author: DECUIR, Judge.

text:
    STATE of Louisiana v. Willie R. PITTS.
    No. 11-1020.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.

      Michael Harson, District Attorney, Lafayette, LA, Bart J. Bellaire, Assistant District Attorney, Abbeville, LA, for Ap-pellee, State of Louisiana.
    Annette Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Willie R. Pitts.
    Willie R. Pitts, In Proper Person, Angie, LA.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

liThe Defendant, Willie R. Pitts, was indicted by a grand jury with aggravated rape, a violation of La.R.S. 14:42. Following a bench trial, he was found guilty of the lesser offense of forcible rape, La.R.S. 14:42.1. The Defendant, fifty-two years old at the time of the offense, was sentenced to serve forty years at hard labor, the first two years without benefit of probation, parole, or suspension of sentence. The Defendant is now before this court on appeal, challenging his conviction in four assignments of error. For the following reasons, we affirm the Defendant’s conviction and sentence and remand with further instructions.

ASSIGNMENT OF ERROR NO. 1:

By this assignment of error, the Defendant argues that the evidence introduced at trial was insufficient to prove all of the elements of the offense of either forcible rape or the charged offense of aggravated rape. The Defendant complains that details of the sexual encounter were necessary to determine if penetration occurred; thus, “Merely answering the question of whether he forced himself inside her that day was insufficient to show penetration occurred.” The Defendant also maintains that the degree of force used during the offense is at issue — the testimony was insufficient to show the victim was prevented from resisting. Lastly, the Defendant contends the victim’s testimony is vague, inconsistent with other testimony, and shows she had a motive to make false accusations.

The analysis for a claim of insufficient evidence is well-settled:

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. Mussall, 523 So.2d 1305 (La.1988). A determination of the weight of evidence is a question of fact, resting 12solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate court to assess credibility or re-weigh the evidence. Id.

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

A victim’s or witness’s testimony alone is usually sufficient to support the verdict, as appellate courts will not second-guess the credibility determinations of the fact finder beyond the constitutional standard of sufficiency. State v. Davis, 02-1043, p. 3 (La.6/27/03); 848 So.2d 557, 559. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the fact finder, is sufficient support for a requisite factual conclusion. State v. Robinson, 02-1869, p. 16 (La.4/14/04); 874 So.2d 66, 79.

State v. Dorsey, 10-216, p. 43-44 (La.9/7/11), 74 So.3d 603, 634; see also State v. Simon, 10-1111 (La.App. 3 Cir. 4/13/11), 62 So.3d 318, writ denied, 11-1008 (La.11/4/11), 75 So.3d 922.

Forcible rape is defined in La.R.S. 1442.1(A), which reads in pertinent part:

A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful 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 believes that such resistance would not prevent the rape.

The following facts were adduced at trial. The victim testified she was vaginally raped by the Defendant in July 2008, just days after her thirteenth birthday. At the time of the offense, she was living with her aunt, G.C. and the Defendant, who was G.C.’s boyfriend. She could not recall the exact date of the offense but believed she reported the offense two days after it occurred. The victim explained that the Defendant burst through her bedroom door, violently |3cursing at her and slapping her face with big rings on his fingers. She reacted by kicking him and trying to push him away, but eventually he grabbed a knife and stabbed at the bed as she struggled to get away from him. She testified that he forced himself inside of her and had sex with her. The victim said she kept a knife in her room because she was afraid of the Defendant.

With regard to previous incidents, the victim stated that the Defendant had assaulted her at least four times. On each occasion, the Defendant hit her in the face, cursed at her, and had sex with her. Sometimes he threw her against the wall and pushed her away from anything she could grab or away from the door to prevent her from escaping. He would stop her from resisting by restraining her arms or wrists and holding her down. The Defendant told the victim that he would kill her loved ones if she told anyone, and he would deny that it had happened.

A few days after the July incident, the victim reported the offense to her sister and then went to the hospital. While at the hospital, she gave her only statement regarding the offense to Bonnie Grimsley, the Sexual Assault Nurse Examiner (SANE). The statement corroborates the victim’s trial testimony, with minor discrepancies pertaining to factors such as the location of the knife and whether the Defendant kissed her mouth. More important, however, is the physical evidence of sexual trauma detailed in Grimsley’s examination report, in Grimsley’s trial testimony, and in the photographs taken in the course of the examination. The trauma included bruising, tears, abrasions, and swelling. In fact, the swelling was so severe, Grimsley called in Dr. Virginia Alfred, an OB/GYN, to help with the speculum exam. According to Dr. Alfred, the edema was caused by sexual trauma which did not occur with regular sexual activity but with very violent and 14aggressive sexual activity. The victim’s injuries were consistent with sexual assault.

Detective Stan Suire with the Abbeville Police Department was the investigator in this case. He searched the residence about two days after the offense was reported. Three knives were recovered from the kitchen. No gun was recovered, although the victim had stated at the hospital that the Defendant had a gun and had held it to her head. Detective Suire inspected the bed where the offense occurred and observed a puncture mark in the comforter which could have been caused by a knife. The puncture mark was consistent with the knives recovered. Also, the hinges on the door to the victim’s bedroom were damaged, as was the bolt on the opposite side of the door where it latched. On cross-examination, Detective Suire confirmed that the puncture mark in the comforter was not documented in his report. He also acknowledged that he did not photograph the damaged hinges and did not find any evidence of blood during his search of the victim’s bed.

At trial, the victim was shown a comforter recovered from her home, and she identified it as the one on her bed on the day of the offense. A semen stain from the comforter was tested and matched the DNA profile of the Defendant with a reasonable degree of scientific certainty. The victim was also shown three knives, and she identified one of the knives as the one she had under her pillow on the day of the offense.

The Defendant testified on his own behalf and denied ever having sex with the victim. He stated that he began living with G.C. when the victim was about ten years old. He characterized himself as the disciplinarian in the household, and stated that the victim may have been angry at him for punishing her by taking her | sphone and computer games or prohibiting her from doing things. However, both G.C. and the victim testified that the Defendant never punished the victim or disciplined her in any way. The Defendant attempted to explain the semen stain on the comforter by saying that he and G.C. had used the bed in the victim’s room in the summer of 2008. He also suggested that other family members who cared for the victim after the assault were mad at him and at G.C. because of their planned move to Alabama and because G.C. had declined to give them money she had received from the Road Home Project.

G.C., testifying for the defense, described the Defendant as a great person and someone who always helped out with the children. Her children would go to him with their problems, and he was always there to guide them. Prior to the instant offense, no one ever related to her that the Defendant was doing anything inappropriate. G.C. maintained she would have known if anything was going on, because she was very close to her children and her niece, the victim. Contradicting the Defendant’s testimony, G.C. stated that she received about $50,000.00 from the Road Home Project and that she gave each of the children some of the money. With regard to moving, G.C. explained that prior to the time of the allegation, she and the Defendant planned to move to Atlanta, not Alabama as stated by the Defendant. The victim and other family members were happy about the move. G.C. did not believe the victim’s allegation against the Defendant at the time, and she stated at trial that she still did not believe it happened. G.C. maintained she would know if something was wrong with the victim.

Penetration

The Defendant asserts that penile penetration is a necessary element of forcible rape. He complains that the victim did not describe the act of rape or | fiprovide details of the sexual encounter to show there was indeed penetration. Even assuming that the Defendant forced himself inside her, the Defendant avers that the victim did not identify what was forced inside her.

In support of his argument, the Defendant cites State v. Marigny, 532 So.2d 420 (La.App. 1 Cir.1988), where the court determined that the alleged victim did not sufficiently testify as to penetration nor did the State present any medical evidence of penetration. A conviction for the lesser-included offense of attempted carnal knowledge of a juvenile was substituted for the jury’s verdict.

Conversely, in the instant case, the victim’s testimony that the Defendant had sex with her was not the only evidence of sexual intercourse. At trial, the victim confirmed that the Defendant forced himself into her, that he did have sex with her, and that she was certain of that fact. Additionally, the victim’s testimony was corroborated by the testimony of the nurse and physician who conducted the physical examination and verified with photographs the physical evidence of significant trauma. The physician opined that the trauma was caused by sexual assault. Further, the holding in Marigny does not require that a victim must provide details of the sexual encounter to show there was indeed penetration. Rather, the Marigny court found simply that the victim’s testimony and the testimony of her mother were insufficient evidence to show penetration.

