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    STATE of Louisiana v. Rolando VARGAS.
    No. 13-KA-848.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 26, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Myles Earner, Jeffrey Hufft, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, Jude G. GRAVOIS, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

12Pefendant, Rolando Vargas, appeals his conviction for attempted simple rape, a violation of La. R.S. 14:43 and 14:27, on the basis of insufficiency of the evidence. For the following reasons, we affirm defendant’s conviction and sentence and remand for correction of an error patent as noted herein.

PROCEDURAL HISTORY

On August 24, 2012, the District Attorney for the Parish of Jefferson filed a bill of information that charged defendant, Rolando Vargas, with one count of simple rape, in violation of La. R.S. 14:43. Defendant pled not guilty on September 20, 2012. Trial commenced on February 21, 2013, and on February 22, 2013, defendant was found guilty by a jury of the lesser responsive offense of attempted simple rape. On March 11, 2013, defendant was sentenced to seven years at hard labor with credit for time served, without the benefit of parole, probation, or suspension of sentence. Defendant was also ordered to register as a sex offender pursuant to La. R.S. 15:543.1. On March 25, 2013, defendant timely piled a notice of intent to appeal, which was granted by the trial court on March 27, 2013. The instant appeal follows.

FACTS

The trial commenced on February 21, 2013. Candice Hovell, Jeff Dodson, Emily Ratliff, Bernardo Munoz, and the victim, D.V., each testified that they were all part of a group which drove in a single vehicle from Alabama to the New Orleans metropolitan area in March- of 2011, for Mardi Gras. They arrived in Jefferson Parish in the evening hours of Friday, March 4, 2011. During their stay, the group of six shared a single room at the Comfort Inn Suites in Kenner.

After checking in on Friday night, the group went to the French Quarter in New Orleans, where they stayed for several hours. Upon returning to the hotel, some members of their party went to sleep while Emily Ratliff and Jeff Dodson went to the hotel’s pool and hot tub area. While by the pool, they met two Hispanic men. The men offered Emily a beer from their cooler, and she spoke to them for a short while. She learned that the men were cousins from Texas and had also traveled to see Mardi Gras. They also told Emily where their hotel room was located and invited Emily and her boyfriend for drinks which they declined.

On the night of Saturday, March 5, 2011, everyone in the group went back to the French Quarter where several of them, including the victim and her boyfriend Bernardo Munoz, became heavily intoxicated. Upon returning to the hotel in the early morning hours on Sunday, March 6, 2011, Candice and Dan went to the room to sleep, while Emily, Jeff, D.Y., and Bernardo continued to drink.

Jeff testified that he and the three others in his group arrived at the hotel pool area at approximately 4:00 a.m., and they were there for an hour in the jacuzzi. He [4noted that during that time, the victim was passed out, her feet barely touching the water, while Bernardo was sitting next to her vomiting.

After Bernardo got sick, Jeff described how he and Emily went to the hotel buffet to get Bernardo some water, as well as food for themselves. When Jeff and Emily left, the victim and Bernardo remained near the hot tub in the condition previously described. Ten minutes later, Jeff returned to the pool area to check on Bernardo. Jeff described how someone temporarily held the pool door closed, and he heard something yelled which he did not understand. The door opened quickly, and Jeff saw the victim with her legs underwater wrapped around a man and her top removed. Jeff testified he could not tell if the victim was still wearing her bikini bottom.

Per Jeffs testimony, Jeff alerted Bernardo that the victim was being assaulted. The man, who was in the hot tub with the victim, then pulled up his pants as he got out of the water with a visible erection. That man and another man then left the scene. Jeff went to the front desk and asked the hotel clerk to call 911. The police arrived and went upstairs to the group’s room; they were then directed to defendant’s room. The location of the room was known to Emily because the men staying in the other room had spoken to Emily the night before.

The State played Exhibit 3-N for Jeff, which was video footage of the pool area at the time of the assault. Jeff identified three men who were in the pool area when he left to go to the buffet. Jeff identified himself trying repeatedly to open the pool door before finally getting in. He said that the man pulling the door closed yelled something, but he did not know what was said. The video also showed the man who had held the door closed as well as the man who was with the victim in the hot tub, leaving the area.

| fiLater that summer, Jeff was sent a photographic lineup by detectives; he testified that he was unable to make an identification.

On cross-examination, Jeff explained that the man in the hot tub -with the victim got out quickly. The man got into an elevator across the hallway. The suspect did not exit through the front door of the hotel, or jump the fence into the parking lot.

Emily testified that she, the victim, and their boyfriends brought alcohol down to the pool area. They sat around the hot tub with their feet in the water. The victim was intoxicated and passed out on the edge of the hot tub with her feet in the water. When Bernardo started throwing up, Emily and her boyfriend went to get some water for him from the hotel breakfast area. Emily testified that at the time they left, no one else was in the pool area. The two were gone for approximately five minutes and Jeff returned to check on the victim and Bernardo. She continued that she remembered seeing Jeff coming back down the hallway saying that the victim had just been raped. Emily went to check on the victim, who was still there. She testified that she did not see anyone else with the victim at that time. She tried to interact with the victim who was “out of it” but still in the water. Emily noted that although the victim had been clothed when Emily had left minutes before, the victim did not have her swim suit bottom on when Emily returned. She found them about four feet away.

It was approximately 5:30 a.m., and the hotel lobby was busy. Jeff went upstairs to alert Candice and Dan. Candice called the police, who arrived quickly. The victim was brought upstairs. When Emily spoke to the police, she told them about the people she and her boyfriend had met the night before and gave a description as well as the location of the room where the men were staying. She followed the police to the men’s room and recognized one of the cousins. Emily ^testified that she talked to him, and he indicated that his cousin had left to return to work in Texas. This occurred 30 minutes after the alleged incident had occurred.

Later that summer, police presented Emily with a photo lineup. She testified at trial that she was able to identify one of the men from the pool and wrote on the back of the document. A detective also wrote on the back of the document that, “[Emily] Ratliff states she’s 95 percent sure Number Five is the suspect; 100 percent sure that 1, 2, 3, 4, and 6 are not the suspect.” At trial, Emily viewed video footage taken at the hotel and identified one of the men who had previously invited her and her boyfriend to come to their hotel room. Emily said that the victim was “very intoxicated” after the incident and confused about what was happening.

Bernardo testified he, the victim, Jeff and Emily decided to go downstairs to drink and go to the pool. Bernardo testified that when he awoke, he saw the victim with her bikini bottom off with a naked man holding her legs up. The man noticed Bernardo awake, then “scurried out.” Bernardo testified that he had passed out but that when he woke up, there was a man at the door and another man he identified in court, as well as the victim. He does not know what woke him up. Bernardo testified that the man touching the victim was approximately three to four feet away from him. Bernardo testified that he did not remove the victim’s bikini bottom, and she was wearing it before he passed out. He further testified that he did not see defendant penetrate the victim; defendant’s erect penis, however, was less than a foot from the victim’s body. After defendant left, Bernardo got the victim from the hot tub and others in the group helped to get the victim dressed before they brought her upstairs to the room. The victim was not responsive. At the hotel, Bernardo never again saw the man who had touched the victim; however, 17he testified that he did see the other man who was by the hot tub standing down the hall in front of his room.

