author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Charles Ray DAVIS, Appellant.
    No. 47,599-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Teresa Culpepper Carroll, Jonesboro, LA, for Appellant.
    Charles Rex Scott, II, District Attorney, Brian Harrist Barber, Suzanne Morelock Owen, John Aaron Crawford, Kelvin M. Rodgers, Assistant District Attorneys, for Appellee.
    Before DREW, LOLLEY and HARRISON (Pro Tempore), JJ.
   DREW, J.

|, Charles Ray Davis was convicted by a jury of three counts of molestation of a juvenile, La. R.S. 14:81.2(A). He was adjudicated on count three as a second-felony habitual offender and sentenced as follows:

• 10 years at hard labor on Count One, five years of which being ordered served without benefit of probation, parole, or suspension of sentence;
• 25 years at hard labor on Count Two, all to be served without benefit of probation, parole, or suspension of sentence; and
• 58 years at hard labor on Count Three, as adjudicated, all to be served without benefits.

The three sentences were ordered to be served concurrently. The defendant was ordered to register as a sex offender and to pay court costs or, in default, to serve an additional one year in jail.

We analyze defendant’s seven assignments of error in five categories, as variously preserved through timely motions:

(1)Insufficient evidence;
(2) Denial of defendant’s request to introduce evidence of M.G.’s allegedly false allegation of sexual abuse by another man;
(3) Prejudicial effect of the Gingerbread videos;
(4) Requiring further jury deliberations after the jury reported reaching verdicts on only two of the three counts; and
(5) Sentencing issues.
We affirm all three convictions.

The record reflects that the defendant is indigent. Accordingly, we strike the default jail time should he fail to pay court costs.

|2We affirm the sentences on Counts Two and Three. We amend the sentence on Count One, and as amended, affirm.

FACTS

Davis was charged with violating La. R.S. 14:81.2(A) and (C) on Count One, and with violating La. R.S. 14:81.2(A) and (E)(1) on Counts Two and Three. All relevant criminality occurred in the early Fall of 2010.

The state filed a successful notice of intent to use videotaped testimony of the victims at Gingerbread House Children’s Advocacy Center.

The state successfully excluded testimony from Tremaine Lee Haas, who would have testified that he was falsely accused of inappropriate sexual conduct by M.G. The state argued that the testimony was substantially more prejudicial than probative, that M.G. never recanted this allegation, and that there was never any police involvement which could have produced evidence showing her statement to be false.

Haas testified in a closed hearing that M.G. had written his name on her bedroom wall, accusing him of inappropriate conduct. The trial court cogently stated its reasoning in granting the state’s motion.

| ¿TRIAL TESTIMONY

Bobbie Jean Burns testified about a conversation with M.G. on the child’s 13th birthday. M.G. told her that the defendant, whom she called “Dolía”; had sex with her and also with M.T.-l. The child told her that she wrote about these events and other sexual contact on her bedroom wall. Burns also testified that when she took M.G. to the hospital the next day, the child cried that “it was the truth and no one would believe her.”

Sarah Bynum Jose, a forensic interviewer at Gingerbread House Children’s Advocacy Center, testified about the Gingerbread House’s videotape process, methodology, and chain of custody. Each victim was videoed; all three videos were played at trial.

M.G. testified in conjunction with and through her video, that:

• she referred to Davis as “Uncle Dolía” and he lived at her house;

• he had three incidents of inappropriate sexual contact with her;

• the first time happened in September 2010, on which date Davis was drunk when he entered her room;

• he rubbed her stomach and legs, asked her for five minutes, removed his clothing, got on top of her, and put his penis inside of her vagina;

• she jumped up and Davis left her room;

• the second time was the following week when she and Davis were alone at her home because her mother had gone to the country;

14* Davis entered her room and began feeling under her clothes, but stopped when he heard M.G.’s brother enter the home;

• the third time was October 7, 2010, when M.T.-l was staying over;

• both girls were in M.G.’s bed when Davis entered her room, sat on her bed, and began feeling on her stomach and legs under the covers;

• Davis also touched M.T.-1 between her legs;

• she wrote on her bedroom wall about these incidents;

• she did not tell her family members or teachers about what Davis did;

• Davis never told her not to tell anyone; and

• he never gave her anything after the three incidents.

M.T.-l testified in conjunction with and through her video, that:

• her nickname was “My-My” and she referred to Davis as “Dolía”;

• he was her mother’s boyfriend, and he sometimes stayed at her house;

• she sometimes slept over at M.G.’s, as they went to the same school;

• she was born on December 22,1998;

• Davis touched her breasts at M.G.’s home on October 7, 2010;

• he also touched other bodily areas through her clothes;

• Davis never touched her in her own home;

• she did not tell her family about this; and

• Davis never threatened her and never gave her anything.

M.T.-2 testified in conjunction with and through her video, that:

Is* she was born on April 9,1996;

• she called the defendant “Doha”;

• Davis was her mother’s boyfriend;

• he sometimes stayed over at her home;

• he had touched her breasts on top of her clothing;

• she saw Davis touch M.T.-l and grab her chest;

• she told her older siblings about Davis touching her, and

• Davis never threatened her and never gave her anything.

Three officers of the Shreveport Police Department testified briefly as to their actions in these investigations.

Jennifer Olson Rodriguez, M.D., a pediatrician employed at the Cara Center, physically examined M.G. Dr. Rodriguez testified that:

• M.G.’s hymen and anus were normal, with no bleeding;

• such results were not unusual, in that not all abuse causes injury and that an injury may heal over time, and tissue can heal or stretch; and

• it was possible that the child’s hymen had healed from recent abuse.

The defendant took the stand and testified that:

• he never molested these alleged victims;

• he shared a child with Tracey Turner (mother of M.T.-l and M.T.-2);

• he had prior criminal convictions;

• he sometimes stayed over at his girlfriend’s home;

• he was never in charge of M.G., and was alone with her only if everyone else had left or if he had to take her to school; and

|n* he never gave M.G. money to “hush up.”

During deliberations, the jury returned to the courtroom, and the trial court had a discussion with the foreperson about the jury’s progress. Based |7on this brief discussion, it was reasonable for the trial court to send the jury back for more deliberation. The jury later returned a verdict of guilty on all three counts of molestation of a juvenile.

DISCUSSION

I. Sufficiency

The defendant argues that all required elements of the charged crimes were not proven beyond a reasonable doubt. In support, he further asserts:

• that there was no evidence of any physical injury or trauma to M.G. (the one victim who alleged penetration);

• the lack of any immediate reports of the three alleged victims despite living in homes surrounded by trusted family members as well as daily contact with trusted school officials;

• the lack of any evidence that the defendant threatened the alleged victims or their family members; and

• the lack of any evidence that the defendant offered, promised, or gave anything of value to the alleged victims in return for the silence.

Our law relative to appellate review of sufficiency is well settled.

[sin 2010, the relevant portions of the molestation statute were clear.

A conviction for molestation of a juvenile requires proof that:

(1) the accused was over the age of 17;
(2) the accused committed a lewd or lascivious act upon the person or in the presence of a child under the age of 17;
(3) the accused was more than two years older than the victim;
(4) the accused had the specific intent to arouse or gratify either the child’s sexual desires or his own sexual desires; and,
(5)the accused committed the lewd or lascivious act by use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile.

Specific criminal intent is the state of mind that exists when the offender actively desired the prescribed criminal consequences to follow his | aact or failure to act and may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. R.S. 14:10(1).

The term “lewd” is defined as lustful, indecent, lascivious, and signifies that form of immorality which has relation to sexual impurity or incontinence carried on in a wanton manner. “Lascivious” is the excitement of lust, lewd, indecent, obscene, relating to sexual impurity, tending to deprave the morals relative to sexual relations.

