author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Ronnie YORK, Appellant.
    No. 48,230-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 7, 2013.

      Louisiana Appellate Project by Teresa Culpepper Carroll, for Appellant.
    Charles Rex Scott, II, District Attorney, Dale G. Cox, Sarah S. Midboe, Suzanne M. Owen, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   MOORE, J.

BA jury rendered a responsive verdict against the defendant of guilty to one count of attempted aggravated rape of his mentally handicapped sister-in-law, Y.P., and guilty as charged of aggravated rape of R.Y., his five-year-old daughter. He was sentenced to fifty years without benefit of probation, parole, or suspension of sentence for the attempted aggravated rape conviction to run consecutively to a mandatory life sentence on the aggravated rape conviction. This appeal followed. We affirm.

FACTS

Ronnie York (“defendant” or “appellant” herein) was charged by secret indictment on January 25, 2008, for two counts of aggravated rape. The indictment charged that Count 1 was committed in violation of La. R.S. 14:42(A)(6) when York had sexual intercourse with the victim, Y.P., without her lawful consent because she suffers from a mental infirmity that would prevent resistance as defined by La. R.S. 14:42(C)(2). Count 2 was committed in violation of La. R.S. 14:52(A)(4) against a juvenile victim, R.Y., who was under the age of 13 at the time of the offense.

The facts adduced at trial revealed that Y.P. lives with her mother, and is the defendant’s mentally retarded former sister-in-law who has suffered from mental illness the majority of her life. The incident occurred while the defendant was separated from his wife and children, who were also living in the home. Although the exact date of the offense was not ascertained, the evidence indicated that the offense occurred at the victim’s mother’s house.

12R.Y. is the defendant’s daughter who was five years old at the time of the offense. This offense was committed while the victim and her infant sister were visiting their father for the weekend. After returning to her mother, the victim reported the offense to her mother, who contacted police. The victim disclosed the details of the crime during an interview at the Gingerbread House.

Following a hearing to determine the admissibility of the forensic interviews of the victims, including a Gingerbread House interview of R.Y., the court allowed the introduction of the video evidence pursuant to La. R.S. 15:440.5.

The defendant filed a motion to sever the two rape counts on May 21, 2012. After oral arguments, the motion was denied.

Trial was scheduled for May 21, 2012, but the case was transferred from Judge Michael Pitman to Judge Craig Marcotte pursuant to Local Court Rule 14, System of Random Allotment of Criminal Cases. The defendant objected to the transfer. After a hearing, the transfer was granted.

Trial commenced on May 23, 2012, and ended on May 24, 2012. Defendant was found guilty responsively to Count 1 of attempted aggravated rape of Y.P., and guilty as charged of aggravated rape of R.Y. as charged in Count 2 on May 24, 2011. He filed a motion for post verdict judgment of acquittal on June 11, 2012, alleging that the verdict was contrary to the law and evidence because the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty. Defendant contended that the state failed to prove sexual penetration, Uhowever slight, of either Y.P. or R.Y.

On the same day, defendant filed a motion for new trial under Art. 851(1)(2) alleging that the verdict was contrary to the law and evidence in that the state failed to prove beyond a reasonable doubt every essential element of the crimes: namely, the state failed to prove the defendant sexually penetrated R.Y., and the state failed to establish when and where the alleged rapes of R.Y. and Y.P. took place. Defendant also alleged that he was prejudiced by the joinder of Counts 1 and 2 in one trial, and prejudiced by the state’s allegation in opening statements that he fled the jurisdiction and postponed the prosecution of this matter.

Both motions were denied on June 12, 2012. Subsequently, on June 19, 2012, the defendant was sentenced on the aggravated rape conviction (Count 2) to a mandatory life sentence at hard labor without the possibility of parole, probation, or suspension of sentence. The court sentenced the defendant to 50 years at hard labor without the possibility of parole, probation, or suspension of sentence for the attempted aggravated rape conviction (Count 1). The court directed the sentences to be served consecutively.

This appeal followed.

DISCUSSION

In his first assignment of error, defendant argues that the district court erred by denying his motion for post-verdict judgment of acquittal due to insufficient evidence to support a conviction on either count. By his second assignment of error, he argues that the trial court erred in denying his Rmotion for new trial on grounds that the verdict was contrary to the law and evidence because the state had failed to prove all the essential elements of the crimes. In both of these assignments appellant asserts that the evidence was insufficient to convict for each of the two convictions. Specifically, with respect to the conviction for attempted aggravated rape of Y.P., the defendant argues that the state did not present sufficient evidence to prove (1) any sexual contact occurred between the defendant and the victim, (2) Y.P.’s mental incapacity as required by statute, or (3) the date of the alleged contact. With respect to the conviction for the aggravated rape of R.Y., defendant alleges that the evidence was insufficient to show that anal intercourse occurred.

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, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court |sdoes 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 decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2 Cir. 8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

Thus, in order for the defendant’s convictions to be upheld, the record must establish that the state proved beyond a reasonable doubt all the essential elements of aggravated rape and attempted aggravated rape. We now consider each conviction in turn.

Defendant was charged with two counts of aggravated rape. La. R.S. 14:42(A) defines aggravated rape, in pertinent part, as follows:

Aggravated rape is a rape committed ... where the anal, oral, or vaginal sexual intercourse is deemed to be without the consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.
(6) When the victim is prevented from resisting the act because the victim suffers from a physical or mental infirmity preventing such resistance.

La. R.S. 14:42(C)(2) defines “Mental infirmity” as “a person with an intelligence quotient of seventy or lower.”

Attempted Aggravated Rape of Y.P.

The jury returned a responsive verdict of attempted aggravated rape of Y.P. The elements of attempt are (1) specific intent to commit the crime and (2) an act or omission done for the purpose of and tending directly Rtoward accomplishing the crime. La. R.S. 14:27(A). Importantly, “attempt” is “a separate but lesser grade of the intended crime,” and even though it appears at trial that the crime intended or attempted was actually perpetrated by the person, he may be convicted of an attempt to commit the crime. La. R.S. 14:27(C).

Appellant complains that the state did not present sufficient evidence to prove any sexual contact occurred between the defendant and Y.P. nor her mental infirmity and the date of the alleged contact.

Tiwana Page, the defendant’s ex-wife and Y.P.’s sister, testified that she and her two daughters, R.Y., and L.Y. were living in the home of her mother, Gloria Page, in June of 2006. Her sister, Y.P., is mentally handicapped and also lives in the home. Although she was separated from the defendant, by mutual agreement, the two children, R.Y. and L.Y., spent weekends with their father. Ms. Page testified that some time after R.Y. reported the incident with her father to her around June 16, 2006, Y.P. told her and her mother that the defendant had performed oral sex on her. She said her mother contacted the police. She said that Y.P. could not tell them how many days, weeks, or months earlier that the incident occurred, but Ms. Page speculated that it was a few days.

Sergeant Paula Farquhar testified that she was employed by the Shreveport Police Department as a sex crimes unit investigator. She had been investigating the incident involving R.Y. when on September 11, 2006, she received a complaint from Gloria Page regarding Y.P. Sergeant Far-quhar was asked on cross-examination what Y.P. told her had happened. 17Reading from a transcript of the interview, she said that

[Y-P-] advised that Ronnie had licked her breast and felt and licked on her cat.... She advised me that he told her to go to Tiwana’s room and close the door. He told her to lay down, and he pulled her pants down. She advised that just the head went in. He was hunching her and moving his pelvis. He told her to suck his thing. She said it happened at nighttime.

Sergeant Farquhar testified that she used anatomical drawings in which Y.P. identified her vagina as her “cat,” and she drew a penis and showed where it was located on the defendant.

The court allowed the state to have Sgt. Farquhar read a transcript of her complete interview with Y.P. in which she related the entire incident including that the defendant had partially inserted his penis in her vagina.

Both Ms. Page and Sgt. Farquhar testified regarding Y.P.’s mental infirmity. Y.P. has always lived with her mother, Gloria Page. According to Ms. Page, Y.P. is unable to drive a car or manage money. She has worked the past 15 or 16 years for Frost Industries through the Caddo-Bos-sier Association for Retarded Citizens. She said that although Y.P. was 34 at the time of the alleged crime, she had about the same mental state as her daughter R.Y., who was 5 years old at that time. Sergeant Farquhar testified when she spoke with Y.P., it was apparent to her that Y.P. was not on a communication and thinking level appropriate to her age.

James Patterson, M.D., Ph.D., a psychiatrist employed by LSU Health Sciences Center in Shreveport, testified that he treated Y.P. from July 2005 to May of 2006. He diagnosed her with schizophrenia and mild mental retardation (“MR”). Y.P. has had two cognitive IQ tests — one showing mild MR (mental retardation) and one showing mild to moderate MR — indi-eating Ran IQ in the 55 to 65 range. He estimated Y.P.’s mental age to be between 7 and 10 years old. He stated that he did not believe Y.P. had the capacity to consent to sexual activity.