On cross-examination, Bernardo reiterated that he did not see the victim sexually penetrated in any manner.

The victim, D.Y., testified that her group had remained on Bourbon Street drinking alcohol “until fairly late.” Upon returning to the hotel on the second night, she, Bernardo, Emily and Jeff kept drinking and also went outside to smoke marijuana. Eventually, D.V. and her friends changed into their bathing suits to go sit by the indoor jacuzzi. Her next recollection is waking up in the hospital, where she was examined. She was unable to answer the detective’s questions because she did not recall anything. Specifically, she testified she did not recall getting into the hot tub, or taking off her bathing suit, or having consensual sex with someone.

Candice Hovell testified that she was the person who called 911 after the incident took place. The call was initially made from the lobby area on the first floor, but she went back to the room to comfort the victim along with the others in her group. Candice described the victim to the 911 operator as being “incapacitated.” Candice attempted to get the victim to sit up but was unsuccessful. The victim also did not appear to recognize her. She, along with Bernardo, took the victim to the hospital.

State’s Exhibit 3-N, consisting of video surveillance footage from the hotel, was played for the jury, and showed Candice calling 911 while Dan carried the victim in his arms. The victim’s boyfriend was intoxicated. Candice stated that she was not aware of what had taken place prior to the time that she was awakened.

Officer Immanuel Cohen testified that he worked patrol for the Kenner Police Department and was serving in that capacity on March 6, 2011, when he | ^responded to a call of a possible sexual assault at the Comfort Inn Suites. When he arrived at the hotel at approximately 5:25 a.m., he observed Jeffrey, his girlfriend, and Bernardo screaming that their friend had been raped. Cohen checked on the condition of the victim, who was “extremely intoxicated, disoriented, didn’t know where she was at.” Cohen was directed to the room where defendant had been staying, but defendant was no longer there. He did not see defendant at all in the hotel that morning.

Officer Cohen was in charge of the initial investigation, which was then turned over to Detective Adams. Adams received Cohen’s report, which included interviews with Jeffrey, Emily, Bernardo and the victim. When Cohen first encountered the victim, she was alone in her hotel room on the bed in a disoriented and intoxicated state. The victim did not indicate to Cohen that she required medical attention.

In his report, Cohen wrote that he was advised that the victim and the persons she was with, had all arrived at the hotel at approximately 4:00 a.m. When Cohen spoke with Bernardo, the victim’s boyfriend, Bernardo indicated that he and the victim were sitting with their legs inside of the jacuzzi, and he passed out due to intoxication and later vomited in the immediate area. Bernardo knew which room defendant was in and said he could identify him. Cohen did not think that the persons he interviewed knew the exact time that the assault took place, although Jeff confirmed that “[t]hey were drinking sometime between 4:00 and the 5:24 [call].” Jeff reported that he and Emily left the pool area to get breakfast, leaving Bernardo and the victim alone in the pool room. Jeff said that he returned to the pool area five minutes later, and there was a brief struggle with the door. When |9the door opened, Jeff saw defendant submerged in the jacuzzi. Juan Uribe told Cohen that defendant had left the scene and gone to Houston, Texas.

Deputy Jennifer Trigueros testified that she was formerly employed by the Kenner Police Department as a Crime Scene Technician. On March 6, 2011, she was asked to help investigate a scene of a potential sexual assault at a Comfort Inn Suites. In connection with the investigation, she prepared a Chain of Custody form and also took photographs at the scene. The pictures consisted of the pool area of the hotel, the jacuzzi, vinyl seating next to the jacuzzi, and a lounge chair. The photos were concentrated on the area of the alleged sexual assault. Trigueros also collected towels and sheets that could have contained biological evidence.

After leaving the hotel, Trigueros went to Lakeside/Tulane Hospital to collect evidence from a nurse, which included a Sex Crimes Kit. She then returned to the hotel where she and Detective Adams first met with the hotel manager then collected video from the hotel’s camera systems. Trigueros did not alter the video in any way. She did not do any other work in connection with the case.

Doctor Janifer Tropez-Martin, tendered without objection as an expert in the field of obstetrics and gynecology, testified that she performs rape assessments for the Jefferson Parish Coroner’s Office. On March 6, 2011, Dr. Tropez-Martin examined the victim in this matter. The general process for administering the “Rape Kit” to obtain samples was described. She recalled that the specific complaint she received from the victim was that she had been raped, although the victim could not recall any information. When asked about potential sex acts that may have occurred to the victim, the victim replied to all questions that she was |in“unsure.” A physical exam was conducted of the victim and, other than a bruise to the left side of her neck and two bruises on her legs, her pelvic exam was “completely normal.” Dr. Tropez-Martin opined, however, that an absence of injuries does not mean no sexual intercourse occurred. She could not say definitively, based on her examination of the victim, whether there had been sexual contact. In her opinion, the fact that sex may have occurred near a pool would affect the ability to recover samples or organic material off the victim because of the presence of chlorine, which kills free-floating cells. Dr. Tropez-Martin estimated that in the majority of rape cases that she conducted, alcohol was involved. She was not made aware of the results of the Rape Kit.

Adriana Perez was admitted without objection as an expert in the field of DNA forensic analysis employed by the Jefferson Parish Sheriffs Office. In connection with this case, Perez examined a Personal Evidence Recovery Kit and various items of clothing, including a bikini top and bottom and a pair of shorts. All items were tested for the presence of seminal fluid. No DNA was found on any of the items.

Gaudalupe Vargas testified that he is a welding inspector from Houston who was employed by Fugro Consultants in 2011. Defendant, Rolando Vargas, is his cousin, whom he identified in court. Juan Uribe and defendant are cousins as well. Gau-dalupe was working in Kenner in March of 2011 during Mardi Gras. Gaudalupe was staying at the Comfort Inn Suites, paid for by his employer, during his four or five month assignment inspecting levees. He was also driving a truck provided by the company. Gaudalupe contacted his cousins, Carlos and Rolando, in Houston, Texas, and invited them to come stay with him. The two arrived in|ntown at approximately 10:00 p.m., and the three went to the French Quarter that night, where they drank before returning to the hotel at approximately 4:00 or 5:00 a.m. Gaudalupe and Carlos went down to the pool where they met and had a conversation with a group of people from Alabama. Gaudal-upe testified that he did not invite them to “come back and party” with him and his cousins.

Gaudalupe recounted that on Saturday night, he and his cousins went back to the French Quarter, drank, and returned to their hotel at approximately 4:00 or 4:30 a.m. They went to their room and then decided to go to the pool area. Defendant jumped into the pool. There were only two other people in the pool area at the time, a male and a female who were by the hot tub. Gaudalupe recalled that the couple was sitting down, but he did not speak to them. Gaudalupe stated that after five or ten minutes, he went to the restroom then returned upstairs while defendant and Carlos remained in the pool area. Gaudalupe recalled that one of his cousins jumped into the pool in his underwear. Gaudalupe looked one last time before going upstairs, and he could see that his cousins were there “standing around.” Shortly after going upstairs, Gaudalupe testified that his cousins joined him. Defendant said that he had to work on Sunday but said nothing else before leaving 15 minutes later. Gaudalupe did not recall what defendant was wearing at the time. Soon after, the police showed up at Gau-dalupe’s door.

