although his parents went back to sleep, Mr. Laviolette decided to look outside. Mr. Laviolette, who wore trifocals, could not see clearly without his glasses. Nonetheless, he saw a male and a female outside; |swhen the woman pleaded for help, the male told her to “quit tripping.” Mr. Laviolette went back to bed when the couple moved away from his house.

At around 4:00 a.m., Brandon Lastrapes, who also resided on Azeline Drive, was awakened by a loud female scream. Mr. Lastrapes observed a skinny man, who wore dark blue shorts, a white T-shirt, and dark jacket, hit and pull a female. The male was hitting the female on the head. Mr. Lastrapes went back to bed without calling the police. Mr. Lastrapes also said that he saw the same man around 6:30 a.m. riding a bike on the road without the female. Mr. Lastrapes could not positively identify Defendant as the perpetrator from the photographic line-up, but he indicated Defendant’s picture as appearing similar to the perpetrator. At trial, Mr. Lastrapes could not identify which photo he had chosen.

Shane Eaglin, who lived on Gilbert Drive, along with his girlfriend, Brandy Semien, heard a girl screaming for help from Azeline Drive at 5:15 a.m. Mr. Eaglin had just returned home from his trip to a gas station. Mr. Eaglin walked into his backyard, where he could see Azeline Drive, and he observed a male beating a female on the head and dragging her by the hail’. The female was on the ground, crying, and insisting she could not get up. Mr. Eaglin observed the man wore a white T-shirt and blue shorts. Mr. Eaglin stated he did not know the man, but he saw the man hiding in the field one night, and the man asked Mr. Eaglin where the man’s girlfriend lived. Mr. Eaglin replied that he did not know. Both at trial and in the photographic line-up, Mr. Eaglin, who had been standing nine to twelve feet away from the couple, positively identified Defendant as the perpetrator.

On cross-examination, the defense asked Mr. Eaglin about the scar he had reported as being on the face of the perpetrator. After reviewing his police statement, Mr. Eaglin agreed the man had a scar on his left cheek instead of his right. J^At trial, Mr. Eaglin could not see the scar on Defendant who was standing nine to twelve feet away from him. Mr. Eaglin further testified that he had not been under the influence of any medication, and he had one beer on the evening of the offense.

Mr. Eaglin’s girlfriend at the time, Ms. Semien, also observed the male and female, but she saw them from approximately three times the distance as Mr. Eaglin. Ms. Semien saw the male beating the female and physically silencing her screams. When the man stood beneath a street light, Ms. Semien recognized him as someone she had seen on a bicycle in that area on two prior occasions.

Ms. Semien explained that she persuaded Mr. Eaglin to go inside because he did not know what was going on and could get killed. She also explained that she did not call the police because she had been in many situations where a woman (including her own mother) screams “bloody murder” but the next day the woman and her boyfriend would hug and kiss each other. Ms. Semien stated that this experience taught her to mind her own business.

When they heard that Shaquanda had died, Mr. Eaglin and Ms. Semien contacted the police. Both stated that they did not read the paper nor watch the news. Ms. Semien did not know there had been a reward offered for information in the case. Ms. Semien picked the Defendant out of the photographic line-up. She also recalled that the perpetrator had braids and light colored lips.

On cross examination, Ms. Semien estimated thirty feet as her distance from the perpetrator. She stated that she was close enough to see the perpetrator’s face under the “big street light covering where they were.” Ms. Semien also recalled telling the police that the perpetrator had a scar on the left side of his face, and that she could sometimes see some features on a person’s face when light flares. Ms. Semien confirmed Mr. Eaglin’s trip to the gas station to purchase beer, but testified | .¿hat neither she nor Mr. Eaglin had been drinking that evening. Ms. Semien, who was questioned simultaneously with but separately from Mr. Eaglin, also positively identified Defendant as the perpetrator when she was presented with a photographic line-up.

An hour to an hour and a half later, the victim was discovered nearby lying face down in an ant bed. She was unconscious, battered, and covered in ant bites, but she was still breathing. Examination at the hospital determined Shaquanda had suffered brain death from a severe blow to her head. The victim had Defendant’s saliva on her shirt consistent with the locations of bite marks found on her shoulders. A white T-shirt recovered from the crime scene tested positive for Shaquanda’s DNA and excluded all of the known suspects except Defendant, Analysis of the shorts Defendant was wearing during the time of the offense showed that the article of clothing was spotted with the victim’s blood. Despite Defendant’s earlier persistence in calling Shaquanda, he did not attempt to contact her on the phone from the time of the incident until his arrest.

In State v. Hansbro, 35,027, pp. 9-10 (La.App. 2 Cir. 9/26/01), 796 So.2d 185, 192-93, writ denied, 01-2970 (La.10/25/02), 827 So.2d 1177, the second circuit found sufficient evidence to convict the defendant of beating the victim to death. The record showed that the victim in the case had been repeatedly beaten and stomped. Id. at 193. The fatality was caused by multiple fractures to the skull, but the blows also broke all of the victim’s ribs and caused serious injuries to the victim’s face and neck. Id. The evidence placed the defendant at the scene of the homicide at the time of the homicide; he had both his and the victim’s blood on his clothing; the victim bore the imprints of the defendant’s shoe on his face and neck; a witness 16said he saw the defendant beat and rob the victim; and the defendant also admitted to someone he had beaten and possibly killed someone. Id. at 194.

When the evidence in this case is viewed in the light most favorable to the prosecution, the State proved beyond a reasonable doubt that Defendant beat the victim over a two to three hour period, which shows the specific intent to inflict great bodily harm, and that Shaquanda died as a result of the injuries sustained during the beating.

Alternative Theory of Crime

Defendant urges that the trial court erred in prohibiting him from presenting a theory of the crime alternate to that argued by the prosecution:

The Trial Court erred in restricting the defense[’s] effort to show that some other person killed Richard, by barring the defense from presenting evidence of past difficulties and fights Richard had at school before her death, and potential “other dudes” who may have committed the crime. This evidence included evidence of threats against the victim. The trial court’s ruling that such evidence is “irrelevant” is reversible error, for any exculpatory evidence cannot be irrelevant.

Defendant asserts that the record clearly reveals the defense had information concerning the deceased’s fights at the school involving other people, and the exclusion of that information was prejudicial error. Defendant alleged that one of the young women involved in such a fight stated she wanted the victim and her baby dead. Defendant contends that this information raises serious doubts about the reliability of the verdict in this case.

The State replies that its objection to the evidence was not only irrelevance but also to the hearsay nature of the evidence and to the manner in which the defense was attempting to introduce the evidence. The State contends the manner of introduction complied with neither the Louisiana Code of Evidence nor the rules |7set forth by jurisprudence. The prosecution continues that the trial court properly sustained its objection.

The State first urges that any incidents at school involving another party are irrelevant because it is overreaching to implicate another party simply because they argued with the victim. The prosecution alleges that, considering the evidence implicating Defendant as the offender, any attempt to implicate another party was “nothing more than a ‘bare suspicion’ [and ‘conjectural inference’] used to cast the shadow of guilt against the Defendant to another person and is inadmissible as determined by prior jurisprudence.”

The State next urges that the evidence was inadmissible hearsay. The prosecution avers the witnesses neither encountered nor overheard the argument. The State asserts the proper method for introducing the evidence would have been to call to the stand the person who made the threatening remarks and to then call other witnesses to testify otherwise if that person denied the threat.

During the presentation of the defense, defense counsel asked Randolph Lorah, who was a detective with the St. Landry Sheriffs Office on the date of the homicide, “Did any investigation that you did reveal that there was a fight at Opelousas Senior High School?” The State objected to the relevance of the question. During a sidebar conference the parties argued the objection, and the district court sustained the objection.

Additionally, during the State’s case-in-chief, defense counsel also asked Shaquan-da’s sister, Ms. Richard, “Are you familiar with the incident that happened at OHS?” The prosecutor objected, and both the witness and the jury were removed from the courtroom.

|sThe district court sustained the State’s objection to the questions on the basis of inadmissible hearsay. Hearsay, in general, is inadmissible. La.Code Evid. art. 802. No prior evidence was admitted regarding an incident at the high school, the inquiries did not specifically ask whether the witnesses had been present at the incident, and during the presentation of its case, the defense did not call the participants in the incident or any witnesses to testify on Defendant’s behalf. Because the defense’s questions seemed to ask both Mr. Lorah and Ms. Richard whether they were aware of an occurrence outside of their personal knowledge, the queries were hearsay. La. Code Evid. arts. 602, 801. Defendant does not argue that the witnesses had personal knowledge of the event or that the evidence falls into an exception to the hearsay rule.