Y.P.’s mother, Gloria Page, testified that the defendant had come to her house to see his children R.Y. and L.Y. Tiwana was gone, but Y.P. was there. After he left, she went to her room to sleep. She later awoke and went to get a glass of water when she discovered that the defendant had returned. He was in Tiwana’s room with his infant daughter, L.Y. Y.P. was sitting on the sofa. Although she could not recall the date, she testified that she believed that this was when the defendant molested her daughter.

Y.P. testified at trial and identified the defendant as her sister Tiwana’s ex-husband. She affirmed that during the time period of February and March of 2006, the defendant came to the house while her mother was asleep. She let him in the house. She stated that he sucked her breasts and put his hand by her vagina. She said that the defendant “made her suck his thing,” and “I didn’t do it.” He licked and kissed her “cat.” She testified that the defendant told her to go Tiwana’s room, and he pulled her clothes down and spread her legs. She testified that the defendant put his tongue on her vagina and put the head of his private parts in her vagina.

Y.P. was not able to identify the exact month that the incident occurred. She acknowledged that it was some months after the incident occurred when she told her mother and Tiwana about it.

We note that there is no physical evidence of sexual contact between the defendant and Y.P. inasmuch as the incident likely occurred several | ^months before reported. There is some inconsistency of the three accounts (Y.P.’s account, her mother’s account, and her sister’s account) concerning Y.P.’s reporting the incident and when the incident likely occurred, whether Y.P. volunteered the information or whether it was the result of questioning by her mother, whether the incident was reported in a phone conversation or at home, and whether Y.P. told her mother alone or both her mother and Tiwana at the same time. These are very minor areas of confusion, and in many instances they are attributable to the rather lengthy and confusing questions posed. They are not enough, when viewed in the light most favorable to the prosecution, to cast sufficient doubt on what Y.P. reported substantively about the incident. We also note that the witnesses were trying to recall events that happened years earlier. We conclude that the testimonial evidence adduced from Y.P., viewed in a light most favorable to the prosecution, was sufficient to that prove that sexual contact occurred.

Appellant complains that the lack of a date of the offense involving Y.P. made it impossible to prepare a defense. According to Ms. Page, Y.P. reported the alleged incident to her and her mother some time after R.Y. had reported her sexual abuse in mid-June of 2006, but Y.P. could not tell what month it occurred; she believed it likely occurred a few days earlier. Sergeant Farquhar testified that the alleged incident involving Y.P. was reported on September 11, 2006, which was several months after the incident involving R.Y. was reported. Y.P.’s mother’s testimony is equally confusing on this point. Although Y.P. acknowledged at trial that the incident occurred in the time period of February and March of 2006, the | inappellant questions whether a mentally handicapped person could pinpoint a date six years after the alleged incident. She later testified that it was some months after the incident occurred that she told her mother and sister about the incident.

Based on our review, we conclude that the uncertainty regarding an exact date of the offense is of no moment in this case. It is clear from the testimony that the offense occurred during the time that Y.P.’s sister, Tiwana Page, was separated from the defendant and living with Y.P. and her mother, Gloria Page. Y.P. was the victim of this crime, and, even considering her mental infirmity, her testimony was the least ambiguous, indicating that the incident occurred several months before she reported it to her mother. The date is not an element of the offense defined under La. R.S. 14:42(A)(6), and La. C. Cr. P. art. 468 does not require the date or time of the commission of the offense to be alleged in the indictment unless the date or time is essential to the offense. The indictment refers to February or March of 2006 as the time period of the offense, and we note that defendant’s trial counsel never asked for a bill of particulars under La. C. Cr. P. art. 484.

The appellant also claims that the evidence did not establish that Y.P. was mentally infirm as required by the statute. We conclude that this assertion is without merit. The question is whether there was sufficient proof that her I.Q. was 70 or below. Dr. Patterson, who was accepted as an expert, testified without objection that two I.Q. tests done on Y.P. showed she had mild to moderate retardation and that her I.Q. range was 55 to 65. | nOn appeal, appellate counsel speculates that because Dr. Patterson said there was I.Q. testing done in 1997, and that her average I.Q. was 64.75 from three scores, one “can safely assume that some of her scores would have been above 64.75, possibly 70 or higher....” There is, however, no basis for this assumption. The overall I.Q. score was well below 70 and established by the

evidence. This assignment is without merit.

Therefore, after considering the evidence under the Jackson standard for the sufficiency of evidence to support the conviction of attempted aggravated rape of Y.P., the appellant has failed to show that the trial court erred in denying the defendant’s motion for post verdict judgment of acquittal and motion for new trial.

Aggravated Rape of R.Y.

An aggravated rape under La. R.S. 14:42(A)(4) is defined as:

[A] rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be committed without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

The defendant contends that the evidence was insufficient to show that he engaged in anal intercourse with R.Y., who was 5 years old when the alleged incident occurred. In support of this contention, he argues that the DVD interview of R.Y. does not establish that anal intercourse actually occurred, and R.Y.’s mother, when testifying at trial, did not initially recall telling police that R.Y. had told her that he had inserted his penis in her hifrom the back. It was not until she was shown a copy of the officer’s police report that she remembered that R.Y. told her that the defendant had put his penis insider her butt. Additionally, the pediatrician who conducted a physical examination of R.Y. within days following the report of sexual abuse revealed a normal examination with no signs of injury or abuse to the vagina (normal hymen) or anus.

Jennifer Flippo, a counselor with the Gingerbread House, conducted the interview of R.Y. on June 22, 2006, approximately 6 or 7 days after the alleged abuse occurred. In the course of the interview, R.Y. stated that her father had:

“... put his tongue on my tongue and he put my tongue on his tongue.”
“... made me touch his thing” with her hand.
“... made me suck.”
“... made me get on top of him.”
“... had me put his thing behind me in my panties.”

Following this last statement, Ms. Flippo asked R.Y. to draw a circle showing where “he put his thing” on a line drawing depicting the front and back of a female child. RY. did not draw a circle; instead, she traced over the buttocks of the female child depicted in the drawing. Ms. Flippo then asked, “Did it hurt when he was doing that?” RY. nodded affirmatively and responded, “I was burning the next morning.”

Ms. Flippo then asked: “Did he — did he just touch his thing to it or did he put his thing inside there?”

11SR Y. responded: “Inside.”

RY. demonstrated to Ms. Flippo that the defendant licked his fingers and inserted them “in her cat” and identified “her cat” as the vagina on the drawing of a female figure. When Ms. Flippo asked again, “So his thing, it went in your butt?” RY. nodded affirmatively. RY. denied that the defendant put his penis in her vagina, but only touched it with his “thing.” She subsequently denied that she had sucked any part of the defendant’s body, but that her father wanted her to suck his nipple, which she identified on the drawing.

During the course of the interview, R.Y. denied that her panties were ever removed and indicated that her father remained clothed as well, but “took his thing out of his boxers.” She said the incident occurred in the living room, but also indicated that more was done that night. It is not clear whether this occurred in the bedroom.

R.Y.’s mother, Tiwana Page, testified that R.Y. told her that the incident occurred in the bed when both R.Y. and her sister L Y. were sleeping with him. When asked during cross-examination what R.Y. had actually told her, Ms. Page said that R.Y. told her that the defendant “had her touching him up on his, well, breast area”... and “told me that he put his fingers in her underwear and went inside her vagina”... and “she also told me that he tried to make her perform oral sex on him.” Ms. Page did not state that R.Y. told her anything about anal sex.

On redirect examination, the state elicited the following responses from Ms. Page:

[ uState: “Do you recall whether [R.Y.] told you that Mr. York had put his penis in from the back?”
Ms. Page: “No. R.Y. told me that he had her touching him up here (indicating). And he put his fingers down her underwear and stuck his fingers in her vagina. And her exact words, she said, ‘He tried to make me put my mouth on him.’ She said, ‘But momma, I didn’t do it.’ Those were her exact words, the way she put it.”
State: Would you have told a police officer on that occasion that [R.Y.] told you he put his penis in from the back?
Ms. Page: I probably — I may have. If — but those three things I remember her telling me.

At this point, since Ms. Page obviously did not remember, the state showed Ms. Page the police officer’s report to refresh her memory by reading the report — after which, she confirmed that R.Y. told her that Mr. York had put his penis inside her butt and that is what she told the police officer.

Jennifer Rodriguez, M.D., testified as a pediatrician specializing in child abuse. She examined R.Y.’s vagina and anus on June 22, 2006, approximately one week after the alleged incident. Both areas were normal and did not evidence abuse. She testified that the majority of children examined for sexual abuse have normal findings on exam for a variety of reasons including the reason that the abuse does not involve penetration but also because of the healing power of children. She testified that in a study of children seen post-trauma who had known bleeding and pain, after two weeks only 14.6% of children had any findings consistent with trauma.

