source: Caselaw Access Project

author: HANS J. LILJEBERG, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Carol H. BANKS.
    No. 13-KA-41.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District Court, Parish of Jefferson, Terry M. Boudreaux, Matthew Ca-plan, Ernest C. Chen, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Herbert V. Larson, Jr., Sara A. Johnson, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|20n August 10, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, Carol H. Banks, with three counts of La. R.S. 14:32, causing the deaths of Gerard Faucheaux, Nelson Faucheaux, and Shirley Faucheaux. Thereafter, the State filed three superseding bills of information, ultimately charging defendant with three counts of vehicular homicide in violation of La. R.S. 14:32.1(A)(6). On February 7, 2012, defendant pleaded not guilty to the charges.

Defendant proceeded to trial on August 16, 2012. On August 18, 2012, a six-person jury unanimously found the defendant guilty of three counts of the responsive verdict of negligent homicide, a violation of La. R.S. 14:32.

On May 10, 2012, the trial court denied defendant’s motions to reinstate order for presentence investigation, arrest of judgment, post verdict judgment of |sacquittal and new trial. On that same'date, the trial court sentenced defendant to imprisonment at hard labor for a term of five years on each count to be served concurrently. The trial court suspended two of the five years and ordered defendant, upon release from the custody of the Department of Corrections, to serve two years on home incarceration. The trial court thereafter granted defendant’s motion for appeal.

On June 20, 2012, the trial court denied defendant’s motion to reconsider sentence. Defendant’s appeal follows.

FACTS

Prosecution was initiated against defendant as a result of a multi-car collision that occurred on Interstate 10, between the Williams and Loyola exits, at approximately 3:30 p.m. on February 10, 2010. The collision resulted in the deaths of Gerard Faucheaux and his parents, Nelson and Shirley Faucheaux. All three victims died of blunt-force trauma sustained in the crash. The State maintained at trial that defendant knowingly consumed excessive amounts of dextromethorphan that led to her impairment and ultimately to the collision that caused the deaths of the three victims.

The collision

The facts surrounding the mechanics of the collision itself were largely undisputed at trial and were introduced through the expert testimony of accident reconstruc-tionists, Officer William Bagert of the Ken-ner Police Department and Trooper Trey Elliot of the Louisiana State Police. The accident reconstruction and witness statements revealed that four vehicles were involved in the crash: a Mercury Grand Marquis operated by defendant (Vehicle 1), a Toyota Sienna operated by Gerard Faucheaux (Vehicle 2), a Buick LeSabre operated by Mia Ahn (Vehicle 3), and a Chevrolet Tahoe operated by Hjalmar Breit (Vehicle 4).

| ¿Vehicles 1, 2, and 3 were travelling west on Interstate 10 with Vehicle 1 in the left lane, Vehicle 2 in the center lane, and Vehicle 3 in the right lane. Vehicle 1 made an erratic lane change from the left lane to the center lane, striking the left-rear bumper of Vehicle 2, as evidenced by the paint transfer from Vehicle 2 to Vehicle 1, and then veered into the right lane, striking the left-rear bumper of Vehicle 3. Vehicle 3 came to a controlled stop; however, the collision sent Vehicle 2 across the grassy, unobstructed median and into oncoming eastbound traffic, where it was unavoidably T-boned by Vehicle 4. It was stipulated that the occupants of Vehicle 2, Gerard, Nelson, and Shirley Faucheaux, died upon impact. Defendant, operator of Vehicle 1, continued westbound for approximately one-half of a mile before coming to a controlled stop on the right shoulder of Interstate 10.

The events that transpired leading to and following the collision, however, were largely disputed. Defendant’s version of events are as follows: Defendant testified that she took one capsule of non-drowsy Dayquil for a slight runny nose at approximately 6:00 a.m. on the day of the crash and could not remember if she took a second capsule at lunch that day. She explained that she took Dayquil in the past and did not suffer side effects. Defendant testified that she left work at the Upper Room Bible Academy in New Orleans East at 3:05 p.m. and was headed to Sam’s Club in Kenner. Defendant explained that she was driving west on Interstate 10 in the left lane when she glanced in her rearview mirror and observed a black SUV right on her rear bumper flashing its high beams. Defendant moved to the right lane to allow the black SUV to pass, but the black SUV instead positioned itself directly in front of her and slammed on its brakes. Defendant testified that she moved to the middle lane to avoid the black SUV, but the black SUV again moved in front of her, forcing defendant to slam on her brakes. She | ^testified that the force of having to slam on her brakes caused everything in her vehicle to hit the floor.

Defendant testified that the driver of the black SUV made an obscene hand gesture to her by putting up her middle finger and explained that she feared the driver would pull a gun and shoot at her car because of how crazy the black SUV was driving. She testified that she began to feel very warm and the back of her neck tight. She stated that she could not catch her breath and thought she might be having a heart attack. Defendant testified that the next thing she remembered was a boom sound and then her air bags inflated. She stated that she felt like she was floating, and it did not seem real. Defendant further testified that the car was smoking and there was a bad odor in the vehicle. Defendant finally guided herself over to the right and saw the Loyola exit. She testified that her head and chest were hurting and she bent down to look for her phone.

Defendant stated that she realized something had happened because her air bags deployed, but she did not know whether something hit her or if she hit something. She thought the woman in the black SUV possibly hit her. Defendant testified that from the time she became conscious of her surroundings and the time she pulled over, she did not notice anyone following her. Defendant then called 911.

Defendant eventually exited her vehicle and went to the trunk of her car to get an aspirin from her purse, but did not recall if she took the aspirin. She testified that she noticed a man in a white truck parked behind her, but she did not pay much attention to him.

Defendant testified that she did not know anything about the Toyota Sienna or the Buick LeSabre, and had no conscious memory of striking either vehicle. She further stated that she did not learn that three people were killed in the crash | Buntil after she was transferred to the Gretna jail and saw the news story on television.

Lisa Bradley testified at trial for the defense that she, too, was driving on Interstate 10 heading west through Kenner when she witnessed the crash. Ms. Bradley testified she was travelling in the center lane when defendant and a black SUV came along her right-hand side fairly fast. Ms. Bradley testified that it appeared that it was perhaps teenagers playing cat and mouse, and that the vehicles were weaving and bobbing in and out of traffic. Ms. Bradley testified that the black SUV was travelling approximately 80 — 85 miles per hour chasing the defendant. She stated that it appeared that defendant was trying to get away from the black SUV. Ms. Bradley testified that she observed a vehicle cross the median and get struck by a white pickup truck, but did not see the impact that caused the vehicle to cross the median. Ms. Bradley also called 911 and gave a statement to police.

Sean O’Brien King additionally testified that he witnessed the multi-car collision while heading westbound in the center lane. Mr. King testified that defendant’s vehicle drove alongside of him “just flying” at a high rate of speed. Mr. King testified that he saw defendant try to get over to the right lane, almost hit a vehicle, then jerk back over. Mr. King testified that when defendant jerked back to the center lane, she struck the Toyota Sienna, causing the Sienna to fishtail. Mr. King testified that the Sienna crossed into oncoming eastbound traffic, resulting in a massive collision.

Mr. King further testified that he observed defendant continue west on Interstate 10. Mr. King stated that he followed closely behind her and called 911. Mr. King testified that she eventually pulled over right before the Loyola exit because he was right on her bumper. Mr. King testified that defendant exited her JLvehicle, stared him down, and then went into her trunk and began moving objects around. Mr. King testified that defendant then sat in the backseat, emptied out a foam cup, and was “acting real weird,” behaving as if nothing happened. Mr. King testified that he did not see any vehicle following defendant, that all other vehicles were travelling at normal speeds, and that he did not see a black SUV near defendant’s vehicle.

Lena Liller testified that she observed the multi-car collision while heading west on Interstate 10 travelling in the far right-hand lane. Ms. Liller testified that she was about to exit at Loyola when she saw defendant’s vehicle drive on the left-hand side of her and hit the victims’ Sienna. Ms. Liller testified that the Sienna went tumbling over the median and into oncoming traffic. Ms. Liller testified that the Tahoe (Vehicle 4), travelling east, did not have a chance and slammed into the victims’ vehicle. Ms. Liller also testified that defendant veered into her lane, forcing Ms. Liller to swerve to the right shoulder of the road. Ms. Liller also observed defendant’s vehicle swipe and hit another vehicle in front of Ms. Liller. Ms. Liller also added that no one was chasing defendant and that she did not see a black SUV anywhere.

Mia Ahn testified at trial that she was driving a Buick LeSabre (Vehicle 2) on the date of the crash, traffic was very heavy, and someone hit her vehicle. Ms. Ahn also testified that she did not see a black SUV. Ms. Ahn was unaware who or what kind of vehicle struck her.

As noted above, Officer William Bagert of the Kenner Police Department’s traffic services section testified as one of the initial investigators on the scene and as an expert in accident reconstruction and investigation. In addition to his testimony regarding the reconstruction of the collision, he testified that he interviewed defendant at approximately 8:00 p.m., more than four hours after the | Scrash. Officer Bagert testified that defendant stated to him that she was involved in a road rage incident with a black SUV. She stated to him that the driver of the black SUV was a female who made obscene gestures at her.

