author: COX, J.

text:
    STATE of Louisiana, Appellee v. Ulrich "Ric" Adam STEINES, Appellant
    No. 51,698-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 15, 2017
    LOUISIANA APPELLATE PROJECT, By: Sherry Watters, Counsel for Appellant
    RICHARD C. NEVILS, District Attorney, STEVEN D. CREWS, COLE B. SMITH, Assistant District Attorneys, Counsel for Appellee
    Before PITMAN, GARRETT, and COX, JJ.
   COX, J.

The defendant, Ulrich "Ric" Adam Steines ("Steines"), was convicted after a bench trial of one count of pornography involving juveniles, in violation of La. R.S. 14:81.1, and two counts of aggravated incest, in violation of La. R.S. 14:78.1. On count one, Steines was sentenced to 10 years at hard labor, without the benefit of probation, parole, or suspension of sentence. On each of counts two and three, Steines was sentenced to 45 years at hard labor, 25 years to be served without the benefit of probation, parole, or suspension of sentence. All sentences were ordered to be served consecutively. Steines filed motions for post-verdict judgment of acquittal and for a new trial, which were both denied. A motion to reconsider the sentence was timely filed, but withdrawn by defense counsel. Steines now appeals. For the following reasons, we affirm the convictions, vacate the sentences, and remand for further proceedings.

FACTS

In late summer of 2008, S.S. was 10 years old and was living with her grandfather (Steines), Steines's wife, and Steines's son, A.S. A.S. was 14 years old at the time and Steines was 53 years old. S.S. had been living with Steines at the request of her mother Odessa (Steines's daughter) since she was 10 months old and S.S. called Steines dad. Steines traveled with his employment and stayed several weeks of the month at the Economy Inn in Winnfield, Louisiana. Receipts showing his stays at the motel from June to mid-October 2008 were introduced into evidence during the trial. It is undisputed that S.S. stayed with Steines for several days at a time when he was at the motel.

In either late August or early September 2008, S.S. told a former wife of Steines that A.S. had touched her inappropriately on her breast and had kissed her. A report was made to the Department of Children and Family Services and an investigation followed. On September 15, 2008, and on two other occasions, Barrett McIntosh with DCFS, interviewed Steines. McIntosh testified at trial that the family underwent group and family counseling and that Steines's wife reported marital problems due to Steines's use of pornography. While the family's problems came to light around the allegations of A.S.'s conduct, the focus soon shifted to Steines.

During his first interview with McIntosh, Steines volunteered that he had showed S.S. how to put a condom on a banana because she was maturing and would soon be having sexual relations. Steines said he used the banana as a demonstration tool for S.S.'s education. During a second interview on October 16, 2008, McIntosh advised Steines that S.S. was going to be referred for sexual abuse testing. McIntosh testified at trial that Steines's tone changed and he became defensive, telling McIntosh that the test would be unreliable because S.S. used tampons instead of pads and had been "playing with herself." By the third conversation on October 18, 2008, McIntosh had concerns Steines was grooming S.S. for further sexual behavior and that Steines was attempting to manipulate the DCFS investigation.

On two occasions, October 16, 2008 and November 24, 2008, S.S. was interviewed by Jennifer Graves of the Children's Advocacy Center. Transcripts of both interviews were admitted into evidence at trial with no objection. In the first interview, S.S. described the incident in the motel with the condom and the banana. She stated that Steines told her that he needed to show her that because she was growing up. When asked if Steines had ever taken any pictures of her without her clothes on, S.S. replied, "I think one time, I'm not sure actually."

In her second interview with Ms. Graves, S.S. stated she had "lied about a few things" in her previous conversation with Ms. Graves because she was scared. S.S. then stated, "I did have another person touch me and take pictures of me and video tape me and stuff like that." S.S. then stated that the person was "Ric Steines, who I now know don't live here anymore." Shortly after the allegations were made and the investigation began, Steines returned to his native Canada. The plane ticket was introduced into evidence at trial.