In addition to the lack of physical evidence, the appellant contends that the context of RY.’s responses to questions during the Gingerbread | ^House interview indicate that R.Y. stated that the defendant put his penis inside her panties, not inside her anus, and that the burning she experienced was consistent with the defendant inserting his fingers in her vagina. Appellant also attacks the credibility of Ms. Page’s refreshed testimony regarding anal intercourse, noting that it is incredible that she would forget that her child told her she had been anally raped.

After carefully reviewing the DVD of the Gingerbread House interview and testimony, we conclude that, viewing the evidence in a light most favorable to the state, a rational jury could conclude that the state has proven that anal intercourse occurred in this instance, as well as the other elements of aggravated rape. Although R.Y. indicated initially that the defendant “put his thing behind me in my panties,” she subsequently affirmed that the defendant had put his penis inside her. This evidence alone was sufficient to sustain the conviction. We therefore conclude that under the Jackson standard for sufficiency of evidence to sustain a conviction for aggravated rape, the trial court did not err in denying the motion for post verdict judgment of acquittal and the motion for new trial. This assignment is without merit.

By his third assignment of error, the appellant contends the district court erred, as a matter of law, in allowing the introduction of the Gingerbread House interview regarding Count 2, the charge of aggravated rape of R.Y. The appellant alleges that the transcript of this interview shows that, on 11 occasions, part of the interviewer’s question was inaudible, and on 18 occasions, part of R.Y.’s answer was inaudible. 11fiAppellant contends that in order for the videotape of an oral statement of the child to be admissible at trial, it must meet the requirements of La. R.S. 15:440.5(A)(3), which requires that the “recording is accurate, has not been altered, and reflects what the witness or victim said.”

As noted above, Jennifer Flippo conducted the interview of R.Y. at Gingerbread House on June 22, 2006. She testified that the videotape recording of the interview had not been altered or modified in any way. Ms. Flippo was available to testify or be cross-examined by either party-

After review of the video, we conclude that the trial court did not err or abuse its discretion by admission of the Gingerbread House video recording of the interview. We find very few “inaudible” words on the video, and overall, it complies with the statutory requirements. The defense does not indicate how the unclear portions of the DVD omit any crucial information. Additionally, both Ms. Flippo and R.Y. were available for cross-examination at trial to clear up any problems with what was said. This was not a case where the victim refused to testify at trial. We conclude that the defendant was not prejudiced, especially in light of the other testimony that separately established the elements of the crime.

By his fourth assignment of error, the appellant alleges that the district court erred, as a matter of law, in transferring this matter to another division for trial over defense objection.

Appellate counsel complains that the defendant was prejudiced by the transfer because it amounted to a permanent reassignment, and that the “good cause” showing by the state, that is, “the efficient and effective | ^administration of justice,” because the case had “languished far too long,” could be made “about practically any criminal case set for trial.... ”

A transfer hearing was held on this issue by Judge Scott Crichton. At that hearing the state argued that the case involved indictments that were 4 ½ years old, and the defendant had more than enough time to prepare for trial. The victims and their family were ready to proceed. The state noted that the defendant’s counsel had been on the case for about 1 ⅜ years, and argued that the effective and efficient administration of justice were the grounds for proceeding to trial, which was agreeable to both Judge Marcotte and Judge Pitman.

Defense counsel complains that while the indictment was filed in January of 2008, she did not receive the case until August of 2011. The delay in the trial was due to the defendant moving out of the jurisdiction because he did not know that he was the target of a grand jury indictment. She noted that the defense did not consent to the transfer and alleged that good cause had not been shown.

Judge Crichton concluded that the defense would not be prejudiced by the transfer and that the state had carried its burden. It noted that the victims had a right to closure and that the trial was a jury trial, not a bench trial, and there was no evidence of manipulation. He ordered the trial to proceed with Judge Marcotte presiding.

We find no abuse of discretion in Judge Crichton’s ruling. Accordingly, this assignment is without merit.

| iSBy his fifth assignment of error, the appellant alleges that the district court erred, as a matter of law, in denying the defendant’s motion to sever.

Appellant argues that the crimes were not of the “same or similar character” so as to warrant joinder under La. C. Cr. P. art. 493. Even if this court finds that the offenses were of the “same or similar character”, counsel argues, they should normally be severed if they have been joined solely for that reason because the evidence as to all crimes charged tends to cumulate to prove each, thus prejudicing the defendant in his right to a separate determination of his guilt or innocence on each charge.

La. C. Cr. P. art. 493 provides:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character and are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

The trial court has discretion to order separate trials when two or more offenses have been improperly joined to the detriment of the defendant or state. See La. C. Cr. P. art. 495.1. However, a motion for severance is addressed to the sound discretion of the trial court, and the ruling should not be disturbed on appeal absent a showing of abuse of discretion. State v. Deruise, 1998-0541 (La.4/3/01), 802 So.2d 1224; State v. Wade, 39,797 (La.App. 2 Cir. 8/9/05), 908 So.2d 1220, writs denied, 2006-0109, 2006-1048 (La.6/2/06), 929 So.2d 1251. A defendant bears a heavy burden of proof when alleging prejudicial joinder of offenses as grounds for a motion to sever. Factual, rather than conclusory, allegations are required. State v. Davis, 1992-1623 (La.5/23/94), 637 So.2d 1012; State v. Wade, supra.

In ruling on a motion to sever, the trial court must weigh the possibility of prejudice to the defendant against the important considerations of economical and expedient use of judicial resources. In determining whether joinder will be prejudicial, the court should consider the following: (1) whether the jury would be confused by the various counts; (2) whether the jury would be able to segregate the various charges and evidence; (3) whether the defendant would be confounded in presenting his various defenses; (4) whether the crimes charged would be used by the jury to infer a criminal disposition; and (5) whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. State v. Deruise, supra; State v. Brooks, 541 So.2d 801 (La.1989). There is no prejudicial effect from the joinder of two offenses when the evidence of each is relatively simple and distinct, so that the jury can easily keep the evidence of each offense separate in its deliberations. State v. Deruise, supra; State v. Brooks, supra.

In the instant case, we conclude that the defendant did not carry his heavy burden of proving prejudicial joinder of offenses as grounds for a motion to sever. The offenses fit the requirement that they be “of the same or similar character and are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” They are similar in character in that they are both sexual abuse offenses, and they are based on connected acts in that the |2l)defendant abused members of his own family, taking advantage of victims who did not have the capacity to resist — one due to chronological and one due to mental age. Furthermore, when looking at the Demise factors, this is not a case where the jury would be confused by the counts or unable to segregate the charges and evidence. Nor would the defendant be confounded in presenting his various defenses. These were two offenses where the evidence of each was relatively simple and distinct, so that the jury could easily keep the evidence of each offense separate in its deliberations. We conclude that Judge Crichton’s decision to deny severance was not an abuse of discretion.

By his sixth assignment of error, appellant alleges that the district court erred, as a matter of law, in allowing the state to make prejudicial and sympathetic statements against the defendant in his opening and closing statements as well as misstatements of the testimony.

During its opening argument, the prosecutor said:

One of you wanted to know why it was so long between what happened and us coming to court today. Well, a lot of the reason is because Mr. York ... (objection by defense) ... Mr. York went to Colorado. And he was extradited back here from Colorado. And that process took some time....

Also, appellant contends that, over the defense’s objection, the state was allowed to bolster the reputation of good will, credibility, and public service of the Gingerbread House and Cara Center by stating that the former is a

magnificent organization, and we are blessed in this community to have the Gingerbread House. They have helped hundreds and hundreds of children over the years. And it is completely nonprofit. It employs skilled counselors and psychologists.
12iAnd the “Cara Center is another nonprofit organization that’s been established in our community to allow child victims of abuse to undergo clinical physical examinations by medical doctors.”

La. C. Cr. P. art. 766 states that “[t]he opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.” Appellant contends that the remarks about the reputation of Gingerbread House and the Cara Center and assertion that the defendant fled to Colorado to delay and avoid prosecution prejudiced the jury against him before trial even started.

Similarly, under La. C. Cr. P. art. 774, the state’s argument should be limited to the evidence admitted, the lack of evidence, conclusions of fact that may be drawn therefrom and the law applicable to the case. It shall be confined to answering the argument of the defendant. Appellant contends that in closing argument, the prosecution made statements that appeal to prejudice by saying that

... Y.P. will never be able to have a meaningful relationship with a boyfriend.
... what fate took from [Y.P.] at the time of her birth ... cries out for some fairness for Y.P. to make up for all the things fate took away from her because of her mental infirmity.

... Something needs to be done for this girl to make up for what she’s lost. Also, with respect to R.Y., the prosecutor characterized R.Y.’s testimony that she went to check on her sister after the incident by saying,

She’s worried about her little sister at that time in her life, because she knows what has been done to her is horrific; and she wanted to make sure little sister had not had it done to her.

