text:
    STATE ex rel. Courtney SAVOY v. STATE of Louisiana.
    No. 2011-KH-2690.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Savoy, Courtney; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. J, Nos. 93663, 103336; to the Court of Appeal, Third Circuit, No. KH 10-01245.

Denied. La.C.Cr.P, art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


source: Caselaw Access Project

license: Public Domain

text:
    Edward Earl HARRIS v. Burl N. CAIN, Warden, Louisiana State Penitentiary, et al.
    No. 2011-CI-2699.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Harris, Edward Earl; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 485,-709; to the Court of Appeal, First Circuit, No. 2011 CA 0657.

Denied.


text:
    STATE ex rel. Joe W. MILLER v. STATE of Louisiana.
    No. 2011-KH-2704.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Miller, Joe W.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 01-4570; to the Court of Appeal, Fifth Circuit, No. 11-KH-898.

Denied.


text:
    STATE ex rel. Andrew D. WETZEL v. STATE of Louisiana.
    No. 2011-KH-2705.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Wetzel, Andrew D.; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 472552; to the Court of Appeal, First Circuit, No. 2011 KW 1572.

Denied. Moot.


text:
    STATE ex rel. Eddie LAMBERT v. STATE of Louisiana.
    No. 2011-KH-2706.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Lambert, Eddie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 455-807; to the Court of Appeal, Fourth Circuit, No. 2011-K-1462.

Denied.


text:
    STATE ex rel. Troy RANDOLPH v. STATE of Louisiana.
    No. 2011-KH-2707.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Randolph, Troy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 489-608; to the Court of Appeal, Fourth Circuit, No. 2011-K-1308.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D)


text:
    STATE ex rel. Jamarcus FOWLER v. STATE of Louisiana.
    No. 2011-KH-2718.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Fowler, Jamarcus; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 09-1466; to the Court of Appeal, Fifth Circuit, No. 11-KH-932.

Denied.

GUIDRY, J., recused.


text:
    STATE ex rel. Richard LAY v. STATE of Louisiana.
    No. 2011-KH-2720.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Lay, Richard; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 383759-F; to the Court of Appeal, First Circuit, No. 2011 KW 1568.

Denied.

WEIMER, J., recused.


text:
    Barbaro MARTINEZ v. Robert TANNER, Warden, Rayburn Correctional Center & Ivy Morris, Corrections Records.
    No. 2011-CI-2732.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Martinez, Barbaro; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 581,100; to the Court of Appeal, First Circuit, No. 2011 CA 0692.

Denied.


text:
    STATE ex rel. Harry Lee ALEXANDER v. STATE of Louisiana.
    No. 2011-KH-2733.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Alexander, Harry Lee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. I, No. 46982; to the Court of Appeal, Third Circuit, No. KH 11-00338.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.

KNOLL, J., recused.


text:
    STATE ex rel. Jose Lima CASTRO v. STATE of Louisiana.
    No. 2011-KH-2734.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Castro, Jose Lima; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 705-478; to the Court of Appeal, Fifth Circuit, No. 11-C-998.

Denied.


text:
    STATE ex rel. Decameo Marquis REYNOLDS v. STATE of Louisiana.
    No. 2011-KH-2737.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Reynolds, Deeameo Marquis;— Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lincoln, 3rd Judicial District Court Div. B, No. 55,715; to the Coui-t of Appeal, Second Circuit, No. 47,028-KH.

Denied.


text:
    STATE ex rel. Simpson WRIGHT v. STATE of Louisiana.
    No. 2011-KH-2754.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Wright, Simpson; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 03-1124; to the Court of Appeal, Fifth Circuit, No. 11-KH-1033.

Denied.

GUIDRY, J„ recused.


text:
    STATE ex rel. Willie PRICE, Jr. v. STATE of Louisiana.
    No. 2011-KH-2757.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Price Jr., Willie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 471-411; to the Court of Appeal, Fourth Circuit, No. 2011-K-1628.

Denied.


text:
    STATE ex rel. Larry THOMAS, Jr. v. STATE of Louisiana.
    No. 2011-KH-2758.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Thomas Jr., Larry; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. A, No. 240,484; to the Court of Appeal, Second Circuit, No. 47,-035-KH.

Denied.


text:
    STATE ex rel. Justin JONES v. STATE of Louisiana.
    No. 2011-KH-2759.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Jones, Justin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, Nos. 252,286, 252,287; to the Court of Appeal, Third Circuit, No. KH 11-00120.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Rocky BOURG v. STATE of Louisiana.
    No. 2011-KH-2766.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Bourg, Rocky; — Plaintiff; Applying For Supervisory' and/or Remedial Writs, Parish of Allen, 33rd Judicial District Court Div. B, No. NO NUMBER; to the Court of Appeal, Third Circuit, No. KH 11-00960.

Denied.


text:
    STATE ex rel. Sugar Ray LOUIS v. STATE of Louisiana.
    No. 2011-KH-2772.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Louis, Sugar Ray; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 406-677; to the Court of Appeal, Fourth Circuit, No. 2011-K-1485.

Denied.


text:
    STATE ex rel. Michael BIRKLETT v. STATE of Louisiana.
    No. 2011-KH-2773.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Birklett, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 4, No. 157,033; to the Court of Appeal, Second Circuit, No. 47,-065-KH.

Denied.


text:
    STATE ex rel. Joe W. MILLER v. STATE of Louisiana.
    No. 2011-KH-2787.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Miller, Joe W.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 01-4570; to the Court of Appeal, Fifth Circuit, No. 11-KH-925.

Denied.


text:
    STATE ex rel. Robere NGUYEN v. STATE of Louisiana.
    No. 2011-KH-2802.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Nguyen, Robere; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 496-824; to the Court of Appeal, Fourth Circuit, No. 2011-K-1468.

Denied.


text:
    STATE ex rel. Kerwin MARIGNY v. STATE of Louisiana.
    No. 2011-KH-2803.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Marigny, Kerwin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 474-063; to the Court of Appeal, Fourth Circuit, No. 2011-K-1410.

Denied.


text:
    STATE ex rel. Willie POGUE v. STATE of Louisiana.
    No. 2011-KH-2813.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Pogue, Willie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. A, No. 991610; to the Court of Appeal, First Circuit, No. 2011 KW 1735.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Angel PEDROSO v. STATE of Louisiana.
    No. 2012-KH-0008.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Pedroso, Angel; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 86-2410; to the Court of Appeal, Fifth Circuit, Nos. 10-KH-136, 08-WR-966.

Denied.


text:
    STATE ex rel. Michael MEAD v. STATE of Louisiana.
    No. 2012-KH-0018.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Mead, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 406-128; to the Court of Appeal, Fourth Circuit, No. 2011-K-1685.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172; State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030.


text:
    STATE ex rel. Troy RANDOLPH v. STATE of Louisiana.
    No. 2012-KH-0482.
    Supreme Court of Louisiana.
    July 27, 2012.
   In re Randolph, Troy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, Nos. 489-608, 489-799; to the Court of Appeal, Fourth Circuit, Nos. 2011-K-1308, 2011-K-0774.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


author: WILLIAMS, J. DREW, J.,

text:
    STATE of Louisiana, Appellee v. Craig OLIPHANT, Appellant.
    No. 46,927-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 2012.
    Dissenting Opinion on Denial of Rehearing May 10, 2012.

      Thomas H. Fields, III, Chris Ganner, John R. Joyce, Alicia R. Reitzell, for Appellant.
    Jerry L. Jones, District Attorney, Charles L. Brumfield, Edward D. Young, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and SEXTON (Pro Tempore), JJ.
   WILLIAMS, J.

liThe defendant, Craig Oliphant, was charged by bill of information with vehicular homicide, a violation of LSA-R.S. 14:32.1, and hit-and-run driving, a violation of LSA-R.S. 14:100. Pursuant to a plea agreement with the state, the defendant pled guilty to the vehicular homicide charge, and the state agreed to dismiss the hit-and-run driving charge. Following a sentencing hearing and a motion to reconsider sentence, the district court sentenced the defendant to serve 25 years at hard labor, with credit for time served. The first 15 years of the defendant’s sentence was ordered to be served without benefit of probation, parole or suspension of sentence. The district court also imposed a fine of $10,000, or, in default of payment thereof, imposed a sentence of one year in prison. The court ordered the default time to run consecutively to the hard labor sentence. The defendant was ordered to participate in court-approved substance abuse and driver improvement programs. The district court designated the offense of conviction, vehicular homicide, as a crime of violence, as defined by LSA-R.S. 14:2. The defendant now appeals.

After reviewing the record and the applicable laws, we reverse that portion of the sentence which designated vehicular homicide as a crime of violence. We also vacate the defendant’s 25-year sentence and $10,000 fine, and we remand this matter to the trial court for resentencing, with instructions to impose a sentence of not more than 15 years at hard labor.

FACTS

On February 8, 2009, at approximately 10:30 p.m., the defendant was traveling along U.S. Highway 165, from Bastrop, Louisiana towards Bonita, | ¡Louisiana. Cravis M. Scott and Frederick Matthews were standing on the shoulder of the highway in front of the home of Scott’s mother. The defendant veered onto the shoulder of the road and hit Scott with his vehicle, knocking him into Matthews; both men landed in a nearby ditch. Matthews was injured as a result of the accident; however, Scott was pronounced dead at the scene.