S.S. also told Ms. Graves that Steines touched her "lower private area" and "had stuck stuff at" her. This happened more than once at the motel and before at the house. The first time it occurred, S.S. was sleeping in Steines's bed at the motel and Steines "stuck his fingers" up S.S.'s vagina. S.S. told Ms. Graves that she pushed Steines away. S.S. also advised that "we went one more time and daddy forced me to put my fingers up myself and got butt naked and he videotaped me." When asked to explain, S.S. said, "I was at the motel one day and I was just lying in bed watching TV and he forced me to get up, take off all my clothes and he took off all his. And he videotaped me it really hurt." S.S. could not recall what the camera looked like. S.S. also stated that Steines grabbed her hand and made her touch his "lower part" and showed her a video of grown-ups having sex. S.S. told Ms. Graves that she had a friend who had experienced similar things with her stepfather. S.S. stated that hearing about her friend's experience had given S.S. the confidence to talk about it.

When asked, specifically, when the incidents took place, during the summer or during the school year, S.S. replied that she did not remember "any of the times," just what happened. S.S. also stated that Steines told her not to tell or he would do something, but she could not recall what he said he would do.

An arrest warrant was secured for Steines, but he had returned to Canada. It was not until 2014 that Steines was extradited to Winn Parish to face these charges. Officer Kelly Fannin of the Winn Parish Sheriff's Office testified that he arrested Steines on August 1, 2014.

S.S. testified that she lived in Caldwell Parish in the summer and fall of 2008 and that she would stay with Steines at the Economy Inn in Winnfield, Winn Parish, LA while he was working. S.S. stated that the incidents of abuse occurred at the motel. At trial, S.S. recounted the banana and condom incident and testified that Steines touched her vagina. She stated that Steines told her he would give her twenty dollars if she would get fully undressed. S.S. testified that "he used a camera to either record me or take pictures, I'm not really sure, um, of me doing stuff to myself.... he was naked at the time." S.S. confirmed that Steines told her to touch herself for the recording and that he told her she would likely be having sex by the time she was 12 years old. S.S. stated that the touching happened numerous times and that Steines showed her pornography on his computer. When asked why she was testifying, S.S. stated, "I need justice and I need closure in my life. It's been really hard since it, um, it's-it's really hard to just be in a room with another, uh man, and it's really hard just to-to just have those memories in my head without anything being done."

During cross-examination, S.S. admitted that she could not get into the mind of "her ten-year old self" and that eight years can affect one's memory. S.S. agreed that the events happened "late summer."

Dr. David Williams is an expert in psychology. DCFS referred the Steines family to him in order to evaluate A.S. Dr. Williams testified regarding group and family therapy sessions. Dr. Williams testified that he acted to have A.S. and S.S. removed from the family unit based on his conclusion regarding the inappropriate grooming behavior (the banana and condom incident) with a 10-year-old child by hand delivering a letter to DCFS. Dr. Williams stated he was concerned the child was being "softened up" for more sexual behavior. Dr. Williams testified that he wrote a letter, which he personally walked over to child protective services, expressing his concerns about the children in this family. Dr. Williams stated that "the kids needed to be out of there, [S.S.] especially." His opinion and actions were based on his experience as a counseling psychologist working with sexual offenders and victims.

