author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Bobby Ray INGRAM, II, Appellant.
    No. 45,546-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.

      Barham, Warner, Stroud & McKay, by Ansel M. Stroud, III, Wiener, Weiss & Madison, Shreveport, LA, by M. Allyn Stroud, Kyle M. Robinson, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, C. Sherburne Sentell, III, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

1 ¶Bobby Ray Ingram, II, appeals his conviction and sentence by the 26th Judicial District Court, Parish of Webster, State of Louisiana. Previously, we remanded the case to the trial court for the reasons stated in State v. Ingram, 45,546 (La. App.2d Cir.09/22/10), 47 So.3d 1127 (“Ingram I ”). However, our decision was reversed by the Louisiana Supreme Court and remanded for a determination on Ingram’s remaining assignments of error in State v. Ingram, 2010-2274 (La.03/25/11), 57 So.3d 299 (“Ingram II ”). For the following reasons, we affirm Ingram’s conviction and sentence.

Facts

The substantive facts in the case have been reported twice in detail in Ingram I and Ingram II and will not be repeated herein. However, a brief synopsis of the facts follows.

On the afternoon of October 18, 2006, Ingram’s ex-wife, Kimberly “Kim” Ingram, entered Ingram’s home uninvited and was engaged in a brawl on the floor by his front door with his current wife, Nancy. In the scuffle, Ingram shot and killed the unarmed Kim with his hunting rifle. Ingram was charged with second degree murder. Ingram’s first trial ended in a mistrial due to a medical emergency of one of his attorneys. At the conclusion of his second trial, by a vote of 10-2, the jury voted to convict Ingram of manslaughter.

After the trial court denied Ingram’s motion for new trial, a sentencing hearing was held, at which the trial court indicated that it had reviewed the presentence investigation report prepared in this matter along |2with various letters, including a letter from Ingram, and a presentence memo from the defense. The trial court sentenced Ingram to serve 28 years’ imprisonment at hard labor, and Ingram subsequently filed a motion to reconsider sentence. The trial court denied the motion, and Ingram’s appeal ensued.

Discussion

Sufficiency of the Evidence

In his first assignment of error, Ingram submits that the evidence was insufficient to support a verdict of manslaughter because the State failed to prove beyond a reasonable doubt that Kim was not engaged in an unlawful forcible entry of the Ingram residence at the time the homicide occurred. He argues that because Kim had made a forcible entry into his home, his use of lethal force in response was presumed to be reasonable, so the State did not carry its burden of proving his guilt beyond a reasonable doubt. We disagree.

Ingram was convicted of manslaughter, which is defined in La. R.S. 14:31 as:

A. (1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to [¡¡manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed....

However, from the outset of these proceedings, Ingram contended that his actions were justified as a lawful reaction to Kim’s conduct immediately prior to the shooting.

The law does not punish the use of force, even deadly force, when the circumstances show that the use of force was justified. Louisiana R.S. 14:18 provides, in part:

The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances:
(7) When the offender’s conduct is in defense of persons or of property under any of the circumstances described in Articles 19 through 22.

Louisiana R.S. 14:20 sets out the law in cases where the use of force or violence in defense results in a homicide. That statute, which has recently been supplemented and clarified by the legislature, outlines a number of scenarios where a homicide is justifiable. Ingram argues that his conduct was justified under the provisions of La. R.S. 14:20(A), which provides in pertinent part:

A homicide is justifiable:
⅜ i|: * sj: ⅜ *
(4)(a) When committed by a person lawfully inside a dwelling ... against a person who is attempting to make an unlawful entry into the dwelling ... or who has made an unlawful entry into the dwelling ... and the person committing [4the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises.... (Emphasis added).

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.04/02/97), 691 So.2d 347, writ denied, 1997-1203 (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; State v. Tate, 2001-1658 (La.05/23/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). When the defense of self or others is claimed by a defendant, the State has the burden of proving that the homicide was not perpetrated in self-defense. State v. Reed, 45,237 (La.App.2d Cir.05/26/10), 37 So.3d 1116.

| Jn the instant case, the critical items of proof under La. R.S. 14:20(A)(4)(a) are whether (i) Kim was attempting to or had made an unlawful entry into Ingram’s home, and (ii) Ingram reasonably believed that the use of deadly force was necessary to prevent Kim from entering or to compel her to leave. Both elements need to be present in order to support a finding that Ingram was indeed justified in killing Kim.

Was the entry into the defendant’s home unlawful?

In response to Ingram’s post-verdict motions, the trial court concluded that the jury must have found that Kim’s entry into Ingram’s residence was not unlawful, i.e., the jury believed Kim legally entered Ingram’s home. To reach that conclusion, the trial court relied on Nancy’s admission that she told Kim to “come on down the driveway” before Kim entered the house. Because in this criminal case the jury made no specific findings of fact, the record does not reflect the jury’s determination on this particular question of fact. However, even viewing the evidence in the light most favorable to the State (as we are compelled to do) and completely discounting the testimony of Nancy and Ingram, the evidence tends to show that Kim was not making a lawful entry into the Ingrams’ residence. Kim drove her car through the defendant’s front yard, skidded her car to a stop only feet from his front door, and left her belongings in her car with the door open as she came to the front door. Even if Nancy had agreed to engage in fisticuffs with Kim by telling her to “come on down the driveway,” her agreement would not render Kim’s entry into the home lawful under these circumstances where the purported invitation did not | (¡extend to permission for Kim to enter into the house. More importantly, there was no evidence that Ingram knew or had reason to believe that Nancy had invited Kim into the home for any purpose. Even in the light most favorable to the State, it did not prove beyond a reasonable doubt that Kim’s entry into the home was lawful.

Was the use of deadly force necessary?

Although Kim’s entry into the home may have been unlawful, in order to show justifiable homicide under La. R.S. 14:20(A)(4)(a), the State must show that Ingram was unreasonable to believe that the use of deadly force was necessary either to prevent Kim from entering or to compel her to leave. This is where Ingram’s defense falls short. Ingram argues that he was entitled to rely on the presumption of reasonableness he states is provided in La. R.S. 14:20(B), because the evidence showed that Kim had unlawfully and forcibly entered his home and that he knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred. He further argues that the jury was required to conclude that his use of deadly force was reasonable because of the operation of the presumption. We disagree.

The justifiable homicide statute allows a presumption of reasonableness in certain circumstances. Louisiana R.S. 14:20(B) provides:

For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling ... held a reasonable belief that the use of deadly force was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises ..., if both of the following occur:
|,(1) The person against whom deadly force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling....
(2) The person who used deadly force knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.

The term “presumption” is undefined in La. R.S. 14:20 and appears sparingly in Title 14 of the Revised Statutes. Louisiana R.S. 14:19 and 14:20 both use the term in conjunction with justification for the use of force to prevent or repel an unlawful entry. These statutes do not include the adjective “rebuttable” before the word “presumption,” and both statutes say that, under the listed circumstances, there “shall” be a presumption that the defendant had a reasonable belief that the use of deadly force was necessary.

Black’s Law Dictionary (9th ed.2009) defines presumption as:

A legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts. Most presumptions are rules of evidence calling for a certain result in a given case unless the adversely affected party overcomes it with other evidence. A presumption shifts the burden of production or persuasion to the opposing party, who can then attempt to overcome the presumption.

There is definitely a distinction between the presumption in the justifiable homicide statute and the presumptions in the remainder of the criminal code. With the exceptions of the presumptions in La. R.S. 14:19 and 14:20, the presumptions in the criminal code are those that operate against an accused. In other words, except for La. R.S. 14:19 and 14:20, the presumptions in the code aid the State in establishing an element of a crime upon proof of certain predicate facts. Such presumptions have raised due process concerns in the past, but at least some of these presumptions in | ¿favor of the State are considered to be permissive and not mandatory in nature. State v. Caruso, 1998-1415 (La.03/02/99), 733 So.2d 1169.

