author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana v. Everett WILLIAMS.
    No. 14-KA-40.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 24, 2014.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Matthew Caplan, Thomas Sanderson, Vincent J. Pa-ciera, Jr., Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney At Law, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   ROBERT A. CHAISSON, Judge.

| gin this appeal, defendant, Everett Williams, asserts that his criminal convictions should be reversed and a new trial granted based on improper prosecutorial comments that prejudiced the jury and contributed to the guilty verdicts. For the reasons that follow, we find no merit to defendant’s arguments. Accordingly, we affirm his convictions and sentences; however, we remand the matter for correction of an error patent as noted herein.

PROCEDURAL HISTORY

On July 22, 2013, defendant proceeded to trial on the following charges: armed robbery of Vincent Davis, in violation of La. R.S. 14:64 (count one); attempted armed robbery of Donika Jackson, in violation of La. R.S. 14:27 and 14:64 (count two); aggravated battery of Vincent Davis and/or Alicia Bailey, in violation of La. R.S. 14:34 (count three); and three counts of possession of a |sfirearm by a convicted felon, in violation of La. R.S. 14:95.1 (counts six, eight, and nine). After considering the evidence presented, the twelve-person jury, on July 24, 2013, found defendant guilty as charged on all six counts.

On August 16, 2013, the trial court sentenced defendant to ninety-nine years imprisonment on count one, forty-five years imprisonment on count two, and ten years imprisonment each on counts three, six, eight, and nine. The trial court specified that all counts were to be served at hard labor and concurrently with one another. In addition, the trial court ordered the sentences on counts one, two, six, eight, and nine to be served without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

FACTS

This case arises from a robbery and shooting that occurred on January 18, 2012, at a residence in Harvey on the west bank of Jefferson Parish. At the time of the incident, Vincent Davis lived at the house with his mother, Alicia Bailey, and his grandmother, Anna Davis. Donika Jackson, Mr. Davis’s girlfriend, was also present at the house at the time of the occurrence. Each of these four individuals testified at trial.

During the evening hours of January 18, 2012, Mr. Davis and Ms. Jackson were watching television in his bedroom. At about 8 or 9 p.m., Mr. Davis received a phone call from “Mar,” subsequently identified as co-defendant Jamar Owens, who wanted to buy some movies from him. • At trial, Mr. Davis explained that he éarned money by selling black market DVDs and CDs, that he usually sold eight DVDs for twenty dollars, and that he had conducted business with Mar on one previous occasion.

14After the phone call from Mar, Mr. Davis left the residence to go buy some food; however, when he went outside, Mar was waiting for him. The two engaged in conversation, and Mar gave Mr. Davis twenty dollars for the DVDs. Although it appeared that Mar was alone, Mr. Davis noticed that there was a car parked down the street. Mr. Davis recognized the car because he had observed Mar in the car previously, along with the other men involved in the incident.

While still outside of the residence, Mar produced a gun, placed it in Mr. Davis’s face, and apparently took back the money he had given Mr. Davis for the movies. Mar struck Mr. Davis in the head with a gun, and thereafter, a second perpetrator hit Mr. Davis. These two individuals, along with a third attacker, then forced Mr. Davis inside his house and made him lie on the floor in front of the doorway by the den area.' The perpetrators demanded money, and according to Mr. Davis, they took “some money” from him, although he did not know how much.

At some point during this encounter, a dark-skinned black man, subsequently identified as defendant, entered Mr. Davis’s bedroom, placed a “big gun” to Ms. Jackson’s head, told her to get up, and demanded more money. Mar also came into the bedroom and placed a gun to Ms. Jackson’s head. After the two repeatedly questioned Ms. Jackson about the money, Mar returned to the den area where Mr. Davis was still lying on the floor. Mar and the third perpetrator kept hitting Mr. Davis in the head while defendant searched the bedroom.

Ms. Bailey and Ms. Davis, who were in their bedrooms, heard a noise and went to the back of the house to investigate. Upon seeing the two women, Mar and the other perpetrator in the room with Mr. Davis ran out the door. Defendant then emerged from Mr. Davis’s bedroom with a gun and fired two shots as he ran from the house. The gunfire hit and injured Ms. Bailey and Mr. Davis. After defendant fled, Ms. Jackson called 9-1-1.

1 r,Sergeant Charles Lee of the Jefferson Parish Sheriffs Office responded to the call, and upon his arrival, he secured the scene, conducted preliminary interviews with the victims, and assisted in the collection of evidence, which included the recovery of two spent casings, projectile fragments, and a Samsung burgundy cell phone battery cover. Following this initial involvement, Sergeant Lee turned the investigation over to Detective Bruce Ver-rette of the Jefferson Parish Sheriffs Office.

During the course of his investigation, Detective Verrette was provided with three nicknames of possible suspects, including “Mar” and “Tater.” In addition, Detective Verrette obtained statements from the victims who had arrived home from the hospital. Based on the information gathered, Detective Verrette developed defendant, Jamar Owens, and Isaac Williams as suspects and thereafter presented photographic lineups of these suspects to the victims. Ms. Jackson positively identified defendant as the individual who held a gun to her head and who shot Ms. Bailey and Mr. Davis. Ms. Jackson also positively identified co-defendant Owens as the person who held a gun to her head and who hit Mr. Davis in the head with a gun. Likewise, Mr. Davis positively identified defendant as the person who shot him and his mother, Alicia Bailey. Further, he positively identified Owens as the individual who called him in reference to the DVDs.

After these positive identifications of defendant and co-defendant Owens, Deputy Verrette obtained warrants for their arrests. They were both arrested on February 7, 2012. Following defendant’s arrest, police officers executed a search warrant at his Marrero residence. As a result of the search, the officers recovered a | sGlock .40 caliber semi-automatic pistol and a Springfield Armory .45 caliber semi-automatic pistol.