In this case, the evidence presented was sufficient to prove that element of the crime.

Degree of Force

The Defendant argues that the State had to prove the victim was prevented from resisting the act by either force or threats of physical violence or, under the circumstances, it was reasonable for her to believe such resistance would not 17prevent the rape. Although the victim testified that she kicked the Defendant and that he slapped her while wearing big rings, the Defendant stresses that no one recorded observing any injuries to the victim’s face or other areas to suggest a struggle. The Defendant also criticizes the lack of physical evidence to show she had been drug by her hair or was hit.

The degree of force necessary to prove forcible rape was addressed by the court in State v. Berniard, 03-484, p. 10 (La.App. 5 Cir. 10/15/03), 860 So.2d 66, 73, writ denied, 03-3210 (La.3/26/04), 871 So.2d 345:

The difference between aggravated rape and forcible rape is the “degree of force employed and the extent to which the victim resists.” State v. Parish, 405 So.2d 1080, 1087 (La.1981); State v. Puckett, 02-997, p. 10 (La.App. 5th Cir.1/28/03), 839 So.2d 226, 231. A greater degree of force is necessary to justify the more serious punishment imposed for aggravated rape. State v. Jackson, 437 So.2d 855, 858 (La.1983). The degree of force employed and the determination of the grade of rape is for the jury to decide. State v. Cepriano, 00-213, p. 9 (La.App. 5th Cir.8/29/00), 767 So.2d 893, 899. Nonetheless, the mere fact the defendant was unarmed and the victim suffered no extensive physical pain or injury does not negate the possibility that an aggravated rape occurred. Puckett, 02-997 at p. 8, 839 So.2d at 231.

The victim’s SANE report reflects that before raping her, the Defendant grabbed her by the neck and threw her against the wall. After dragging the victim by her hair, he grabbed her by the neck once more and threw her onto the bed. Bruises on the victim’s neck were documented and photographed by Grimsley, and the photographs were admitted into evidence. The report also indicates that the victim tried to get the Defendant off of her and he slapped her continuously. When the victim threatened to call the police if he did not get off of her, the Defendant punched the victim in the face. When the victim broke free and attempted to escape through the front door, the Defendant stopped her by grabbing her hair. The victim also tried to escape through her bedroom window but was stopped Ragain by the Defendant who had armed himself with a gun. The Defendant held the gun to her head and threatened to kill the victim and her loved ones if she told anyone. The victim’s trial testimony also reflects that she tried to stop the Defendant by kicking him and that he slapped her repeatedly in the face.

Considering this evidence, the State clearly proved the victim was prevented from resisting through the use of force and threats of physical violence.

Inconsistencies

The Defendant also complains about the inconsistencies between the victim’s trial testimony and either the SANE report or Detective Suire’s report.

As noted by this court in State v. Waguespack, 06-410 (La.App. 3 Cir. 9/27/06), 939 So.2d 636, 642-43, quoting State v. Schexnaider, 03-144, p. 9 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, 456-57 “ ‘[t]he fact that the record contains evidence which conflicts with the testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient.’ ” Also:

“[T]he credibility of a witness, including the victim, is within the discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. ‘[T]he Jackson standard does not serve as a vehicle for a reviewing court to second guess the rational credibility determinations of the fact finder at trial.’ ” [State v.] Schexnaider, [03-144, p. 9 (La.App. 3 Cir. 6/4/03),] 852 So.2d [450] at 457 (citations omitted), quoting State v. Williams, 00-981, p. 7 (La.App. 5 Cir. 4/11/01), 786 So.2d 805, 810, writ denied, 01-1377 (La.3/20/02), 812 So.2d 646. Furthermore, the testimony of the victim alone is sufficient to establish the elements of a sexual offense. Id.
State v. Willis, 05-218, p. 15 (La.App. 3 Cir. 11/2/05), 915 So.2d 365, 378-79, writ denied, 06-0186 (La.6/23/06), 930 So.2d 973.

Id. at 643 (alterations in original).

Considering the evidence as a whole, we find the trial judge made a rational credibility determination in finding the victim’s testimony to be reliable. The ^record reflects the evidence presented by the State was sufficient to prove forcible rape; thus, there is sufficient evidence to support the conviction, and there is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 2:

By this assignment of error, the Defendant asserts that the minutes do not indicate he waived his right to a jury trial. The Defendant contends the only mention of a jury trial waiver within the record was in closing arguments when defense counsel stated, “apparently he [the Defendant] must have a great deal of faith in your judgment, because he chose to waive the jury in this matter.” The Defendant argues the trial court erred in not assuring that he knowingly and voluntarily waived his right to a jury trial.

In response to this assignment of error, the State filed a Motion to Supplement the Record to include the transcript of the proceeding wherein the Defendant waived his right to a jury trial. The motion was granted, and a supplemental record was received in this court, containing therein a transcript of a hearing regarding the Defendant’s waiver of a jury trial. The transcript reflects that he was represented by counsel. Before accepting the waiver of his right to a jury trial, the trial court clearly confirmed that the Defendant understood his right and went a step further by inquiring about his reasons for wanting to waive his right. The trial court also offered the Defendant one last opportunity to discuss any questions he had with his lawyer or the court before waiving his right to a jury trial, which offer the Defendant declined.

Louisiana Code of Criminal Procedure Article 780(A) provides in pertinent part, “A defendant charged with an offense other than one punishable by death |mmay knowingly and intelligently waive a trial by jury and elect to be tried by the judge.”

This court has stated:

In determining whether a defendant voluntarily waived his right to jury trial, a trial court is only required to determine whether the defendant’s waiver was made knowingly and intelligently. See State v. Campbell, 42,099 (La.App. 2 Cir. 6/20/07), 960 So.2d 363. It “does not require a Boykin-like colloquy.” Id. at 367.
Although concrete requirements for determining if a waiver of jury trial is knowingly and intelligently made do not exist, this court has historically required, at a minimum, that there be a transcript containing a colloquy indicating that Defendant knows that he is entitled to a trial by jury and that he does not want to exercise that right. See State v. P.T., 07-665 (La.App. 3 Cir. 12/5/07), 970 So.2d 1255, writ denied, 08-26 (La.5/30/08), 983 So.2d 895; State v. Pierre, 02-277 (La.App. 3 Cir. 10/2/02), 827 So.2d 619 (we reversed the trial court’s finding that the defendant had knowingly waived her right to trial by jury when the transcript of the proceedings in which the right to jury trial was waived was missing, and, once found, indicated that the defendant had some doubts about the waiver and did not explicitly waive her right to trial by jury.)

State v. Bias, 10-1440, pp. 7-8 (La.App. 3 Cir. 5/4/11), 63 So.3d 399, 405, writ denied, 11-1063 (La. 11/14/11), 75 So.3d 939 (footnote omitted).

In State v. Hargrave, 05-1027 (La.App. 3 Cir. 3/1/06), 926 So.2d 41, writ denied, 06-1233 (La.11/22/06), 942 So.2d 552, this court found that the record established a knowing and intelligent waiver of the defendant’s right to trial by jury. The transcript of the defendant’s waiver demonstrated that she was represented by counsel at the waiver hearing. The trial court called the defendant to the stand and examined her before accepting her waiver. Also, the trial court established that the waiver was the defendant’s idea and decision, not simply acquiescence with her counsel’s advice.

InLikewise, in the instant case, we find the Defendant, with the assistance of counsel, made a knowing and voluntary waiver of his right to a trial by jury; thus, there is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 3:

By this assignment of error, the Defendant argues that the trial court erred in denying his motion in limine, violating his constitutional right to present a defense and to effectively cross-examine his accuser. On the morning of the first day of trial, the Defendant filed a written motion in limine, seeking to introduce photographic and testimonial evidence indicating that the victim was having sexual intercourse with another minor. In addition, he sought to introduce cell phone records which included outgoing text messages relating to discussions of sex and a specific photograph of an erect penis of an individual other than the defendant. The Defendant maintained that the evidence was admissible as an exception to the prohibition of reputation evidence contained in La. Code Evid. art. 412. The Defendant also asserted that the evidence would show bias, interest, and/or corruption under La. Code Evid. arts. 403 and 607(D). The Defendant concludes that the trial court effectively denied him his right to the full cross-examination of the victim by limiting the admissibility of potential impeachment evidence.