By contrast, the presumptions in La. R.S. 14:19 and 14:20 are in favor of the accused rather than the State. This distinction is significant, because the Due Process Clause of the United States Constitution does not restrict the legislature from creating presumptions in favor of the accused. “Crimes” are that conduct which is defined as criminal in the Criminal Code, other acts of the legislature, or in the Constitution. La. R.S. 14:7. The legislature is constrained by the Federal and State Constitutions in expanding the definitions of crimes, but the legislature is free to shrink the scope of the definition of a crime, should it desire to do so, by withdrawing an act from the definition of criminal conduct. Thus, it is possible for the legislature to create a mandatory presumption in favor of a defendant in a criminal statute, and, in the case sub judi-ce, the defendant essentially argues that the presumption in La. R.S. 14:20 is such a mandatory presumption.

Generally, any doubt or ambiguity within a criminal statute should be resolved in favor of lenity. State v. Fussed, 2006-2595 (La.01/16/08), 974 So.2d 1223. However, the legislature’s use of the term “presumption” in the justifiable homicide statute does not carry that degree of ambiguity which requires the application of the principle of lenity. Louisiana R.S. 14:3 provides:

The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual |nsense, in connection with the context, and with reference to the purpose of the provision.

When interpreting statutes, the court should, if possible, give meaning to every word and every section. See, e.g., State v. Cazes, 262 La. 202, 263 So.2d 8, 12 (1972), citing Fruge v. Muffoletto, 242 La. 569, 137 So.2d 336 (1962):"

Meaning should be given, if possible, to each and every section, and the construction placed on one portion should not be such as to obliterate another; so, in determining the meaning of a word, phrase or clause, the entire statute is to be considered.

Although the legislature has the power to expand the justifiable homicide defense to conclusively declare the use of deadly force reasonable in every case of unauthorized entry, it has not done so. Instead, the legislature clarified and expanded the “reasonable and necessary” requirement in La. R.S. 14:20(A) with the use of the “presumption” language in La. R.S. 14:20(B). The statute says that there “shall” be a presumption of reasonableness but not that the presumption is irrebutta-ble.

With the presumption, the law recognizes that forcible entry situations often develop quickly and may present a threat of harm that allows little time for a homeowner to carefully weigh his options in defending himself. As Justice Holmes famously stated in a related context, “Detached reflection cannot be demanded in the presence of an uplifted knife.” Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed. 961 (1921). However, the presumption of reasonableness in La. R.S. 14:20(B) is not a license to kill, The legislature’s decision to use the term “presumption” rather than a mandatory inference of reasonableness means that the State is entitled to offer proof that a person’s use of deadly force |1flwas unreasonable even in cases where the victim has made unlawful entry into the defendant’s home. If the State can prove beyond a reasonable doubt that the use of force was unreasonable, the defendant may still be guilty of homicide.

Louisiana R.S. 14:20 contains two other sections worthy of consideration before concluding whether the State met its burden of proof in this case. They provide:

C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

With these provisions, the legislature has curtailed the evidence that may be offered by the State in proving the use of force unreasonable, and specifically has forbidden the consideration of the possibility of retreat vis-a-vis the use of force. This represents a change in the law, which formerly allowed the consideration of the possibility of escape; see, e.g., State v. Brown, 414 So.2d 726 (La.1982).

The unavailability of the retreat defense does not end the inquiry into the reasonableness of the use of force even when the accused is in his own home. Apart from the “unlawful activity” and “has a right to be” qualifiers, Section C recognizes that a person may “meet force with force.” That is the crux of this case — whether Ingram’s use of deadly force was a proportional h ¶response to the force used or threatened by Kim. After considering the entire record, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Ingram acted unreasonably in using deadly force against Kim.

The jury concluded that Ingram’s choice — to shoot Kim — was unjustified. Initially and significantly, we note that as a reviewing court we have no choice but to review a cold record. An appeal court cannot observe the demeanor of the witnesses testifying at trial as the jury did at trial. Importantly, we observe that three people have (or had, in the case of the victim) knowledge of the incidents on October 18, 2006. Both Bobby Ray and Nancy Ingram testified at the trial, giving their version of the events that transpired that day. Notably, the third witness was not alive to rebut the self-serving testimony of the Ingrams. Obviously, these are considerations a jury is free to make and will make in its deliberations.

In determining whether Ingram was justified in shooting Kim, the jury heard the testimony of the two living witnesses to the event and saw the photos of the crime scene and the victim, so they were aware of the relative physical sizes of Ingram and Kim. The jury heard testimony that Ingram was angry with Kim as the result of a letter he received that day from her attorney related to the couple’s community property settlement. Likewise, the jury heard the recordings of the 911 calls from Ingram that included his statement that Kim had no weapons that he knew of, but that he was going to have to “do something” if she came into the house. Further, the jury heard the testimony of the experts retained by both sides who gave their 112opinions about the victim’s position at the time of the fatal shot, with the State’s expert opining that Kim was in a “defensive” position when she was shot. As the State points out, there are many levels of force less than deadly force that Ingram could have used once he saw Kim and had the opportunity to discover that she was unarmed. Instead, Ingram responded to Kim’s unarmed assault on Nancy with grossly disproportionate force that ended Kim’s life. The evidence was sufficient to prove beyond a reasonable doubt that the use of deadly force under the circumstances was unreasonable and that the defendant is guilty of manslaughter.

As an alternative to a verdict of acquittal, the defense urges that a verdict of guilty of negligent homicide is appropriate. However, Ingram admitted that he deliberately fired the gun in response to what he claimed was a lunge toward him from Kim. The act of firing the gun under these circumstances was intentional, not criminal negligence, so negligent homicide is not an appropriate verdict. So considering, this assignment of error is without merit.

Drug Test Results

In his second assignment of error, Ingram argues that the trial court committed reversible error by allowing into evidence the results of a purported drug test even though the State did not call the analyst who performed the test. At the trial of the matter, the trial court allowed Dr. Frank Peretti, the State’s forensic pathologist, to testify that a laboratory test, performed by an out-of-state lab and not the pathologist, showed that Kim did not have drugs in her system when she was shot. The report was | ^admitted into evidence, but the defendant objected to the pathologist’s testimony and the report on the grounds that he had no opportunity to confront and cross-examine the person performing the test. The trial court overruled the objection, essentially allowing the evidence under La. C.E. art. 703.

Melendez-Diaz v. Massachusetts, — U.S. -, 129 S.Ct. 2527, 174 L.Ed.2d 814 (2009), involved a defendant who had been convicted of distributing and trafficking cocaine. In support of its case, the prosecution introduced certificates of analysis as a substitute for in-court testimony to show that the substance recovered from that defendant was cocaine. The certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health. Id. at 2581. The Supreme Court held that the certificates were testimonial statements and the prosecution could not prove its case without first showing that a witness was unavailable and that the defendant had had an opportunity to cross-examine him. Specifically, the Supreme Court explained that the Confrontation Clause of the Sixth Amendment requires that a defendant have the opportunity to confront the witnesses against him, and that these witnesses include persons who conduct laboratory testing when the tests are to be admitted into evidence. Id.

Violations of the confrontation clause are subject to a harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); State v. Broadway, 1996-2659 (La.10/19/99), 753 So.2d 801, cert. denied, Broadway v. Louisiana, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000); State v. Davidson, 44,916 (La.App.2d Cir.02/10/10), 32 So.3d 290, writ denied, 2010-0579 (La.10/01/10), 45 So.3d 1096. The verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial is surely unattributable to the error. State v. Davidson, supra; Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). The harmless error doctrine preserves the “principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” Arizona v. Fulminante, 499 U.S. 279, 308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

In determining whether the error was important in the prosecution’s case, one must focus on the elements of the charged crime. See Delaware v. Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431. Notably, the lab report in Melendez-Diaz was directly connected to the charges against that defendant and a crucial piece of evidence against him. Here, the State’s burden of proving its case against Ingram did not include proof that the victim was drug or alcohol free, so the lab report did not prove an essential element of the case as it did in Melendez-Diaz. Because the presence or absence of drugs in the victim’s body was not an element of the offense, the harm to the defendant from this error is none.