Officer Bagert testified that defendant “acted strangely” and “didn’t seem right” at his initial meeting with her, but could not articulate a specific form of impairment such as dilated pupils or slurred speech. Officer Bagert did note, however, that defendant appeared disoriented and could not clearly recall the event. He stated that she “seemed that she was disassociated from what was going on. She was, like, in a separate reality.”

Officer Bagert acknowledged that it is possible that the deployment of an airbag could cause disorientation and irritated vision. He additionally testified that defendant was driving 10 to 15 miles per hour more than the victims’ vehicle, but could not make a determination as to defendant’s exact speed prior to impact.

Trooper Trey Elliot of the Louisiana State Police additionally testified as an expert in accident reconstruction and investigation. Trooper Elliot’s testimony greatly corroborated the testimony of Officer Bagert. He testified that while moving at a greater speed than the victims’ Sienna, defendant’s vehicle struck the victims’ vehicle at a 30 to 45 degree angle, which affected the center mass of the van causing it to rotate. Trooper Elliot testified that defendant’s Grand Marquis continued towards the right lane and collided with the Buick LeSabre. Trooper Elliot testified that while this occurred, the victims’ vehicle went across the center and left westbound lanes of Interstate 10 West, continued through the median, and was struck by the white Chevy Tahoe in a broadside collision. Trooper Elliot testified that defendant’s vehicle continued for about a half mile onto the exit area of Interstate 10 west of Loyola and came to a controlled stop on the right. Trooper Elliot testified the evidence that defendant’s vehicle came to a controlled stop | ^included that a half mile would not be a reasonable distance for a vehicle to travel while out of control, the manner the vehicle came to rest on the grass, and the manner the vehicle was parked in front of one light pole and essentially in between two light poles. Trooper Elliot also testified that he was unable to determine the exact speed of defendant’s vehicle.

Chemical Analysis

The parties stipulated that defendant voluntarily provided a blood sample on the date of the offense, and that chemical analysis of the sample revealed the presence of 74.6 nanograms of dextromethorphan per milliliter of blood (ng/mL) and an absence of any metabolites of dextromethorphan. In addition, no alcohol was detected in defendant’s blood.

Dr. William George, an emeritus professor at Tulane University, testified for the State as an expert in the fields of toxicology and pharmacology. Dr. George explained that dextromethorphan is a drug contained in numerous over-the-counter medications that claim to treat the symptoms of cough and cold, including Dayquil. The Dayquil retail packaging introduced into evidence at trial provided that one dose is two capsules and that each capsule contains “dextromethorphan HBr 10 mg.” Dr. George explained that dextromethor-phan, when taken at the recommended dosage, suppresses cough, but when taken at higher dosages may cause drowsiness, dizziness, and an effect “likened to that of certain other drugs like ketamine, which is a dissociative anesthetic,” in which a person “doesn’t really recognize exactly where [they] are or what’s going on.”

Dr. George testified that the standard recommended dose of dextromethorphan (20 milligrams or two capsules) will produce a blood level or concentration of 2 or 3 ng/mL or at most 4 ng/mL, assuming a person weighing |in160 pounds. Therefore, Dr. George testified that defendant’s blood concentration of 74.6 ng/mL of dex-tromethorphan was not consistent with defendant’s testimony at trial that she took one Dayquil capsule (10 mg) at approximately 6:00 a.m. on the day of the accident and possibly a second capsule (10 mg) at lunchtime. Instead, Dr. George explained that the concentration of dextromethor-phan in defendant’s blood was greater than one would expect from five doses in an average individual.

Upon reviewing a lab report introduced by the defense of genetic testing performed by Genelex, Dr. George explained that an analysis of defendant’s genetic makeup revealed that defendant has an atypical isoprene enzyme resulting in an inability to metabolize dextromethorphan. He further explained that the result of this inability is that a single dose of dextrome-thorphan would produce a higher blood concentration of dextromethorphan and a greater effect in defendant than it would in an average individual. This evidence, however, did not affect Dr. George’s opinion that a blood concentration of dextrome-thorphan of 74.6 ng/mL is irreconcilable with a person taking one or two doses of dextromethorphan, even assuming no metabolism whatsoever. Dr. George further testified, however, that based upon the lab report, he was unable to determine the quantity of the medication consumed by defendant, when it was consumed, or how frequently it was .consumed. He additionally testified that from a toxicology or pharmacology point of view, he could not determine whether defendant knowingly exceeded the dosage recommended by the manufacturer.

The defense additionally questioned Dr. George regarding the defense’s independent chemical testing of defendant’s blood. The independent testing was performed approximately two years after the blood sample was drawn from |n defendant and indicated a blood concentration of dextro-methorphan of only 13 ng/mL. When asked to explain the discrepancy in the results, Dr. George explained that it would be logical to expect some degradation in a blood specimen kept for two years.

Defendant’s Mental State

Last, the defense presented testimony of Dr. Jeffrey Nicholl, an associate professor and former director of neurology and psychiatry at Tulane University, as an expert in neurology, clinical neurophysiology, epilepsy monitoring and emergency medicine. Dr. Nicholl testified that in his opinion defendant suffered a syncopal episode and essentially fainted or “passed out” during the incident. Dr. Nicholl testified that defendant described symptoms of feeling flushed, having spots before her eyes, ringing in her ears, shortness of breath, palpitations, heart pounding, swea-tiness, and dizziness. Dr. Nicholl testified that the symptoms defendant described are classic “presyncope,” which is how a person feels right before one passes out from fainting. Dr. Nicholl testified that he had no reason to believe that defendant was being untruthful, and it would be unlikely for a person with no medical training to give him that set of symptoms to submit that they had fainted.

Dr. Nicholl further explained that during an actual syncopal event the brain is not getting enough oxygen, and the patient is unconscious. Dr. Nicholl testified that not everyone who is “presyncopal” actually loses consciousness. Dr. Nicholl explained that it is a sliding scale that depends on the degree of inadequate blood flow and that during a syncopal event a person can be unconscious, or could gray out and not remember what happened. Dr. Nicholl testified that he believed | ^defendant’s fear and anxiety from being harassed by the driver in the black SUV caused her to faint. He testified that defendant’s amnesia suggests there was a marked degree of lack of blood flow, but he could not say with certainty that she was totally unconscious without having examined her right at that moment.

Dr. Nicholl also testified that syncope is not one of the side effects listed in the literature and package insert of Dayquil and testified that through his evaluation of defendant and his research, he found nothing to suggest that dextromethorphan caused defendant to faint.

On cross-examination, Dr. Nicholl admitted that his conclusions were based on the subjective reporting of symptoms by the defendant. Dr. Nicholl additionally testified to the monetary amount he charges for his services and testimony.

Assignments of Error

Appellant presents the following issues for review on appeal: (1) whether the evidence is sufficient to support defendant’s convictions of negligent homicide; (2) whether the trial court committed reversible error in denying defendant’s requests for special jury instructions; and (3) whether defendant’s sentence is illegal.

Sufficiency of the Evidence

Appellant argues that the evidence presented at trial was not sufficient to support the verdicts of negligent homicide. Moreover, appellant argues that although negligent homicide is a statutorily responsive verdict to the charge of vehicular homicide, it is not a lesser included offense. Therefore, appellant argues that convictions for an offense that is not “truly responsive” or lesser-included to the charged offense violated defendant’s due process rights.

The State responds that defendant failed to make a contemporaneous objection to the inclusion of the responsive verdict of negligent homicide. Therefore, the State argues that, because the evidence supports the charged offense 1 T3of vehicular homicide, defendant’s convictions for the legislatively responsive offense should be affirmed, regardless of whether the evidence supports the responsive verdict.

When a defendant fails to object to a legislatively responsive verdict, the defendant’s conviction will not be reversed, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged. State v. Wilkinson, 00-339 (La.App. 5 Cir. 10/18/00), 772 So.2d 758, 765, writ denied, 00-3161 (La.10/12/01), 799 So.2d 494. The Louisiana Supreme Court explained in State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251-52 (La.1982), cert, denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983):

The 1982 amendment adding Section C to Article 814 now gives the trial judge discretion, on motion of either side, to exclude a responsive verdict which is not supported by the evidence. Therefore, even if the offense is legislatively designated as responsive by Article 814, the defendant may timely object to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict. If the court overrules the objection and the jury returns a verdict of guilty of the responsive offense, the reviewing court must examine the record to determine if the responsive verdict is supported by the evidence and may reverse the conviction if the evidence does not support the verdict.™14 However, if the defendant does not enter an objection (at a time when the trial judge can correct the error), then the reviewing court may affirm the conviction if the evidence would have supported a conviction of the greater offense, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury.
FN14. Of course, this applies only to a responsive verdict that is listed in Article 814 but is not truly a lesser and included grade of the charged offense.
It would be unfair to permit the Defendant to have the advantage of the possibility that a lesser “compromise” verdict will be returned (as opposed to being convicted of the offense charged) and then to raise the complaint for the first time on appeal, that the evidence did not support the responsive verdict to which he failed to object.

Ela.ire v. Blackburn, at 252.

[ 14Appellant asserts on appeal that “the defense objected to the trial court’s instructions that negligent homicide is a lesser offense of vehicular homicide, because it is a statutorily-created responsive verdict, but not a true lesser offense. This objection was overruled.”