The State asserts on appeal that the Defendant wanted to use the victim’s past sexual experiences and discipline as a reason for her to be prejudiced as to the Defendant, giving rise to fabricated allegations of rape. The State maintains that Article 607 does not allow for the admission of evidence that is specifically forbidden by Article 412. The State asserts that such an application of the code would contradict the intent of its drafters — to protect victims of sexual crimes and their remaining dignity after being examined and interviewed.

1 i2The Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to be confronted with the witnesses against him. The primary purpose behind this right is to secure for the defendant the opportunity for cross-examination. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. State v. Hillard, 398 So.2d 1057, 1059 (La.1981).
An accused also has a constitutional right to present a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). As a general rule, a party may attack the credibility of a witness by examining him or her concerning any matter having a reasonable tendency to disprove the truthfulness of his or her testimony. LSA-C.E. art. 607(C). The right of an accused sex offender to present a defense is, however, balanced against the victim’s interests under LSA-C.E. art. 412, which is meant to protect the victim of sexual assault from having her sexual history made public.

State v. Zeringue, 03-697, pp. 13-14 (La.App. 5 Cir. 11/25/03), 862 So.2d 186, 195, writ denied, 03-3523 (La.4/23/04), 870 So.2d 298.

In State v. Loyden, 04-1558 (La.App. 3 Cir. 4/6/05), 899 So.2d 166, the defendant’s request on the morning of the trial to question the victims’ past sexual behavior was denied. At trial, the defendant asked the victims’ mother whether the victims ever complained about anything sexual and if she had ever explained the “birds and the bees” to them. The State’s objections to the two questions were sustained. On appeal, the defendant argued that the intent was to show evidence of prior conduct by the two juveniles to explain their behavior and the cause of the medical evidence presented. The court found, however, that the questions were designed to solicit whether the victims had been sexually molested by another person and where they may have received the information necessary to describe the sexual acts.

In the instant case, the Defendant seeks to introduce evidence of the victim’s sexual activity or behavior after the offense was committed to show she was biased |isand had a motive for fabricating a story against him. This evidence is clearly the type of evidence prohibited by Article 412, and any related questions would suggest that the victim was sexually active. Further, the Defendant has not shown how such evidence would show bias or interest on the victim’s part, leading to a motive for fabricating a story against the Defendant. Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 4:

By this assignment of error, the Defendant argues that the trial court erred in failing to grant his motion for a mistrial following a discovery violation by the State. The Defendant asserts that the State failed to comply with discovery procedures when it did not provide investigative information, namely photographs taken during the execution of a search warrant of the Defendant’s home. Then at trial, Detective Sume testified to matters beyond the information contained in the reports provided to the defense.

In support of his argument, the Defendant cites State v. Simmons, 03-20, pp. 19-20 (La.App. 5 Cir. 4/29/03), 845 So.2d 1249, 1261-62, wherein the court stated,

Louisiana’s criminal discovery rules are intended to eliminate unwarranted prejudice arising from surprise testimony and evidence, to permit the defense to respond to the State’s case, and to allow a proper assessment of the strength of the State’s case. La.C.Cr.P. arts. 716-729; State v. Brazley, 97-2987, p. 3 (La.10/14/98) [ (La.9/25/98) ], 721 So.2d 841, 842; State v. Dennis, 00-182, p. 10 (La.App. 5 Cir. 12/14/00) [ (La.App. 5 Cir. 12/13/00)], 777 So.2d 569, 572, writ denied, 01-0163 (La.11/21/01), 802 So.2d 629.
La.C.Cr.P. art. 718 provides for discovery of documents and tangible evidence, including photographs, which are within the possession, custody, or control of the state when items sought are (1) favorable to the defendant and material and relevant to guilt or punishment; (2) are intended for use by the state as evidence at trial; or (3) were obtained from or belong to the defendant. State v. Ray, 423 So.2d 1116, 1118 (La.1982); State v. Ware, 01-194, p. 15 (La.App. 5 Cir. 8/28/01), 795 So.2d 495, 502. Discovery is not limited to what is contained in the district attorney’s file. State v. Lee, 531 So.2d 254 (La.1988).
114The State has a continuing duty of disclosure and if the State, subsequent to ordered disclosure, discovers additional evidence or decides to use a particular item as evidence at trial, the State has a continuing duty to notify the defendant of the evidence and of its intended use at trial. La.C.Cr.P. art. 729.3; State v. Williams, 448 So.2d 659, 664 (La.1984).

In pretrial proceedings, the Defendant in the present case filed a motion for discovery seeking the disclosure of crime scene photographs. A motion for production was also filed by the Defendant which sought the disclosure of all photographs intended for use by the State as evidence at trial. Only photographs of the victim were produced. Nevertheless, at trial, Detective Suire stated he was “pretty sure” he had taken pictures of pertinent items in the victim’s home: He recalled from memory that he inspected the bed in the victim’s bedroom where the offense occurred and noticed a puncture made in the comforter that he believed could have been caused by a knife. He also observed damage to the victim’s bedroom door. No photographs of the comforter or the door were produced in discovery. Later in his testimony, Detective Suire stated that another officer, Lt. R.J. Thibodeaux, must have photographed the comforter and the door because he had the camera. Suire also indicated that Thibodeaux and Officer Jason Hebert probably completed their own reports of the investigation.

After Detective Suire was excused from the stand, the Defendant moved for a mistrial, admitting it was possibly premature, based on Detective Suire’s testimony that there were potentially other reports, information, or photographs that were not provided to the defense. The Defendant also based his motion on surprise that the information existed. The State stressed that Detective Suire assumed that photographs were taken, but he had no personal knowledge of any photographs or any statement by Officer Hebert or Lieutenant Thibodeaux. As such, the State had no knowledge that these photographs or statements existed, and |1sthey were not found in Detective Suire’s case file. The trial court ruled that the motion was premature at that point.

The Defendant’s motion for a mistrial was not revisited or discussed any further at trial. The State did not attempt to introduce or rely upon any photographs that were not disclosed to the Defendant, and Detective Suire testified he had not seen any photographs from the crime scene. Detective Suire’s testimony was based on his memory of the investigation where he saw a puncture mark in the comforter recovered from the victim’s bed and damage to the victim’s door.

Accordingly, we do not find the Defendant has shown the State failed to comply with discovery procedures. Thus, this assignment of error is without merit.

ERRORS PATENT:

In accordance with 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 the record does not indicate the trial court advised the Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform the Defendant of the provisions of Article 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of this opinion and to file written proof that the Defendant received the notice in the record of the proceedings. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

Additionally, we note that the Defendant was sentenced immediately after his motion for new trial was denied by the court, without the required twenty-four-hour delay provided for in La.Code Crim.P. art. 873. However, the record shows defense counsel expressly waived the delay when he announced that they were |inready for sentencing. This court has found an express waiver occurs when defense counsel responds affirmatively when the trial court asks if he is ready for sentencing. See State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La.1/31/03), 836 So.2d 59. Therefore, we conclude this apparent error is without consequence.

DECREE:

The Defendant’s conviction and sentence are hereby affirmed. The trial court is instructed to inform the Defendant of the correct provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of this opinion and to file written proof in the record that the Defendant received the notice.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . Petition for certiorari filed January 19, 2012.

      . Pursuant to La.R.S. 46:1844(W), initials are used to protect the victim’s identity.


source: Caselaw Access Project

author: SAUNDERS, J. EZELL, J.,

license: Public Domain

text:
    STATE of Louisiana v. James Willie WHITE, aka James Willie White, Jr., aka James June White, etc.
    No. 11-1059.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.