Moreover, we note that although Ingram argues that the State emphasized the “no drugs” fact to the jury in proving that the shooting was 1 lfinot justified, it hardly appears that the State’s “no drugs” argument was emphasized. In fact, the evidence on this point is minuscule compared to the body of evidence against Ingram. Additionally, we fail to see how proof that Kim was drug or alcohol free even goes to the reasonableness of Ingram’s action when considering all of the other evidence against him. Regardless of whether Kim was on drugs or not, she was still a woman, smaller than Ingram, and he knew she was unarmed. Considering the actual facts of this case, it is apparent that the jury had enough evidence to reach its conclusion that Ingram’s actions were not reasonable regardless of this drug report, making its admission into evidence harmless. Even if the trial court erred in admitting the evidence here because it violated Ingram’s right to confront the analyst who prepared the report, such error was harmless also because there is no reasonable probability that it contributed to the verdict. This assignment of error is without merit.

Alteration of 911 Transcript

Ingram also argues that the trial court erred by denying his motion for a new trial based on the State’s deliberate use of an altered transcript of the 911 call. During Ingram’s first trial, when the State introduced the 911 recordings into evidence, it also supplied the jury with a transcript of those recordings. The transcript was prepared by a secretary, Angela Hall, in the District Attorney’s office. The last page of this transcript bears the typewritten notation “Transcribed by Angela Hall 11/16/06.” At Ingram’s second trial, upon the playing of the 911 recording, the State again offered a transcript of the call. The last page of this second transcript also bears the | ^typewritten notation “Transcribed by Angela Hall 11/16/06.” However, the transcripts are different.

The following is a merger of the two transcripts; language in the transcript from the first trial that is not in the revised transcript is indicated with a strikeout font; language that is in the second transcript that does not appear in the first transcript is indicated in a bold font:

(Raised voices can be heard in background)
911: Webster 911
Bobby Ingram: Yeah I have uh my ex wife here threatening to whoop my wife’s behind at my house
Webster 911: at 391 Angie Road?
Bobby Ingram: yes will you please hurry?
Webster 911: What’s her name?
Bobby Ingram: Kim Ingram 911: Kim?
Bobby Ingram: yeah
911: Ok, Does she have any weapons sir?
Bobby Ingram: Uh not that I know of but they’re screaming out up front and if she comes in this house I am going to have to do something oh she
(Disconnects)
911: but she’s outside?
(inaudible)
(Disconnects)

In the second trial, the revised transcript was admitted into evidence and published to the jury contemporaneously with the playing of the 911 117recording. At Ingram’s request, the trial court gave the jury a cautionary instruction that the recording, not the transcript, was the best evidence of what was said.

During the questioning of the 911 operator at trial, Ingram’s attorney discovered the discrepancy between “up” and “out” in the two transcripts because the 911 operator’s copy of the transcript was the second version, but the defense attorney’s version was the original version from the first trial. Once the discrepancy was discovered, Ingram moved to introduce the original transcript into evidence.

During argument, the State maintained that during the first trial, the 911 operator testified that she heard Ingram say “out” rather than “up,” so the prosecutor instructed his secretary to change the transcript to reflect that information. Ingram’s attorney noted that the prosecutor had not provided Ingram with any notice of the change in the transcript, and he then asked the trial court to allow the jury to see both versions of the transcript.

Pursuant to the request of Ingram’s attorney, the trial court allowed the transcript from the first trial to be introduced into evidence along with the later transcript and stated its intent to give another cautionary instruction regarding reliance on the transcript. Ingram’s attorney explicitly stated that he had no objection. Ultimately, the jury was made well aware of the discrepancies in the transcripts and heard the recording of the 911 calls several times, including during deliberations.

Subsequently, in his motion for new trial, Ingram argued that the ends of justice would be served by granting his motion, partly because of the 1 ^alteration in the transcript. The trial court rejected that contention when it denied the motion. Now, on appeal, Ingram argues that he was prejudiced by the introduction into evidence of the altered transcript because the alteration — of which he was not informed — was an effort by the State to bolster its case that Kim was invited into Ingram’s home. He asserts that ordering a new trial would send a message that the State’s use of evidence that was altered unbeknownst to the defense will not be tolerated.

Generally, transcripts of recorded material are admissible along with the material itself because the transcript aids the jury in considering the recorded material. State v. Snedecor, 294 So.2d 207 (La.1974). Of course, it is axiomatic that the transcript must be as accurate as possible given any technical limitations of the source material; a transcript that is inaccurate in a significant way yet admitted into evidence potentially raises a number of issues, some of constitutional significance.

Notably, the State’s use of the altered transcript without notice to the defense was, at least, unprofessional, and, at most, unethical. Nevertheless, a reading of the entire argument at trial about this issue suggests that the defense did not object to the trial court’s handling of the issue of the revised transcript. Typically, a defendant may not avail himself of any trial error to which he did not specifically object. La. C.Cr.P. art. 841. In the instant case, Ingram’s attorney did argue the change issue to the trial court, but stated, “All we’re asking is for the jury to see both versions.” He explicitly stated that he had no objection to the trial court’s handling of the transcript issue.

|inNotably, trial courts are given wide latitude in ruling on motions for new trial, where appellate review is limited to errors of law. La.C.Cr.P. art. 858. The trial court was present during the trial and heard, along with the jury, what could be heard on the recording. At trial, the defense only asked the trial court to allow the jury to see both transcripts, so one could argue that the defense acquiesced in the trial court’s handling of the situation. Further, because the jury heard the 911 recording itself a number of times, both transcripts were shown to the jury, the jury was instructed that the recording was the best evidence of what was said and the evidence against the defendant included much more than that recording, any error with the altered transcript is harmless beyond a reasonable doubt.

In brief, the State relies heavily on the failure of the defendant to object to the admission of the transcript into evidence, but in this case, applying the usual “failure to object” rule to these facts is problematic. The prosecutor, an officer of the court, changed the transcript and offered it into evidence without notifying the defendant’s attorney, who had little or no opportunity to object because he was unaware of the change before the transcript was admitted into evidence. Although the actions of the State did not warrant a new trial considering the totality of the circumstances, we strongly advise the State that the alteration or amendment of evidence is wholly unacceptable in any case, no matter what its intent may have been. We consider the State’s action in this regard to be a serious breach of the prosecutor’s duty as an officer of the court, but even so, we conclude that |j>nthe action did not .affect the outcome of the trial. Accordingly, the prosecutor is admonished not to take such action in the future.

Lack of Unanimity of Verdict

In another assignment of error, Ingram argues that the lack of a requirement of an unanimous verdict denied him of his fundamental rights to trial by jury, and due process of law, as guaranteed by the U.S. and Louisiana Constitutions. We disagree.

Before trial, via a motion to quash, Ingram challenged the constitutionality of Louisiana’s scheme allowing a defendant to be convicted of murder by a non-unanimous jury. He alleged that La.C.Cr.P. art. 782, which allows a jury to return a 10-2 verdict to convict in non-capital felony cases, violated his rights under various provisions of the Federal and State Constitutions. The trial court denied the motion on June 30, 2008.