Elaine Schneida, an expert in the field of forensic DNA analysis, testified that she received swabs from the two semi-automatic pistols recovered from defendant’s residence and a swab from defendant and Mr. Owens. Based on her testing, Ms. Schneida was unable to exclude defendant as a possible contributor to the DNA found on both pistols. She explained that 99.9 percent of the Caucasian, African-American and Hispanic population could be excluded; however, defendant could not be excluded.

DENIAL OF MOTION FOR MISTRIAL

In his sole assigned error, defendant contends that the trial court improperly denied his motion for mistrial, which was based on the prosecutor’s argument to the jury that the defendants had the responsibility to call a witness. Specifically, defendant complains about the prosecutor’s comment during rebuttal argument that defendants had Vincent Bailey under subpoena. Mr. Bailey, the father of Vincent Davis, provided the police with the nicknames of the subjects, although he did not live at the residence and,was not present at the time of the incident.

After closing arguments by defense counsel, the State, in its rebuttal argument, stated as follows:

I don’t know if Ms. Sheppard and Mr. Louque [defense counsel] want me to bring in everybody in the neighborhood, .... I don’t know if they want me to bring everybody in, but it is not our obligation. We were not asked to do that. We are asked to prove the elements of each of the crimes beyond a reasonable doubt. We have done that over the course of the last two days.
Mr. Louque and Ms. Sheppard had Mr. Bailey under subpoena. They could have—

17Pefense counsel objected and requested a mistrial on the grounds that the prosecutor’s argument violated defendant’s rights to not testify and to not present a defense. In response, the prosecutor explained that he was only responding to defendant’s arguments that Mr. Bailey was under the State’s control and that the State could have presented him as a witness. The trial court denied defense counsel’s request for a mistrial and admonished the jury as follows:

Ladies and gentlemen, as we have told you during voir dire, as the attorneys have stressed, the defendants do not have the burden of proof. They don’t have to call any witnesses. They don’t have to produce any evidence. The burden is always upon the State of Louisiana to prove the elements of this crime, to prove each and every element of the crime beyond a reasonable doubt. It is not up to the defense. It is totally up to the State.
The last comment made about the defense calling witnesses, they don’t have to call anyone. They don’t have to subpoena anyone. Any mention about subpoenas of witnesses that the defense may or may not have used or called, that’s not evidence; and when you go in the back to deliberate, you are only to base your deliberations on what you saw and heard from the witness stand, okay.

Defendant now seeks review of the trial court’s denial of his motion for a mistrial. Defendant argues that a mistrial was warranted because the State’s reference about having Vincent Bailey under subpoena shifted the burden of proof to defendant and highlighted his failure to take the stand. Further, defendant asserts that the admonishment given by the trial court was insufficient to minimize the prejudice caused by the prosecutor’s comment. We find no merit to defendant’s arguments.

A mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to the defendant that deprives him of a reasonable expectation of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be Isdisturbed absent an abuse of that discretion. State v. Davis, 12-512 (La.App. 5 Cir. 4/24/13), 115 So.3d 68, 79, writ denied, 13-1205 (La.11/22/13), 126 So.3d 479.

The prosecutor has considerable latitude in making closing arguments; however, this latitude is not without limits. State v. Greenup, 12-881 (La.App. 5 Cir. 8/27/13), 123 So.3d 768, 776, unit denied, 13-2300 (La.3/21/14), 135 So.3d 617; State v. Uloho, 04-55 (La.App. 5 Cir. 5/26/04), 875 So.2d 918, 927, writs denied, 04-1640 (La.11/19/04), 888 So.2d 192 and 08-2370 (La.1/30/09), 999 So.2d 753.

La.C.Cr.P. art. 774 defines the scope of argument and rebuttal:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

The trial judge has broad discretion in controlling the scope of closing arguments. A conviction will not be reversed due to improper remarks during closing arguments unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Greenup, 123 So.3d at 775-76.

In State v. Uloho, supra, the defendant raised the same argument asserted herein. In that case, during closing arguments, defense counsel argued that the State failed to call certain witnesses. During rebuttal argument, the prosecutor commented that defense counsel had the same subpoena power as the State. The trial court overruled the defendant’s objection. On appeal, the defendant contended that “the trial court erred in allowing the State to refer to defendant’s 19subpoena power in rebuttal because the remarks misled the jury into believing that defendant had the burden of proving her innocence.”

Considering the prosecutor’s remarks in context, this Court determined that the prosecutor’s comments in rebuttal regarding the defendant’s subpoena power were in response to the defendant’s remarks. In addition, this Court noted that the trial judge instructed the jury that the opening statements and closing arguments of the attorneys were not to be considered evidence and that the defendant was not required to call any witnesses or produce any evidence. Therefore, the trial court did not err in overruling the defendant’s objections. State v. Uloho, 875 So.2d at 928.

Likewise, in the present case, the prosecutor’s rebuttal’was in response to defense counsel’s argument. During closing arguments, defense counsel argued that the State failed to present the testimony of Mr. Bailey, who provided the police officers with the nicknames of the offenders. Defense counsel invited the jury to disbelieve the State witnesses and argued that Mr. Bailey instructed the State’s witnesses to identify defendant as the offender of these crimes. Defense counsel further stated Mr. Bailey would be easy to find and present in court because he was the father of the victim, Mr. Davis. In addition, defense counsel argued that the State failed to prove these charges beyond a reasonable doubt because they failed to present the testimony of Mr. Bailey.

In rebuttal, the State argued that it was not obligated to present every witness desired by the defense. The State explained that it was required to prove the elements of the crime beyond a reasonable doubt and argued that it had accomplished that over the course of the trial. The State asserted that the defense had Mr. Bailey under subpoena. Considering the prosecutor’s remarks in context, we find that the prosecutor’s comments in rebuttal were in response to defense ¡^counsel’s remarks during closing argument, and therefore, a mistrial was not warranted.

In this assigned error, defendant further argues that a mistrial was warranted because the prosecutor’s remark was an oblique reference to defendant’s failure to testify. In State v. Bolden, 05-0749 (La.App. 3 Cir. 4/17/96), 680 So.2d 6, 35, writ denied, 96-1272 (La.11/22/96), 683 So.2d 286, a similar argument was considered and rejected by the appellate court. In that case, the court held that rebuttal argument by the prosecution which referenced the defendant’s subpoena power did not constitute any reference to the defendant’s failure to testify or to present a defense. The appellate court further noted that the State’s remark merely answered the defendant’s closing arguments.