      Asa Allen Skinner, District Attorney, 30th JDC, Terry Wayne Lambright, Attorney at Law, Leesville, LA, for Plaintiff/Ap-pellee, State of Louisiana.
    Beth Smith Fontenot, Louisiana Appellate Project, Charles, LA, for Defendant/Appellant, James Willie White.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, J.

hThe Defendant, James Willie White, was charged by bill of information dated May 17, 2010, with the offenses of: 1) possession of marijuana with intent to distribute, a violation of La.R.S. 40:966(A)(1), and 2) obstruction of justice, a violation of La.R.S. 14:130.1(A)(l)(a).

On February 15, 2011, the Defendant filed a Motion to Suppress Evidence in the trial court. A hearing was conducted on the Defendant’s motion on March 22, 2011, at the conclusion of which, the trial court denied the Defendant’s motion to suppress. On April 6, 2011, the Defendant pled guilty to the reduced offense of attempted possession of marijuana with intent to distribute, reserving his right to appeal the trial court’s denial of his motion to suppress, pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

Thereafter, on June 29, 2011, the Defendant was sentenced to serve ten years at hard labor and pay a fine of $2,500, plus court costs. The Defendant did not object to the sentence or file a motion to reconsider sentence.

From this conviction and sentence, the Defendant now appeals, alleging two assignments of error.

FACTS:

Upon investigation by officers from the Louisiana Wildlife and Fisheries Department and the Vernon Parish Sheriffs Department, two discarded bags of marijuana were discovered in the vicinity of two vehicles, parked side by side on the entrance way to a private hunting club in Vernon Parish. After investigation by the officers, the Defendant was arrested at the scene and charged with possession of marijuana with the intent to distribute and obstruction of justice.

| .ERRORS PATENT:

In accordance with 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 that there are no errors patent.

ASSIGNMENT OF ERROR NO. 1:

The Defendant contends that the trial court erred in denying his motion to suppress evidence. Specifically, the Defendant asserts that the stop by the officers was unlawful, that the State failed to prove that the abandoned marijuana belonged to the Defendant, or that the marijuana was abandoned prior to the allegedly unlawful stop. Due to the following reasons, we find that the evidence supports the trial court’s ruling and the trial court did not abuse its discretion in denying the Defendant’s motion. This contention has no merit.

During the hearing on the motion to suppress, only one witness was called to testify. Lieutenant William Tyree, Jr., a nineteen-year veteran with the Louisiana Department of Wildlife and Fisheries, Enforcement Division, testified that he was patrolling in the vicinity of VFW Road, in Vernon Parish, on April 2, 2010. He was primarily looking for persons who might be hunting illegally. Lieutenant Tyree heard a vehicle approaching on the nearby road and walked to the edge of the highway to investigate. He observed a brown colored Chevrolet Pickup backing up on the roadway and turning into a leased property gateway, belonging to the Wilson Pasture Hunting Club. He knew that backing up on the roadway was a violation of the law and that the area where the truck was stopped was private property.

The officer went back to his vehicle and drove to the location, coming upon the truck and another vehicle, a blue Ford Thunderbird, which he originally did not observe. The vehicles were parked next to each other in the hunting club access j^drive. The officer was certain the area in which the vehicles were parked was private property because his own hunting lease was located directly across the highway from the club lease.

He approached the vehicles to determine what they were doing in the area, and a male subject immediately exited the Ford and opened his hood, while the Defendant also exited his vehicle and opened its hood. The officer also noticed a female passenger in back of the Ford, who appeared to be incoherent. Lieutenant Tyree ordered both males to come to him, as he had lost sight of the Defendant when the hood of the truck was opened. He asked both men for identification and asked them what they were doing. Both men initially stated that the driver of the Ford had encountered unspecified vehicle trouble and that the Defendant came to assist. Neither man ever stated the nature of the alleged car problem.

The officer advised both men that they were trespassing on private property. Both men were very nervous, would not make eye contact, and were shaking. At that point, Lieutenant Tyree radioed for assistance from the Vernon Parish Sheriffs Office. When asked whether he had ever been arrested, the Defendant lied, stating that he only had speeding tickets on his record. The Defendant’s extensive criminal history was radioed back to Lieutenant Tyree from the sheriffs office.

Further, the officer testified that such rural, gated locations were frequently used to dump illegal trash and drug needles. He also observed that both men had tattoos associated with inmates and suspected that they might have illegally been associating with each other, as parolees, which was later confirmed to be the case.

When all three people at the scene were separated and questioned, they gave conflicting stories regarding their destination and purpose for being there. The | .(Defendant and the other driver gave consent to search the vehicles, which only turned up a wrapped cigar.

Upon arriving at the scene, Deputy Vance walked around the vehicles, discovering two discarded bags of what later proved to be marijuana, near the driver’s side of Defendant’s truck, about ten feet away. Lieutenant Tyree observed that both bags were dry and pollen-free, despite the heavy dew on the ground and widespread pollen covering the entire area. Lieutenant Tyree did not observe the Defendant discard the bags, although he was the only one of the three persons at the scene who was not under his constant observation after arrival.

After discovering the marijuana, the other driver and his female passenger admitted to the officers that they had called the Defendant to have him deliver marijuana to them for sale at the location. The Defendant maintained his original story of vehicle problems. The officer noted that the Defendant may have had a bottle of transmission fluid in his hand shortly after he initially spotted him near the vehicle, but no such problem with the truck was found. The driver and passenger of the Ford were later released, without criminal charges, as they had no illegal substances in their possession, while the Defendant was arrested and charged, as noted.

In his ruling denying the Defendant’s motion to suppress evidence, the trial court noted that it was familiar with areas such as the access drive where the vehicles were parked and that such areas do commonly constitute private property, thereby giving Lieutenant Tyree a reasonable belief that the Defendant may have been trespassing. Further, the court was also familiar with the problem of illegal trash dumping, giving the officer an additional reason to investigate.

The court also stated that the illegal backing up of the Defendant’s vehicle gave him further cause to approach the Defendant and determine his intentions. |aUpon noting the nervousness of the suspects, the lack of any observable problem with either vehicle, the inconsistent stories, and the later find of the discarded marijuana, the court concluded that Lieutenant Tyree had probable cause for the initial investigation, the initial questioning of the suspects, and the subsequent search of the vehicles, and denied the Defendant’s motion to suppress evidence, accordingly.

When considering claims alleging that the trial court erred in denying a motion to suppress, this court has held:

In reviewing a ruling on a motion to suppress, an appellate court considers the totality of the evidence presented at the suppression hearing. State v. Thomas, 02-471 (La.App. 3 Cir. 10/30/02), 829 So.2d 1137, writ denied, 02-2920 (La.4/21/03), 841 So.2d 789. Furthermore, unless the trial court’s ruling is not supported by the evidence or it is clearly an abuse of discretion, it is not to be overturned by the appellate court. Id.

State v. Leday, 05-1641, pp. 7-8 (La.App. 3 Cir. 5/3/06), 930 So.2d 286, 291.

Regarding the defendant’s claims that the stop of the defendant was illegal, the supreme court held:

While an arrest requires officers to have probable cause to believe that a suspect has committed a crime, see U.S. Const, amend. IV and La. Const, art. I, § 5, an investigatory stop requires a lesser standard of “reasonable suspicion.” Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Louisiana, the investigatory “Temy ” stop is codified in La.Code Crim. Proc. art. 215.1(A): “A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” Like an arrest, an investigatory stop entails a complete restriction of movement, although for a shorter period of time. State v. Bailey, 410 So.2d 1123, 1125 (La.1982).
In making a brief investigatory stop, the police “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 (quoting United States v. Cortez, 449 U.S. 6411, 417-418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). Specifically, our courts have interpreted article 215.1 to require that an officer point to specific and artic-ulable facts to justify an investigatory stop. State v. Huntley, 97-0965, p. 3 (La.3/13/98), 708 So.2d 1048, 1049.

Leday, 930 So.2d at 290 (quoting State v. Sims, 02-2208, pp. 4-5 (La.6/27/03), 851 So.2d 1039, 1043).

In brief, the Defendant argues that Lieutenant Tyree did not have grounds to stop, detain, and question the Defendant. However, as found by the trial court, the officer observed the Defendant commit a traffic violation, by backing up on a public road. Further, Lieutenant Tyree knew, from personal knowledge, that the Defendant was trespassing on private property belonging to the hunting club and that the Defendant was not a member of the club.