12!>And that, ladies and gentlemen, in my mind makes that child a saint. Appellant argues that R.Y. merely stated that she went to check on her sister to see if she was okay and never implied that she was worried or thought that her father had abused her.

Prior to the opening statements, the trial judge instructed the jury that “opening statements are not the facts and the evidence, but it is an outline of what they believe they will show.” It also said that “closing arguments are just that, arguments by the attorneys as to what they believe the facts and the evidence have shown in this case.” “But the facts and the evidence in this case are those that come from the witness stand.”

The state contends that its remarks about the appellant going to Colorado and being extradited back to Louisiana were not an accusation of flight, but were appropriate under La. C. Cr. P. art. 774, since Sgt. Farquhar testified that the appellant had left the state about the time she was finishing her investigation. Regarding the remarks about Y.P. and R.Y. during closing argument, the state notes that the defense did not lodge an objection to the comments and cannot now raise them as errors by assignment. La. C. Cr. P. art. 841.

After review, we conclude that to the extent there arguably was an “over-endorsement” of the Gingerbread House and the Cara House by the state, it was hardly significantly prejudicial to the defendant and was essentially harmless. The evidence submitted by Dr. Rodriguez of Cara House did not really implicate the defendant, and the Gingerbread House video was not advocacy by that organization; instead the whole process [⅛-⅜there was designed to protect against coaching and leading.

As for the state’s reference, in explaining the trial delay to the jury, to the fact that the defendant had left the state and was extradited, the state did not say that the defendant left to avoid prosecution, and the state did not put on evidence at trial to attempt to show flight.

The defendant’s trial counsel did not object to any part of the state’s closing argument; instead, appellate counsel argues for the first time that certain statements made appealed to prejudice in violation of La. C. Cr. P. art. 774. Undoubtedly, the statements about which counsel complains at least pushed the bounds of proper argument. However, La. C. Cr. P. art. 841 states in pertinent part that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. Furthermore, the court instructed the jury that the opening statements were not the facts and the evidence, and that the closing arguments were just arguments — the facts and evidence come from the witness stand. Finally, even where the prosecutor’s statements are improper, credit should be given to the good sense and fairness of the jurors who have heard the evidence. State v. Fortune, 2010-0599 (La.App. 4 Cir. 12/22/10), 54 So.3d 761. We conclude that the statements are nowhere near being prejudicial enough to warrant overturning the jury’s verdict.

By his seventh assignment of error, the appellant alleges that the district court erred, as a matter of law, in allowing a state witness to read verbatim from the transcript of a victim’s statement that was not introduced into evidence.

124While Sgt. Farquhar testified, the court allowed her to read lines from a transcript of Y.P.’s taped interview. Appellate counsel complains that this was improper and that the defendant was prejudiced because it gave much more detail about the accusations against him compared to the actual trial testimony.

This assignment is without merit. First, it was defense counsel who initially asked Sgt. Farquhar to state what Y.P. said and allowed Farquhar to quote from the transcript. The state then was free on redirect to go further into the contents of the transcript to get even more information from it. Compare State v. Winfrey, 97-427 (La.App. 5 Cir. 10/28/97), 703 So.2d 63. Furthermore, under the circumstances, there was not much difference between Farquhar refreshing her memory from the transcript and then essentially telling the jury what it said, versus reading it to the jury. The information would have gone before the jury either way, so there was no prejudice.

By his eighth and final assignment of error, the defendant alleges that the district court erred, as a matter of law, in denying the defendant’s motion to reconsider sentence and rendering an excessive sentence against him.

• The defendant was sentenced to 50 years without benefits for the attempted aggravated rape, to run consecutively with the mandatory life sentence on the aggravated rape. Appellate counsel argues that the facts show “at best that Mr. York performed oral sex on his mentally handicapped sister-in-law on one occasion and had inappropriate sexual contact with his five-year-old daughter, on one occasion, but no actual intercourse.” 12sCounsel then asserts that the defendant “clearly is not one of the ‘worst offenders’ for whom the maximum sentences were intended.”

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. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2 Cir. 2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of 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. Hampton, 38,017 (La.App. 2 Cir. 1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. 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. Haley, 38,258 (La.App. 2 Cir. 4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351; State v. Jones, 33,111 (La.App. 2 Cir. 3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

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.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864.

Where there is a mandatory sentence, there is no need for the trial court to justify, under Art. 894.1, a sentence it is legally required to impose. State v. Burd, 40,480 (La.App. 2 Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35; State v. Koon, 31,177 (La.App. 2 Cir. 2/24/99), 730 So.2d 503.

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.

|27In State v. Dorthey, supra, and State v. Johnson, 1997-1906 (La.3/4/98), 709 So.2d 672, the supreme court addressed the issue of mandatory sentences in the context of the habitual offender law. The court held that the downward departure from a mandatory minimum sentence may occur in rare circumstances if the defendant rebuts the presumption of constitutionality by showing clear and convincing evidence that he is exceptional, namely, that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender, and the circumstances of the case. This rule has been extended to mandatory sentences beyond habitual offender cases. See State v. Fobbs, 1999-1024 (La.9/24/99), 744 So.2d 1274; State v. Chandler, 41,063 (La.App. 2 Cir. 9/8/06), 939 So.2d 574, writ denied, 2006-2554 (La.5/11/07), 955 So.2d 1277. However, the “rare circumstances” described by Johnson in which a mandated sentence can be altered are even less likely in the case of a life sentence chosen by the legislature for a single crime, such as aggravated rape or second degree murder. State v. Chandler, supra. In such crimes, unlike the mandatory minimum sentence under the habitual offender law, the “tailoring” of the sentence by the legislature was for life because the culpability of offenders and the gravity of the offense are so great. Id.

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App. 2 Cir. 1/26/05), 892 So.2d 710. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

The defendant’s argument on excessive sentence essentially is an attack on the convictions themselves in that it indirectly argues that the defendant should have, at most, been convicted for lesser included offenses. As far as excessiveness is concerned, the trial court was legally required to impose the life sentence for aggravated rape. Furthermore, as noted above, the “tailoring” of a sentence by the legislature is for life on a crime like aggravated rape because the culpability of offenders and the gravity of the offense are so great; thus, this is the kind of sentence that seldom, if ever, would qualify for a downward departure.

As for the maximum sentence for attempted aggravated rape of the sister-in-law, the trial court made reference to the article 894.1 factors, noting that the defendant should have known the victim was particularly vulnerable or incapable of resistance, and that the defendant used his position and status to facilitate the commission of the offense. Then the court said, “You know, without me going into a diatribe about the insidious nature of this or of these offenses ... this court hereby sentences you to 50 | gSyears at hard labor without benefit of probation, parole, or suspension of sentencej/... ”.

Considering the factors articulated by the court, and considering that a strong argument can be made that there was more than enough evidence to convict the defendant for aggravated rape of Y.P., the court’s sentence on the attempted aggravated rape does not shock the sense of justice. We find no abuse of discretion in sentencing.

CONCLUSION

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

CONVICTION AND SENTENCE AFFIRMED,

      . Ordinarily, there is no appeal from the trial court’s refusal to grant a motion for new trial, except for error of law. La. C. Cr. P. art. 858; however, because the subject of this assignment is really sufficiency of evidence and this is a constitutional issue, we treat it as a motion for post verdict judgment of acquittal under La. C. Cr. P. art. 821. State v. Johnson, 584 So.2d 1216 (La.App. 2 Cir.1991), writ denied, 589 So.2d 1057 (La.1991).


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    Lawrence Marie BROWN, Plaintiff-Appellant v. Carl BROWN, Defendant-Appellee.
    No. 48,274-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 7, 2013.
    Lawrence Marie Brown, Pro se.
    Carl Brown, Pro se.
    Before STEWART, DREW & PITMAN, JJ.
   PITMAN, J.

|! Plaintiff, Lawrence Marie Brown, in proper person, filed a rule of eviction against her former brother-in-law, Defendant, Carl Brown, seeking his eviction from a home she owns with her former husband, Charles Brown (“Charles”). The trial judge rendered judgment in favor of Defendant. Plaintiff now appeals. For the following reasons, the judgment of the trial court is reversed.

FACTS

Plaintiff and Charles own a rent house located at 712 So. 11th Street, Monroe, Louisiana. Some years ago, Charles asked Plaintiff if his brother, Defendant, could occupy the house and help care for his ailing father who lived across the street from the house. Charles allegedly told Plaintiff that Defendant would pay him $300 per month rent and that Charles would give her half of that amount each month; however, Plaintiff never received any payments for rent. Defendant has lived in the house for years and the house is in a state of disrepair. Plaintiff went to the home and found as many as 11 people living in the two-bedroom dwelling. Plaintiff became dissatisfied with the situation and decided to evict Defendant from the home.