Likewise, in State v. Banks, 627 So.2d 756, 758 (La.App. 2 Cir.1993), the court concluded that the defendant was not entitled to a mistrial based on the State’s comment, during rebuttal argument, on the defense’s failure to call a certain witness to testify. The court found that the prosecutor’s remark constituted neither a direct nor an indirect reference to the defendant’s failure to testify, but rather addressed the defendant’s theory of defense.

Agreeing with the rationale in these cases, we find that the State’s comment during rebuttal about defendant’s subpoena power did not constitute either a direct or an indirect reference to defendant’s failure to testify, and therefore, a mistrial was not warranted under the mandatory mistrial provisions of La.C.Cr.P. art. 770 or the discretionary mistrial provisions of La.C.Cr.P. art. 771.

We further note the trial court admonished the jury that the prosecutor’s comments regarding the subpoena power of the defense was not evidence and that defendant was not required to call any witnesses or produce any evidence. The judge further admonished the jury that the State had the burden of proof and not |nthe defense. In addition, during the final jury charges, the trial judge instructed the jury that the defendants are not required to prove their innocence, that the defendants are not required by law to call any witnesses or produce any evidence, and that the burden is always on the State to prove defendants’ guilt beyond a reasonable doubt. The trial court further instructed the jury that closing arguments are not to be considered as evidence.

In light of the jurisprudence discussed herein and considering the prosecutor’s remarks in context, we find that the trial court did not abuse its discretion in denying defendant’s motion for mistrial. Accordingly, the arguments raised by defendant in this assigned error are without merit.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 837 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals an error in the “State of Louisiana Uniform Commitment Order,” insofar as the dates of the offenses. While the uniform commitment order correctly reflects the offense date of February 7, 2012, for the charges of possession of a firearm by a convicted felon, it fails to reflect the offense date of January 18, 2012, for the armed robbery, attempted armed robbery, and aggravated battery charges.

This Court has previously remanded a case for correction of the uniform commitment order in its error patent review. State v. Lyons, 13-564 (La.App. 5 Cir. 1/31/14), 134 So.3d 36. Therefore, we direct the trial court to make the appropriate entry reflecting this additional offense date and direct the Clerk of Court to transmit the original of the corrected uniform commitment order to the officer in charge of the institution to which defendant has been sentenced and the Department of Correction’s Legal Department. See La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-244 (La.9/15/06), 937 So.2d 846; State v. Lyons, 134 So.3d at 41.

For the reasons set forth herein, we affirm defendant’s convictions and sentences. The matter is remanded for correction of an error patent as noted herein.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . Co-defendant Jamar Owens proceeded to trial with defendant and was convicted of five criminal charges. His appeal is currently pending before this Court.

      . Vincent Bailey, the father of Vincent Davis, provided the police with the nicknames of the suspects.

      . Although Mr. Davis did not initially provide police with the names of the perpetrators, he testified at trial that he recognized all three of them and knew them by their nicknames. He admitted that at first, he did not cooperate with police and told them that he only saw the face of one perpetrator, Mar. His family subsequently convinced him to cooperate with police, at which time he gave a statement and made positive identifications of defendant and Owens in photographic lineups.

      . At trial, in reference to the possession of firearms charges, the State introduced defendant’s certified conviction records and stipulated that his records showed that he was convicted in Jefferson Parish on May 5, 2010, for attempted armed robbery and aggravated battery, and on November 15, 2007, for possession of cocaine.

      . Defendant also filed a motion for new trial in which he asserted, in part, as follows: "The state erred in suggesting in- its closing argument that the defense had any responsibility to call any witnesses at this trial.” The trial court denied defendant's motion for new trial.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Jamar E. OWENS.
    No. 14-KA-41.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 24, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Matthew Caplan, Thomas Sanderson, Vincent J. Paciera, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/App ellee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, LA, for DefendanfyAppel-lant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   ROBERT A. CHAISSON, Judge.

12In this appeal, defendant, Jamar Owens, asserts that his criminal convictions should be reversed and a new trial granted based on improper prosecutorial rebuttal argument and the improper admission of recorded telephone calls from the Jefferson Parish Correctional Center. For the reasons that follow, we find no merit to defendant’s arguments. Accordingly, we affirm his convictions and sentences; however, we remand the matter for correction of errors patent as noted herein.

PROCEDURAL HISTORY

On July 22, 2013, defendant proceeded to trial in Jefferson Parish on the following charges: armed robbery of Vincent Davis, in violation of La. R.S. 14:64 (count one); attempted armed robbery of Donika Jackson, in violation of La. R.S. 14:27 and 14:64 (count two); aggravated battery of Vincent Davis and/or Alicia Bailey, in violation of La. R.S. 14:34 (count three); and two counts of possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (counts five and Lseven). After considering the evidence presented, the twelve-person jury, on July 24, 2013, found defendant guilty as charged on all five counts.

On August 16, 2013, the trial court sentenced defendant to ninety-nine years imprisonment on count one, forty-five years imprisonment on count two, and ten years imprisonment each on counts three, five, and seven. The trial court specified that all counts were to be served at hard labor and concurrently with one another. In addition, the trial court ordered the sentences on counts one, two, five, and seven to be served without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

FACTS

This case arises from a robbery and shooting that occurred on January 18, 2012, at a residence in Harvey on the west bank of Jefferson Parish. At the time of the incident, Vincent Davis lived at the house with his mother, Alicia Bailey, and his grandmother, Anna Davis. Donika Jackson, Mr. Davis’s girlfriend, was also present at the house at the time of the occurrence. Each of these four individuals testified at trial.