Accordingly, it appears that the officer reasonably believed that the Defendant had committed offenses and therefore had the authority to stop and question the Defendant about those matters.

Additionally, the Defendant avers that the State failed to prove that the two bags of marijuana were discarded by the Defendant. As noted, the officer testified that there was heavy dew on the ground that morning, but the bags were dry, indicating that they had been recently discarded. Also, there was a ubiquitous pollen fall in the area, while the bags were pollen-free, also demonstrating that they had been recently discarded.

Lieutenant Tyree also testified that, of the three people at the scene, only the Defendant was out of his sight for a period of time after he initially approached them. Neither of the other two people could have discarded the bags, which were located nearest the Defendant’s vehicle’s driver’s door.

[ ./Therefore, the trial court did not abuse its discretion in finding that the officer had reasonable suspicion that the Defendant committed an offense, providing justification for stopping and questioning the Defendant. Further, State provided evidence that the drugs had been recently discarded and that the Defendant was the person most likely to have done so, a fact further bolstered by the admission by the other two persons that they had arranged to meet and buy marijuana from the Defendant at the location.

For the reasons discussed above, the trial court did not abuse its discretion in denying the Defendant’s motion to suppress evidence. The Defendant’s contention has no merit.

ASSIGNMENT OF ERROR NO. 2:

The Defendant contends that the sentence imposed upon him by the trial court is excessive, given the alleged weakness of the evidence against the Defendant. We find no merit in this claim.

As noted, the Defendant pled guilty to a lesser offense, and one of the original charges was dismissed. Further, the State agreed not to file a habitual offender bill against the Defendant, who was classified as a sixth felony offender, according to the presentence investigation report. The evidence against the Defendant was substantial, as previously discussed, thereby justifying the sentence imposed.

The Defendant pled guilty to attempted distribution of marijuana, a violation of La.R.S. 14:27 and La.R.S. 40:966(A)(1). As such, the Defendant could have received one half of the prescribed penalty of five to thirty years, plus a fine of up to $25,000. See La.R.S. 40:966(B)(3). The Defendant’s sentence of ten years is a midrange sentence, and the fine of $2,500 is far lower than the maximum allowed by law.

| RIn reviewing claims of excessiveness, this court has noted the following in State v. Bailey, 07-130, p. 3 (La.App. 3 Cir. 10/3/07), 968 So.2d 247, 250:

A sentence which falls within the statutory limits may be excessive under certain circumstances. To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.

State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted).

In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted), this court discussed the factors it would consider in order to determine whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals:
In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”

State v. Bailey, 07-130, p. 3 (La.App. 3 Cir. 10/3/07), 968 So.2d 247, 250.

In sentencing the Defendant to ten years, the court reviewed the Defendant’s age, education, employment history, and family situation. The court also noted the serious effects of drug use on society and associated economic harm. The court Ralso reviewed, in detail, the Defendant’s extensive criminal history, going back to 1977 and resulting in Defendant’s classification as a sixth felony offender.

Considering the factors reviewed by the trial court and its great discretion in such matters, as well as the great benefit received by the Defendant as a result of the plea agreement, we reject the argument that the Defendant’s sentence is excessive. Accordingly, this contention by the Defendant has no merit.

DECREE:

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

EZELL, J., dissents and assigns written reasons.

EZELL, J.,

dissenting.

U respectfully dissent for the following reasons.

The majority bases its position on three (3) things. First, is there a law that prohibits backing on a private or public road? None was placed in evidence and I do not think the court took judicial notice or knowledge of that fact or any statute relating to this violation. Second, there is nothing to establish that the road that was backed down was a public road and there is also nothing in the record that proves the area where the Defendant had parked was private property or that a trespassing sign was present.

It is clear that the agent was familiar with the area but that is not enough to give the agent the right to detain the individual and question them without giving them their rights under Miranda.

There is nothing in the record showing that the Defendant was found guilty of either of the criminal acts that the agent used as a basis for detaining and questioning the Defendant.

There is no additional evidence in the record with regard to trespassing; the crime for which the Defendant was detained or the reason for the investigative stop. Likewise, there is no testimony or evidence to the illegality of backing down the road.

|2The law at the time of this arrest in regard to trespassing is clearly set forth in State of Louisiana v. Ronald Depass, 585 So.2d 1215 (La.1991), wherein the basis for arrest was trespassing! As in this case, the Defendant had every right to pull their vehicle off the roadway and there is no evidence that the area where his vehicle was parked was posted with signs.

I am sure the agent knew a great deal about the area, but the law cannot overreach and in this case the boundary has been breached.

For these reasons, I dissent.


author: COOKS, Judge.

text:
    STATE of Louisiana v. Howard S. MOORE a/k/a Howard Su Moore a/k/a Paco.
    No. 11-1080.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.

      Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Howard S. Moore.
    Asa A. Skinner, District Attorney, Terry W. Lambright, Assistant District Attorney, Leesville, LA, for PlaintiffiAppellee, State of Louisiana.
    Court composed of Judges SYLVIA R. COOKS, MARC T. AMY and PHYLLIS M. KEATY.
   COOKS, Judge.

^PROCEDURAL HISTORY

Howard S. Moore (Defendant), was charged with armed robbery, a violation of La.R.S. 14:64, or in the alternative, first degree robbery, a violation of La.R.S. 14:64.1; and with extortion as a principal, violations of La.R.S. 14:24 and 14:66. He pled no contest to the extortion charge on February 11, 2011. The State agreed to dismiss the robbery charges and not to charge Defendant as a habitual offender. The trial court ordered a pre-sentencing investigation. On April 20, 2011, Defendant was sentenced to five years with the Department of Corrections.

Defendant appeals his sentence, arguing it is excessive. He also maintains the trial court did not properly articulate reasons to justify the sentence or adequately consider mitigating factors. For the reasons stated below, we affirm the sentence.

FACTS

Sidney Ortez (Ortez) suffered embarrassment and humiliation during a date with Patrick Smith (Smith) when he struck her causing her to urinate on herself. The next day, Ortez invited Smith to her apartment. She also invited Defendant to exact revenge on Smith and extort money from him in return for what happened on their date. Defendant arrived carrying a BB gun that convincingly appeared to Smith to be a 9mm semi-automatic handgun. Defendant menaced Smith with the handgun, placing it against his head and threatening to shoot him. Defendant also struck Smith twice in the face with his fist while “talking to him about why he had behaved so badly the night before on this date with Miss Ortez.” As a result of the serious blows to Smith’s face he urinated on himself. Defendant asked for additional instruction from Ortez as to what more she wanted done to Smith.

| j>Ortez then decided that taking money from Smith would further satisfy her revenge. Smith had only twenty dollars in cash on his person at that time and handed it over to Defendant. Ortez threatened to file criminal charges against Smith unless he returned the next day with $350, allegedly to pay her rent. The State’s factual recitation at the plea hearing alleged Defendant was “the element of fear ... that was present throughout all of this,” and “his actions qualified his actions as a principal to the commission of the extortion that occurred and the threat that was given to Patrick Smith to pay this money the following day. Mr. Smith’s statement said, in effect, that he agreed to do whatever he had to do to get out of there alive fearing for his life.”

LAW AND DISCUSSION

In accordance with 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.

ASSIGNMENTS OF ERROR NOS. 1 AND 2:

Defendant argues the trial court imposed an excessive sentence without articulating sufficient reasons and without adequately considering mitigating factors. This court has set out a standard to be used in 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).

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.

In deciding whether a sentence shocks one’s sense of justice- or makes no meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061. “[T]he trial judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1[;] the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.” State v. Smith, 433 So.2d 688, 698 (La.1983).

The trial judge stated he considered “the sentencing guidelines in Article 894.1, the pre-sentence report and its contents, [and] the fact that this is this defendant’s third felony offense.” Defendant requested no further explanation of the trial judge’s consideration of the La.Code Crim. P. art. 894.1 factors. The trial court noted that Defendant’s prior felony convictions included attempted ^manslaughter, a violent act, and introducing contraband into a correctional facility, a non-violent act.