Defendant and Carlos drove from Houston in separate vehicles. A total of four people drove in from Houston and were staying in Gaudalupe’s hotel room. Gau-dalupe went to bed before the police arrived 20 or 30 minutes later. The police took Carlos into custody. Gaudalupe never spoke to the police later in the case. Defendant left his phone at the hotel, and Gaudalupe gave it to the police. Gaudal-upe was shown State’s Exhibit 3-N, and he identified Carlos, himself and defendant in the video. He did not recall speaking to the lady who was in the | ^video, nor did he see anyone vomiting. Gaudalupe and Carlos are seen laughing on the tape after defendant jumped into the pool in his underwear. Gaudalupe and Carlos left defendant alone in the pool area. He did not recall if Carlos went by the hot tub that night. Gaudalupe went to the bathroom near the pool area. After he exited the bathroom and before going upstairs, Gau-dalupe checked to see if his cousins were still in the area. He does not remember having any trouble opening the door to the pool area that night. Gaudalupe identified defendant on the video walking through the hotel lobby in his underwear. Gaudal-upe was never accused of a crime, and he cooperated with the police.

Detective Jeff Adams of the Kenner Police Department testified that he conducted a criminal investigation of a sexual assault at the Comfort Inn Suites on March 6, 2011. He reported to the scene approximately 30 to 45 minutes after the incident was reported. Adams interviewed Carlos and Bernardo at the hotel, and Emily, Jeffrey, and the victim at the hospital. Adams took a recorded statement from Carlos after advising him of his rights. A warrant was put out for Carlos’s arrest for being a principal to simple rape. Evidence, collected from the scene, was submitted for DNA testing. Evidence from the hospital, including a Rape Kit, was collected and submitted for DNA testing as well. Adams reviewed the surveillance video in this case. He also obtained defendant’s phone and obtained a search warrant for it. Adams tried to set up a meeting with Gaudalupe but was unsuccessful. In order to get a photo of defendant, Adams subpoenaed phone records to get personal information, including an address. Ultimately, Adams went through the U.S. Marshal’s Task Force to obtain a registration for defendant’s vehicle; he then was able to obtain a photograph from defendant’s driver’s license. Adams testified that he placed defendant’s photo in a lineup and forwarded the array to the Tuscaloosa Police Department, where the victim and witnesses resided. 11sBased on Emily’s identification, an arrest warrant was issued for defendant. Adams further identified defendant in court.

Defendant testified that around March 6, 2011, he was invited by his cousin Gau-dalupe to stay with him for Mardi Gras. Defendant drove his own vehicle because he had to work on Sunday in the afternoon. Defendant testified that he had a job scheduled at noon on Sunday in Pear-land, Texas, close to Houston. He and the others in his group arrived in the New Orleans area on Friday night. After arriving, defendant and his group went to the French Quarter and became intoxicated. Following that, they returned to the hotel and went to the pool area. Defendant slept most of the following day into the evening and decided to “go back to Mardi Gras.” Defendant testified that he did not consume as much alcohol because he knew that he had to work on Sunday and did not want to get a “hangover.” The group arrived back at the hotel at approximately 4:00 or 5:00 a.m.

After returning to the hotel, defendant and his cousins, Carlos and Lupe, went downstairs to the pool area. Defendant testified they pushed him into the water fully clothed. Defendant testified that he decided to swim in his underwear. At the time, the people in the pool area were defendant, his two cousins, one couple that was leaving and another couple inside of the jacuzzi. Defendant testified that the couple in the jacuzzi seemed like they wanted to be left alone; so, he did not bother them. While he was swimming, he did not know where the other people were. Defendant was shown an image of the pool area and asked to identify where the victim was. He indicated that she was with a man on the other side of the room, and they appeared to be “interacting.” He did not recall if Carlos was still there.

| ^Defendant noted that when the other couple left, he was alone with the couple who remained in the pool area. When he went back inside, he saw a man vomiting and decided to “help him out.” The woman was sitting in the jacuzzi area leaning on the ledge. He testified that his reaction was to pick her up or else she would drown, since her boyfriend was intoxicated. Defendant said that he went inside the pool, grabbed the woman and pulled her out. As defendant was doing this, the man who had previously walked out came back into the pool area and said, “I got this.” Defendant testified that he grabbed his clothes and noticed the time, 5:30 a.m. He realized that he had enough time to make it to work at noon. Defendant claimed that the man never accused him of raping the victim. He left the victim in the care of her friends and put on dry clothes. Per his testimony, defendant in his mind never thought that he had committed a crime: the woman he helped out of the pool was fully clothed in a bikini; and the man throwing up was wearing shorts. He believed the man and the woman were a couple. After dressing upstairs, defendant exited the back door of the hotel and headed back to Houston. At that time he did not believe anyone had accused him of a crime.

Defendant testified that he made it back to Houston for noon. He had left his cell phone behind. Upon returning to Houston, he worked from noon until midnight. Defendant never got his cell phone back. His cousin Gaudalupe told him that he had hired an attorney shortly after the event, who eventually became defendant’s attorney. Defendant testified that he found out months later, while he was in Mexico, that there was a warrant out for his arrest. Per his testimony, defendant, an American citizen, was in Mexico on a family vacation. Defendant was called by his mother and provided with defense counsel’s phone number. In speaking with counsel, defendant was advised to turn himself in. His family then dropped him off at the Mexican border, and his mother was going to meet him on | lfithe other side. When defendant crossed the border, however, he was arrested when he passed through Customs and eventually transferred from Texas to Jefferson Parish. Defendant did not believe that he raped, attempted to rape, or inappropriately touched anyone on the day in question.

On cross-examination, defendant testified that the day after he returned to Texas, he was visited by his cousins, Carlos and Gaudalupe. They told him that they had been “partying” and that they were interviewed by police. They did not tell defendant what was said to the police. Regarding the work that defendant did once he returned to Texas, defendant admitted that he would have been up for 33 hours straight, considering that he woke up in the late afternoon on Saturday and stayed awake through midnight on Sunday.

Defendant demonstrated how he contends he helped the victim out of the pool or hot tub while she was passed out. He said that he jumped into the water while in his underwear. He brought her up and laid her down on the side of the pool with her feet dangling. He testified that the victim was completely clothed. She was never naked or semi-nude when defendant saw or touched her. Jeff walked in as defendant was moving the victim, and said, “I got this.” Defendant did not know what his cousin Carlos was doing while all of this was taking place. Defendant denied walking past the hot tub before helping the woman out. He never interacted with the couple before.

When defendant went out on Saturday-night, he testified that it was always his intention to drive to Houston the next morning. Per his testimony, he did not care if he was going to drive drunk or sober. Although defendant and his cousins decided to go down to the pool area on Saturday night, none of them brought bathing suits or towels down with them. Defendant said that he was comfortable swimming in his underwear. Three persons rode with defendant from Houston to | UiNew Orleans and brought minimal baggage with them. When defendant left, the former passengers of his car would have to ride with two others in a Nissan four-door vehicle.

At trial, defendant was shown the video of the pool area and identified himself on the video looking to see if the pool was open. He saw people in the pool area. Defendant testified that he was not intoxicated that morning. His cousin Juan is seen on the video either signaling or motioning to defendant. Defendant was staggering on the video when seen walking down the hall. When he returned upstairs to his room and got ready to leave for Houston, he testified that he told his friends and cousins that he had just saved a girl in the hot tub. The only time defendant used the back stairs of the hotel was when he left to return to Houston.