After the impact, the defendant continued driving. He later stated that he believed he had struck a garbage can or a mailbox. Subsequently, he was stopped by a Morehouse Parish Sheriffs deputy, who ordered him to return to the scene. When the defendant returned to the scene, he was advised of his Miranda rights and questioned about the incident. The defendant denied consuming any alcoholic beverages; however, he performed poorly on a field sobriety test. The defendant was later transported to the Morehouse Parish jail, where his blood alcohol content was measured at .247g%. The defendant was charged with vehicular homicide, a violation of LSA-R.S. 14:32.1, and hit-and-run driving, a violation of LSA-R.S. 14:100. While incarcerated, the defendant was released from jail, on his own recognizance, to attend a substance abuse program at the Rayville Recovery Center. He completed the program and was returned to the Morehouse Parish jail.

As stated above, on July 19, 2010, the defendant pled guilty to vehicular homicide. As a part of the plea bargain, the state agreed to dismiss the charge of hit- and-run driving. Following a very lengthy sentencing hearing, the defendant was sentenced to serve 25 years in prison at hard labor, with credit for time served. The court also imposed a fine in lathe amount of $10,000, or, in default of payment thereof, the defendant would serve one year in jail. The default time was ordered to run consecutively to the hard labor sentence. The defendant was ordered to participate in court-approved substance abuse and driver improvement programs. Pursuant to LSA-C.Cr.P. art. 890.1, the district court designated the offense of conviction as a crime of violence as defined by LSA-R.S. 14:2.

The defendant filed a motion to reconsider sentence, which was granted. The court amended the defendant’s sentence to provide that the first 15 years of the 25-year sentence would be served without benefit of parole, probation, or suspension of sentence. No other previously imposed conditions were amended.

The defendant now appeals.

DISCUSSION

The defendant contends the district court erred in designating the offense of vehicular homicide as a “crime of violence.” He argues that the offense is not enumerated in LSA-R.S. 14:2, and the designation of the offense as a crime of violence will affect his accrual of good-time credit for time served.

On the other hand, the state contends the court correctly designated the offense as a crime of -violence. The state argues that the very definition of vehicular homicide includes the use of physical force against the person of another.

|4LSA-C.Cr.P. art. 890.1 provides:

A. When the court imposes a sentence, the court shall designate whether the crime involved is a crime of violence or an attempted crime of violence as defined or enumerated in R.S. 14:2(B).
B. Notwithstanding any provision of law to the contrary, if a person is convicted of or pleads guilty to a crime of violence as defined or enumerated in R.S. 14:2(B) and is sentenced to imprisonment for a stated number of years or months, the sentencing court may deny or place conditions on eligibility for diminution of sentence for good behavior unless diminution of sentence is prohibited by R.S. 15:571.3(C) or (D).[]

1BLSA-R.S. 14:2(B) provides, in pertinent part:

In this Code, “crime of violence” means an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon[.]

A number of offenses, and attempted offenses, are included in the statute as crimes of violence. However, the list of offenses enumerated in the statute is illustrative, not exclusive. State v. Smith, 45, 430 (La.App.2d Cir.8/11/10), 47 So.3d 553, writ denied, 2010-2384 (La.3/4/11), 58 So.3d 474; State v. Hinton, 2008-1849 (La.App. 1st Cir.2/13/09), 6 So.3d 242.

LSA-R.S. 14:29 provides:

Homicide is the killing of a human being by the act, procurement, or culpable omission of another. Criminal homicide is of five grades:
(1) First degree murder.
(2) Second degree murder.
(3) Manslaughter.
(4) Negligent homicide.
(5) Vehicular homicide.

The definition of vehicular homicide is set forth in LSA-R.S. 14:32.1. This statute provides, in pertinent part:

IrA- Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance, whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exist and such condition was a contributing factor to the killing:
(1) The operator is under the influence of alcoholic beverages as determined by chemical tests administered under the provisions of R.S. 32:662.
(2) The operator’s blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.

First, we note that any homicide can be construed as a violent offense. However, at issue is not whether the offense was executed in a violent manner, but whether vehicular homicide generally, as defined in LSA-R.S. 14:32.1, is a “crime of violence,” as defined by 14:2. See, State v. Hinton, supra; State v. Fontenot, 2006-226 (La.App. 3d Cir.7/12/06), 934 So.2d 935.

The issue raised herein presents a question of law and is, therefore, subject to de novo review. State v. Smith, 99-2094, 99-2015, 99-2019, 99-0606 (La.7/6/00), 766 So.2d 501; State v. Hinton, supra. In construing the applicable criminal statutes, we consider two established rules of statutory construction: (1) all criminal statutes are construed strictly; and (2) the words of a statute must be given their everyday meaning. State v. Hinton, supra, citing State ex rel. Robinson v. Blackburn, 367 So.2d 360 (La.1979); see also LSA-R.S. 14:3.

We also note that LSA-R.S. 14:2 specifically designates first degree | -murder, second degree murder and manslaughter as crimes of violence. Noticeably absent from this list are the offenses of negligent homicide and vehicular homicide. As noted above, vehicular homicide is defined as the killing of a human being caused by an offender’s operation of a motor vehicle when the offender’s blood alcohol concentration is 0.08 percent or more, whether or not the offender intended to cause death or great bodily harm. See, LSA-R.S. 14:32.1. An offense is a “crime of violence” if an element of the offense involves the use of physical force against the person of another in the course of committing the offense. LSA-R.S. 14:2.

After reviewing this record in its entirety, we find that the district court erred in designating vehicular homicide as a crime of violence. Vehicular homicide combines the following elements: (1) the killing of a human being (2) caused by an offender’s operation of a motor vehicle (3) when the offender’s blood alcohol concentration is 0.08 percent or more. However, the commission of the offense does not necessarily require, as an essential element, the use, attempted use, or threatened use of physical force against the person of another.

Clearly, the undisputed evidence in this case proves that the defendant drove his vehicle, while markedly intoxicated, and caused the death of Cravis Scott and injuries to Frederick Matthews. Although the defendant struck Mr. Scott with his vehicle and drove away from the scene, there is nothing in the record to support a finding that the defendant intentionally used physical force against Mr. Scott or Mr. Matthews. For these reasons, we reverse the district court’s finding that vehicular | shomicide, particularly under the facts of this case, is a crime of violence.

Sentence—LSA-C.Cr.P. art. 89LI Factors

The defendant also contends the district court erred in failing to consider certain factors and/or improperly weighing certain factors set forth in LSA-C.Cr.P. art. 894.1. The defendant urges that the district court failed to comply with numerous factors which will be discussed below.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-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.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297.

The articulation of the factual basis for a sentence is the goal of LSA-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 Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267. 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.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 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.9/28/07), 964 So.2d 351. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. 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).

In the instant case, on January 4, 2011, the district court conducted an extensive sentencing hearing, wherein the defendant and several witnesses had an opportunity to make statements and present testimony. Following the defendant’s presentation, the state presented testimony from many witnesses, including the deceased victim’s wife, mother, sisters, brother-in-law and a longtime neighbor/family friend. Thereafter, the district court conducted a very thorough review of the presentence investigation report, which included the defendant’s social history, rehabilitation efforts, prior criminal history and the seriousness of the offense.

The defendant argues at length in his brief, challenging what he refers to as the court’s “improper” or “incorrect” consideration of the sentencing criteria set forth in Art. 894.1. For the purpose of clarity, we will address each of his arguments.

First, the defendant contends the district court improperly gave undue weight to the injuries sustained by Matthews, the other victim of the accident. The defendant argues that the judge improperly stated that both |inScott and Matthews “could have been killed” as a result of the defendant’s actions.

It is undisputed that both Matthews and Scott were standing on the shoulder of the highway. It is also undisputed that the defendant’s vehicle struck Scott, causing Scott to fall into Matthews. The district judge merely noted that the defendant’s criminal conduct caused injury to both victims, and both victims could have been killed as a result of the defendant’s conduct. The district judge correctly noted that Scott was killed almost instantly and “his friend somehow survived.” Contrary to the defendant’s assertions, we find that it is appropriate during the sentencing phase for the district court to consider all of the facts and circumstances surrounding the commission of the offense and all of the injuries sustained by the victims as a result of the defendant’s criminal conduct. Thus, defendant’s argument lacks merit.

Next, the defendant contends the district court incorrectly compared the offense of vehicular homicide to an offense which required proof of specific intent to kill or harm. He argues that the court did not adequately consider his lack of intent to cause bodily harm.

During its comments, the district court opined that the defendant’s actions, in driving a vehicle with a blood alcohol level which was nearly three times the legal limit, was “no different from a person putting a bullet [in a gun], pointing that gun at another human being, pulling the trigger, and killing that person.” The court also stated, “A gun is a dangerous weapon and so is a motor vehicle in the hands of an intoxicated person, especially In one who was as intoxicated as you were on the night of this tragedy.” The court did not conclude that the defendant specifically intended to kill Scott. Rather, the court merely made an analogy of two instances to explain its belief that someone who was as voluntarily mentally impaired as this defendant, who made a decision to drive a vehicle, should have anticipated adverse consequences as a result of his actions.