Moreover, the bare questions asking the witnesses whether they had heard about a fight at the high school the victim attended where the query, as posed, called for a simple yes or no answer does not “make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La.Code Evid. art. 401. Thus, the question, by itself, was not relevant.

Defendant alternatively urges that the trial court’s ruling violated due process as it prevented him from presenting evidence that another person wanted the victim dead. “[I]n order to preserve the right to appeal a trial court ruling which excludes evidence, the defendant must make the substance of the evidence known to the trial court.” State v. Stevenson, 02-79, p. 6 (La.App. 5 Cir. 4/30/02), 817 So.2d 343, 347. However, the defense neither introduced nor proffered evidence during trial showing that someone other than Defendant threatened Shaquanda’s life or wanted her dead. La.Code Crim.P. art. 841; La.Code Evid. art. 103.

liiDefendant’s contentions are meritless.

Impeachment of State’s Witnesses

The defense asserts the trial court erred in prohibiting it from asking certain questions it wanted to ask to impeach some of the State’s witnesses:

The Trial Court erred when the defense was barred from impeaching witnesses on cross. The Defense was barred from grilling Shane Eaglin on his sobriety and his story about Brown asking directions, and Brandy Semien on her motive in testifying. The Defense also was barred from asking Randolph Lorah details on his firing by the Sheriff for malfeasance.

Defendant posits that the trial court’s refusal to allow this impeachment evidence undermined the “moral force” of his defense. Defendant argues that, therefore, he has been denied a fair trial.

The defense first contends the district court erred in sustaining an “argumentative” objection to his question, “And you want this jury to believe that you saw this man.... ” Defendant contends the question was asked immediately after the defense established an eyewitness inaccurately described Defendant as having a scar on the left side of his face and as having been more than thirty feet away from the man beating the victim. The defense asserts that this was an improper ruling.

The State responds the question was argumentative as it was worded because it required the witness to comment on what the jury was to believe from the witness’s testimony. The prosecution points out that defense counsel could have rephrased the question and asked it again, but he did not. The State further asserts that, even though Defendant claims the question went to the witness’s motive for testifying, the evidence was still admitted because she had earlier stated she came forward because she heard the girl had died. The prosecution asks this court to find the trial court’s ruling to be either correct or harmless error.

|inThe record shows the defense asked this question during its cross-examination of Ms. Semien. Defense counsel began the question after Ms. Semien described the distance she approximated to be between her and the struggle by giving a relative distance in the courtroom and after defense counsel verbalized the distance to be around thirty feet. The record reveals the following exchange:

A. And you want this jury to believe that you saw this—
MR. RICHARD: Objection. That’s argumentative on the face of it.
THE COURT: Sustained.
MR. CLAIBORNE CONTINUES:
Q. And you saw this so-called scar over thirty feet away at 4:00 a.m. in the morning.
A. Yes.

Thus, in context, it appears the question was asked to express defense counsel’s incredulity at the witness being able to see details of Defendant at thirty feet. The remark shows defense counsel did, in fact, rephrase the question, and the witness answered affirmatively without objection by the State.

The supreme court has previously held that, when an objection was sustained to an argumentative question, any error in disallowing the question was harmless if the question was rephrased, permitted, and had received a response. State v. Toomer, 395 So.2d 1320, 1333 (La.1981) (citing La.Code Crim.P. art. 921; State v. Marcal, 388 So.2d 656 (La.1980), cert. denied, 451 U.S. 977, 101 S.Ct., 2300, 68 L.Ed.2d 834 (1981); State v. Walker, 344 So.2d 990 (La.1977)). Therefore, any error by the trial court in sustaining the State’s objection was harmless.

Defendant further complains the trial court improperly sustained the State’s objection when the defense asked one of the State’s witnesses whether he could pass a drug test at the time of his testimony.

The State contests Defendant’s argument by stating that, under La.Code Evid. arts. 607-609.1, such questions are prohibited as the answer would have constituted other crimes evidence that was not a felony conviction.

“Particular acts, vices, or courses of conduct of a witness may not be inquired into or proved by extrinsic evidence for the purpose of attacking his character for truthfulness, other than conviction of crime as provided in Articles 609 and 609.1 or as constitutionally required.” La.Code Evid. art. 608(B). Although every witness testifying subjects himself to questioning regarding his criminal conduct, “only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.” La.Code Evid. art. 609.1.

The question asked by defense counsel constituted a query into a possible vice of the witness; there had been no prior evidence introduced showing the witness had a drug habit, and there was no evidence introduced at trial showing Mr. Eaglin had ever been arrested for drug possession. Therefore, the trial court did not err in sustaining the State’s objection to the question.

When the defense asked whether Mr. Eaglin had learned Defendant already knew how to get to the victim’s house, the trial court sustained the prosecution’s objection in that the question required the witness to conclude what Defendant knew or did not know; Defendant urges the trial court’s ruling was error.

|1?.The State counters that its objection was based on the question’s call for the witness to speculate as to what knowledge Defendant had or did not have. The State postulates there could have been any number of reasons Defendant asked the witness if the witness knew where the victim lived. The prosecution maintains the trial court properly sustained its objection and points out the defense failed to rephrase and re-ask the question.

In cross-examining Mr. Eaglin about Defendant asking him the location of Sha-quanda’s house, defense counsel asked, “Did it ever come to your attention that he had been dating Shaquanda for some time prior to May 9th and he knew how to get to her house?” The State objected, “That calls for a conclusion on the part — wait, wait, Mr. Eaglin. That calls for a conclusion on the part of this witness as to what that person knew or didn’t know.” When the trial court sustained the objection, defense counsel continued on to the next question without objecting to or commenting on the ruling.

Under La.Code Evid. art. 602, “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.” A lay witness’s “testimony in the form of opinions or inferences is limited to those opinions or inferences which are: (1) rationally based on the perception of the witness; and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue.” La.Code Evid. art. 701.

In this case, Mr. Eaglin testified he did not know Defendant, so Mr. Eaglin would not have had personal knowledge of what Defendant did or did not know. Thus, both the information requested by the question and the knowledge upon | lswhich any reasonable inference or opinion could be based were outside of Mr. Eaglin’s personal knowledge. Therefore, the trial court did not err in sustaining the State’s objection.

Defendant contends the district court additionally erred in refusing to allow the defense to have a copy of Mr. Lorah’s employment file and in barring the defense from asking Mr. Lorah “details of his firing by the Sheriff for malfeasance,” which required the defense to rely solely on Mr. Lorah’s truthfulness in describing his dismissal from the sheriffs office for malfeasance. Defendant alleges this would have been important because the defense questioned Mr. Lorah why he never followed up on an eyewitness’s statement that the man seen beating the victim was another man instead of Defendant. Defendant asserts the termination papers, therefore, could have contained critical impeachment evidence.

The State responds that the district court made an in camera inspection of the file and determined there was nothing relevant to the case and that the trial court further indicated it would allow the defense to introduce Mr. Lorah’s application for unemployment benefits into evidence at trial because it was public record. The prosecution also claims that both parties were allowed to ask questions regarding his being fired from the sheriffs office, which questions Mr. Lorah answered in detail. The State urges that the trial court’s decision was correct.

We cannot find error in the trial court’s refusal to provide the defense with a copy of Mr. Lorah’s employment record because it was not proffered into evidence. Thus, it is not available for review. Further, Defendant does not assign error to the trial court’s refusal to allow the proffer.

Moreover, contrary to Defendant’s assertion that he “was barred from asking Randolph Lorah details on his firing by the Sheriff for malfeasance,” the 114record shows Defendant cross-examined Mr. Lo-rah at length about his dismissal from the Sheriffs Office. The record clearly demonstrates that defense counsel was allowed to ask detailed questions regarding Mr. Lorah’s termination.

Mistrial

Defendant maintains he was entitled to a mistrial: “The Trial Court erred in that a Mistrial should have been granted when the written poll of the jury on the verdict showed there may have been only 9 votes for guilt, even though a verbal poll came out unanimous.” Although Defendant was only charged with one offense, the jurors were given slips marked with a list of counts one and two, and three of the slips were mis-marked. Defendant urges that this could have meant that the vote was nine to three, which would have been fewer than the number of votes required to return a guilty verdict.