It is not disputed that the defendant was over the age of 17, that all three victims were under the age of 17 at the time of the sexual offense, and that the defendant was more than two years older than each victim.

There was evidence that the defendant had touched the breasts of M.T.-l and M.T.-2, and that he engaged in sexual intercourse with M.G.

A rational trier of fact could have found that the defendant’s behavior justified a finding of a lewd and lascivious act on each count.

With regard to the last element, specifically the use of influence by virtue of a position of control or supervision over the juvenile, M.G. testified that the defendant was her uncle who lived with her, and she was alone with him during one of the incidents of sexual contact.

Both M.T.-l and M.T.-2 testified that the defendant was their mother’s boyfriend, that he was the father of their youngest sibling, and that he also lived with them. In illustrating the various relationships that 11 ninvolved supervision and control, this court has noted that our jurisprudence reflects numerous cases involving molestation accomplished by virtue of control and/or supervision by non-custodial parents, babysitters, relatives, friends, and neighbors.

Defendant argues that there was no evidence presented of any physical injury or trauma to M.G. A conviction for the crime of molestation of a juvenile does not require such a showing.

The defendant points out the lack of any immediate reports by the alleged victims despite living with trusted family members and having daily contact with school officials. The jury rejected this argument. Viewing the evidence in the light most favorable to the prosecution, a reasonable jury could have found sufficient evidence to render the three guilty verdicts.

II. Granting the State’s Motion in Li-mine

The state successfully sought to exclude the testimony of Tremaine Lee Haas. The defendant complains that this ruling denied his constitutional right to a fair trial, to which the state responds that no prejudicial error was shown, and there was nothing in the excluded testimony that deprived the defendant of his right to a fair trial. The right of an accused sex offender to present a defense must be balanced against the victim’s interests in accordance with La. C.E. art. 412. The decision to [ ^exclude the Haas testimony is clearly supportable.

The criteria to be used by the trial court in considering a motion for new trial is set out in La. C. Cr. P. Art. 851.

112The decision on a motion for a new trial rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Cox, 2010-2072 (La.11/19/10), 48 So.3d 275.

The trial court held a closed hearing to determine whether reasonable jurors could find that the victim had made prior false accusations. Based on the defendant’s argument, it does not appear that the exceptions applied to the facts at hand. In addition, there is no evidence that the trial court committed manifest error in denying the defendant’s motion for new trial because none of the exceptions outlined in La.C.Cr.P. art. 851 apply to the instant facts. This record supports the trial court’s rulings.

III. Gingerbread House Videos

The defendant argues that there was never an inquiry into any of the three minor victims’ alleged competency in that the victims were never asked the difference between right and wrong in court or during the Gingerbread House interviews.

The state responds that the defense did not object to the introduction of the videos or photographs. Without a contemporaneous objection, the defendant is barred from raising this claim on appeal, pursuant to La. C. Cr. P. art. 841. In addition, the state argues that the introduction of the videotaped testimony complied with the statutory requirements of La. R.S. 15:440 and each of the three victims did, in fact, testify in open court and were subject to cross-examination by the defense.

| iaThe statutory provisions regarding the admissibility of videotaped recordings are found in La. R.S. 15:440 et seq.

|14AII statutory requirements for the admissibility of videotaped testimony were followed and all three victims were available for cross-examination in the presence of the jury. The defense did not object to the admissibility of the videotaped testimony. In any event, the tapes were clearly admissible.

IV. Ordering Additional Deliberations

The defendant argues that since the jury foreperson reported a verdict on only two of the three charges, the judge should not have ordered further deliberations. Though the defendant technically objected to continued deliberation, no contemporaneous motion for a mistrial was made. Our law on mistrials is clear.

This transcript does not support any claim of a deadlocked jury. The trial court’s colloquy with the foreperson was reasonable and brief. The jury only required a total of three and one-half hours to reach all three verdicts. The trial court was reasonable in allowing further deliberation.

V. Sentencing

The defendant attacks his sentences on Counts One and Three because (1) he was 43 years old; (2) none of his prior crimes are considered as “sex” crimes; (3) there is no clarity as to what the impact on the juvenile victims would be; and (4) with the exception of one sex act, all touching |1fiwas done on top of clothing. Sentencing parameters for these crimes are clear. Our law on appellate review of sentences is well settled.

The court considered La. C. Cr. P. art. 894.1, noting the impact of the crimes against three young females; the tender ages of the victims, as compared with the defendant; and the prior convictions of the defendant.

At the time the defendant molested the victim referenced in Count One, that child was over 13 years of age. This exposed him to a sentence of five to 20 years at hard labor, a fine of up to $10,000, or both.

As error patent, we note that part of defendant’s sentence on Count One was ordered to be served without benefits. When this crime was committed, La. R.S. 14:81.2(0 did not provide for any denial of benefits. Accordingly, we remove that prohibition.

|1fiAt the time the defendant molested the other two victims, those children were not yet 13 years old. The sentencing parameters for Counts Two and Three were from 25 to 99 years at hard labor, with at least 25 years to be served without benefits. In addition, the defendant was adjudicated as a second felony offender on Count Three, further increasing his maximum exposure to 198 years at hard labor without benefits on that count alone. We detect no manifest error in these low to mid-range sentences.

DECREE

We affirm all convictions and the sentences on Counts Two and Three. We amend the sentence on Count One by deleting any prohibition against benefits. Due to defendant’s indigency, we also amend the sentence to strike the additional year in jail should defendant default on paying court costs. As amended, we affirm that sentence.

AFFIRMED IN PART, AMENDED IN PART, AND, AS AMENDED, AFFIRMED.

      . The defendant timely filed a Motion in Li-mine, Motion for Post-Verdict Judgment of Acquittal, Motion to Reconsider Sentence, and Motion for New Trial.

      . Count One pertains to the victim M.T.-2 (DOB 4/9/96).
      Count Two pertains to the victim M.T.-l (DOB 12/22/98).
      Count Three pertains to the victim M.G. (DOB 10/10/97).
      As per La. R.S. 46:1844, the three children are referenced herein by initials.

      .Haas is related to M.G. as an uncle by affinity.

      . Stephanie Mosley, a victim assistance coordinator, testified relative to the defendant’s Motion in Limine that M.G. told her that she had been molested by "Yella” and that she had shared this information with her family, but that no one believed her and the police were never contacted.

      . "The Court has endeavored to read the cases supplied by both the defense and the State on this issue and out of an abundance of caution this Court allowed an evidentiary hearing regarding this issue and has heard testimony of the witness called by the mover defendant and as well the witness called by the State. Based on the evidence and the Court's ruling — excuse me — reading of the cases supplied to the Court, the Court grants the motion in limine and finds that the question is whether reasonable jurors would find based on evidence presented by defendant that the victim had made prior false accusations. Based on what has been adduced, the Court does not find that there has been evidence of prior false allegations of molestation and thusly the Court grants the motion.”

      . Burns is M.G.'s grandmother. The two have a very close relationship.

      . Davis testified in his testimony that "Dolía” is his nickname.

      . State Exhibit Nos. 4 to 12 included the following statements: "October 6 2010 Doha drunk, touched me and did something he had no business”; "Doha is wrong for what he did”; "Doha touched My-My in the wrong way”; and "Dolía touched me in the wrong spot 2010."

      . M.T.-l's recorded testimony and testimony at trial revealed that she lived with her mother, grandparents, two uncles, two older brothers, two older sisters (including M.T.-2), and two younger sisters.

      . Officers Gary Thomas, Hannah Clark, and Deandre Bell.

      . The Cara Center is a regional facility for evaluation of sexual abuse claims.