During the evening hours of January 18, 2012, Mr. Davis and Ms. Jackson were watching television in his bedroom. At about 8 or 9 p.m., Mr. Davis received a phone call from “Mar,” subsequently identified as defendant Jamar Owens, who wanted to buy some movies from him. At trial, Mr. Davis explained that he earned money by selling black market DVDs and CDs, that he usually sold eight DVDs for twenty dollars, and that he had conducted business with defendant on one previous occasion.

After the phone call from defendant, Mr. Davis left the residence to go buy some food. However, when he went outside, defendant was waiting for him. The |4two engaged in conversation, and defendant gave Mr. Davis twenty dollars for the DVDs. Although it appeared that defendant was alone, Mr. Davis noticed a car parked down the street. Mr. Davis recognized the car because he had observed defendant in the car previously, along with the other men involved in the incident.

While still outside of the residence, defendant produced a gun, placed it in Mr. Davis’s face, and apparently took back the money he had given Mr. Davis for the movies. Defendant struck Mr. Davis in the head with a gun, and thereafter, a second perpetrator hit Mr. Davis. These two individuals, along with a third attacker, then forced Mr. Davis inside his house and made him lie on the floor in front of the doorway by the den area. The perpetrators demanded money, and according to Mr. Davis, they took “some money” from him, although he did not know how much.

At some point during this encounter, a dark-skinned black man, subsequently identified as co-defendant Everett Williams, entered Mr. Davis’s bedroom, placed a “big gun” to Ms. Jackson’s head, told her to get up, and demanded more money. Defendant also came into the bedroom and placed a gun to Ms. Jackson’s head. After the two repeatedly questioned Ms. Jackson about the money, defendant returned to the den area where Mr. Davis was still lying on the floor. Defendant and the third perpetrator kept hitting Mr. Davis in the head while Williams searched the bedroom.

Ms. Bailey and Ms. Davis, who were in their bedrooms, heard a noise and went to the back of the house to investigate. Upon seeing the two women, defendant and the other perpetrator in the room with Mr. Davis ran out the door. Williams then emerged from Mr. Davis’s bedroom with a gun and fired two shots as he ran from the house. The gunfire hit and injured Ms. Bailey and Mr. Davis. After Williams fled, Ms. Jackson called 9-1-1.

| r,Sergeant Charles Lee of the Jefferson Parish Sheriffs Office responded to the call, and upon his arrival, he secured the scene, conducted preliminary interviews with the victims, and assisted in the collection of evidence, which included the recovery of two spent casings, projectile fragments, and a Samsung burgundy cell phone battery cover. Following this initial involvement, Sergeant Lee turned the investigation over to Detective Bruce Ver-rette of the Jefferson Parish Sheriffs Office.

During the course of his investigation, Detective Verrette was provided with three nicknames of possible suspects, including “Mar” and “Tater.” In addition, Detective Verrette obtained statements from' the victims who had arrived home from the hospital. Based on the information gathered, Detective Verrette developed defendant, whose nickname was “Mar,” Everett Williams, whose nickname was “Tater,” and Isaac Williams as suspects. He thereafter obtained photographic lineups of these suspects and presented the lineups to the victims. Ms. Jackson positively identified defendant as the person who held a gun to her head and who hit Mr. Davis in the head with a gun. Ms. Jackson also positively identified co-defendant Williams as the individual who held a gun to her head and who shot Ms. Bailey and Mr. Davis. Likewise, Mr. Davis positively identified defendant as the individual who called him in reference to the DVDs. Further, he positively identified Williams as the person who shot him and his mother, Alicia Bailey.

After these positive identifications of defendant and co-defendant Williams, Deputy Verrette obtained warrants for their arrests. They were both arrested on lfiFebruary 7, 2012. Following defendant’s arrest, police officers executed a search warrant at his Marrero residence. As a result of the search, the officers recovered one Romarm AK-47 semi-automatic rifle, one Professional Ordnance semi-automatic pistol, ammunition, and a burgundy Samsung cell phone with a missing battery cover.

After the State presented its case, defendant called several witnesses to testify on his behalf. Devon Thornton, defendant’s stepbrother, claimed ownership of the AK-47 that was found during the search of defendant’s Marrero residence. According to Mr. Thornton, he purchased the gun for himself two years ago from a pawn shop, and he also provided a bill of sale showing that he purchased the gun on October 26, 2011, from Top Dollar Pawn Shop.

Deputy Jimmy Stewart of the Jefferson Parish Sheriffs Office testified that he was present at the hospital when Mr. Davis was interviewed. According to Deputy Stewart, Mr. Davis stated that nothing was taken from him other than the twenty dollars he received for the DVDs.

Sergeant Charles Lee, who had previously testified on behalf of the State, was called back as a witness by defense counsel. Sergeant Lee testified that on the night of the incident, he spoke to Mr. Davis at the crime scene, and Mr. Davis provided the nickname, “Moan,” for the person who approached him that night. Further, at the time he wrote his report, Sergeant Lee was only aware of two suspects, “Moan,”- and another unknown individual.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant complains that the trial court erred in denying his motion for new trial which was based on alleged improper rebuttal 17argument by the prosecutor. Specifically, defendant contends that the prosecutor’s argument that defendants had Mr. Bailey under subpoena was an unfair and improper instance of burden shifting, that an admonition was not sufficient to cure the error, and that a new trial was warranted.

Mr. Bailey, the father of Vincent Davis, provided the police with the nicknames of the subjects, although he did not live at the residence and was not present at the time of the incident. During defense counsel’s closing arguments, he referenced Mr. Bailey several times, stating as follows:

We know Vincent Bailey is the person who gave all the other nicknames other than Moan that got this ball rolling. We know it came from Vincent Bailey who we know was not at the house. Where did Vincent Bailey get his information from? We don’t know because he wasn’t called as a witness, and I ask that you don’t consider any argument from Mr. Sanderson or Mr. Paciera that says we should have called him, because the judge is going to charge you that we don’t have to present any evidence. We don’t have to call Vincent Bailey to find out why or how he got the information. You can consider for yourselves whether or not he had any information that was helpful to the State they would have called him. The State also is going to tell you he had no good information to help the State, despite all the nicknames.