Dr. John Simoneaux, an expert in psychology, testified at trial that he evaluated S.S. on January 29, 2009. He was referred by DCFS to "validate sexual enticement and lack of supervision relative to her grandfather." Dr. Simoneaux reviewed the two statements S.S. gave to Ms. Graves and personally interviewed S.S. Dr. Simoneaux testified that it was normal for young victims to make additional revelations over time rather than all at once. He also explained that it was not unusual to see differing statements from a child victim. Defense counsel objected, arguing that the answer would be an impermissible opinion on the credibility of S.S. and the validity of her claim under State v. Foret, infra . The trial court allowed Dr. Simoneaux to testify as to the common behaviors of victims in general, but stated, "I'm gonna keep an eyed-eye on the rest. Let, uh, I believe [defense counsel] is correct when it gets down to the-is she telling the truth or not, that's not [Dr. Simoneaux's] job.... That's my job." Later in his testimony, Dr. Simoneaux was asked if he made a recommendation on what to do following his evaluations. Again, defense counsel objected arguing the question called for an opinion on the validity of S.S.'s claim. The trial court agreed and the district attorney withdrew the question.

The state rested and Steines testified on his own behalf. Steines testified that he moved to Louisiana from Canada to support his family. He stated that he agreed to raise S.S. because his daughter, S.S.'s mother, was having problems. Steines denied any inappropriate conduct with S.S. He explained the banana and condom incident by stating that is how safe sex is taught in Canadian schools. He testified he was "scared" because S.S. and her friends were talking about boys so he decided to educate her. Steines denied that he viewed pornography.

The trial judge found Steines guilty as charged, specifically stating that he found S.S. to be credible and Steines to be completely lacking in credibility. Following sentencing, Steines appealed.

DISCUSSION

I. Insufficient Evidence

This Court will address Steines's second assignment of error first. Steines argues the State failed to prove every element of each charge beyond a reasonable doubt. He argues the aggravated incest charges are based solely on S.S.'s allegations, which Steines describes as inconsistent and "hazy." Steines argues the State failed to meet its burden of proof on the pornography involving juveniles charge because S.S. could not identify the device used to video her and no actual video was produced.

When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal if a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. Hudson v. Louisiana , 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed. 2d 30 (1981) ; Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979) ; State v. Dennis , 46,471 (La. App. 2 Cir. 9/21/11), 72 So.3d 968, writ denied , 2011-2365 (La. 5/18/12), 89 So.3d 1189.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the case in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson, supra ; State v. Tate , 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed. 2d 248 (2004) ; State v. Neal , 51,574 (La. App. 2 Cir. 5/2/17), 219 So.3d 482. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. Neal, supra .

An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is viewed, the facts established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton , 436 So.2d 471 (La. 1983) ; State v. Freeman , 50,282 (La. App. 2 Cir. 4/13/16), 194 So.3d 1.

The appellate court does not assess the credibility of witnesses or reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442 ; State v. Bass , 51,411 (La. App. 2 Cir 6/21/17), 223 So.3d 1242. A reviewing court affords great deference to a trial court's decision to accept or reject the testimony of a witness in whole or in part. Bass, supra .

Under the Jackson rationale, when the defendant asserts that he was not the perpetrator, or remains silent, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Long , 408 So.2d 1221 (La. 1982) ; Bass, supra . It is the province of the fact finder to resolve conflicting inferences from the evidence. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness-if believed by the trier of fact-is sufficient to support the requisite factual conclusion. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence. This is equally applicable to the testimony of sexual assault victims. Bass, supra.

La. R.S. 14:81.1, Pornography involving juveniles, provided in part:

A. Pornography involving juveniles is any of the following:
(1) The photographing, videotaping, filming, or otherwise reproducing visually of any sexual performance involving a child under the age of seventeen.
(2) The solicitation, promotion, or coercion of any child under the age of seventeen for the purpose of photographing, videotaping, filming, or otherwise reproducing visually any sexual performance involving a child under the age of seventeen.
...
(4) The consent of a parent, legal guardian, or custodian of a child under the age of seventeen for the purpose of photographing, videotaping, filming, or otherwise reproducing visually any sexual performance involving the child.