      .The Court: Madam foreperson, has the jury reached a verdict?
      Juror McDonald: Not on all three.
      The Court: But you have—
      Juror McDonald: —on two.
      The Court: On two. Have the jurors been able to talk and communicate with each other?
      Juror McDonald: Yes ma’am.
      The Court: Do you think it would be, you individually as a group, do you think it would be helpful and beneficial for you to go back in and continue your deliberations?
      Juror McDonald: Yes ma’am, I think that we can resolve it. It’s just—
      The Court: You need a bit more time?
      Juror McDonald: Yes ma’am.
      The Court: With that I'm going to send you back in to deliberate further. Will counsel approach the bench before I send you out. (Discussion at Bench.)
      The Court: Thank you counsel, all counsel. Ladies and gentleman of the jury, I’m going to send you back in to tiy to deliberate further. Thank you.
      (Jury excused.)
      The Court: For the record the jury is out of the courtroom, and I had discussed with counsel prior to asking the jury to come back in and ask questions. I indicated to counsel the few questions that I would ask and have done so, and based on their responses and particularly by the foreperson I sent them back in to try to deliberate further. I tried to keep my questions as generic as I could. And at this time is there any response to what the Court has done by the State or defense?
      Mr. Rodgers: None by the State.
      Mr. Crawford: Well, actually your Honor, if I may briefly, I just want to note for the record that it’s been under three hours, and I believe that that may have been the decision to have them continue to deliberate. It has not been a significant amount of time although they have had a chance to speak, and the State agrees with the decision.
      The Court: So noted by the State. And the defense, Mr. Goins, I know you have something to say.
      Mr. Goins: Yes, your Honor. I would make an objection out of an abundance of caution. The foreperson did not report that the jury was hopelessly deadlocked and said they have reached a verdict on two of the counts, and they did say they would like to try on the third count.

      The Court: Are you objecting for the record?
      Mr. Goins: Yes.

      . The verdict on count one was 11-1; the verdicts on the other two counts were unanimous.

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020.
      It is the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (1993); State v. Bonnett, 524 So.2d 932 (La.App. 2d Cir.1988), writ denied, 532 So.2d 148 (1988). The trier of fact senses first hand the testimony and unless the fact finder's assessment of believability is without any rational basis it should not be disturbed by a reviewing court. State v. Mussall, 523 So.2d 1305 (La.1988); State v. Combs, 600 So.2d 751 (La.App. 2d Cir.1992), writ denied, 604 So.2d 973 (1992).
      The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

      . La. R.S. 14:81.2 provided in pertinent part:
      (A) Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age shall not be a defense.
      (C) Whoever commits the crime of molestation of a juvenile, when the victim is thirteen years of age or older but has not yet attained the age of seventeen, and when the offender has control or supervision over the juvenile, shall be fined not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than five nor more than twenty years, or both the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with Code of Criminal Procedure Article 893.
      (E)(1) Whoever commits the crime of molestation of a juvenile when the victim is under the age of thirteen years shall be imprisoned at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of probation, parole, or suspension of sentence.

      . See State v. Leblanc, 506 So.2d 1197 (La.1987).

      . See State v. Holstead, 354 So.2d 493 (La.1977); State v. Interiano, 2003-1760 (La.2/13/04), 868 So.2d 9.

      . Davis was born April 22, 1967, making him 43 years old at the time of the crimes, on which dates M.T.-2 (DOB 4/9/96) was over 13; M.T.-l (DOB 12/22/98) was under 13; and M.G. (DOB 10/10/97) was under 13. The ages of the children on the dates of the crimes is not in dispute in this appeal.

        . See State v. Ellis, 38,740 (La.App.2d Cir.8/18/04), 880 So.2d 214, particularly Footnote 2 (collecting cases).

      . La. C.E. art. 412 Victim’s past sexual behavior in sexual assault cases
      A. Opinion and reputation evidence. When an accused is charged with a crime involving sexually assaultive behavior, reputation or opinion evidence of the past sexual behavior of the victim is not admissible.
      B. 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; provided that such evidence is limited to a period not to exceed seventy-two hours prior to the time of the offense, and further provided that the jury be instructed at the time and in its final charge regarding the limited purpose for which the evidence is admitted; 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 assaultive behavior.
      F. For purposes of this Article, the term “past sexual behavior” is defined as sexual behavior other than the sexual behavior with respect to which the offense of sexually assaultive behavior is alleged.
      In a prosecution for sexually assaultive behavior, art. 412 prevents the introduction of evidence of the victim’s past sexual behavior, with certain limited exceptions. If the defendant wishes to offer evidence pursuant to one of the exceptions, he must file a notice of intent to do so. La. C.E. art. 412 C. The court must then hold a closed hearing to determine whether the offered evidence is admissible. La. C.E. art. 412(E). State v. Frith, 32,796 (La.App.2d Cir.12/8/99), 747 So.2d 1269, writ denied, 2000-0419 (La.1/26/01), 781 So.2d 1256.
      When a defendant seeks to introduce evidence that the victim has made such prior false accusations, the trial judge must evaluate that evidence by determining whether reasonable jurors could find, based on the evidence presented by defendant, that the victim had made prior false accusations and whether all other requirements of the Code of Evidence have been satisfied. State v. Smith, 98-2045 (La.9/8/99), 743 So.2d 199.

      . La. C. Cr. P. Art. 851. Grounds for new trial
      The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
      The court, on motion of the defendant, shall grant a new trial whenever:
      (1) The verdict is contrary to the law and the evidence;
      (2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
      (3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilt;
      (4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
      (5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

      . La. R.S. 15:440.1 Purpose.
      It is declared to be in the best interest of the state that protected persons be spared from crimes of violence, and that persons who commit such crimes be prosecuted with a minimum of additional intrusion into the lives of such protected persons.
      La. R.S. 15:440.2. Authorization.
      The videotape authorized by this Subpart is hereby admissible in evidence as an exception to the hearsay rule.
      La. R.S. 15:440.3. Videotape; admissibility; exception to hearsay rule.
      The videotape authorized by this Subpart is hereby admissible in evidence as an exception to the hearsay rule.
      La. R.S. 15:440.4. Method of record videotape; competency.
      (A) A videotape of a protected person may be offered in evidence either for or against a defendant. To render such a videotape competent evidence, it must be satisfactorily proved:
      (1) That such electronic recording was voluntarily made by the protected person.
      (2) That no relative of the protected person was present in the room where the recording was made.
      (3) That such recording was not made of answers to interrogatories calculated to lead the protected person to make any particular statement.
      (4) That the recording is accurate, has not been altered, and reflects what the protected person said.
      (5) That the taking of the protected person’s statement was supervised by a physician, a social worker, a law enforcement officer, a licensed psychologist, a medical psychologist, a licensed professional counselor, or an authorized representative of the Department of Children and Family Services.
      (B) The department shall develop and promulgate regulations on or before September 12, 1984, regarding training requirements and certification for department personnel designated in Paragraph (A)(5) of this Section who supervise the taking of the protected person's statement.
      La. R.S. 15:440.5. Admissibility of videotaped statements; discovery by defendant.
      (A) The videotape of an oral statement of the protected person made before the proceeding begins may be admissible into evidence if:
      (1) No attorney for either party was present when the statement was made;
      (2) The recording is both visual and oral and is recorded on Him or videotape or by other electronic means;
      (3) The recording is accurate, has not been altered, and reflects what the witness or victim said;
      (4) The statement was not made in response to questioning calculated to lead the protected person to make a particular statement;
      (5) Every voice on the recording is identified;
      (6) The person conducting or supervising the interview of the protected person in the recording is present at the proceeding and available to testify or be cross-examined by either party;
      (7) The defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence; and
      (8) The protected person is available to testify.

      . La. C. Cr. P. art. 775 provides, in pertinent part:
      A mistrial may be ordered, and in a jury case the jury dismissed, when:
      (2) The jury is unable to agree upon a verdict!.]

      . The trial court assessed the minimum sentence on Count Two.

      . See fn. 15, supra.