Reymundo Gonzales testified that he was employed by the Hidalgo Police Department in Hidalgo, Texas, a town near the border to Mexico. Gonzales participated in the arrest of defendant at the Hidalgo Port of Entry, specifically on the Hidalgo transfer bridge. United States Customs notified Gonzales that defendant had an open warrant out for his arrest, following which Gonzales transported defendant to the Hidalgo Police Department facility. Defendant was identified by Gonzales in court as the man that he arrested.

LAW AND DISCUSSION

While defendant argues in his single assignment of error that the trial court erred in denying his motion for new trial, he concedes in his brief that no such motion was filed in the trial court. Under similar circumstances, where the defendant challenged the sufficiency of the evidence used to convict him and he failed to file a motion for new trial, the Louisiana Supreme Court has held that a review of sufficiency is permissible. For example, in State v. Fontana, 396 So.2d 1251 (La.1981), the Supreme Court explained:

117Pefendant filed no motion for acquittal or for new trial. However, this omission no longer precludes review, as it once did, for we have held that a refusal to review an allegation that the state failed to present any evidence of the crime charged (or of an essential element) simply because no such motions have been filed is patently unfair and denies the defendant due process. State v. Boutte, 384 So.2d 773 (La.1980); State v. Peoples, 383 So.2d 1006 (La.1980). Moreover, the standard of review set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and adopted by this court in recent cases, requires us to determine not whether there is any evidence to support the conviction, but whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime proved beyond a reasonable doubt.

Accordingly, we find that the assignment of error is in the proper posture for review.

Defendant argues in his assignment of error that the evidence was insufficient. Specifically, defendant argues that no witnesses saw him commit any act toward the accomplishment of a simple rape. Defendant further contends that the State’s witnesses were unreliable.

Conversely, the State asserts that the record supports defendant’s conviction through the testimony of eyewitnesses and the hotel surveillance video.

The standard for appellate review of the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722, (1998); State v. Barnes, 98-932 (La.App. 5 Cir. 2/10/99), 729 So.2d 44, 46, writ denied, 99-1018 (La.9/17/99), 747 So.2d 1099.

Under Jackson, supra, a review of a criminal conviction record for sufficiency of evidence does not require a court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Barnes, 98-932, 729 So.2d at 46. A reviewing court is required to consider the whole record and determine whether a rational trier of fact could have found guilt beyond a reasonable doubt. Id.

“Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” State v. Kempton, 01-572, p. 7 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722. “The rule as to circumstantial evidence is; assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83 (quotation omitted).

In this case, defendant was convicted of attempted simple rape. Rape is “the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.” La. R.S. 14:41(A). Simple rape, in pertinent part, is defined by La. R.S. 14:43 as:

A. Simple rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a|19yictim because it is committed under any one or more of the following circumstances:
(1) When the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim’s incapacity.

La. R.S. 14:27(A) defines attempt as follows:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

La. R.S. 14:10 defines “simple criminal intent” as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” Specific intent may be inferred from the circumstances of a transaction and from the actions of the accused. Further, specific intent is a legal conclusion to be resolved by the fact-finder. State v. Graham, 420 So.2d 1126 (La.1982).

Regarding the element detailed in La. R.S. 14:43(A)(1), testimony of the witnesses at trial relevant to the victim’s physical state at the time she was allegedly assaulted, including that of defendant and the victim, was consistent in that all accounts describing the victim as being intoxicated to the point of unconsciousness or incapacity.

Defendant contends that the evidence against him was deficient in several respects. He asserts that no eyewitnesses saw him attempt to rape the victim, nor did the victim testify that defendant attempted to rape her. While defendant is correct that the victim had no recollection of events whatsoever, the jury was presented with the testimony of two eyewitnesses, Jeffrey Dodson and Bernardo Munoz, who saw defendant in the hotel hot tub, naked from the waist down and with an erection, closely positioned between the legs of the victim, who had been | ¡^disrobed of her bikini bottom. Defendant also asserts that, “No one knew how [the victim’s] bikini bottoms were removed.” However, the jury heard the testimony of Jeffrey Dodson and Emily Ratliff who recalled consistently that before leaving the victim in the pool area with Bernardo, the victim was fully clothed. Jeff further testified that when he returned to the pool area several minutes later, the victim had been either partially or fully undressed and was being held by defendant in the hot tub. Given the evidence that Bernardo was vomiting while passed out and lying on the ground, that the victim was completely physically incapacitated, combined with the fact that her bikini bottom was found several feet away, and that defendant was also nude from the waist down with an erection, positioned between the victim’s legs in close proximity to her, we conclude that a rational juror could have found proof that defendant was the individual who undressed the victim, thereby committing an act in furtherance of the attempted simple rape and demonstrating specific intent. In addition, testimony established that the victim was outside of the hot tub when Jeff and Emily left, but had been put into the water of the hot tub at the time defendant was discovered holding her. Thus, the jury could have concluded that defendant committed yet another act in furtherance of the attempted simple rape of the victim. The jury could further have concluded that defendant’s flight was due to consciousness of guilt.

Defendant challenges the credibility of the State’s witnesses. First, he claims that Bernardo’s testimony that he woke up and saw defendant’s erect penis several feet away from him “is suspect because [Bernardo] was so drunk he had been vomiting and was passed out moments before.” Similarly, he challenges Jeffs testimony by insinuating that he contradicted other witnesses when he said that he had not smoked marijuana on the trip. The jury was made aware of Bernardo’s intoxicated condition at the time of the assault through his own |⅞1 admission and the testimony of several other witnesses; likewise, Jeff was questioned on the stand as to whether he had used marijuana prior to the incident. Citing the Louisiana Supreme Court, the Fourth Circuit has noted, regarding a witness who candidly testifies about his intoxication on the day of the crime, “[t]he jury, as finder of fact, was entitled to attach as much or as little weight to the testimony as it deemed appropriate. See State v. Sejours, 113 La. 676, 37 So. 599 (1905).” State v. Hall, 464 So.2d 966 (La.App. 4 Cir.1985). In this case, the jury apparently found Bernardo’s and/or Jeffs testimony credible. 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. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence. State v. Stec, 99-633 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787.

Defendant further suggests that there was conflicting testimony between Bernardo and Jeff pertaining to the position of the victim’s legs at the time defendant was discovered in the hot tub with the victim. Bernardo testified that he saw defendant holding the victim’s legs up, while Jeff testified that he saw the victim’s legs wrapped around defendant. What is consistent about Jeffs and Bernardo’s testimony is defendant’s position between the victim’s legs, his own state of undress, and the victim’s state of undress. However, even assuming this is a discrepancy, where there is conflicting testimony about factual matters, the resolution of which depends on a determination of credibility of the witnesses, it is a matter of the weight of the evidence and not the sufficiency of the evidence. State v. Brooks, 00-106 (La.App. 5 Cir. 9/26/00), 769 So.2d 1242, 1245. Further, in the absence of internal contradiction or irreconcilable conflict with physical | ^evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding. State v. Benoit, 07-35 (La.App. 5 Cir. 5/29/07), 960 So.2d 279, 284. “[T]he Jackson standard does not serve as a vehicle for a reviewing court to second-guess the rational credibility determinations of the fact finder at trial.” State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291, 1293.