Plaintiff served Defendant with an eviction notice and then filed a rule to evict him from the home. Although Defendant was properly served with notice that the rule had been filed, he did not file an answer. A hearing was held in October 2012, at which Plaintiff, Defendant and Charles all testified.

Plaintiff testified that the property was rental property she owned with Charles and that the monthly rental rate was $300. She stated that |2Pefendant had moved in approximately seven years ago. There was no written lease, but there was a verbal agreement that Defendant would pay Charles $300 per month rent, and Charles was to give her $150 per month. She also testified that she never received a single rental payment, although she believed Defendant had paid rent for a year, but stopped paying after Charles wrecked Defendant’s truck.

Plaintiff further testified that, as her rule to evict alleged, only Defendant and his wife were to live in the home, yet she had found as many as 11 people living there. She stated that, in 2006, she gave Defendant the option to pay the rent or to repair the house because it was in such a state of disrepair it could have been condemned by the city. Defendant made no effort to repair the home. Plaintiff also testified that neighbors had informed her that Defendant was illegally getting electrical service by connecting a wire to the breaker box.

Defendant testified that he moved into the house at the request of his brother and that he had informed his brother at the time he moved in that he could not afford to pay any rent. He testified that there was never any agreement for him to pay $300 per month; and, in fact, he never paid any rent to his brother or to Plaintiff. He also testified that the house had always been in terrible condition and that his purpose for living there was to attempt to prevent others from vandalizing it. Defendant stated that he intended to repair the home, but did not have the money to do so, and Plaintiff did not give him enough time. He also stated that he had moved into the house in 2008, not seven years ago as Plaintiff had claimed. ^Defendant further testified that he wanted to move because he did not want to be in the middle of a disagreement between Plaintiff and Charles.

Charles testified that there was no agreement for Defendant to make a monthly rental payment of $300. Charles stated that Defendant had nowhere to live, so he allowed Defendant to move into the house. This was to be a short-term arrangement. However, as time passed, he simply allowed Defendant to stay in the home. Charles testified that his brother actually made two or three payments of $200. Charles denied that there was an agreement for him to give Plaintiff half of the rent, stating, “Well, it really, I mean really, it wasn’t an agreement but I wouldn’t mind letting her have it. I mean, she, you know. Like she’s bringing up in court.”

The trial court asked Plaintiff and Charles, as co-owners of the home, how long they were willing to give Defendant to vacate the premises. Defendant requested that the court postpone his eviction until March when his taxes would be paid and he would be in a better position financially to move. Plaintiff offered an alternative and stated that the three-bedroom home of Defendant’s deceased father was vacant and located across the street and he could move there immediately.

Without further evidence being adduced, the trial court stated:

Based upon the testimony that ... the Court has heard this morning, the Court, uh, is going to deny the rule in this matter as it does not believe that the Petitioner carried the burden, uh, that was required. All right. The Court, uh, will sign off on this, and if we’ll make sure that it’s a part of the record. All right.
Defendant asked: What do you mean? I mean ...
Plaintiff answered: You and Charles win.

| ¿The trial court’s judgment did not contain any explanation regarding Plaintiffs burden of proof or why that burden had not been met. Also, the written judgment signed by the trial court is very confusing. The language in the decretal portion indicates that judgment was rendered in Plaintiffs favor and against Defendant ordering him to vacate the premises. However, handwritten at the bottom of the judgment are the words “Dismissed/Lee.” The transcript and minutes both support this version of the judgment. Plaintiff has appealed this ruling.

DISCUSSION

Plaintiff claims that the trial court erred in failing to award a judgment of eviction in her favor and against Defendant ordering him to vacate the premises on South 11th Street.

Plaintiff argues that there are three essential elements to a landlord’s cause of action for eviction. These three elements are: 1) the relation of landlord and tenant between the parties, 2) the expiration or termination of the lease and 3) that due notice to vacate has been served upon the tenant as required by law. Plaintiff asserts that she made a prima facie showing by competent evidence that she was entitled to the relief she sought. She also argues that the testimony at the hearing showed there was a verbal agreement with Defendant detailing the amount of rent due per month and to whom it was to be paid. She argues that, by Charles’ own admission, Defendant made two or three payments of $200 to him; therefore, Defendant apparently was in agreement with the terms of the verbal lease, even though he failed to make with any further payments.

| .¡Plaintiff further argues that she is entitled to use summary process to evict Defendant. The record shows that she complied with the requirements of the Louisiana Code of Civil Procedure and provided Defendant with due notice to vacate. Defendant did not file any responsive pleadings or raise any affirmative defenses. For these reasons, Plaintiff argues that she was entitled to judgment in her favor ordering Defendant to immediately vacate the premises.

Defendant did not file an appellate brief and, apparently, is still living in the house rent free with Charles’ permission.

La. C.C.P. art. 4701 states in pertinent part as follows:

When a lessee’s right of occupancy has ceased because of the termination of the lease by expiration of its term, action by the lessor, nonpayment of rent, or for any other reason, and the lessor wishes to obtain possession of the premises, the lessor or his agent shall cause written notice to vacate the premises to be delivered to the lessee. The notice shall allow the lessee not less than five days from the date of its delivery to vacate the leased premises.
If the lease has no definite term, the notice required by law for its termination shall be considered as a notice to vacate under this Article. If the lease has a definite term, notice to vacate may be given not more than thirty days before the expiration of the term.

La. C.C.P. art. 4702 concerns notice to occupants other than tenants to vacate and states as follows:

When an owner of immovable property wishes to evict the occupant therefrom, after the purpose of the occupancy has ceased, the owner, or his agent, shall first cause a written notice to vacate the property to be delivered to the occupant.
This notice shall allow the occupant five days from its delivery to vacate the premises.

|fiLa. C.C.P. art. 4731 concerns the rule to show cause why possession should not be delivered and states in pertinent part as follows:

A. If the lessee or occupant fails to comply with the notice to vacate required under this Title, or if the lessee has waived his right to notice to vacate by written waiver contained in the lease, and has lost his right of occupancy for any reason, the lessor or owner, or agent thereof, may cause the lessee or occupant to be cited summarily by a court of competent jurisdiction to show cause why he should not be ordered to deliver possession of the premises to the lessor or owner. The rule to show cause shall state the grounds upon which eviction is sought.

La. C.C.P. art. 4732 states that, if the court finds the lessor or owner entitled to the relief sought, or if the lessee or occupant fails to answer or to appear at the trial, the court shall render immediately a judgment of eviction ordering the lessee or occupant to deliver possession of the premises to the lessor or owner.

La. C.C. art. 805 states as follows:

A co-owner may freely lease, alienate, or encumber his share of the thing held in indivisión. The consent of all the co-owners is required for the lease, alienation, or encumbrance of the entire thing held in indivisión.

Since consent of all co-owners is required for the lease or encumbrance of the entire thing held in indivisión, Defendant is not entitled to remain in the home. By seeking the eviction of Defendant from her property, Plaintiff has shown that she no longer consents to his encumbrance of her property. Her only burden of proof was to show she owned the home in indivisión and that she no longer consented to Defendant’s possession of the thing. Plaintiff followed the proper |7procedures for evicting Defendant from her property and she is entitled to judgment in her favor.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed and judgment is entered in favor of Plaintiff Lawrence Marie Brown, and against Defendant Carl Brown, and he is hereby ordered to immediately vacate the premises located at 712 S. 11th St., Monroe, Louisiana. Should Defendant fail to vacate the premises, a Writ of Possession shall issue forthwith directed to the Marshal of the Monroe City Court commanding him to eject Defendant Carl Brown from the premises and to deliver possession thereof to Plaintiff. Costs of this appeal are assessed to Defendant Carl Brown.

REVERSED AND RENDERED.


author: GARRETT, J.

text:
    Patricia VILLAREAL, Plaintiff-Appellant v. 6494 HOMES, LLC, Defendant-Appellee.
    No. 48,302-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 7, 2013.

      McMichael, Medlin, D’Anna, Wedge-worth & Lafargue, LLC, Shreveport, by Norman I. Lafargue, for Plaintiff-Appellant Patricia Villareal.
    Jeff R. Thompson, Bossier City, for Defendants-Appellees 6494 Homes, LLC and Burnis Lasiter, Jr.
    Before CARAWAY, MOORE and GARRETT, JJ.
   GARRETT, J.

| ;The plaintiff, Patricia Villareal, appealed from a trial court judgment which granted an exception of no cause of action in favor of defendant Burnis Avin Lasiter, Jr. We reverse and remand.