This article is taken from the requirements of La. Const. Art. 1, § 17. The Louisiana Supreme Court has recently decided that La. C.Cr.P. art. 782 is constitutional. State v. Bertrand, 2008-2215 (La.03/17/09), 6 So.3d 738. On this precise issue, BeHrand is the controlling jurisprudence on the issue in the state of Louisiana, and the decision fully answers Ingram’s arguments on appeal, which are now preserved for subsequent state and/or federal review. Accordingly, we conclude that this assignment of error is without merit.

| ^Sentencing

In his final assignment of error, Ingram argues that the imposition of a 28-year hard labor sentence is excessive and constitutes prejudicial error. Specifically, he claims the trial court did not take into account that: he acted under strong provocation; there were substantial grounds tending to excuse or justify his conduct; and, his conduct was the result of circumstances that were unlikely to recur. Further, he argues that the trial court failed to appropriately consider that the sentence would result in excessive hardship for the defendant and his children. We disagree.

The test imposed by the reviewing court in determining the exces-siveness of a sentence is two-pronged. 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 trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.02/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.03/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.08/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.09/18/09), 17 So.3d 388. 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. Ates, 43,327 (La.App.2d Cir.08/13/08), 989 So.2d 259, unit denied, 2008-2341 (La.05/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.09/28/07), 964 So.2d 351.

Second, a sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; 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. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379.

The penalty for manslaughter is provided in La. R.S. 14:31(B), which states, “Whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years.” There is no minimum sentence for manslaughter. The prosecutor did not seek enhancement of the sentence under La.C.Cr.P. art. 893.3(E); see La. C.Cr.P. art. 893.1. Since the maximum sentence for manslaughter is 40 years, the defendant’s 28-year sentence is 70% of the maximum.

123At the time of the offense, Ingram was 40 years old, had four minor children, and was employed as a supervisor at a Shreveport factory. He has a lifelong employment history and served in the Army National Guard. The defendant has essentially no criminal history; his only prior offense was a single traffic ticket. The record reflects that the trial court gave consideration to the factors in La. C.Cr.P. art. 894.1, finding principally that a lesser sentence would deprecate the seriousness of the defendant’s crime, that the defendant needed to be committed to an institution, that he used actual violence and a firearm in the commission of the offense and that he should have contemplated that his conduct would cause serious harm. The trial court also stated that “the one fact that is undisputed and that is uncontradicted ... in both versions of what happened ... was that on October the 18th, 2006, Mr. Ingram shot an unarmed woman at close range with a high powered rifle.”

In considering the nature of the crime, Ingram would have us consider Kim’s conduct, arguing that the trial court erred in focusing on Ingram’s actions. We note that the jury did not accept Ingram’s defense that he was justified in shooting Kim because of her conduct; therefore, in considering the nature of the crime for purposes of sentencing, it seems illogical to give Ingram leniency in sentencing based on Kim’s conduct. As observed herein, the jury and the trial judge were present at Ingram’s trial and had the opportunity to hear and see the witnesses regarding the incident. The jury rejected the defense, and the trial judge likewise apparently weighed Kim’s conduct against Ingram’s response to it (i.e., shooting her at close range [24with a high powered rifle) and made a determination that Ingram’s actions were excessive. Finally, this is not a case of Ingram meeting force with like force. When considering the choice that Ingram made to stop Kim and the crime that resulted, we cannot say that the trial court’s sentence was excessive.

Regarding Ingram’s nature and background, much is made of the fact that he was a law-abiding, employed citizen, the standard to which all citizens should live even if we consider them mitigating factors in fashioning a sentence. It cannot be ignored, nonetheless, that this law-abiding citizen with a job committed a terrible crime — he killed his former wife and the mother of three of his children. Despite the fact that it was his first crime, it was a particularly bad crime to start off with, considering that the woman he shot and killed was unarmed. He had a personal relationship with Kim and at one time thought enough of her to marry and have three children with her. The trial court’s sentence sends a message that domestic crime is no less serious than any other crime.

A manslaughter conviction exposes a defendant to a potential 40-year prison term at hard labor. Here, the trial court gave adequate consideration to the nature of the crime and any mitigating factors weighing in Ingram’s favor. So considering, Ingram’s sentence is neither grossly out of proportion to the seriousness of the offense, nor a needless infliction of pain. It is not shocking to the conscience for this shocking crime. The imposition of the 28-year sentence was within the trial court’s discretion, and we see no error.

| ^Conclusion

Therefore, the conviction and sentence of Bobby Ray Ingram are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . Initially in Ingram I, we considered the defendant's appeal and remanded the matter to the trial court as to an issue raised by Ingram regarding a juror. After granting the State's writ application, the Louisiana Supreme Court, in Ingram II, reversed our holding, concluding that the trial court’s treatment of the juror issue was not in error. The matter has been remanded to this court for consideration of Ingram's remaining assignments of error not addressed by our opinion in Ingram I.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Javontae DRAKE, Appellant.
    No. 46,232-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.

      Louisiana Appellate Project by Annette F. Roach, for Appellant.
    Robert W. Levy, District Attorney, John L. Sheehan, Penya M. Moses-Fields, Ashley L. Page, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   STEWART, J.

|,The defendant, Javontae Drake, was convicted of one count of aggravated burglary and one count of forcible rape. He was sentenced to 30 years’ imprisonment at hard labor for the aggravated burglary conviction, and 40 years’ imprisonment at hard labor, with the first 20 years to be served without the benefit of probation, parole, or suspension of sentence, for the forcible rape conviction. The sentences were ordered to run concurrently. Drake now appeals. For the reasons set forth below, Drake’s convictions and sentences are affirmed, but we are remanding this case to provide him with the appropriate notice of the sex offender registration requirements.

FACTS

On June 17, 2007, M.W. was studying in her home and fell asleep on her couch. At some point after midnight, she was awakened by someone striking her in her right eye. Initially, M.W. tried to fight off her attacker, but she became tired and succumbed to him. He then raped her. M.W. identified her attacker by a tattoo, “Drake.” Javontae Drake was later arrested and charged with two counts of forcible rape of M.W. and one count of aggravated burglary.

A jury trial began in this matter on March 24, 2010. Assistant Police Chief Franklin Bilberry, with the Farmerville Police Department, testified that on June 17, 2007, he was on duty. He further testified that at approximately 3:30 a.m., while he was standing outside a local Huddle House, M.W. and her son drove up and informed him that she had been ^assaulted. Bilberry immediately noticed that her right eye was swollen. He dispatched other officers and followed M.W. to Union General Hospital.

Officer Michael Bryan with the Farmer-ville Police Department testified that on June 17, 2007, he was on patrol working the night shift. At approximately 12:52 a.m., he pulled into a parking lot at Independent Auto in Farmerville because he saw an individual walking through the lot. He stopped the person to identify him. The person was identified as Javontae Drake, the defendant. Bryan asked a few questions, and Drake was free to leave.

Later, Bryan received a call of a possible assault on a female, and he went to Union General Hospital. At the hospital, he interviewed M.W. He observed a bruise around her right eye, scratches, bruises and bite marks on her arms, and a laceration on her thigh. From the information she provided, Bryan believed he knew the possible suspect, who was the defendant, Javontae Drake.

When Bryan left the hospital, he went to 602 Taylor Street, the address where Drake previously stated he lived. Before arriving there, he saw Drake walking on West Boundary Street. Bryan stopped and arrested him. According to Bryan, Drake was wearing a pair of jeans and shoes, but no shirt. He had scratches on his ear and back, and glass fragments on his chest. Before going to the station for questioning, Bryan stopped at Drake’s residence to retrieve the shirt he had on earlier when Bryan first had contact with him.

| oAfter bringing Drake to the police station, Bryan went to M.W.’s house to retrieve evidence. At M.W.’s house, Bryan noticed a broken window in the front of the house. There was also broken glass inside the house, with only a small amount outside. He testified that Drake’s address was approximately four houses down the street from M.W.’s house. Bryan retrieved some shirts, a comforter and a pillow from M.W.’s house. On cross-examination, Bryan testified that M.W. provided him with a key to enter her residence. He stated that the door was not broken or busted. Bryan also indicated that he took photos of the crime scene, as well as Drake’s cuts and scratches, and turned them in to the Farmerville Police Department with all the other evidence. However, the photos were lost.