We find that, viewing the evidence in the light most favorable to the prosecution, the jury could have found the essential elements of attempted simple rape beyond a reasonable doubt. The fact that the victim was intoxicated to the point of incapacity was not contested. Circumstantial evidence presented showed that the victim was fully clothed and outside of the hot tub while with her friends, but had been at least partially disrobed when found with defendant in the hot tub minutes after they had left. The testimony of two witnesses established that defendant was naked from the waist down with an erection while positioned between the victim’s legs at the time he was discovered. From this, we conclude that a rational trier of fact could have found that defendant demonstrated specific intent to attempt to rape the victim while she was unconscious, thereby establishing guilt beyond a reasonable doubt.

Accordingly, there is no merit to this assignment of error.

ERRORS PATENT DISCUSSION

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request.

The commitment for defendant’s sentence reflects that defendant received a proper advisal of the prescriptive period for filing for post-conviction relief in accordance with La.C.Cr.P. art. 930.8. However, the transcript for sentencing | ^reflects an incomplete advisal: “Two years to appeal the final judgment on post-conviction.” The transcript prevails when there is a discrepancy between the commitment and the transcript. See State v. Lynch, 441 So.2d 732, 734 (La.1983). This Court advises defendant, by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. See State v. Brooks, 12-226, pp. 13-14 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, 615, writ denied, 12-2478 (La.4/19/13), 111 So.3d 1030.

Next, the record includes a Uniform Commitment Order regarding the sentence which reflects that the “adjudication date” was March 11, 2013, when defendant was actually convicted on February 22, 2013 and his sentencing date was March 11, 2013. This Court has previously remanded a matter for correction of the Uniform Commitment Order after noting a discrepancy. See State v. Long, 12-184, pp. 10-11 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142. We therefore remand for correction of the commitment and order that copies of the corrected commitment be sent to the officer in charge of the institution where defendant has been sentenced and to the Department of Corrections’ Legal Department.

DECREE

For the foregoing reasons, defendant’s conviction and sentence are affirmed; the matter is remanded for correction of an error patent as noted herein.

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF THE COMMITMENT.

      . In accordance with La. R.S. 46:1844(W)(1), to protect the identity of the victim, she will be referred to by the initials, D.V.

      . This group also included Dan Whittlesey, who did not testify at trial.

      . The lineup was marked as State's Exhibit 11.

      . The 911 call was introduced as State's Exhibit 6 over defendant’s objection.

      . State’s Exhibit 4, a representation of the hotel layout, was introduced in connection with Cohen’s testimony.

      .The record later indicates that this individual was Detective Jeff Adams of the Kenner Police Department.

      . The record later indicates that Juan Uribe is the defendant’s cousin.

      . State’s Exhibit 2 was introduced in connection with Deputy Triguero's testimony.

      . State’s Exhibit 3 consisted of photos of various bath towels, bedsheets, a lounge chair cushion, a buccal swab, and a hospital report.

      . The three discs of hotel video were also introduced under State’s Exhibit 3.

      . In connection with Dr. Tropez-Martin’s testimony, the report she prepared regarding her examination of the victim was introduced as State's Exhibit 8.

      . In connection with her testimony, the State introduced Exhibit 10, a DNA Issue Report.

      . Vargas refers to Juan Uribe as "Carlos”. Hence, Uribe will be referred to as "Carlos” throughout the remainder of this Opinion.

      . Defendant appears to be referring to his cousin Gaudalupe by the nickname "Lupe” throughout his testimony.

      . Accord, State v. Lande, 06-24 (La.App. 5 Cir. 6/28/06), 934 So.2d 280, writ denied, 06-1894 (La.4/20/07), 954 So.2d 154. ("The proper procedural vehicle for raising the issue of the sufficiency of the evidence is a motion for post-verdict judgment of acquittal. La. C.Cr.P. art. 821; State v. Allen, [supra] [440 So.2d 1330 (La.1983)]. However, the failure to file a motion for post-verdict judgment of acquittal does not preclude appellate review of the sufficiency of the evidence. State v. Washington, 421 So.2d 887, 889 (La.1982); State v. Carey, 04-1073 (La.App. 5 Cir. 3/29/05), 901 So.2d 509, 512, n. 4.”)


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Eric GROS.
    No. 13-KA-879.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 26, 2014.

      Frederick J. Kroenke, Jr., Attorney at Law, Baton Rouge, Louisiana, for Appellant, Eric Gros.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   SUSAN M. CHEHARDY, Chief Judge.

|2In this case, defendant’s appointed appellate counsel has filed an Anders brief on defendant’s behalf, asserting there is no basis for a non-frivolous appeal. For the following reasons, we affirm defendant’s conviction and remand for amendment of defendant’s sentence to correct patent error.

Facts and Procedural History

In this case, the conviction resulted from a guilty plea so the circumstances surrounding the offense were not fully developed at trial. Here, the record reflects that, on or about February 27 and 28, 2010, defendant lured the victim to a residence in St. Charles Parish, forcibly removed her to another location, then raped her at gunpoint.

On March 17, 2010, the St. Charles Parish Grand Jury issued a four count true bill of indictment charging Eric Gros with two counts of aggravated rape, in violation of La. R.S. 14:42 (Counts 1 and 2); one count of aggravated kidnapping, in violation of La. R.S. 14:44 (Count 3); and one count of possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (Count 4).

1,-iOn June 13, 2013, the State amended the indictment to charge defendant with one count of forcible rape, a violation of La. R.S. 14:42.1, and nolle prosequied the three remaining counts. Pursuant to the plea agreement set forth in the record, defendant withdrew his not guilty plea and pled guilty as charged. That same day, the trial judge, also pursuant to the plea agreement, sentenced defendant to 15 years in the Department of Corrections and notified defendant of the sex offender registration requirements. On June 26 and July 10, 2013, defendant filed timely pro se motions for reconsideration of sentence, which were heard and denied on August 13, 2013. The trial judge subsequently granted defendant’s motion for appeal.

Discussion

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, supra, and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his 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 the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pre-trial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief 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. 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 and order the court-appointed attorney to file a brief arguing legal points |5identified by the court, or grant the motion and appoint substitute appellate counsel.

In his brief, defendant’s appellate counsel asserts that, after a detailed review of the record, he could find no non-frivolous issues to raise on appeal and can find no ruling of the trial court that arguably supports the appeal. In his brief, counsel provides a brief statement of facts and a detailed procedural history of the case. He also notes that pursuant to La.C.Cr.P. art. 881.2(A)(2), a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. Counsel states that the trial judge appropriately denied the pro se motions for reconsideration of sentence since any reconsideration of sentence would constitute a unilateral modification and breach of the original plea bargain.

Appellate counsel notified defendant that he had filed an Anders brief and that defendant had a right to file a pro se brief in this case. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until December 22, 2013, to file a supplemental brief. As of the date of this opinion, appellant has not filed a supplemental brief.

Although counsel’s brief is not very detailed, an independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The indictment sufficiently identified defendant and properly charged him, plainly and concisely stating the essential facts constituting the offenses charged. See, La.C.Cr.P. arts. 462-66. Further, the minute entries reflect that defendant, who was represented by counsel, appeared at all critical stages of the proceedings 16against him, including his arraignment, guilty plea, and sentencing. As such, there are no appealable issues surrounding defendant’s presence.