There was sufficient evidence to support Steines's conviction of pornography involving juveniles. S.S. gave her statement to Mrs. Graves when she was 10 years old and testified at trial. S.S. stated that in late summer of 2008, when she was 10 years old, Steines gave her twenty dollars and told her to undress. She stated Steines instructed her to put her fingers in her vagina. S.S. testified Steines was naked during this episode and had a camera pointed at her, either taking pictures or videoing her. S.S.'s testimony is sufficient to establish the requisite elements of pornography involving juveniles, i.e., that Steines photographed or videotaped a sexual performance of a child under the age of 17.

Medical, scientific, or physical evidence was not produced. Steines left the country for his native Canada before the investigation culminated. Ultimately, it was the trial court's decision to believe or not believe the testimony of S.S. The trial court stated during the rendering of its verdict that it found S.S. to be "totally credible." The trial court further stated it believed S.S. when she testified that Steines "took pictures or videoed her in a state of nudity." The trial court's decision was based on credibility, and will not be disturbed on appeal.

La. R.S. 14:78.1, Aggravated incest, provided in pertinent part:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.
B. The following are prohibited acts under this Section:
(1) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile or a person with a physical or mental disability, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.
(2) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.

There was sufficient evidence to support Steines's conviction of aggravated incest. S.S. gave her statement to Mrs. Graves when she was 10 years old and testified at trial. S.S. testified Steines touched her vagina numerous times and he "stuck things up" her, including his fingers and a piece of sausage. She also stated Steines grabbed her hand and forced her to touch his penis. Medical, scientific, or physical evidence was not produced.

S.S.'s testimony is sufficient to establish the requisite elements of aggravated incest, i.e., that Steines engaged in indecent sexual behavior with his biological grandchild, who was under the age of 18. As stated previously, it was the trial court's decision of whether or not to believe the testimony of S.S. The trial court stated it believed the testimony of S.S that she was inappropriately touched by Steines. The only evidence to the contrary was the testimony of Steines himself. The trial court did not find Steines to be credible. The trial court's decision was based on credibility and will not be disturbed on appeal. This assignment is without merit.

II. Expert Testimony

In his first assignment of error, Steines argues the trial court erred in allowing purported expert testimony on the reporting of alleged sexual abuse. Steines argues the only issue in the case was the credibility of S.S. because she changed her story when making allegations. Steines argues the trial court allowed the expert witnesses to testify improperly as to their conclusions that S.S. had been sexually abused and was being groomed for more sexual abuse. Steines argues the experts' testimony concerned the credibility of S.S.'s allegations, which usurped the role of the judge as trier of fact.

In a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused. La. C.E. art. 704. Expert opinion testimony is inadmissible on the issue of credibility under La. C.E. art. 608. See Official Comment (e) to Article 702. As long as the expert limits his testimony to general characteristics that would explain delays in reporting, recantations, and omission of details, the testimony will not be a substitute for the credibility determination of the fact finder. The expert testimony is to provide a scientific perspective for the fact finder so it can evaluate the complainant's testimony for itself. State v. Foret , 628 So.2d 1116 (La. 1993).

In State v. Patrick , 513 So.2d 449 (La. App. 2 Cir. 1987), writ denied , 519 So.2d 140 (La. 1988), this Court explained the unique role of a psychologist's testimony in incest cases:

Psychologists explained that a child-victim of parental incest exhibits abnormal behavior traits and suffers great psychological harm. The testimony of the child is usually necessary to convict a father of the heinous crime of incest. Expert psychological testimony aids and enlightens the jury in this area of behavioral traits, an area which is beyond the understanding of the average lay person, and assists the jury in its search for truth.
Psychological expert testimony is admissible here because it assisted the jury's understanding of the behavior of a child who may have been the victim of parental incest, an area requiring "specialized knowledge." The facts of this case are inapposite to cases where the admissibility of expert testimony in an area of "common knowledge," such as eye-witness identification, is at issue. (citations omitted)

Dr. Simoneaux did not present impermissible testimony. Dr. Simoeaux's testimony was specialized knowledge regarding the general characteristics of assault victims. Dr. Williams testified about the reasons he reported the suspected child abuse. Neither psychologist testified to the credibility of S.S. The trial court stated that the experts could not testify as to the credibility of S.S., as that was the trial court's "job." The trial court further stated that no testimony would be regarded as bearing on credibility. Both expert testimonies were permissible. This assignment is without merit.