The basis for this assignment of error arose after the jury’s guilty verdict. The defense moved for individual polling of the jurors, and in response, the trial court distributed individual verdict sheets and explained that they were to individually indicate their vote:

You will indicate as shown here, “Is this your verdict?” You will say “yes” or “no” and there is a spot for “yes” or “no.” That’s all you have to “X” is the “yes” or “no,” and then the bailiff will pick up those sheets and I will tabulate them.

When the forms were returned, the district court concluded there had been a unanimous verdict. After both parties were allowed to review the verdict sheets, the defense pointed out possible irregularities in some of the forms and objected thereto.

Noting Defendant’s objection, the trial court told the jurors they would receive fresh sheets and, this time, the jurors were only mark “yes” or “no” for Count I. At this time, the defense interjected and requested a discussion in chambers. The | ^subsequent discussion began with the prosecutor setting forth what had happened with the jury polling sheets:

MR. RICHARD: What happened was the Court handed counsel and I the twelve slips. The slips had been prepared with two counts, Count I and Count II, which [sic] a “yes” or “no” for each one of them. As the Court noted, there is only one count in this indictment, and there were three anomalous, if you will, slips .... and on three of those, three of the jurors marked “yes” on both Count I and Count II.

The district court clarified that, on one of the three slips, the juror had attempted to erase the “yes” marked for Count II.

The defense then argued that the jurors marking “yes” for both counts had indicated they had voted for both second degree murder and manslaughter. The prosecution objected to Defendant’s characterization because there had been four responsive verdicts and only two counts listed on the form. The trial court responded that there had been no second count, that the jurors had been asked to mark “yes” if they had voted for second degree murder, that any other vote would have been indicated by a “no,” and that all of the slips had been marked “yes.”

The defense elaborated on its initial argument:

MR. CLAIBORNE: From the slips that were passed out, three jurors marked Count I and Count II, that’s the bottom line, and I don’t think that that is in conformity with whatever the verdict is or what their intentions are and I do not think it’s appropriate — I realize the Court was about to instruct them to mark those slips of second degree murder, and I do not think it’s appropriate for the Court to advise them to mark those slips second degree murder. They could have easily could have been trying to find my client guilty of a lesser and included offense, and I just don’t think it’s very clear of intent of those jurors, whomever they are, and we don’t know who they are, and if, you know, we go back in there and say, mark second degree murder just because the verdict form was signed second degree murder, there may some people who wanted a lesser and included offense. That’s all I’m trying to say, I mean, we can speculate all day as to what their thoughts [^were in this matter, and under the circumstances, you know, I don’t know how the thing should be cured. I just don’t think it’s in conformity with—

The district court interrupted to assert it had never advised the jurors to mark second degree murder.

After the defense moved for a mistrial and the trial court denied the motion, the district court explained it would ask each juror individually what his vote had been. When the parties returned to the courtroom, the trial court explained it would ask each juror if he had voted Defendant to be guilty of second degree murder: “Ladies and gentlemen of the jury, I am going to ask you whether or not you voted guilty to second degree murder as indicated on the verdict from that was signed by the foreperson, Alex T. Frank, on December 19, 2007. You will respond orally to me.” When the district court called them individually by name, each juror responded, “Yes.” The district court held the verdict had been unanimous: “All twelve jurors have responded affirmatively that they voted for second degree murder. Therefore, it’s a unanimous verdict.”

In State v. Cook, 396 So.2d 1258, 1360-61 (La.1981), the supreme court discussed the importance of the jury poll when it is needed to clarify an ambiguous verdict. In Cook, the jury’s initial verdict form had a vote tabulation that indicated nine jurors had voted guilty, one juror had voted for attempt, and two for not guilty. Id. at 1260. The supreme court held that the trial court’s subsequent poll of the jury yielded ambiguous results because it asked the jurors, “[i]s this your verdict?” instead of requiring them to state their individual vote or asking them if they had voted “guilty.” Id. at 1260-61. Based on the tabulation on the original verdict sheet, the supreme court reversed the defendant’s conviction as being one vote short of that required to return a guilty verdict. Id. at 1261.

|17Unlike Cook, the record in this case clearly shows the jury returned a unanimous guilty verdict. On the first page of the verdict form, the jury foreperson circled “GUILTY.” On the second page, the foreperson signed and dated immediately below the statement, “We the jury find the defendant guilty of Second Degree Murder as charged. (Ten of you must agree).” Any ambiguity occurring in the polling of the jurors did not affect the jury’s unanimous verdict.

Additionally, unlike the trial court in Cook, the district court in this case cured any possible ambiguity by clearly asking each juror whether he had voted for second degree murder and requiring him to individually answer “yes” or “no” when he was called by name.

Accordingly, this assignment of error is without merit.

CONCLUSION

We affirm Defendant’s conviction.

AFFIRMED.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Curtis R. PITTS, III.
    No. 08-1148.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      J. Phillip Haney, District Attorney, Jeffrey J. Troselair, Assistant District Attorney, New Iberia, LA, for Appellee, State of Louisiana.
    Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Curtis R. Pitts, III.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS and MARC T. AMY, Judges.
   AMY, Judge.

hThe defendant pled guilty to illegal possession of stolen things over $500.00 in relation to stolen barges. In making the plea, he agreed to be cooperative during the investigation of other suspects connected to the same crime. The trial court sentenced the defendant to serve nine years at hard labor. He appeals, asserting that his sentence is excessive. For the following reasons, we affirm his sentence.

Factual and Procedural Background

On October 10, 2006, the defendant, Curtis R. Pitts, III, was charged by bill of information with possession of stolen things over $500.00, a violation of La.R.S. 14:69(B)(1). This charge was made in connection with the State’s allegation that the defendant stole oilfield barges from a fleeting area in Harvey, Louisiana. The investigating authority, Deputy Shane Landry, stated in his narrative that one barge, whose rightful owner was [McDonough] Marine, was later located at the Port of Iberia. Johnny Estis, the owner of the property where the barge was found, informed the authorities that the defendant sold him the barge, in addition to a second barge. The deputy’s narrative reveals that the checks used to purchase the barges were made out to the defendant and bore the defendant’s signature and thumb print. Originally, the defendant entered a plea of not guilty. On July 24, 2007, he withdrew his plea of not guilty and entered a guilty plea. The defendant, as part of the plea, agreed to work with the authorities during them investigation of the theft (to implicate another suspect), and the State agreed to not charge the defendant as a habitual offender.

The trial court ordered that a certified criminal history be produced. On December 11, 2007, it sentenced the defendant to serve nine years at hard labor. The defendant filed a motion to reconsider sentence. Following a contradictory hearing, | ;>,the motion was denied. The defendant appeals his sentence, asserting that his sentence is excessive.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920 , all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331, this court set forth the standard for reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Louisiana Revised Statutes 14:69 provides, in pertinent part:

| ¡¡A. Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.
B. (1) Whoever commits the crime of illegal possession of stolen things, when the value of the things is five hundred dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.

On appeal, the defendant urges that a nine-year sentence is excessive, particularly in light of the fact that he was willing to cooperate with the authorities in investigating others’ involvement in the crime. He argues that he furnished to the investigating authorities the name and phone number of James Gary Howell, a suspect in the theft of the barges. Consequently, the police issued an arrest warrant which was later recalled for lack of evidentiary support. Further, he points to the assistant district attorney’s letter submitted at the sentencing hearing, wherein a suspension of sentence was recommended on the condition that the defendant continue to cooperate with the investigation. The defendant points out that the recommendation was adopted by the new district attorney upon the retirement of the previous attorney.

The trial court took into consideration the defendant’s willingness to work with the authorities, but it ultimately decided that the defendant’s criminal history, which consisted of four previous felony convictions, warranted the imposition of a nine-tyear4 sentence. At the hearing on the motion to reconsider sentence, the defendant argued that the trial court failed to adequately consider the defendant’s cooperation in the police investigation. The trial court stated at this hearing:

What we’ve heard today in support of his motion to reconsider sentence, I suppose, is that he was willing to cooperate with the police in this case. Well, the police officer testified that he told him the name of this other fellow, but the police never received or got from Mr. Pitts or anyone else any evidence that they could get probable cause to get a warrant from [sic] on Mr. Howell. So I don’t see how his willingness to cooperate, assuming he was willing to cooperate, has any real bearing on the case. And the court considered those facts at the initial sentencing. I see nothing today which would indicate that Mr. Pitts did anything that helped the police or the judicial system make cases against anyone else as a result of his arrest and conviction in this case. And of course, I need not say that we have many, many defendants who want to help the police in order to lessen their sentence or lessen what’s going to happen to them. And that’s good, and sometimes people do get convicted based upon that help. But a willingness to help, in the opinion, of this court, with someone with a record such as Mr. Pitts does not carry a whole lot of weight, especially where there’s no results obtained by law enforcement or the court system.