In this case, defendant pled guilty. Under both state and federal jurisprudence, it is well-settled that an unqualified guilty plea waives all non-jurisdictional defects occurring prior thereto, and precludes review of such defects by appeal. State v. Johnson, 08-449 (La.App. 5 Cir. 12/16/08), 3 So.3d 17, 19, writ denied, 09-787 (La.12/18/09), 23 So.3d 932. Here, defendant entered an unqualified guilty plea and, therefore, it appears that all non-jurisdictional defects are waived. Further, several pre-trial motions were heard and ruled upon in this case but not preserved for appeal under State v. Crosby, 338 So.2d 584 (La.1976).

Next, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. 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 and that bargain is not kept. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120,1124.

Our review of the record reveals no constitutional infirmity in defendant’s guilty plea. The record shows that defendant was aware that he was charged with and pleading guilty to the amended bill of indictment of one count of forcible rape. Defendant was informed during the colloquy and in the waiver of rights form of the sentencing range that he faced, and of the actual sentence that would be imposed, if his guilty plea was accepted.

During the colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination 17as required by Boykin. During the colloquy, defendant also agreed that he understood that he was waiving these rights. On the waivei’ of rights form, defendant initialed next to each of those rights and signed the form, indicating that he understood that he was waiving these rights by pleading guilty.

During his guilty plea colloquy, defendant also indicated that he had not been forced, coerced, or threatened into entering his guilty plea. Defendant stated that he understood that his guilty plea could be used to enhance penalties for any future convictions.

Further, the waiver of rights form was signed by defendant, his counsel, and the trial judge. Defendant acknowledged on the record that he had gone over the form with his counsel and understood it. After a thorough examination, the trial court accepted defendant’s plea as knowingly, intelligently, and voluntarily made.

With regard to defendant’s sentence, La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1178. Here, defendant’s sentence was imposed in accordance with the terms of the plea agreement set forth in the record at the time of the plea.

Even if defendant could seek review of his sentence, we would find no merit. Here, defendant pled guilty to forcible rape, which is a violation of La. R.S. 14:42.1, which reads that, “[wjhoever commits ... forcible rape shall be imprisoned at hard labor for not less than five nor more than forty years ... [a]t least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.” The trial judge imposed a sentence of “15 | «years with the Department of Corrections” falls within the sentencing range delineated in La. R.S. 14:42.1.

Moreover, defendant’s plea agreement was greatly beneficial to him. Prior to the plea agreement, defendant was facing three counts — two counts of aggravated rape and one count of aggravated kidnapping — that each exposed him to mandatory life sentences, and one count of possession of a firearm by a convicted felon, which had a sentencing range of 10 to 15 years. Pursuant to the plea agreement, defendant received a 15-year sentence on the amended charge of forcible rape, and the State dismissed all other pending counts and agreed not to multiple bill defendant.

Based on the foregoing, we find that defendant’s guilty plea and sentence imposed pursuant to a plea agreement do not present any non-frivolous issues for appeal.

Errors Patent

Finally, pursuant to La.C.Cr.P. art. 920, we have reviewed the record and discovered an error that requires correction. La. R.S. 14:42.1 provides that “[a]t least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.” Defendant was advised in the guilty plea form and during the colloquy that at least two years of his sentence had to be served without benefit of probation, parole, or suspension of sentence. However, the transcript reflects that the trial judge failed to impose any statutory restrictions when sentencing defendant.

] ¡Although such conditions are deemed to exist by operation of law under La. R.S. 15:301, the language of La. R.S. 14:42.1 reads, “at least two years,” which suggests that the trial judge has discretion in determining the length of time that benefits are to be withheld. Accordingly, we remand this case for amendment of defendant’s sentence to comply with La. R.S. 14:42.1(B). State v. Tapps, 02-0547 (La. App. 5 Cir. 10/29/02), 832 So.2d 995, 1004, writ denied, 02-2921 (La.4/21/03), 841 So.2d 789.

AFFIRMED; REMANDED FOR AMENDMENT OF SENTENCE.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Defendant’s motion for appeal, which was filed on September 17, 2013, was untimely under La.C.Cr.P. art. 914(B)(2), which provides in pertinent part that, "[t]he motion for an appeal must be made no later than ... [tjhirty days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1...." However, to avoid "further useless delay,” we will address defendant’s appeal. See, State v. Babineaux, 08-705 (La. App. 5 Cir. 1/13/09), 8 So.3d 621; State v. Watson, 08-214 (La.App. 5 Cir. 8/19/08), 993 So.2d 779, 782.

      . The Bradford Court adopted its procedure from that of the Fourth Circuit, set forth in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), and sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam).

      . The United States Supreme Court reiterated Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Jyles, supra at 241.

      . Id.

      . Bradford, supra at 1110.

      . Id.

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

      . Boykin, supra.

      . La. R.S. 14:42.

      . La. R.S. 14:44.

      . La. R.S. 14:95.1.

      . State v. Williams, 00-1725 (La.l 1/28/01), 800 So.2d 790, 801.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Jeremy Wayne ELKINS, Appellant.
    No. 48,972-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.

      Louisiana Appellate Project By Peggy J. Sullivan, Monroe, for Appellant.
    Richard Z. Johnson, Jr., District Attorney, Ron C. Stamps, Britney A. Green, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, MOORE and PITMAN, JJ.
   MOORE, J.

11 Jeremy Wayne Elkins appeals his conviction of molestation of a juvenile, La. R.S. 14:81.2, and his sentence of 25 years at hard labor without benefits because the victim was under the age of 13. We affirm and remand for compliance with sex offender notice and registration.

Factual Background

In late 2010, nine-year-old AK told her grandmother, Rebecca Adams, “I need to tell you something that’s real bad.” She continued that someone named Jeremy took her to a vehicle, put her in it, and then “pulled my panties down, and he hurt me real bad.” Ms. Adams did not know who Jeremy was, so she asked and AK replied he was “dad’s friend.” Ms. Adams promptly phoned AK’s mother, Amy Bartlett, who recalled that some two years earlier, AK had been spending time with her dad, Chris, at Jeremy’s house in rural DeSoto Parish. Amy recalled Ms. Adams telling her that AK had been asleep on Jeremy’s living room couch one night when Jeremy woke her up, took her to a red car, and then touched her with some lotion; when Chris yelled for her, Jeremy brought her back to the porch, and AK told him her panties were not on. Ms. Bartlett asked AK about this, and AK replied that Jeremy had put the lotion “down here,” pointing at her vagina. Ms. Bartlett called the sheriff’s office, which told her to take AK to Gingerbread House for a forensic interview.

Sarah Lynam Jose, a forensic interviewer at Gingerbread House, interviewed AK. Ms. Jose showed AK anatomical drawings on which AK indicated that Jeremy had touched her “wiener” (vaginal area) and “butt” (buttocks). According to Ms. Jose, AK said it happened at “her father’s house,” a vehicle was involved, an item of clothing was missing, and |2critically, this all happened “a couple of years prior.”