In addition, defense counsel mentioned Mr. Bailey numerous other times during closing argument and again commented that the State would have presented Mr. Bailey as a witness if he had any information helpful to the State.

After closing argument by defense counsel, the State, in its rebuttal argument, stated as follows:

I don’t know if Ms. Sheppard and Mr. Louque [defense counsel] want me to bring in everybody in the neighborhood, .... I don’t know if they want me to bring everybody in, but it is not our obligation. We were not asked to do that. We are asked to prove the elements of each of the crimes beyond a reasonable doubt. We have done that over the course of the last two days.
Mr. Louque and Ms. Sheppard had Mr. Bailey under subpoena. They could have—

| ^Defense counsel requested a mistrial on the grounds that defendant was under no obligation to call Mr. Bailey as a witness and that the prosecutor’s remark that the defense had Mr. Bailey under subpoena shifted the burden to defendant. The State explained that the prosecutor was only responding to defendant’s arguments that Mr. Bailey was under the State’s control and the State could have presented him as a witness. The trial court denied defense counsel’s request for a mistrial and admonished the jury as follows:

Ladies and gentlemen, as we have told you during voir dire, as the attorneys have stressed, the defendants do not have the burden of proof. They don’t have to call any wititesses. They don’t have to produce any evidence. The burden is always upon the State of Louisiana to prove the elements of this crime, to prove each and every element of the crime beyond a reasonable doubt. It is not up to the defense. It is totally up to the State.
The last comment made about the defense calling witnesses, they don’t have to call anyone. They don’t have to subpoena anyone. Any mention about subpoenas of witnesses that the defense may or may not have used or called, that’s not evidence; and when you go in the back to deliberate, you are only to base your deliberations on what you saw and heard from the witness stand, okay.

Following his conviction, defendant also raised this error in his motion for new trial, which was denied by the trial court. Defendant now seeks review of the trial court’s denial of his motion for a new trial asserting that the State’s improper rebuttal argument shifted the burden of proof to defendant. Defendant asserts that although the trial court admonished the jury after denying defendant’s motion for a mistrial, the admonishment was insufficient to cure the error and a new trial was warranted.

The prosecutor has considerable latitude in making closing arguments; however, this latitude is not without limits. State v. Greenup, 12-881 (La.App. 5 Cir. 8/27/13), 123 So.3d 768, 776, writ denied, 13-2300 (La.3/21/14), 135 So.3d 617; State v. Uloho, 04-55 (La.App. 5 Cir. 5/26/04), 875 So.2d 918, 927, writs denied, 04-1640 (La.11/19/04), 888 So.2d 192 and 08-2370 (La.1/30/09), 999 So.2d 753.

La.C.Cr.P. art. 774 defines the scope of argument and rebuttal as follows:
The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

The trial judge has broad discretion in controlling the scope of clpsing arguments. A conviction will not be reversed due to improper remarks during closing arguments unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Greenup, 123 So.3d at 775-76.

In State v. Uloho, supra, the defendant raised the same argument asserted herein. In that case, during closing arguments, defense counsel argued that the State failed to call certain witnesses. During rebuttal argument, the prosecutor commented that defense counsel had the same subpoena power as the State. The trial court overruled the defendant’s objection. On appeal, the defendant contended that “the trial court erred in allowing the State to refer to defendant’s subpoena power in rebuttal because the remarks misled the jury into believing that defendant had the burden of proving her innocence.”

Considering the prosecutor’s remarks in context, this Court determined that the prosecutor’s comments in rebuttal regarding the defendant’s subpoena power were in response to the defendant’s remarks. In addition, this Court noted that the trial judge instructed the jury that the opening statements and closing arguments of the attorneys were not to be considered evidence and that the defendant was not 110required to call any witnesses or produce any evidence. Therefore, the trial court did not err in overruling the defendant’s objections. State v. Uloho, 875 So.2d at 928.

Likewise, in the present case, the prosecutor’s rebuttal was clearly in response to defense counsel’s closing argument. In fact, in his brief, defendant’s appellate counsel acknowledges the comments made by defense counsel to the jury during closing argument that the State would have called Mr. Bailey if he had any information helpful to the State.

Moreover, we note that the trial court sufficiently admonished the jury that the prosecutor’s comment regarding the subpoena power of the defense was not evidence and that defendant was not required to call any witnesses or produce any evidence. The judge further admonished the jury that the State had the burden of proof and not the defense. In addition, during the final jury charges, the trial judge instructed the jury that the defendants are not required to prove their innocence, that the defendants are not required by law to call any witnesses or produce any evidence, and that the burden is always on the State to prove defendants’ guilt beyond a reasonable doubt. The trial court further instructed the jury that closing arguments are not to be considered as evidence.

In light of the jurisprudence discussed herein and considering the prosecutor’s remark in context, we find no error in the trial court’s denial of defendant’s motion for new trial. This assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, defendant contends that the trial court erred in denying his motion in limine seeking to prohibit the jury from hearing recorded telephone calls of defendant while he was incarcerated and in subsequently denying his motion for new trial predicated upon the same ground.

hiAfter being given the opportunity to listen to the telephone calls, defense counsel, on the final day of trial, made an oral motion in limine to exclude the recorded jail telephone conversations alleging a violation of defendant’s right to confrontation. Defense counsel did not object to defendant’s statements on the recordings, but contended that the statements of other parties were hearsay statements that implicated defendant, that those hearsay statements were extremely misleading, and that he was denied his right to confrontation by not being able to question these individuals.

In response, the State argued that jailhouse telephone conversations had been used in numerous other cases, that the statements made by other individuals did not implicate the hearsay rule or the Sixth Amendment right to confrontation, and that the statements were only used to give context to the admissions that defendant himself made. After listening to the arguments of counsel, the trial court took the matter under advisement and subsequently allowed an excised copy of the telephone conversations to be played for the jury.

Following his conviction, defendant filed a motion for new trial alleging as error the trial court’s denial of his motion in limine to exclude the telephone conversations. The trial court denied defendant’s motion for new trial, and defendant now challenges the denial of his motion in limine and the subsequent denial of his motion for new trial.