The defendant argues that he “should not be punished more severely because the other parties involved were found and arrested.” (Footnote omitted). Our review of the record reveals that the defendant was sentenced to nine years at hard labor | ^because of his lengthy history of committing similar crimes, not because the defendant’s participation in the investigation produced no results. The trial court sentenced the defendant to one year less than the maximum sentence allowed by statute and imposed no fine. Also, his guilty plea was taken in exchange for the State not charging him as a multiple offender — a benefit that allowed the defendant to avoid exposure to a much longer sentence. La. R.S.16:629.1(A).

On appeal, the defendant also contends that he has children and that he has “the training and capacity to re-enter the work force as a contributing member of society.” However, in light of the aggravating factors discussed by the trial court, we find that the trial court did not abuse its discretion in imposing the nine-year sentence.

DECREE

For the foregoing reasons, the defendant’s nine-year sentence at hard labor, with credit for time served, is affirmed.

AFFIRMED.

      . Louisiana Code of Criminal Procedure Article 920 provides:
      Art. 920. Scope of appellate review
      The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

      . The trial court stated at the sentencing hearing:
      His Criminal History, Certified Criminal History reflects that as a juvenile he was convicted or pled guilty in March of 1978, to Receiving Stolen Things and put on probation. On [sic] May of 1978, he was convicted again of Receiving Stolen Things, a motor cycle, two counts. He was committed to the Department of Corrections, sentence suspended, placed on probation.
      In 1979, as an adult, he was convicted of Simple Burglary in New Orleans, received three years, suspended and three years of probation. It shows that his probation was revoked on October 7, 1982.
      On February 1, 1982, he was charged with Armed Robbery but it was amended to Simple Robbery. He was sentenced to four years hard labor.
      In May of 1984 in Gretna he was convicted of Simple Burglary, two years hard labor.
      His fourth felony conviction was in October of 1997 in Gretna, Unauthorized Entry, two years hard labor, and this conviction is his fifth felony conviction.
      I note that he also has a misdemeanor conviction in December of 1990 in Thibo-deaux for DWI 1st; a misdemeanor conviction in 2002 in Thibodeaux for a DWI 2nd.
      The Court considers his long and extended record back to a juvenile; two cases of receiving stolen things and of course his problems seem to be involved with burglaries and receiving stolen things and alcohol. Since 1978 as a juvenile he's committed the crimes that I have indicated up until today.


author: PETERS, J.

text:
    STATE of Louisiana v. Joseph Anthony ROMERO.
    No. 08-1102.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.
    J. Phil Haney, District Attorney, 16th Judicial District, Walter J. Senette, Jr., Assistant District Attorney, 16th Judicial District, Franklin, LA, for appellee, State of Louisiana.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for defendant/appellant Joseph Anthony Romero.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

|,A jury convicted the defendant, Joseph Anthony Romero, of unauthorized use of a motor vehicle, a violation of La.R.S. 14:68.4, and of aggravated flight from an officer, a violation of La.R.S. 14:108.1. After being sentenced on both offenses, the defendant perfected this appeal. We need not consider the defendant’s assignments of error because we find an error patent on the face of the record that requires us to set aside the convictions and remand the matter to the trial court for further proceedings.

The State of Louisiana charged the defendant in a single bill of information with both offenses, and a six-person jury convicted the defendant of both charges. The maximum incarceration sentence that may be imposed for the offense of unauthorized use of a motor vehicle is ten years with or without hard labor. La.R.S. 14:68.4(33). Based on the potential penalty, that offense is to be tried by a six-person jury, all of whom must concur to reach a verdict. La. Const, art. 1 § 17(A); La.Code Crim.P. art. 782(A). On the other hand, an incarceration sentence of no more than two years at hard labor shall be imposed for aggravated flight from an officer. La. R.S. 14:108.1(E). Based on that potential penalty, that offense is to be tried by a twelve-person jury, ten of whom must concur to reach a verdict. La. Const, art. 1 § 17(A); La.Code Crim.P. art. 782(A).

With regard to joinder of offenses, La. Code Crim.P. art. 493 provides:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses chai'ged, whether felonies or misdemeanors, 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; provided that the offenses joined must be triable by the same mode of trial.

In this matter, it is not disputed that the two offenses charged are based on the same act or transaction. However, La. Code Crim.P. art. 493.2 provides that:

Notwithstanding the provisions of Article 493, offenses 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 added.)

The supreme court, in State v. Jenkins, 406 So.2d 1352, 1353 (La.1981), addressed a situation where the defendant was tried by a jury with fewer jurors than required and, in reversing the conviction, stated in pertinent part:

We have consistently held that the verdict returned by a jury composed of fewer than the correct number of jurors is null. State v. Bennett, 270 So.2d 840 (1972); State v. Cazes, 262 La. 202, 263 So.2d 8 (1972); State v. Crawford, 195 La. 428, 196 So.2d[So.] 921 (1940). Unlike most procedural errors discoverable on the face of the record, La.C.Cr.P. Art. 920(2), decreased jury size necessarily affects the fundamental fairness of proceedings against a criminal accused and hence, mandates reversal of his conviction. Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978); Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979); Cf. State v. White, 404 So.2d 1202 (La.1981). As noted by the Supreme Court in Ballew v. Georgia, supra, 435 U.S. at 242, 98 S.Ct. at 1040:
“Larger juries (size twelve) are preferable to smaller juries (six). They produce longer deliberations, more communication, far better community representation, and, possibly, greater verdict reliability (consistency).” Quoting Saks, Jury Verdicts (1977), p. 107.
|3In recognition of these factors, Art. 1, § 17 [of the 1974 Louisiana Constitution] represents a considered determination that, as the consequences of conviction stiffen, so should the defendant’s procedural safeguards.

DISPOSITION

For the foregoing reasons, we reverse the defendant’s convictions for unauthorized use of a motor vehicle and aggravated flight from an officer and remand the matter to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . After the trial court initially sentenced the defendant on the two offenses, the State of Louisiana charged him as an habitual offender. The trial court vacated the sentences imposed and sentenced the defendant to serve seventy years at hard labor. The habitual offender adjudication and sentence is the subject of a separate appeal in State v. Romero, 08-1201 (La.App. 3 Cir.4/1/09), 5 So.2d 1062.

      . In Jenkins, the defendant had been charged with simple burglary of an inhabited dwelling, an offense requiring a twelve-person jury, but was tried before a six-person jury.


author: SULLIVAN, Judge.

text:
    STATE of Louisiana v. Leroy BREAUX.
    No. 2008-1061.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      Shane K. Hinch, Attorney at Law, Lake Charles, Louisiana, for Defendant/Appellant, Leroy Breaux.
    John F. DeRosier, District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, Louisiana, for State of Louisiana.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

| defendant, Leroy Breaux, was indicted on five counts of aggravated rape, in violation of La.R.S. 14:42. Later, one count of the indictment was nolle prosequied due to the death of the victim. Trial took place on April 15, 2008 through April 17, 2008, following which a twelve-person jury found Defendant guilty as charged on three counts of aggravated rape and guilty of attempted aggravated rape on the remaining count.

A motion for judgment of acquittal filed by Defendant on May 13, 2008 was denied by the trial court without a hearing. On May 14, 2008, Defendant was sentenced to life imprisonment on each count of aggravated rape and fifty years at hard labor for the attempted aggravated rape conviction. The trial court ordered all of the sentences to be served without benefit of probation, parole, and suspension of sentence and to run concurrently with each other. Defendant now appeals on the basis of insufficiency of the evidence.

For the following reasons, we affirm in part, reverse in part, amend in part, and remand with instructions.

FACTS

The indictment charged that: (1) Defendant engaged in sexual intercourse with A.C., between May 1, 1977 and December 31, 1980; (2) Defendant engaged in sexual intercourse with his niece, B.P., between January 1, 1961 and December 31, 1968; (3) Defendant engaged in sexual intercourse with his niece, R.C., between January 1, 1963 and December 31, 1970; and (4) Defendant engaged in sexual intercourse with L.G., between January 1970 and June 1976. At trial, the State |2presented testimony from the victim on each count of aggravated rape; no other evidence was adduced. Each victim testified that Defendant forced them to have sexual intercourse when they were under the age of twelve.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. After review, we have found numerous errors patent.