Next, the defendant raises two arguments with regard to comments made by the district court concerning the conduct of the law enforcement officers on the night of the accident and the conduct of jail officials after the defendant was booked into the Morehouse Parish jail. The defendant contends the district court “spent some time and some emotion” commenting on the investigating officers’ actions in allowing the defendant to drive back to the accident scene and releasing the defendant’s vehicle to him shortly after the accident. He asserts that he was under arrest at that time, and he was only following the instructions that were given to him by the law enforcement officers. The defendant also contends the district court improperly voiced its disagreement with the jail officials’ decision to release the defendant from jail and allow him to attend a substance abuse center after his arrest, without having to post a bond.

With regard to the comments concerning the defendant being allowed to drive back to the scene of the accident, the court’s statements, in proper context, are as follows:

Now, the court sat during the bond reduction hearing and also read various — I believe the 48 hour affidavit in this case, as well as several other, I believe, the initial police reports in this case. There was some mention in the | ^reports that initially after Mr. Oliphant was stopped, that he was told to get back into his vehicle and drive, which I find to be outrageous. Here’s a man who had just been involved in a serious accident involving the death of one man and he was told to get back in his vehicle and drive back to the scene? The Court was also disappointed in many ways with the way the entire investigation was conducted.

Additionally, the sentencing transcript reflects that the district judge compared the defendant’s post-arrest participation in a substance abuse rehabilitation program, without posting a bond, to “a first or second degree murderer being allowed the same opportunity.” The court noted that it had not issued an order for the defendant to be released on his own recognizance to attend the substance abuse program.

We find that the district court’s comments indicate that the court was concerned with the procedure utilized by the law enforcement officers in the investigation of the incident, and the subsequent arrest of the defendant. There is nothing in the transcript to indicate that these comments were used by the court as aggravating or mitigating factors, affecting the defendant’s sentence. The district court can comment on the evidence of record and consider all of the facts and circumstances surrounding the commission of the offense. Clearly, the defendant’s post-arrest release on his own recognizance to a substance abuse treatment center was relevant to the court in fashioning the sentence for this particular defendant.

By his next argument, the defendant contends the district court erroneously stated the instant offense was not the defendant’s first offense, but the defendant was “just never caught” before the instant offense. He argues that the court did not consider the fact that the defendant had no prior | ^offenses.

The defendant’s argument that the district court did not consider the fact that the instant offense was his first offense is belied by the record. The court stated, “Mr. Oliphant, this factor helps you to some extent in that the presentence report reflects that you have no juvenile or adult criminal history[.]” The court also remarked that there “may have been no documented reports of the defendant drinking and driving; however, the level of the defendant’s drinking led the court to believe it was actually the first time the defendant had been caught for his actions.” A witness at the sentencing hearing testified that the defendant was known in the area to be a person who drank constantly and then drove around the area. Thus, the court’s comments and considerations were not inappropriate, as the trial court may consider both prior criminal activity and hearsay evidence during the sentencing hearing. See, State v. Pamilton, 43,112 (La.App.2d Cir.3/19/08), 979 So.2d 648, writ denied, 2008-1381 (La.2/13/09), 999 So.2d 1145; State v. Boyte, 42,763 (La.App.2d Cir.12/19/07), 973 So.2d 900, writ denied, 2008-0175 (La.6/20/08), 983 So.2d 1272; State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218.

Next, the defendant contends during the sentencing colloquy, the district court criticized him for seeking rehabilitation, and later indicated that he would likely “re-offend” if he did not seek professional help. He also contends the district court considered the defendant’s “character and attitude” and whether he would commit another offense while he was intoxicated. The defendant argues that in doing so, the court failed to 114properly consider the fact that he had, in fact, completed an alcohol treatment program, regularly attended AA meetings, and regularly spoken publicly on the subject of drinking and driving.

There is nothing in the record that indicates that the district court was critical of the defendant’s decision to enter into a substance abuse rehabilitation center. The court merely commented on the particular procedure under which the defendant was allowed to do so. Additionally, the court stated that it was aware, from the defendant’s testimony at the sentencing hearing and certain documents filed in the record, that the defendant had sought “appropriate attention for [his] drinking problem.”

The defendant further contends the district court failed to consider the excessive hardship his incarceration would create for him and his dependents, as the court inaccurately asserted that the defendant’s daughters would recover (from his absence) over time. He argues that the court also failed to consider the sentencing hearing testimony that indicated the defendant was a great father and was very involved in his daughters’ lives.

Our review of the record reveals that the district court noted that the defendant was a divorced businessman and the father of two daughters, with whom he shared a very close relationship. The district court clearly stated that it was aware of the defendant’s relationship with his daughters; however, the court concluded the relationship could not totally mitigate the defendant’s sentence. The court also specifically noted that the defendant’s incarceration would entail some hardship for him and his family; however, the court did find that the hardship could be overcome in time. Certainly, | ^incarceration automatically entails some degree of hardship on all criminal defendants and their families. However, there is nothing in the record to support the defendant’s argument that he and his dependents would experience “excessive” hardship by his incarceration.

Next, the defendant contends the district court improperly considered his failure to apologize to the victim’s family prior to his sentencing. He argues that the court incorrectly evaluated his sense of remorse, despite the clear testimony of defense witnesses at the sentencing hearing.

During the hearing, the defendant took “full responsibility for [his] actions,” apologized to the family at length and expressed his deep remorse for causing the victim’s death. However, the victim’s family members testified that the defendant did not apologize or express remorse on the night of the incident or at any time thereafter. During its comments, the district court stated that it understood that the defendant’s prior failure to address the family or to show remorse may have been at the direction of his counsel. However, the court also stated that the defendant had previously made statements against his interest, and, since he had done so, he could have made an apology or statement to the family. The court stated, “But in the Court’s view when you start making statements, if you are going to tell some, tell it all. Tell people that you are sorry.” The court was adamant in its belief that the defendant’s apology made on the day of sentencing could have been made sooner.

1 ifiThe district court considered the defendant’s initial lack of remorse as one of many factors, and there is no indication that the court placed any greater weight on it than any of the other factors. The court reviewed the aggravating and mitigating factors at length, including whether the defendant’s conduct caused or threatened serious harm; the grounds tending to excuse or justify the defendant’s conduct; whether the defendant contemplated his criminal conduct would cause or threaten serious harm; and whether the defendant acted under strong provocation. There is no requirement that specific matters be given any particular weight at sentencing. State v. Swayzer, supra; State v. Shumaker, supra.

We have reviewed this record in its entirety, and we find that the factors the defendant argues were not considered by the sentencing court were, in fact, considered. The trial court determines the weight that each individual factor will have in fashioning the sentence to be imposed. There is no showing that the district court improperly weighed the factors in imposing the sentence. The court noted that it considered the presentence investigation, the facts and circumstances of the case, as well as the codal sentencing provisions.

Excessive Sentence

The defendant also contends the sentence imposed was constitutionally excessive. He argues that the 25-year sentence is near the maximum sentence and, therefore, should be reserved for the worst type of offenses and the worst offenders. The defendant also argues that his lack of prior criminal history, his relationship with his children, his completion of a |]7substance abuse rehabilitation program, and his expressions of remorse to the court and the family proves that a lesser sentence should have been imposed.

The defendant also contends the district court erred in imposing a $10,000 fíne. He argues that he will be required to serve an additional year in prison, consecutive to his hard labor sentence, because the court made it impossible for him to pay the fíne by imposing a lengthy sentence.

The second portion of appellate review of a sentence requires that a determination be made regarding the constitutional excessiveness of that sentence. 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.1/14/08), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him or her should not be set aside as excessive in the absence of a manifest abuse of his or her discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 ||SSo.2d 7; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Cook, supra.

LSA-R.S. 14:32.1(B) provides, in pertinent part:

Whoever commits the crime of vehicular homicide shall be fined not less than two thousand dollars nor more than fifteen thousand dollars and shall be imprisoned with or without hard labor for not less than five years nor more than thirty years.
If the operator’s blood alcohol concentration is 0.15 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood, then at least five years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.
The court shall require the offender to participate in a court-approved substance abuse program and may require the offender to participate in a court-approved driver improvement program. All driver improvement courses required under this Section shall include instruction on railroad grade crossing safety.

If a sentence imposed includes a fine or costs, the sentence shall provide that, in default of payment thereof, the defendant shall be imprisoned for a specified period not to exceed one year. See, LSA-C.Cr.P. art. 884.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802.

After reviewing the record in its entirety, we find that the sentence | ^imposed, 25 years at hard labor, with 15 years to be served without benefit of probation, parole or suspension of sentence, is constitutionally excessive. We do not make light of the death of Cravis Scott or the loss suffered by his family. However, based on this record, we find that the defendant is not the worst of offenders for whom maximum, or near maximum, sentences are reserved. The defendant made the decision to attempt to drive himself home after becoming highly intoxicated, and unfortunately, his actions resulted in the death of one man and injuries to another. Nonetheless, the defendant is a first-time felony offender with no record of any prior DWI violations or any other criminal offense. During the sentencing hearing, the defendant expressed deep remorse for his crime. Prior to the hearing, the defendant demonstrated his remorse by assisting the victim’s family in obtaining financial benefits. The defendant also recognized his need for treatment for his alcoholism, and voluntarily completed an in-house substance abuse program and regularly attended AA meetings. The district court correctly pointed out the seriousness of the offense of vehicular homicide and the requirement of incarceration. However, we find that the circumstances of this case indicate that a lesser sentence would have served the same purpose. Thus, we find that the sentence, 25 years at hard labor and $10,000 fine, is grossly disproportionate to the severity of the crime and is nothing more than a needless imposition of pain and suffering.