III. Sentencing Delay

In his third assignment of error, Steines argues the trial court erred in proceeding to sentencing immediately after the denial of the motion for a new trial where there was no waiver of the 24-hour sentencing delay. He argues he was prejudiced by the trial court's failure to observe the 24-hour sentencing delay required in La. C. Cr. P. art. 873. Steines states that his sentencing attorney was not the same attorney who represented him at trial and the lack of delay precluded his adequate preparation for sentencing. Further, because he is challenging his sentence on appeal, Steines argues that his sentence should be vacated for failure to observe the delay and the matter remanded so the sentence can be legally imposed.

La. C. Cr. P. art 873 states:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

Article 873 uses mandatory language which requires a 24-hour delay between the overruling of a motion for a new trial and sentencing. The Louisiana Supreme Court stated in State v. Augustine , 555 So.2d 1331 (La. 1990) :

These statutorily mandated delays have been respected in a long line of opinions[.]
" Article 873 uses mandatory language in requiring that twenty-four hours elapse between the overruling of a motion for new trial and sentencing when the defendant is convicted of a felony. ... The legislature in effect has said that a failure to comply with article 873 in the absence of an express waiver by the defendant affects substantial rights." State v. White , 483 So.2d 1005 (La.1986), Dennis, J., dissenting in part.
Only the majority opinion in State v. White , 404 So.2d 1202 (La.1981) can possibly be considered at variance with this rule. But even that case is largely distinguishable from this one. We held in White (over the protest of two dissenting justices) that the statutory mandate of the 24-hour delay was not so imperative as to require a resentencing where the defendant could not show that he suffered prejudice from the violation. State v. White , however, was before us on an errors patent review (no assignments of error urged by the defendant on this issue), and the defendant was not challenging the penalty imposed.
In the case before us, Augustine did not expressly waive the delay as required by art. 873 (nor did he plead guilty); and he does challenge the penalty on this appeal.

In State v. Kisack , 2016-0797 (La. 10/18/17), 236 So.3d 1201, 2017 WL 4681356, sentencing occurred almost immediately after the trial court denied the defendant's motion for a new trial. Although the defense attorney participated in the sentencing hearing, an express waiver of the 24-hour delay did not occur. The Louisiana Supreme Court stated the participation in the sentencing hearing may be considered an implicit waiver, but such implicit waivers are not authorized by the criminal code. The defendant, who faced a sentencing range of 20 years to life, received a life sentence. The Louisiana Supreme Court stated, "...it is difficult to conclude the error is harmless."

In this case, the trial court denied Steines's motion for a new trial and sentenced Steines on the same day. After denying Steines's motion for a new trial, the trial court did not wait the required 24-hours before imposing his sentence and nothing in the record indicates, as required by Article 873, that Steines expressly waived the delay. Steines's sentence equated to 100 years in prison, which he challenges on appeal. Further, Steines did not plead guilty. In accordance with Augustine and Kisack , we are required in this case to vacate the sentences and remand for resentencing on these grounds.

IV. Excessive Sentence

In his fourth assignment of error, Steines argues the trial court imposed excessive sentences on each count, which were not warranted by the offenses or the circumstances of a first offender. Under the facts of this case, we do not believe the sentences are excessive. However, because we are vacating Steines's sentences and remanding for compliance with La. C. Cr. P. art. 873, we pretermit this assignment of error.