Between 1950 and September 8, 1977, the penalty for a violation of La.R.S. 14:42 was death. Most of the alleged violations by Defendant occurred during this period.

In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the United States Supreme Court reviewed a murder and two rape cases and held the imposition and carrying out of the death penalty in those three cases constituted cruel and unusual punishment in violation of the eighth and fourteenth amendments.

Thereafter, in State v. Selman, 300 So.2d 467 (La.1974), the Louisiana Supreme Court considered the question of whether amendments to La.Code Crim.P. arts. 814 and 817, relative to qualifying verdicts, made by the legislature after Furman was decided, removed the infirmities in our law which precluded the imposition of the death penalty for aggravated rape in Louisiana since Furman. After discussing the nature of the crime of aggravated rape in light of the eighth and fourteenth amendments of the United States Constitution and with an eye to the infirmities that caused the reversal of the convictions in Furman, we concluded “that |3the death penalty for aggravated rape is not per se cruel and unusual punishment.” Id. at 472.

However, in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), the United States Supreme Court disagreed with the Louisiana Supreme Court and held that the imposition and carrying out of the death penalty for an aggravated rape conviction in Louisiana constituted cruel and unusual punishment.

Consequently, at the time Defendant allegedly committed most of the offensive acts at issue herein, the penalty for these offenses was death (although that penalty could not be carried out at the time of trial). Thus, the question arises as to whether the procedural rules applicable to the prosecution of capital offenses should have been applied in Defendant’s case.

In State v. Rich, 368 So.2d 1083 (La. 1979), the defendant was convicted of aggravated rape which occurred in August 1977. At that time, aggravated rape was a capital crime in Louisiana, but imposition of the death penalty was not legally available in Louisiana. The trial court had refused to sequester the jury, despite the defendant’s request that it be done, and had instructed the jury that ten jurors, rather than twelve, needed to concur in order to reach a.verdict. On review, the supreme court recognized as an error patent the trial judge’s failure to procedurally treat the case as less than that of a capital offense. Accordingly, Rich’s conviction and sentence were reversed, and the matter was remanded for a new trial.

However, in State v. Carter, 362 So.2d 510 (La.1978), the supreme court held differently. The court addressed the issue of misjoinder of aggravated rape (a capital offense at the time of commission of the offenses) with aggravated crime against nature and aggravated burglary (both punishable by confinement necessarily at hard J^labor) because the modes of trial differed and held there was not a misjoinder, explaining, in pertinent part:

The mode of trial is determined by the possible penalty. La. Const. art 1, § 17: State v. McZeal [, on rehearing, 352 So.2d 592 (La.1977) ], supra. Whereas aggravated rape, prior to the effective date of Act 343 of 1977, as a capital offense, was triable before a jury of twelve persons, all of whom must concur to render a verdict, the offense is now punishable by confinement necessarily at hai’d labor and is therefore triable before a jury of twelve persons, ten of whom must concur to render a verdict. Hence, the mode of trial for aggravated rape was changed as a result of the amendment to its penalty provision. Moreover, this change is procedural in nature. State v. McZeal, supra; State v. Holmes, 263 La. 685, 269 So.2d 207 (1972). A procedural change which does not affect an accused’s substantive rights in the prosecution of a criminal offense is applicable to the trial of the offense after the effective date of the change even though the particular offense was committed prior to that date.

Id. at 513 (emphasis added) (footnote omitted).

In State v. Williams, 372 So.2d 559 (La.1979), the supreme court discussed the split in the court in the holdings of Rich and Carter and held:

The writ is denied. On reconsideration of the common problem in State of Louisiana v. Dave Carter, 362 So.2d 510 (La.1978) and State of La. v. Rich, 368 So.2d 1083, 1979[sic], a majority of the court has decided that the better treatment is found in State v. Rich. The unanimous verdict, the sequestration of the jury and other safeguards erected by statute for capital cases are too important to permit them to be retroactively erased. Therefore, the jury in an aggravated rape case, when the rape occurred prior to September 9, 1977, the effective date of Act 343 of 1977, should return a unanimous verdict.

Id. at 560 (emphasis added).

In State v. Goodley, 398 So.2d 1068 (La.1981), the defendant was charged with first degree murder. The jury returned a responsive verdict of manslaughter, with ten of the twelve jurors concurring in the verdict. On error patent review, the supreme court reviewed whether or not the non-unanimous verdict was valid and held in pertinent part:

| ,-,The Legislature, in enacting the controlling provision herein, relied on the severity of the punishment provided for a crime as the basis for its classification scheme in providing the number of jurors which must compose a jury and the number of jurors which' must concur to render a verdict....
Thus, the Legislature determined that for crimes that were so serious as to validly carry the death penalty, certain special procedural rules were additionally required, among which was the requirement of a unanimous jury to render a verdict. This determination is not based on an after the fact examination of what crime the defendant may eventually be convicted of, nor is it based on an after the fact examination of what sentence he receives. Rather, the scheme is based on a determination by the Legislature that certain crimes are so serious that they require more strict procedural safeguards than other less serious crimes. It was determined that in charged capital offenses a unanimous verdict for conviction, not just sentencing, is necessary and there is no attendant provision giving the state the authority to alter that scheme on its own motion by simply stipulating that the death penalty ivill not be sought in a certain case.
[W]e find that a unanimous jury is required in a case where the defendant is being prosecuted under an unamended charge of first degree murder, a capital offense, to render any verdict, notwithstanding the fact that the state may have stipulated that it would not seek the death penalty.

Id. at 1070-71 (emphasis added) (footnote omitted). In footnote four of the opinion, the court stated:

This Court considered a similar issue in State v. Jones, 385 So.2d 786 (La.1980)[,] and in a brief per curiam writ grant in response to a pre-trial wilt application recited that the “(c)rime of aggravated kidnapping is not capital, nor is it capital for procedural purposes.” However, Jones is distinguishable from the case under consideration because Jones involved a situation where the death penalty provision had been declared unconstitutional, whereas here the death penalty provision is valid and enforceable, making first degree murder “a criminal case in which the punishment may be capital.”

Id. at 1071.

In State v. Self, 98-39 (La.App. 3 Cir. 8/19/98), 719 So.2d 100, writ denied, 98-2454 (La.1/8/99), 734 So.2d 1229, this court referred to Jones. In Self, the defendant hwas charged with committing aggravated rape of a child under the age of twelve between June 1995 and March 1996. At that time, the Legislature had again amended La.R.S. 14:42 to provide the penalty was death, but the state waived the option of pursuing the death penalty. On appeal, this court addressed whether the trial court erred in instructing the jury that they were required to reach a verdict of ten out of twelve rather than a unanimous verdict as required for capital cases under La.Code Crim.P. art. 782 and whether the trial court erred in accepting the jury’s non-unanimous verdict of eleven to one. Citing Goodley, this court held that because the death penalty was applicable at the time the defendant committed the act, the capital procedural rule of a unanimous jury applied. We further noted that the court in Goodley distinguished Jones based on the fact that Jones dealt with an offense wherein the death penalty had been declared unconstitutional.

In State v. Schrader, 518 So.2d 1024 (La.1988), cert. denied, 498 U.S. 903, 111 S.Ct. 265, 112 L.Ed.2d 221 (1990), the supreme court appeared to back away from footnote number four in Goodley which distinguished Jones. In Schrader, the defendant was charged with first degree murder, and the jury returned a responsive verdict of manslaughter. On error patent review, it was discovered that the jury had not been sequestered even though the charge was classified as a capital offense. The court stated, in pertinent part:

We now hold, despite its long lineage, the jurisprudential presumption of prejudice for “capital cases” does not apply to a “capital case” where the defendant never faced the prospect of the death penalty and where counsel failed to press the point in the trial court, or object to the lack of sequestration. In the absence of actual prejudice, this right to sequestration is waived.
|7In the present case the defendant did not object to the lack of sequestration. Moreover, the potential impact on the fairness of the proceedings was no greater than for non-capital cases. It is true that the case remained “capital” under the procedural classification of our statutes; however, it was in fact not capital in the sense of the cases such as State v. Parker, 372 So.2d 1037, 1038 (La.1979) and State v. Luquette, 275 So.2d 396 (La.1973) wherein this court presumed prejudice. That is, the defendant did not face the death penalty, nor did the jury face the heightened pressure inherent in having to consider the death penalty. Accordingly, the failure to sequester the jury in this case was not reversible error.