CONCLUSION

For the reasons set forth herein, we reverse that portion of the sentence which designated vehicular homicide as a crime of violence. WeJ^also vacate the defendant’s 25-year sentence and $10,000 fine and remand this matter to the trial court for resentencing, with instructions to impose a sentence of not more than 15 years at hard labor.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, DREW, LOLLEY and SEXTON (Pro Tempore), JJ.

11 Rehearing denied.

DREW, J., dissents from the denial of application for rehearing and assigns reasons.

DREW, J.,

dissenting:

| Respectfully, I must dissent from the denial of rehearing.

In La. R.S. 14:2(B), there is no requirement that crimes of violence must involve the intentional use of force against a victim.

The crime of vehicular homicide is a defined crime of violence, in that it is “an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon.” (Emphasis added.)

At the time of the commission of this crime, February 8, 2009, there were 41 listed crimes of violence, plus dozens, if not hundreds of defined crimes of violence. Several of these offenses at that time did not require that a defendant intentionally use physical force against a victim.

The sentence is harsh for a first offender, but these are horrific facts.

The trial court’s sentence should be affirmed for several reasons, including:

• the defendant’s extremely high BAC,

• two injured victims, one of whom died, plus a host of bereaved family members,

• the fact that the defendant fled the scene, and

12* the benefit accruing to the defendant by the dismissal of the other charge, in exchange for the plea of guilty.

My appraisal of this sad case is buttressed to a great extent by a recent ruling of the Louisiana Supreme Court, State v. LeBlanc, 2009-1355 (La.7/6/10), 41 So.3d 1168.

Accordingly, and with respect, I dissent from the denial of rehearing.

      . We note that, during his oral argument, the assistant district attorney informed this Court that he did not believe vehicular homicide was a crime of violence. However, the assistant district attorney also stated that such a determination is within the discretion of the district court.

      . LSA-R.S. 15:571.3, in pertinent part:
      * * *
      B. (l)(a) Unless otherwise prohibited, every inmate in the custody of the department who has been convicted of a felony, except an inmate convicted a second time of a crime of violence as defined by R.S. 14:2(B), and sentenced to imprisonment for a stated number of years or months, may earn, in lieu of incentive wages, a diminution of sentence by good behavior and performance of work or self-improvement activities, or both, to be known as "good time”. Those inmates serving life sentences will be credited with good time earned which will be applied toward diminution of their sentences at such time as the life sentences might be commuted to a specific number of years. The secretary shall establish regulations for awarding and recording of good time and shall determine when good time has been earned toward diminution of sentence. The amount of diminution of sentence allowed under the provisions of this Section shall be at the rate of thirty-five days for every thirty days in actual custody served on the imposed sentence, including time spent in custody with good behavior prior to sentencing for the particular sentence imposed as authorized by the provisions of Code of Criminal Procedure Article 880.
      (b) The provisions of Subparagraph (a) of this Paragraph shall be applicable to persons convicted of offenses on or after January 1, 1992 and who are not serving a sentence for the following offenses: (i) A sex offense as defined in R.S. 15:541. (ii) A crime of violence as defined in R.S. 14:2(B). (iii) Any offense which would constitute a crime of violence as defined in R.S. 14:2(B) or a sex offense as defined in R.S. 15:541, regardless of the date of conviction.
      (2) An inmate convicted a first time of a crime of violence as defined in R.S. 14:2(B), shall earn diminution of sentence at a rate of three days for every seventeen days in actual custody held on the imposed sentence, including time spent in custody with good behavior prior to sentencing for the particular sentence imposed as authorized by Code of Criminal Procedure Article 880.

      . A defendant’s lack of remorse is an appropriate sentencing consideration. State v. Birch, 43,119 (La.App.2d Cir.3/19/08), 979 So.2d 643; State v. Robinson, 33,921 (La.App. 2d Cir. 11/01/00), 770 So.2d 868; State v. Shipp, 30,562 (La.App.2d Cir.4/8/98), 712 So.2d 230, 237, writ denied, 98-1199 (La.9/25/99), 724 So.2d 775.

      . Examples: Second degree murder, La. R.S. 14:30.1(A)(3) and (4); Manslaughter, La. R.S. 14:31(A)(2)(a); Extortion, La. R.S. 14:66; and Stalking, La. R.S. 14:40.2.

      . A comparison of some of the facts of the instant case, as compared with the facts in State v. LeBlanc, supra:

      • LeBlanc had 12 initial charges, but was allowed to plead guilty to vehicular homicide and three misdemeanor counts of vehicular negligent injury;
      • Oliphant was originally charged with vehicular homicide and hit and run, but was allowed to plead to vehicular homicide, with the hit and run being dismissed;
      • LeBlanc was sentenced to the maximum 30 years at hard labor, with three years of the sentence to be served without benefits;
      • Oliphant was sentenced to 25 years at hard labor, with 15 years to be served without benefits, plus a $10,000 fine or one year of default jail time;
      • Each defendant fled the scene of his accident; and
      • There was no agreement as to sentence in either case.


author: SUSAN M. CHEHARDY, Judge. WICKER, J.,

text:
    STATE of Louisiana v. Carlos R. HERNANDEZ.
    No. 11-KA-712.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Appellate Counsel, Amanda Calogero, Jennifer Z. Rosenbach, Assistant District Attorneys, Trial Counsel, Gretna, LA, for Plaintiff/Appellee, The State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Carlos R. Hernandez.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

|2On Mai’ch 27, 2008, Carlos R. Hernandez was indicted by the Jefferson Parish Grand Jury for violation of La. R.S. 14:42, aggravated rape of a juvenile male, date of birth June 15, 1996. The defendant was arraigned the next day and entered a plea of not guilty. He filed a motion to suppress statement, which was denied on February 19, 2009. On September 10, 2009, the trial judge ruled that evidence of prior sexual offenses committed by the defendant would be admissible at trial. The indictment was amended on March 4 and March 8, 2010, to change the dates the offenses occurred. The trial judge subsequently granted the State’s motions in li-mine prohibiting the defendant from introducing evidence of the victims’ prior sexual conduct.

The case was tried on June 1 through June 4, 2010, before a 12-member jury, which found the defendant guilty as charged. The defendant filed a motion for new trial on June 17, 2010, which was denied that same day. The defendant waived sentencing delays and the trial judge sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant filed a timely motion for appeal that was granted.

RFACTS

K.A.

The victim, K.A., was 13 years old at the time of trial. He testified that when he was 11 years old, he took a trip with his biological father. When K.A. returned, he learned that neighbors had called the police claiming that the defendant, his stepfather, had touched them children inappropriately. K.A. then told his mother, F.A., that the defendant had raped him once when he was five or six years old. During that incident, the defendant told K.A. to take off his clothes and get on the bed. Afterward, the defendant took off his clothes and “stuck his penis” in K.A.’s “butt.”

K.A. believed this incident occurred when he was five or six years old, because he recalled at the time that he rode the bus to school with “little people,” and that he was a “little person” at that time. He did not tell anyone what happened at that time because he was afraid and he thought the defendant would hurt his mother. The defendant also told K.A. not to tell anyone and that he would get in trouble if he told.

At some point prior to trial, KA. admitted to an employee of the district attorney’s office, James Thomas, that the defendant had raped him “a number of times,” and that he had waited a long time to make those additional allegations because he was embarrassed. K.A testified that the incidents occurred between the ages of seven to eleven, in their apartment on Holmes Boulevard and at their residence on Helen Street.

K.A. then recalled an incident when they lived on Helen Street. At that time, K.A.’s mother left the house, and the defendant told K.A. to take off his 14clothes and lie on the sofa. Afterward, the defendant took off his clothes and then “stuck his penis” in K.A.’s “butt.” When the defendant was finished, the defendant removed his penis and went to wash it. KA. recalled that when he was in first and second grade, his mother worked outside the home, and that when she was away, the defendant would take care of him. F.A. (K.A.’s mother) and W.A. (KA.’s brother) also recalled that the defendant took care of K.A. when F.A. was not home.

On January 6, 2008, Deputy Donald Cannatella of the Jefferson Parish Sheriffs Office was dispatched to Helen Street in response to a complaint of aggravated rape. At that time, Deputy Cannatella met with F.A. and K.A., and he learned from K.A. that the defendant had put his penis in K.A.’s “butt” five years prior. Deputy Cannatella notified his supervisor and the detective bureau and turned over the investigation to Detective Balser. Detective Balser, in turn, contacted Detective Kay Horne after learning that Detective Horne had investigated other incidents involving the defendant. F.A., K.A., and W.A. subsequently went to the detective bureau and met with Detective Horne. At that time, Detective Horne learned from K.A. that the defendant stuck his “private up [K.A.’s] butt” one time.