Upon review of the transcript, however, appellant’s assertion is a mischaraeterization. The following exchange occurred between the trial judge and the parties at a bench conference regarding the proposed jury instructions:

The Defense: It’s not an objection to the accuracy or to the propriety of the charge, but it’s the sequence of things. Starting at Page 6, Your Honor.
The Court: Okay.
The Defense: Where you, I think, in a very nice neat way, starting with the paragraph that begins, “thus, in this case,” you outline the Vehicular Homicide elements.
The Court: Okay.
The Defense: And — -But the next paragraph gets to be, I think, confusing because you have — you don’t then go to first define the responsive verdict of Negligent Homicide; you just start telling them that the verdict has to be an appropriate response to the charge. And in order to — “If you’re not convinced,” and going on to Page 7, you I just think that the sequencing of it. It’s just a writing style. But you might wish to reorder it and do the Negligent Homicide and then tell them that if they don’t find Vehicular Homicide or they — and they don’t find Negligent Homicide. In other words, the language is fine; it’s just the sequencing in which it’s given.
⅝ ⅜ ⅝ ⅝ ⅜ ⅝
The Law Clerk: It’s explaining a responsive verdict, and it says “A responsive verdict of this charge.”
The Defense: Yeah. And ray own preference would be would be to use the word “responsive” as opposed to “lesser;” because this is not your classic “lesser” |1swhere it’s, you know, first and second degree or-It’s really a hybrid. It’s a responsive verdict.

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C.Cr.P. art. 841. “The defendant must state the basis for his objection when he makes it so that the trial judge has an opportunity to make the proper ruling and prevent or cure an error. The specific error which the trial judge is making must therefore be pointed out to the judge, and it is settled that defendant is limited on appeal to grounds for the objection articulated at trial.” State v. Jackson, 450 So.2d 621 (La.1984).

Here, appellant’s assertion, that it properly and contemporaneously objected to the inclusion of the responsive verdict of negligent homicide, is not supported by the record. The transcript reflects that defense counsel merely objected to the sequencing of the offenses, rather than the inclusion of the responsive verdict, expressly prefacing that his objection was not “to the accuracy or to the propriety of the charge.”

Moreover, viewing the record in its entirety, it reflects an overall acquiescence by defense counsel to the inclusion of negligent homicide as a responsive verdict. Such evidence includes defense counsel’s opening argument when defense counsel informed the jury that negligent homicide would be a responsive verdict, and at the close of trial when defense counsel urged a special jury instruction relating only to the responsive verdict of negligent homicide.

Viewing the totality of the record, we find that defense counsel did not contemporaneously object to the inclusion of the responsive verdict of negligent homicide to be charged to the jury. Accordingly, the proper question on appeal is whether the evidence was sufficient to support the charged offense, vehicular homicide.

| 1BThe standard of review for determining the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude the State proved the essential 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). Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt. State v. Alexander, 12-194 (La.App. 5 Cir. 5/16/13), 119 So.3d 120 (citing State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240). Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id.

The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Trepagnier, 07-749, 07-750 (La. App. 5 Cir. 3/11/08), 982 So.2d 185, 191, writ denied, 08-0784 (La.10/24/08), 992 So.2d 1033. When the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. Alexander, 12-194 (citing State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, ceri. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005)).

The testimony of one witness is sufficient support for a requisite factual finding, if believed by the trier of fact and there is an absence of internal contradiction or irreconcilable conflict with physical evidence. State v. Baker, 01-1397, p. 3 (La.App. 5 Cir. 4/30/02), 816 So.2d 363, 365. It is not for the appellate court to reweigh the evidence absent impingement on the fundamental due process |17of law. State v. Allen, 10-430, p. 9 (La.App. 5 Cir. 2/15/11), 62 So.3d 156, 162 (citing Bailey, 04-85 at 2-4, 875 So.2d 949, 954-55).

Moreover, when circumstantial evidence forms the basis of a conviction, La. R.S. 15:438 requires that the elements of the offense be proven so that every reasonable hypothesis of innocence is excluded. State v. Schnyder, 06-29, p. 5 (La. App. 5 Cir. 6/28/06), 937 So.2d 396, 400. “... [T]he pertinent question on review [is] not whether the appellate court found that defendant’s hypothesis of innocence offered a reasonable explanation for the evidence at trial but whether jurors acted reasonably in rejecting it as a basis for acquittal.” State v. Pigford, 05-0477, p. 5 (La.2/22/06), 922 So.2d 517, 520 (per cu-riam). All of the evidence, both direct and circumstantial, must be sufficient to satisfy a rational trier-of-fact that the defendant is guilty beyond a reasonable doubt. State v. Schnyder, supra.

La. R.S. 14:32.1, vehicular homicide, provides in pertinent part:

A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance, whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exist and such condition was a contributing factor to the killing:
6) The operator is under the influence of one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription and the influence is caused by the operator knowingly consuming quantities of the drug or drugs which substantially exceed the dosage prescribed by the physician or the dos- ■ age recommended by the manufacturer • of the drug.

The parties stipulated that the victims died of injuries sustained in the multi-vehicle crash. Moreover, the State presented witnesses, Sean O’Brien King and Lena Liller, who testified that they observed defendant hit the victims’ vehicle. Photographs were admitted reflecting how the damage to the victims’ vehicle matched up with the paint and grill damage to defendant’s vehicle. Moreover, | ^accident reconstruction experts, Officer Bagert and Trooper Elliot, both testified that defendant’s vehicle striking the victims’ vehicle was the impact that forced the victims’ vehicle across the median and into oncoming traffic. Therefore, a rational trier of fact could find that the State satisfied beyond a reasonable doubt that defendant’s operation of a motor vehicle was the proximate or direct cause of the killing of three human beings.

The defense offered expert testimony of Dr. Nicholl that defendant was indeed not in control of her vehicle, but had fainted and was unconscious immediately prior to and for a brief period of time after the collision; however, Dr. Nicholl admitted that his opinion was solely based on defendant’s subjective reporting of symptoms. Moreover, several witnesses’ recollection of the events that transpired on Interstate 10 contradict defendant’s claim that she fainted due to anxiety and fear brought on by a road rage incident with a black SUV. Witnesses consistently testified that defendant was travelling at a high rate of speed, bobbing and weaving in and out traffic before colliding with two vehicles, including the victim’s vehicle, sending it across the median into oncoming traffic. Witnesses as well as the accident reconstruc-tionists consistently testified that defendant continued travelling for a half mile, with her air bag deployed, before eventually coming to a controlled stop on the right shoulder of Interstate 10. Moreover, two witnesses testified that the black SUV that defendant claimed harassed her, did not exist. Based on this testimony, a rational trier of fact could find that defendant was in fact conscious and in control of her actions and her vehicle.

The State offered scientific blood evidence, drawn from defendant on the date of the crash, revealing a blood concentration of dextromethorphan, the active ingredient in Dayquil, of 74 ng/mL. State’s expert, Dr. George, testified that one dose of Dayquil or 20 milligrams of dextrome-thorphan would produce _ a blood | ^concentration level of 2 ng/mL to 4 ng/ mL. Defendant testified at trial that she took one capsule of Dayquil (10 mg) at approximately 6:00 a.m. and possibly another (10 mg) at lunchtime. Dr. George testified that defendant’s blood concentration of dextromethorphan, however, reflected nearly five times the maximum recommended four doses per day. The defense presented genetic testing of defendant that Dr; George confirmed showed that defendant had an inactive enzyme that inhibited her from metabolizing dex-tromethorphan. Despite this evidence, however, Dr. George testified that this genetic finding did not affect his opinion that a blood level of 74.6 ng/mL is irreconcilable with a person taking one or two doses of dextromethorphan, even assuming no metabolism whatsoever. Dr. George further testified, however, that based upon the lab report, he was unable to determine the quantity of the medication consumed by defendant, when it was consumed, or how frequently it was consumed. Moreover, when questioned about independent testing done by the defense of the blood, indicating only a 13 ng/mL dextromethor-phan concentration, Dr. George explained that there would be degradation of the blood sample after two years. Although defendant maintained that she took only one to two capsules of Dayquil on the date of the crash, a rational trier of fact, based on the blood evidence and expert testimony of Dr. George, could have rejected defendant’s testimony and found beyond a reasonable doubt that defendant consumed more than the recommended dosage of Dayquil.

Furthermore, Dr. George testified that at high doses, such as 74 ngdnL, dextro-methorphan can act like a “dissociative anesthetic,” in which a person “doesn’t really recognize exactly where [they] are or what’s going on.” The State presented evidence and testimony from multiple witnesses attesting to defendant’s strange behavior on the date of the crash consistent with Dr. George’s description. Sean O’Brien King testified that defendant acted “weird,” and behaved like [ 2onothing happened. Officer Bagert testified that while someone could be disoriented by the deployment of an air bag, defendant “acted strangely,” “didn’t seem right,” and “seemed that she was disassociated from what was going on,” “like, in a separate reality.” These witness observations, taken together with the fact that defendant continued to travel for a half mile with her air bag deployed, in light of the toxicologist’s testimony concerning the effects of high doses of dextromethorphan, support a finding by a rational trier of fact that defendant was in fact impaired by the high levels of dextromethorphan in her blood at the time of the crash.