Errors Patent

A review of the record reveals that the trial court did not properly inform Steines of the sex offender registration and notification requirements outlined in La. R.S. 15:543. Pornography involving juveniles and aggravated incest are defined as sex offenses under La. R.S. 15:541. La R.S. 15:543 requires the trial court to notify a defendant convicted of a sex offense, in writing, of the registration and notification requirements and that an entry be made in the court minutes, stating that the written notification was provided to the defendant.

The trial court did not provide Steines with either written or oral notification of the sex offender requirements. There is no indication in the record as to whether Steines is aware of the sex offender registration requirements. This matter is remanded for the purpose of providing the appropriate written notice to Steines of the sex offender registration requirements and for the filing of written proof of such notice into the record of the proceedings.

La. R.S. 14:81.1(E)(3) states, "Any parent, legal guardian, or custodian of a child who consents to the participation of the child in pornography involving juveniles shall be fined not more than ten thousand dollars[.]" When sentencing Steines for pornography involving juveniles, the trial court failed to impose the mandatory fine of not more than $10,000.00, making the sentence illegally lenient. La. C. Cr. P. art. 882(A) provides that an illegally lenient sentence may be corrected at any time by an appellate court on review. However, this Court is not required to take such action. State v. Wesley , 49,438 (La. App. 2 Cir. 2/26/15), 161 So.3d 1039, writ not considered , 15-1096 (La. 3/14/16), 188 So.3d 1065. Since this Court is not required to take action and Steines is not prejudiced in any way by the failure to impose the mandatory fine, we decline to impose the fine.

CONCLUSION

For the reasons previously stated, we affirm Steines's convictions. Steines's sentences are vacated and remanded for proper sentencing due to the mandatory 24-hour waiting period not being followed by the court, as is required for sentencing pursuant to La. C. Cr. P. art. 873. The matter is remanded to the trial court with instructions to provide the defendant with appropriate written notice of his sex offender obligations in compliance with La. R.S. 15:543 and to file written proof thereof in the record.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING.

      In 2014, all references in Louisiana law to "aggravated incest" were changed to "aggravated crime against nature."


source: Caselaw Access Project

author: BROWN, C.J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Latilo Omar LEWIS, Appellant
    No. 51,672-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 15, 2017
    LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant
    LATILO OMAR LEWIS, Pro Se
    JAMES E. PAXTON, District Attorney, LINDA L. WATSON, MOLLY F. McEACHARN, JOHN D. CRIGLER, JR., Assistant District Attorneys, Counsel for Appellee
    Before BROWN, GARRETT, and STONE, JJ.
   BROWN, C.J.

Defendant, Latilo Omar Lewis, was convicted of first degree rape, attempted second degree murder, second degree kidnapping, and simple robbery. He was sentenced to life imprisonment at hard labor without benefits for rape, 50 years at hard labor for attempted murder, 40 years at hard labor for kidnapping, and seven years at hard labor for robbery. Defendant has appealed his convictions and sentences. For the following reasons, we affirm all of defendant's convictions and his sentences for first degree rape, attempted second degree murder, and simple robbery. However, defendant's sentence for second degree kidnapping is vacated and remanded to the trial court for resentencing. This case is also remanded to the trial court for correction of the court minutes and compliance with the sex offender notification requirements.

FACTS

Defendant's four-day trial began on October 10, 2016. Tensas Parish Sheriff Ricky Jones testified that around 2:22 p.m. on November 6, 2015, N.H. frantically ran into the sheriff's office barefoot, wearing a pink nightgown and black jogging pants. According to Sheriff Jones and Deputy Betty Spillman Brown, N.H. was hysterical; she was crying and could barely talk. The officers observed noticeable bruises on N.H.'s face, neck and arms and saw that she had bloodshot eyes. N.H. reported that a man who said that his name was Marcus Brown had forced himself into her home that morning, tied her up and sexually assaulted her all day. When he went into another room, she was able to get loose, get her gun, and shoot him when he returned to the room. Three minutes later, at 2:25 p.m., defendant, Latilo Lewis, called 911 from N.H.'s home and advised that he had been shot.