Id. at 1037-38.

In State v. Marcantel, 98-825 (La.App. 3 Cir. 12/22/99), 756 So.2d 366, writ denied, 00-208 (La.8/31/00), 766 So.2d 1274, the defendant was charged with having committed aggravated rape of a victim under the age of twelve in 1996. On error patent review, this court addressed the issue of whether the jurors were sequestered from the moment they were sworn, as required by La.Code CrimJP. art. 791(B) in capital cases. This court explained, in pertinent part:

Although the State did not seek the death penalty, the case retained its capital classification for procedural purposes. State v. Schrader, 518 So.2d 1024 (La.1988), cert. denied, 498 U.S. 903, 111 S.Ct. 265, 112 L.Ed.2d 221 (1990). The charge, aggravated rape of a child under twelve, is punishable by death or life imprisonment. The record does not tell us why the State chose not to seek the death penalty. It is possible that the State or the trial court was under the belief that the death penalty had been declared unconstitutional.
The present case is distinguishable from Schrader because the death penalty in the present case was ruled unconstitutional by district courts rather than by the United States Supreme Court. Additionally, the State’s reason for not seeking the death penalty is unclear. Nevertheless, because the Defendant was not exposed to the death penalty, did not object to the lack of sequestration, and does not allege on appeal that he was prejudiced by the lack of sequestration, we find that the lack of sequestration (if the jury was in fact not sequestered) was harmless error.

Id. at 368-69.

| ^Additionally, in State v. Smith, 01-1027 (La.App. 1 Cir. 2/15/02), 809 So.2d 556, the defendant was charged with having committed aggravated rape of a juvenile under the age of twelve in November 1976. In his writ application, the defendant argued that the trial court erred in denying his motion to quash indictment because the statute of limitations had run. More specifically, he argued that “because the death penalty for the aggravated rape statute in effect on the date of the offense had been declared unconstitutional, the offense was not a capital offense and, thus, the unlimited prescriptive period of La.Code Crim.P. art. 571 for instituting prosecution in capital cases did not apply.” Id. at 561. On writ of review, the appellate court held in pertinent part:

[Ajlthough the death penalty may not be imposed in the instant case, article 571 still applies and there is no prescriptive period for the aggravated rape charge. Because the unlimited prescriptive period for capital cases applies, the court did not err when it denied the “motion to quash indictment because of running of statute of limitations.”

Id. at 562.

In light of the foregoing, we conclude that the px*ocedural rules for capital cases, such as unanimous jury and sequestration of the jury, should have been applied in this case.

Sequestration of the Jury

Louisiana Code of Criminal Procedure Article 791(B) provides, “[i]n capital cases, after each juror is sworn he shall be sequestered, unless the state and the defense have jointly moved that the jury not be sequestered.” A review of the record does not indicate whether the trial court sequestered the jury or whether the parties moved to not have the jury sequestered. However, Defendant did not object at trial for failure to sequester, and he did not assign this issue on appeal. Nevertheless, this 1 scourt has recognized this error as an error patent and applied the harmless error analysis. Schrader, 518 So.2d 1024; Marcantel, 756 So.2d 366; State v. D.T., 08-814 (La.App. 3 Cir. 12/11/08), 998 So.2d 1258.

As noted above, the:

[Pjresumption of prejudice for “capital cases” does not apply to a “capital case” where the defendant never faced the prospect of the death penalty and where counsel failed to press the point in the trial court, or object to the lack of sequestration. In the absence of actual prejudice, this right to sequestration is waived.

Schrader, 518 So.2d at 1037. See also, Marcantel, 756 So.2d 366.

In this case, the death penalty could not be imposed, and the State did not seek it. Additionally, Defendant fails to assign this error in his appeal, and he fails to allege or prove any prejudice suffered by this possible error. Accordingly, we conclude that this error is harmless.

Unanimous Jury

Louisiana Code of Criminal Procedure Article 782(A) (emphasis added) provides in pertinent part, “[e]ases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict.”

Defendant was charged, with having committed the offensive acts against A.C. between May 1, 1977 and December 31, 1980. Between May 1, 1977 and September 8, 1977, the penalty for aggravated rape was death. Effective September 9, 1977, La.R.S. 14:42 was amended to provide a penalty of “life imprisonment without benefit of parole, probation, or suspension of sentence.” 1977 La. Acts No. 343, § 1. Consequently, any offensive acts committed by Defendant between May 1, 1977 and September 8, 1977, would be classified as capital requiring a unanimous verdict; whereas, any offensive acts committed by Defendant after September 9, 1977 to | ipDecember 1980 would only require a verdict of ten out of twelve jurors. However, because on the face of the bill of indictment some of the allegations subjected Defendant to the penalty of death, we conclude that a unanimous verdict was required. See Self, 719 So.2d 100.

As to the charge of aggravated rape of A.C., the polling of the jury indicated a verdict of ten to two in favor of finding Defendant guilty. In capital cases where the trial court erred in accepting a non-unanimous verdict by the jury, the conviction has been reversed. See Self, 719 So.2d 100, Goodley, 398 So.2d 1068, and Williams, 372 So.2d 559. Consequently, because the jury failed to render a unanimous verdict, Defendant’s conviction on the charge of aggravated rape of A.C. is reversed, the sentence is vacated and set aside, and the matter remanded to the trial court for further proceedings.

Illegal Sentences

At the sentencing hearing, the trial court imposed the following sentences:

However, the law is very clear that under the three counts of aggravated rape, the sentence for those is life imprisonment. And this Court recognizes and so sentences Mr. Breaux on each one of those to life imprisonment, concurrent with each other.
On the attempted aggravated rape, this Court sentences Mr. Breaux to 50 years Department of Corrections, concurrent with the life sentences.
Yes, that is without benefit of probation, parole or suspension of sentence.

|nWe are of the opinion that the trial court imposed each of Defendant’s sentences without the benefit of probation, parole, or suspension of sentence.

Attempted Aggravated Rape ofB.P.

The jury found Defendant guilty of attempted aggravated rape of B.P., which the State alleged was committed between January 1961 and December 1968. The evidence presented at trial indicated that the offenses occurred between 1961 and 1963. During this time period, La.R.S. 14:27(D)(1) provided that the penalty for attempted aggravated rape was not more than twenty years, and it did not provide for the sentence to be served without the benefit of probation, parole, or suspension. Consequently, the trial court imposed an illegally excessive sentence.

Accordingly, Defendant’s sentence for the attempted aggravated rape of B.P. is vacated and the matter is remanded to the trial court for resentencing.

Aggravated Rapes ofR.C. and L.G.

Defendant was convicted of the aggravated rapes of R.C. and L.G. and sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence on each conviction. The evidence presented at trial indicated that the offensive acts against R.C. occurred from 1961 to 1964 and that some of the offensive acts against L.G. occurred from 1970 to 1971.

Between 1961 and 1971, death was the statutory penalty for aggravated rape, although that penalty could not be imposed at the time of Defendant’s trial. Additionally, a jury was authorized to return a verdict of either guilty, guilty without capital punishment, guilty of attempted aggravated rape, guilty of simple rape, or not 112guilty. La.Code Crim.P. art. 814 (1950). Furthermore, former La.R.S. 15:409 (codified in 1966, effective January 1, 1967, to La.Code Crim.P. art. 817) provided in pertinent part, “[i]n a capital case the jury may qualify its verdict of guilty with the addition of the words ‘without capital punishment,’ in which case the punishment shall be imprisonment at hard labor for life.” In State v. Batiste, 371 So.2d 1164 (La.1979), the court addressed the proper sentence for a defendant convicted of aggravated rape when the penalty of death could not be constitutionally imposed, explaining in pertinent part:

We find, however, an error patent in the sentence imposed. At the time the offense was committed (1970), death was the statutory penalty for rape. The jury was authorized to return a verdict of either guilty, guilty without capital punishment, guilty of attempted aggravated rape, guilty of simple rape, or not guilty. La.C.Cr.P. art. 814 (1950). The defendant was not tried until 1973, however, after the Supreme Court had declared unconstitutional the procedure by which the death penalty was imposed in Louisiana. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In the defendant’s case the jury returned a verdict of guilty as charged. As the death penalty could not be imposed, the proper sentence is life imprisonment. State v. Quinn, 288 So.2d 605 (La.1974); State v. Franklin, 263 La. 344, 268 So.2d 249 (1972). We note that this will restore to the defendant the possibility of parole, probation, suspension or commutation of sentence.