Accordingly, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude the State proved the essential elements of vehicular homicide beyond a reasonable doubt. As such, the evidence was sufficient to support the responsive verdicts of negligent homicide.

Jury Charges

On appeal, appellant asserts that the trial court erroneously denied four defense requests for special jury instructions relating to legal presumptions, sudden emergency, justification and unconsciousness.

La.C.Cr.P. art. 802 provides that the trial court “shall charge the jury ... [a]s to the law applicable to the case[.]” The State and the defendant shall have the right to submit special written jury charges. La.C.Cr.P. art. 807. The court shall give a requested special jury charge “if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.” La.C.Cr.P. art. 807. See also State v. Tate, 01-1658, p. 20 (La.5/20/03), 851 So.2d 921, 937, cert, denied, 541 U.S. 905, 124 5.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Fasola, 04-902, p. 19 (La.App. 5 Cir. 3/29/05), 901 So.2d 533, 545, twit |2idenied, 05-1069 (La.12/9/05), 916 So.2d 1055. Failure to give a requested jury charge constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Harris, 01-2730, p. 46 (La.1/19/05), 892 So.2d 1238, 1261, cert, denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005).

A. Special Jury Instruction as to Legal Presumptions

Appellant argues that the trial court’s denial of defendant’s requested jury charge regarding the legal presumption that arises when evidence is not disclosed by the prosecution was reversible error. Specifically, defense counsel proposed that the judge read the text of La. R.S. 15:432 to the jury. The transcript reflects the following exchange between the court and defense counsel:

The Court: There is no evidence that the State didn’t produce something to you.
Defense: Well, how about the fact that the State did not call as a witness for the Prosecution the man that actually drove into the vehicle and killed those people. They didn’t call him. That’s evidence under their control.
The Court: I’m going to deny it.

Now, for the first time on appeal, appellant argues that the instruction should have been given because the State failed to disclose the videotape of defendant being Mirandized and the State failed to properly preserve defendant’s blood sample to ensure the sample could be independently tested by the defense.

|g2A defendant must state the basis for the objection when it is made in order for the trial court to have the opportunity to make the proper ruling and prevent or cure an error. State v. Jackson, 450 So.2d at 634. The specific error must be pointed out to the trial judge, and defendant is limited on appeal to the grounds for the objection articulated at trial. Id.

Because appellant is limited to the grounds for the objection articulated at trial regarding the special jury instruction relating to La. R.S. 15:432, the instant assignment of error is not properly before this court and will not be reviewed.

B. Special Jury Instruction as to “Sudden Emergency

Appellant argues that the trial court’s denial of defense request for a special jury instruction regarding sudden emergency as stated in a Louisiana Civil Law Treatise was reversible error. At trial, defense counsel argued that because sudden emergency is a defense to a claim of negligence in a civil suit, then it must also be a defense to a charge of criminal negligence. Specifically, defense counsel’s written request for special jury instruction on “sudden emergency” stated:

Sometimes a person finds herself in an emergency not of her own making. This does not really change the standard of care to which we hold such a person but it does mean that you must take into account the circumstances of sudden emergency. If the defendant was in a position of imminent peril which she could not have anticipated, without sufficient time to consider the best way to avoid an approaching danger, she is not negligent if she fails to choose what subsequently and upon calm reflection might appear to have been a better method of avoiding the danger. Of course, the mere fact that the defendant faced an emergency does not make her conduct reasonable.
While you should consider the emergency in determining the reasonableness of her conduct, you may determine that her conduct in the face of the emergency was nonetheless unreasonable.

During a bench conference, the trial court denied the requested jury instruction on sudden emergency as an incorrect statement of law. The trial court stated that the jury instruction was not appropriate because it is used in civil cases | Mto rebut a presumption of negligence which does not exist in criminal cases. The trial court further stated that the statute on negligent homicide does not impose an affirmative duty and reasoned that it would confuse the jury.

A requested jury charge “need not be given if it is included in the general charge or in another special charge to be given.” La.C.Cr.P. art. 807. Defendant’s requested jury instruction directing the jury to consider the “circumstances of sudden emergency” and whether defendant’s “conduct” was “reasonable” or “unreasonable” under those circumstances is already included in the general charge regarding negligent homicide. Within the jury instruction regarding negligent homicide, the trial court instructed the jury that:

Criminal negligence exists when there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful [person] under similar circumstances.
In order to have the [sic] criminal negligence, it is not sufficient that a person merely fail to act reasonably. The conduct must be so far below that expected of a reasonably careful person that it is to be considered gross deviation.

Here, the trial court clearly instructed the jury to consider the circumstances and whether defendant’s conduct was reasonable under those circumstances. In addition, the jury was presented with defendant’s theory of sudden emergency relating to the road rage incident with a black SUV. The defense presented this theory through the testimony of defendant, Ms. Bradley, Dr. Nicholl, and through defense counsel’s closing argument. Therefore, we find that the trial court properly denied defendant’s requested jury instruction regarding sudden emergency.

C. Special Jury Instruction as to Justification

Defendant requested special jury instructions relating to justification. The trial court read the following instruction on justification:

^When considering the responsive verdict of Negligent Homicide, the Defendant is asserting a defense of justification. The Defendant’s conduct, otherwise criminal, is justified if the offense charged consists of a failure to perform an affirmative duty and the failure to perform is caused by physical impossibility.
Thus, if you find that the offense of Negligent Homicide in this case consists of the Defendant’s failure to perform an affirmative duty and two, that the Defendant’s failure to perform was caused by physical impossibility, then you must find the Defendant not guilty of Negligent Homicide.

The trial court declined to read that portion of defendant’s requested instruction that stated:

If you find that the defendant has raised the defense that her conduct is justified, the State must prove that the defendant’s conduct was not justified. Remember, the State bears the burden of proving the guilt of the defendant beyond a reasonable doubt.

Appellant argues that the trial court’s limited instruction on justification was error.

As stated above, the court shall give a requested special jury charge “if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent.” La.C.Cr.P. art. 807. We find that the trial judge properly excluded that portion of the proposed jury instruction placing the burden on the State to prove defendant’s conduct was not justified as it is not a correct statement of the law. The defense of justification is an affirmative defense that must be proven by the defendant by a preponderance of the evidence. State v. Landry, 381 So.2d 462 (La.1980).

D. Special Jury Instruction on Unconsciousness

Additionally, we find that the trial court properly denied defendant’s request for special jury instruction regarding unconsciousness. Defendant filed a written requested jury instruction requesting that:

[P]ursuant to C.Cr.P. art. 807, R.S. 14:18(5), the Due Process Clauses of the United States and Louisiana Constitutions, Corpus Juris 125Secundum, Volume 22, § 131 and American Jurisprudence, Second Edition, Volume 21, § 42, that the Court incorporate the following into its general charge instructions regarding “unconsciousness,” to wit:
A person who was not conscious at the time of the conduct that is alleged to constitute the criminal negligence cannot be found to have had such a disregard of the interests of others such that the person’s conduct amounts to a gross deviation below that standard of care, and that person may assert the defense that the conduct was justified because she was unconscious at the time of the alleged criminally negligent conduct, the state must prove that defendant’s conduct was not justified.

(Emphasis omitted).

At the conclusion of the bench conference, the trial court denied the requested jury charge on unconsciousness stating that it was an incorrect statement of law. The trial court also found that the jury instruction would confuse the jury and that unconsciousness was included in the general charge of criminal negligence. Appellant argues that the denial of the instruction was error.

Again, the court shall give a requested special jury charge “if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.” La.C.Cr.P. art. 807. Again, the proposed instruction places a burden on the State that does not exist and is not a correct statement of the law. Further, an instruction on unconsciousness was addressed and included in both the general charges of criminal negligence and negligent homicide. Accordingly, we find that the trial court’s exclusion of the requested special jury instruction was not an abuse of discretion and was proper.

Illegal Sentence

Appellant argues that defendant’s sentence is illegal. Specifically, appellant avers that the trial court imposed multiple sentences upon defendant, increasing defendant’s “original” sentence from “essentially, three years at hard labor and two | ¡¡¿years of active probation, to three years at hard labor and two years of home incarceration.”

The State responds that the trial court’s imposition of home incarceration instead of active probation was the result of four bench conferences and two brief recesses. The State asserts that the trial court explained that the change was due to the fact that the State previously did not agree to home incarceration but then later agreed. The State argues that defendant’s assignment of error is without merit, and defendant’s conviction and sentence should be affirmed.

The record reflects that the trial court initially imposed a sentence of “five years at hard labor on each count, to run concurrently with one another; three years imposed, two years active probation.” Following four bench conferences and two brief recesses, the trial court then stated: “the sentence is five years at hard labor, three years imposed, two years on home incarceration.” The trial court made clear that the sentencing hearing was ongoing and that her change in imposition of active probation to home incarceration was due to the State’s acquiescence to defendant being placed on home incarceration. The State’s acquiescence to home incarceration is evidenced by the transcript wherein the prosecutor stated that the State took no position and did not oppose defendant being placed on home incarceration.