Ms. Jose conducted a video interview of AK on November 29, 2010, at 10:22 am. On the DVD, AK stated that she was not talking about her stepfather (also named Jeremy), but about a “different Jeremy”; Jeremy “sniffed on her and carried back inside” and put “stuff” on her; she left her panties in the car; she honked the horn and Jeremy left her there; she had been asleep on the floor and then asleep on her father’s lap; she woke up to Jeremy sniffing on her face; Jeremy had her in a red car and put “stuff on her under her underwear”; the “stuff’ hurt her, and his fingers were touching her; she started honking the horn; this happened when she was seven years old; Jeremy touched her “butt and wiener,” and she “was hurt” later on when she went to the bathroom; her dad asked her where she had been, but he did not understand her; she could not remember Jeremy’s clothes, and he would not let her go to the bathroom. Finally, Ms. Jose stated that because the incident was two years prior, she did not order a sexual assault examination. Another Gingerbread House employee, Jennifer Flippo, testified as an expert in child forensic interviewing. She stated that delayed reporting is a common phenomenon, as child victims try to avoid harming themselves or feeling guilty.

On the strength of the Gingerbread House statement, Deputy Hensley of De-Soto Parish Sheriffs Office interviewed Jeremy, who admitted that AK and her dad had been at his house in Stonewall. Jeremy stated, however, that he was outside when AK came out of the house, saying she needed to “wee”; she was having trouble getting her clothes off, so he helped her.

AK’s dad, Chris, testified that one night in 2008, “something odd” | «¡occurred. He and AK were at Jeremy’s house; that night, AK fell asleep on his lap on the couch; Chris left her there and went to a bedroom; later, Jeremy’s wife, Brandi, woke Chris up, wanting to know where Jeremy was; Chris looked on the couch and saw AK was no longer there; he went to the back door and “hollered” for AK; he saw some taillights through the bushes and heard AK shout back, “Daddy!”; then Jeremy emerged from the bushes, carrying AK in his arms. He recalled there was a red car parked on the premises, roughly where Jeremy and AK had been. Chris recalled this happened in 2007 or '08, although he initially told Dep. Hensley it was three or four years prior.

Jeremy’s former wife, Brandi, corroborated that for a while, Chris and his girlfriend were in the habit of bringing their kids over to the Elkinses’ trailer in Stonewall and often stayed the night. She also agreed that the kids played outside, used the bathroom outside, and it would not be unusual for them to go outside at night. She recalled one night when she heard the “General Lee” horn on Chris’s truck; this woke her up, and they went outside to see, but she denied that she woke up Chris or asked him where Jeremy was. It turned out the sound was from AK sitting in the truck, which could not be seen from the steps of the trailer, and Chris carried her back into the house. She repeated that she was not the one who woke up Chris that night.

Based on the Gingerbread House video and interviews with Jeremy and other witnesses, the state obtained an indictment for molestation of a juvenile in January 2011.

The matter proceeded to jury trial in March 2018. The witnesses | testified as outlined above; the DVD of AK’s Gingerbread House interview was played for the jury. Now 12 years old, AK herself testified, confirming that everything she said in the video was true. On cross-examination, she admitted she was not sure how long ago the incident occurred; she also stated that she was sitting in her dad’s truck, blowing the horn, when her dad woke up and came to get her.

Jeremy took the stand in his own defense. He admitted giving a statement to Dep. Hensley in December 2010, telling her the only things he could think of with respect to the accusation: late one night, when the kids were at his trailer, they wanted to go to his mother’s trailer, some 200 yards or so behind his own, and he wouldn’t let them; AK said she needed to use the bathroom, and he told her to go behind the tractor; he helped her pull down her britches, and afterward carried her back to his trailer. He also recalled a separate incident in which he was in bed asleep when he was awoken by the sound of a horn blowing; he went outside and found it was AK sitting in the truck, blowing the horn; he picked her up, carried her back inside, and put her to bed. He resolutely denied that on these occasions, or any occasion, he ever removed any of AK’s clothing, put anything on her or in her, or did anything sexual with her. He admitted telling Dep. Hensley that he was “wrong doing that,” but said he was referring to picking up AK as though she were his own child. He reiterated that the bathroom incident and the horn incident were two separate occasions.

As noted, the jury unanimously found Elkins guilty as charged of molestation of a juvenile. He filed a motion for post verdict judgment of acquittal, which the district court denied in June 2013. Elkins waived ^sentencing delays. The district court stated that it had received and reviewed a presentence investigation report, showing that Elkins is a first felony offender, but that the penalty of R.S. 14:81.2 D(l) is mandatory, so the court did not consider any other factors. Stating that the mandatory minimum was “more than sufficient,” the court sentenced him to 25 years at hard labor, without benefits. El-kins filed a motion for reconsideration, which was also denied. This appeal followed.

Discussion: Sufficiency of Evidence

By his first assignment of error, Elkins urges the evidence was not sufficient to support the conviction in this matter. He argues that he was convicted based on the allegations of the victim, AK, but the evidence was not consistent with her allegations. He shows:

• AK testified that she was asleep on the couch when Jeremy picked her up and carried her away from her father’s lap, but her father testified that she fell asleep in his lap and he left her alone on the couch;
• AK’s father, Chris, testified that he yelled outside for her, but AK did not testify that he yelled for her;
• AK testified that Jeremy took her to a red car with seats, a steering wheel, and lots of junk in it, but Jeremy testified that the car was stripped down;
• AK testified that her panties were removed, and her mother testified that AK told her this, but her father did not see anything odd with AK’s clothing;
• Chris testified that Jeremy’s wife, Brandi, woke him up looking for Jeremy, but Brandi testified that she and Jeremy were awoken by Chris’s distinctive truck horn;
• Chris testified that he had been drinking and had not heard the sound of the horn, but AK, Brandi and Jeremy all testified they heard the horn;
• Chris testified that he saw a light through the bushes, but the [ fisource of the light was never explained, and the car did not have a dome light or battery;
• AK’s mother, Amy, testified that she did not know that Chris and their daughters were staying at Jeremy’s house, but every other adult witness knew about this arrangement;
• Chris testified the incident occurred in 2006 or 2007, Amy’s mother put it in November 2007, Dep. Hensley put it in 2008, and the indictment charged it occurred between May 1 and November 30, 2008;
• Jeremy and his ex-wife, Brandi, both testified they separated in early 2008, so there is no way Brandi would have been there in late 2008;
• Amy testified she did not report anything in 2008 because she did not have sufficient evidence;
• Amy heard the story in 2008 and took no action; she heard it again in 2010, the only difference being that the grandmother, Ms. Addison, also heard it then.

Elkins stresses that AK’s testimony was inconsistent with all the other witnesses and lacked any corroborating physical evidence; he suggests this leaves open the reasonable hypothesis that if AK was touched by anybody, it was by her stepfather, Jeremy.

The state responds that AK’s reports to her mother and grandmother, Gingerbread House interview and trial testimony were consistent and proved every element of the offense. The testimonial discrepancies, it submits, do not provide grounds for reversal.