FACTS

On June 6, 2011, the plaintiff filed an ordinary lawsuit consisting of five numbered paragraphs against 6494 Homes, LLC (hereinafter “the LLC”), entitled “Petition on Promissory Note and for Recognition of Security Interest.” The suit alleged that the plaintiff was the holder of a promissory note executed by the LLC on May 25, 2010. The note was in the amount of $390,000, payable in 39 installments of $10,000, with the first installment due on May 31, 2010, and a final payment of the interest on the entire amount due on or before August 31, 2013. The plaintiff alleged that the balance owed was $343,724.56 as of August 1, 2010. She claimed that the defendant was in default and that the entire debt was due. The note was secured by a multiple indebtedness mortgage recorded in Bossier Parish that listed numerous pieces of property. The suit sought a money judgment against the defendant and recognition of security rights pursuant to the mortgage. The original note and a certified copy of the mortgage were attached to the petition. These documents were signed by Mr. Lasi-ter in his capacity as manager of the LLC. A general denial answer was filed by the LLC.

On January 24, 2012, the plaintiff filed an amended and restated petition consisting of 32 numbered paragraphs. This petition added Mr. Lasiter as a defendant along with the LLC. This petition asserted that the 12plaintiff and Mr. Lasiter entered into a partnership for the purposes of building and remodeling houses for resale and profit. The petition alleged a series of transactions between the plaintiff and Mr. Lasiter and/or the LLC. The petition also asserted the execution of two additional notes and another mortgage by the LLC. The plaintiff further claimed that, due to other mortgages placed on some properties without her knowledge, she did not receive the amount of profits to which she was entitled. She further alleged that all three notes were in default and that the two named defendants owed her, in solido, the amounts of $327,250.82 on Note 1, $265,691.04 on Note 2, and $87,000 on Note 3, plus interest, attorney fees and costs. She also requested recognition of her security rights pursuant to the recorded mortgages. The two original promissory notes were attached to the amended and restated petition, together with a copy of the other mortgage. All of these documents were signed by Mr. Lasiter as manager of the LLC.

In the amended and restated petition, the plaintiff couched some of her allegations against Mr. Lasiter in terms of “La-siter, through 6494 Homes,” “Lasiter and 6494 Homes” or “Lasiter ... in the name of 6494 Homes.” However, she also made specific allegations pertaining to Mr. Lasi-ter as an individual and described a time line of events that spanned a period commencing well before the date of the May 25, 2010, note at issue in the original suit. The allegations include:

1«2-
Lasiter is the sole member of 6494 Homes.
3.
Petitioner and Lasiter entered into a partnership for the purpose of building and remodeling houses for resale and profit.
4.
Petitioner provided $87,000.00 to Lasiter for the purpose of buying a lot located at Lot 4, Stonebridge....
8.
Petitioner and Lasiter agreed that upon the sale of Longfellow Trace, petitioner would be reimbursed the $490,000.00 she advanced and the remainder would be divided between them as shared profits.
17.
Petitioner and Lasiter agreed that upon the sale of 224 Macey Lane, petitioner would be reimbursed the $350,000.00 she advanced and the remainder would be divided between them as shared profits.
20.
To evidence the balance due of the $390,000.00 advanced to Lasiter on the Longfellow Trace project, 6494 Homes executed a Promissory Note....
22.
To evidence the $350,000.00 advanced by petitioner to Lasiter on the 224 Macey Lane project, 6494 Homes executed a Promissory Note....
32. Lasiter breached his agreement and fiduciary duty as partner of petitioner on the Longfellow Lane [sic] project and Macey Lane project by failing to reimburse petitioner for the funds advanced and divide the profits as agreed.

As previously noted, the prayer for relief in the amended and restated petition sought judgment against both named defendants, in solido, as to the sums owed on the promissory notes and against the LCC for recognition of the mortgages. The prayer also included the following additional requests:

FURTHER PRAYS for judgment in favor of petitioner and against Lasiter for petitioner’s share of the profits from the Longfellow Trace project and the 224 Macey Lane project.
FURTHER PRAYS for all such additional, general and equitable relief as may be necessary and proper in the premises.

An answer to the amended and restated petition was filed by the LLC. Although the answer was not filed on Mr. Lasiter’s behalf, the last paragraph of the answer recited: “Further answering, Lasiter, in his individual capacity was not a party to any agreement, mortgage, deed, or alleged partnership.”

Mr. Lasiter, represented by the same counsel representing the LLC, responded to the amended and restated petition by filing an exception of no cause of action. The exception urged* that because Mr. La-siter signed the promissory notes at issue only in his representative capacity as manager of the LLC, he should be dismissed from the proceedings. The basis of the exception was that Mr. Lasiter could not have any personal liability as the manager of the LLC.

|SA written opinion/order was rendered August 28, 2012, granting the exception. The opinion recited, in pertinent part:

Plaintiff argues that she and Mr. Lasiter entered into an agreement as partners and that because of this “partnership agreement,” plaintiff is also maintaining a claim for the breach of the partnership agreement.
The Court has reviewed the statutory law relating to limited liability corporations and partnerships. Additionally, the Court has reviewed the jurisprudence as it relates to determining whether or not a partnership exists. This Court is aware that while there is guidance as it relates to determining whether a partnership/joint venture has been formed, and that different Courts seem to have utilized varying tests to analyze the fact patterns of each particular case.
After reviewing this ease, the Court definitely feels that plaintiff has a cause of action against 6494 Homes, LLC regarding the promissory note. Thereafter, the Court considered whether or not a partnership existed and the question would be between whom? Patricia Vil-lareal and 6494 Homes, LLC or Patricia Villareal and Burnis Lasiter? While plaintiff may have believed she was in partnership with Mr. Lasiter, the individual, all of the documentation serves to indicate the plaintiff contracted with Mr. Lasiter as the manager of 6494 Homes, LLC. Accordingly, this Court finds that the Peremptory Exception of No Cause of Action is well-founded.

Consequently, Mr. Lasiter was dismissed from the litigation. The plaintiff filed the instant appeal.

LEGAL PRINCIPLES

A peremptory exception of no cause of action questions whether the law extends a remedy to anyone under the factual allegations of the petition. Rangel v. Denny, 47,381 (La.App.2d Cir.8/8/12), 104 So.3d 68. The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the petition. The burden of showing that the plaintiff has stated no cause of action is upon the exceptor. The public | f,policy behind the burden is to afford the party his day in court to present his evidence. City of New Orleans v. Board of Directors of La. State Museum, 98-1170 (La.3/2/99), 739 So.2d 748; In re Succession of Carroll, 46,327 (La.App.2d Cir.7/20/11), 72 So.3d 384, writ not considered, 2011-1844 (La.11/4/11), 75 So.3d 912.

The exception is triable on the face of the petition and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition and any annexed documents must be accepted as true. Short v. Short, 40,136 (La.App.2d Cir.9/23/05), 912 So.2d 82, writ denied, 2005-2320 (La.3/10/06), 925 So.2d 519.

All reasonable inferences are made in favor of the nonmoving party in determining whether the law affords any remedy to the plaintiff. City of New Orleans v. Board of Directors of La. State Museum, supra; Rangel v. Denny, supra. Generally, no evidence may be introduced to support or controvert the exception. However, a jurisprudentially recognized exception to this rule allows the court to consider evidence that is admitted without objection to enlarge the pleadings. Short v. Short, supra.

Generally, an exception of no cause of action must be overruled unless the allegations in the petition exclude every reasonable hypothesis other than the premise on which the defense is based, i.e., unless the plaintiff has no cause of action under any evidence admissible under the pleadings. Steed v. St. Paul’s United Methodist Church, 31,521 & 31,522 (La.App.2d Cir.2/24/99), 728 So.2d 931, writ denied, 99-0877 (La.5/7/99), 740 So.2d 1290. [Emphasis in original.]

|7A court of appeal reviews de novo a lower court’s ruling sustaining an exception of no cause of action because the exception raises a question of law and because the lower court’s decision is generally based only on the sufficiency of the petition. The question is whether, in the light most favorable to the plaintiff, the petition states any valid cause of action for relief. City of New Orleans v. Board of Directors of La. State Museum, supra; In re Succession of Carroll, supra.

An exception of no cause of action is sustained only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. If the petition states a cause of action on any ground or portion of the demand, the exception should be overruled. Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Rangel v. Denny, supra.

There are no hard and fast rules in making the determination of whether a partnership exists and each case must be considered on its own facts. Tedeton v. Tedeton, 46,901 (La.App.2d Cir.2/8/12), 87 So.3d 914; Harris v. Wallette, 538 So.2d 728 (La.App. 2d Cir.1989).

A partner owes a fiduciary duty to the partnership and to his partners. He may not conduct any activity, for himself or on behalf of a third person, that is contrary to his fiduciary duty and is prejudicial to the partnership. If he does so, he must account to the partnership and to his partners for the resulting profits. La. C.C. art. 2809. This fundamental rule that the ^relationship of partners is fiduciary and imposes on them the obligation of the utmost good faith, fairness, loyalty and integrity in their dealings with one another with respect to partnership affairs is universally recognized in modern cases. Barksdale v. Lincoln Builders, Inc., 32,857 (La.App.2d Cir.6/21/00), 764 So.2d 228, writ denied, 2000-2646 (La.2/9/01), 785 So.2d 821.