La.C.Cr.P. art. 894.2 states in pertinent part:

A. Notwithstanding any other provision of law to the contrary, a defendant may be placed on home incarceration under the following conditions:
(1) The defendant is eligible for probation or was convicted of a misdemeanor or a felony punishable with or without hard labor.
(2) In felony cases, either:
(a) The Department of Public Safety and Corrections, through the division of probation and parole, recommends home incarceration of the defendant and specific conditions of that home incarceration; or
|27(b) The district attorney recommends home incarceration.

Here, defendant was convicted of three counts of negligent homicide, a felony offense punishable with or without hard labor. As such, the trial court acted within her wide sentencing discretion to impose a sentence of home incarceration upon defendant’s release from the Department of Corrections.

Moreover, we are not persuaded by appellant’s argument that the trial court imposed multiple sentences that were either more onerous or vindictively imposed. The trial court’s initial pronouncement of sentence was never final and the sentencing hearing was ongoing. Moreover, defendant did not object to the sentence as vindictive at the hearing, nor was this issue raised in defendant’s motion to reconsider sentence.

Accordingly, this assignment of error lacks merit.

Error Patent Review

This Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 387 (La.1975) and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). A review of the record reveals an error patent in this case.

La.C.Cr.P. art. 894.2(C), Home incarceration; requirements, provides:

The court shall specify the conditions of home incarceration when it imposes such sentence upon the defendant. The conditions may include any condition reasonably related to implementing or monitoring a sentence of home incarceration, including curfew, electronic or telephone monitoring, home visitation by persons designated by court, and limitation of the defendant’s activities outside of the home.

It appears that the trial court in this case failed to specify the conditions of home incarceration at the time of sentencing. This Court has recognized the failure to comply with this requirement as a patent error and remanded the matter for a hearing regarding the conditions of home incarceration. See State v. Hebert, 02-[1252,2S pp. 10-11 (La.App. 5 Cir. 4/8/03), 846 So.2d 60, 66-67; State v. Parent, 01-50 (La.App. 5 Cir. 5/30/01), 788 So.2d 685, 690; State v. Delanueville, 11-379, pp. 20-22 (La.App. 5 Cir. 2/14/12), 90 So.3d 15, 29-30, writ denied, 12-0630 (La.09/21/12), 98 So.3d 325. When a defendant has signed a form outlining the • conditions of home incarceration, this Court has found that to be sufficient to inform the defendant of the conditions. Hebert, supra, at 66-67. However, nothing in the record suggests that defendant signed a form outlining such conditions. Thus, we remand the matter to the trial court to impose conditions of defendant’s home incarceration.

Decree

Considering the foregoing, we affirm defendant’s convictions and sentences. We remand the matter to the trial court to comply with the provisions of La.C.Cr.P. art. 894.2.

AFFIRMED & REMANDED FOR COMPLIANCE WITH LA, C.CR.P. ART. 894.2.

      . The original bill of information did not specify or describe the crimes charged.

      . The trial court denied defendant's motion to quash the bill of information, alleging La. R.S. 14:32.1(A)(6) to be unconstitutionally vague.

      . Defendant testified at trial that at the time of the collision, she weighed 250 pounds.

      . Evidence custodian, Sergeant Alan Abadie of the Kenner Police Department, testified that the blood evidence, once tested, was placed, unrefrigerated, on a shelf for the two years prior to the independent testing conducted by the defense.

      .Dr. Nicholl specifically was not recognized as an expert in toxicology and pharmacology.

      . § 432. Effect of legal presumptions; rebutting evidence; illustrations
      A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; such is the presumption attaching to the regularity of judicial proceedings; that the grand jury was legally constituted; that public officers have done their duty; that a relation or subject-matter once established, continues, but not that it pre-existed; that the defendant intended the natural and probable consequence of his act; that the defendant is innocent; that the defendant is sane and responsible for his actions; that the person in the unexplained possession of property recently stolen is the thief; that evidence under the control of a party and not produced by him was not produced because it would not have aided him; that the witnesses have told the truth.


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Jason M. KIGER.
    No. 13-KA-69.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Matthew Caplan, J. Brandon Kinnett, Assistant District Attorneys, Gretna, Louisiana, for PlaintiffAp-pellee.
    Frank Sloan, Attorney at Law, Mande-ville, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12Pefendant, Jason M. Kiger, appeals his conviction of aggravated rape in violation of La. R.S. 14:42 and his sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence from the 24th Judicial District Court, Division “D”. For the following reasons, we affirm Defendant’s conviction and sentence and remand the matter to the trial court with instructions.

FACTS AND PROCEDURAL HISTORY

On October 13, 2011, the Jefferson Parish Grand Jury returned a true bill of information charging Defendant with one count of aggravated rape, a violation of La. R.S. 14:42. Defendant was arraigned on October 14, 2011, and pleaded not guilty. Defendant filed various omnibus motions, including a Motion to Suppress Statement, which was denied by the trial court on August 16, 2012. Defendant’s trial commenced on October 23, 2012.

liiDuring trial, the victim, J.L., testified that she grew up with Defendant in Mar-rero and had a “horrible” relationship with him when she was very young. When J.L. was eight years old, Defendant began to touch her vagina and make her touch his penis, and he would also fondle her breasts. These activities took place in Defendant’s bedroom on occasions when her parents were out of town. Defendant told J.L. not to say anything because if her parents found out they would get into trouble, and “everybody would go to jail.” Defendant watched her and her brother when her parents were not in the house.

J.L. recounted how Defendant progressed from fondling her to forcing her to perform oral sex upon him until he ejaculated. Defendant forced J.L. to perform oral sex upon him for approximately one year. When J.L. asked Defendant why he was doing this, Defendant replied that “it’s normal.” J.L. did not tell anyone about what was being done to her by Defendant.

After approximately one year, Defendant’s abuse of J.L. further escalated into sexual intercourse. J.L. testified that Defendant made her tell her parents that she was afraid to sleep in her own room; subsequently, she slept in Defendant’s bed, where the first rape occurred. She said that it hurt and that she had never previously had sexual intercourse. Defendant continued to have sexual intercourse with J.L. from the time she was eight until she was 12 years old and in the seventh grade. During this time frame, she never told anyone about the sexual abuse.

As she got older, J.L. attempted to resist Defendant. On one occasion, she locked herself in her bedroom, and Defendant punched a hole through the door while attempting to get into the room. Defendant told J.L.’s parents that the hole |4in the door was created when he fell and hit his head. Defendant changed his residence not too long after J.L. turned 12. Defendant is approximately eight years older than J.L.

Many years later, J.L. first revealed what Defendant had done to her to a male relative, J.K. While at a family event, J.K. confided in J.L. that he had been molested by Defendant as a child. J.L. then told J.K. that she had been sexually abused by him as well. J.L. and J.K. agreed to share information with their respective spouses. For two to three years after their initial conversation, J.L. and J.K. were unsure about whether they should involve the police.

Near the end of May 2011, J.L. had a conversation with Defendant’s sister-in-law, K.M., wherein K.M. disclosed that she was uncomfortable that Defendant took showers with her four-year-old niece. J.L. immediately left to call J.K. to let him know that she was going to tell her parents about what Defendant had done to them. After speaking with her parents and Defendant’s wife, J.L. went to a police station on the West Bank of Jefferson Parish to file a complaint. She was later contacted by Detective Fernandez and gave an interview regarding Defendant.

On cross-examination, J.L. stated that Detective Fernandez’s report would have been inaccurate if it said that J.K. did not know about the abuse of J.L. until a few days prior to when the report was made. J.L. told Detective Fernandez that that the incidents occurred from the time that she was eight to eleven years old, and Defendant was 16 to 19 years old. She told Detective Fernandez that Defendant would make her hurry and clean up upon “completion of an activity.” J.L.’s grandmother did not live with her family until she was in high school, but ^occasionally her grandmother was in the home when Defendant sexually abused her. J.L. testified that it hurt the first time that Defendant fully penetrated her vaginally, and she cried a lot. After Defendant had sex with her, he would make her clean herself in a shower attached to the bedroom. Defendant forced her to remove her clothing while she was in his room; thus, she was not aware that any of her clothes had ever become stained with either blood or semen.

After becoming an adult and having children, J.L. allowed Defendant to pick up her minor children from school, but only if he was accompanied by his wife. At one point in time, J.L., her husband, Defendant and his wife shared residence of a home that had been subdivided. J.L. saw and spoke with Defendant at various family gatherings over the years.

On redirect examination, J.L. testified that Defendant used a condom when he vaginally penetrated her. With respect to the times that Defendant interacted with J.L.’s own children, J.L. stated that she taught her children the difference between a “good touch” and a “bad touch,” as well as how to protect themselves from abuse.

The second witness to take the stand was J.K. J.K. testified that Defendant is approximately 5½ years older than he is. On September 26, 2008, J.K. was celebrating his upcoming marriage and had completed a church-sponsored marriage preparation class for couples. Part of the class required participants to share their “deepest, darkest secret” with the woman they were going to marry. That day, J.K. told his fiancée that Defendant had molested him when he was between the ages of five and eight years old. Later that night, J.K. told J.L. what Defendant had done to him. In turn, J.L. told J.K. what Defendant had done to her, though not in great detail at that time.