Afterward, K.A. was referred to the Children’s Advocacy Center, where he was interviewed by Erika Dupepe on January 17, 2008, regarding the allegations against the defendant. That interview was recorded and shown to the jury. Following that interview, K.A. was examined on January 28, 2008, by Dr. Jameka Head at Children’s Hospital. At that time, K.A. complained of one instance of penile-anal contact by his stepfather, the defendant, six or seven years prior, and said that his stepfather had told him not to tell anybody.

|sDr. Adrienne Atzemis, Dr. Head’s supervisor, testified that K.A.’s examination was overall within normal limits except he had redness around his bottom that was nonspecific for abuse. She further testified that the lack of findings was not a problem. Dr. Atzemis explained that the anus can stretch to the point of injury, but that it can heal very quickly with no scarring. She also explained that children commonly do not disclose sexual abuse immediately for many reasons, including not knowing it is wrong, embarrassment, fear, feeling responsible for it, protecting family members, threats, and positive reinforcements. Lastly, Dr. Atzemis testified that disclosure commonly starts with one incident and later includes others.

The State also presented evidence that the defendant committed other crimes of a sexual nature involving L.P., J.W., and J.A.

L.P. and J.W.

L.P. and J.W., who were nine years old at the time of trial, used to go to the defendant’s house to eat dinner and to get money from the defendant to spend on candy. On the night before Christmas, when L.P. was seven years old, she went to the defendant’s house. While she was there, the defendant put his hands in her panties and “wiggled around” with his finger. Shortly thereafter, J.W. went to the defendant’s house to get L.P. When she arrived, L.P. was sitting on the defendant’s lap. After J.W. told L.P. that her father was looking for her, the defendant pulled J.W. on his lap and then touched her inside her pants on her “private part” where she “goes to the bathroom,” and moved his hand around. L.P. and J.W. then went and told their mothers, who called the police. When J.W.’s mother confronted the defendant immediately after the incident, the defendant repeatedly said the girls were no longer allowed at his house.

IfiL.P. and J.W. later spoke to the police, and they were interviewed by Erika Du-pepe of the Children’s Advocacy Center on January 7, 2008. Those interviews were videotaped and shown to the jury. L.P. and J.W. were also examined at Children’s Hospital by Dr. Atzemis on January 11, 2008, and Dr. Atzemis testified that there were no abnormal findings and no expectations of any. It is noted that when Detective Horne (who was in plain clothes) and Deputy Howard (who was in uniform) went to the defendant’s house to speak to him about the allegations involving L.P. and J.W., before Detective Horne could introduce herself, the defendant blurted out, “I didn’t touch those babies, I love babies.”

J.A.

J.A., who was ten years old at the time of trial, testified that the defendant used to live with her grandmother, F.A., and that K.A. was her uncle. When she was seven or eight years old, she went to visit her grandmother. While J.A. was in K.A.’s room watching K.A. play video games, the defendant came in, sat down, and told her to sit on his lap. After she did so, the defendant stuck his hand inside of her panties and touched her on her “private part” “where she goes to the bathroom.”

A couple of days later, J.A. told her mother what happened. J.A. later spoke to the police and was interviewed by Erika Dupepe at the Children’s Advocacy Center on January 11, 2008. That interview was videotaped and shown to the jury. J.A. was also examined at Children’s Hospital by Dr. Head on January 30, 2008. Dr. Atzemis testified that Dr. Head’s examination revealed no abnormalities, which she did not find unusual.

After the State rested its ease, the defense called Antonio Fuentes as a witness. Fuentes testified that he had known the defendant for many years and saw | 7him occasionally. He further testified that the defendant was a “decent person,” who was “always very gentle, well spoken, and a nice person.”

ASSIGNMENT OF ERROR NUMBER ONE

It was error to admit the other crimes evidence detailing alleged sexual abuse again [sic] J, L, and J2 as that evidence was overwhelmingly prejudicial and probative of nothing at issue in the charge at trial.

In this assignment the defendant argues that the trial judge erred by admitting evidence of other crimes involving alleged sexual abuse. He contends that the other crimes' evidence was so extensive, detailed, and prejudicial as to have obliterated any chance for a fair trial. He asks this Court to reverse the conviction and remand for a new trial.

The State responds that the evidence was admissible as res gestae to explain the sequence of events leading to the defendant’s arrest. The State further responds that the evidence was also admissible to show the defendant’s lustful disposition toward children under La. C.E. art. 412.2. Alternatively, the State contends that any error was harmless in light of the strong evidence against the defendant.

On July 7, 2008, the State filed a notice of intent to use evidence of other or similar crimes, pursuant to La. C.E. art. 404(B) and 412.2. On August 21, 2009, the State filed a notice of intent to introduce evidence of similar crimes in sex offense cases pursuant to La. C.E. art. 412.2 or, alternatively, pursuant to La. C.E. art. 404(B). On September 10, 2009, the trial judge granted those motions, finding that the State could introduce evidence of other sexual offenses committed by the defendant to show lustful disposition toward six- and seven-year-old minors, and to show motive and opportunity.

La. C.E. art. 412.2 provides,

|sWhen an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

La. C.E. art. 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” Regarding the proper balancing between the probative value of evidence and its prejudicial effect required by Article 403, the Louisiana Supreme Court has explained:

Any inculpatory evidence is “prejudicial” to a defendant, especially when it is “probative” to a high degree. As used in the balancing test, “prejudicial” limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. The term “unfair prejudice,” as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged. [Citations omitted.]

State v. Rose, 06-0402, p. 13 (La.2/22/07), 949 So.2d 1236,1244.

A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion. State v. Cosey, 97-2020, p. 13 (La.11/28/00), 779 So.2d 675, 684, cert. denied, 533 U.S. 907, 121 S.Ct. 2252, 150 L.Ed.2d 239 (2001).

In State v. Harris, 11-253 (La.App. 5 Cir. 12/28/11), 83 So.3d 269, the defendant was indicted for the aggravated rape of a juvenile male. At trial, the judge admitted evidence that the defendant had also raped a ten-year-old girl, even though the defendant was acquitted of that crime. On appeal, this Court found that Inevidence of the prior rape of a juvenile was highly relevant to show the defendant’s lustful disposition towards children, noting that there were similarities between the victims and conduct in both cases. This Court also found there was no showing that the jury was misled or confused or that too much time was consumed by the volume and presentation of the other sexual crime evidence, even though the defendant claimed that more than half of the testimony pertained to the other sexual crime. In addition, this Court noted that the trial court gave a limiting instruction before and after the testimony by the victim of the prior offense, and in its final instruction. In sum, this Court concluded that the probative value of the other sexual offense evidence outweighed the danger of unfaii* prejudice to the defendant and, therefore, under La. C.E. art. 412.2 the trial court did not err in admitting the evidence of the other sexual crime incident.

In the instant case, the State introduced evidence that showed K.A., the victim in the instant case, was five or six years old when the defendant first raped him. The State also introduced evidence that showed the defendant sexually abused two neighborhood girls and one girl who was his step-granddaughter when they were approximately seven years old.

We find that the other crimes evidence was relevant to show that the defendant had a lustful disposition toward children approximately seven years old who were relatives who lived with him or visited him or neighbors who visited him.

We also find that the probative value of the other crimes evidence was not substantially outweighed by unfair prejudice, confusion, undue delay, or waste of time. With respect to the volume of other crimes evidence, because the State contended the defendant committed three other crimes, there was necessarily more testimony regarding the other crimes evidence than the crime for which the | indefendant was standing trial. We find that the trial judge did not err by allowing the State to present this evidence, since the State had to prove that the defendant committed the other crimes.

With respect to the order of witnesses, the State first presented Deputy Cannatel-la to testify regarding the instant offense. Afterward, Detective Horne testified regarding all four incidents. Next, there were three witnesses who testified as to the instant offense, and then three witnesses who testified regarding the other incidents. Following that testimony, Erika Dupepe of the Children’s Advocacy Center testified regarding her interviews with all four victims, after which James Thomas of the D.A.’s Office testified regarding the instant offense. Dr. Atzemis subsequently testified regarding the examinations of all four victims at Children’s Hospital, and then the mothers of two of the victims of the other incidents testified. Although the other sexual crimes evidence seemingly was presented out of order, there is nothing in the record to indicate that the jury was confused or that the defendant was prejudiced by the volume or presentation of that evidence.

Further, the trial judge instructed the jury that the other crimes evidence was presented only for a limited purpose, as follows:

Evidence that the defendant was involved in the commission of an offense other than the offense for which he is charged is to be considered only for a limited purpose. The sole purpose for which such evidence may be considered is whether it tends to show guilty knowledge, absence of mistake or accident, intent, system, motive, identity and/or to show a lustful disposition towards children. Remember, the accused is on trial only for the offense charged. You may not find him guilty of the offense charged merely because he may have committed another offense.

In light of the foregoing, we find that the trial court did not err by admitting other crimes evidence. We find no merit to this assignment.

| ^ASSIGNMENT OF ERROR NUMBER TWO

The trial court repeatedly admitted into evidence wholly inadmissible and extremely prejudicial hearsay despite the objections of trial counsel.

In this assignment the defendant argues that the trial judge erred by overruling his hearsay objections and admitting portions of the investigating officers’ testimony into evidence at trial.

The State responds that the trial judge did not abuse his discretion because the statements were admissible as res gestae. The State further responds that any error would be harmless, considering the strong evidence against the defendant and the cumulative nature of the hearsay statements. Lastly, the State notes that defense counsel did not request any admonitions and that some of the alleged trial errors were not preserved for appellate review because no hearsay objections were made.

On appeal, the defendant references several instances of alleged hearsay statements that were allowed into evidence through testimony of Deputy Cannatella and Detective Horne.