In State v. Parent, 02-835 (La.App. 5 Cir. 12/30/02), 836 So.2d 494, writ denied, 03-491 (La.10/31/03), 857 So.2d 472, the defendant was sentenced to fifteen years at hard labor for extortion, along with sentences totaling forty-three additional years for additional convictions, with all the sentences to run consecutively. In that case the defendant threatened to break his victim’s legs and harm her family members if she did not give him the money he demanded. She believed the threats because of the defendant’s prior violent behavior.

In the present case, Defendant asserts that his sentence is excessive in comparison to Ortez’s sentence asserting that he was only trying to help Ortez. Ortez received a probated sentence.

A sentence greater than one received by another defendant for the same crime does not render the sentence cruel and unusual. The disparity of sentences between codefendants is only a factor to be considered along with all other appropriate considerations. Disparity of sentences, even between codefendants involved in the same crime, does not render a sentence disproportionate if the nature of the defendant’s participation or his character or propensities differ significantly from those of his confederates. In providing a wide range of criminal sanctions for violations of a statute, the legislature obviously intended that the judge should exercise his sentencing discretion to impose sentences gradated according to individualized circumstances of the offense and the offender.

State v. Burton, 541 So.2d 329, 331 (La.App. 2 Cir.1989) (citations omitted).

Defendant played a direct, active role in inflicting physical injury on Smith and threatened to shoot Smith as punishment for his behavior the night before with Ortez. Defendant intimidated Smith and placed him in fear of his life in order to extort money from him for Ortez’s benefit.

Defendant was exposed to a potential sentence of one to fifteen years at hard labor. La.R.S. 14:66. His sentence of five years falls in the lower range of |ssentencing. Defendant received a substantial benefit from his plea bargain. Had he been found guilty of armed robbery, the charge dropped because of his plea, he would have been exposed to a possible sentence of ten to ninety-nine years. La.R.S. 14:64. The possible sentence for a conviction of the alternative charge of first degree robbery was three to forty years. La.R.S. 14:64.1. These potential sentences could have been imposed in addition to a potentially longer sentence for extortion. Further, the State agreed not to pursue a habitual offender charge, which carried a potential sentence of ten to thirty years. La.R.S. 15:529.1.

We find the trial court did not abuse its discretion in sentencing Defendant to five years. Defendant’s sentence is affirmed.

AFFIRMED.


author: AMY, Judge.

text:
    STATE of Louisiana v. Jason L. WALTON.
    No. 11-1085.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.

      John F. DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Edward J. Marquet, Lafayette, LA, Mark 0. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Jason L. Walton.
    Jason L. Walton, Angola, LA.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

LA jury convicted the defendant of second degree murder in the shooting death of the victim. The defendant appeals the conviction, questioning the use of a witness’s pre-recorded interview and asserting that his trial counsel was ineffective. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that the victim, Dustin Tutson, along with his girlfriend, Natalie Boutte, were driving Ms. Boutte’s car in Lake Charles on the evening of May 21, 2008. According to Ms. Boutte’s trial testimony, the couple stopped in front of a house where a group of individuals was in the yard. She explained that Mr. Tutson then got out of the vehicle and became involved in an argument. Although Mr. Tutson returned to the vehicle and the couple began driving away, an individual “punched” Ms. Boutte’s window. Ms. Boutte testified that Mr. Tutson stopped, and again got out of the car, and told her to take the car and drive around the block. However, Ms. Boutte stated that she did not leave, but instead got out of the car. She explained that shots were then fired and that Mr. Tutson was hit by the second shot. Ms. Boutte testified that someone then “stomped” on Mr. Tutson’s head after he was shot and that the group left the scene in a black truck.

The Lake Charles Police Department responded when Ms. Boutte called 911. Detective Lecia McCullough stated that, approximately fifteen minutes after the report of the shooting, authorities stopped a truck fitting the description of the vehicle reportedly seen leaving the scene of the shooting. Jason Walton, the defendant, and Brian Robinson were inside of the truck at the time of the stop. Detective McCullough explained that Ms. Boutte was transported to the scene of the stop, where she identified “Jason Walton as the subject, as the subject that shot Dustin Tut-son, and [¡.Brian Robinson was with him.” Detective McCullough explained that the two were taken to the Lake Charles Police Department for interviewing.

According to Detective McCullough, authorities subsequently learned of a third subject who purportedly disposed of the weapon involved in the shooting. That individual, the defendant’s brother, later showed authorities where he had disposed of the weapon. A handgun was found at that location.

Although Mr. Tutson was taken from the scene, he later died at the hospital. The coroner who performed the subsequent autopsy testified that he listed the cause of death as “a gunshot wound to the trunk[.]” A grand jury ultimately indicted the defendant for second degree murder, a violation of La.R.S. 14:30.1. A jury convicted the defendant as charged. Thereafter, the trial court sentenced the defendant to life in prison without benefit of parole, probation, or suspension of sentence.

The defendant appeals, asserting that:

[1.] The trial court was in error to allow the state to introduce the hearsay video statement to police into evidence in lieu of a witness’ testimony.
It was ineffective assistance of counsel for the defense trial counsel to not object during trial of the state introducing evidence of Mr. Walton’s prior criminal convictions.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, we have reviewed this appeal for errors patent on the face of the record. We find no such errors.

Use of Recorded Statement

At trial, the State called Detective McCullough as a witness to testify regarding the investigation. On cross-examination, the defendant introduced a tape of Ms. Boutte’s interview with police for impeachment purposes. Defense counsel also ^suggested that the recording could be used to refresh the detective’s recollection. At that time, the interview was not introduced for the truth of the matter asserted.

Subsequently, and now at issue in this assignment of error, the recorded interview again came to the trial court’s attention after the State called Ms. Boutte to the stand. During her testimony, the State sought to introduce the previously-admitted recorded interview of Ms. Boutte “for unlimited purposes!.]” The State referenced La.Code Evid. art. 803(5), in support of its assertion that the use of the statement was permissible as an exclusion from the hearsay rule. After discussion outside of the presence of the jury, the trial court permitted the use of the recorded interview as non-hearsay pursuant to La.Code Evid. art. 801(D)(1)(a).

Louisiana Code of Evidence Article 801, the basis on which the recorded interview was introduced, provides, in pertinent part:

D. Statements which are not hearsay. A statement is not hearsay if:
|⅜(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(a) In a criminal case, inconsistent with his testimony, provided that the proponent has first fairly directed the witness’ attention to the statement and the witness has been given the opportunity to admit the fact and where there exists any additional evidence to corroborate the matter asserted by the prior inconsistent statement^]

In this regard, the trial court explained that:

It is noted that Ms. Boutte has indicated that her memory was better at the time of the incident. Further, [she] has indicated some statements that may or may not be consistent with that video for which it will be up to the jurors to decide whether they are or are not. But, at this time, it’s going to be received; and the State has indicated that in lieu of any further questioning [it] will adopt the video testimony of Ms. Boutte from this point forward subject to redirect after cross-examination.

Thereafter, the defense began its cross-examination of Ms. Boutte.

As at trial, the defendant questions the introduction of the recorded interview in this fashion, citing State v. Cousin, 96-2973 (La.4/14/98), 710 So.2d 1065 (wherein the supreme court remarked on the limited applicability of La.Code Evid. art. 801(D)(1)(a)).

Preliminarily, we remark that the State’s use of Ms. Boutte’s recorded interview in this case “for unlimited purposes” is not an apparent fit within the dictates of Article 801(D)(1)(a). Although the “de-clarant testifie[d] at trial” and she was “subject to cross-examination concerning the statement,” other aspects of Article 801(D)(1)(a) were not satisfied in this case. Namely, the proponent, the State, did not distinctly establish on what points the recorded interview was inconsistent with Ms. Boutte’s brief testimony. Plainly, the inconsistency of the statement compared to the testimony is a requirement of Subpara-graph (a). Neither is there indication that Ms. Boutte was “first fairly directed” to the statement or provided with an “opportunity to admit the fact,” a further requirement of Subparagraph (a). Instead, Ms. Boutte briefly testified, she affirmed that her memory was better the night she gave the recorded statement |sthan at trial, the recorded interview was adopted, and she was then subject to cross-examination.

