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    STATE of Louisiana v. Ron BROWN.
    No. 2012-KA-0626.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Ap-pelle/State of Louisiana.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   ROSEMARY LEDET, Judge.

Lin this criminal case, the defendant, Ron Brown, appeals his conviction and sentence for simple burglary, a violation of La. R.S. 14:62. For the reasons that follow, we affirm his conviction and his sentence of six years. However, we remand this matter to the trial court for the imposition of the statutorily required mandatory fine.

STATEMENT OF THE CASE

On June 8, 2011, the State charged Mr. Brown with one count of simple burglary. On June 14, 2011, he was arraigned and pled not guilty plea. On August 23, 2011, the district court denied Mr. Brown’s motion to suppress the statement and the evidence. On September 29, 2011, a six-member jury found Mr. Brown guilty as charged. On the same day, Mr. Brown filed motions for new trial and for post-verdict judgment of acquittal, which the district court denied. On October 20, 2011, the district court denied Mr. Brown’s re-urged motions for new |2trial and post-verdict of acquittal and sentenced him to six years at hard labor with credit for time served. This appeal followed.

STATEMENT OF THE FACTS

This underlying crime in this case — simple burglary of a storage shed — occurred at about noon — between 12:00 and 12:30 p.m. — on April 29, 2011, at the rear of the building in which the Blue Dot Donut Shop on Canal Street is located. At the time of the offense, the Blue Dot had been in business for only for a short time. Brandon Singleton, one of the Blue Dot’s owners, explained the physical layout of the building in which the Blue Dot was located. The tenants in the building included not only the Blue Dot, but also a law office. Because the donut shop itself was small, he explained that they used an outside storage shed, located in the rear of the building, to warehouse dry goods and supplies — items such as napkins, paper products, soft drinks, and bottled water. The rear shed was not visible from Canal Street; however, the rear shed was visible from the entry to the law office. At trial, Mr. Singleton identified photographs of the gate securing the storage shed area, the door to the shed, the contents of the shed, and the locations of adjacent businesses.

According to Mr. Singleton, on the morning of the incident he unloaded supplies, including several eases of soft drinks and bottled water, from his vehicle into the shed. After placing the items in the shed, he closed the door and went into 13the Blue Dot. About five to ten minutes later, he returned to the shed and found the soft drinks and bottled water (valued at approximately $130.00) were missing. He reported the incident to the police.

Detective Ryan Vaught testified that he and his partner, Detective Amony Ruffins, investigated the burglary at the Blue Dot on the day that it occurred. The detectives met with Mr. Singleton. They were informed that the missing goods were stolen that day between 12:00 and 12:30 p.m. They also were informed of the quantity and the value of the missing goods. After viewing the Blue Dot’s layout and the rear shed, the detectives canvassed the neighborhood for witnesses. They went to the law office and asked the administrative assistant if any clients visited the law office between 12:00 and 12:80 p.m. on that date. Based upon the information they received from the administrative assistant — Mr. Brown’s name, the time he visited the office that day, and his telephone number — the detectives returned to the station and searched the data bases for information on Mr. Brown.

The detectives relocated to Mr. Brown’s residence on Wayside Drive. Although Mr. Brown was not at home, a young boy on a bicycle directed the detectives to his mother, Ms. Anika Butler, who was down the street. The detectives were informed that Ms. Butler was Mr. Brown’s live-in girlfriend. Detective Vaught gave Ms. Butler his business card and asked her to have Mr. Brown call him. Shortly thereafter, Mr. Brown called and spoke with Detective RRuffins. Detective Ruffins asked him to come into the station to speak with her and Detective Vaught. Mr. Brown told her that he could not because he did not have transportation. Detective Ruf-fins offered to provide him with transportation, and he accepted the offer.

When the detectives picked up Mr. Brown from the location that he suggested, Detective Vaught confirmed with Mr. Brown that he was accompanying them on his own free will and further advised Mr. Brown that he could leave at any time. Mr. Brown agreed to accompany the detectives and to give a statement. At the police station, Detective Vaught again confirmed that Mr. Brown understood he was under no obligation to speak to the detectives and that he understood that he could leave the station whenever he wanted to. Mr. Brown related that on April 29, 2011, he received a call from his attorney advising him that a settlement check from his civil suit was ready for him to pick up at the law office. According to Mr. Brown, he rode a bus from his residence to the law office, which was located in the same building as the Blue Dot. He arrived there at approximately 12:30 p.m. He walked directly into his attorney’s office; he denied ever walking to the rear of the building. When Detective Vaught asked him if there was any reason the surveillance camera would show him walking into the rear of the building, Mr. Brown changed his story. He admitted that he walked to the rear of building. He explained that he accidentally walked the wrong way when he exited the law office. When he realized his mistake, he turned around and walked to Canal Street |fito take the bus. At that point, Detective Vaught left the interview room to consult with Detective Ruffins.

Upon returning to the interview room, Detective Vaught advised Mr. Brown of his rights. Mr. Brown signed a waiver of rights form and gave a recorded statement. After receiving Mr. Brown’s statement, Detective Vaught advised Mr. Brown that he was under arrest for simple burglary and illegal possession of stolen things. Detective Vaught then prepared search warrants for Mr. Brown’s Wayside Drive residence and for his cousin’s residence on Salem Drive. Detective Vaught first executed the warrant on the Salem Drive residence. The residents at that address denied knowing Mr. Brown, and the search of that residence produced no relevant evidence. The subsequent search of Mr. Brown’s Wayside Drive residence produced some of the stolen items—cases of soft drinks and bottled water. Detective Vaught identified photographs of the stolen items as they were located in Mr. Brown’s residence.

On cross-examination, Detective Vaught testified that when he arrived at the scene, the door to the rear shed was ajar, and there was no sign of forced entry.

ERRORS PATENT

A review of the record for errors patent reveals two. The first error concerns Mr. Brown’s sentence. In addition to a term of imprisonment, La. R.S. 14:62 mandates a fine of not more than $2,000, which the district court failed to impose. In State v. Williams, 03-0302 (La.App. 4 Cir. 10/6/03), 859 So.2d 751, this court held that a reviewing court is required to remand for the imposition of a statutorily required fine when the district court fails to impose one. Accordingly, in accordance with this court’s jurisprudence, we are required to remand the case to the district court for the imposition of the statutorily required fine.

The second error involves the waiting period required by La. C.Cr.P. art. 873, which mandates a twenty-four-hour delay before sentencing after the denial of a motion for new trial, unless the waiting period is waived. The record indicates that on October 20, 2011, the district court sentenced Mr. Brown immediately after denying his motions for new trial and post-verdict judgment of acquittal. However, the record further reflects that Mr. Brown waived the Article 873 delay and consented to being sentenced immediately.