      . A reviewing court imposes a two-prong test in determining whether a sentence is excessive. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reveals that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dillard, 45,633 (La.App.2d Cir.11/3/10), 55 So.3d 56, writ denied, 2010-2853 (La.11/18/11), 75 So.3d 454. The important elements which should be considered are the defendant’s personal history (his age, family ties, marital status, health, employment record), prior criminal history, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Dillard, supra.

      Second, a sentence violates La. Const. Art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A trial court has broad discretion in sentencing offenders. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La.App.2d Cir.11/3/10), 55 So.3d 90.
      A trial court has wide discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of discretion, a sentence will not be set aside as excessive. Id. 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.

      . In sentencing after habitual offender adjudications, the trial court may deny parole only if the underlying crime denies parole. See State v. Bobo, 46,225 (La.App.2d Cir.6/8/11), 77 So.3d 1, writ denied, 2011-1524 (La.12/16/11), 76 So.3d 1202.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Joe Lee GRADY, Jr., Appellant.
    No. 47,622-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Teresa Culpepper Carroll, Jonesboro, LA, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Dale G. Cox, Suzanne M. Owen, R. Bennett Langford, III, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART, and DREW, JJ.
   BROWN, Chief Judge.

[ 1A jury in a 10-2 vote convicted defendant, Joe Lee Grady, Jr., of the September 4, 2005, second degree murders of his girlfriend, Echo Washington, and Arthur Tyson, Jr. Both of the victims were killed in a trailer house fire in Vivian, Louisiana. Defendant appealed urging that the evidence was insufficient to prove that he was the perpetrator of the crimes, and, in the alternative, that the evidence proved that he committed only manslaughter rather than second degree murder. Tied to the sufficiency of the evidence argument are questions about the admissibility of certain evidence and in particular, defendant’s confession. Following a denial of motions for new trial and for post verdict judgment of acquittal, defendant waived the sentence delay, and the trial court imposed concurrent mandatory sentences of life imprisonment at hard labor without benefit of parole on each of the two counts. We affirm.

Discussion

Denial of Motion to Suppress/Motion for New Trial

On the night of Saturday, September 3, 2005, Arthur Tyson, Echo Washington, Ze-phinah (“Zeph”) and Echo’s teenaged brother James Washington were gathered at Echo’s trailer home. Zeph was Echo’s child by Tyson; however, at the time Tyson was living with Shantae McCauley who also had a son fathered by Tyson. James intended to spend the night at the trailer and arrived before midnight. James said that Tyson and Echo |2were in the back bedroom, and he and Zeph were in the living room watching television. Sometime after midnight, defendant, Joe Grady, arrived at the trailer to get a DVD/VCR combination player that belonged to him. He got the player and left; however, he returned and asked James to go get his cell phone from Echo, who was still in the back bedroom with Tyson. Echo came out and personally gave the phone to defendant. James could not overhear their words or the tone of their voices during their conversation. After getting his phone, defendant left the trailer.

Vivian police received a 911 call at approximately 3:45 a.m.; Vivian Police Officer Bobby Smith and another officer were the first to arrive at the scene; the trailer was fully engulfed in flames. Officer Smith saw James Washington in the front yard and saw Zeph a little later. James told Officer Smith that Tyson and Echo were unaccounted for. Zeph was taken to a nearby hospital and then transferred to LSU-HSC by air ambulance; he suffered terrible burns that required skin grafts and also lost his voice due to his injuries. The fire department arrived and fought the fire for about one hour. When the fire was extinguished, the burned bodies of Tyson and Echo were located; Tyson was in the back bedroom, and Echo was in the hallway. Coroner Todd Thoma testified that the cause of death for both victims was smoke inhalation and/or burns as a result of the fire.

Officer Smith, along with Vivian Police Department Sergeant Ryan Nelson and James Alexander and Rick Abbott of the State Fire Marshal’s Office investigated the fire. Investigator Alexander examined the mobile home and smelled something similar to gasoline. Alexander noted that lathere had been considerable damage to the trailer resulting in a total loss. He observed heavy damage to the living room, as well as extensive fire venting out the front and rear doors and above the front living room window. Alexander concluded that the fire had been deliberately set at the utility hallway near the back door of the trailer; a sample of the linoleum in that area tested positive for the presence of gasoline.

Initially, defendant, who was a boyfriend of Echo Washington, told the investigators that he had been to Echo Washington’s home late Saturday night to retrieve his cell phone but that he left and was back at his house by about 12:30 a.m. Sunday morning; he said that he did not leave his home after that time.

After receiving conflicting information from other witnesses, defendant was interviewed a second time. He was thoroughly advised of his Miranda rights. The recording of this second interview was incomplete; the investigators reported that the recorder did not beep when the tape ended so the last part of the interview was not recorded. According to Investigator James Alexander, during the unrecorded portion of the interview, defendant finally admitted to setting the fire and agreed to accompany the investigators to the scene of the fire. Alexander said that after defendant had repeatedly denied setting the fire, “all of a sudden, Joe just put his head down and in a low voice said T did it.’ ”

At that point, Alexander, Officer Bobby Smith and defendant went to the scene. Defendant rode with Officer Smith. Alexander explained that when they arrived, defendant went to the middle bedroom window, raised it, 14and “demonstrated how he set a rag on fire and put it on the bed.” Alexander shined a light on the bed and the bed was not burned. Alexander testified that he told defendant, “if the bed, this is where you threw the rag how come the bed is not burned?” Defendant said he threw the rag into the room past the bed toward the door of the room. They showed defendant that there was no rag and that the carpet had not been burned in the room. Alexander then said:

Well, at that point, Joe on his own initiative walked from the doorway to that bedroom to the rear door of the mobile home which was about three or four steps. He walked out, he walked through the door, out onto the back porch and turned around facing the mobile home. He took one of his legs, he extended it into the doorway over the threshold, and he moved it side by side, and he said, this is where I set the fire.

Alexander also testified:

So I asked Joe to show me how he set the fire. Joe indicated that he pulled the screen door open about a foot, and at that point, I said, what screen door, because there was no screen door there. Joe stepped off the porch and reached down and there was a big pile of debris and there was a part of a screen door that was sticking out of the debris, and he reached up and grabbed part of the door, and he said, this, this is the screen door. So I said, okay. So he gets back up on the porch, and he said he reached in and stuck his hand in the hole for a doorknob and opened the wooden door about a foot. And I asked him to show me how, demonstrate how he poured the gas, and from standing on the porch outside the doorway he reached in with his hand and demonstrated pouring the gas on the floor just inside the doorway. Then I asked Joe to show me how he ignited the gas, and he demonstrated by bending down with his cigarette lighter in his hand, reaching in, lighting the fuel, and pulling his hand back fast. And he said the gas, it ignited, it did not flash up. I asked him if he shut the door back and said no, he left it open about a foot.

No audio or videotape recording was made of these events at the scene.

| fiAfter the investigators took defendant to the scene, they returned to the police station and Alexander took another statement from defendant. He was again read his Miranda rights, and this interview was recorded in its entirety. In this interview, defendant explained that when he retrieved his phone from Echo at midnight, she told him that she would come to his house when Tyson left at about 3:00 a.m. Defendant said that he went home and went to bed, but when he awoke at 3:00 a.m., he realized that Echo was not there. He said that he got up, got dressed, and walked toward Echo’s house. Defendant explained that he met Jerome Russell outside and spoke with him, and that Russell then left. Defendant said that he continued on to Echo’s trailer. He saw that there were lights on in the front room of the trailer, and he saw a red gas can in front of a storage building on the property.

Defendant said that when he saw the gas can, the idea came to him to start the fire, so he went around to the back of the trailer, opened the door and sprinkled the gas there. He said that there was no door knob on the door and that he just pulled it open “enough to put my hand in there and spray a little gas.” Defendant said that he then took his cigarette lighter and lit the fire; he said that “it wasn’t no boom or all that” and that the fire didn’t flash. He said that he then walked back home the way he came, stood outside and looked back and did not see any flames, so he went inside and got into bed. He explained that his intent in setting the fire was to scare Echo Washington and that he thought that James Washington and Zeph had already left the trailer.

[(¡Defendant’s confession was subject to two separate motions to suppress filed in the trial court. The first motion provoked an extensive hearing before a different judge and was denied. The second, citing additional reasons, was heard by the trial judge and was likewise denied. On appeal, defendant argues that the trial court erred in denying his motion for new trial on this basis as well. Defendant’s arguments span both his Miranda waiver and the voluntariness of his confession.

Before a criminal defendant’s confession may be admitted into evidence, the State has the burden of proving beyond a reasonable doubt that the confession was freely and voluntarily made. State v. Green, 94-0887 (La.05/22/95), 655 So.2d 272. In addition, a suspect must be informed of and waive his Miranda rights. Id.

Regarding the knowing and intelligent waiver of a defendant’s Miranda rights, our supreme court in State v. Green, 655 So.2d at 280 wrote:

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), re’hg denied, 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966), the United States Supreme Court declared that a condition precedent to obtaining a statement admissible in court from a suspect in police custody is that the suspect be informed that he has the right to remain silent and to consult with an attorney. Miranda also made it clear that for such a statement to be admissible it must be made with a knowing and intelligent waiver of those rights. Miranda, supra, at 475, 86 S.Ct. at 1602. In other words, for a statement which is the product of custodial interrogation to be entered into evidence against a criminal defendant, at the time the statement is made the defendant must understand that he is entitled to certain protections under the law and nevertheless decide to speak.
When, as in this case, a defendant has expressly waived his Miranda rights, the question becomes “whether the purported waiver was 17knowing and intelligent ... under the totality of the circumstances.” [State v.] Abadie, supra, 612 So.2d [1] at 5 [ (La.1993) ], quoting Oregon v. Bradshaw, 462 U.S. 1039, 1044-46, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983).

Moderate mental retardation and low intelligence or illiteracy do not of themselves vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. State v. Anderson, 379 So.2d 735 (La.1980). See also State v. Tart, 93-0772 (La.02/09/96), 672 So.2d 116, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996); State v. Benoit, 440 So.2d 129 (La.1983). The critical factor is whether defendant was able to understand the rights to remain silent and to consult with an attorney.

A psychiatrist, George Seiden, M.D., conducted a sanity evaluation of defendant in 2008. As for the ability of defendant to understand his rights under Miranda, Dr. Seiden said at the 2008 hearing on the motion to suppress that:

Based on my evaluation, which included the interview I did of [defendant] for the Court-ordered competency evaluation, as well as the review of a variety of documents, some of which had been included when I did my evaluation for the Court and some of which I was provided subsequent to that, it’s my opinion that he does suffer from mild mental retardation; but, despite that, he was capable of understanding his Miranda rights. He was capable of giving a knowing and voluntary confession. So that’s my opinion.

Although Dr. Seiden said that he was evaluating defendant for his competence to stand trial and not for his ability to understand his rights at the time he originally interviewed him, he explained that he was able to make that determination retrospectively based upon the interview and other information. Dr. Seiden noted that when he did his evaluation, he had | «defendant sign a consent form, and as to that form, “... [defendant] knew that he had the right not to say anything. He said that himself.”

At trial, Dr. Seiden again opined that defendant was probably mildly mentally retarded. Even so, after listening to the recording of defendant’s confession, Dr. Seiden believed that the confession did not fit the criteria that is typically found in false or coerced confessions. Dr. Seiden explained that despite the aggressive manner used by the investigators, defendant continued to resist confessing and denied involvement. Further, in the second statement, after he returned from the scene, defendant was able to provide information that only he would have known and was not simply “parroting” information that was told to him. Dr. Seiden reviewed numerous details in defendant’s statement that were in the form of a narrative by him that were consistent with his confession being true and not coerced or false. At trial, however, Dr. Seiden backed off of his positive statement concerning defendant’s understanding of the Miranda warnings. He said that an opinion about defendant’s ability to understand the Miranda warnings would be speculative in the absence of a specific evaluation which he had not performed and which, to his knowledge, had not been done in this case. On cross-examination, Dr. Seiden said that he was unaware of the break in the tape recording and had a concern about the effect of the police questioning, saying:

Well, I would want more information. If that were in isolation, I would say yes, were it not followed by the parts of the interrogation in his confession that I have gone through and read to the jury.

IflUltimately, Dr. Seiden concluded that, although people with mild mental retardation can be coerced into a confession, defendant was not.

Defendant’s witness at the suppression hearing and trial was a psychologist, Dr. Webb Sentell. Dr. Sentell administered an intelligence test to defendant, whose full scale IQ was measured at 67. Dr. Sentell said that this measurement put defendant in the category of mildly mentally retarded. He believed that a person in this category would have difficulty understanding his Miranda rights and that his understanding would be “marginally competent.” Dr. Sentell also listened to the recording of the interviews with defendant; he described the officers as “pretty aggressive and coercive” and stated that mentally retarded individuals are much easier to coerce than normal individuals. Dr. Sentell opined that “in Mr. Grady’s ease, he was coerced in my opinion, and, of course, he was compliant in that he confessed.” Dr. Sentell also found it significant that at the crime scene defendant told “the wrong story” the first two times he described setting the fire.

Interestingly, Dr. Sentell’s opinion was also modified at trial. At the first suppression hearing, Dr. Sentell answered “No,” when asked if defendant had an understanding of what Miranda rights were. However, at trial, Dr. Sentell said, “If I had to fall off the fence I would say that’s why we’re — yes, if we have to say yes or no is he competent, marginally competent means competent.”

The inquiry about a defendant’s ability to understand Miranda is not limited to expert opinion. Courts are able to consider many sources of | ^information, not only expert testimony, in making the determination as to whether a mildly mentally retarded person is capable of understanding and waiving the Miranda rights. For example, testimony from the interviewing government agents is evidence that may help satisfy the burden of proving understanding. The supreme court in State v. Green, supra at 282-83 stated:

We find that the State met its burden of proof in this case. The trial judge evidently credited the testimony of the police officers, in particular their experienced opinion that Green knew what he was doing when he waived his rights and started to speak.

Both of the trial judges who considered this issue had the benefit of reviewing the two audio recordings of defendant’s confession. At the beginning of the first interview, defendant’s responses are minimal. However, his answers become more audible throughout the interview. As noted above, the expert opinions were, at best, mixed on the issue of defendant’s capacity to understand and waive his Miranda rights. The officers testified that they were convinced that defendant understood his rights and chose to waive them. In the second recorded interview, defendant accurately recalled specific details as well as attempted to manipulate a more favorable view of himself by saying that he only wanted to scare the victims and that he believed the child and James were not in the home.

After considering all of the evidence in this record, we tend to agree with Dr. Sentell’s last statements about the issue— that defendant was minimally competent to understand and waive his Miranda rights. Dr. [nSeiden’s neutrality from his earlier opinion gives us cause for concern, but ultimately, defendant’s statement as a whole demonstrates his understanding of what was going on. Although it is a very close call, we find that the two lower court judges’ conclusions that defendant understood and waived his Miranda rights is supported by the entire record. See State v. Collins, 370 So.2d 533, 538-9 (La.1979) (“The issue is a close one.... The substantial evidence of defendant’s mental retardation and incapacity raises a serious question also to whether defendant could have knowingly and intelligently waived his rights.... After considering the evidence carefully in this case, we cannot say that the trial judge abused his great discretion in concluding that the state presented requisite proof of a knowing and intelligent waiver of rights by the defendant.”).

As to the free and voluntary issue, the recording of the first interview with defendant shows that Alexander and Richard Abbott were questioning defendant very intensely, with Abbott being aggressive and Alexander being more calm and sympathetic.

Investigator Richard Abbott explained his role in the questioning of defendant; he said that he was trying to antagonize defendant so he would bond with Alexander and tell him the truth. Abbott told defendant that he would face the death penalty if he were convicted of first degree murder and cursed loudly several times. At the scene, defendant originally showed them that he had thrown a gasoline-soaked rag through a window, but the fire damage was not consistent with that. Defendant then said that he had actually set the fire in the front bedroom where the children were; again, the 112fire damage was inconsistent with this assertion. Alexander confirmed that defendant finally showed the investigators that he started the fire in the back hallway by pouring gas on the floor through the back door.

Bobby Smith of the Vivian Police Department also sat in on the interviews with defendant and affirmed that defendant was not threatened or promised anything in exchange for his confession. Smith took defendant to and from the crime scene and said that they had no conversation at all during the drive. Officer Ryan Nelson likewise sat in on the interviews and confirmed that the investigators never threatened defendant or promised him anything in exchange for his confession. Nelson said that he had known defendant since middle school and had no knowledge that he was retarded or mentally slow, although Nelson said that he was surprised when defendant admitted to the crime because “by me knowing Joe I wouldn’t have thought he would do anything like that.”

Considering all the testimony, we can not say that the trial court erred in finding that defendant’s confession was freely and voluntarily made, but this too is a close issue given what, frankly, was an unacceptable procedure in the taking of his statement. Unfortunately, a critical part of the statement — where defendant initially admits his culpability — is missing. The trial court was forced to make its decision about the voluntariness of the confession based upon the testimony of the investigators rather than upon a complete record of what happened during the interview. As for the investigators’ aggressive questioning, while the interviewers did not make any overt threats or blatantly coerce defendant, they were borderline | ^inappropriate in their tactics and at one point, misstated the elements of first degree murder to defendant when they told him they could convict him even if he had no intent but acted “accidentally.” Notwithstanding this, defendant maintained his innocence for some time despite warnings that he might “lose [his] life with a needle in [his] arm in Angola.”

Both the Miranda issue and the voluntary issue are close but, we find that the trial court did not violate its strong discretion in deciding that the confession was admissible.

Sufficiency of the Evidence

Defendant’s argument in this assignment of error is multifaceted, but essentially he argues that the evidence was insufficient to prove that he was the perpetrator of the offenses and, in the alternative, that the evidence proves that he committed only manslaughter rather than second degree murder.

La. R.S. 14:30.1 provides:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of ... aggravated arson ... even though he has no intent to kill or to inflict great bodily harm.

La. R.S. 14:51 provides, in part:

Aggravated arson is the intentional damaging by any explosive substance or the setting fire to any structure, watercraft, or movable whereby it is foreseeable that human life might be endangered.

114The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.02/22/06), 922 So.2d 517. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913.

Defendant lived in the neighborhood at 1502 South Pardue Avenue. There was a dirt road behind Seminole Street that people, including defendant and Echo, used as a path between South Pardue Avenue and Echo’s trailer.

The events happened late Saturday night/early Sunday morning and many residents of the neighborhood were either coming home from a club in nearby Rodes-sa called the Bird’s Nest or in their yard socializing. Portia Ashley testified that on the morning of the fire, between 3:00 and 3:30 a.m., |1sshe was coming home from the Bird’s Nest and saw defendant leave his house alone, walking in the direction of Echo’s trailer. Rashonda Miller lived at 1506 South Pardue near defendant’s home. On the morning of the fire, Ms. Miller said that she left the Bird’s Nest around 2:15 or 2:25 a.m., drove back to Vivian, went to a convenience store, and then returned to her home. When she got there, she and a friend, Jesse Douglas, sat visiting under her carport, which faces South Pardue. About 45 minutes after Ms. Miller got home, she saw defendant leave his home and walk down the dirt path in the direction of Echo’s trailer. About 10 or 15 minutes later, she saw defendant come back down the trail from the direction of the trailer and go back to his house. She then saw defendant come back out of his house with a can of beer or soda in his hand and go back down the path towards Echo Washington’s trailer. She did not see him return; not long after Ms. Miller saw defendant that second time, Douglas left and she went inside her home. Ms. Miller did not hear an explosion, but learned about the fire the next day. Douglas’s testimony was the same as Ms. Miller’s.

Jerome Russell, who lived at 306 Seminole Street three houses down the street from Echo Washington, was also awake and in his yard at about 3:00 a.m. that morning. Russell was rolling a marijuana cigarette in his back yard when he saw defendant walking up the road with a beer and a cigarette in his hands. Russell, who knew defendant, spoke to him. Defendant then told Russell that he was going home, and he walked away back toward his home on South Pardue. However, about 10 or 15 minutes |1filater, defendant came back and again spoke to Russell. At that time, Russell went across the street to a party. He did not see defendant again.

Investigators also learned that defendant and Arthur Tyson, Jr., had previously been involved in a violent encounter. Kara Killian, who lived in Vivian, testified that she witnessed a fight between the two men on November 3, 2004, and Tyson was “beating the other one (defendant) up really bad.” She said that Arthur Tyson was “stomping and kicking” defendant while Shantae McCauley watched.

Vivian Police Department Officer Shawn Channelle responded to a 911 call regarding the fight. He found defendant lying unconscious in the street with “severe head wounds covered in blood.” Defendant had to be hospitalized, and Tyson was later arrested for battery.

Although the fire occurred between 3:00 a.m. and 4:00 a.m., there were an unusual number of witnesses available to testify about the whereabouts and actions of the various parties in this case. Many of these persons saw defendant on his way to, or very close to, the site of the fire at 312 Seminole shortly before the fire occurred. The evidence from the fire investigators also established that the fire was not an accident but instead was deliberately set with the aid of an accelerant. Further, there was ample evidence of a motive for defendant to commit the crimes; he was seriously beaten by Tyson in a previous altercation, and his girlfriend was getting back together with Tyson. Then, there was defendant’s confession. He said he did it. He showed the officers how he did it. He confessed that he only meant to “scare” Echo Washington.

117Pefendant presented witnesses that indicated that there was bad blood between Shantae McCauley and Echo Washington. Jessica Sanders, who was 14 years old at the time of the fire, testified that on Saturday, September 3, 2005, she was at Shantae McCauley’s house playing a computer game when she witnessed an argument between Shantae and Arthur Tyson. Ms. Sanders said:

But when Arthur came out the house, they continued to argue as he walked up the street, and Shantae yelled out to Arthur and was like, he better not be going over to Echo house, she tired of this, if she catch them together she would kill them because she tired of it, and Arthur kept walking.

Billy Washington, Echo’s brother, testified that he had seen a fight between Echo and Shantae “a couple of months” before the fire, started by Shantae over Echo’s relationship with Tyson. On cross-examination, Washington said, “[Echo] told me that she told Joe [Grady] that she was in love with [Arthur] and she wanted to get back with her baby daddy. That’s what she told me.”

A number of witnesses testified to seeing or being with Shantae McCauley throughout that Saturday night/Sunday morning. A surveillance video at an E-Z Mart store shows McCauley’s presence at 3:45 a.m. on the morning of the fire. Although there was evidence that Shantae McCauley had a motive to commit these offenses, defendant admitted that he was the person who committed the offenses. The evidence is thus sufficient to prove that defendant committed the second degree murder of both victims by virtue of his commission of aggravated arson.

| ^Defendant also argues that the evidence supports, at most, verdicts of manslaughter, which is defined, in relevant part, as a “homicide which would be first or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La. R.S. 14:31(A)(1); State v. Quiambao, 36,587 (La.App.2d Cir.12/11/02), 833 So.2d 1103, writ denied, 03-0477 (La.05/16/03), 843 So.2d 1130. Having found sufficient evidence to prove beyond a reasonable doubt second degree murder, this argument is moot.

However, the jury was fully within its province to reject the idea that defendant was acting under sudden passion or heat of blood caused by the events of the previous day.

Introduction of Motive Evidence

Defendant argues that the trial court should not have allowed, over his objection, evidence that Arthur Tyson badly beat him in a fight several months prior to the fire.. He cites La. C.E. art. 404(B), the prohibition against certain other crimes evidence, in support. However, the fight did not demonstrate any bad act or other crime by defendant; the wrongful actor was apparently Arthur Tyson, who beat defendant unconscious. This was evidence that was highly relevant to proof of defendant’s motive to commit the crimes, which in this case was relevant to proof that defendant was the person who committed the crimes.

| introduction of Photographs of Victims

Defendant argues that the trial court should not have allowed the jury to see four photos of the victims’ burned bodies because these photos were gruesome and more prejudicial than probative.

None of these photos are so gruesome that they would overcome a juror’s reason and lead them to convict in the absence of other evidence. State v. Broaden, 99-2124 (La.02/21/01), 780 So.2d 349, 364, cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001). The photos were relevant in that they all show the positions of the bodies in the trailer from various angles and the damage to the trailer — and the victims — caused by the fire in these areas. Id.

Limitation of Re-cross Examination

During the testimony of Summer White, a prosecution witness, the prosecutor and defense counsel asked Ms. White about her whereabouts during the early morning hours of September 4, 2005. On redirect, the prosecutor got the witness to clarify where she and Shantae McCauley had walked and then where they drove with their friends. At the conclusion of redirect, defendant asked to re-cross examine Ms. White, but the court refused to allow re-cross.

During the testimony of fire investigator James Alexander, a prosecution witness, the prosecutor and defense counsel covered a wide variety of topics concerning the fire investigation and the interview with defendant. On redirect, Alexander was asked about defendant’s claim that there was no “whoosh” or explosion when he lit the gas, and Alexander [2nopined that, based on his experience, he thought defendant was lying about that and that defendant was lying when he said he thought the fire had gone out in his statement.

Defense counsel asked to recross the witness about the “whoosh” on a gas fire and if the fire could go out, and the court found that the issue was amply covered on direct and cross examination already, so the court denied defendant the opportunity to re-cross Alexander.

The Sixth Amendment to the United States Constitution and La. Const. Art. 1, § 16, guarantee an accused in a criminal prosecution the right to be confronted with the witnesses against him. La. C.E. art. 611(B) provides that a witness may be cross examined on any matter relevant to any issue in the case. It has long been the rule that permitting re-cross examination is in the sound discretion of the trial judge and in the absence of some showing of an abuse of that discretion, and resulting prejudice, his ruling will not be disturbed on appeal. State v. Cordier, 297 So.2d 181 (La.1974). Further, confrontation errors are subject to the harmless error analysis; the verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial was surely unattributable to the error. State v. Broadway, 96-2659 (La.10/19/99), 753 So.2d 801, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000).

A review of the lengthy testimony of both of these witnesses reveals that the error, if any, was harmless. Ms. White was questioned at great length and in substantial detail about her and Shantae’s whereabouts on the evening of the fire, and defendant had ample opportunity to explore those ^issues on cross examination. As for Alexander, the nature of the gasoline-fueled fire had also been explored at length during his testimony, and there was no significant prejudice to defendant by refusing further examination after the witness gave his opinion about the likelihood of the fire going out once ignited.

Leading Questions by State during Direct Examination

Defendant argues that the trial court should not have allowed the state to lead its witness, Tawana York, on direct examination. Ms. York was the clerk of the EZ-Mart who testified about Shantae McCauley’s presence in the store at 3:45 a.m. the morning of the fire and who also testified about the error in the time displayed on the store’s surveillance video. Ms. York was confused during her testimony about the time error, stating at first that the time displayed was an hour behind, and confirming that on a video with a time stamp of 2:42, but then when shown a video with a time stamp of 4:44, the witness said, “I know it was an hour off is all.” The prosecutor then asked, “Could it be that it was an hour ahead, so that where it shows 4:45 ...” and defendant objected to the prosecutor leading the witness. The trial court overruled the objection, but the prosecutor did not immediately go back to questions about the time stamp. Later, the prosecutor asked Ms. York whether she was unsure about whether the clock was an hour behind or an hour ahead, and the witness repeated that she was sure that Shantae McCauley had been in the store at “3:00 something.”

Generally, leading questions should not be used on direct examination of a witness. La. C.E. Art. 611(C). Such questions, however, | ^are not the type of prosecutorial error which diminishes the reliability of a jury verdict. The use of leading questions is largely within the discretion of the trial court, and only clear abuse of that discretion which prejudices the defendant’s rights will justify reversal of a conviction. State v. Essex, 618 So.2d 659, 666 (La.App. 2d Cir.1993).

In this case the leading question was perfectly acceptable given the substantial confusion about the time stamps on the video and Ms. York’s recollection that the time was an hour off in one direction. The surveillance videos have times that are an hour before and an hour after the time the clerk recalled that Shantae McCauley was in the store, so the confusion about the time stamps was understandable, and defendant suffered no prejudice from the prosecutor’s effort to clarify the situation.

Rulings on Jury Instructions

According to defendant’s brief, defense counsel asked the trial court to include a jury instruction stating:

If you believe the defendant made a false confession, you are instructed to disregard the entirety of the defendant’s statements on September 7, 2005.

This exact instruction is not found at either of the pages cited by defendant, but evidently the language is fairly close to what was requested, as counsel stated “basically, it’s that if they find that it’s a false confession, then you are instructed to disregard it in its entirety.”

The requested instruction is simply not an accurate statement of the law. The jury is the finder of fact and if they concluded that defendant’s confession was false, they were entitled to give the other parts of his | ^.statement whatever weight they saw fit to give them; there is no requirement that they disregard the statement in its entirety. The requested instruction was not wholly correct; furthermore, the trial court covered the matter in the usual instruction:

If you find that the defendant made a statement, you must also determine the weight or value that the statement should be accorded, if any. In determining the weight or value to be accorded a statement made by a defendant, you should consider all the circumstances under which the statement was made. In making that determination, you should consider whether the statement was made freely and voluntarily, without the influence of fear, duress, threats, intimidations, inducement or promises.

Defendant also complains that trial court erred by giving the jury this instruction:

If you find that the defendant fled immediately after a crime was committed or after he was accused of a crime, the flight alone is not sufficient to prove that the defendant is guilty. However, flight may be considered, along with all other evidence. You must decide whether such flight was due to consciousness of guilt or to other reasons unrelated to guilt.

The court observed (outside the presence of the jury) that if the jury believed that defendant committed the crime, the evidence showed that he left the scene of the crime immediately after it was committed.

The trial court was correct to give this instruction, as the evidence did indeed show that defendant left Echo Washington’s trailer after he set it on fire, and the jury was entitled to consider this evidence along with all of the other evidence of his guilt.

\9APenial of Continuance/Stay to Secure Witness’s Presence

In this assignment, defendant argues that the trial court mishandled the situation with Caroline Carter when the court refused to delay the trial further to secure her presence.

Caroline Carter had been subpoenaed to appear earlier in the trial, and had in fact appeared, but did not show up on the day that her testimony was required. Typically, a trial court should work to ensure that a defendant’s right to compulsory process is respected, and in the instant case, defendant was permitted to and did subpoena this witness, although the subpoena may not have reached her.

In this case, it appears that the trial court accepted the parties’ agreement that Caroline Carter could testify after defendant’s case had been rested, offered to issue a writ to bring Ms. Carter to court earlier in the day, and finally did delay the trial for at least 45 minutes to give the witness time to appear. The trial court only decided to conclude the case when it became apparent that no one knew the whereabouts of Ms. Carter or when she might be available to appear. Defense counsel objected to the court’s ruling and made a proffer of the police report. That proffer, D-6, consists of a discovery response from the state in August 2011 to which a Caddo Parish Sheriffs Office incident report is attached. In that report, Caroline Carter told a deputy that Shantae McCauley had threatened her by saying “she will burn all you m — f—ers up, just like I did those other two,” and “they (police) don’t know anything, if they did she would be in jail.” Further, even if the proffered evidence had been presented, there is essentially no ] ^likelihood that the jury would have reached a different result. Cf. State v. Green, 448 So.2d 782 (La.App. 2d Cir.1984). This assignment of error is without merit.

Conclusion

For the above reasons, defendant’s convictions and sentences are affirmed.

Affirmed.

      . Defendant, Joe Lee Grady, Jr., was initially indicted for two counts of first degree murder, a violation of La. R.S. 14:30; the charges were later reduced to two counts of second degree murder, a violation of La. R.S. 14:30.1.

      . The jury vote was 10 for guilty, one for manslaughter and one for not guilty.

      . Specifically, Russell stated that Echo's trailer was behind the third house down the street from his mother’s house.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Brandon Deshon BLACKSON, Appellant.
    No. 47,624-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Peggy J. Sullivan, Monroe, LA, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, G. Mennon Campbell, Jr., Neal G. Johnson, Brandon B. Brown, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

JLjBrandon Deshon Blaekson was convicted by the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, of purse snatching in violation of La. R.S. 14:65.1 and was sentenced to 20 years’ hard labor. Blaekson now appeals. For the following reasons we affirm Blackson’s conviction, vacate his sentence, and remand this matter to the trial court for resentencing with instructions to impose a sentence no greater than 12 years at hard labor.

FACTS

On August 2, 2009, 85-year-old Joe Combs was shopping at a Family Dollar store when a young man approached him and stole his wallet, containing one dollar and various forms of identification, from the front pocket of his shirt. As Combs called out for help, Cassandra Hall and Shashun Eleam, both employees of Family Dollar, saw a young man carrying a wallet rush past and exit the store. Monroe Police Department Detective Mark Johnson responded to the incident and obtained surveillance video footage from both the Family Dollar store where the crime took place and Mac’s Fresh Market, a neighboring store. Detective Johnson showed the surveillance footage to his fellow police officers, and Detective Stephanie McDan-iels identified the suspect in the surveillance footage as Blaekson. Detective Johnson showed a photographic lineup containing a photo of Blaekson to Combs and the two Family Dollar employees who witnessed the incident. All three separately identified Blaekson as the person who took Combs’ wallet. Police recovered Combs’ wallet from a nearby trash can; however, they were unable to lift any fingerprints from it.

| gBIackson was charged by bill of information with one count of purse snatching in violation of La. R.S. 14:65.1. After a trial, a jury found him guilty as charged. The trial court, after articulating the reasons for its ruling, sentenced Blaekson to serve the maximum sentence of 20 years’ hard labor. Blackson’s motion to reconsider sentence was denied. This appeal followed.

DISCUSSION

As his first assignment of error, Blaekson argues that the evidence adduced at trial was not sufficient to support a conviction of purse snatching. First, Blackson claims that the quality of the surveillance footage from which Det. Stephanie McDaniels identified him was too poor to make a positive identification. Next, Blackson argues that the photographic lineup shown to Combs and the Family Dollar employees was unduly suggestive. Blackson alleges that Detective Johnson had the witnesses initial the front of the photograph which they identified and that after the first witness identified and initialed Blackson’s photograph in this manner, Detective Johnson had to conceal the top edge of that photograph in order to avoid prejudicing the other two witnesses. Blackson asserts that because his photograph was the only one concealed in this way, it stood out from the other photographs in the lineup and, therefore, the lineup was unduly suggestive. We disagree.

Louisiana R.S. 14:65.1, the crime of purse snatching, states in pertinent part:

A. Purse snatching is the theft of anything of value contained within a purse or wallet at the time of the theft, from the person | ¡¡of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Dorsey, 2010-0216 (La.09/07/11), 74 So.3d 603, cert denied, - U.S. -, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517. The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness. State v. Casey, 1999-0023 (La.01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). The reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. Id.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913.

|4The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence, must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that a defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.01/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/06/09), 21 So.3d 299. When a conviction is based on circumstantial evidence, such evidence must exclude any reasonable hypothesis of innocence. La. R.S. 15:438.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.02/13/08), 975 So.2d 753.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra.

Here, there was more than sufficient evidence to convict Blackson. Combs testified that Blackson took his wallet from the front pocket of his shirt without his consent and fled the store. Cassandra Hall, an employee at |.^Family Dollar, stated that after Combs shouted that someone had robbed him, she witnessed Blackson run past her carrying Combs’ wallet and immediately exit the store. Shashun Eleam, another Family Dollar employee, testified that she was standing at the cash register near the front of the store when she heard someone say “the guy took his wallet.” She then witnessed a man she later identified as Blackson leaving the store. While Det. McDaniels’ positive identification of Blackson appears extraordinary considering the low quality of the video footage, such an identification is plausible considering the number of years McDaniels had known Blackson through her work as a detective with the Monroe Police Department.

Finally, the photographic lineup used by Det. Johnson to identify Black-son as a suspect was not unduly suggestive as Blackson argues. A lineup is unduly suggestive if the procedure focuses attention on the defendant. State v. Guillot, 353 So.2d 1005 (La.1977). A strict identity of characteristics is not required, but a sufficient resemblance to reasonably test the identification is necessary. Id. In the present case, Detective Johnson testified that when showing the lineup, which contained the photographs of five other men resembling Blackson, he concealed the tops of all of the photographs in the lineup so as to hide the initials of the prior witnesses who had already identified Blackson by initialing the front of his photograph. Thus, Blackson’s photograph with the prior witnesses’ initials did not stand out or appear different from the other photographs in the |fiIineup when shown to each successive witness. Therefore, this assignment of error is without merit.

As his second assignment of error, Blackson argues that the maximum sentence imposed by the trial court of 20 years’ hard labor is excessive. We agree.

The test applied 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 La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Washington, 46,913 (La.App.2d Cir.02/01/12), 86 So.3d 697. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.08/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.09/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.08/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.05/15/09), 8 So.3d 7581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Moton, 46,607 (La.App.2d Cir.09/21/11), 73 So.3d 503, writ denied, 2011-2288 (La.03/30/12), 85 So.3d 113.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Walls, 47,006 (La.App.2d Cir.02/29/12), 86 So.3d 71.

Here, the record reflects that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1; however, we find that the trial court’s sentence is grossly disproportionate to the seriousness of Blackson’s offense. Blackson’s cowardly and base offense as well as his continuing acts of criminality incident to his release on bond warrant a significant sentence; however, it cannot be said that Blackson’s crime had a particularly harmful effect on society. The victim in this crime was not injured, did not suffer financial harm, and held no ill will toward Blackson. Furthermore, although Black-son was alleged to have committed several crimes after being released on bond for the present offense, many of these charges were dismissed. The record reflects that he was convicted of interfering with an officer, careless operation of a vehicle, loitering, second degree battery, and resisting arrest by flight. While we agree with the trial court that Blackson’s |ssentence must take into account his inability to abide by the law and his craven predation on an elderly member of society, we do not feel that this crime supports the maximum sentence of 20 years. We find that a sentence of 12 years more appropriately reflects the gravity of this particular offense.

CONCLUSION

For the foregoing reasons, we affirm Brandon Deshon Blackson’s conviction. We also vacate his 20-year sentence and remand this matter to the trial court for resentencing, with instructions to impose a sentence of not more thari 12 years at hard labor.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.