The prosecutor asked Deputy Can-natella questions regarding what he had learned after speaking to W.A. and F.A. Deputy Cannatella answered, “They informed me that when [K.A.] returned home from Mexico, his mother asked [K.A.] — .” Defense counsel objected on the basis of hearsay. The trial judge told the witness not to tell them what somebody else told him. Afterward, Cannatella testified that K.A. told his mother that the defendant had touched him inappropriately. Defense counsel objected on the basis of hearsay, and the prosecutor said she would rephrase the question.

| ^Shortly thereafter, the prosecutor asked Cannatella what he learned about K.A. and the defendant through his investigation, and the deputy responded that K.A. said his stepfather had touched him inappropriately. The prosecutor asked Cannatella what he learned through his meeting with K.A., and the deputy replied that he learned that five years ago, defendant put his penis in K.A.’s butt. Defense counsel did not lodge contemporaneous objections to those questions.

Later on, the prosecutor asked Detective Horne what she learned from L.P.’s mother. Horne testified, “Her mother advised that — ,” after which defense counsel lodged a hearsay objection. The trial judge told the detective to ensure that her response was not a hearsay one, and not to say what someone else told her. Horne then testified, “The mother disclosed to me that her daughter had informed her that something happened.” Defense counsel lodged another hearsay objection, which the trial judge sustained. The prosecutor subsequently asked the detective what she had learned from L.P.’s mother, and Horne replied, “That her child was sexually abused” by the defendant. There was no objection by defense counsel to that question.

Afterward, the prosecutor asked Detective Horne what she learned from L.P. Horne began to respond what she had disclosed to her, but defense counsel objected, and the trial judge told Horne to rephrase her answer so it was not hearsay. Horne then testified that she learned from L.P. that L.P. had been sexually abused by her neighbor, Mr. Carlos. Horne also learned from L.P. that L.P. had gone to a neighbor’s house to get money for candy, and that when she went there, Mr. Carlos grabbed her, placed her on his lap, stuck his hand down her pants, and rubbed his hand on her vagina.

11sLater on, the prosecutor asked Horne what she had learned from J.W., and Horne testified she learned that when J.W. got to the defendant’s house, she saw that L.P. was on the defendant’s lap. Horne also testified she learned from J.W. that the defendant grabbed J.W., placed her on the arm of the chair, put his hand down her pants, and that J.W. struggled and screamed and a hand was placed over her mouth. There were no objections to the questions asking Detective Horne what she had learned.

Hearsay is an oral or written assertion, other than one made by the declarant while testifying at the present trial, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801. Hearsay evidence is not admissible except as otherwise specified in the Code of Evidence or other legislation. La. C.E. art. 802. Hearsay is excluded because the value of the statement rests on the credibility of the out-of-court asserter, who is not subject to cross-examination and other safeguards of reliability. State v. Martin, 458 So.2d 454, 460 (La.1984). Although a statement may constitute inadmissible hearsay, if the statement is merely cumulative or corroborative of other evidence, the admission of the evidence is harmless error. State v. Hester, 99-426, p. 17 (La.App. 5 Cir. 9/28/99), 746 So.2d 95,107, writ denied, 99-3217 (La.4/20/00), 760 So.2d 342.

A law enforcement officer may testify about information provided by another individual without it constituting hearsay if it is offered to explain the course of the police investigation and the steps leading to the defendant’s arrest. State v. Addison, 05-378, p. 12 (La.App. 5 Cir. 12/27/05), 920 So.2d 884, 892, writ denied, 06-1087 (La.11/9/06), 941 So.2d 36. However, an officer cannot testify that he acted on information obtained during the investigation as an indirect method of introducing the substance of out-of-court assertions of the defendant’sJjjguilt that would otherwise be barred by the hearsay rule. Addison, 05-378 at 12-13, 920 So.2d at 892-93.

We find that the defendant is precluded from raising those alleged trial errors listed above to which his trial counsel failed to lodge contemporaneous objections. La. C.Cr.P. art. 841. It appears that defense counsel chose not to object whenever the prosecutor asked the deputy what he had learned from the witnesses.

With respect to the other alleged trial errors that are properly before us, we agree that Detective Horne’s responses as to what she learned from W.A., F.A., K.A., L.P., and J.W. were hearsay. Although those answers explained the course of the investigation, it appears they were actually offered to prove the truth of the matter asserted, ie., that the defendant sexually abused the victims. Nevertheless, we find that any errors were harmless because Horne’s testimony was cumulative or corroborative of other evidence. Hester, su- pm. The record shows that K.A., L.P., and J.W. all testified at trial as to the sexual abuse they suffered at the hands of the defendant. Thus, we find no merit to this assignment.

ASSIGNMENT OF ERROR NUMBER THREE

It was error to admit to the jury the statement made by K [K.A.] to an investigator for the District Attorney’s Office, two years post-indictment and in preparation for trial, under the guise of the “first report” exception to the bar against hearsay.

In this assignment the defendant argues that the trial judge erred by admitting into evidence the statement made by K.A. to James Thomas, an investigator for the District Attorney’s office, two years post-indictment and in preparation for trial, under the guise of the first-report exception to the bar against hearsay.

|1sThe State responds that the statement K.A. made to Thomas on February 20, 2010 was the first report of additional rapes and, therefore, those statements were not hearsay but were admissible as statements of initial complaint of sexually assaultive behavior. Alternatively, the State responds that any error would be harmless given that Thomas’ testimony was merely cumulative of K.A.’s previous testimony.

On March 8, 2010, the State filed a notice of intent to introduce statements of initial complaint of sexually assaultive behavior, pursuant to La. C.E. art. 801(D)(1)(d). In that notice, the State said that K.A. made an initial complaint of sexually assaultive behavior to James Thomas, an employee of the District Attorney’s Office, on February 24, 2010. The State noted that K.A. initially said that the defendant raped him one time, - but that K.A. had recently disclosed to Thomas that the defendant raped him between six and ten times, and that the rapes occurred when he was between the ages of five and eleven. The State argued that the statement was not hearsay and was admissible under La. C.E. art. 801(D)(1)(d).

At trial, K.A. testified that he initially told his mother that the defendant raped him one time, but that at a later time, he told someone that the defendant actually raped him “a number of times.” K.A. further testified that he was seven to eleven years old when the incidents occurred, and that they occurred in their residences on Holmes Boulevard and on Helen Street.

Thomas later testified that he assisted an attorney in interviewing K.A. Thomas explained that K.A. initially disclosed to them that he had been abused by the defendant. They asked K.A. during their second meeting if he had anything to add, and K.A. responded that the defendant had raped him on at least five 11fioccasions or more when he was between the ages of six and ten. Thomas later testified that K.A. told him the incidents occurred when he was between the ages of five and eleven.

La. C.E. art. 801(D) provides in pertinent part:

D. Statements which are not hearsay. A statement is not hearsay if:
(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:
(d) Consistent with the declarant’s testimony and is one of initial complaint of sexually assaultive behavior.

Comment (e) to Article 801(D)(1) provides in pertinent part:

(e) The approach taken under Part (d) of subparagraph (D)(1) minimizes confrontation problems. It is only the initial complaint by the victim, whether made to a family member, policeman, or other person, that is defined as non-hearsay under this provision. Subsequent complaints or reports about the same crime would not be admissible under it. [Citations omitted; emphasis added].

Here, K.A. first reported to his mother that the defendant had raped him one time. However, at a later date, K.A. first reported other rapes to James Thomas. The complaint or report to Thomas was not about the same crime. Therefore, we find that K.A.’s statement to Thomas was one of initial complaint of sexually assaul-tive behavior for those other rapes. In addition, the account of the incident given by Thomas corresponded with K.A.’s own testimony and K.A. was subject to cross-examination. Therefore, we find that James Thomas’ testimony about the sexual abuse constitutes admissible non-hearsay under La. C.E. art. 801 D(l)(d). |178ee State v. Burks, 04-1435, p. 12 (La.App. 5 Cir. 5/31/05), 905 So.2d 394, 402, writ denied, 05-1696 (La.2/3/06), 922 So.2d 1176.

Nevertheless, even if the trial judge erroneously admitted Thomas’ testimony, any error was harmless since that testimony was cumulative or corroborative of other evidence, i.e., K.A.’s testimony. State v. Hester, 99-426, p. 17 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 107, writ denied, 99-3217 (La.4/20/00), 760 So.2d 342. Hence, there is no merit to this assignment.

ASSIGNMENT OF ERROR NUMBER FOUR

It was error to prohibit the defense from cross examining J2 [J.A.] regarding other complaints that she had made of alleged sexually assaultive behavior. The trial court’s prohibition in this regard unconstitutionally restricted appellant’s ability to confront his accuser.

The defendant argues that the trial judge erred by prohibiting him from cross-examining J.A. regarding complaints of sexual abuse she made against adults other than him.

The State responds that the trial judge did not err in this manner, noting that the defendant was prohibited by La. C.E. art. 412 from questioning J.A. regarding her past sexual behavior.