COUNSELED ASSIGNMENT OF ERROR NUMBER TWO

Mr. Brown’s second counseled assignment of error is the insufficiency of the evidence. Particularly, his contention is that the evidence is insufficient to support a felony conviction of simply burglary; rather, he contends that the evidence supports only a conviction of misdemeanor theft.

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the 17light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4th Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Id. at 1310. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

When circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from the Jackson reasonable doubt standard; rather, it is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and |scircumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

In the instant case, Mr. Brown was charged with simple burglary pursuant to La. R.S. 14:62, which defines the offense as the unauthorized entering of any dwelling, vehicle, watercraft, or other structure (movable or immovable), or any cemetery, with the intent to commit a felony or any theft therein. Mr. Brown contends that there is no evidence proving that he entered the Blue Dot’s rear shed. Rather, he claims that when he took the drinks, they were stacked outside the shed. It follows, he contends, that the evidence supports only the misdemeanor charge of theft, not the felony charge of simple burglary.

In support of this argument, Mr. Brown points out that Mr. Singleton, one of the owners of the Blue Dot, was the only witness who testified that the stolen drinks were placed inside the shed, yet Mr. Singleton’s testimony conflicted with Detective Vaught’s testimony in two ways. First, Mr. Singleton testified that he placed the drinks inside the shed and closed the door and that he had to reopen the door when he returned to the shed and found the drinks missing. However, Detective Vaught testified that Mr. Singleton advised him that he left the shed door open and that the door was ajar when the detective arrived at the scene. Second, Mr. Singleton testified that the drinks were not in plain view and were not visible from outside. However, Detective Vaught testified that the drinks were in plain view and could be seen by anyone walking by the shed. Mr. Brown contends this 19conflict in the testimony casts doubt on the veracity of Mr. Singleton’s testimony that he placed the drinks inside, as opposed to outside, the shed.

Contrary to Mr. Brown’s argument, the evidence is sufficient to support his conviction for simple burglary. Mr. Singleton’s testimony as to the location of the drinks was not the only evidence on this point. Mr. Brown signed a waiver of rights form and confessed to Detective Vaught that he removed the drinks from inside the shed. Accordingly, the evidence supports the simple burglary conviction. This assignment of error lacks merit.

COUNSELED ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, Mr. Brown contends that the district court erred in denying his motion to suppress his statement and the evidence. He contends that his attorney-client privilege was violated when the administrative assistant in his attorney’s office provided Detectives Vaught and Ruffins with his name, the time he visited his attorney’s office the day of the incident, and his telephone number. He contends that without this privileged and protected information, he would not have been a suspect. For the same reason, he would not have made an inculpato-ry statement and a search warrant would not have been executed at his home. He thus contends that because of the violation of his attorney-client privilege, his statement and the evidence seized pursuant to the search warrant should have been suppressed as “fruits of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

| inThe attorney-client privilege is codified in La. C.E. art. 506 B, which provides:

A client has a privilege to refuse to disclose, and to prevent another person from disclosing, a confidential communication, whether oral, written, or otherwise, made for the purpose of facilitating the rendition of professional legal services to the client, as well as the perceptions, observations, and the like, of. the mental, emotional, or physical condition of the client in connection with such a communication.

The comments to Article 506 clarify that privileged communications include only what the client tells the lawyer, what the lawyer tells the client, and the lawyer’s perceptions and observations. Official Comment (i) to La. C.E. art. 506. The comment clarifies that the privilege does not extend to cover any and all information that the lawyer may have received as a result of the attorney-client relationship. Id.

The party seeking to assert the attorney-client privilege has the burden of proving that the privilege is applicable. Cacamo v. Liberty Mutual Fire Ins. Co., 99-1903, 99-1421, p. 8 (La.App. 4 Cir. 10/10/01), 798 So.2d 1210, 1216. A mere statement that the attorney-client privilege applies does not satisfy the burden of proof. Id. (noting that “[t]he party asserting privilege must adequately substantiate the claim and cannot rely on a blanket assertion of privilege.”)

Mr. Brown failed to make a showing that the attorney-client privilege applies. No proof was provided that the alleged privileged information — Mr. Brown’s name, the time he visited the law office on the day of the offense, and his telephone number — was given to Mr. Brown’s civil attorney in confidence. This information was not essential either to obtaining or to rendering professional legal |n services. Moreover, the fact that Mr. Brown filed a civil suit for damages contradicts his argument that his personal information was privileged; the civil suit itself and its contents are public records, allowing anyone access to the information contained therein.

Mr. Brown’s reliance on the attorney-client privilege is further belied by the exception set forth in La. C.E. art. 506 C(6), which provides:

C. Exceptions. There is no privilege under this Article as to a communication:
* * *
(6) Concerning the identity of the lawyer’s client or his representative, unless disclosure of the identity by the lawyer or his representative would reveal either the reason for which legal services were sought or a communication which is otherwise privileged under the Article.

Based on the above principles, we find Mr. Brown’s identity, the time he visited the law office on the date of the offense, and his telephone number were not privileged. This assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

In the first of five pro se assignments, Mr. Brown asserts ineffective assistance of counsel. The basis for his contention is that his counsel failed to take pictures of the crime scene. He maintains that had his counsel taken pictures of the scene, “[the pictures] would have shown that the door of the shed [was] open toward the outside of the shed and the cold drinks were lay (sic) by the door, holding the door open. Therefore, [Mr. Brown] took the drinks from the door, without going inside the shed, which will constitute a theft.”

112The general rule is that an ineffective assistance of counsel claim is more appropriately raised in an application for post-conviction relief than on appeal. See State v. Leger, 05-0011, p. 44 (La.7/10/06), 936 So.2d 108, 142. The exception is when the record on appeal contains sufficient evidence to permit the appellate court to decide the issue, and the issue properly is raised by an assignment of error. Id. Under these circumstances, an appellate court may consider the issue in the interest of judicial economy. Id. Such is the case here.

The seminal case addressing the right to effective assistance of counsel is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a defendant seeking to establish ineffective assistance of counsel must prove two things: (1) that the defense attorney’s performance was deficient and (2) that the deficiency prejudiced the outcome of the trial. Regarding whether the defense attorney’s performance was deficient, “defense attorneys are entitled to a strong presumption that their conduct fell within the broad range of reasonable professional assistance.” State v. James, 95-962, p. 5 (La.App. 3 Cir. 2/14/96), 670 So.2d 461, 465. Additionally, a defendant must demonstrate that the deficient assistance of counsel prejudiced his defense. State v. Jones, 33,657, p. 11 (La.App. 2 Cir. 8/23/00), 765 So.2d 1191, 1199. Simply stated, the errors must have been so serious as to deprive the defendant of a fair trial. Id. It is insufficient for a defendant to show that the complained-of error had some conceivable effect on the trial’s outcome. Id. Rather, the defendant is required to establish that, but for the 11serror, “there is a reasonable probability the outcome of the trial would have been different.” Id.