Defendant argues that the recorded jailhouse telephone conversations should not have been allowed into evidence because the information contained therein was inadmissible hearsay and denied defendant’s right to confront the other party to the conversations at trial. Defendant seems to particularly complain about the portions of the conversations indicating that a gun was found in his room, that he was | ^looking for someone to take his charge, and that he would receive ten years imprisonment. For the reasons that follow, we find no merit to these arguments.

The Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to confront witnesses against him. State v. Jackson, 03-883 (La.App. 5 Cir. 4/27/04), 880 So.2d 841, 852, writ denied, 04-1399 (La.11/8/04), 885 So.2d 1118. The Confrontation Clause bars the admission of an out-of-court “testimonial” statement against a criminal defendant unless the declarant is unavailable and the defendant had a proper opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

While the Crawford Court specifically declined to define “testimonial,” it recognized that, at a minimum, testimonial statements include “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Crawford v. Washington, 124 S.Ct. at 1374. The Supreme Court stated that “testimony” is “[a] solemn declaration or affirmation made for the purpose of establishing of proving some fact.” Crawford v. Washington, 124 S.Ct. at 1364.

The Sixth Amendment bestows a right of confrontation to confront witnesses who “bear testimony” against him. According to the Supreme Court, an accuser making a formal statement to government officials bears testimony in a sense that a person making a casual remark to an acquaintance does not. Some examples of testimonial statements include affidavits, custodial examinations, depositions, prior testimony, confessions, or similar pretrial statements that declarants would reasonably expect to be used in a prosecution. Crawford v. Washington, 124 S.Ct. at 1364; State v. Lang, 13-21 (La.App. 5 Cir. 10/9/13), 128 So.3d 330, 339, writ denied, 13-2614 (La.5/2/14), 138 So.3d 1244; State v. Leonard, 05-42 (La.App. 5 Cir. 7/26/05), 910 So.2d 977, 989, writ denied, 06-2241 (La.6/1/07), 957 So.2d 165.

By contrast, non-testimonial statements do not cause the declarant to be a witness within the meaning of the Sixth Amendment and thus are not subject to the Confrontation Clause. Davis v. Washington, 126 S.Ct. at 2273. Phone calls from an inmate to another private citizen are generally non-testimonial. In State v. Norah, 12-1194 (La.App. 4 Cir. 12/11/13), 131 So.3d 172, 190, writs denied, 14-0084 (La.6/13/14), 140 So.3d 1188 and 14-0082 (La.6/20/14), 141 So.3d 287, the appellate court discussed the nature of inmate calls as follows:

Phone calls from an inmate to another private citizen are generally ‘non-testimonial.’ These conversations are simply too attenuated in kind from a police interrogation. While inmates are warned that their calls are being recorded, the statements of inmates and those with whom they are speaking are ‘non-testimonial’ in that they are not attempting to prove some fact for introduction at trial such as when the police interrogate a suspect. These statements are not made ‘to a police officer, during the course of an investigation, or in a structured setting designed to elicit responses that are intended to be used to prosecute him.’ Castro-Davis, 612 F.3d at 65. These calls were conversations amongst friends, and in no way could be considered testimonial, [footnote omitted]

In State v. Massey, 11-357 (La.App. 5 Cir. 3/27/12), 91 So.3d 453, writ denied, 12-991 (La.9/21/12), 98 So.3d 332, the trial court allowed a recorded telephone conversation of the co-defendant, who was incarcerated at the time, and his father to be admitted at trial. During the conversation, the co-defendant instructed his father to offer a witness five hundred dollars to make a statement that he was unable to identify the co-defendant and his brother as the persons who committed the crime. On appeal, the defendant complained that his right of confrontation was violated when he did not have the opportunity to cross-examine the co-defendant. This Court found that the recorded telephone conversation was 114made under circumstances that were non-testimonial in nature and thus did not violate the defendant’s Sixth Amendment right to confrontation and cross-examination of the declar-ant. State v. Massey, 91 So.3d at 479.

Likewise, in the present case, we find that the recorded telephone conversations are non-testimonial under Crawford and do not violate defendant’s right of confrontation. The statements contained in the recorded' telephone conversations were spoken in casual conversation between defendant and friends and/or family members. Additionally, the parties had no expectation that their statements would be used in a prosecution, as they spoke informally and without coercion. See State v. Lang, 128 So.3d at 338-40.

Moreover, in addition to being non-testimonial, the recorded telephone conversations do not constitute hearsay as they were- not offered to prove the truth of the matter asserted. La.C.Cr.P. art. 801(C). Rather, the statements of the persons other than defendant were offered to provide a context for defendant’s portion of the conversation.

Based on the foregoing, we find that the recorded jailhouse conversations were properly admitted into evidence, and thus, we find no merit to defendant’s argument that the trial court erred in denying his motion in limine and his subsequent motion for new trial. This assigned error is likewise without merit.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals two errors in the “State of Louisiana Uniform Commitment Order” with regard to the date of the offense and the adjudication date. First, while the uniform commitment order correctly reflects the offense date of February 7, 2012, for the charges of possession of a firearm by 11sa convicted felon, it fails to reflect the offense date of January 18, 2012, for the armed robbery, attempted armed robbery, and aggravated battery charges. In addition, the uniform commitment order incorrectly reflects the adjudication date as June 17, 2013; the actual adjudication date is July 24, 2013.

This Court has previously remanded a case for correction of the uniform commitment order in its error patent review. State v. Lyons, 13-564 (La.App. 5 Cir. 1/31/14), 134 So.3d 36. Therefore, we direct the trial court to make the appropriate entries reflecting these changes and direct the Clerk of Court to transmit the original of the corrected uniform commitment order to the officer in charge of the institution to which defendant has been sentenced and the Department of Corrections’ Legal Department. See La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-244 (La.9/15/06), 937 So.2d 846; State v. Lyons, 134 So.3d at 36.

For the reasons set forth herein, we affirm defendant’s convictions and sentences. The matter is remanded for correction of errors patent as noted herein.

CONVICTIONS AND SENTENCES AFFIRMED; MATTER REMANDED WITH INSTRUCTIONS.

      . Co-deféndant Everett Williams proceeded to trial with defendant and was convicted of six criminal charges. His appeal is currently pending before this Court.

      . Vincent Bailey, the father of Vincent Davis, provided the police with the nicknames of the suspects.

      . Although Mr. Davis did not initially provide police with the names of the perpetrators, he testified at trial that he recognized all three of them and knew them by their nicknames. He admitted that at first, he did not cooperate with the police and told them that he only saw the face of one perpetrator, Mar. His family subsequently convinced him to cooperate, at which time he gave a statement and made positive identifications of defendant and Williams in photographic lineups.

      . With regard to the charges of possession of a firearm by a convicted felon, the State offered a stipulation that defendant’s certified conviction record showed that he was convicted in Jefferson Parish on May 5, 2010, for attempted armed robbery.


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    STATE of Louisiana v. Freddy ORDONEZ.
    No. 14-KA-186.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 24, 2014.

      Thomas F. Daley, District Attorney, J. Philip Prescott, Jr., Assistant District Attorney, LaPlace, Louisiana, for Appellant, The State of Louisiana.
    Ivan A. Orihuela, Ryan A. Creel, Attorneys at Law, Kenner, Louisiana, for Defendant, Freddy Ordonez.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

|aOn appeal, the State challenges the trial court’s grant of defendant’s motion to quash the bill of information. For the following reasons, we reverse and remand.

Facts and Procedural History

In this case, there has been no conviction so the limited information regarding the charged offense' was gleaned from the record, including testimony presented at the preliminary hearing. The record reflects that, on May 17, 2006, defendant was arrested for sexual battery of a juvenile, in violation of La. R.S. 14:43.1.

On January 22, 2007, the St. John the Baptist Parish District Attorney filed a bill of information charging defendant, Freddy Ordonez, with sexual battery of a juvenile on or about May 17, 2006, in violation of La. R.S. 14:43.1. On February 9, 2009, the State, which was unable to locate the victim, dismissed the prosecution.

On July 23, 2013, the State reinstituted prosecution of defendant on the charged offense of sexual battery of a juvenile. On September 5, 2013, defendant entered a plea of not guilty.

[sOn October 31, 2013, defendant filed a motion to quash the bill of information. On December 16, 2013, the State objected to defendant’s motion to quash. On January 21, 2014, the trial court granted defendant’s motion to quash. On February 11, 2014, the State filed a motion to appeal that ruling, which was granted that day.

Law and Argument

In its sole assignment of error, the State of Louisiana argues that the trial court erred in granting defendant’s Motion to Quash. Specifically, the State avers that defendant’s right to a speedy trial was not violated because the reason for delay in prosecution was not within its control but rather due to the unavailability of the juvenile victim. The State asserts that the length of delay was unavoidable in this case where the family of the juvenile victim moved away from the area. The State also points out that the charges were reinstituted within the 30-year prescriptive period from the date the minor victim attained the age of 18, as allowed by La. C.Cr.P. art. 571.1. The State further notes that defendant failed to assert a violation of his speedy trial right until he filed his motion to quash in October of 2013, and also failed to show that he was prejudiced.

Defendant contends that the State violated his right to a fair and speedy trial by waiting four and one half years to reinsti-tute charges against him. Defendant argues that the length of delay was presumptively prejudicial and the reason for delay was to allow the State a lengthy continuance. Further, defendant maintains that he was clearly prejudiced by the loss of evidence during the delay.

On January 21, 2014, the trial court granted defendant’s motion to quash. In its written judgment, the trial court found that defendant carried his burden in showing that the State violated his right to a speedy trial. In particular, the trial court found that the length of delay of nearly eight years between the date of arrest Land the anticipated trial date was presumptively prejudicial. The trial judge further noted that the State’s inability to locate a witness was insufficient to justify the nearly eight-year delay and that defendant’s case was impaired and prejudiced by the lengthy delay between the dismissal and the reinstitution of the charges. It is from this ruling that the State now appeals.

La.C.Cr.P. art. 691 confers on the district attorney the power to dismiss a formal charge, in whole or in part, and provides that leave of court is not needed. La.C.Cr.P. art. 693 expressly provides, subject to narrowly delineated exceptions, that dismissal of a prosecution “is not a bar to a subsequent prosecution....”

La.C.Cr.P. art. 576, which particularly addresses the reinstitution of charges, provides that:

When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney with the defendant’s consent, ... a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer.
A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.

At the time of the offense, La. 14:43.1(C) was a felony not necessarily punishable at hard labor. Generally, except as provided in La.C.Cr.P. arts. 571 and 571.1, the State has to institute prosecution within four years for a felony not necessarily punishable by imprisonment at hard labor. La. C.Cr.P. art. 572(A)(2).

At the time of the offense, however, La.C.Cr.P. art. 571.1 provided that:

[T]he time within which to institute prosecution of the following sex offenses: sexual battery (R.S. 14:43.1) ... regardless of whether |fithe crime involves force, serious physical injury, death, or is punishable by imprisonment at hard labor shall be thirty years. This thirty-year period begins to run when the victim attains the age of eighteen.

[Emphasis added.]

A court’s resolution of motions to quash in cases where the district attorney entered a nolle prosequi and later reinsti-tuted charges should be decided on a case-by-ease basis. State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, 1209. In those cases “where it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant a motion to quash and an' appellate court can appropriately reverse a ruling denying a motion to quash in such a situation.” Id.

In this case, however, there is no indication that the district attorney was flaunting his authority at the expense of the defendant. Rather, the record indicates the State entered a nolle prosequi because the juvenile victim could not be located. Additionally, we note that the prosecutor dismissed the prosecution without requesting a continuance and alerted defendant that “if the victim is located, the charges may be reinstated at a later date.” Clearly, in this case, the dismissal of the prosecution was not for the purpose of avoiding the two-year time limitation for commencement of trial established by La.C.Cr.P. art. 578.