Officer J.D. Simpson, with the Farmer-ville Police Department, testified that at approximately 4:00 a.m. on June 17, 2007, he received a phone call from dispatch to assist officers with an investigation. Pursuant to that call, Simpson went to Union General where he met M.W. He noticed numerous lacerations, bruises, and human bite marks on her arms, face and legs. Simpson also noticed that her right eye was swollen and extremely red.

After gathering some information from M.W., he went to the police station. Although Drake had previously been read his Miranda rights, Simpson read them again, and Drake acknowledged that he understood those rights. Simpson testified that he observed some scratches and slivers of glass on the defendant. During questioning, Drake denied any involvement with M.W. After that denial, Simpson took a Polaroid photo of |4him and prepared a photo lineup. He then went back to Union General Hospital at approximately 5:30 a.m. on June 17, 2007, to show M.W. the lineup. Simpson testified that within a minute or so of viewing the lineup, M.W. positively identified Drake as the man who attacked her. Simpson then returned to the station to interview the Drake.

During this second questioning, Simpson testified that Drake admitted to knowing M.W. and stated that he pushed the door open to M.W.’s house and walked in. He then stated that they began fighting. Simpson testified that Drake told him that prior to the fight, he had not spoken with M.W. but he “liked her.” Drake also told Simpson that he had consensual sexual intercourse with M.W. on two occasions that morning. After Drake gave his statements, he consented to two saliva samples. Those samples were taken to the crime lab.

The victim, M.W., testified that Drake was not a personal acquaintance, and that she never had any contact with him before June 17, 2007. She further testified that she did not consent to Drake’s being in her home. After he struck her, she was dazed and tried to stand up, but he was choking her. Eventually, she broke free from his hold and ran outside screaming. He ran after her and began choking her again. Unable to find anything to pry him off of her, she testified that she crashed him into a large window at the front of her house. Drake fell into the glass. She then picked up a piece of glass and started poking him with the glass. M.W. grabbed hold of the support beams to her house and held on to keep him from dragging her back into the house. However, he started biting her. He bit |sher approximately 17 times. M.W. testified that she became tired, her body was exhausted, and Drake was then able to drag her back into the house. She testified that he told her to lie on the floor and take her clothes off. He performed oral sex on her and penetrated her vaginally with his penis. After the sexual intercourse, he tried to act normal, “like he was [M.W.’s] friend,” by wrapping his arm around her and talking to her. M.W. testified that after talking to her for some time, Drake told her he wanted to have sex again. He then penetrated her vaginally with his penis again. She testified that both instances of sexual intercourse took place without her consent. After the second time, she pleaded with him to let her go. He finally complied.

M.W. testified that she called 911, but she did so while Drake was sitting next to her on the couch. M.W. stated that her phone was on silent, so he could not hear her dial the number. She testified that after she dialed the number, she just held the phone and continued talking to Drake. As she talked to him, she stated her address so that the 911 operator could send the police to help her.

M.W. testified that her son, Kamrine, was present in the home when these events occurred. However, she testified that he did not hear this incident taking place, since the living room door and his bedroom door were closed, he was listening to a CD, and he sleeps “hard.” Before Kamrine entered the room, M.W. changed her bloody shirt and put on sunglasses so she would not alarm him. She had to call his name numerous times before he responded. As M.W. and Kamrine got in the car, Drake left walking in |fithe direction of his residence. M.W. drove to the Huddle House, her place of employment, because she knew it was typical for a police officer to be there. When she arrived at Huddle House, she saw Officer Bilberry, who told her to go to the hospital. Accordingly, she went to Union General Hospital in Farmerville. She informed them she had been raped, and she was treated for a cut on her thigh. Later, her mother drove her to St. Francis Medical Center in Monroe for a sexual assault exam by a sexual assault nurse examiner (SANE).

Correando “Cory” Davis testified that he was with Drake at Drake’s sister’s house the day he was arrested for this crime. According to Davis, M.W. stopped her van in the street in front of Drake’s sister’s house and asked Drake “is [sic] you still going to come to my house?” Davis could not recall Drake’s response to that question. After M.W. drove off, Davis testified that he gave Drake $15.00 and Drake went to M.W.’s house as he was asked to do. Davis stated that he saw Drake go up to the house, but he did not see him go inside. Fifteen or twenty minutes later, Davis testified that Drake came back to him and asked for an additional $15.00, but he did not have any more money to give to him. While Drake was at M.W.’s house, Davis testified that he did not hear any screaming or yelling, nor did he see any police until they came later and arrested the defendant. Davis testified that when Drake returned from M.W.’s house, he noticed a cut on him.

Drake testified that on June 17, 2007, he was 17 years old and lived with his sister. His sister’s house was approximately four houses down |7from M.W.’s house. He stated that he met M.W. in October 2006. M.W. would often stop by as she was driving down the street and call him to the truck.

Drake further testified that prior to June 2007, he would go to M.W.’s house, and they would sit on the couch, watch television, talk, and have sex. They would also drink alcohol, particularly beer, and sometimes M.W. would do drugs, namely, cocaine and marijuana. He testified that the first time he ever went to M.W.’s house was in February 2007. He further testified that he used a condom every time he had sex with M.W., and that he never had oral sex with her.

Drake testified that on June 17, 2007, he was at his sister’s house all day until 7:00 p.m. or so when one of his friends took him to his cousin, Otis Heard’s, house. He left his cousin’s house walking back to his sister’s house. As he was walked across a parking lot, he was stopped by a police officer who identified him, and then permitted him to continue walking home. When he returned home, his friend Cory Davis was outside. Drake and Davis sat outside talking. M.W. drove by, stopped her vehicle in the street, and asked him to come to her house later. Prior to going to M.W.’s house that night, he asked Davis for money. Davis gave him $15.00. Later that evening, he walked to M.W.’s house, knocked on the door, and Kamrine let him inside the house. Kamrine then went into another room. When he entered the house, M.W. was sitting on the couch watching television and she had books on her lap. They talked for a while and then had sex. After sex, M.W. asked him for some money, and he gave her the |s$15.00 he received from Davis. When M.W. asked for more money, he left the house, went back to his sister’s house, and asked Davis for more money, but Davis did not have any more. He testified that he went back to M.W.’s house “opened the door and went in the house.” He testified that once he was inside M.W. asked for more money and “told me that I was lying, that I had some money.” She then stabbed him with a red blade. He further testified that as he was trying to leave her house, she was still swinging at him with the red blade in her hand. She then pushed him into the glass window. He stated that they both received cuts from the glass. He admitted that he probably hit her in the eye because they were fighting. However, he did not remember biting her. Drake testified that at some point, they went back in the house and apologized to each other for the fight that had just occurred. They sat down on the couch and M.W. had a cell phone in her hand playing with the ring tones on the phone. M.W. stated she needed medical attention, and he agreed. He left her house as she was leaving with her son, Kamrine.

Drake went home to his sister’s house, cleaned up his cuts, and changed clothes. Approximately 10 to 15 minutes later, he noticed the police were outside M.W.’s house. Shortly thereafter, the police drove down the street and stopped in front of his sister’s house. The officer read him his rights and arrested him, without stating why he was being arrested. Before leaving his sister’s house, the officer asked his permission to go into his bedroom. He gave them permission, and they retrieved some items that they put in the trunk. Drake was unaware of what items they took.

| ^During questioning at the police station, Drake initially denied knowing M.W. Later, after the officers showed him pictures of M.W. taken at the hospital, he admitted that he knew her. Drake testified that he told Officer Simpson that he and M.W. were “talking and going together.” He also told them that he and M.W. had consensual sex twice that night. He testified that he did not threaten to kill M.W.

On cross, Drake testified that he had sex with M.W. twice when he went to her house the first time, and that he used a condom on both occasions, which he discarded in M.W.’s trash.