Id. at 1165. See also, State v. Craig, 340 So.2d 191 (La.1976). Consequently, the proper sentence on each of these sentences was life imprisonment at hard labor. However, at the time of the commission of these offenses, there was no prohibition in La. Code Crim.P. arts. 814 or 817 (former La.R.S. 15:409) regarding the benefits of probation, parole, or suspension of sentence. Thus, we conclude that the trial | iscourt erred in imposing these sentences without the benefit of probation, parole, or suspension of sentence. Accordingly, Defendant’s sentences imposed for the convictions of aggravated rape of R.C. and L.G. are amended to delete the portion of the sentences to be served without benefits. The trial court is instructed to note the amendments in the court minutes.

ANALYSIS

Defendant contends that the evidence was insufficient to support his convictions of aggravated rape and the conviction of attempted aggravated rape.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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 ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983). To obtain a conviction, the elements of the crime must be proven beyond a reasonable doubt.

State v. Freeman, 01-997, pp. 2-3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580. Furthermore:

In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Johnson, 00-1552 (La.App. 5 Cir. 3/28/01) 783 So.2d 520, 527, writ denied, 01-1190 (La.3/22/02), 811 So.2d 921. The question of the credibility of the witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Id. The credibility of the witnesses will not be re-weighed on appeal. Id.

State v. Dixon, 04-1019, p. 12 (La.App. 5 Cir. 3/15/05), 900 So.2d 929, 936.

114Pefendant was convicted of aggravated rape occurring between the years of 1961 and 1971. During that time, La.R.S. 14:42 defined aggravated rape as follows:

Aggravated rape is a rape committed where the sexual intercourse is deemed to be without the lawful consent of the female because it is committed under any one or more of the following circumstances:
(3) Where she is under the age of twelve years. Lack of knowledge of the female’s age shall not be a defense.

State v. Miller, 237 La. 266, 111 So.2d 108, 111 (1959).

Aggravated Rape of A.C.

Because we have reversed and set aside Defendant’s conviction and sentence with regard to A.C., we do not address the merits of Defendant’s claim as it relates to the conviction of aggravated rape against A.C.

Attempted Aggravated Rape of B.P.

The victim, B.P., was born on March 8, 1957. She testified that Defendant, her uncle, touched her vagina with his hands and his penis when she was between the ages of four and six years old. In particular, she stated, “I remember him doing things to me that made me feel bad about myself.” B.P. testified that her earliest memory of these events occurred while she was riding in a car with Defendant when she was about four or five years old. She was sitting on Defendant’s lap while he was driving and that he touched her vagina with his hands. B.P. also testified about an incident that occurred in Defendant’s bedroom when she was six or seven years old. B.P. stated that she remembered Defendant putting on a condom, lubricating it with his saliva, and then inserting his penis into her vagina. She remembered Defendant | ^taking the condom off and “seeing white liquid in it after he was done.” B.P. testified that during this incident she was standing with her back against Defendant’s bedroom wall and that she believed Defendant was also standing.

Next, B.P. testified about an occasion where Defendant penetrated her a second time. She stated that this incident occurred in an old barn behind Defendant’s house when she was about five years old. With respect to this particular incident, B.P. testified that Defendant touched her inappropriately and penetrated her. Although she remembered him using a condom, she could not say whether Defendant ejaculated, as she did not remember seeing any white liquid in the condom. She testified that Defendant was standing during the rape. B.P. also stated that she remembered being sore. B.P. testified that she had no recollection of any other incidents of abuse.

On appeal, Defendant argues that B.P.’s testimony is “insufficient to prove beyond a reasonable doubt that the Defendant had the specific intent to penetrate an act of anal or vaginal intercourse” and that she was under the age of twelve at the time of the alleged offense. Defendant contends that if we rely on B.P.’s testimony, it would have been physically impossible for him to have penetrated her. B.P. testified that, during both incidents of rape, Defendant was in the standing position. Thus, Defendant contends that it is impossible for a grown man to have penetrated a five or six-year-old girl while both parties were standing.

Defendant also contends that B.P.’s testimony is unreliable. He points out that B.P.’s testimony is strikingly similar to the testimony of her cousin, R.C. Defendant further notes that “the only evidence of penetration is B.P.’s testimony that she remembers being sore.” Based on this observation and B.P.’s testimony that she has |! (¡“blocked out” most of her memory of any abuse, Defendant contends that B.P.’s testimony about the penetration is unreliable.

These assertions are an attack on the victim’s credibility, which is outside the purview of this court. See Freeman, 801 So.2d 578; Dixon, 900 So.2d 929. The jury in this case returned the responsive verdict of attempted aggravated rape, which is permissible under La.R.S. 14:27(C). This court has stated that “[s]uch a compromise verdict is permissible ‘so long as the evidence supports either the verdict given or the original charge.’ ” State v. Perkins, 07-423, p. 5 (La.App. 3 Cir. 10/31/07), 968 So.2d 1178, 1182, writ denied, 07-2408 (La.5/9/08), 980 So.2d 688 (quoting State v. Charles, 00-1611, p. 5 (La.App. 3 Cir. 5/9/01), 787 So.2d 516, 519, writ denied, 01-1554 (La.4/19/02), 813 So.2d 420).

B.P.’s testimony revealed that when she was six years old, Defendant put on a condom, lubricated it with his saliva, and then inserted his penis into her vagina. B.P. also testified that Defendant penetrated her in an old barn behind Defendant’s house when she was five years old and that she remembered being sore after-wards. We conclude that B.P.’s testimony is sufficient to prove the elements of aggravated rape beyond a reasonable doubt.

Aggravated Rape of R.C.

R.C. testified that she was born on December 17, 1957, and that Defendant is her uncle. R.C. testified about her earliest memories of Defendant, stating that as a young child she visited her uncle on a weekly basis and that he often asked her to help him clean his home. She testified that she went to Defendant’s house “[pjrobably every weekend.” She further testified that Defendant began molesting and raping her when she was four years old.

h7R.C. testified that Defendant would sit her on his lap and go under her dress to touch her private areas. She explained that he would use his hands and his penis to touch her “privates.” She further explained that Defendant often rubbed his penis on her vagina. R.C. testified that these events usually took place at Defendant’s home but that it also happened in his car. She explained that Defendant would sit her on his lap and allow her to drive his car.

R.C. also testified about the first time Defendant penetrated her, stating:

Q. Can you tell us how old you were and what’s your first memory of him doing more than touching?
A. I was four years old.
Q. Okay. And tell us what you remember.
A. Well, we had our little shack, and then we had another little building that was very, very small and it was behind our home. And we put an extra bed out there, and some of the kids occasionally would sleep out there. He took me in there, there was nothing but a bed and refrigerator, and he stood me with my back against the refrigerator and he took his penis and put it on my vagina and pushed and pushed.
And I just remember that it hurt badly, and I just remember that when I pee-peed later or when I went to sit down I was very sore. And I hurt very badly.
Q. Your back is against the refrigerator.
A. Yes, ma’am.
Q. Okay. What position is his body in? A. He was squatted, he was crouched down, like squatting down.
Q. Did you have panties on?
A. Yes, ma’am, I did.
Q. Okay. And were the panties removed?
| |SA. No. They were pulled down, but they were not removed.
Q. Okay. And you said then he began to squat down?
A. Yes, ma’am, he did.
Q. And what did he do with you to attempt to penetrate you as you described earlier?
A. He took out a condom and lubricated it, and put a condom on and pushed very hardly.
Q. Did he gain entry into you?
A. Yes, ma’am, he did.
Q. Okay. How much entry—
A. I don’t know.
Q. Okay
A. But I know that because of the pain I felt, and as an adult now looking back I know that he did, because I was very sore, and I hurt terribly.
Q. As an adult now looking back on that incident did he ejaculate?
A. Yes, ma’am, he did.
Q. What did you see?
A. I saw white, milky stuff in the condom, and I didn’t know what that was at that time, and now I do.