1 fiJ.K. testified that the first time Defendant abused him was between the ages of five and eight. Defendant had a pop-up tent set up in his room, and had obtained pornographic magazines. Defendant invited J.K. into the tent and showed him the pornographic materials. As J.K. became aroused, Defendant performed oral sex upon him while masturbating. J.K. stopped Defendant from continuing the act. J.K. never performed oral sex upon Defendant, even though he was asked to do so. J.K. testified that there were two incidents he could recall when this type of behavior occurred. J.K. attempted to tell his mother about the incidents but became afraid. He also told his father about the incidents. J.K. was not aware of any repercussions against Defendant other than he had to get rid of the pornographic magazines. After J.K. and J.L. exchanged information about their abuse at the hands of Defendant, the only plan was to inform their parents, not call the police.

On cross-examination, J.K. testified that Defendant was roughly between 11 to 14 years old when Defendant performed oral sex on him. Approximately four to five years had passed between the time of his conversation with J.L. about the abuse by Defendant and the time that he spoke to police. After high school, J.K. and Defendant went on several trips together to see concerts and events in Northern Alabama and the Mississippi Gulf Coast. J.K. also lived with Defendant and another roommate for a few weeks in Houston, Texas, after Hurricane Katrina. At the time of those trips, J.K. and Defendant were roughly the same size; so, J.K. was no longer afraid of Defendant.

H.K. testified that he is the father of J.K. and J.L. H.K. recounted that there was an incident in seventh grade when J.L.’s school called to inform him that J.L. had told a teacher that she wanted to commit suicide. J.L. was never sent to a psychiatrist outside of school. H.K. recalled the time when J.K. told him that 17Pefendant had asked J.K. to do something sexually inappropriate. H.K. said he confronted Defendant about the accusation then spoke to J.K., but “things seemed to be okay.” H.K. stated that there was an incident when Defendant punched a hole in a door. J.L. was living in the room at that time. H.K. did not recall hearing anything inappropriate going on in the house.

Detective Randall Fernandez of the Jefferson Parish Sheriffs Office testified that he formerly was assigned to the Personal Violence Section, which investigates sex crimes. He was placed in charge of the investigation of the instant case in June of 2011 after the victim, J.L., filed the initial report that she had been the victim of sexual abuse by Defendant.

Detective Fernandez interviewed J.L., who advised him that she had been fondled, forced to perform oral sex, and vaginally penetrated by Defendant from the time that she was eight and one-half years old until she was 12 years old. He also interviewed J.K., who “confirmed certain things involving the case.” Finally, after interviewing the parents of J.L. and J.K., Detective Fernandez authored an arrest warrant for the crime of aggravated rape and personally arrested Defendant. Defendant was taken to the Investigations Bureau, where he was advised of his rights in writing and then interviewed. At that time, Defendant gave a partial confession admitting to inappropriately touching J.L.

Prior to his statement, Defendant initialed the Jefferson Parish Sheriffs Office Rights of Arrestee or Suspect’s Form after being advised of his rights. A microcas-sette of Defendant’s first statement was entered into evidence by the State. Detective Fernandez testified that Defendant gave a second statement where he admitted to skin to skin contact with J.L. and fondling her vaginal area, rather than over her clothes, as he had stated in his first confession. The second statement of Defendant was also entered into evidence by the State.

| ^Defendant testified on his own behalf. He stated that he was threatened by police that if he did not cooperate with the investigation, he would never see his wife and daughter again. He also denied raping J.L. Defendant said that on many occasions, he would pick J.L.’s children up from school unsupervised.

Defendant worked for J.L.’s grandfather’s business during high school and spent three weekends a month there during the school year. During the summer months, he worked there almost every weekend. If J.L.’s parents were not at home, J.L.’s grandmother was there to watch the house.

Defendant testified that he did not know why J.L. and J.K accused him of raping and molesting them. Defendant said that he lied in his statements to police when he admitted to sexually abusing J.L.

Next, K.K., Defendant’s wife, was called as a State’s witness. She testified that she had received a letter from Defendant dated July 4, 2011. The letter was introduced into evidence by the State. The letter read, in part, “I want to let you know that whatever they charge me with, I’m going to accept it and do my time. I cannot apologize enough that I’m not there for you and [our child].”

At the conclusion of the presentation of evidence, the 12-person jury found Defendant guilty as charged. Defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. This timely appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Defendant alleges: 1) the trial court erred in permitting the State to introduce evidence of an unadjudicated crime allegedly committed when he was between 11 to 14 years old as evidence of a lustful disposition towards children, and 2) the sentence imposed by the trial court unconstitutionally deprives him of a meaningful opportunity for parole.

|c,LAW AND ANALYSIS

Evidence of Lustful Disposition towards Children

Defendant alleges that the trial court erred in allowing the testimony of J.K, who recounted that he had been molested by Defendant between the ages of five and eight. Defendant asserts four factors that weighed against the introduction of J.K.’s claims of prior acts of sexual misconduct. In summary, the alleged factors are: 1) J.K.’s reliability; 2) Defendant’s age at the time the alleged sexual abuse took place; 3) the dissimilarity of the charged offense to the alleged prior offense; and 4) J.K’s testimony is inherently unfairly prejudicial and has a strong propensity to lure the fact-finder into declaring guilt on a ground different from proof specific to the charge.

Conversely, the State argues that the trial court properly allowed the testimony in under La. C.E. 412.2. because the probative value of J.K’s testimony outweighed any prejudicial effect.

Prior to trial, the State filed a Notice of Intent to Introduce Evidence of Similar Crimes in Sex Offense Cases Pursuant to La. C.E. art. 412.2. The State recounted in its motion that Defendant had been charged in the instant case with Aggravated Rape of a Juvenile between the dates of August 15, 1990 and February 14, 1998. The State further stated that between the dates of January 1, 1984 and January 1, 1987, while Defendant was a teenager, he performed oral sex on J.K., an eight-year-old, and attempted to have J.K. perform oral sex upon him. While conceding that the time for prosecuting Defendant for that offense had lapsed, the State argued that the acts alleged by J.K. fell “squarely within the provisions of La. C.E. art. 412.2 to show ‘[a] lustful disposition of the defendant toward children.’ ”

In the hearing on the State’s motion, defense counsel argued that the acts sought to be introduced allegedly happened while Defendant was a juvenile | ^himself, while the instant case related to alleged acts Defendant committed as an adult. Defense counsel concluded that the prejudicial impact of J.K’s testimony would outweigh the probative value.

The fundamental rule in Louisiana governing the use of evidence of other crimes, wrongs, or acts is that such evidence is not admissible to prove that the accused committed the charged crime because he has committed other such crimes in the past. State v. Williams, 09-48 (La. App. 5 Cir. 10/27/09); 28 So.Bd 357, 363, writ denied, 09-2565 (La.5/7/10); 34 So.3d 860. The Louisiana Supreme Court first recognized a “lustful disposition” exception to the general rules of evidence in State v. Cupit, 189 La. 509, 179 So. 837 (1938). Williams, 28 So.3d at 364. In 2001, the legislature codified this lustful disposition exception in La. C.E. art. 412.2.

La. C.E. art. 403 provides that, “[ajlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion. This same standard is applied to rulings on the admission of other crimes evidence and evidence under La. C.E. art. 412.2. State v. Wright, 11-0141 (La.12/6/11); 79 So.3d 309, 316-17. In enacting Article 412.2, “the Legislature did not see fit to impose a restriction requiring such evidence to meet a stringent similarity requirement for admissibility.” Id. at 317. Article 412.2 was enacted to loosen restrictions on “other crimes” evidence and to allow evidence of “lustful disposition” in cases that involve sexual offenses. Id. at 318.

Thus, pursuant to La. C.E. art. 412.2, evidence of a prior sexual offense indicating that the defendant has a lustful disposition toward children is admissible | nif relevant and if the probative value outweighs the prejudicial effect. Williams, 09-48 at 11; 28 So.3d at 364; State v. Olivieri, 03-563 (La.App. 5 Cir. 10/28/03); 860 So.2d 207, 218.

At the trial court level, Defendant did not file a memorandum opposing the State’s Notice of Intent to Introduce Evidence of Similar Crimes in Sex Offense Cases Pursuant to La. C.E. article 412.2. Furthermore, during the motion hearing, defense counsel did not raise or argue the issues of either J.K.’s reliability or the dissimilarity of the charged offense to the alleged prior offense.

In order to preserve the right to appellate review of an alleged trial court error, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. La.C.Cr.P. art. 841(A). Both this Court and the Louisiana Supreme Court have recognized that a new basis for an objection may not be raised for the first time on appeal. State v. Cooks, 97-0999 (La.9/9/98); 720 So.2d 637, 644, cert, denied, 526 U.S. 1042, 119 S.Ct. 1342, 143 L.Ed.2d 505 (1999); State v. Burdgess, 434 So.2d 1062, 1067 (La.1983); State v. Winfrey, 97-427 (La.App. 5 Cir. 10/28/97), 703 So.2d 63, 77, writ denied, 98-0264 (La.6/19/98); 719 So.2d 481.

Accordingly, we pretermit the analysis of J.K.’s reliability or the dissimilarity of the charged offense to the alleged prior offense because they were not first presented to the trial court for consideration. We will now address Defendant’s remaining issues.