However, the larger context of the recorded statement’s introduction into evidence must be considered. First, it was the defense that initially offered the recorded interview upon its questioning of Detective McCullough, although for impeachment purposes. Further, the State called Ms. Boutte to the stand and, not only introduced her statement, but offered the context of the events at issue, albeit briefly. A portion of her testimony included the in-court identification of the defendant as the shooter. Furthermore, the defense was able to cross-examine Ms. Boutte, as to both her recorded interview and any other statements made at trial. Through that cross-examination, the defense was able to squarely lodge challenges to Ms. Boutte’s credibility and recall of the events at issue.

Further, we find no merit in the defendant’s assertion that the introduction of the statement runs afoul of Cousin, 710 So.2d 1065. Rather, the present case does not present the same issue to the court. In Cousin, the supreme court addressed a statement purportedly introduced as impeachment evidence, but later relied upon by the prosecution as substantive evidence. Further, a number of factors in Cousin led the supreme court to conclude that the erroneous introduction of the statement was not harmless error. Notably, the prosecutor “urged the jury to accept the substance of the hearsay statements and to use the statements to convict defendant” during the closing arguments. Id. at 1073. Additionally, the statement was found to be “in the nature of a confession” by the defendant and, thus, “very strong evidence of the defendant’s guilt.” Id. at 1073. Given the importance of the statement in the context of the remainder of the State’s evidence, the supreme court in Cousin determined that it was “unable to say” that the improper use of the evidence did not improperly influence the jury. Id. at 1073.

| (iln this case, however, much of the objected-to evidence by Ms. Boutte was cumulative of other evidence in the record. In particular, Ms. Boutte’s in-court testimony indicated that it was the defendant who shot Mr. Tutson. Brian Robinson testified similarly. Neither did the State obviously and impermissibly focus upon the out-of-court statement in its closing argument. In short, the record as a whole indicates that the introduction of Ms. Boutte’s recorded interview, even if improper, constituted harmless error.

This assignment lacks merit.

Ineffective Assistance of Counsel

The defendant next asserts that his trial counsel was ineffective due to her failure to object to the State’s questioning of the defendant’s mother regarding the defendant’s prior convictions. The defendant contends that this line of questioning undermined defense counsel’s earlier efforts to establish a reasonable possibility of mistaken identity of the shooter.

The Sixth Amendment of the U.S. Constitution provides a defendant with assistance of counsel for his or her defense. See also La. Const, art. 1, § 13. According to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant seeking to establish ineffective assistance of counsel must prove that 1) the defense attorney’s performance was deficient and that 2) the deficiency prejudiced the outcome of the trial.

With regard to the question of whether the defense attorney’s performance was deficient, “defense attorneys are entitled to a strong presumption that their conduct fell within the broad range of reasonable professional assistance.” State v. James, 95-1962,7 p. 5 (La.App. 3 Cir. 2/14/96), 670 So.2d 461, 465, citing United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) and Strickland, 466 U.S. 668, 104 S.Ct. 2052.

Additionally, the defendant must demonstrate that the deficient assistance of counsel prejudiced his defense. State v. Jones, 33,657 (La.App. 2 Cir. 8/23/00), 765 So.2d 1191, writ denied, 00-2779 (La.6/29/01), 794 So.2d 825. In short, the errors must have been so serious as to deprive the defendant of a fair trial. Id., citing Strickland, 466 U.S. 668, 104 S.Ct. 2052. It is not sufficient for a defendant to show that the complained-of error had some conceivable effect on the trial’s outcome. Id. Rather, the defendant is required to establish that, but for the error, “there is a reasonable probability the outcome of the trial would have been different.” Id. at 1199. See also State v. Truehill, 09-1546 (La.App. 3 Cir. 6/2/10), 38 So.3d 1246.

We note that the courts have recognized that an ineffective assistance of counsel claim is typically more properly raised in an application for post-conviction relief than on appeal. See State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). “Where the record, however, contains evidence sufficient to decide the issue, and the issue is raised on appeal by an assignment of error, the issue may be considered in the interest of judicial economy.” Id. at 142.

This issue arises in the context of the defendant’s counsel having called the defendant’s mother, Connie Walton Lewis, to the stand. Defense counsel inquired whether she had personal knowledge of whether the defendant carried weapons. Ms. Lewis responded: “I do not have personal knowledge of that, you know. I’m not saying that he didn’t, because — but, I mean, he never had any around me.” She further denied having seen him with one. Defense counsel also questioned Ms. Lewis regarding the reputations of Brian Robinson and Mr. Tutson.

|sThe complained of inquiries came on cross-examination when the State questioned Ms. Walton as to her son’s prior convictions. It was this line of questioning to which the defendant contends his trial counsel should have objected.

In State v. Robinson, 09-1137, p. 7 (La.App. 4 Cir. 3/24/10), 33 So.3d 1019, 1023, writ denied, 10-1242 (La.12/17/10), 51 So.3d 18, the fourth circuit addressed a State’s questioning of a witness regarding a defendant’s prior convictions, stating that:

The defendant asserts that the trial court erred in allowing the state to question Erica Jones as to her knowledge of his prior criminal convictions. Over defense objections, following a sidebar discussion, the trial court ruled that defense counsel put the defendant’s character at issue on direct examination and, therefore, opened the door for the state to question Jones about his prior convictions. In overruling defense counsel’s objection, the trial court stated the following:

THE COURT:

Counsel, I have to beg to differ with you on that. Once you did, you did. I can’t disagree with Mr. Bair on that and once you go into that — I’ll [sic] just calling it the good neighbor questioning, the loving people, washing cars, watching out for everybody in the neighborhood; that you put his character into evidence ... but knowing there is a clear case where the counsel has opened up the door to character evidence, that you — the questions were very clear and planned and it wasn’t like you were shocked because you mentioned those kind [sic] of things in your opening statement.
The record reflects that the defense opened the door to evidence concerning the defendant’s character. A witness may be cross-examined on any matter relevant to any issue in the case. La. C.E. art. 611. Character witnesses may be cross-examined concerning relevant specific instances of conduct. La. C.E. art. 405. The State has the right to rebut testimony elicited from a witness by the defense. State v. Koon, 96-1208, p. 25 (La.5/20/97), 704 So.2d 756; see also, State v. Asberry, 99-3056, (La.App. 1 Cir. 2/16/01), 808 So.2d 472. We find that under the instant circumstances, the questions were proper.

In this light, we conclude that defense counsel’s failure to object to the State’s questions did not constitute ineffective assistance of counsel. Although to a limited extent, Ms. Lewis’s testimony on direct examination bolstered the defendant’s testimony and thereby permitted the State’s further line of questioning. Also, we are mindful that a defense attorney is entitled to a strong presumption that his or her [ ^representation constituted reasonable professional assistance. See James, 670 So.2d 461.

Further, the second prong of Strickland also requires a demonstration that counsel’s defective performance prejudiced the defendant’s case. Our review of this record indicates no such prejudice. Instead, the jury had ample evidence upon which to base its verdict, without regard to the defendant’s prior criminal convictions. Again, the jury heard from both Ms. Boutte and Brian Robinson that it was the defendant who shot the victim.

This assignment lacks merit.

DECREE

For the foregoing reasons, the defendant’s conviction is affirmed.

AFFIRMED.

      . Article 803 provides, in pertinent part:
      Art. 803. Hearsay exceptions; availability of declarant immaterial
      The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

      (5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence and received as an exhibit but may not be taken into the jury room. This exception is subject to the provisions of Article 612.
      Article 612 states:
      B. Criminal cases. In a criminal case, any writing, recording, or object may be used by a witness to refresh his memory while testifying. If a witness asserts that his memory is refreshed he must then testify from memory independent of the writing, recording, or object. If while testifying a witness uses a writing, recording, or object to refresh his memory an adverse party is entitled ... to inspect it, to examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

      . Louisiana Code of Evidence Article 404(B)(1) provides, in pertinent part:
      Except as provided in Article 412 [victim's past sexual behavior], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.


author: PICKETT, Judge.

text:
    Anthony J. BESLIN v. ANADARKO PETROLEUM CORP., et al.
    No. CA 11-1523.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.