The standard of appellate review for sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Jackson, 2009-2406 (La./19/ll),7 55 So.3d 767. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Calloway, 2007-2306 (La.1/21/09), 1 So.3d 417; State v. Carey, 47,650 (La.App. 2 Cir. 2/27/13), 110 So.3d 221, writ denied, 2013-0726 (La.11/1/13), 125 So.3d 417. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Dorsey, 2010-0216 (La.9/7/11), 74 So.3d 603; State v. Singleton, 48,114 (La. App. 2 Cir. 6/26/13), 117 So.3d 306. A reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94; State v. Singleton, supra. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La.4/1/05), 898 So.2d 1219; State v. Singleton, supra. This is equally applicable to the testimony of victims of sexual assault. State v. Ware, 2006-1703 (La.6/29/07), 959 So.2d 459; State v. Humphries, 48,235 (La.App. 2 Cir. 9/25/13), 124 So.3d 1177. Such testimony alone is sufficient even when the state does not introduce medical, scientific or physical evidence to prove the commission of the offense. State v. Seaton, 47,-741 (La.App. 2 Cir. 4/10/13), 112 So.3d 1011, unit denied, 2013-1056 (La.11/15/13), 125 So.3d 1102, and citations therein.

The essential elements of the crime of molestation of a juvenile are (1) the accused was over the age of 17, (2) the accused committed a lewd or | ^lascivious act upon the person or in the presence of a child under the age of 17, (3) the accused was more than two years older than the victim, (4) the accused had the specific intent to arouse or gratify either the child’s sexual desires, or his or her own sexual desires, and (5) the accused committed the lewd or lascivious act by use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm or by the use of influence by virtue of a position of control or supervision over the juvenile. La. R.S. 14:81.2 A; State v. Terry, 47,425 (La.App. 2 Cir. 11/21/12), 108 So.3d 126, writ denied, 2012-2759 (La.6/28/13), 118 So.3d 1096, and citations therein.

Matters of record establish that AK was born in December 2000 and Elkins was born in December 1976, thus satisfying the age-related elements of the offense. Touching the victim’s genitals satisfies the elements of a lewd or lascivious act and the intent to gratify the offender’s or the victim’s sexual desires. State v. Terry, supra; State v. Hillman, 613 So.2d 1053 (La.App. 3 Cir.), writ denied, 617 So.2d 1181 (1993). Testimony that Elkins was a good friend of AK’s father, frequently hosted AK’s family for overnight visits and helped AK undress to use the bathroom satisfies the element of authority.

The only issue is whether AK’s account of Elkins’s conduct was so internally inconsistent or irreconcilable with physical evidence that no rational juror could have accepted it. State v. Higgins, supra; State v. Singleton, supra. Even from the impassive record, this court can see some basis for questioning AK’s credibility, given the two-year delay before she reported the incident, and her somewhat rambling delivery on the DVD and Ron the witness stand. However, AK was only seven years old at the time of the incident, and her mother admitted that the child “had a hard time expressing herself.” Ms. Flippo, the expert in child forensic interviewing, explained why a child might delay reporting and candidly admitted that such reporting can yield either false or valid complaints. Ms. Jose, the interviewer on the DVD, explained that two years after the fact, a sexual assault examination would probably not be useful. On this record, the jury could reasonably find AK to be a credible witness.

Moreover, AK’s various reports to her grandmother, mother and Ms. Jose, and her testimony at trial, were consistent in describing the conduct and attributing it to Elkins. The testimony of the other adults present, Chris and Brandi, varied in some particulars, but in ways that reflect those witnesses’ recollections of an event they probably did not consider important years earlier. Elkins’s own testimony attempted to describe two incidents that AK recalled as one. Tellingly, he admitted he was with the child and pulled down her pants; the jury obviously rejected his claim that nothing else happened. On this record, we do not find that evidence fails the standard of State v. Higgins and State v. Singleton, supra, or that we must reverse the jury’s credibility call.

This assignment does not present reversible error.

Sentence Review

By his second assignment of error, Elkins urges the court imposed an unconstitutionally harsh and excessive sentence. He concedes that for the offense of conviction, R.S. 14:81.2 D(l), the mandatory minimum is 25 years at hard labor without benefits, which he received, but argues that even |10this was not tailored to the offense and offender. He cites his steady work as a forklift operator, and his status as the custodial parent of his two children after he and Brandi separated, as facts militating against the statutory minimum.

The state responds that the court gave the “most lenient” sentence available, and that Elkins preyed upon a sleeping child, as supporting the sentence imposed.

Appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Marshall, 94-0461 (La.9/5/95), 660 So.2d 819; State v. Linnear, 44,830 (La.App. 2 Cir. 12/9/09), 26 So.3d 303. No sentencing factor is accorded greater weight by statute than any other sentencing factor. State v. Taves, 2003-0518 (La.12/3/03), 861 So.2d 144; State v. Linnear, supra.

A mandatory minimum sentence is presumptively constitutional. However, a defendant may rebut the presumption by showing, clearly and convincingly, that he is “exceptional,” meaning that “because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Celestine, 2012-0241 (La.7/2/12), 92 So.3d 335; State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. When the statute of conviction imposes a mandatory minimum sentence, and the defendant makes no such showing, | ndetailed compliance with Art. 894.1 is not required to justify the statutory minimum. State v. Robert, 2006-1872 (La.3/9/07), 951 So.2d 1057; State v. McDonald, 33,013 (La.App. 2 Cir. 3/1/00), 754 So.2d 382.

The second prong is review for constitutional excessiveness. A sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Lobato, 603 So.2d 739 (La.1992). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. The sentencing court has wide discretion in imposing a sentence within statutory limits. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7.

The penalty for molestation of a juvenile when the victim is under the age of 13 is hard labor of not less than 25 years and not more than 99 years, without benefit of probation, parole or suspension of sentence. La. R.S. 14:81.2 D(l).

The court cited the sentencing guidelines and the information in the PSI. Notably, the court had presided over a three-day trial (including jury selection) with substantial testimony and a DVD of the victim’s Gingerbread House interview. Although its formal statement of a factual basis for sentence was spare, the court obviously had a thorough grasp of the facts of the offense and of Elkins’s social history. The court considered the statutory | ^minimum “more than sufficient,” and the record illumines this conclusion. Although the sentence of 25 years is admittedly quite lengthy, we simply cannot conclude that his work and social history make him the “exceptional offender” contemplated by State v. Celestine and State v. Johnson, swpra.

The assignment of error does not present reversible error.

Error Patent Review

On our own motion, the court notices that the offense of conviction, R.S. 14:81.2, is a “sex offense” as defined by La. R.S. 15:541(24)(a) and thus carries the requirements of sex offender notification and registration under La. R.S. 15:542 and R.S. 15:543.1. This record does not show that the district court gave Elkins the forms or oral advice to which he is entitled. The matter is therefore remanded solely for the purpose of compliance with these statutes. State v. Hough, 47,308 (La.App. 2 Cir. 8/1/12), 103 So.3d 477, writ denied, 2012-1936 (La.3/8/13), 109 So.3d 357; State v. Scott, 42,997 (La.App. 2 Cir. 2/13/08), 975 So.2d 782.

This court has reviewed the entire record and found nothing else we consider to be error patent. La. C. Cr. P. art. 920.

Conclusion

For the reasons expressed, Jeremy W. Elkins’s conviction and sentence are affirmed. The case is remanded for compliance with sex offender registration requirements and for a minute entry confirming that fact.

CONVICTION AND SENTENCE AFFIRMED. CASE REMANDED FOR COMPLIANCE WITH SEX OFFENDER REGISTRATION REQUIREMENTS.