M.W. identified Exhibit D-l as her mother’s keys, which she kept on the floor of a red car parked outside her house. On that key ring she kept a spare key to her home. M.W. further testified that these keys were kept in the vehicle so that her family members could get into her house if she was away. Prior to the incident on June 17, 2007, she noticed the keys were missing.

Drake identified Exhibit D-l as a set of keys M.W. gave him in January. He asserted that the keys were given to him prior to the two ever engaging in sexual relations.

The jury found Drake guilty of one count of forcible rape and one count of aggravated burglary. On June 1, 2010, after consideration of the presentence investigation report, and the factors set forth in La. C. Cr. P. art. 894.1, the court sentenced Drake to serve 30 years’ imprisonment at hard labor for the aggravated burglary conviction. He was sentenced to 40 years’ imprisonment at hard labor, with the first 20 years to be served without the | mbenefit of probation, parole or suspension of sentence, for the forcible rape conviction. The sentences were ordered to run concurrently with one another. This appeal followed.

LAW AND DISCUSSION

Insufficiency of Evidence — Aggravated Burglary

In the first assignment of error, Drake argues that the evidence was insufficient to prove that he committed aggravated burglary. He contends that the state lacked proof that he did not have permission to enter M.W.’s residence. Drake also asserts that the state lacked proof that he entered the residence with the intent to commit a felony therein.

The question of sufficiency of evidence is properly raised by a motion for post verdict judgment of acquittal. State v. Howard, 31,807 (La.App. 2 Cir. 8/18/99), 746 So.2d 49, writ denied, 1999-2960 (La.5/5/00), 760 So.2d 1190. Although the record does not reflect that defendant filed a motion for post verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821, this Court will consider sufficiency arguments in the absence of such a motion. Id.

When issues are raised on appeal, both as to the sufficiency of evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. 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). 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. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833.

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. Eason, 43,788 (La.App. 2 Cir. 2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299; State v. Allen, 36,180 (La.App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

La. R.S. 14:60 states in pertinent part: . , , , , . ,, An aggravated burglary is the unautho- . . , . i, . , ... , , ... nzed entering of any inhabited dwelling, „ , , , or of any structure, water craft, or mov- , . , able |12where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.

Battery is the intentional use of force or violence upon the person of another. La. R.S. 14:33.

In order to prove aggravated burglary, the state must prove beyond a reasonable doubt that the defendant made an unauthorized entry into an inhabited dwelling with the intent to commit a felony. In addition, the state must prove beyond a reasonable doubt the existence of one of the three aggravating factors. State v. Manning, 44,403 (La.App. 2 Cir. 6/24/09), 15 So.3d 1204.

The evidence presented at trial, viewed under the Jackson standard, was sufficient to support the conviction of aggravated burglary pursuant to La. R.S. 14:60(3). At trial, the victim, M.W., testified that Drake entered her home without her permission, hit her in the eye, and choked her while inside the residence. After managing to break free from the defendant, M.W. ran outside only to be forced back inside the house by the defendant, at which time he raped her. Evidence of Drake’s violence upon M.W. was visible, i.e., bruised eye, and was observed by Officers Bilberry, Bryan, and Simpson. • M.W. positively identified Drake in a photo lineup as the person who attacked her in her home in the early morning of June 17, 2007. Therefore, M.W.’s testimony was sufficient to prove that Drake entered her f, , I,qresidence without permission with the , L n . intent to rape her, and committed a bat-,1 ’ . tery upon her when he struck her in the J 1 e^e‘

This court does not reweigh evidence or assess the credibility of the witnesses. State v. Smith, supra. The jury was given the opportunity to assess the credibility of the state’s witnesses and this court must accord great deference to the jury’s decision to accept that testimony as credible. State v. Hill, supra.

This assignment of error therefore is without merit.

Insufficiency of Evidence — Forcible Rape

In the second assignment of error, Drake argues that the state failed to prove that the sexual intercourse between the defendant and M.W. was not consensual. To support this assignment, he asserts that there is no medical testimony to support forced sexual intercourse. Drake also alleges that M.W. did not tell the 911 operator that she had been raped.

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. Gullette, 43,032 (La.App. 2 Cir. 2/13/08), 975 So.2d 753; 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. This 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. Such testimony alone is sufficient even where the state does not introduce [ umedical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, supra; State v. Ponsell, supra. Forcible rape is defined in La. R.S. 14:42.1, which provides in pertinent part:

A. Forcible rape is rape committed when the anal, oral or vaginal sexual intercourse is deemed to be without the consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believed that such resistance would not prevent the rape.

At trial, M.W. testified that after Drake struck her in the eye, she managed to break free from his hold and run outside. When they were outside, M.W. fell into a window, which broke, in an unsuccessful attempt to stop the defendant from attacking her. Drake bit her approximately 17 times and threatened to kill her. The DNA analysis confirmed that the defendant bit M.W. M.W. testified that although she held onto the iron beams outside her house so that Drake could not drag her back into the house, she became tired and exhausted from the physical beating and biting by the defendant. At that point, Drake was able to drag and force her back inside the house. Once inside the house, he performed oral sex on M.W. and vaginally penetrated her, without her consent.

Patty McFadden, an expert in the field of sexual assault nursing examination, testified that on June 17, 2007, she was on call for St. Francis Hospital and was called in to perform a sexual assault examination of M.W. The examination revealed that M.W. had abrasions and redness on her 1 iSvaginal tissue. McFadden testified that said abrasions could have occurred during either consensual sexual intercourse or sexual assault.

Cassandra Hernandez, an expert in DNA identification who works at the North Louisiana Criminalistics Laboratory, testified that she performed a DNA analysis on a rape kit for M.W., where she compared samples taken from Drake’s body and M.W.’s body, including left-arm bite mark swabs, left neck swab, shoulder bite mark swab, genitalia swabs, clitoris swabs, vaginal swabs and vaginal washings. Hernandez testified that the DNA sampled from the bite marks was consistent with being a mixture of M.W.’s own DNA and Drake’s DNA. The DNA profile was 94.7 trillion times more likely to be the DNA of Drake rather than that of an unknown related individual. As for the epithelial fraction from M.W.’s vaginal vault, the sperm fraction of the vaginal swab was a mixture of DNA from two individuals, a major contributor and a minor contributor. Hernandez testified that Drake could not be excluded as being the major contributor. In fact, the probability was approximately one in 120 quadrillion that the sperm fraction was from someone other than him.

As the victim of sexual assault, M.W.’s testimony alone was sufficient to prove the commission of forcible rape by the defendant. State v. Robinson, supra; State v. Ponsell, supra. Further, her account of the events that transpired was supported by scientific and physical evidence obtained shortly after the incident occurred.

We see no error in the trial court’s conclusion the Drake was guilty of forcible rape. Therefore, this assignment of error is without merit.

| Rouble Jeopardy

In the third assignment of error, Drake argues that his prosecution for the offense of aggravated burglary and forcible rape constituted double jeopardy.

The Fifth Amendment to the United States Constitution provides that no person shall be “subject for the same offenses to be twice put into jeopardy of their life or limb.” State v. Redfearn, 44,709 (La.App. 2 Cir. 9/23/09), 22 So.3d 1078, writ denied, 2009-2206 (La.4/9/10), 31 So.3d 381; State v. Brown, 42,188 (La.App. 2 Cir. 9/26/07), 966 So.2d 727, writ denied, 2007-2199 (La.4/18/08), 978 So.2d 347. The double jeopardy clause was made applicable to the states through the Fourteenth Amendment, and Article I, § 15, of the Louisiana Constitution contains a similar guarantee. Redfearn, supra. The guarantee provides three central constitutional protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after convictions; and, (3) protection against multiple punishment for the same offense. Redfearn, supra.