Although defense counsel failed to introduce photographs of the crime scene, the State introduced several photographs and had one of the Blue Dot’s owners, Mr. Singleton, verify and explain in detail what the photographs depicted. On cross-examination, defense counsel questioned Mr. Singleton at length concerning what the State’s photographs depicted. Hence, the jury was fully aware of the layout of the Blue Dot and the rear storage shed. Even if defense counsel erred by not introducing evidence that the shed door was “ajar,” as Mr. Brown claims, the error was harmless. The issue of the position of the door being “ajar” is of no concern given Mr. Brown confessed to the detectives that he went into the shed and took the cases of soft drinks and bottled water. Mr. Brown failed to establish that, but for the error, “there is a reasonable probability the outcome of the trial would have been different.” Jones, 33,657 at p. 11, 765 So.2d at 1199. This assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

Mr. Brown’s next assignment of error is that the district court erred in refusing to excuse a juror — Robert Blouin — for cause. One of the statutorily provided grounds on which a defendant may challenge a juror for cause is “[t]he juror is not impartial, whatever the cause of his partiality.” La.C.Cr.P. art. 797(2). A prospective juror’s preconceived opinion as to the defendant’s guilt does not mandate a removal for cause if the potential juror expresses an ability to |14disregard that opinion and render a verdict according to the law and evidence. State v. Cousan, 94-2503, p. 10 (La.11/25/96), 684 So.2d 382, 389. A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied. However, when a prospective juror has voiced an opinion seemingly prejudicial to the defense, but after further inquiry— often labeled “rehabilitation” — the juror demonstrates the ability and willingness to decide the case impartially according to the law and evidence, a challenge for cause is not warranted. State v. Anthony, 98-406, pp. 22-23 (La.4/11/00), 776 So.2d 376, 391.

A trial court is vested with broad discretion in ruling on challenges for cause, and its ruling will only be reversed when a review of the voir dire record as a whole reveals an abuse of discretion. Id., 98-406 at p. 22, 776 So.2d at 391.

In this case, Mr. Brown contends that during voir dire, Mr. Blouin stated that he felt strongly against thieves, that he could not put his feelings aside, and that he could not be fair at trial. During a conversation with the juror in the judge’s chamber, the following colloquy occurred:

JUDGE: ... the fact that Mr. Brown is charged with simple burglary, is he automatically guilty to you because it’s involving a theft?
JUROR: No, ma’am.
JUDGE: And are you automatically going to convict him because he’s been charged with simple burglary which involves a theft?
JUROR: No, ma’am.
IiJUDGE: And can you wait until you hear all the evidence to determine whether or not he’s guilty of anything?
JUROR: Yes, ma’am.
JUDGE: If Mr. Brown elects no.t to take the stand are you going to hold that against him?
JUROR: No.
JUDGE: When you start your deliberation will you factor in the fact that Mr. Brown did not testify to decide whether or not he is guilty or innocent of these charges?
JUROR: No, I understand he has the right not to take the stand.
JUDGE: And so, during the course of the voir dire process you talked about how you had issues with thieves.
JUROR: Yes.
JUDGE: If Mr. Brown were to take the stand and he admitted to being a thief at some point in his life, would that then color how you felt about him as it relates to this particular case?
JUROR:. No, because I understand it’s about this particular case.
Defense counsel: You said that you believe Mr. Brown has an interest in his testimony and would treat him differently than other witnesses. Is that correct?
JUROR: Well, I guess that would be true of any defendant on the stand.
Defense counsel: So any defendant you take his testimony differently than you would other witnesses’ testimony?
JUROR: Well, yes, I guess so because, I mean, because everyone charged with a crime, they’re most likely to be dishonest in their testimony.
JUDGE: What if I told you that the law says that you have to treat every witness the same, including the police officers, lay witnesses and Mr. Brown, that you judge their credibility on what they state to you? Now if any of those witnesses say something to |iayou that you believe is unworthy of belief you have the right to throw out that, as well as all parts of their testimony.
JUROR: I don’t think I would be inclined to think that somebody is lying just because they are Mr. Brown in the case. I would try to give them the same doubt that any other witnesses would be given.
JUDGE: Thank you, sir. You can return to the courtroom. That challenge for cause is denied.

As with the other jurors, Mr. Blouin was instructed on the law applicable to this case. The trial judge specifically asked Mr. Blouin if he could set aside his feelings and assess the credibility of the witnesses and the evidence fairly, to which he responded yes. The trial judge also asked whether Mr. Blouin would view Mr. Brown negatively if he had a criminal history, or if he did not testify at trial. Mr. Blouin answered no, and he never indicated an inability or unwillingness to follow the law. Mr. Brown’s contention that Mr. Blouin should have been excused lacks support. The record reflects that the trial judge rehabilitated Mr. Blouin. An appellate court is bound to give deference to a trial court’s ruling on jury challenges because it “ ‘has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questioning.’ ” Anthony, 98-406 at p. 25, 776 So.2d at 392 (quoting State v. Lee, 93-2810, p. 9 (La.5/23/94), 637 So.2d 102, 108). This assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

Mr. Brown’s third pro se assignment contests the trial judge’s refusal to grant the defense’s motion to continue the trial. The decision to grant or deny a continuance lies within “the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion.” State v. Johnson, 96-0950 (La.App. 4 Cir. 2/4/98), 706 So.2d 468, 478-79 (on reh’g); see also State v. Martin, 93-0285, pp. 10-11 (La.10/17/94), 645 So.2d 190, 197 (“The decision to grant or deny a motion for 117continuance lies within the wide discretion of the trial court.”). To demonstrate that the trial court erred in denying a continuance, a showing of specific prejudice is generally required. State v. Holmes, 590 So.2d 834 (La.App. 4th Cir.1991).

Mr. Brown contends that the district court’s denial of his motion to continue resulted in either a constructive denial of counsel or, at a minimum, an ineffective assistance of counsel. Mr. Brown’s trial counsel sought a continuance on the first day of trial — Monday, September 19, 2012 — on grounds that she was unable to visit her client the weekend before trial. Discussing whether to grant a continuance, the trial judge, in her chamber, advised all counsel as follows:

For the record there have been multiple requests for continuance in this case. It’s my understanding that the defense learned from Mr. Brown that he intends to testify at trial. And due to the change in the visitation schedule at the Sheriffs Office, the defense did not have an opportunity to meet with Mr. Brown to prepare him for his testimony today. So I will allow the jury to be selected today and we will send them home and we will start at 8:30 a.m. Wednesday (September 21, 2011) morning with this trial.