DISCUSSION

The plaintiff alleged that she and Mr. Lasiter, acting in his individual capacity, were involved in a partnership and that he breached the fiduciary duty he owed to her as a partner. While the attachments to the petitions demonstrate that the LLC executed the promissory notes and mortgages and the allegations of the amended and restated petition also assert actions by Mr. Lasiter acting on behalf of the LLC, this does not necessarily preclude the plaintiff’s contention that she and Mr. La-siter also had a partnership agreement between them as individuals. The amended and restated petition describes a course of conduct that occurred over a lengthy period of time and a complicated financial relationship between the plaintiff and Mr. Lasiter which involved many different houses and projects.

In ruling upon an exception of no cause of action, we are obliged to accept the allegations of the petitions as true and to conduct a de novo review of the matter. After carefully reviewing the contents of the amended and restated petition in the light most favorable to the plaintiff, we find that it does, in fact, state a valid cause of action against Mr. Lasiter as an individual for the breach of a partnership agreement and its attendant | ¡¡fiduciary duty. We note, of course, that evidence subsequently developed through discovery and/or proven at trial may show otherwise. However, at this stage of the proceedings, we are precluded from adjudging the merits of the plaintiffs claims. We are thus obliged to find that the trial court’s ruling on Mr. Lasiter’s exception of no cause of action was in error.

Accordingly, we reverse the trial court judgment which granted the exception of no cause of action and dismissed Mr. Lasi-ter from the suit.

CONCLUSION '

The judgment of the trial court granting Mr. Lasiter’s exception of no cause of action is reversed. The matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed to appel-lee/defendant Burnis Alvin Lasiter, Jr.

REVERSED AND REMANDED.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Robert Dewayne JOHNSON, Appellant.
    No. 48,407-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 7, 2013.

      Louisiana Appellate Project by Teresa Culpepper Carroll, for Appellant.
    Jerry L. Jones, District Attorney, G. Mennon Campbell, Jr., Brandon B. Brown, Michael J. Fontenot, Assistant District Attorneys, for Appellee.
    Before BROWN, DREW and GARRETT, JJ.
   DREW, J.

11 Robert Johnson was convicted of the crime of armed robbery by a unanimous jury. The trial court sentenced Johnson to 60 years at hard labor without benefits. The defendant now appeals. We affirm in all respects.

FACTS

This offense occurred at the County Market grocery store on Louisville Avenue in Monroe. On September 11, 2011, the defendant entered the store through the front doors and walked through the checkout lines into the merchandise area. Kenneth Gordon, the assistant manager, was monitoring the in-store video surveillance system. He saw the defendant conceal several containers of deodorant and walk past the cash registers.

Gordon confronted the defendant near the front door, suggesting that he return the stolen items and just leave the store. The defendant refused, pulling out a box cutter seen by Gordon and a cashier, Ms. Sherata Carter. Gordon said that the box cutter was the “exact same model that I use every day at work.”

When Gordon saw the box cutter, he jumped back and told the other employees not to try and detain the defendant. Gordon said to call the police and tell them that the defendant was armed.

The video is of low quality, but basically confirms the incident, though the weapon is not visible.

Monroe Police Officer Michael Freeman stopped the defendant after a short foot chase. The officer found numerous cans and sticks of deodorant 12on the defendant, as well as a loose box cutter blade. No box cutter was ever recovered.

The defendant admitted to the officer that he stole the deodorant, but denied that he had a box cutter. Officer Freeman took the defendant back to the grocery store, where Gordon identified the defendant as the perpetrator.

At sentencing, the trial court noted that the defendant:

• had three convictions for possession of cocaine (1995, 2008, and 2010);

• had a long history of misdemeanor offenses and arrests;

• had been arrested, but not convicted, for aggravated arson and forcible rape;

• was not prosecuted in the rape case because the victim could not be located;

• attended school through the eighth grade before being expelled;

• never got his GED;

• had only four jobs in his life, none of which lasted more than six months;

• has a poor history with supervised release;

• was a fourth-felony offender; and

• was fortunate not to be adjudicated as a habitual offender.

Johnson filed a motion for post-verdict judgment of acquittal and a motion to reconsider his sentence, with each motion being denied.

He appeals the sufficiency of the evidence against him. He also appeals the 60-year hard labor sentence, without parole.

I,.¿DISCUSSION

Sufficiency

Johnson argues that the evidence is insufficient to prove beyond a reasonable doubt all of the elements of the offense of armed robbery. Specifically, he challenges the state’s proof that he took the deodorant from the possession or immediate control of another, that he used force or intimidation to accomplish the taking, or that he was armed with a dangerous weapon. Johnson points out that no weapon is visible in the video from the store and that no box cutter was recovered from his person when he was arrested. Further, he argues that the reactions of others on the video, particularly Gordon, are not consistent with the testimony that the defendant was armed with a dangerous weapon. He urges that the video does not show Gordon “jump back” as he testified, nor does it show Gordon yelling to the employees.

The legal analysis for an armed robbery conviction is well settled.

Our law on general sufficiency evaluations is also well settled.

| ¿Both Gordon and a cashier saw the box cutter and heard the defendant say: “I’ll cut you” or “I’ll gut you:

As for the reactions of the victim and the other persons as shown on the video recording, the recording shows that Gordon attempted to maintain some distance between himself and the defendant, although at one point, the defendant strode toward Gordon, coming within arms’ reach before Gordon backed away. The video does not clearly show that Gordon “jumped back” from the defendant but it does show that he moved away from the defendant as the defendant moved toward the door. Any inconsistencies between the video and Gordon’s testimony are quite minor. The jury’s verdict is consistent with the video.

The evidence was sufficient to prove beyond a reasonable doubt that the defendant committed armed robbery of Gordon.

Excessiveness

In this assignment, the defendant argues that his 60-year hard labor sentence, without parole, is excessive. He argues that:

• the items he stole had a low value;

• the state’s proof of his being armed was

weak;

|s* his sentence is disproportionate to other cases; and

• no one was hurt during this crime.

Our sentencing review is somewhat limited.

The defendant is entitled only to a review of his sentence for bare excessiveness. He is not entitled to a review for compliance with La. C. Cr. P. art. 894.1. We note, however, that the trial court fully complied with that article and properly considered all factors relevant to the sentence. The 12-page sentencing document prepared by the trial court is a model of thoroughness and clarity.

The defendant used a box cutter and threatened to “cut” or “gut” a store manager who had just offered to let the defendant leave the store without consequences if he would simply drop the items he was trying to steal. The defendant’s social and work history were unimpressive. He was seldom employed and never for any extended periods. He had no family who depended upon him for support. His criminal history is horrific. He demonstrates few periods of lawful conduct from 1995 to 2010, and he had three prior felony drug convictions that could have been used as predicates for a habitual offender adjudication.

jfiWe concede that the defendant’s prior felony convictions were for nonviolent acts, and that many of his other arrests ended with no convictions. We further acknowledge that no one was physically injured in this event.

This 60-year hard labor sentence, without eligibility for suspension of sentence, probation, or parole, is harsh. However, under these facts and considering the life of crime perpetrated by this defendant, the sentence does not shock the conscience. There is no legal error here.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . Eleven containers of deodorant were taken from the defendant at arrest.

      . Examples of Johnson's criminal history include theft, trespass, flight from an officer, and battery.

      . The trial court noted at sentencing: "Every time he’s been released from prison, he has reoffended within a matter of days or months.”

      . La. R.S. 14:64 provides, in part:
      A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
      To convict a defendant of armed robbery, the state is required to prove: (1) a taking (2) of anything of value (3) from a person or in the immediate control of another (4) by the use of force or intimidation (5) while armed with a dangerous weapon. State v. Jeselink, 35,189 (La.App.2d Cir.10/31/01), 799 So.2d 684.

      . 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. Carter, 42,894 (La.App.2d Cir. 1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297. 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.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; 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. 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.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

      . He points out similar sentences being reserved for cases involving large sums of money, where victims were killed or caused great bodily harm, or where firearms were discharged.

      . If a defendant’s motion for reconsideration of sentence under La. C. Cr. P. art. 881.1 merely alleges that his sentence is excessive, under State v. Mims, 619 So.2d 1059 (La.1993), he is “simply relegated to having the appellate court consider the bare claim of excessiveness.” This bare claim preserves only a claim of constitutional excessiveness. Mims, supra; State v. Lofton, 41,423 (La.App.2d Cir.9/27/06), 940 So.2d 702, writ denied, 2006-2952 (La.9/28/07), 964 So.2d 359. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Livingston, 39,390 (La.App.2d Cir.4/6/05), 899 So.2d 733; State v. White, 37,815 (La.App.2d Cir. 12/17/03), 862 So.2d 1123.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Felton Wayne DUKES, Appellant.
    No. 48,101-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 14, 2013.