The State filed a motion in limine on April 19, 2010, moving that the defendant be prohibited from introducing evidence of prior sexual conduct of any victim, pursuant to La. C.E. art. 412. During the trial on June 3, 2010, the State filed another motion in limine under La. C.E. art. 412, moving that the defendant be prohibited from introducing evidence of prior sexual assaults with respect to victim J.A.

| mAt the hearing on the motion on June 3, 2010, the prosecutor informed the trial judge that one night prior, J.A. made an allegation of sexual abuse against her mother’s new husband, but the prosecutor argued that that evidence was inadmissible under La. C.E. art. 412, the “Rape Shield Statute.” After a lengthy hearing, the trial judge granted the motion in limine, thereby prohibiting the defense from questioning J.A. regarding her new allegations. Defense counsel noted an objection.

La. C.E. art. 412, which provides the law pertaining to the admissibility of evidence of the victim’s past sexual behavior in sexual assault cases, is set forth in pertinent part as follows:

A. Opinion and reputation evidence. When an accused is charged with a crime involving sexually assaul-tive behavior, reputation or opinion evidence of the past sexual behavior of the victim is not admissible.
B. Other evidence; exceptions. When an accused is charged with a crime involving sexually assaultive behavior, evidence of specific instances of the victim’s past sexual behavior is also not admissible except for:
(1) Evidence of past sexual behavior with persons other than the accused, upon the issue of whether or not the accused was the source of semen or injury; ... or
(2) Evidence of past sexual behavior with the accused offered by the accused upon the issue of whether or not the victim consented to the sexually assaul-tive behavior.
F. Past sexual behavior defined. For purposes of this Article, the term “past sexual behavior” means sexual behavior other than the sexual behavior with respect to which the offense of sexually assaultive behavior is alleged. [Emphasis in original.]

In State v. Zeringue, 03-697, pp. 13-14 (La.App. 5 Cir. 11/25/03), 862 So.2d 186, 195-196, writ denied, 03-3523 (La.4/23/04), 870 So.2d 298, this Court hndiscussed the law regarding an accused’s right to be confronted with the witnesses against him and his right to present a defense relative to La. C.E. art. 412:

The 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. Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.
An accused also has a constitutional right to present a defense. 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. La. 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 La. C.E. art. 412, which is meant to protect the victim of sexual assault from having her sexual history made public. The rape shield law is precisely drawn to exclude evidence of the alleged victim’s sexual history with persons other than the defendant. Sub-part B(l) of the article does make an exception for “[e]vidence of past sexual behavior -with persons other than the accused, upon the issue of whether or not the accused was the source of semen or injury....” [Citations omitted.]

When a defendant attempts to use evidence of a victim’s false allegations of improper sexual behavior to impeach the victim’s credibility, the rape shield statute does not apply. State v. Smith, 98-2045, p. 5 (La.9/8/99), 743 So.2d 199, 203. The relevant inquiry in such cases is whether reasonable jurors could find, based on the evidence presented by the defendant, that the victim had made prior false accusations. Id. A trial judge’s determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Sandoval, 02-230, p. 11 (La.App. 5 Cir. 2/25/03), 841 So.2d 977, 985, writ denied, 03-853 (La.10/3/03), 855 So.2d 308.

| anIn the instant case, we find that the defendant was prohibited from questioning the victim, J.A., regarding her allegations of sexual abuse against individuals other than the defendant because La. C.E. art. 412 prohibits evidence of the victim’s past sexual behavior. Further, none of the exceptions to Article 412 apply. Evidence of past sexual behavior with persons other than the defendant was not admissible, because there was no issue as to whether the defendant was the source of semen or injury. Finally, there was no evidence that the victim had made prior false allegations of improper sexual behavior against anyone. In fact, the defense conceded that there was no evidence that the new claim was false.

The defendant asserts that he sought to prove for impeachment purposes that the victim had made false allegations regarding sexual activity. He contends that because he was seeking to cross-examine J.A. about her past allegations of sexual abuse, he was not attempting to introduce evidence of her past sexual behavior. He further contends that the issue was one of credibility and, therefore, La. C.E. art. 412 was inapplicable.

The defendant cites no law in support of this contention, and we find none involving this specific issue. Nevertheless, the only manner in which the defendant could have questioned J.A. about her past allegation of sexual abuse was to question her about the sexual act that formed the basis for the sexual abuse, which is prohibited by La. C.E. art. 412. Further, this Court has found that the rape shield law is intended to forbid evidence showing that the victim voluntarily or involuntarily engaged in sexual activities with a person or persons other than the defendant. State v. Hotoph, 99-243, p. 15 (La.App. 5 Cir. 11/10/99), 750 So^dJgjlOSG, 1046, writs denied, 99-3477 (La.6/30/00), 765 So.2d 1062; 00-150 (La.6/30/00), 765 So.2d 1066.

We find the trial judge did not err by granting the State’s motion in limine and prohibiting the defendant from questioning J.A. regarding her allegations of sexual abuse against individuals other than the defendant. There is no merit to this assignment.

ERROR PATENT DISCUSSION

We reviewed the record for patent errors, pursuant to La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We find one patent error that requires correction.

The record does not reflect that the defendant was notified of the sex offender registration requirements for his conviction of aggravated rape. La. R.S. 15:540, et seq. require registration of sex offenders, and La. R.S. 15:543(A) requires the trial judge to provide written notification of the registration requirement of La. R.S. 15:542 to the defendant. The trial court’s failure to provide this notification constitutes error patent. State v. Morgan, 06-529, p. 23 (La.App. 5 Cir. 12/12/06), 948 So.2d 199, 213. Therefore, we remand the matter and instruct the district court to notify the defendant of the sex offender registration requirements (and the child predator registration provisions) and to furnish the record with proof of such notice to the defendant. See State v. Nguyen, 11-229 (La.App. 5 Cir. 12/28/11), 88 So.3d 511, 523 ; State v. Williams, 09-48, pp. 18-19 (La.App. 5 Cir. 10/27/09), 28 So.3d 357, writ denied, 09-2565 (La.5/7/10), 34 So.3d 860.

[¡^DECREE

For the foregoing reasons, the conviction and sentence are affirmed. The matter is remanded and the district court is instructed to notify the defendant of the sex offender registration requirements and the child predator registration provisions, and to furnish the record with proof of such notice to the defendant.

AFFIRMED AND REMANDED WITH INSTRUCTIONS

WICKER, J., concurs and assigns reason.

WICKER, J.,

concurs and assigns reasons.

lil agree with the majority that the defendant’s conviction should be affirmed but write separately to address in detail the errors assigned regarding other crimes evidence and hearsay evidence.

Other Crimes Evidence:

Defendant asserts that the trial court should not have admitted evidence of the other crimes of alleged sexual abuse. Defendant claims the evidence of alleged other crimes was overwhelmingly prejudicial and not probative of any matter at issue in the instant case. Louisiana Code of Evidence article 412.2 provides that when an accused is charged with a crime involving sexually assaultive behavior or with acts that constitute a sex offense involving a minor victim, evidence of the accused’s commission of another crime, wrong, or act involving sexual assaultive behavior or which indicates a lustful disposition toward children may be admissible subject to the balancing test provided in La. C.E. art. 403. That article provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

Any inculpatory evidence is “prejudicial” to a defendant, especially when it is “probative” to a high degree. State v. Rose, 2006-0402, p. 17 (La.2/22/07), 949 So.2d 1236, 1244; State v. Germain, 433 So.2d 110, 118 (La.1983). In conducting |2the balancing test under La. C.E. art. 403, the trial court should consider whether the probative evidence of prior acts will serve to “lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650,136 L.Ed.2d 574 (1997).

The Louisiana Supreme Court has advised that the volume of other crimes evidence should be considered in determining if such evidence should be admissible at trial. State v. Kelly, 01-0124, p. 2 (La.6/29/01), 791 So.2d 1286, 1287. The Court has further instructed that prior crimes evidence which may be “cumulative, repetitive, or excessive” should not be admitted. Kelly, 01-0124, p. 2 (La.6/29/01), 791 So.2d at 1287. In considering the volume and extent of evidence presented on other crimes, the court should evaluate whether “[t]he volume of the state’s evidence of other crimes creates an undue risk that at trial it may overwhelm the single allegation” of the charged offense. Id.

In the case before us, the three minor female victims, L.P., J.W., and J.A. testified cogently and in detail as to their experiences with defendant. L.P. testified that she visited defendant’s home regularly and that defendant gave her money to buy candy. She testified that, during one visit, defendant touched her inside of her pant- ’ ies and “wiggled” his finger around. J.W. testified that she visited defendant’s home regularly and would sometimes eat dinner with defendant’s family. She also stated that defendant gave her money to buy candy. J.W. testified that, during one visit at defendant’s home, defendant pulled J.W. onto his lap and touched her “private part.”

The mothers of L.P. and J.W., in their testimony, recounted the testimony presented by their children. L.P.’s mother testified that L.P. and J.W. reported that “Mr. Carlos had touched them in their private parts[.]” She further testified that her daughter reported that “Mr. Carlos was on a chair outside, sitting down, and he | shad unzipped his pants and pulled out his penis and made her sit on top of him.” J.W.’s mother testified she learned that “Carlos Hernandez had touched my daughter.” The jury further heard the audiotape of J.W.’s mother’s call to 911 reporting defendant’s alleged abuse of J.W. and L.P.; in that recorded call, J.W.’s mother recounted her daughter’s testimony that defendant put his hands inside her pants and touched her “private[.]”