      Dan Boudreaux, Law Offices of Keith R. Giardina, Baton Rouge, LA, for Interve-nor/Appellant, Liberty Mutual Insurance Co.
    Christopher S. Mann, Lance M. Sanni-no, Ian Alexander MacDonald, Jones, Walker, Waechter, Poitevent, Carrére & Denégre, L.L.P., New Orleans, LA, for Defendants/Appellees, Van S. Spinks, Grey Wolf Drilling Company, L.P., Grey Wolf Holdings Company.
    Bennett Boyd Anderson, Jr., Keith P. Saltzman, Anderson & Dozier, Lafayette, LA, for Plaintiff/Appellee, Anthony J. Bes-lin.
    Deborah DeRoche Kuchler, Leigh Ann T. Schell, Kuchler, Polk, Schell, Weiner, & Richeson, L.L.C., New Orleans, LA, for Defendant/Appellee, Anadarko Petroleum Corp.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   PICKETT, Judge.

Ijntervenor appeals grant of summary judgment in favor of third-party defendant, dismissing intervenor’s claims against defendant. For the reasons set forth below, we reverse the judgment and remand for further proceedings.

FACTS

Anthony Beslin was injured in the course and scope of his employment with Offshore Energy Services, Inc. (OES). Liberty Mutual Insurance Company (Liberty) issued a policy for workers’ compensation insurance in favor of OES and paid workers’ compensation benefits to or on behalf of Mr. Beslin. Mr. Beslin filed suit against Grey Wolf Drilling Company, L.P. (Grey Wolf) and other defendants to recover damages he suffered as a result of the accident.

Liberty intervened in Mr. Beslin’s lawsuit, seeking reimbursement for the workers’ compensation disability benefits and medical expenses it paid to or on behalf of Mr. Beslin and that it is entitled to offset future disability payments and medical expenses which might become due Mr. Bes-lin. Grey Wolf asserted in its Answer, “Intervenor has failed [to] state a cause of action against Grey Wolf for which relief can be granted,” then denied each allegation set forth in Liberty’s Petition of Intervention for various reasons. Thereafter, Mr. Beslin and Grey Wolf settled the law suit without Liberty’s knowledge. Other named defendants had been dismissed.

At the time Mr. Beslin was injured, OES was performing services on a land rig pursuant to a Master Service Contract with Anadarko Petroleum Corporation. The rig was owned by Grey Wolf. Anadarko contracted the rig and drilling services from Grey Wolf. The Master Service Contract required OES to provide workers’ compensation insurance and also required OES’s insurers to waive their frights of subrogation against Anadarko and its subcontractors, which included Grey Wolf.

To satisfy the requirements of the Master Service Contract, OES obtained an insurance policy from Liberty that included an endorsement entitled “Waiver of Our Right to Recover from Others Endorsement” which read:

We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us).

The “Schedule” on this endorsement provided:

All persons or organizations that are parties to a contract that requires you [OES] to obtain this agreement, provided you executed the contract before the loss.

Liberty and Grey Wolf filed cross motions for summary judgment. Grey Wolf urged it was entitled to summary judgment dismissing Liberty’s claims because Liberty waived its right to reimbursement in the policy of workers’ compensation insurance it issued to Mr. Beslin’s employer. The trial court granted Grey Wolfs motion for summary judgment and denied Liberty’s motion for summary judgment. Liberty appeals.

ASSIGNMENT OF ERRORS

Liberty assigns three errors in which it argues:

(1) The trial court erred in not applying La.R.S. 23:1102(C(1);
|a(2) The trial court erred in granting summary judgment because Grey Wolf did not affirmatively plead the waiver of subrogation as a defense in its answer;
(3) Summary judgment was improperly granted because genuine issues of material fact exist as to whether Grey Wolf is entitled to judgment as a matter of law.

DISCUSSION

Finding merit in Liberty’s second assignment of error, we reverse the judgment of the trial court. In its second assignment of error, Liberty contends the trial court’s grant of summary judgment in favor of Grey Wolf was error because: (1) the basis of Grey Wolfs motion for summary judgment is an affirmative defense that Grey Wolf was required to set forth in its Answer; (2) Grey Wolf did not include the affirmative defense in its Answer, and (3) without the affirmative defense, Grey Wolf failed to prove it was entitled to summary judgment.

Grey Wolf responds that it put Liberty on notice that it contested Liberty’s right to subrogation when it asserted in its Answer, “Intervenor has failed [to] state a cause of action against Grey Wolf for which relief can be granted.” Following this assertion, Grey Wolf denied each allegation set forth in Liberty’s Petition of Intervention for various reasons. No allegation in Grey Wolfs Answer relates to Liberty’s waiver of its right of subrogation.

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. La. Safety Ass’n of Timbermen Self-Insurers Fund v. La. Ins. Guar. Ass’n, 09-23 (La.6/26/09), 17 So.3d 350. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions |4on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2).

The initial burden of proof is on the movant to show that no genuine issue of material fact exists. La.Code Civ.P. art. 966(C)(2). If the movant will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim. He must, however, point out that there is an absence of factual support for one or more elements essential to the claim. Id. Once the movant has met his initial burden of proof, the burden shifts to the adverse party “to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial.” Id.

Pursuant to La.Code Civ.P. art. 1005, a defendant’s answer “shall set forth affirmatively ... estoppel, extinguishment of the obligation in any manner ... and any other matter constituting an affirmative defense.” Article 1005 further provides that if an affirmative defense is mistakenly designated as a peremptory exception or a peremptory exception has been mistakenly designated as an affirmative defense, “and if justice so requires, the court ... shall treat the pleading as if there had been a proper designation.”

The exception of no right of action tests whether the plaintiff is the person in whose favor the law grants the cause of action asserted in the petition. Howard v. Adm’rs of Tulane Edue. Fund, 07-2224 (La.7/1/08), 986 So.2d 47. It assumes the petition states a valid cause of action for some person and questions whether the plaintiff in the case at issue is a member of the class that has a legal interest in the subject matter of the litigation. Reese v. State Dep’t of Pub. Safety and Corr., 03-16155 (La.2/20/04), 866 So.2d 244. All well-pleaded facts in the petition are taken as true. Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 10-2267, 10-2272, 10-2275, 10-2279, 10-2289 (La.10/25/11), 79 So.3d 246.

Liberty asserted in its Petition of Intervention that it is entitled to be reimbursed for the workers’ compensation disability benefits and medical expenses it paid for Mr. Beslin and that it is entitled to offset future disability payments and medical expenses which might become due Mr. Beslin against any amounts he recovered from third parties. This right of action is provided to workers’ compensation insurers in La.R.S. 23:1101. Accordingly, Liberty does state a right of action in its Petition of Intervention.

The basis of Grey Wolfs Motion for Summary Judgment is that Liberty waived its right to reimbursement. Waiver is an affirmative defense which must be expressly plead in the answer. Garland v. Town of Ville Platte, 198 So.2d 451 (La.App. 3 Cir.1967). Furthermore, the exception of no right of action cannot be used to raise an affirmative defense. Madisonville State Bank v. Glick, 05-1372 (La.App. 3 Cir. 5/3/06), 930 So.2d 263. Therefore, the proviso of Article 1005 does not assist Grey Wolf, and its failure to plead Liberty’s waiver of its right to subrogation as an affirmative defense renders the trial court’s grant of summary judgment erroneous.

DISPOSITION

The judgment of the trial court granting summary judgment in favor of Grey Wolf is reversed, and this matter is remanded for further proceedings. All costs are assessed to Grey Wolf.

REVERSED AND RENDERED.

      . Louisiana Revised Statutes 23:1102(0(1) provides:
      When a suit has been filed against a third party defendant in which the employer or his insurer has intervened, if the third party defendant or his insurer fails to obtain written approval of the compromise from the employer or his insurer at the time of or prior to such compromise and the employee fails to pay to the employer or his insurer the total amount of compensation benefits and medical benefits out of the funds received as a result of the compromise, the third party defendant or his insurer shall be required to reimburse the employer or his insurer to the extent of the total amount of compensation benefits and medical benefits previously paid to or on behalf of the employee to the extent said amounts have not been previously paid to the employer or his insurer by the employee pursuant to the provisions of Subsection B of this Section. Notwithstanding such payment, all rights of the employer or his insurer to assert the defense provided herein against the employee’s claim for future compensation or medical benefits shall be reserved.