The trial judge also noted that defense counsel had met with Mr. Brown at least once prior to the September 19, 2011 trial date.

The record in this case does not reveal errors that would lead this court to conclude that Mr. Brown was constructively denied counsel. In fact, the record 118shows that defense counsel had served on the case since Mr. Brown’s arraignment on June 14, 2011. Counsel represented Mr. Brown at the preliminary hearing on July 25, 2011, and at the hearing on the motions to suppress the statement and evidence on August 23, 2011 — during which, as the transcript indicates, counsel presented evidence and appeared well-prepared. Trial counsel was joined by another attorney at trial one month later, on September 21, 2011, during which the defense gave argument, made objections, and thoroughly questioned the state’s witnesses. While trial counsel has a professional, ethical, and legal duty to confer with her client, her failure to do so prior to trial does not amount to a “constructive” denial of counsel. See State v. Johnson, 04-0178, p. 9 (La.App. 4 Cir. 12/8/04), 892 So.2d 28, 33. While trial counsel has a professional, ethical, and legal duty to confer with her client, her failure to do so prior to trial does not amount to a “constructive” denial of counsel. Id.; see also State v. Ford, 09-0392, pp. 4-5 (La.App. 4 Cir. 10/21/09), 24 So.3d 249, 252-53.

Although the Mr. Brown argues that the district court abused its discretion by refusing to grant him a continuation, the district court accommodated Mr. Brown and granted him a two day recess of trial. Mr. Brown has failed to make a showing that either the district court abused its discretion or that his rights were specifically prejudiced, which would have entitled him to relief. See State v. Holmes, 590 So.2d 834 (La.App. 4 Cir.1991). This assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER FOUR

|19In his fourth pro se assignment of error, Mr. Brown contends that the district court committed reversible error by failing to instruct the jury on the definitions of burglary and unauthorized entry of a business. Moreover, he contends that the trial judge failed to charge the jury as to the responsive verdicts to the charge of simple burglary.

The trial court is required to instruct the jury as to the law applicable to each case. La.C.Cr.P. art. 802. This rule has been interpreted as requiring the trial court to charge the jury, when properly requested, as to the law applicable to any theory of defense which the jurors could reasonably infer from the evidence. State v. Parker, 10-1277, p. 15 (La.App. 4 Cir. 9/21/11), 76 So.3d 55, 64, writs denied, 11-2339 (La.3/9/12), 84 So.3d 551, and 11-2478 (La.7/27/12), 93 So.3d 586. The record established that Mr. Brown’s contentions regarding the district court’s failure to properly charge the jury are incorrect.

The district court instructed the jury not only on the definitions of burglary and unauthorized entry of a business, but also on theft. The court advised:

• [I]n order to convict Mr. Brown of simple burglary, you must find: (1) that Mr. Brown entered the structure; and (2) that Mr. Brown was not authorized to enter the structure; and (3) that Mr. Brown entered with the specific intent to commit a felony or a theft within the structure.
• Unauthorized entry into a place of business is the intentional entry by a person without authority into any structure belonging to another and used in whole or in part as a place of business.
• Theft is the taking of anything of value which belongs to another when the offender has a specific intent to deprive the other permanently of the thing taken. Anything of value must be given the broadest possible construction, including any conceivable thing of the slightest value.

|anAnd as for responsive verdicts, the trial court specified:

• If you are not convinced that Mr. Brown is guilty of the offense charged, you may find Mr. Brown guilty of a lesser offense, if you are convinced beyond a reasonable doubt that Mr. Brown is guilty of a lesser offense.
• In this case the lesser included responsive offenses are guilty of attempted simple burglary, guilty of unauthorized entry of a place of business, guilty of attempted unauthorized entry of a place of business and not guilty.

The record contains the entire jury instructions. The district court instructed the jury as to simple burglary, unauthorized entry of a business, theft, and the responsive verdicts as to lesser and included offenses. Thus, the jury was aware that instead of a simple burglary verdict, it could have found Mr. Brown guilty of attempted simple burglary, guilty of unauthorized entry of a place of business, guilty of attempted unauthorized entry of a place of business, and not guilty. The jury apparently found unpersuasive Mr. Brown’s argument that he could only be found guilty of theft because the door to the shed was ajar and that the drinks were outside of the shed. This assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER FIVE

In his final pro se assignment, Mr. Brown argues that his six year sentence is unconstitutionally excessive. A sentence is constitutionally excessive if it is grossly out of proportion to the severity of the crime and is nothing more than purposeless imposition of pain and suffering. State v. Landry, 03-1671, pp. 7-8 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239. A trial judge has broad discretion in imposition of sentences within statutory limits but shall “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” La. C.Cr.P. art. 894.1 C. Even a sentence within the statutory |21limit may violate a defendant’s constitutional right against excessive punishment. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). Thus, imposition of a sentence within the statutory limit may be reviewed on appeal. State v. Caston, 477 So.2d 868 (La.App. 4th Cir.1985). Although rigid compliance with Article 894.1 has been deemed unnecessary where the record clearly shows an adequate factual basis for the sentence imposed, the record should reflect the considerations taken into account by the trial court in determining the sentence to aid the reviewing court in determining whether the sentence is warranted in light of the particular circumstances of the case. See State v. Quebedeaux, 424 So.2d 1009 (La.1982); State v. Lanclos, 419 So.2d 475 (La.1982).

The maximum sentence for simple burglary is imprisonment for not more than twelve years, with or without hard labor and a fíne of not more that twelve thousand dollars. La. R.S. 14:62. In this case, the district court imposed on Mr. Brown a mid-range sentence of incarceration of six years at hard labor. (As noted elsewhere in this opinion, the district court failed to impose a mandatory fine.) Additionally, although the district court did not express reasons for the sentence imposed, the record clearly shows an adequate factual basis for the sentence — Mr. Brown’s confession. Therefore, considering the jurisprudence and the totality of the circumstances of this case, we cannot conclude that Mr. Brown’s six year sentence is excessive. This assignment of error is without merit.

12 ¿DECREE

For the forgoing reasons, the defendant’s conviction and six year sentence are affirmed. However, this matter is remanded to the trial court for the imposition of the statutorily required mandatory fine.

AFFIRMED; REMANDED FOR IMPOSITION OF MANDATORY FINE

      .Although the State indicates in its brief that it has since filed a multiple bill against Mr. Brown, the multiple bill is not part of the record on appeal.

      . Copies of the pictures were not included in the record on appeal.

      . Mr. Singleton was a New Orleans Police Department ("NOPD”) officer. He first called his NOPD lieutenant to find out if his own district should handle the matter or if the Third District in which the Blue Dot was located should handle it. He was instructed that the Third District should handle it. He then called the Third District, and two detectives were sent out to handle the investigation.

      . The area was not in fact under camera surveillance.

      . As the jury listened to the audiotape of the statement, it read the transcription.

      . Copies of the pictures were not included in the record on appeal.

      . See also State v. Cook, 09-0311, pp. 3-4 (La.App. 4 Cir. 8/12/09), 19 So.3d 15, 16-17; State v. Brown, 03-2155, p. 5 (La.App. 4 Cir. 4/14/04), 895 So.2d 542, 545, State v. Stephens, 09-0631, 09-632, p. 10 (La.App. 4 Cir. 11/24/09), 27 So.3d 987, 993; State v. Copelin, 07-0790, p. 4 (La.App. 4 Cir. 12/12/07), 974 So.2d 49, 51.

      .When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Marcantel, 00-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55; State v. Hearold, 603 So.2d 731, 734 (La.1992).

      . Other circuits have found six year sentences, and greater, not excessive for a conviction for simple burglary. See State v. Parker, 594 So.2d 3 (La.App. 5th Cir.1992) (sentence of six years at hard labor); State v. Burns, 44,937 (La.App. 2 Cir. 2/2/10), 32 So.3d 261 (sentence of twelve years at hard labor); State v. Mouton, 12-836 (La.App. 3 Cir. 2/27/13), - So.3d -, 2013 WL 690835 (defendant sentenced to twelve years).


author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Scott G. CLEVELAND.
    No. 2012-KA-0163.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   MAX N. TOBIAS, JR., Judge.

I,On 4 August 2010, the state charged the defendant, Scott G. Cleveland (“Cleveland”) by bill of information with one count of simple rape, a violation of La. R.S. 14:43. He entered a plea of not guilty at his arraignment on 12 August 2010. Defense counsel filed motions to suppress identification and for a preliminary hearing. On 21 January 2011, the trial court denied the motions and found probable cause. On 20 July 2011, a six-member jury found Cleveland guilty as charged. See La.C.Cr.P. art. 782. On 5 August 2011, Cleveland filed a motion for post-verdict judgment of acquittal and a motion for new trial, both of which were denied. That same day, the trial court sentenced him to fifteen years at hard labor with credit for time served. Cleveland filed motions for appeal and to reconsider sentence; the former was granted and the latter denied.

S.H., the victim, related that on 23 May 2010, she and friends, Antineeka Williams, Shintia Taylor, and others, went to the Bridge Lounge in New Orleans between 5:00 and 6:00 p.m. after attending a craw-fish boil earlier in the day. While at the lounge, she met more friends with whom she socialized and drank until approximately 9:00 p.m. One of the victim’s acquaintances assisted the victim from the lounge to a parked car because she was drunk and boisterous. The |2next thing the victim remembered was being outside of the car on the sidewalk with Ms. Taylor helping her put her clothes back on. She did not remember how she got from the car to the sidewalk or how her clothes were removed. She denied knowing Cleveland or seeing him outside the Bridge Lounge that evening. She did not consent to having sex with him. The last thing she remembered from that night was arriving at a local hospital with Ms. Taylor and undergoing a rape exam. She spoke with two detectives at the hospital and told them that she did not recall consenting to or having oral sex with anyone that night. The following day, the victim spoke with her friend Isaiah Boyd, who was at the lounge with her the previous night.

On cross-examination as on direct, S.H. admitted that she had several drinks at the crawfish boil, and that she had several more drinks later that evening at the Bridge Lounge. She also admitted to having smoked marijuana at about 1:00 p.m. on that day and also having taken Valium. The victim remembered telling the nurse at the hospital that she was confused about the night’s events and did not know how many drinks she had had.

Ms. Taylor testified that she and the victim had been friends since high school and were together on the night of 23 May 2010. She met the victim that day about 3:00 p.m. at a crawfish boil located on the river. During the two hours that she and the victim spent at the crawfish boil, they both drank daiquiris. From the crawfish boil, they went to the Bridge Lounge at about 6:00 p.m. and continued to drink. At about 9:00 p.m., the victim was drunk and getting very loud. Consequently, Ms. Taylor’s friend, Robin, escorted the victim to Ms. Taylor’s car, which was parked on the side of the lounge, and placed her in the front seat. Robin | ..¡returned to the lounge and gave Ms. Taylor her car keys. A few moments later, two male friends entered the lounge and told Ms. Taylor that the victim was in the street unclothed. She went outside and found the victim on the curb next to Ms. Taylor’s car. (It took multiple individuals to lift the victim from the ground.) The victim was in a daze and unable to tell Ms. Taylor what had happened. She redressed the victim and drove her to the hospital.

During cross-examination, Ms. Taylor advised the court that she did not know Cleveland, and that she did not see him in the Bridge Lounge on the night of 23 May 2010. She did not witness the victim engage in any sexual act with Cleveland. Though Ms. Taylor recalled speaking to two detectives that night, she could not remember what the conversations were about.

The victim’s friend, Isaiah Boyd, recounted that he and the victim had been friends since grade school. He recalled running into the victim at the Bridge Lounge on 23 May 2010. They reminisced and had a drink. He received a telephone call just before nightfall and left the lounge. When he returned to the lounge thirty-five to forty-five minutes later, he did not see the victim, so he had a drink, and thereafter left. As he walked to his car, he saw three people, one woman and two men, on the ground engaged in sexual activity that he assumed was consensual. As he made a telephone call in his car, the bartender from the lounge came outside and told the three people they had to leave. Because the bartender was his friend, Mr. Boyd approached the three people to help in dispersing them. Mr. Boyd noticed the female lying on the ground with her clothes open. One male was at her upper torso, and the second was on her lower torso. The women’s breasts were exposed, and one of the men was sucking on the woman’s breasts. The second man had his head between the woman’s legs. Mr. Boyd identified |4CleveIand as the man with his head between the woman’s legs. After the bartender told the three people to leave, another man walked around the corner and screamed, “That’s [the victim].” That being said, Mr. Boyd reentered the lounge and informed the victim’s friends. By that time, the two men had departed, and the victim remained motionless on the ground. The victim’s friends placed the victim in one of their cars. The following day, the victim called him and asked what happened the night before. He related to her what he observed that night, and she burst into tears.

Wayne Jolla, the bartender at the Bridge Lounge on the night of this incident, testified that the victim arrived at the lounge with friends at about 6:00 p.m. During the night, he prepared one Mojito for her. At about 8:30 p.m., her friends took her outside because they said she was inebriated. Mr. Jolla said S.H. appeared tipsy but not drunk. Later that night at about 10:15 p.m., a man in the bar told Mr. Jolla, “Something is going on on the side of the bar you need to go take a look at.” Mr. Jolla went outside and found the victim on the ground, naked and unresponsive. One of the two men on the victim had his mouth on the victim’s vagina, and the other was down there with “his stuff’ in his hand. Mr. Jolla said that the victim seemed to be highly intoxicated — that she did not know what was going on. When he told the two men to disperse, they walked in opposite directions. Mr. Jolla went into the bar and informed the victim’s friends, who redressed her, called the police, and drove her to the hospital.

Detective Clifton Neely of the New Orleans Police Department (“NOPD”) Sex Crimes Division met the victim at University Medical Center at about 3:30 a.m. on 24 May 2010. He found her incoherent and intoxicated to the point that she was unable to give him a statement. The following day, Detective Neely spoke |sto some witnesses and developed Cleveland as a suspect, and thereafter, he secured an arrest warrant for him. Detective Neely compiled a six-person lineup, which he presented to Isaiah Boyd. Mr. Boyd told him that he could not be sure that Cleveland was in the lineup, so the detective wrote “negative lineup” on the photos and put them in his folder. Detective Neely showed Mr. Boyd a copy of the lineup from which Mr. Boyd positively identified Cleveland as the person he saw outside the Bridge Lounge with the victim. Detective Neely spoke with the victim on one occasion following their initial interview, but she was never able to remember the events the night of the assault. The facts Detective Neely gleaned were obtained from the victim’s friends.

Ashly Butler, Cleveland’s friend and coworker, testified that he and Cleveland worked together for about two months at the time of the occurrence of the incident. The day after the incident Cleveland arrived late for work in a frantic and disheveled condition. He told his boss, Paul Tufaro, that he had hooked up with a young black woman the night before. He explained that the woman stumbled out of the Bridge Lounge obviously intoxicated. He approached her, and she told him she wanted him to perform oral sex on her, which he did. Mr. Butler asked Cleveland, “Well, did you f— her,” and Cleveland replied “no.” Cleveland mentioned to him that during the oral copulation, a “Mexican” man tried to “get in on the action,” but Cleveland shooed him away. Mr. Butler said that Cleveland claimed the woman spoke, but did not say that she was necessarily incoherent, during the sex act.

Paul Tufaro, Cleveland’s employer at the time of the incident, recounted that he received a call from Cleveland at about 7:00 a.m. on 24 May 2010, in which Cleveland said he would be late for work. Cleveland explained that a strange | (-.occurrence happened the night before that kept him up all night and that he was not sure if it was worth it. When Cleveland arrived at work, he proceeded to explain to Mr. Tufaro and Mr. Butler what had happened the night before. He said that a woman stumbled out of the Bridge Lounge and asked him to perform oral sex on her, which he did. Cleveland claimed that the "victim was coherent and that she wanted him to perform oral sex on her. Cleveland said that eventually the bartender came outside and ran him away. Mr. Tufaro thought Cleveland’s story was very strange, so he called the Bridge Lounge to confirm what Cleveland had said. The lounge employee gave Mr. Tufaro the name of the investigating officer, whom Mr. Tufaro called and related what Cleveland had told him.

Dr. William J. George, an expert in toxicology, testified for the defense. The doctor testified that he reviewed S.H.’s medical records. The testing results for marijuana indicated that the victim had ingested the drug, but he could not specify when and how much of the drug she had consumed. Testing was positive for the presence of benzodiazepines in the victim’s system; however, the victim’s blood was not tested for the presence of alcohol. Based upon information he received relative to the victim’s consumption of four drinks on the night of the incident, Dr. George opined that the victim would have been “high” but not close to unconsciousness, and legally intoxicated.

On cross-examination, Dr. George confirmed that if the victim had ingested marijuana, Valium, and alcohol in a relatively short time, she would be very intoxicated.

Misa Eiritz of the Public Defender’s Office testified that she interviewed Mr. Jolla about what beverages he served the victim at the Bridge Lounge on the night of the incident. He told her that he served the victim one alcoholic drink and |7water. She also said that Mr. Jolla told her that when he went outside to where the victim was, Cleveland said to him, “Why are you shooing me away? I didn’t do anything wrong.”

ERRORS PATENT

A review of the record reveals one error patent regarding Cleveland’s sentence. The trial court failed to specify that the sentence was to be served without benefit of parole, probation, or suspension of sentence as mandated by La. R.S. 14:43. However, in instances where the statutory restrictions were not recited at sentencing, they are contained in the sentence, whether or not imposed by the sentencing court. La. R.S.15:301.1 A; State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799. Consequently, this court need not take any action on this error.

PRO SE ASSIGNMENT OF ERROR NUMBER 1

When multiple issues are raised on appeal, and sufficiency of the evidence is one of the alleged errors, a reviewing court should first determine whether the evidence is sufficient. State v. Hearold, 603 So.2d 731, 734 (La.1992). Consequently, Cleveland’s first pro se assignment of error — the evidence is insufficient to support his conviction for simple rape — is considered first.

The standard of appellate review for sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A reviewing court is to consider the record as a whole, not just the evidence favorable to the prosecution; and, if rational triers of fact could disagree |Ras to the interpretation of the evidence, the rational decision to convict will be upheld. State v. Mussall, 523 So.2d 1305, 1310 (La.1988).

Cleveland argues that his conviction cannot stand because the state failed to produce an eyewitness to the beginning of the encounter between himself and the victim.

Either direct or circumstantial evidence may prove the essential elements of the crime. With circumstantial evidence the rule is: “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. This rule is not a separate test from the review standard established by Jackson v. Virginia, but rather it is an evidentiary guideline which facilitates appellate review of the sufficiency of the evidence. State v. Jacobs, 504 So.2d 817, 820 (La.1987). Ultimately, to support a conviction, the evidence, whether direct or circumstantial or both, must be sufficient under Jackson to satisfy any rational trier of fact that the defendant is guilty beyond a reasonable doubt. See State v. Sutton, 436 So.2d 471, 474 (La.1983). Credibility determinations are within the discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984).

La. R.S. 14:43 defines simple rape, in pertinent part, as:

A. Simple rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because it is committed under any one or more of the following circumstances:
(1) When the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim’s incapacity.

|9In the present case, the state had to prove that the oral sexual intercourse with the victim was committed without her lawful consent because it was committed when she was incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent, ie., alcohol or any other cause, that the offender knew or should have known of her incapacity.

The state presented sufficient evidence to support Cleveland’s conviction for simple rape.

S.H. testified that on the day of the offense she had taken Valium in the morning and smoked marijuana in the afternoon. She said she had several drinks at the crawfish boil and several more that night at the Bridge Lounge. She did not know Cleveland, had not seen him at the Bridge Lounge, and did not consent to a sexual encounter with him. The victim stated that she had no memory of the event, and in fact, the last thing she could remember was waking up on the sidewalk with Cleveland’s face between her legs.