Detective Horne, the investigating detective, also testified concerning her investigation of the allegations made by each female victim. Concerning L.P. and J.W., Detective Horne testified the girls reported that defendant “fondled” their “vaginal area[.]” Detective Horne reiterated the girls’ testimony and stated, “[t]hey disclosed to me that their neighbor who they identified as Mr. Carlos, they were by his house outside by a chair, he had called them over, sat one of the girls on his lap and slid his hands down her pants and panties and fondled her vaginal area. The other neighbor came looking for the girl, at which time he scooped up the other girl, put her on his lap and did the same thing, skin to skin, hand, vaginal contact.” Concerning J.A., Detective Horne testified to J.A.’s allegations that she was “playing video games at which time Mr. Hernandez had called her in the same bedroom and slid his hands down her panties and it was again skin to skin contact with her vaginal area.”

Dr. Adrienne Atzemis, a pediatrician with Children’s Hospital, testified concerning the physical examination of each victim. As to the three female victims, L.P., J.W., and J.A., Dr. Atzemis testified that the girls alleged an incident of “sexual abuse” and identified “Carlos” as the perpetrator of “digitial-genital” contact. Concerning L.P., Dr. Atzemis further testified that L.P. additionally reported “exposure to pornography by Carlos[.]” During Dr. Atzemis’ initial testimony, the state introduced into evidence and displayed to the jury photographs |4of the minor female victims to demonstrate the age and appearance of each victim at the time of examination.

The child advocacy center representative, Erika Dupepe, testified that she interviewed each female victim separately and that each interview was recorded on video. During each interview, the minor victims describe in detail the allegations of sexual abuse by defendant and recount the allegations described in their testimony. The three separate video recordings of the interviews of each minor female victim, ranging from eleven minutes to nineteen minutes in length, were introduced into evidence and each played for the jury.

In this case, the trial court’s difficult task of balancing the state’s right to present evidence of a lustful disposition towards children against the danger that the volume of the state’s other crime evidence would overwhelm the charged offense was rendered more difficult by the fact that there are three other minor victims in addition to K.A., the minor victim in this case. With that said, the evidence presented in this case concerning the prior incidents involving L.P., J.W., and J.A. is significant and extensive. The trial court permitted the testimony of the three female minor victims, who testified cogently and in detail concerning their experiences with defendant. The court then permitted the testimony of the mothers of L.P. and J.W., the investigating detective, and the treating physician, who each recounted the testimony presented by the minor children of their experiences with defendant. The court further admitted into evidence the recorded video interviews of each victim in which they describe in detail the same or similar allegations of sexual abuse by defendant as contained in their testimony at trial.

While the state is entitled to produce and the jury entitled to hear the testimony regarding the three female victims and their terrible experiences involving defendant, the trial court would have been well served to proceed with | ¿caution, to consider the volume of the prior crimes evidence to be admitted at trial, and to limit the cumulative, repetitive, and excessive nature of the testimony and evidence presented.

Hearsay Evidence:

Defendant asserts that the trial court erred in admitting inadmissible and prejudicial hearsay involving the testimony provided by the investigating officers. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” LSA-C.E. art. 801(C). A narrow exception to this hearsay rule has been created to permit a police officer to testify to the course of the police investigation and the steps leading to the defendant’s arrest. State v. Addison, 05-878, pp. 11-13 (La.App. 5 Cir. 12/27/05), 920 So.2d 884, 892-93, writ denied, 2006-1087 (La.11/9/06), 941 So.2d 36; State v. Hebert, 02-1252, pp. 5-7 (La.App. 5 Cir. 4/8/03), 846 So.2d 60, 64 (citing State v. Cho, 02-274, pp. 17-18 (La.App. 5 Cir. 10/29/02), 831 So.2d 433, 447, writ denied, 02-2874 (La.4/4/03), 840 So.2d 1213).

The Louisiana Supreme Court has discussed this explanation exception to the hearsay rule as follows:

The testimony of a police officer may encompass information provided by another individual without constituting hearsay, if it is offered to explain the course of the police investigation and the steps leading to the defendant’s arrest. State v. Monk, 315 So.2d 727, 740 (La. 1975); See also State v. Wille, 559 So.2d 1321, 1331 (La.1990); State v. Smith, 98-1417 (La.6/29/01), 793 So.2d 1199. However, this exception does not allow the state carte blanche authority to bring before the jury the substance of the out-of-court information that would otherwise be barred by the hearsay rule. State v. Wille, 559 So.2d 1321, 1331 (La. 1990); State v. Hearold, 603 So.2d 731, 737 (La.1992).

State v. Maise, 2000-1158, p. 17, (La.1/15/02), 805 So.2d 1141,1153.

|fiThe jurisprudence requires that courts exercise great caution in invoking the explanation exception. State v. Broadway, 1996-2659, pp. 8-9 (La.10/19/1999), 753 So.2d 801, 809. “Generally, an explanation of the officer’s actions should never be an acceptable basis upon which to admit an out-of-court declaration when the so-called ‘explanation’ involves a direct assertion of criminal activity against the accused.” State v. Hearold, 603 So.2d 731, 737 (La. 1992). Further, testimony of a police officer that repeats definite complaints of a particular crime by the accused is likely to be misused by the jury as evidence of the fact asserted and should thus not be admitted. McCormick on Evidence, § 248 (2d ed.1972); State v. Legendre, 05-1469, pp. 11-13 (La.App. 4 Cir. 9/27/06), 942 So.2d 45, 53.

In the case before us, the testimony of the investigating officers contains repeated hearsay statements that should not have been admitted by the trial court. Although defense counsel failed to object to various statements made by the investigating officers, he did object timely to some hearsay testimony admitted. For example, Deputy Cannatella testified that “I learned that [K.A.] was questioned by his mother about if his stepfather, Carlos Hernandez, ever .touched him inappropriately, and his response was yes.” Later, when Detective Horne testified, she stated that she learned from L.P. that “she had been sexually abused by her neighbor,” who Detective Horne immediately thereafter clarified to be “Mr. Carlos.” Based upon a review of the record, it appears these statements made by investigating officers do not fall within the narrow explanation exception but rather involve direct assertions of criminal activity by the accused and out-of-court statements used as evidence of the facts asserted therein. Thus, these statements should not have been admitted by the trial judge. The admission of hearsay is subject to a harmless error analysis on review by the Court, and in this case, where the evidence of the defendant’s guilt is overwhelming, the hearsay did not affect |7the jury’s verdict. State v. Hester, 99-426, p. 17 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 107, writ denied, 99-3217 (La.4/20/00), 760 So.2d 342. Nevertheless, it is important that the trial court carefully and strictly apply the narrow explanation exception to the hearsay rule in order to preserve the efficacy of the evidence and the sanctity of the jury’s verdict.

      . The death penalty provision of La. R.S. 14:42 was held unconstitutional in Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008).

      . To protect the privacy of the victim, we use initials to identify the victim, the child witnesses, and the victim's family members, pursuant to La. R.S. 46:1844(W)(3). State v. Greene, 06-667, p. 3 (La.App. 5 Cir. 1/30/07), 951 So.2d 1226, 1229, writ denied, 07-0546 (La. 10/26/07), 966 So.2d 571.

      . James Thomas testified K.A. told him that the defendant had raped him on at least five occasions or more, and that K.A. was between the ages of six and ten when those incidents occurred.

      . Detective Horne testified she learned that this incident occurred between December of 2006 and December of 2007.

      . This opinion has not been released for publication in the permanent law reports; until released it is subject to revision or withdrawal.

      . Some of the testimony specified in appellant’s brief is by Deputy Donald Cannatella and some is by Detective Kay Horne. Appellant’s brief, however, misattributes Horne’s statements to Cannatella. In discussing the testimony, we have attributed each of the statements to the witness who made them.

      . On April 15, 2010, the State filed four notices entitled, "Notice of Intent to Introduce Statements of Initial Complaint of Sexually Assaultive Behavior Pursuant to Louisiana Code of Evidence Article 801(D)(1)(d)” with respect to victims, L.P., J.A., J.W., and K.A., which the defendant states are not the subject of this assignment.

      . In Burks, this Court found that testimony about the sexual abuse by Raine Celestine, the first person to whom the victim reported it, was admissible non-hearsay under La. C.E. art. 801(D)(1)(d). We noted that the victim first reported the sexual abuse to Celestine, the account of the incident given by Celestine corresponded with the victim’s own testimony, and the victim was subject to cross-examination.

      . The defense moved for a stay of trial to allow investigation of the new allegations by J.A., but the trial judge denied the motion. The defendant filed a writ application with this Court challenging the trial judge's ruling.
      This Court denied the writ, finding that on the presentation made there was no error in the trial court’s ruling. State v. Hernandez, 10-K-462 (La.App. 5 Cir. 6/3/10) (unpublished writ disposition).

      . The defendant did not file a motion to offer evidence of the victim’s past sexual behavior, as required by La. C.E. art. 412 C(l), presumably because the new sexual abuse allegations surfaced during trial. See State v. Hotoph, 99-243, p. 17 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1047, writs denied, 99-3477 (La.6/30/00), 765 So.2d 1062, and 00-150 (La.6/30/00), 765 So.2d 1066, in which this Court found that, because the defendant failed to make the proper motion under Article 412, he waived the right to introduce any evidence of the victim’s past sexual history.

      . This opinion has not been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal.