author: COOKS, Judge.

text:
    STATE of Louisiana v. Sean Bernard NEWTON.
    No. 12-509.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 13, 2013.

      John F. DeRosier, District Attorney, Carla S. Sigler, Karen C. MeLellan, Assistant District Attorneys, Lake Charles, LA, for Appellee, State of Louisiana.
    Theodore G. Hartman, Lake Charles, LA, for Defendant/Appellant, Sean Bernard Newton.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL and J. DAVID PAINTER, Judges.
   COOKS, Judge.

| .FACTS AND PROCEDURAL HISTORY

Defendant, Sean Bernard Newton, his brother, Brandon Newton, his cousin, Joshua Lambert, and three friends, Andre Broussard, Jarius Watson, and Marlon Kelly, left the Prien Lake Mall on the evening of March 27, 2010, in Defendant’s car and drove to a neighborhood behind the mall called “Brownsville” in anticipation of fighting with another gang of young men. The confrontation began at the mall, but the two groups were sent out of the mall by the security guards. Defendant had in his possession a handgun. Meanwhile, the victim, fourteen-year-old Alexus Rankins, and two of her friends were walking through the “Brownsville” neighborhood on their way home from the theater in the mall. Defendant drove around the neighborhood until he and his companions found the group of men they were arguing with at the mall. When the men approached the car, taunting Defendant, he fired a single shot into the group. The bullet struck the victim in the head. She died two days later as result of the gunshot wound.

Defendant, Sean Bernard Newton, was indicted for one count of first degree murder, a violation of La.R.S. 14:30, one count of obstruction of justice, a violation of La. R.S. 14:130.1, and one count of inciting to riot, a violation of La.R.S. 14:329.2. A jury trial commenced on May 16, 2011. On May 24, 2011, the jury returned a guilty verdict on all charges. A presentence investigation report was ordered, and sentencing was set for July 20, 2011.

On July 19, 2011, Defendant filed a “Motion for a New Trial.” The motion was heard on July 20, 2011, and denied. Defendant waived all sentencing delays and was sentenced on the same date to life imprisonment without the benefit of probation, parole, or suspension of sentence on the first degree murder conviction, twenty years at hard labor on the obstruction of justice conviction, and six months in the parish jail on the conviction for inciting a riot. All sentences were ordered to |sbe served concurrently. Defendant did not file a motion to reconsider the sentences.

Defendant perfected a timely appeal. He alleges that his right to due process was violated pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) on three separate occasions. He also alleges ineffective assistance of trial counsel.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is one error patent and a procedural issue requiring discussion.

There was a misjoinder of offenses in the indictment. Louisiana Code of Criminal Procedure Article 493 provides for the joinder of offenses in a single indictment under limited circumstances if the offenses joined are triable by the same mode of trial.

In the present case, counts one and three, which are punishable at hard labor, are triable by a twelve-person jury, ten of whom must concur. La.Code Crim.P. art. 782. Count two is a misdemeanor triable by a judge only. La.Code Crim.P. art. 779(B). Therefore, pursuant to La.Code Crim.P. art. 493, counts one and three were properly joined in the indictment, but count two, the misdemeanor, was not.

However, Defendant did not file a motion to quash the bill of information on the basis of misjoinder of offenses as required by statute. La.Code Crim.P. art. 495. Accordingly, review of this error is waived.

There is also a procedural issue present. Because the misdemeanor charge is not triable by jury, the proper mode of appellate review for that offense is an application for writ of review, rather than an appeal. La.Code Crim.P. art. 912.1.

|Jn State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La.12/12/05), 917 So.2d 1084, this court severed a misdemeanor conviction from the defendant’s appeal of two felony convictions. This court ordered the defendant to file a writ of review regarding the misdemeanor conviction in compliance with the rules of court. This court noted that the defendant did not make any specific arguments regarding the misdemeanor conviction. Consequently, this court considered the notice of appeal as a notice to file a writ of review within thirty days of its opinion, if the defendant desired to seek review of the misdemeanor conviction.

In this case, the Defendant does not raise any assignment of error regarding the misdemeanor conviction. Therefore, following this Court’s holding in Turner, we will sever the misdemeanor conviction from the appeal and order Defendant to file a writ of review regarding the misdemeanor conviction in compliance with the Uniform Rules — Courts of Appeal 1-3, if he so desires.

ANALYSIS

Assignments of Error Numbers 1-3

In each of his first three assignments of error, Defendant alleges he suffered violations of his right to due process pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, when the State failed to disclose exculpating evidence pri- or to trial. He alleges the State failed to disclose inconsistent statements given by two witnesses, Joshua Lambert and Terri Brown, who testified at trial. He further contends the State failed to inform him that Jarius Watson was offered immunity in exchange for his testimony.

In State v. Harper, 10-356, pp. 8-12 (La.11/30/10), 53 So.3d 1263, 1269-71, the supreme court discussed the Brady principle, as follows:

In accordance with the due process clause of the Fourteenth Amendment to the United States Constitution, the State must disclose evidence which is favorable to the defense when “the evidence is Immaterial either to guilt or to punishment” or impeaches the testimony of a witness where “the ‘reliability [or credibility] of a given witness may well be determinative of guilt or innocence.’ ” Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97; Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). “[E]videnee is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985); see also, State v. Rosiere, 488 So.2d 965, 970 (La.1986). “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3383; see also Rosiere, 488 So.2d at 970-71. Contrarily, “[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976). “Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.” Bagley, 473 U.S. at 675, 105 S.Ct. at 3380. Significantly, because the prosecution “alone can know what is undisclosed,” it is “assigned the consequent responsibility to gauge the likely net effect of all such [favorable] evidence [unknown to the defense] and make disclosure when the point of ‘reasonable probability’ is reached.” Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (1995).
Nevertheless, the State’s constitutional obligation to disclose exculpatory evidence does not relieve the defense of its obligation to conduct its own investigation and prepare a defense for trial as the State is not obligated under Brady or its progeny to furnish defendant with information he already has or can obtain with reasonable diligence. State v. Kenner, 05-1052, p. 2 (La.12/16/05), 917 So.2d 1081, 1081 (citing United States v. Newman, 849 F.2d 156, 161 (5th Cir.1988)); see also, Michigan v. Harvey, 494 U.S. 344, 348, 110 S.Ct. 1176, 1179, 108 L.Ed.2d 293 (1990) (“The essence of [defendant’s] right [to assistance of counsel for his defense] ... is the opportunity for a defendant to consult with an attorney and to have him investigate the case and prepare a defense for trial.”). It follows, therefore, “ ‘[t]here is no Brady violation where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available from another source, because in such cases there is really nothing for the government to disclose.’ ” State v. Hobley, 98-2460, p. 25 n. 10 (La.12/15/99), 752 So.2d 771, 786 (quoting Coe v. Bell, 161 F.3d 320, 344 (6th Cir.1998)), cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000). As the United States Fifth Circuit Court of Appeal has noted:
Regardless of whether the request was specific or general, and regardless of whether the evidence was 1 (¡material or even exculpatory, when information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim.
The constitutional requirement of due process mandates that the defendant have a right to a fair trial. The prosecutor’s duty not to suppress material information favorable to defendant flows from his office as representative of the Government’s interest in and due process obligation to justice. Truth, justice, and the American way do not, however, require the Government to discover and develop the defendant’s entire defense.... In no way can information known and available to the defendant be said to have been suppressed by the Government.
United States v. Brown, 628 F.2d 471, 473 (5th Cir.1980) (citations omitted). Moreover, the State has, “of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor,” and there is no corresponding “constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.” Agurs, 427 U.S. at 106-09, 96 S.Ct. at 2399-2400; see also Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972).

Joshua Lambert

Joshua Lambert testified at trial he was the front seat passenger in Defendant’s car when Defendant fired a shot out the driver’s side window into the group of men approaching the car. He testified, after the shooting, they drove to Lambert’s house, where the gun was hidden in a carport and Defendant burned his tee shirt. During this time, one of the boys received a text telling them a little girl had been shot. Defendant, Brandon Newton, and Lambert then went to Defendant’s apartment where they told Defendant’s parents he had shot a little girl. In an effort to cover for the boys, Defendant’s mother, Nina Newton, immediately called the police and reported that the boys had been assaulted at the mall by a gang of men.

Officer Mark Chatman was dispatched to Defendant’s apartment. Defendant’s mother, who did most of the talking, told the officer the boys had 17heard a shot as they left the mall after a confrontation with a gang of men. After Defendant asked the officer how the little girl was, the officer asked Defendant, his parents, brother, and Lambert to go to the police station. Officer Chatman did not speak with them again after this initial meeting.

Defendant argues in brief that “[t]he fact that Joshua Lambert exculpated Sean Newton in a police interview with Officer Chatham [sic] is clearly a Brady violation. Chatham [sic] was an important police officer in this case who was told by the state’s main witness Joshua Lambert that Sean Newton did not do this crime.”

Defendant refers to the following cross-examination of Officer Chatman regarding Lambert’s alleged inconsistent and exculpatory statements:

Q. Okay. And when you went there, you spoke to Nina and Rodney Newton?
A. That’s correct. I mainly spoke with Ms. Newton.
Q. Ms. Newton, right?
A. Yes.
Q. But you also spoke to Sean and Josh Lambert, correct, Sean Newton and Joshua Lambert?
A. No. Most of my conversation was with Nina Newton.
Q. Officer, I’m not asking about “most of your conversation.” My question is very clear. Didn’t—
A. Uh-huh (yes).
Q. —you speak to Joshua Lambert at his aunt and uncle’s apartment on the night of March 27th of 2010?
A. Yes.
Q. Okay. And he told you that he was in some type of altercation with another group of guys near the mall, correct?
A. That’s correct.
Q. He never told you that Sean Newton shot any gun that night, did he?
|8A. That’s correct.
Q. He never — and you spoke with him, right?
A. That’s correct.
Q. You (sic) never told you after the shooting he went by his apartment and Sean burned a shirt, did he?
A. No.
Q. Okay.
A. Uh-huh (yes).
Q. And he never told you that after the shooting, he went to his apartment and got rid of the gun, did he?
A. No.

Defendant contends the inconsistent and exculpatory evidence was that Lambert never told the officer that Defendant shot the victim, burned his shirt, or hid the gun. We note it is difficult to classify statements never made as non-disclosed inconsistent and exculpatory evidence. Lambert never made such statements because, as he explained at trial, Defendant’s mother concocted a story to tell the police in an attempt to cover up the boys’ participation in the shooting of the victim, and everyone, including Lambert, went along with the story. Defendant’s argument that the State either intentionally or negligently failed to disclose what the witness did not say to Officer Chatman is absurd, particularly as everyone, Defendant, his mother, father, and brother, all co-defendants, were present when the alleged inconsistent and exculpatory statements were not made.

Jarius Watson

Defendant also contends the State failed to reveal that Jarius Watson, who was with Defendant the night of the shooting, was offered immunity for his testimony. Watson testified he was in the back seat of Defendant’s car and heard a gunshot. Watson testified he had seen the gun on the console between the driver’s 19seat and the passenger’s seat, and it sounded like the driver of the car — whom, he testified, was Defendant — had shot the gun out the window. Watson was charged with obstruction of justice and inciting a riot as a result of his participation in the incident.

Defendant asserts that Watson “clearly believed that he would receive immunity in exchange for his testimony.” Defendant asserts had he known about this inducement, “defense investigators could have investigated Watson’s incentive to testify on behalf of the State, specifically the strength of the State’s case for obstruction of justice against Watson and the nature of the inducement.”

At trial, during cross-examination, Watson stated:

Q. Okay. Now, have you spoken with your attorney about any type of deal in this case?
A. No, sir.
Q. Okay. Do you expect any kind of benefit for your testimony?
A. Yes, sir.
Q. What do you expect?
A. Immunity.
Q. Okay. So you got immunity?
Q. Okay. When did you get that?
A. I’m not sure if I have it yet, but they was [sic] talking about it.
Q. Who was talking about it?
a. My lawyer and I.
Q. And she told you that it’s okay to testify, because you have immunity, that it won’t be used against you?
A. No, sir.
Q. And she told you she got that from the DA’s office?
|1ftA. No, sir. She just said she was talking to Ms. Jennifer about it. She didn’t tell me if it’s exact or nothing like that.
Q. Who is Ms. Jennifer — Bellon?
A. I guess. The DA?
Q. She works at the DA’s office?
A. Yes, sir.
Q. So your lawyer talked to Ms. Jennifer about immunity for you?
A. Yes, sir.
Q. And in return, what did she say would happen with the immunity?
A. She didn’t tell me nothing. She— like she—
Q. She just said she had a conversation with Jennifer about immunity?
A. Yes, sir.
Q. And in return, that encouraged you to testify?
A. Yes, sir.
Q. And isn’t it true, Jarius, that you expect your charges to be dropped, don’t you?
A. Yes, sir.
Q. And you got that expectation from your lawyer, correct?
A. Yes, sir.
Q. And your lawyer got that expectation from the DA’s Office, correct?
A. Yes, sir.

During redirect examination, the witness stated that no one from the District Attorney’s office made any promises to him regarding immunity in exchange for his testimony. He agreed he was at trial pursuant to a subpoena. He stated that shortly before trial, he and his attorney met with Ms. Bellon. He further stated:

Q. Did she — at any time, did Ms. Bel-lon say anything about giving you any immunity or any promises?
In A. No, sir.
Q. Okay. Okay. That’s just what you’re hoping for in connection with this case?
A. Yes, sir.

It is well-settled jurisprudence in Louisiana that a witness’s hope that he might receive leniency from the state may be highly relevant to establish bias or interest, even though he has made no agreements with the state regarding the conduct. State v. Sparks, 88-17 (La.5/11/11), 68 So.3d 435, cert. denied, — U.S. -, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012). In Sparks, the defendant alleged the state had withheld information regarding the benefits its witness received for her testimony. It was learned during the murder trial that the witness testifying against the defendant had several theft charges pending and had violated her parole, yet her parole was not revoked. It was later learned that she had received a Crime Stoppers reward of three hundred dollars for her testimony against defendant. The supreme court noted:

The Brady rule encompasses evidence which impeaches witness testimony when the reliability or credibility of that witness may determine guilt or innocence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); State v. Knapper, 579 So.2d 956, 959 (La.1991). Brady also requires the disclosure of evidence concerning a promise of leniency or immunity to a material witness in exchange for his testimony at trial. Giglio v. United States, 405 U.S. 150, 154-155, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).
Moreover, to the extent exposure of a witness’s motivation is a proper and important function of the constitutionally protected right of cross-examination, a witness’s “hope of knowledge that he will receive leniency from the state is highly relevant to establish his bias or interest.” State v. Brady, 381 So.2d 819, 822 (La.1980) (collecting cases); State v. Vale, 95-577, p. 4 (La.1/26/96), 666 So.2d 1070, 1072. A witness’s bias or interest may arise from arrests or pending criminal charges, or the prospect of prosecution, even when he has made no agreements with the State regarding his conduct. Vale, 666 So.2d at 1072; State v. Nash, 475 So.2d 752, 755-756 (La.1985); see also State v. Bailey, 367 So.2d 368, 371 (La.1979) (When circumstances indicated the witness might have received the impression that testimony favorable to the State would result in dropping of charges |12against him, defendant was entitled to new trial where information was not revealed.)

Id. at 485-86.

In brief, the State argues Watson’s attorney’s request for immunity from the State’s investigator, Jennifer Bellon, was not the same as a promise of immunity as she did not have the authority to agree to immunity in this case. After the defense rested, Assistant District Attorney, Cynthia Killingsworth, advised the trial court she never offered immunity to Watson in exchange .for his testimony. However, it was not clear from Watson’s testimony whether the investigator ever actually indicated to him directly that there might be a possibility of immunity. In Sparks, at the hearing for a new trial, the assistant district attorney testified he was not aware of the witness’s theft charges. He further testified she was not arrested because of the structure of the “bad check program” in their office. The supreme court noted:

[B]ecause the District Attorney’s office is charged with knowledge available to all acting on the State’s behalf in the case, Strickler [v. Greene ], 527 U.S. [263] at 281, 119 S.Ct. [1936] at 1948 [144 L.Ed.2d 286 (1999) ], he has the duty to timely disclose “favorable evidence to provide the defense with adequate opportunity to present the material effectively in its case.” State v. Kemp, 2000-2228, p. 7 (La.10/15/02), 828 So.2d 540, 545. Here, whether or not the prosecutors knew about the pending charges and attachment, this still constituted impeachment evidence regarding Ms. Broadway’s credibility and motivation to cooperate with the State. Thus, defendant has satisfied the first Strick-ler factor requiring the evidence have impeachment value.

Id. at 487.

The Strickler factors referred to in Sparks when determining whether a Brady violation undermines confidence in the outcome of the trial are: “1) favorable (impeaching or exculpatory) evidence; 2) that must have been withheld; and 3) prejudice must have been caused thereby.” Id. at 486. In the current case, while there may have been nondisclosure of impeachment evidence, as in Sparks, the nondisclosure did not rise to the level of materiality necessary to establish 1,.¡prejudice sufficient to undermine confidence in the outcome of the trial. As noted in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), evidence is material under Brady only if there is a reasonable probability that the result of the proceeding would have been different had the alleged impeachment evidence been disclosed. In the current case, Watson’s testimony was effectively corroborated by the testimony of Andre Broussard, who was also in the car with Defendant the night of the shooting. Broussard testified that Defendant shot out the window of the vehicle into a crowd of men they had confronted at the mall. He described the gun Defendant had in the center console of the front seat. Broussard further testified they went to Lambert’s house afterwards and that Defendant burned his shirt, then after dropping Watson and Kelly off, Defendant, his brother, and Lambert went to Defendant’s home. At the time of trial, Broussard’s felony charge of inciting a riot was still pending and he testified that even though he hoped for leniency from the State, he had not been offered anything in exchange for his testimony.

We find, even if Watson received the impression he might gain leniency or immunity for his testimony, Defendant failed to show that disclosure of this information would have altered the outcome of the trial. Three separate witnesses (Lambert, Broussard, and Watson) all testified that Defendant fired the gun out the driver’s side window.

Terri Brown

Defendant argues the State withheld a statement made by a witness, Terri Brown, averring she saw Defendant’s vehicle at the mall prior to the shooting. Detective Kevin Kirkum, a sergeant with the Lake Charles Police Department, testified Brown had originally pointed out to the police where she saw Defendant’s vehicle parked at the mall. However, a surveillance video utilized by the mall showed the vehicle in a different location than where Brown maintained she saw |14the vehicle. Defendant argues “Detective Kirkum explicitly states at trial that he knew Terri Brown’s statement was exculpatory vis-a-vis the state’s theory and yet the information was never turned over to the defense prior to trial. The defense was prejudiced by not being able to properly investigate the inconsistency.”

We note Defendant does not explain how this inconsistency is exculpatory. Furthermore, the inconsistency was disclosed to Defendant in the State’s “Response to Defendant’s Motion for Discovery and Inspection” filed on August 16, 2010. In paragraph 6 of the response, the State reported “[W]hen T.B., age 16, showed detective where she remembered the car being parked, it was different from the area of the parking lot where Det. Thomas saw the defendants enter their vehicle and wrote down the license plate number.” As noted above, evidence is material and reversal warranted only if it is reasonably probable that the result of the proceeding would have been different had the evidence been disclosed to the defense. State v. Marshall, 81-3115, 94-461 (La.9/5/95), 660 So.2d 819. Defendant failed to show how this inconsistency would have changed the outcome of the trial. Three eyewitnesses, who were in the car with Defendant, testified he fired into the crowd of men. As a result, an innocent bystander, a fourteen-year-old girl, was shot in the head and killed. It is simply not reasonable to find the fact that a witness described the car parked in a different location than what was seen on the mall’s surveillance video — a fact that the jury did hear — would have changed the outcome of the trial.

Defendants’s first three assignments of error are meritless.

Assignment of Error Number Four

Defendant argues defense counsel’s performance in this case was ineffective. He contends defense counsel failed to adequately investigate the case and saw Defendant only one time prior to trial. He further alleges defense counsel should have filed a motion to sever.

[1fiA claim for ineffective assistance of counsel is properly raised in an application for post-conviction relief because this allows the trial court to order a full evidentiary hearing on the matter. State v. Burkhalter, 428 So.2d 449 (La.1983). However, where the record contains sufficient evidence to decide the issue, and the issue is raised by an assignment of error on appeal, it may be considered by the appellate court. State v. Tapp, 08-1262 (La.App. 3 Cir. 4/1/09), 8 So.3d 804; See also State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670 So.2d 461.

State v. Christien, 09-890, p. 7 (La.App. 3 Cir. 2/3/10), 29 So.3d 696, 701.

Defendant states he intends to file an application for post-conviction relief in accordance with the “exhaustion doctrine ” for the reason that the argument is premature and undeveloped and requires an evi-dentiary hearing. Therefore, this claim is relegated to the post-conviction relief process.

DECREE

For the foregoing reasons, Defendant’s convictions and sentences for first degree murder and obstruction of justice are affirmed. However, the misdemeanor conviction of inciting to riot is severed from this appeal and Defendant is instructed to file an application seeking supervisory review of the misdemeanor within thirty days of the court’s ruling on appeal if he so desires. Further, Defendant’s claim of ineffective assistance of counsel is relegated to the post-conviction relief process.

AFFIRMED IN PART AND SEVERED IN PART WITH INSTRUCTIONS.

      . There is no indication in the bill of information that the State sought to charge the Defendant with felony-grade inciting to riot. La. R.S. 14:329.7.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Brandon NEWTON.
    No. 12-510.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 13, 2013.
    John F. DeRosier, District Attorney, Carla S. Sigler, Karen C. McLellan, Assistant District Attorneys, Lake Charles, LA, for Appellee, State of Louisiana.
    Beth S. Fontenot, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Brandon Newton.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL and J. DAVID PAINTER, Judges.
   COOKS, Judge.

| .¿FACTS AND PROCEDURAL HISTORY

On the evening of March 27, 2010, Brandon Newton, his older brother, Sean, his cousin, Joshua Lambert, and three friends, Andre Broussard, Jarius Watson, and Marlon Kelly, left the Prien Lake Mall in Sean Newton’s car and drove to a neighborhood behind the mall called “Brownsville” in anticipation of fighting with another gang of young men. The confrontation had begun at the mall, but the two groups were sent out of the mall by the security guards. Sean Newton had in his possession a handgun. Defendant, Brandon Newton, was riding in the backseat. Meanwhile, fourteen-year-old Alexus Ran-kins, and two of her friends were walking through the “Brownsville” neighborhood on their way home from the theater in the mall. Sean Newton drove around the neighborhood until he and his companions found the group of men they were arguing with at the mall. When the men approached the car, taunting the occupants, Sean Newton fired a single shot into the group. The bullet struck the victim in the head. She died two days later as result of the gunshot wound.

On April 19, 2010, Defendant, Brandon Newton, age sixteen, was indicted by the grand jury for manslaughter, a violation of La.R.S. 14:31(A)(2)(a), accessory after the fact to first degree murder, a violation of La.R.S. 14:25, and obstruction of justice, a violation of La.R.S. 14:130.1.

Also, on April 19, 2010, the minute entry indicates that a continued custody hearing was held in the juvenile court. The minute entry specifies that the trial court ordered the matter transferred to adult criminal court pursuant to La.Ch.Code art. 305.

On May 16, 2011, prior to commencement of trial, the State amended the charge of manslaughter to inciting a riot, a violation of La.R.S. 14:329.2; the other charges remained the same.

|3On May 18, 2011, trial commenced in adult criminal court, and Defendant was found guilty as charged by a jury. Defendant was tried with co-defendants Sean Newton, Nina Newton, and Rodney Newton.

Defendant’s attorney filed several post-trial motions. The trial court granted the motions challenging the sufficiency of the evidence as to the convictions of obstruction of justice and accessory after the fact. As a result, those two convictions were vacated.

On December 5, 2011, Defendant was sentenced to seven years, all but two suspended, to be served in the parish jail. Defendant was placed on five years of supervised probation subject to special conditions.

On appeal, Defendant asserts the following errors:

1. The trial court erred in failing to dismiss the prosecution when it lost jurisdiction over the charges against Brandon after the State amended the indictment to charge an offense for which Brandon could not be tried as an adult.
2. The evidence was insufficient to find Brandon guilty of Inciting to Riot.
3. The trial court erred in making its own factual determination as to whether the victim’s death resulted from the Inciting to Riot. Such a determination is an essential element of the offense and must be determined by the jury, not the trial judge.

ASSIGNMENT OF ERROR ONE

Defendant asserts the trial court erred in failing to dismiss the prosecution when it lost jurisdiction over the charges because the State amended the indictment to charge an offense for which Defendant could not be tried as an adult. In his brief to this court, Defendant argues in pertinent part (record citations omitted):

Although Brandon was 16 when the alleged incident occurred, the State elected to charge him as an adult by indicting him with Manslaughter. Manslaughter is an offense enumerated by Louisiana Children’s Code art. 305(B) as an offense for which a child may be tried as an adult when an indictment is filed for that offense. Before trial, however, the State amended the charge of Manslaughter to Inciting to Riot. Unlike Manslaughter, Inciting to Riot is not one of the offenses enumerated by La.Ch. Code art. 305(B). Arguing that the amendment caused the trial court to lose jurisdiction, Brandon’s ^defense counsel asked for a mistrial as well as a motion in arrest of judgment. The trial court denied both motions, finding that nothing in La.Ch.Code art. 305 provided for an adult court to be divested of jurisdiction once it obtained jurisdiction over a child. Specifically, the trial court noted La.Ch.Code art. 305(B)(4), which states that when an indictment is filed, the adult court has exclusive jurisdiction over the child for all subsequent procedures, including the review of bail applications. The trial court also referred to section D of article 305, which states that the adult court shall retain jurisdiction over the child even if the child pleads guilty to or is convicted of a lesser included offense. Neither of these provisions, however, provides for the adult court’s retention of jurisdiction when the State amends an indictment to charge a non-enumerated offense.
In a procedurally similar case, this Honorable Court found an adult court did not retain jurisdiction of a criminal case when, because of the State’s amendment to the charge, the defendant was not tried on an offense which would have subjected him to jurisdiction of the criminal court pursuant to La.Ch.Code arts. 305 or 857. State v. Bell, [an unpublished writ bearing docket number] 07-1106 (La.App. 3 Cir. 9/14/07). Although the procedural facts of Bell are not completely set forth in this Court’s opinion, trial counsel cited and attached the appellate brief filed in Bell in the record in this case. According to the brief, Bell was originally charged with an offense enumerated in La.Ch.Code art. 305. The State, however, amended the bill of information to charge Bell with an offense that is not enumerated in La.Ch.Code art. 305. Because the State amended the bill of information, Bell “was not tried on an offense which could have subjected him to the jurisdiction of the criminal court.” Bell, 07-1106 (La.App. 3 Cir. 9/14/07). This Court found that the provisions of La. Ch.Code art. 863 that allow the adult court to retain jurisdiction under limited circumstances (i.e., when a child pleads guilty to, or is convicted of, a lesser included offense) were not applicable. Thus, jurisdiction remained exclusively in juvenile court.
Likewise, because of the State’s amendment to the indictment in the present case, Brandon was not tried on an offense which could have subjected him to the jurisdiction of the adult criminal court. Contrary to the trial court’s ruling, the limited circumstances under which the adult court retains jurisdiction (i.e., when a child pleads guilty to, or is convicted of, a lesser included offense) are not applicable since the State chose to delete the enumerated charge and charge a non-enumerated charge.
This same rationale was set forth by the Louisiana Supreme Court years ago in State ex rel Davis, 368 So.2d 1092 (La.1979). In Davis, the supreme court refused to allow the State to amend the charge to a non-enumerated offense without divesting the criminal district court of jurisdiction. The supreme court declined to allow such an expansion of jurisdiction by the State “particularly in view of the policy of the State that juveniles are not to be punished as adults, except as provided by the constitution.” Davis, 368 So.2d at 1093.
Likewise, the State in the present case should not be allowed to expand the adult court’s jurisdiction over Brandon, a child, by simply | .¡amending the indictment to charge a non-enumerated offense. To hold otherwise would .give the State the unilateral ability to divest the juvenile court of jurisdiction by charging the child with an enumerated offense and then amend the charge to a non-enumerated offense. Allowing the State the ability to manipulate juvenile jurisdiction in this way would run contrary to the constitutional right of juveniles to have their guilt or innocence as well as their detention or custody determined “pursuant to special juvenile procedures ... provided by law.” La. Const, art. V, § 19 (2007).
Additionally, the trial court’s reliance on La.Ch.Code arts. . 305(B)(4) and 305(D) to retain jurisdiction is misplaced. Section 305(B)(4) simply clarifies that the adult court maintains jurisdiction over all procedural matters once it obtains jurisdiction over the child. Section D allows a child the benefit of entering a plea bargain or receiving a verdict to a lesser or included offense without having to return to the juvenile court for another trial. Neither one of these provisions allows the trial court to retain jurisdiction when the State amends the indictment to charge a non-enumerated offense.

The State responds in pertinent part (record citations omitted):

Under LSA-Ch.C. Art. 305, it is irrelevant that the defendant was tried on a lesser offense than his original indictment for second degree murder. While that fact certainly inured to his benefit, it did not alter the jurisdiction of the adult criminal court over him. The defendant cites no authority to the contrary, because none exists.
In addition, while the defendant claims that LSA-Ch.C. Art. 305 provides no authority for the State to amend to a lesser charge than that listed in the indictment, that authority is implicit in provision D’s language about a plea to a lesser offense, which of course would require the State’s downward departure from an original charge. See also LSA-Ch.C. Art. 305(B)(U), which provides for exclusive jurisdiction in the adult court for all subsequent procedures once the indictment is filed. Moreover, in State v. Hamilton, 96-0107 (La.7/2/96), 676 So.2d 1081, the Louisiana Supreme Court speaks of the “automatic and irreversible divestiture of jurisdiction from the juvenile court to the district court” under LSA-Ch.C. Art. 395. Hamilton, 676 So.2d at 1082.
The defendant also did not properly raise this issue. He first raised it via a mistrial motion, then in a motion to arrest judgment filed under LSA-C.Cr.P. Art. 859, in a motion for new trial. Defense counsel Thad Minaldi represented the defendant from the onset of the prosecution against him, and he did so in adult criminal court. Any objection to the adult criminal court’s jurisdiction over this defendant should have been made far sooner than during trial.
Thus, the State submits that this claim has been waived for failure to contemporaneously object pursuant to LSA-C.Cr.P. Art. 84-1. The defendant could have filed a supervisory writ application with this Court when he was indicted, or he could have filed a motion to quash in accordance with LSA-C.Cr.P. Art. 532 A 8. He failed to do so.
IfiAll requirements for the vesting of criminal jurisdiction over this defendant’s case in adult criminal court were adhered to in this prosecution. The defendant was originally indicted for second degree murderC], and the State’s eventual reduction of that charge before trial, while unquestionably beneficial to him, did nothing to alter the adult trial court’s jurisdiction.

Is this Issue Properly Before this Court?

The record indicates on May 16, 2011, before voir dire began, the State amended the charge of manslaughter to “inciting a riot a violation of 14:829.1.” During the trial, before the State rested, Defendant’s attorney moved for a mistrial on the ground that the trial court lacked jurisdiction. Defendant’s attorney explained that once the charge was amended from manslaughter to inciting a riot, the adult criminal court no longer had jurisdiction. Defendant’s attorney explained how, under La.Ch.Code art. 805, inciting a riot was not one of the included offenses which allowed the Defendant to be tried as an adult instead of a juvenile. The trial court took the matter under advisement.

Later during the trial, the trial court addressed the issue. The trial court denied the motion, finding that it was not divested of jurisdiction when the bill was amended. The trial court stated in pertinent part:

There’s no specific portion of this rule, Article 305, that would divest this Court of jurisdiction once it has it, and the provisions that talk about the court exercising criminal jurisdiction does [sic] refer to cases where you plead to a lesser offense and so forth, and so I think the intent is pretty clear that it wouldn’t divest.

Following the verdict, in the motion for arrest of judgment, Defendant’s attorney re-urged the argument. Again, the trial court denied the motion.

Defendant did not file a motion to quash the amended bill, and he did not object at the time the bill was amended. The State now argues, as a result of this failure to file the motion to quash or object at the time of the amendment, the jurisdictional issue is waived.

^Louisiana Children’s Code Article 887 provides in pertinent part:

A. On motion of the child prior to disposition, a delinquency adjudication shall be vacated and the child discharged if, after contradictory hearing, the court finds that:
(3) The court making the adjudication lacked jurisdiction.

In Nerness v. Christian Fidelity Life Insurance Co., 98-1827, p. 6 (La.App. 3 Cir. 4/21/99), 733 So.2d 146, 151, this court explained:

Lack of subject matter jurisdiction, unlike other jurisdictional defects, may not be waived or conferred by the consent of the parties. La.Code Civ.P. art. 3; Tran v. Schwegmann’s Giant Super Market, 609 So.2d 887 (La.App. 4 Cir. 1992). Thus, a party may raise an exception of subject matter jurisdiction at any time during the proceedings. Id. Similarly, lack of subject matter jurisdiction may be raised on appeal by the court’s own motion. Id.

In State ex rel. K.S., 07-1045, p. 6 (La.App. 1 Cir. 11/2/07), 977 So.2d 35, 38-39, the court explained:

While there has been no exception raised challenging the juvenile court’s subject matter jurisdiction, we are required to consider the issue. It is the duty of a reviewing court to examine subject matter jurisdiction sua sponte. Whittenberg v. Whittenberg, 97-1424, pp. 2-3 (La.App. 1 Cir. 4/8/98), 710 So.2d 1157, 1158. “Whenever there is a serious issue regarding subject matter jurisdiction, a court (including an appellate court) should consider and rule on the issue at anytime, and the issue can even be raised by the court on its own motion.” Lowenburg v. Entergy New Orleans, Inc., 99-2894, p. 1 (La.12/17/99), 751 So.2d 868, 868 (Lemmon, J., concurring opinion).

Based upon the above, we find the issue is properly before this court.

Applicable Law and Analysis.

Louisiana Children’s Code Article 305 provides, in pertinent part:

B. (1) When a child is fifteen years of age or older at the time of the commission of any of the offenses listed in Subparagraph (2) of this Paragraph, he is subject to the exclusive jurisdiction of the juvenile court until whichever of the following occurs first:
(a) An indictment charging one of the offenses listed in Subparagraph (2) of this Paragraph is returned.
(b) The juvenile court holds a continued custody hearing and finds probable cause that the child has committed any of the offenses | ^listed in Subparagraph (2)of this Paragraph and a bill of information charging any of the offenses listed in Subparagraph (2) of this Paragraph is filed....
(2)(a) Attempted first degree murder.
(b) Attempted second degree murder.
(c) Manslaughter.
(d) Armed robbery.
(e) Aggravated burglary.
(f) Forcible rape.
(g) Simple rape.
(h) Second degree kidnapping.
(i) Repealed by Acts 2001, No. 301, § 2.
(j) Aggravated battery committed with a firearm.
(k) A second or subsequent aggravated battery.
(l) A second or subsequent aggravated burglary.
(m)A second or subsequent offense of burglary of an inhabited dwelling.

Additionally, La.Ch.Code art. 857 provides, in pertinent part:

A. The court on its own motion or on motion of the district attorney may conduct a hearing to consider whether to transfer a child for prosecution to the appropriate court exercising criminal jurisdiction if a delinquency petition has been filed which alleges that a child who is fourteen years of age or older at the time of the commission of the alleged offense but is not otherwise subject to the original jurisdiction of a court exercising criminal jurisdiction has committed any one or more of the following crimes:
(1) First degree murder.
(2) Second degree murder.
(3) Aggravated kidnapping.
(4) Aggravated rape.
(5) Aggravated battery when committed by the discharge of a firearm.
(6) Armed robbery when committed with a firearm.
(7) Repealed by Acts 2001, No. 301, § 2.
(8) Forcible rape if the rape is committed upon a child at least two years younger than the rapist.

Section D of La.Ch.Code art. 305 provides:

|9The court exercising criminal jurisdiction shall retain jurisdiction over the child’s case, even- though he pleads guilty to or is convicted of a lesser included offense. A plea to or conviction of a lesser included offense shall not revest jurisdiction in the court exercising juvenile jurisdiction over such a child.

Although State ex rel. Davis v. Criminal Dist. Court, 368 So.2d 1092 (La.1979), was decided before Article 305 was enacted, the holding is nevertheless instructive on this issue. Arthur Davis, a sixteen year old at the time the offense was committed, was jointly indicted by the State with a co-defendant for first degree murder. Before trial, the State amended the indictment to charge the jointly indicted defendants with second degree murder and had the indictment severed. Additionally, the State filed a new bill of information alleging that Davis had committed second degree murder. After a jury trial in the district court, Davis was convicted of second degree murder and sentenced to life imprisonment at hard labor, without benefit of parole for forty years. At that time, the legislature had enacted Act 337 of 1975, La.R.S. 13:1570, which provided in pertinent part:

Except as otherwise provided herein, the [juvenile] court shall have exclusive original jurisdiction in proceedings:
A. Concerning any child whose domicile is within the parish or who is found within the parish:
(5) Who violates any law or ordinance, except a child who, after having become fifteen years of age, is charged with having committed a capital crime, or a crime defined by any law defining attempted aggravated rape; provided that once such a child has been actually charged with a capital crime, armed robbery, or attempted aggravated rape, the district court shall retain jurisdiction over his case, even though the child pleads guilty to, or is convicted of, a lesser included offense; and a plea to, or conviction of, a less included offense shall not revest the juvenile court with jurisdiction of such a child.

The State argued that under La.R.S. 13:1570(A)(5), once a grand jury found sufficient incriminating evidence to charge a juvenile over fifteen years of age with first degree murder, the district court retained jurisdiction over the juvenile’s case even after a new bill of information has been filed alleging that the juvenile | incbmmitted a crime other than a capital offense or attempted aggravated rape. The court rejected the State’s argument holding in pertinent part:

This Court specifically rejected a similar contention in State ex rel. Moore v. Warden, 308 So.2d 749 (La.1975), in which it observed:
The uniform jurisprudence of the State since 1921 holds that the jurisdiction of the district courts is limited to the determination of guilt and punishment for capital crimes (and the constitutionally provided for attempted aggravated rape). Although it can be argued that the constitutional deposit of jurisdiction in the district courts of the trial of juveniles in capital cases is the grant of jurisdiction embracing every part of the case, from arraignment to sentence, we decline to make such a departure from established jurisprudence, particularly in view of the policy of the State that juveniles are not to be punished as adults, except as provided by the constitution.
As we also observed in Moore, there was no intention by the adoption of the 1974 Louisiana Constitution to modify the rule respecting juveniles, that “the jurisdiction of the district court is limited to the determination of guilt and punishment for capital crimes (and the constitutionally provided for attempted aggravated rape).” Id. at 752.
In the final analysis, the state’s argument seems to be that La.R.S. 13:1570 authorizes the state to charge and prosecute a person as an adult for any offense committed before his seventeenth birthday, provided that the offense charged is included within a capital offense, or attempted aggravated rape, for which he has been validly indicted. If this were the legislative intent that portion of the statute would have been void because of a conflict with the clear wording of the constitution. Adult procedures are applicable without a waiver proceeding in the individual case of a person charged with an offense committed before his seventeenth birthday only where a person fifteen years of age or older “is alleged to have committed a capital offense or attempted aggravated rape.” Art. V, § 19, La. Const.1974. The uniform jurisprudence and the clear intent of the constitutional language is that adult procedures may be employed without waiver proceedings only in a valid capital or attempted aggravated rape prosecution. Moreover, the requirement that the legislature establish the individual waiver procedures by a two-thirds vote of both legislative houses, reflects a concern that the juvenile whom the state proposes to try by adult rules should be afforded full due process protection. See, State v. Everfield, 342 So.2d 648 (La.1977). Given the language and the obvious concerns of the constitutional section, it is evident that the state’s proposed statutory construction is at odds with the constitution. It would allow the prosecutor in effect to substitute an ex parte, secret probable cause determination by a grand jury for the judicial waiver procedures established by two-thirds of the elected members of each house of the legislature.
11T Furthermore, careful reading of the statute reveals that the state’s interpretation is incorrect. The statute provides that the juvenile court shall have “exclusive original jurisdiction” in proceedings concerning a child who violates any law “except a child who, after having become fifteen years of age, is charged with having committed a capital crime, or ... attempted aggravated rape.” (emphasis added) La.R.S. 13:1570 A(5). The wording is consistent with the constitution. The juvenile must be charged with a capital offense or attempted aggravated rape in the proceeding under question before it may be conducted according to adult procedures.
The juvenile’s conviction and sentence are vacated and the case is remanded to the Orleans Parish Juvenile Court for further proceedings consistent with this opinion.

Id. at 1093-94 (footnote omitted).

A similar situation was addressed by this Court in State v. Bell, an unpublished writ bearing docket number 07-1106. In that case, the defendant’s attorney argued the district court lacked jurisdiction to try him because he was a juvenile. The defendant’s attorney explained that the juvenile had been charged with attempted second degree murder and conspiracy to commit second degree murder. Prior to commencement of trial, the State amended the bill to one count of conspiracy to commit second degree battery. The defendant was tried in the district court as an adult and found guilty as charged. The defendant filed a Motion in Arrest of Judgment alleging the district court lacked jurisdiction over the matter. The trial court denied the motion, and the defendant sought review by this court. This court granted relief and ruled in pertinent part:

WRIT GRANTED AND MADE PEREMPTORY; STAY DENIED: The trial court erred in denying Defendant’s motion in arrest of judgment regarding his conviction for aggravated second degree battery. The Defendant was not tried on an offense which could have subjected him to the jurisdiction of the criminal court pursuant to either La.Ch. Code arts. 305 or 857; therefore the provision 1]2of La.Ch.Code art. 863, permitting the trial court to retain criminal jurisdiction over juvenile defendants under limited circumstances, is inapplicable, and jurisdiction remains exclusively in juvenile court.
Accordingly, the ruling of the trial court denying Defendant’s motion in arrest of judgment, as to his conviction for aggravated second degree battery, is hereby reversed, vacated and set aside. The motion in arrest of judgment is granted, and the conviction for aggravated second degree battery is vacated.

Defendant was charged and convicted in the district court for an offense which is not enumerated in Articles 305 or 857. If inciting a riot had been the original charge against Defendant, the offense, which is not listed in either Article 305 or Article 857, could not have served as the basis for Defendant’s trial in criminal court.

It appears the trial court’s denial of the motion is the result of a misreading of Article 305(D). In State v. Petitto, 10-581, pp. 6-7 (La.3/15/11), 59 So.3d 1245, 1250, the court explained the applicable law regarding interpretation of a statute, stating in pertinent part:

For that reason, “where the words of a statute are clear and free from ambiguity, they are not to be ignored under the pretext of pursuing their spirit.” State v. Freeman, 411 So.2d 1068, 1073 (La.1982); See also LSA-R.S. 1:4. Although criminal statutes are subject to strict construction under the rule of lenity, the rule is not to be applied with such unreasonable technicality as to defeat the purpose of all rules of statutory construction, which is to ascertain and enforce the true meaning and intent of the statute. State v. Shaw, 06-2467, p. 14 (La.11/27/07), 969 So.2d 1233, 1242.

From a plain reading of Article 305(D), that article is inapplicable to this ease. While Defendant was originally indicted for manslaughter, which is an enumerated offense in Article 305, the indictment was amended prior to trial, and Defendant was placed in jeopardy and ultimately convicted only for inciting a riot, which is not listed in Article 305 or as a transfer basis in Article 857. A conviction on this charge does not qualify as grounds for retention of jurisdiction under Article 305(D), as Defendant was neither convicted of an offense which could have | iaproperly served as the basis for criminal court jurisdiction nor a lesser included verdict or guilty plea. There is nothing in Article 305(D) to suggest that the offense originally charged which subjected the juvenile to the jurisdiction of the criminal court is retained once the charge has been amended by the State to an offense not otherwise serving as the basis for criminal court jurisdiction. In Davis, 368 So.2d 1092, the court noted that, to permit the state to circumvent the requirement that such matters normally be handled in juvenile court by simply charging a defendant with any crime it chooses, then lowering the charge at a later date to one which would not otherwise have provided a basis for jurisdiction in district court, is in direct conflict with the Louisiana Constitution, requiring disposition of juvenile offenders in juvenile court. Id. at 1094. Thus, we find the district court lacked jurisdiction to try Defendant as adult when the State amended the bill of indictment to charge him with inciting a riot.

In State ex rel. Moore v. Warden of Louisiana State Penitentiary at DeQuincy, 308 So.2d 749 (La.1975), the court found the district court did not have jurisdiction to accept the guilty plea of a fifteen-year-old juvenile. The Moore court held that the plea and sentence should be set aside and annulled. See also, State ex rel. A.N., 03-2776 (La.App. 1 Cir. 6/25/04), 886 So.2d 514.

Additionally, La.Code Crim.P. art. 595 provides, in pertinent part:

A person shall not be considered as having been in jeopardy in a trial in which:
(1) The court was illegally constituted or lacked jurisdiction[.]

Therefore, we find Defendant’s conviction and sentence must be vacated and the case is remanded to the trial court for further proceedings consistent with this opinion.

Because Defendant’s conviction is vacated, Defendant’s remaining assignments of error are rendered moot.

114DECREE

For the foregoing reasons, Defendant’s conviction and sentence are vacated and the case is remanded to the trial court for further proceedings.

CONVICTION AND SENTENCE VACATED; REMANDED.

      . The State mistakenly refers to the charge as second degree murder instead of manslaughter.

      . We note the State objected to any use of the ruling in Bell as support for the issue because it was not designated for publication. Prior to 2007, Uniform Rules — Courts of Appeal, Rule 2-16.3 expressly provided that an opinion marked "Not Designated for Publication” could not be "cited, quoted, or referred to by any counsel, or in any argument, brief, or other materials presented to any court, except in continuing or related litigation.” In October 2007, Rule 2-16.3 was amended and became effective November 1, 2007. The amendment deleted the provision prohibiting use of unpublished opinions. Thus, there is no statutory prohibition to the use of such opinions.

      . Likewise the other offenses Defendant was charged with committing are not enumerated in Articles 305 or 857.


text:
    STATE of Louisiana v. Rodney Bernard NEWTON, Sr.
    No. 12-511.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 13, 2013.

      John F. DeRosier, District Attorney, Carla S. Sigler, Karen C. McLellan, Assistant District Attorneys, Lake Charles, LA, for Appellee, State of Louisiana.
    Todd S. Clemons, Todd Clemons & Associates, APLC, Lake Charles, LA, for Defendant/Appellant, Rodney Bernard Newton, Sr.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL and J. DAVID PAINTER, Judges.
   COOKS, Judge.

I «FACTS AND PROCEDURAL HISTORY

Defendant, Rodney Bernard Newton, Sr., is the father of Sean and Brandon Newton. Sean and Brandon, their cousin, Joshua Lambert, and three friends, became involved in a gang dispute at Prien Lake Mall. The two gangs decided to continue their confrontation in a neighborhood behind the mall. The six young men were all in Defendant’s car, and Sean Newton was driving. The boys drove through the neighborhood looking for the other gang. When they saw the men, Sean fired a gun into the crowd, and a fourteen-year-old girl who happened to be walking through the neighborhood was shot in the head. She died as a result of the gunshot wound. Defendant and his wife, Nina Newton, attempted to cover up their two sons’ drive-by shooting by concocting a story and lying to the police about their sons’ whereabouts at the time of the shooting.

Defendant was charged with accessory after the fact, a violation of La.R.S. 14:25. All the Newtons (Rodney, Nina, Sean, and Brandon) were tried together as co-defendants. A jury trial commenced on May 16, 2011, and on May 24, 2011, Defendant was found guilty as charged. Defendant filed a “Motion for Judgment of Acquittal with Incorporated Memorandum.” The motion was heard and denied. After waiving all delays, Defendant was sentenced to three years incarceration in the parish jail and credit for time served.

Defendant has perfected a timely appeal, and he alleges the evidence was insufficient to sustain the verdict of accessory after the fact. For the following reasons, we affirm the conviction.

ANALYSIS

Defendant asserts his wife, Nina Newton, was the one who told the police officers their sons were not at the scene of the shooting. He contends he was merely present when she discussed lying to the police but had encouraged the boys |3to tell the truth. Defendant argues there was nothing put into evidence that would have supported a conviction for accessory after the fact.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the prosecution proved the all of the requisite elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard of review is an objective standard for testing all of the evidence, both direct and circumstantial, for reasonable doubt. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50. The trier of fact is presumed to have acted rationally until it appears otherwise. State v. Mussall, 523 So.2d 1305 (La.1988).

An accessory after the fact is defined as “any person who, after the commission of a felony, shall harbor, conceal, or aid the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment.” La.R.S. 14:25. The statute requires only the general intent of the offender that the person who committed the felony will escape arrest, trial, conviction or punishment. The intent may be shown by circumstantial evidence or inferred. Finally, there must be a completed felony. The defendant who was accused of being an accessory after the fact must have known or had reasonable grounds to know of the commission of the felony and gave aid personally under circumstances that indicated either that he actively desired that the felon avoid arrest, conviction, or punishment, or that he believed that one of these consequences was substantially certain to result from his assistance. State v. Chism, 436 So.2d 464 (La.1983).

Joshua Lambert, Defendant’s nephew, was in the car with Sean Newton when Newton fired the gun out the window into the crowd and testified accordingly. Lambert stated at trial, after they drove away from the scene, Andre |4Broussard, who was also in the car, received a text that a little girl at the scene had been shot. Newton then called his mother and told her they had been in an altercation. She told them to hurry home, but they drove first to Lambert’s house where they hid the gun, and Newton burned his tee shirt.

Lambert and the two Newton boys then went to the Newton’s apartment, where Rodney and Nina Newton were waiting for them. After the Newtons heard what had happened, Nina Newton said she was going to call the police and tell them the boys were accosted by a gang at the mall and as they were leaving the mall, they heard gun shots so they hurried home. Lambert testified Defendant was present during this discussion. He stated that his uncle said “the story didn’t make any sense or anything, so we should have just told the truth.” However, “My Aunt Nina was, like, ‘No, because our baby is going to get in trouble and everything about the situation.’ So after she said that, he just went with it.”

Lambert further testified, after his aunt called the police the evening of the shooting, an officer came to the apartment and talked to them. After a while, the officer asked them to go to the police station. His uncle drove them all to the police station. Lambert stated after the police talked to his aunt and uncle, they all went back to the apartment. He testified Nina Newton told the police she was sending the boys to her brother in Lafayette the next day to get them out of harm’s way in light of the incident.

The next day, the three boys drove in Sean Newton’s ear to Iowa, Louisiana where they met up with their uncle who then took them to his place in Lafayette. Defendant and his wife followed the boys in their car to Iowa.

Defendant argues while he was present during the discussion of what to tell the police, he merely listened. In fact, Defendant contends he told the boys to tell the truth. He maintains the State failed to prove he had the requisite intent to aid or harbor the boys’ crimes from detection. He argues all the State proved at trial was |Bhe said nothing and that, in itself, is not a crime; accordingly, there was insufficient evidence he acted as an accessory after the fact.

In Chism, 436 So.2d 464, the defendant’s conviction for accessory after the fact was affirmed by the supreme court, and it was Chism’s failure to say or do anything that was discussed by the court. Chism, who was dressed as a woman, a male friend, and Chism’s uncle were driving around in a car, drinking beer. The friend wanted to have sex with Chism, and the uncle wanted to find his ex-wife for the same purpose. After they located the ex-wife, Chism and his friend sat in the car while the uncle tried to convince the ex-wife to join them. When she refused, he stabbed her several times. He then dragged her to the car, tossed her into the front seat with Chism, and directed the two friends to drive out to the countryside. There, he directed Chism and his friend to take the woman out of the car, and they laid her in the grass. The two men then left the uncle with the ex-wife and drove away. The next morning, Chism reported the incident to the police. The woman was found dead. Chism was eventually convicted as an accessory after the fact to second degree murder.

After noting there was overwhelming evidence that Chism’s uncle had committed a felony and Chism was aware of the offense, the supreme court discussed how Chism’s intent to assist his uncle escape arrest, trial, conviction, or punishment or belief that one of these consequences was substantially certain to result from his assistance, was established circumstantially:

Intent, like any other fact may be proved by circumstantial evidence. La. R.S. 15:445. This is evidence of one fact, or a set of facts, from which the existence of the fact to be determined may reasonably be inferred. McCormick, Law of Evidence, p. 435 (2d ed.1972); Prosser, Law of Torts, p. 212 (4th ed.1971). In criminal cases, the rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La.R.S. 15:438.
Circumstantial evidence involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or | ^inference by which a conclusion is drawn. Like all other evidence, it may be strong or weak; it may be so unconvincing as to be quite worthless, or it may be irresistible and overwhelming. There is still no man who would not accept dog tracks in the mud against the sworn testimony of a hundred eye-witnesses that no dog passed by. The gist of circumstantial evidence, and the key to it, is the inference, or process of reasoning by which the conclusion is reached. This must be based on the evidence given, together with a sufficient background of human experience to justify the conclusion. Prosser, supra, at 212.
Consequently, before a trier of fact can decide the ultimate question of whether a reasonable hypothesis of innocence exists in a criminal case based crucially on circumstantial evidence, a number of preliminary findings must be made. In addition to assessing the circumstantial evidence in light of the direct evidence, and vice versa, the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.
In this case we conclude that the evidence is sufficient to support an ultimate finding that the reasonable findings and inferences permitted by the evidence exclude every reasonable hypothesis of innocence. Despite evidence supporting some contrary inferences, a trier of fact reasonably could have found that Chism acted with at least a general intent to help Lloyd avoid arrest because: (1) Chism did not protest or attempt to leave the car when his uncle, Lloyd, shoved the mortally wounded victim inside; (2) he did not attempt to persuade Duke, his would-be lover, [to] exit out the driver’s side of the ear and flee from his uncle, whom he knew to be one-legged and armed only with a knife; (3) he did not take any of these actions at any point during the considerable ride to Willow Point; (4) at their destination, he docilely complied with Lloyd’s directions to remove the victim from the car and leave Lloyd with her, despite the fact that Lloyd made no threats and that his wooden leg had become detached; (5) after leaving Lloyd with the dying victim, he made no immediate effort to report the victim’s whereabouts or to obtain emergency medical treatment for her; (6) before going home or reporting the victim’s dire condition he went to a friend’s house, changed clothing and discarded his own in a trash bin from which the police were unable to recover them as evidence; (7) he went home without reporting the victim’s condition or location; (8) and he went to the police station to report the crime only after arriving home and discussing the matter with his mother.

Id. at 468-69 (footnote omitted).

|7As in Chism, in the current case, the evidence establishing Sean Newton’s felony was overwhelming. Three of the five men in the vehicle with Newton testified that he fired a single shot out of the car window into the crowd of men. Defendant was fully aware of the felony after being apprised of it by his son. Defendant’s behavior exhibited, as in Chism, at least the general intent to aid his son in avoiding the consequence of his actions. Defendant sat at his wife’s side as she lied to the officer at their apartment. He drove everyone to the police department and, apparently, again sat at her side while she and the boys lied to a different police officer. He signed a consent form for the officers to search his vehicle for any evidence of the shooting and still did not say anything. In Chism, the supreme court noted in a footnote an illustrative list of the type of “aid” contemplated by La.R.S. 14:25 and included in the list was the volunteering of false information to law enforcement officers. Id. at 467, n. 1. Defendant’s silence, combined with the opportunities he had to demonstrate an intent not to acquiesce in his wife’s and his sons’ cover-up, together with his overt act in following the boys to Iowa for the sole purpose of secreting his sons away speaks for him now.

Therefore, we find no merit to this assignment of error.

DECREE

For the foregoing reasons, Defendant’s conviction for accessory after the fact is affirmed.

AFFIRMED.