Ms. Taylor recalled that the victim drank daiquiris for two hours at the craw-fish boil. Later in the evening, the victim drank a Mojito and beer at the Bridge Lounge until approximately 9:00 p.m., when Robin, Ms. Taylor’s friend, placed the victim in Ms. Taylor’s car because the victim was loud and drunk. A few moments after the victim was escorted out of the lounge, two of the victim’s friends informed Ms. Taylor that the victim was in the street unclothed. The victim was in a daze and unable to explain what had happened to her.

Mr. Boyd testified that he encountered the victim in the early evening at the Bridge Lounge, and the two drank. He left the lounge for a short while and when he returned, he did not see the victim, so he left. As he was leaving, Mr. Boyd saw | inthe victim on the ground with two men performing a sexual act on her. Cleveland had his head between the victim’s legs. She was unclothed and nonresponsive. Mr. Boyd recalled dispersing the men and then going back into the lounge to alert the victim’s friends. The victim remained motionless on the ground.

Mr. Jolla, the Bridge Lounge bartender that night, found the victim on the ground after he alerted her friends. He clearly recalled seeing her naked and unresponsive. He described her condition as highly intoxicated and not knowing what was going on. The defense offered no evidence to refute the state’s case that the victim was incapable of resisting Cleveland or of understanding the nature of the act by reason of stupor or abnormal condition of mind produced by an intoxicating agent.

This assignment has no merit.

COUNSEL ASSIGNMENT OF ERROR NUMBER 1

In counseled assignment of error number one, Cleveland complains that the trial court erred in denying his challenges for cause as to five prospective jurors. He maintains that the error forced him to exhaust his peremptory challenges to excuse juror numbers five, nine, thirteen, and sixteen, who said that they or loved ones were victims of sexual abuse, and juror number twenty-five, who erroneously believed that the “[defense had] to prove their client is innocent of the charge.”

The state responds that the trial court did not err in denying Cleveland’s challenges for cause as to the prospective jurors at issue. The state further responds that the voir dire as a whole was conducted in a fair and impartial manner and, therefore, the trial court did not abuse its discretion.

Article I, § 17 of the Louisiana Constitution guarantees that “[t]he accused shall have the right to full voir dire examination of prospective jurors and to ^challenge jurors peremptorily.” Prejudice is presumed when the trial court erroneously denies a challenge for cause, and the defendant ultimately exhausts his peremptory challenges. State v. Campbell, 06-0286, p. 70 (La.5/21/08), 983 So.2d 810, 856. On appeal, a defendant must show that when the trial court erroneously denied his challenge for cause, he used one of his peremptory challenges curatively to remove that juror, thereby reducing his number of peremptory challenges. Campbell, p. 71, 983 So.2d at 856.

The grounds for a challenge for cause are set out in La.C.Cr.P. art. 797 which provides in pertinent part:

The state or a defendant may challenge a juror for cause on the ground that:
* * *
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
* * *
(4)The juror will not accept the law as given to him by the court[.]

A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably implied. However, when a prospective juror has voiced an opinion seemingly prejudicial to the defense, but after further inquiry (frequently called “rehabilitation”), the juror demonstrates the ability and willingness to decide the case impartially according to the law and evidence, a challenge for cause is not warranted. State v. Anthony, 98-0406, pp. 22-23 (La.4/11/00), 776 So.2d 376, 391.

112The trial court is vested with broad discretion in ruling on challenges for cause and its ruling will only be reversed when a review of the voir dire record as a whole reveals an abuse of discretion. Id. The trial court' has great discretion in ruling on cause challenges because it “has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questioning.” Id., p. 24, 776 So.2d at 392.

In this case, each of the aforementioned jurors was questioned privately in the judge’s chambers concerning the specifics of the emotional effects of the sexual abuse visited upon him/her and/or his/her loved ones. Despite initial hesitation on their parts, they all indicated that they could put their personal feelings aside. Moreover, their answers indicated that they understood the presumption of innocence, the state’s burden of proof, and the requirement that determination of guilt or innocence was only to be made based upon evidence and testimony at trial. The voir dire as a whole indicates that the trial judge did not abuse his discretion in determining that the jurors' demonstrated a willingness and ability to decide the case impartially according to the law and evidence. Their responses, as a whole, do not reasonably imply bias or prejudice.

As for juror number twenty-five’s misunderstanding the burden of proof, believing it was a defendant’s duty to disprove his guilt, the trial judge refused to grant the defense challenge deferring to the prosecutor’s explanation that the jurors could not be expected to have a “full grasp on everything.” Moreover, defense counsel explained to the jurors juror number twenty-five’s mistake through the following exchange during voir dire:

Defense counsel: Alright. Now, what does the defense have to do, Ms. Givens?
| i3Ms. Givens: They have to prove their client is innocent of the charge.
Defense counsel: Mr. Johnson (prospective juror) do you agree with that:
Mr. Johnson: No, I disagree.
Defense counsel: Well, what do you think?
Mr. Johnson: They don’t have to do anything.
Defense counsel: Alright. So even if I don’t do anything, we sit there the entire time, we kind of go to sleep in the back of the room. What still matters is that they do, right?
Mr. Johnson: Yes.
Defense counsel: It’s what they do, whether they can prove their case, does that make sense to everybody?
The jurors: (Affirmative responses.)

Thus, although Ms. Givens at first was mistaken about the burden of the state, after further discussion by the jurors and defense counsel, she and the other jurors agreed that the state must prove its case.

The Louisiana Supreme Court made it clear in State v. Kang, 02-2812, p. 8 (La.10/21/03), 859 So.2d 649, 655, that courts of appeal are to give proper deference to the trial court’s findings with respect to voir dire, and that a prospective juror’s responses during voir dire should be viewed as a whole, and not on a piecemeal basis. Viewing the voir dire as a whole, we find nothing to suggest that juror number twenty-five exhibited any partiality to the defense or the state or that she did not understand or accept the legal precepts in this case.

This assignment is meritless.

J[¡¿COUNSEL ASSIGNMENT OF ERROR NUMBER 2

By counsel’s second assignment of error, Cleveland argues that the trial court erred by refusing to give the jury a special instruction on the definition of “stupor.”

La.C.Cr.P. art. 802 requires the trial court to charge the jury as to the law applicable to the case. Under La.C.Cr.P. art. 807, a requested special jury charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. The special charge need not be given if it is included in the general charge or in another special charge to be given. State v. Segers, 355 So.2d 238, 244 (La.1978). Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. La. C.Cr.P. art. 921; State v. Marse, 365 So.2d 1319, 1322-24 (La.1978). In charging the jury on the definition of simple rape, the trial judge read La. R.S. 14:43 A(l) and (2). He also instructed the jury:

So, to find the defendant guilty of simple rape you must find that the defendant committed an act of sexual intercourse with the victim and that this act was without the lawful consent of the victim because the victim was incapacitated by reason of stupor or abnormal condition of mind from any cause and the offender knew or should have known of such abnormality; or because the victim was incapable through unsoundness of mind, whether temporary or permanent, of understanding the nature of the act and the offender actually did know, then you shall find the defendant guilty of simple rape.