Nevertheless, defendant argues, and the trial court found, that defendant’s | ^constitutional right to a speedy trial was violated. An appellate court reviews a trial court’s grant of defendant’s motion to quash for an abuse of the trial judge’s discretion. State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, 1206; State v. Chairs, 12-363 (La.App. 5 Cir. 12/27/12), 106 So.3d 1232, 1252 n. 10, writ denied, 13-0306 (La.6/21/13), 118 So.3d 413.

The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Article 1, § 16 of the Louisiana Constitution. The right attaches when an individual becomes an accused by formal indictment or by bill of information, or by arrest and actual restraint. State v. Myers, 584 So.2d 242, 250 (La.1991), unit denied, 588 So.2d 105 (La.1991), cert. denied, 504 U.S. 912, 112 S.Ct. 1945, 118 L.Ed.2d 550 (1992). The underlying purpose of this constitutional right is to protect a defendant’s interest in prolonged pretrial incarceration, limiting possible impairment of his defense, and minimizing his anxiety and concern. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101 (1972).

The Supreme Court has set forth the following four factors for courts to consider in determining whether a defendant’s right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay; (3) the accused’s assertion of his right to speedy trial; and (4) the prejudice to the accused resulting from the delay. Id. at 531-532, 92 S.Ct. at 2192-93. Unless the length of delay is presumptively prejudicial, there is no necessity for inquiry into the other factors. Id. at 530-531, 92 S.Ct. at 2192. The specific circumstances of a case will determine the weight to be ascribed to the length of and reason for the delay because “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Id.

17Thus, our first inquiry is whether the delay was presumptively prejudicial. In the instant matter, the record reflects that the offense was committed on May 17, 2006. The State filed the original bill of information on January 22, 2007, approximately eight months after the date of the offense. On February 9, 2009, the State dismissed the case due to the unavailability of the victim. The State reinstituted the charge on July 23, 2013, approximately four years and five months after the dismissal of the first prosecution. On October 31, 2013, defendant moved to quash the bill of information.

In its written judgment, the trial court found that the length of delay was presumptively prejudicial because “this case has been ongoing for a period of nearly eight years from the date of arrest and the anticipated date of trial.” The trial court erred in its calculation.

When calculating the time delay in a constitutional speedy claim, the United States Supreme Court has said, “under the rule of MacDonald, when defendants are not incarcerated or subjected to other substantial restrictions on their liberty, a court should not weigh that time towards a claim under the Speedy Trial Clause.” United States v. Loud Hawk, 474 U.S. 302, 312, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (citing United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982)). Further, “when no indictment is outstanding, only the ‘actual restraints imposed by arrest and holding to answer a criminal charge ... engage the particular protections of the speedy trial provision of the Sixth Amendment.’ ” Loud Hawk, 474 U.S. at 310, 106 S.Ct. 648, 88 L.Ed.2d 640. See also State v. Mathews, 13-0525 (La.11/15/13), 129 So.3d 1217, 1219.

Here, the record reflects that the original bill of information was filed on January 22, 2007, and defendant’s motion to quash was filed on October 31, 2013, which is a time period of 81 months, or six years and nine months. However, the [RState dismissed .the original bill of information on- February 9, 2009, and reinstated the prosecution on July 28, 2013, which is 53 months or four years and five months. Using the paradigm set forth by the Louisiana Supreme Court in Mathews, supra, the total delay between first date that prosecution was instituted and the filing of the motion to quash, excepting the period when defendant was not answerable to a criminal charge, was 28 months, or two years and four months.

In this matter, the 28-month delay is not presumptively prejudicial. The record indicates the State entered a nolle prose-qui because the State, though numerous efforts were made, was unable to locate the juvenile victim. Further, the record reflects that, a few months after the juvenile victim turned 18, the victim contacted the district attorney’s office about this case and the State quickly reinstituted the prosecution.

Most importantly, the Louisiana Legislature enacted La.C.Cr.P. art, 571.1 to establish a longer period within which the State could institute prosecution where the victim is a juvenile. At the time of the charged offense and still today, when the victim of a sexual offense is a juvenile, the State has 30 years from the day that victim attains the age of 18 to institute prosecution for this offense.

In our case, the State instituted prosecution within one year of the victim turning eighteen and, thus, did not violate the time constraint imposed by statutory law. Because the delay is not presumptively prejudicial, we are not required to look further at the remaining three Barker factors. See also State v. Mathews, 129 So.3d at 1218-19 (per curiam) (15 and one-half months delay was not presumptively prejudicial and did not require an inquiry into the remaining three Barker factors); State v. Bell, 13-117 (La.9/27/13), 122 So.3d 1007 (per curiam) (defendant’s right to a speedy trial was not violated by the 30-month delay where defendant was shown to be an active party in delay, failed to object to ^continuances, and made no formal speedy trial claim until motion to quash).

Decree

For the foregoing reasons, we find that the district court abused its discretion in granting defendant’s motion to quash the bill of information. The judgment of the lower court is reversed; the matter is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . On the date of the offense, La. R.S. 14:43.1 read, “Whoever commits the crime of sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years.”

      . La.C.Cr.P. art. 571.1 was amended by Acts 2005, No. 186, § 1, which was effective on August 15, 2005.

      . Under La.C.Cr.P. art. 578(A)(2), trial should have begun within two years of the institution of the prosecution, which would have been on or before January 22, 2009. La.C.Cr.P. art. 580 provides, however, that the time limitation is suspended when a defendant files preliminary motions, including properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particulars. State v. Quinones, 03-907 (La.App. 5 Cir. 12/30/03), 864 So.2d 824, 827. The period is suspended until the ruling of the court, but in no case shall the State have less than one year after the ruling to commence trial. State v. Jones, 620 So.2d 341, 342 (La.App. 5 Cir.1993). Here, the record reflects that in 2007, defendant filed a motion to suppress and, in 2008, defendant moved to continue at least once, which suspended and/or interrupted the initial proceedings.