      Louisiana Appellate Project by Peggy J. Sullivan, Monroe, LA, for Appellant.
    Charles R. Scott, II, District Attorney, Brian H. Barber, Jason T. Brown, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and PITMAN, JJ.
   STEWART, J.

1, FACTS AND PROCEDURAL HISTORY

This matter previously came before this court in State v. Dukes, 46,029 (La.App.2d Cir.1/26/11), 57 So.3d 489. On January 21, 2009, the defendant was arrested after selling cocaine to, and buying ecstasy from, an undercover narcotics agent. As stated above, the defendant was convicted of possession of ecstasy and distribution of cocaine. He was adjudicated a fourth-felony offender and sentenced to life imprisonment without benefits. He appealed, and although his convictions and cocaine sentence were affirmed, this court remanded the matter after determining that the trial court did not impose a sentence for the possession of ecstasy conviction. While the case was on remand for resentencing, the state filed a fifth-felony habitual offender bill of information. The bill, filed on July 9, 2012, charged Dukes with having the following prior convictions:

(1) On December 6, 1994, the defendant pled guilty to one count of possession of a Schedule II CDS.
(2) On November 14, 1997, the defendant pled guilty to one count of possession of marijuana, a Schedule I CDS.
(3) On November 14, 1997, the defendant pled guilty to distribution of a Schedule II CDS.
(4) On April 24, 2006, the defendant pled guilty to one count possession with intent to distribute a Schedule II CDS.
(5) On November 17, 2009, the defendant pled guilty to the instant conviction for one count of possession of a Schedule I CDS.

IgOn July 19, 2012, the defendant filed a motion to quash the habitual offender bill of information, asserting that the bill was untimely because it was filed more than two years after his conviction. He further asserted that since the state filed a multiple offender bill at least two years earlier, it had sufficient knowledge of his prior felonies.

The trial court conducted a hearing on the motion to quash and determined that since the defendant had previously been billed and sentenced as a fourth-felony offender with regard to his distribution of cocaine conviction, it was a mere technical error that he had not been multiple billed on the instant charge. The trial court expressed that the defendant had notice of the state’s intent to file a multiple offender bill of information, and since he was sentenced to life imprisonment on the cocaine conviction, he suffered no prejudice as a result of the current multiple offender bill. As such, the trial court denied his motion.

The state then proceeded with its habitual offender adjudication proceeding, after which the defendant was adjudicated a fourth-felony habitual offender. He waived all sentencing delays, and was sentenced to a second life sentence to be served concurrently with his other life imprisonment sentence.

|3On August 13, 2012, the defense filed a motion to reconsider sentence, asserting that his sentence was excessive and that the evidence was insufficient to adjudicate him a fourth-felony offender. The trial court denied his motion on August 15, 2012, without need for a contradictory hearing.

The defendant now appeals. For the following reasons, we affirm the defendant’s second life imprisonment sentence as a habitual offender.

LAW AND DISCUSSION

In the defendant’s sole assignment of error, he alleges that the fifth-felony habitual bill of information was untimely. He acknowledges the trial court’s statement that it failed to impose a sentence regarding the ecstasy charge because the State failed to include it in the fourth-felony habitual bill of information. The trial court characterized this failure as a “technical error.” The defendant expresses that he is “being punished” for oversights by the trial court, as well as the state.

To the contrary, the state argues that the defendant was aware of its intention as evidenced by its prior filing of the multiple offender bill. The state gave notice of its intent to multi-bill the defendant on all counts. The state further argues that because the defendant had not been sentenced on the possession of ecstasy charge, there is no unreasonable delay in filing the multiple offender bill. Lastly, the state maintains that the defendant has not been prejudiced by the filing of the second habitual offender bill.

Sentence shall be imposed without unreasonable delay. If a defendant claims that the sentence has been unreasonably delayed, he may Rinvoke the supervisory jurisdiction of the appellate court. La. C. Cr. P. art. 874. La. R.S. 15:529.1 provides for enhancement of penalty for habitual offenders. More specifically, La. R.S. 15:529.1(D)(l)(a) provides in pertinent part:

D. (l)(a) If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has been previously convicted of a felony under the laws of this state, or has been convicted under the laws of any other state, or of the United States, or of any foreign government or country, of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction. Whereupon the court in which the subsequent conviction was had shall cause the person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender say whether the allegations are true. (Emphasis provided.)

A review of the statute reveals the absence of a prescriptive period for completion of the habitual offender proceeding. State v. Muhammad, 03-2991 (La.5/25/04), 875 So.2d 45. Although the statute sets no prescriptive time within which the bill must be filed, the supreme court has made a determination that the district attorney must file the habitual offender bill within a reasonable time after learning that the defendant had prior felony convictions. Id.; State v. Toney, 02-0992 (La.4/9/03), 842 So.2d 1083. The rationale is necessitated by the defendant’s constitutional right to a speedy trial. Muhammad, supra. A reasonable time is determined on a case-by-case basis. Id.

As a general matter, the Supreme Court has set forth four factors for the court to consider in determining whether a defendant’s right to a speedy |r,trial has been violated. Those factors are the length of the delay, the reasons for the delay, the accused’s assertion of his right to speedy trial, and the prejudice to the accused resulting from the delay. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Muhammad, supra. While these factors are neither definite nor dispositive in the context of the habitual offender proceeding, they are instructive. Muhammad, supra.

In Muhammad, supra, the supreme court addressed the issue of whether the defendant’s adjudication as a multiple offender was timely. In that case, the defendant was convicted of 17 counts of access device fraud. On the day of sentencing, the state filed a habitual offender bill charging the defendant as a multiple felony offender. The defendant appealed, and the court of appeal subsequently vacated the multiple offender adjudication and sentence and remanded the case for further proceedings. At the time of the habitual offender hearing, the defendant had already served 23 months of a three year-sentence and was on parole. The defendant appealed, and the court of appeal determined that the trial court was precluded from imposing a multiple offender sentence after the defendant had completed the underlying sentence. The supreme court determined that “there is no reason for this court to jurispruden-tially provide a bright line deadline by which the habitual offender proceeding must be completed,” reversed the court of appeal’s decision, and reinstated the defendant’s adjudication as a fourth-felony offender.

When the instant case was remanded to the trial court, the judge commented that “everybody dropped the ball,” and that this case “just |f,slipped through the cracks.” Even though the trial court accidentally failed to sentence the defendant on the ecstasy charge, pursuant to La. R.S. 15:529.1, a habitual offender bill may be filed against a defendant who has been convicted of a felony at any time, either after conviction or sentence. In the instant case, the defendant was convicted of possession of ecstasy and distribution of cocaine. However, he was never sentenced on the possession of ecstasy conviction. Relying on this statute, the state was permitted to wait until he was sentenced for the possession of ecstasy conviction before filling the habitual offender bill. Further, the defendant received notice that he would be billed as a habitual offender when the state stated in open court, immediately after the defendant was convicted, that it was filing a bill of information to have him adjudicated a fourth-felony habitual offender.

We further find that the instant life imprisonment sentence is legal. The court in State v. Dorthey, 623 So.2d 1276 (La.1993), determined that if the trial court finds, at the time the defendant is ultimately sentenced, that the punishment mandated by La. R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounted to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial court has the option, indeed the duty, reduce such sentence to one that would not be constitutionally excessive. Pursuant to La. R.S. 40:966(C), possession of ecstasy carries a sentence up to 10 years. Two of the defendant’s prior felonies were punishable by imprisonment for 10 years or more. Due to the defendant’s extensive criminal history, the trial court had 17a duty to sentence the defendant to life imprisonment. La. R.S. 15:529.1 (A)(4)(b).

Since the defendant is already serving a mandatory life sentence for the distribution of cocaine conviction, the imposition of this additional life imprisonment sentence will have no effect on him. The trial court judge labeled this case as “one of the beating dead horse syndromes we have.” We agree. This assignment of error is without merit.

CONCLUSION

The defendant’s second adjudication as a fourth felony habitual offender and the accompanying sentence of life imprisonment without benefits are affirmed.

AFFIRMED.

      . The possession of ecstasy count was not included in the habitual offender proceeding, and the trial court did not impose a sentence for that charge.

      . While the caption of this bill charged Dukes with being a fifth-felony offender, he was substantively charged as a fourth-felony offender. The bill lists four prior felony convictions in addition to the instant conviction for possession of a Schedule I CDS, ecstasy. However, two of his crimes were committed on the same day and prior to October 19, 2004. Therefore, they are treated as one felony conviction, such that the defendant is only a fourth-felony offender.
      Furthermore, the state did not include as a predicate offense the defendant’s conviction for distribution of a Schedule II CDS, cocaine. Had the state done so, then the defendant could have been adjudicated a fifth-felony offender. However, the state may have intentionally omitted this offense from the bill of information because Dukes would have received the same sentence under La. R.S. 15:529.1, had he been adjudicated as either a fourth- or fifth-felony offender.