The defendant herein requested the following special instruction:

You must not find Scott Cleveland guilty unless you find that the state proved beyond a reasonable doubt that [the victim] was incapable of resisting or of understanding the nature of the | )sact by reason of a stupor or abnormal condition of mind produced by an intoxicating agent.
To prove simple rape, under the law, the state must prove beyond a reasonable doubt that [the victim] was in a stupor or abnormal condition of mind that cause [sic] to be incapable of resisting or understanding the nature of the act.
To prove that [the victim] was in a stupor, the state must prove beyond a reasonable doubt that [the victim] was in the condition of being almost unconscious or in a state of insensibility during the act.
You therefore must acquit Mr. Cleveland if the state has not proved beyond a reasonable doubt that [the victim] was in the condition of being almost unconscious or in a state of insensibility during the act.

Cleveland offers no legal support for the definition of “stupor” as included in his proposed special jury instruction. Although he cites several cases (State v. Fruge, 09-1131 (La.App. 3 Cir. 4/7/10), 34 So.3d 422; State v. Jones, 45,450 (La.App. 2 Cir. 8/11/10), 46 So.3d 711; State v. Starr, 08-341 (La.App. 5 Cir. 11/25/08), 2 So.3d 451; and State v. Rogers, 99-1378 (La.App. 5 Cir. 11/28/00), 772 So.2d 960), none of them defines stupor as “being almost unconscious.” Further, we find no indication from the record that the jury did not understand the meaning of the word stupor, as it did not seek clarification of the term from the court. Neither is there any argument or evidence that the trial court’s refusal to give the proposed jury charge prejudiced Cleveland in any way. Based upon the evidence, it was not unreasonable for the jury to conclude that the victim was in a stupor or of abnormal condition of mind that caused her to be incapable of resisting or understanding the nature of the act.

This assignment is without merit.

| mPRO SE ASSIGNMENT OF ERROR NUMBER 2

In his second pro se assignment, Cleveland complains that his fifteen year sentence is excessive.

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 La.C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. See State v. Smith, 433 So.2d 688, 698 (La.1983). 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; see also State v. Lanclos, 419 So.2d 475, 478 (La.1982).

Whether a sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. 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, 1280-81 (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. See State v. Hogan, 480 So.2d 288, 291 (La.1985); see also State v. Bonanno, 384 So.2d 355, 358 (La.1980); State v. Goode, 380 So.2d 1361, 1364 (La.1980).

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753, p. 15 (La.5/16/00), 769 So.2d 1158, 1167.

|17Here, although the record does not indicate that the trial judge considered the La.C.Cr.P. art. 894.1 criteria, we find an adequate factual basis for the sentence imposed.

A conviction for simple rape carries a maximum sentence of twenty-five years. Cleveland in this case received a sentence of fifteen years, a little beyond a mid-range sentence. Other jurisdictions have found like sentences not to be excessive. See State v. Greenwalt, 41,145 (La.App. 2 Cir. 8/23/06), 938 So.2d 1073 (fifteen years not excessive); State v. Jeansonne, 06-263 (La.App. 3 Cir. 5/31/06), 931 So.2d 1258 (twenty years not excessive); State v. Williams, 05-0673 (La.App. 5 Cir. 3/14/06), 926 So.2d 665 (fifteen years not excessive).

This assignment is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 3

In this assignment, Cleveland complains that the exclusion of evidence of the victim’s sexual activity immediately prior to meeting him was improper and prejudicial.

Cleveland does not cite any specifics with regard to where in the record or by which witness’ testimony the supposed evidence of the victim’s sexual activity was sought to be introduced. He makes an oblique reference to anal swabs; however, no medical testimony of any DNA testing performed in this case exists. In fact, the only medical witness was Dr. George, an expert in toxicology, who testified for the defense. Dr. George’s testimony was limited to the effects of alcohol and drugs on a person’s cognition and motor skills.

This assignment lacks merit.

UtPRO SE ASSIGNMENT OF ERROR NUMBER 4

In this final pro se assignment, Cleveland argues that he was prejudiced by the prosecutor’s expressing his opinion of Cleveland’s guilt and referring to defense counsel as a liar.

In State v. Clark, 01-2087, p. 15 (La.App. 4 Cir. 9/25/02), 828 So.2d 1173, 1183, this court set forth the standard for determining whether a prosecutor’s remarks are so prejudicial as to warrant a new trial:

The scope of closing argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice. The state’s rebuttal shall be confined to answering the argument of the defendant.” La.C.Cr.P. art. 774. Prosecutors may not resort to personal experience or turn argument into a plebiscite on crime. State v. Williams, 96-1023, p. 15 (La.1/21/98), 708 So.2d 703, 716. However, prosecutors have wide latitude in choosing closing argument tactics. State v. Casey, 99-0023, p. 17 (La.1/26/00), 775 So.2d 1022, 1036, citing State v. Martin, 539 So.2d 1235, 1240 (La.1989) (closing arguments that referred to “smoke screen” tactics and defense as “commie pinkos” were deemed inarticulate but not improper). Further, the trial judge has broad discretion in controlling the scope of closing arguments. Id. Even if the prosecutor exceeds the bounds of proper argument, a reviewing court will not reverse a conviction unless “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. State v. Ricard, 98-2278, p. 4 (La.App. 4 Cir. 1/19/00), 751 So.2d 393, 397.

Even where the prosecutor’s statements are improper, credit should be accorded to the good sense and fair-mindedness of the jurors who have heard the evidence. Williams, 96-1023, p. 15 (La.1/21/98), 708 So.2d 703, 716; Ricard, 98-2278, p. 4 (La.App. 4 Cir. 1/19/00), 751 So.2d 393, 397.

The record does not support Cleveland’s argument. Cleveland does not provide the location of the complained of remarks in the record, and we are unable to find any reference to the prosecutor calling defense counsel a liar or articulating |]9his personal opinion that Cleveland was guilty. During closing argument, the prosecutor did point out Cleveland as the man who raped the victim; however, that reference is within allowable limits as the prosecutor’s opinion of what the facts of the case proved.

Finally, we find no reference to defense counsel as a liar in the state’s closing argument. The prosecutor was highlighting defense counsel’s suggestion to the jury that the state’s witnesses were liars. We find no indication that Cleveland was prejudiced by anything said during the state’s closing arguments or that the argument somehow contributed to the verdict.

This assignment is without merit.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of Scott G. Cleveland.

AFFIRMED.

      . The victim’s privacy is protected in this opinion by the use of her initials, S.H.