Louisiana uses both the “Blockburger test” and the “same evidence test” in determining whether double jeopardy exists. State v. Ceasar, 37,770 (La. App. 2 Cir. 10/9/03), 856 So.2d 236. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court held that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof [17of an additional fact which the other does not. Louisiana also uses the broader “same evidence” test which dictates that:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one.

State v. Steele, 387 So.2d 1175 (La.1980); State v. Robertson, 511 So.2d 1237 (La.App. 2 Cir.1987), unit denied, 516 So.2d 366 (La.1988). This test depends on the proof necessary for a conviction, not the evidence that is actually presented at trial. State v. Knowles, 392 So.2d 651 (La.1980).

After applying the Blockburger test in this case, we find that there are no violations of double jeopardy. The evidence required for a finding of guilt for the aggravated burglary would not be needed to support a conviction of forcible rape. The crime of aggravated burglary requires the element of an unauthorized entry; forcible rape does not. The crime of forcible rape requires the element of sexual intercourse; aggravated burglary does not.

Here, the state sought to prove that Drake committed aggravated burglary by entering M.W.’s home without authorization, with the intent to rape M.W., and committing a battery upon M.W. La. R.S. 14:60(3). At trial, M.W. testified that she did not consent to Drake entering her home. She awoke to him standing over her after he hit her in the eye. The aggravated burglary was complete at that time.

Further, M.W. testified that Drake choked her and bit her 17 times. After fighting M.W. and threatening to kill her, Drake was able to force M.W. back inside the house and rape her. M.W. testified that she did not | isresist the rape due to the beating and because her body was exhausted. Drake, therefore, committed two separate and distinct acts.

The evidence to support the conviction of aggravated burglary was not the “same evidence” necessary for the conviction of forcible rape. Thus, there are no double jeopardy implications.

This assignment of error is therefore without merit.

ERROR PATENT

A review of the record reveals that the trial court failed to inform Drake of the sex offender notification and registration requirement as required under La. R.S. 15:543. Drake’s conviction of forcible rape, a violation of La. R.S. 14:42.1 and a “sex offense” under La. R.S. 15:541, requires he be subjected to the sex offender notification and registration requirements under Louisiana’s sex offender laws. La. R.S. 15:542. Additionally, La. R.S. 15:543 requires that the trial court notify a defendant convicted of a sex offense in writing, using the form contained in La. R.S. 15:543.1, of the registration and notification requirements. It further requires that such notice be included on any guilty plea forms and judgment and sentence forms provided to Drake, and that an entry be made in the court minutes stating that the written notification was provided. The record does not indicate that Drake was provided with any judgment and sentence form, or orally informed by the trial court of his registration requirements at his conviction and sentencing. As a result, remand is required for the purpose of providing the appropriate written notice to the defendant of the |19sex offender registration requirements. State v. Scott, 42,-997 (La.App. 2 Cir. 2/13/08), 975 So.2d 782.

CONCLUSION

For the reasons stated, we affirm Drake’s convictions and sentences. We also remand the matter for the purpose of providing him with the appropriate notice for the sex offender registration requirements.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . State introduced S-3, which were photographs of M.W. after the attack, M.W.’s house, and the bite marks on M.W.


text:
    STATE of Louisiana, Appellee v. Tommy Glen STEPHENS, Appellant.
    No. 46,304-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Jonathan M. Stewart, District Attorney, Douglas Stokes, Kenneth P. Haines, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and CARAWAY, JJ.
   STEWART, J.

| ,The defendant, Tommy Glen Stephens (“Stephens”), pled guilty to one count of possession of marijuana, third offense, and was sentenced to five years at hard labor, with credit for time served. He pled pursuant to State v. Crosby, 338 So.2d 584 (La.1976), so that he could appeal the denial of his motion to suppress evidence seized from his home. We affirm.

FACTS

Stephens alleged in the motion to suppress that Deputy Donovan Shultz of the Jackson Parish Sheriffs Office entered his home on December 30, 2009, without consent and that marijuana and other evidence seized from the home should be suppressed. The motion was heard by the trial court on September 17, 2010. The state offered the testimony of Deputy Shultz, and the defense offered the testimony of David Neatherland (“Neather-land”) and Stephens.

Deputy Shultz testified that he went to Stephens’ home in search of Adrianna Taylor, for whom arrest warrants had been issued. He believed that Taylor was living there. When Deputy Shultz knocked on the door, Neatherland opened it. He told Neatherland that he wanted to speak to Stephens. After first inviting him to enter, Neatherland told him to wait while he asked Stephens if he could enter. Deputy Shultz testified that he heard Neatherland make inquiry and then heard Stephens say, “Come in.”

When Deputy Shultz entered the house, Stephens was on the couch in front of the television with a plate of food beside him. He asked Stephens about Taylor and learned that she had been staying with him but was not there that night. As they were talking, Deputy Shultz noticed a marijuana 12roach in a clip on the couch next to Stephens. He advised Stephens of what he saw and of his rights. Stephens admitted that he had been smoking marijuana. Deputy Shultz took the marijuana into his possession and then asked Stephens whether he had anything else in the house. After advising Stephens that he could get a warrant based on the marijuana being in plain view, he asked for his consent to search the rest of the house. Deputy Shultz testified that Stephens consented to a search and then turned over to him a grinder for marijuana. Deputy Shultz then found clear plastic bags containing marijuana and several marijuana roaches in a dresser.

On cross, Deputy Shultz admitted that he did not have the warrants for Taylor’s arrest with him and that he had no search warrant for Stephens’ home. Deputy Shultz also admitted that he did not know whether Neatherland said his name when he asked Stephens if he could enter the house and that he could not see Stephens from the doorway. When asked what Stephens was doing when he first saw him, Deputy Shultz stated that he was “laid on the couch” and “appeared to be high from smoking, to be perfectly honest.”

Neatherland, the defendant’s brother-in-law, testified that he answered the door because Stephens was asleep on the living room couch. Neatherland testified that Deputy Shultz asked if Taylor was there. When he told him that she was not, Deputy Shultz asked to come inside. Neather-land told him that he could not let him inside because it wasn’t his house and asked him to wait while he went to get Stephens. Neatherland explained that he could not close the door because it opened out and Deputy |sShultz was standing in the doorway. Instead of waiting, Deputy Shultz followed him into the house and awakened Stephens by getting close to him and hollering at him. Neatherland denied that he or Stephens told Deputy Shultz to enter the house. He also testified that he called Deputy Shultz the next day when Taylor returned to Stephens’ house but that Deputy Shultz did not rush back to apprehend her.

On cross, Neatherland admitted that he had prior distribution convictions and was on probation. Finally, he denied seeing any marijuana at Stephens’ house and denied that they were high.

Stephens testified that he was asleep on his couch when he was awakened by Deputy Shultz standing over him. He denied hearing any knocking on his door or any discussion between Deputy Shultz and Neatherland. He explained that his trailer door opens to the outside as stated by Neatherland and not inward as Deputy Shultz seemed to recall.

Stephens stated that when Deputy Schultz saw the marijuana roach he stated that he could get a warrant or that Stephens could consent to a search. Stephens then handed over the marijuana and led Deputy Schultz to a grinder in a dresser drawer. When asked whether he consented to the search of his home, Stephens replied:

Well he was talking about Adrianna and everything, he wanted to know about her and I consented to a search, you know, the dresser drawer where she kept her clothes and everything and he proceeded to search the rest of the house, yes sir.

Stephens denied consenting to a search of his entire home. He explained that he has abdominal cancer and had taken medications, including morphine, Elavil, and Ambien, that night. He also admitted to smoking the |4last of a joint. The combination of the marijuana and prescribed drugs had put him to sleep.

On cross, Stephens admitted to a prior distribution conviction. When asked whether he was being untruthful when he told Deputy Shultz that he did not have more marijuana in the house, he stated that “it turned out not to be to my knowledge at that time that was all of it.” Finally, Stephens could think of no particular reason why Deputy Shultz would have it in for him or lie about what happened. He stated that he had never had a bad experience with him.