Defendant argues that his status as a minor at the time of the alleged offense against J.K. should have precluded J.K’s testimony, and that the testimony was unfairly prejudicial. It is noted that the Louisiana Supreme Court considered a similar issues in State v. George, 11-0325 (La.2/23/11); 55 So.3d 788. In that case, the trial court ruled that the defendant’s prior unadjudicated act of attempted 112forcible rape committed when he was 15 years of age would be highly probative in the defendant’s trial of forcible rape by revealing the defendant’s modus operandi and lustful disposition. The trial court held the introduction of the evidence would be barred because of its prejudicial nature.

In reversing the trial court’s ruling, the supreme court held specifically that, “The introduction of evidence of unadjudicated juvenile offenses is allowed under both C.E. arts. 404(B) and 412.2. Whether the introduction of such offenses is allowed, however, is controlled by C.E. art. 403.” Id. The court concluded,

Article 403, though, does not allow for the exclusion of relevant evidence if its probative value is equal to its prejudice. Instead, the evidence of defendant’s pri- or unadjudicated act of forcible rape should have been ruled inadmissible only if “its probative value is substantially outweighed by the danger of unfair prejudice.” Id. [Emphasis in original].

In addressing the defense counsel in the instant matter, the trial court stated the following during the State’s motion:

Had [defendant] been charged with this offense, this would not be allowed in— into Court. But he wasn’t. It’s merely — it’s merely [J.K.] coming into court, subject to your cross examination, as to whether or not it happened, why he didn’t report it, and all the other things that happen in a trial; and the jury can consider whether or not they believe that this act actually happened, and decide whether or not it shows his predisposition towards children ...
Based on the argument presented to the Court, the Court finds that the evidence passes the balancing test of Code of Evidence Article 403, and finds that it’s probative, and its probative value outweighs any prejudicial effect.

Here, following the same reasoning set forth in George, supra, the trial court concluded that J.K.’s testimony, while possibly prejudicial, was highly probative to the extent that the jury could determine whether Defendant had a sexual predisposition toward children. The court also noted that J.K.’s testimony would be subject to cross-examination by Defendant, thereby allowing the jury to make its own determination about the weight and credibility of the testimony.

| laWith respect to Defendant’s argument that J.K.’s testimony somehow confused the jury, the record reflects that the jury was charged by the trial court with the following instruction before deliberation:

THE COURT:

Code of Evidence Article 412.2 is evidence of similar crimes, wrongs, or acts in sex offense cases. When an accused is charged with a crime involving sexually assaultive behavior, or with facts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused commission of another crime, wrong, or act, involving sexually assaultive behavior, or acts which indicate a lustful disposition towards children, may be admissible and may be considered for its bearing on any matter to which it’s relevant.
Remember, Ladies and Gentlemen, the accused is on trial only for the offenses charged. You may not find him guilty of this offense merely because he may have committed another offense.

[Emphasis added].

A reading of the jury charge makes it clear that the jury was not to assume Defendant was guilty of the aggravated rape of J.L. because of J.K’s testimony.

Based on the record, we do not find the trial court erred in admitting J.K’s testimony. Defendant was charged with the aggravated rape of a child, J.L., and the victim also alleged that Defendant forced her to perform oral sex upon him numerous times. The testimony of J.K. that Defendant asked him to perform oral sex upon him while J.K. was of a very young age was highly relevant to show Defendant’s lustful disposition towards young children. The similarities are sufficiently probative to support admissibility of evidence under La. C.E. art. 412.2. Accordingly, we affirm the trial court’s ruling on this issue.

Parole Eligibility

Defendant alleges the record does not demonstrate whether the jury found he had committed the aggravated rape of J.L. before or after his 18th birthday, which would determine his parole eligibility. Defendant further argues that this Court should apply the rule of lenity and assume that he was under the age of eighteen at 114the time of the rape of which he stands convicted. Finally, citing the U.S. Supreme Court case of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Defendant concludes that in light of his assertions, the trial court erred in sentencing him to life at hard labor without the benefit of parole.

We first note Defendant did not file a motion for reconsideration of sentence with the trial court. La.C.Cr.P. art. 881.1(E) provides:

Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

At the time of sentencing, defense counsel merely stated by way objection, ‘Tour Honor, as you’ve stated, this sentence is mandated by the Legislature, but in order to protect Mr. Kiger, we respectfully object to the sentence; and for the record, I will be filing an appeal on his behalf today.”

Failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, merely limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Hills, 03-716 (LaApp. 5 Cir. 12/9/03); 866 So.2d 278, 286, writ denied, 04-1322 (La.4/22/05); 899 So.2d 569; State v. Fairley, 02-168 (LaApp. 5 Cir. 6/26/02); 822 So.2d 812, 814.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574 (La.1/14/03); 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the 11fiharm done to society, it shocks the sense of justice. State v. Lawson, 04-334 (LaApp. 5 Cir. 9/28/04); 885 So.2d 618, 622.

In Graham, supra, the United States Supreme Court held:

The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life, it must provide him or her with some realistic opportunity to obtain release before the end of that term.

Here, Defendant was charged with aggravated rape of J.L. that occurred on or between August 15, 1990 and February 14, 1993. Evidence was submitted during the trial that Defendant raped J.L. multiple times during that time period. Defendant was born on June 3, 1973; thus, he turned 18 years old on June 3, 1991. While Defendant may have been 17 years old when the sexual abuse of J.L. began, his crime was repetitive and continuing in nature into his adulthood. In returning a guilty verdict, the jury inherently found Defendant committed the aggravated rape of J.L. while being an adult. Consequently, despite Defendant’s contention, we do not find that Graham’s juvenile offender law applies to his sentence.

The sentence for the crime of aggravated rape at the time the offense was committed was a mandatory life sentence without benefits. La. R.S. 14:42. The Louisiana Supreme Court has previously held that a mandatory life sentence for aggravated rape is a valid exercise of the state legislature’s prerogative to determine the length of sentence for crimes classified as felonies. State v. Fama, 412 So.2d 577 (La.1982); State v. Prestridge, 399 So.2d 564 (La.1981). The mandatory life sentence for aggravated rape is a not a violation of the prohibition against excessive punishment. See, State v. Talbert, 416 So.2d 97, 102 (La.1982) and State v. Lewis, 98-672 (LaApp. 5 Cir. 3/10/99); 732 So.2d 556, 560, writ denied, 99-2818 (La.4/20/00); 760 So.2d 334. Defendant did not urge a downward 11fideviation at the time of sentencing. Defendant has not shown any exceptional circumstances to justify a downward departure from the mandatory life sentence. Additionally, he has failed to carry his burden of proof that his life sentence for aggravated rape is unconstitutionally excessive.

Accordingly, we affirm Defendant’s sentence.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990).

The record does not reflect that Defendant was notified of Louisiana’s sex offender registration requirements in accordance with La. R.S. 15:541, et seq.

The offense for which Defendant was convicted is designated as a sex offense by La. R.S. 15:541(14.1). La. R.S. 15:542 outlines mandatory registration requirements for those categorized as sex offenders and child predators under La. R.S. 14:541(14.1). Additionally, La. R.S. 15:542.1 sets out notification requirements for those offenders categorized as sex offenders and child predators. La. R.S. 15:543A requires the trial court to provide written notice to all sex offenders and child predators of the aforementioned registration and notification requirements.

This Court has held that the failure to properly inform a defendant of sex offender registration requirements warrants a remand for written notification. This Court generally remands with an order that the trial judge inform the defendant of the registration requirements as provided in La. R.S. 15:543A, by sending appropriate written notice to the defendant within ten days of this Court’s opinion, 117and by filing written proof in the record that defendant received such notice. See State v. Stevenson, 00-1296 (La.App. 5 Cir. 1/30/01); 778 So.2d 1165,166-67.

Considering the mandatory language of La. R.S. 15:543A and the fact that this Court has previously remanded matters for notification of sex offender registration requirements, even where the defendant was serving a life sentence, we remand to the trial court with an order that Defendant be informed in writing of both his sex offender registration requirements and his notification requirements.

DECREE

For the foregoing reasons, we affirm the conviction and sentence of Jason M. Kiger. Additionally, we remand the matter to the trial court to provide Defendant with the notification of the sex offender registration requirements.

SENTENCE AND CONVICTION AFFIRMED; REMANDED WITH INSTRUCTIONS

      .The record does not show that the trial court ruled on the remainder of Defendant's omnibus motions prior to trial. This court has held that "motions pending at commencement of trial are waived if defendant proceeds at trial without raising as an issue the fact that the motions were not ruled upon.” State v. Scamardo, 97-197 (La.App. 5 Cir. 2/11/98); 708 So.2d 1126, 1129, writ denied, 98-0672 (La.7/2/98); 724 So.2d 204.

      . The victim’s initials, and those of certain family members, are used under the authority of La. R.S. 46:1844(W)(3), which allows the Court to protect the identity of a crime victim who is a minor or a victim of a sex offense by using his or her initials.

      . J.L. clarified that the frequency with which Defendant forced her to perform oral sex "depended on the circumstances,” varying from more than once a week to a month.