R.C. also testified about another occasion where she was abused by Defendant. R.C. testified that on the weekends, she and several of her siblings would spend the night at Defendant’s house, and she remembered Defendant doing things to her during the night. R.C. testified as follows:

Q. Now, when you would go and spend the weekends who would sleep where?
A. There were two beds in the room. One faced — they ran perpendicular to each other. One faced this way and one faced this way. _L¡gAnd [Defendant] would keep the room so dark you couldn’t see your hand in front of you.
And ... because I was young, I don’t remember if he had something to coat— besides the window coverings — something to coat the actual glass. But you couldn’t see a thing. And he would always put me in the one bed that would run parallel with you and the other bed ran parallel with the jury.
Q. Okay. And who would be in the other bed?
A. My siblings.
Q. And can you tell us what would happen when you would be in your uncle’s bed?
A. Yes, ma’am. He would lay flat on his back and he would put me on top of him, and he would push until he could gain entry, partial entry.
Q. And what were your brothers doing at the time?
A. They were sleeping. They didn’t have a clue. It was dark. You couldn’t see your hand in front of you.
Q. And I need you to explain to the jury when he’d put you on top of him what happened?
A. He’d take his penis and rub it on my vagina, and he would push, and he would ejaculate. And he always used a condom.

On appeal, Defendant attacks R.C.’s testimony by asserting that the memory of a fifty-year-old woman is unreliable as it relates to events that happened when she was four years old. Defendant also contends that it is physically impossible for the rape to have occurred in the manner described by the victim. R.C. testified that her uncle raped her while she was standing with her back against the refrigerator and that he was squatting down. Defendant contends that it is impossible for a grown man to rape a four-year-old girl while only squatting down.

PnAgain, these contentions are essentially challenges against the victim’s credibility, which is outside the purview of this court. Given that the testimony of the victim alone is sufficient to support a conviction, the jury’s decision to believe the victim’s testimony was justified. R.C.’s testimony established all of the elements of aggravated rape. R.C. testified that she was between the ages of four and seven when the offenses occurred. She testified that Defendant rubbed his penis against her vagina. R.C. also stated, “[h]e would lay flat on his back and he would put me on top of him, and he would push until he could gain entry, partial entry.” Citing State v. Allen, 02-593 (La.App. 3 Cir. 11/6/02), 830 So.2d 606, the State points out that even slight penetration of the female genitalia’s external features is sufficient proof of the crime of aggravated rape. We conclude that the evidence is sufficient to sustain Defendant’s conviction of aggravated rape against R.C.

Aggravated Rape of L.G,

L.G. testified that she was born on March 29, 1962. Defendant was a friend of her family and a frequent visitor of her home when she was a child. L.G. testified that she and her two younger sisters began going to Defendant’s home to clean it when she six or seven years old. She testified that Defendant instructed them to dust certain items and would allow them to keep the pennies and nickels they found lying around the house. She further testified that Defendant would gradually try to get them into the bedroom.

L.G. testified that she was “about 8 or 9 years old whenever he really started touching me.” She explained that Defendant would fondle her and touch her “private spots.” L.G. stated, “[h]e would touch my vagina with his fingers[,] and he’d touch my breasts because, I guess, it turned him on or whatever.” L.G. explained that these | ¿incidents took place in Defendant’s bedroom. L.G. also testified that Defendant penetrated her. When asked if she knew how old she was the first time she was penetrated by Defendant, L.G. testified that she could not remember the exact age because she was being molested by someone else at the same time. She stated that it lasted until she became pregnant when she was thirteen years old.

When asked to describe the first time that she was penetrated by Defendant, L.G. stated, “I just remember him getting on top of me and — all I can remember is him getting on top of me and putting it in — putting his penis in my vagina.” L.G. further testified that the rapes occurred on the bed in Defendant’s bedroom. She also stated that “there was a bathtub up in the corner where he would keep water in a pan for us to be able to wash up after-wards.” L.G. stated that “it hurt the first time.”

L.G. explained that while she was in the bedroom with Defendant, her sisters were in the front room and the kitchen of Defendant’s home. She further explained that after Defendant raped her in the bedroom, the two of them would make the bed so that her sisters would think they had been cleaning the bedroom. L.G. testified that she went to Defendant’s home nearly every weekend and that the abuse did not stop until she got pregnant at the age of thirteen. L.G. testified that her mother knew about the abuse but that she still allowed her and her sisters to go to Defendant’s house. She testified that she did not tell her father because he was a “high tempered man.”

L.G. testified that, after the first incident of rape, she had sexual intercourse with Defendant about three or four times a month, as she went to his house almost every weekend. When asked about whether she ever confronted Defendant, L.G. testified:

A. Not really, not til — let’s see, I’m gonna say probably eight months to a year ago. It was just last year for sure. I have a 31 year LJold] daughter and at the time I didn’t know if it [sic] was his or if her biological father was dead.
So I went up to [Defendant], and I asked him if he would do a DNA. He said yes. And I said, well, — he said it would be countless to do it, no sense in doing it. And I didn’t know why he said that, but I mean—
A. He — I asked him if he’d do a DNA and he said yes. And I said, “Well, what would you do if it shows to be, if she shows to be your daughter?”
He said, “I’d take care of y’all.” Thank God she doesn’t have to walk around and say that that’s her daddy, but he’s not. But he did say he would
take care of us if it showed him to be the father.

L.G. testified that she was positive that she was younger than twelve years old when Defendant initially had sexual intercourse with her. She also stated that she never mentioned Defendant’s name to anyone after learning she was pregnant but that she once admitted to her father that another man had been raping her.

On appeal, Defendant contends that the State presented no evidence to corroborate L.G.’s testimony that she had a baby at the age of fourteen. Defendant also points out that no evidence was presented to corroborate L.G.’s testimony regarding her discussion with Defendant about having a DNA test performed to determine the paternity of her daughter. Defendant contends that the “only evidence in the record is the results of a DNA test performed by the State pursuant to a motion to produce physical evidence.”

Defendant only challenges the credibility of the L.G.’s testimony; he fails to point to any irreconcilable conflict or inconsistency within her testimony. Further, L.G. testified that Defendant began raping her when she was eight or nine years old. She testified that he got on top of her and put his penis in her vagina. She also stated 12:;that it hurt the first time. Given that the victim’s testimony alone is sufficient to support a conviction, we find that L.G.’s testimony establishes all the required elements of aggravated rape.

DECREE

Defendant’s conviction and sentence of aggravated rape against A.C. is reversed and set aside, and the matter is remanded to the trial court for further proceedings consistent with this opinion. Defendant’s conviction of attempted aggravated rape against B.P. and the convictions of aggravated rape against R.C. and L.G. are affirmed. However, Defendant’s sentence imposed for the conviction of attempted aggravated rape of B.P. is vacated, and the matter is remanded to the trial court for resentencing. Furthermore, Defendant’s sentences imposed for the convictions of the aggravated rape of R.C. and L.G. are amended, deleting the provision that the sentences are to be served without the benefit of probation, parole, or suspension of sentence. The trial court is instructed to note the amendment in the court minutes.

AFFIRMED IN PART; REVERSED IN PART; AMENDED IN PART; AND REMANDED WITH INSTRUCTIONS.

      . The initials of the victims are used in compliance with La.R.S. 46:1844(W).

      . Effective September 9, 1977, La.R.S. 14:42 was amended to provide a penalty of life imprisonment without the benefit of parole, probation, or suspension of sentence. 1977 La. Acts No. 343, § 1.

      . A verdict returned by a jury composed of fewer than the correct number of jurors required by law is null. See State v. Jenkins, 406 So.2d 1352 (La.1981); State v. Young, 06-234 (La.App. 1 Cir. 9/15/06), 943 So.2d 1118, writ denied, 06-2488 (La.5/4/07), 956 So.2d 606.

      . Louisiana Revised Statutes 14:27(D)(1) was amended, effective September 12, 1975, to change the penalty to not more than fifty years. 1975 La. Acts No. 132, § 1. In 1995, the legislature again amended La.R.S. 14:27(D)(1) to provide a penalty of not less than ten and not more than fifty years without the benefit of parole, probation, or suspension of sentence. 1995 La. Acts No. 988, § 1.

      . Louisiana Code of Criminal Procedure Article 814 was amended, effective July 2, 1973, deleting the responsive verdict of "guilty without capital punishment’’ to the charge of aggravated rape. 1973 La. Acts No. 126.

      . Louisiana Code of Criminal Procedure Article 817 was amended, effective July 1972, to allow a jury, in a capital case, to choose to impose a penalty of life imprisonment without the benefit of parole, probation, commutation, or suspension of sentence. 1972 La. Acts No. 502, § 1.

      . We quote the statute as it existed in 1950. The statute was changed in 1975 by Act 612, which amended and reenacted Title 14, § 42 of the Louisiana Revised Statutes of 1950.