On redirect, Stephens admitted that he could remember everything that happened that night after he was awakened by Deputy Shultz, and he again denied inviting Deputy Shultz into his house.

The trial court identified the issue as whether Deputy Shultz had authority to enter Stephens’ home and noted it to be an issue of credibility. After stating that “the facts are in such dispute that it is appropriate to refer this to the trial on the merits,” the trial court denied the motion to suppress and noted the defendant’s objection for the record.

Stephens entered a Crosby plea of guilty to possession of marijuana, third offense, on September 27, 2010. In accordance with a sentencing agreement, the trial court sentenced him to five years at hard labor with credit for time served. Stephens then filed this appeal.

After the appeal was docketed and because it was not clear whether the trial court made a credibility determination in favor of the state in denying the motion to suppress, this court stayed the appeal and ordered the [ .¡trial court to submit written reasons explaining the grounds for its ruling. The trial court complied and filed reasons explaining that it found Deputy Shultz’s testimony about how he entered the home to be credible. Factors found by the trial court to be significant in assessing credibility included the purpose for which Deputy Shultz went to Stephens’ home and the potential exposure of both Stephens and Neatherland to further convictions based on the finding of drugs in the home. Their prior drug convictions provided good reason for them to deny that they let Deputy Shultz enter the home. The trial court reasoned that because Stephens and Neatherland knew that Deputy Shultz was there to find Taylor, they had no cause to be concerned about his presence. Thus, the trial court concluded that it was more credible than not that Deputy Shultz had permission to enter.

DISCUSSION

Stephens argues that Deputy Shultz had no reason to be in his home without a search warrant once he learned that Taylor was not there. He denies,, that he consented to entry and maintains that he could not have done so because he was sleeping. He asserts that Deputy Shultz’s testimony that he was lying down on the couch corroborates his claim that he was sleeping. Moreover, Stephens argues that Deputy Shultz’s testimony that he appeared to be high along with his admission that he had smoked some marijuana and taken morphine and other medications indicates that he was intoxicated and could not have consented to Deputy Shultz entering or searching his home.

|fiThe state counters that the trial court made a credibility determination in believing Deputy Shultz’s testimony and that its ruling was correct under the facts established at the hearing.

La. Const, art. 1, § 5 states:

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

A defendant who is adversely affected may move to suppress evidence on the ground that it was unconstitutionally obtained. La. C. Cr. P. art. 703(A). While the burden is on the defendant to prove the ground of his motion, the state bears the burden of proving the admissibility of any evidence seized without a warrant. La. C. Cr. P. art. 703(D). The record is clear that Deputy Shultz did not have a warrant authorizing a search of Stephens’ home. A warrantless search and seizure is presumed unreasonable, unless it is justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Talbert, 449 So.2d 446 (La.1984); State v. Ledford, 40,318 (La.App.2d Cir.10/28/05), 914 So.2d 1168.

A valid consent search is an exception to the warrant requirement. State v. Crews, 28,153 (La.App.2d Cir.5/8/96), 674 So.2d 1082; State v. Owens, 480 So.2d 826 (La.App. 2d Cir.1985), writ denied, 486 So.2d 748 (La.1986), cert. denied, 479 U.S. 840, 107 S.Ct. 145, 93 L.Ed.2d 87 (1986). An oral consent to search is valid. State v. McGill, 31,202 (La.App.2d Cir.9/23/98), 720 So.2d 720, writ denied, 98-2721 (La.2/5/99), 737 So.2d 746; Crews, supra. However, the burden is on the state to prove that consent was given freely and voluntarily. Crews, supra; McGill, supra; Owens, supra.

Voluntariness is a question of fact to be determined by the trial court under the facts and circumstances of each case, and the trial court’s factual determinations are to be given great weight on appellate review. State v. Edwards, 434 So.2d 395 (La.1983); State v. Howard, 37,580 (La.App.2d Cir.9/24/03), 855 So.2d 881.

The issue is whether Deputy Shultz had consent to enter Stephens’ home. Deputy Shultz testified that he heard Neatherland ask Stephens if he could enter and Stephens say he could come inside. He stated that he would have stayed at the door and waited for Stephens if he had not been allowed entry. Deputy Shultz admitted he could not see Stephens from the doorway, but the record indicates that the living room was only a short distance from the doorway of the trailer. Moreover, the record indicates that Deputy Schultz and Stephens knew one another. Both Stephens and Neatherland disputed Deputy Shultz’s version by claiming that Stephens was asleep until awakened by Deputy Shultz, who followed Neatherland into the home. Faced with conflicting versions of what occurred, the trial court had to make a credibility determination. The trial court found Deputy Shultz’s testimony about how he entered the home to be credible and the testimony of the defense witnesses to lack credibility.

IsThere is no dispute that Stephens was on the couch when Deputy Shultz entered the home. In arguing that the totality of the circumstances does not support the trial court’s ruling, Stephens asserts that Deputy Shultz’s testimony corroborates his claim that he was asleep. Deputy Shultz testified that Stephens was “laid on the couch” with a plate of food and a marijuana roach beside him and that he looked high. Deputy Shultz did not testify that Stephens was asleep, and the presence of the food and marijuana beside Stephens suggests that he was awake and had been eating and smoking marijuana rather than sleeping.

Stephens admitted that he had smoked marijuana and claimed that he had taken various medications, including morphine. He suggests that intoxication from the combination of drugs prevented him from consenting to Deputy Shultz either entering or searching his home. Intoxication is a factor that can be considered in determining whether consent was voluntary. State v. Owens, supra. However, Stephens’ claim of intoxication sufficient to invalidate consent is refuted by his seemingly clear recall of the events when testifying at the motion to suppress.

The facts show that Deputy Shultz was there to locate Taylor and not to conduct a search of Stephens’ home for drugs. It does not appear from the record that locating Taylor was of such urgency that Deputy Shultz would have barged into the house and awakened Stephens to question him about her whereabouts. Stephens and Neatherland admitted to having prior drug-related convictions. Their criminal histories and the possibility of further convictions stemming from the drugs seized by Deputy Shultz are | /actors that would cause them to deny that Stephens gave Deputy Shultz consent to enter the trailer.

The trial court was in the best position to weigh and assess the testimony and credibility of the witnesses. Considering that the trial court’s factual findings are to be given great weight on appeal, we cannot conclude on this record that its determination that Stephens freely and voluntarily consented to Deputy Shultz’s entry into his home was unreasonable or in error.

Once inside the home, Deputy Shultz saw the marijuana roach beside Stephens in plain view. The plain view doctrine is another exception to the warrant requirement. State v. Young, 39,546 (La.App.2d Cir.3/2/05), 895 So.2d 753. The plain view exception applies when the police officer is lawfully in the place from which he views the object, the incriminating character of the evidence is immediately apparent, and the officer has a lawful right of access to the object. Id.

As stated, Officer Shultz was lawfully in the trailer, having obtained Stephens’ verbal consent to enter. He observed the clip and the marijuana roach beside Stephens while talking to him. Stephens admitted that he had been smoking marijuana. He even testified that he told Deputy Shultz that it was the last of some marijuana that he saved from a Super Bowl party in Shreveport. It is undisputed that Stephens then consented to a search, but he testified that he only consented to a search of the area where Taylor’s belongings were kept. However, at that point it was clear that Deputy Shultz was seeking further evidence of drugs in the home and was not Imlooking for Taylor. Stephens’ claim that he consented only to a search of Taylor’s belongings is unbelievable under the circumstances shown by the testimony.

For these reasons, we find no merit to Stephens’ arguments. Deputy Shultz’s entry and seizure of marijuana found inside the home did not infringe upon Stephens’ constitutional right to be free from unreasonable searches and seizures.

CONCLUSION

Finding that the trial court did not err in denying the motion to suppress, we affirm the defendant’s conviction and sentence.

AFFIRMED.