      . At trial, K.M., Defendant's sister-in-law, testified that she is close with J.L. On May 31, 2011, K.M. and J.L. were having a conversation during which K.M. commented that she was uncomfortable that Defendant was taking showers with her three-year-old niece, J.M. At that time, J.L. reacted by taking her cell phone and running down the hallway.

      . Prior to January 1, 2008, the notice requirement for child predators was contained in La. R.S. 15:542.1C, and the notice requirement for sex offenders was found in La. R.S. 15:543A.

      . State v. Arabie, 07-806 (La.App. 5 Cir. 3/11/08); 982 So.2d 136, writ denied, 08-928 (La. 11/21/08); 996 So.2d 1104.


author: JUDE G. GRAYOIS, Judge.

text:
    STATE of Louisiana v. Alec J. JOHNSON.
    No. 13-KA-306.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Twenty-Fourth Judicial District, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRÁVOIS, MARC E. JOHNSON, and HANS J. LILJEBERG.
   JUDE G. GRAYOIS, Judge.

| {.Defendant, Alec Johnson, appeals his convictions of manslaughter, a violation of La. R.S. 14:31, and receiving stolen things, a violation of La. R.S. 14:69. On appeal, appointed appellate counsel has filed an Anders brief, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. After thoroughly reviewing the record, we agree with appellate counsel’s assertions. Accordingly, defendant’s convictions and sentences are hereby affirmed, and appointed appellate counsel’s motion to withdraw as counsel of record for defendant is hereby granted.

PROCEDURAL HISTORY

On April 7, 2011, a Jefferson Parish grand jury returned a true bill of indictment charging defendant, Alec Johnson, with one count of second degree murder, a violation of La. R.S. 14:30.1, and with one count of receiving stolen lathings, a violation of La. R.S. ÍLGÍ). Defendant was arraigned on April 11, 2011 and pled not guilty to both counts. Defendant thereafter filed several pre-trial motions, all of which were denied by the trial court.

On August 9, 2012, defendant withdrew his not guilty plea and pled guilty to the amended charge of manslaughter in Count 1, a violation of La. R.S. 14:31, and further changed his plea to guilty as charged as to the remaining count of receiving stolen things. Defendant was thereupon sentenced to 40 years imprisonment at hard labor on Count 1, and 10 years imprisonment at hard labor on Count 2,- to run concurrently.

On November 26, 2012, defendant filed a pro se application for post-conviction relief requesting an out-of-time appeal, which was granted.

FACTS

The true bill of indictment against defendant, as amended, states that on December 26, 2010, defendant violated La. R.S. 14:31 in that he committed the manslaughter of Jose Rolando Guevara, and that on December 26, 2010, defendant also intentionally possessed a 1998 Ford Expedition belonging to Shelly Tigler, in violation of La. R.S. 14:69.

Prior to the trial court’s accepting defendant’s guilty plea, the State provided the following factual basis for the subject charges:

THE STATE:

If this case were to proceed to trial that State would prove beyond a reasonable doubt that on or before December 26, 2010, these three defendants, along with two other juvenile defendants, were driving around in a stolen Ford Expedition that had been stolen recently before that, and in that car was a .40 caliber handgun.
|/These five defendants drove around and decided to rob a group of Hispanic men who were on a carport preparing some food so they could get gas money.
The five got out of the car, approached the garage. Three of the defendants were wielding handguns, and during the course of that robbery were immediately upon retreat from that armed robbery where they did gain things of value from the victims. All three discharged their weapons and fled the scene.
Shortly after they were stopped after a chase by the Jefferson Parish Sheriffs Office where all five were apprehended. The ballistics would prove that the shot that killed Mr. Querva [sic] was fired by the .40 caliber handgun. The handguns were all recovered, ballistically tested, and they were all fired during that crime, but that the killing shot for Mr. Querva [sic], the one time he was shot came from the .40 caliber handgun.
All the defendants were taken to the Jefferson Parish Sheriffs Office, waived their rights and gave statements. Four of the statements were consistent, one was inconsistent, the one of Mr. Johnson.
Mr. Johnson then gave a second statement where he admitted to participating in the robbery and firing a gun, but didn’t admit to having the .40 caliber gun.
The State would also prove that Mr. Johnson was driving the stolen vehicle in which that .40 caliber gun was when the vehicle was stolen. After all of that evidence was presented to the jury in this case, the jury would say beyond a reasonable doubt that all three defendants were guilty, and therefore I have amended the charge of manslaughter as to Mr. Johnson, because I would be able to prove beyond a reasonable doubt because he fired the shot that killed Mr. Querva [sic], and to the armed robbery as to the other two defendants.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir.1990), appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, supra, and State v. Jyles, supra, asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed appellate counsel requests permission to withdraw as counsel of record for defendant.

|fiIn Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit, but must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.”

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines that there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion Rand order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel notes that no pre-rulings have been reserved for appellate review. Counsel also indicates that defendant was informed of the sentences that he would receive. Counsel asserts that she has advised defendant that it would be in his best interest to dismiss the appeal and instead file an application for post-conviction relief. Appellate counsel filed a motion to withdraw as attorney of record and showed that she mailed defendant a copy of the brief filed on his behalf.

The State responds that counsel has shown a thorough review and recitation of the procedural history of the case. The State further responds that defendant was advised of his Boykin rights and waived those rights. The State argues that defendant expressly agreed to his sentences and waived review of any pre-plea non-jurisdictional defects.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The true bill as amended properly charged defendant. As required, it plainly, concisely, and definitely stated the essential facts constituting the offenses charged, and cited the statutes that defendant violated. It also sufficiently identified defendant and the crimes charged. Also, as reflected by the minute entries and commitment, defendant appeared at his arraignment, guilty plea proceedings, and sentencing. 17Further, defendant pled guilty to the amended bill. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and is precluded from seeking review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664.

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept.

The record shows that defendant was aware that he was pleading guilty to one count of manslaughter and one count of receiving stolen things valued at over $1,500. On the waiver of rights form and during the colloquy with the trial court, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. In open court, defendant indicated that he understood that he was waiving these rights by pleading guilty. Defendant further indicated that he had not been forced, coerced, or threatened to enter his guilty pleas.

By signing the waiver of rights form, defendant indicated that he understood the sentencing ranges for his respective crimes, as well as the actual sentences he would receive. A defendant is precluded from raising a claim of excessiveness of his sentence on appeal when the imposed sentence is the product of a plea agreement. La.C.Cr.P. art. 881.2(A)(2); State v. Cross, 06-866 (La.App. 5 Cir. | «4/11/07), 958 So.2d 28, 30. It is noted that defendant’s sentences fall within the sentencing range set forth in the respective statutes.

Because appellate counsel’s brief demonstrates that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, defendant’s convictions and sentences are hereby affirmed and appellate counsel’s motion to withdraw as attorney of record for defendant is hereby granted.

ERRORS PATENT REVIEW

The record was reviewed 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). The following is noted.

As noted supra, in the body of the amended bill of indictment against defendant, the statute for manslaughter is incorrectly cited as “R.S. 14:30”; however, the amended bill elsewhere clearly states that Count 1 of the bill was amended to “14:31 (manslaughter)” as to this defendant.

The purpose of a bill of information is to inform a defendant of the nature and cause of the accusation against him as required by the Louisiana Constitution, Article 1, § 13. A clerical error in the statutory citation does not require a dismissal of the bill or reversal of a conviction if the error or omission does not mislead defendant to his prejudice. La. C.Cr.P. art. 464; State v. Anderson, 561 So.2d 189, 191 (LaApp. 5 Cir.1990). In the present case, the clerical error in the amended bill clearly does not prejudice defendant, inasmuch as he was plainly informed of the correct charges to which he pleaded as evidenced in both the colloquy transcript and waiver of rights forms. The correct statute for 19manslaughter is also indicated elsewhere in the amended bill and in the commitment. Thus, we find that the error in the statutory citation in the amended bill against defendant concerning defendant’s manslaughter conviction is harmless, and thus requires no corrective action. State v. Vamado, 01-367 (La.App. 5 Cir. 9/13/01), 798 So.2d 191.

CONCLUSION

Accordingly, defendant’s convictions and sentences are hereby affirmed. Appointed appellate counsel’s motion to withdraw as counsel of record for defendant is hereby granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      . In the same true bill of indictment, two other defendants, Timón Carto and Tyron Leone, were also charged with second degree murder.

      . In the body of the amended bill of indictment against defendant, the statute for manslaughter is incorrectly cited as "R.S. 14:30”; however, the amended bill elsewhere clearly states that Count 1 of the bill was amended to "14:31 (manslaughter)” as to this defendant. See Errors Patent Review, infra, for discussion of this issue.

      .According to the original and amended bill of indictment, the victim’s last name is spelled "Quevara”.

      . The record shows that defendant pleaded guilty without reserving the right to appeal any adverse pre-trial rulings pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

      . Additionally, this Court sent defendant a letter by certified mail on April 25, 2013, informing him that an Anders brief had been filed on his behalf and that he had until May 17, 2013 to file a pro se supplemental brief. No supplemental brief has been filed by defendant.

        .Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . With respect to defendant’s sentences, the sentencing range for manslaughter (La. R.S. 14:31) is not more than 40 years at hard labor. The sentencing range for illegal possession of stolen things (La. R.S. 14:69) is not more than 10 years at hard labor.