When officers arrived at N.H.'s house, which was about three blocks from the sheriff's office, they found defendant sitting in a chair in the living room. Defendant had a perforating bullet wound to his upper right abdomen. Paramedic Johnny Ogden determined that defendant's injury was critical, and defendant was airlifted to the University of Mississippi Medical Center in Jackson, Mississippi.

Sheriff Jones testified that the officers went past defendant into N.H.'s bedroom, where they observed her disheveled bed and drawers pulled out. The sheriff took photographs of the scene, as did Investigator Mark Guy and Deputy Bob Stroud. Sheriff Jones testified that they found one live round and one spent round on the victim's bed, as well as a projectile on the floor. He stated that, despite an extensive search for N.H.'s gun, a .380 automatic, officers were unable to locate the weapon. Deputy Evelyn Guy took photographs of N.H.'s injuries at the sheriff's office. Sheriff Jones identified the photos taken during the investigation during his trial testimony.

Sheriff Jones testified that, during the course of the investigation, N.H. told officers that there was $500-$600 missing from her purse. Deputy Stroud contacted authorities at the University Medical Center in Jackson, who found $567 in defendant's possession.

St. Joseph Police Chief Karl Jones also responded to the 911 call made from N.H.'s house and was there when paramedics arrived. Chief Jones saw the very distraught victim when he went to the sheriff's office/jail. According to Chief Jones, N.H. was crying uncontrollably and appeared to be in shock. He also noticed bruising at her neck and wrists. Chief Jones testified that the victim's brother called him on November 7 and asked whether officers had found any money on defendant because N.H. was missing $500-$600, which she had collected for a church function. Chief Jones stated that he and his department participated in the search for the victim's gun, which went on for several days.

N.H. testified that around 7:30 a.m. on November 6, 2015, she opened her front door to check the weather so she would know what to wear that day. When she saw that there was a man crouched down on her porch "like a lion getting ready to pounce on his prey," she tried to close the door, but he forced or "barged" his way into her house. The man grabbed N.H., threw her on the floor and told her to put her hands behind her back. N.H. refused and fought back, but the man choked her and she lost consciousness. When N.H. woke up, her hands were tied behind her back. The man pushed N.H. into her bedroom and repeatedly raped her as she begged for him to stop. Over the course of about seven hours, the man continued to rape N.H. as she was tied to the head of her bed with a belt. N.H. stated that at one point, the man took money (around $500-$600) from her purse which she had been saving for her church anniversary. N.H. detailed several conversations she had with the man, including the fact that the man told her his name was Marcus Brown.

At one point, the man told her that he was hungry and went into the kitchen, leaving N.H. tied to the bed. N.H. was able to loosen herself and get her gun out of a filing cabinet she used as a nightstand located next to the bed. When the man came back into the bedroom, N.H. was standing on the bed with the gun pointed at him. N.H. told the man to leave, but he came closer, so she shot him. Although he was shot, the man lunged at N.H. and wrestled the gun out of her hand. N.H. testified that the man put the gun to her head and said, "Now bitch, you'll know what it feels like to be shot." The man pulled the trigger, but the gun jammed. Another struggle ensued, and the man tied N.H. to the bed again. She was eventually able to convince the man to untie her so she could get him medical attention. N.H. left the house and drove straight to the sheriff's office. N.H. identified defendant as the man who repeatedly raped and tried to kill her.

Investigator Michael Huff with the Hinds County Sheriff's Department in Jackson, Mississippi, assisted in the investigation of this case by obtaining search warrants and collecting evidence from defendant while he was in the hospital in Mississippi. On November 6, 2015, Huff obtained a search warrant for defendant's clothing and a DNA sample. Thereafter, once he received information that defendant allegedly took money from N.H. during the incident, on November 25, 2015, Huff obtained a second search warrant for all property possessed by defendant at the time of his admission to the hospital. As a result, $557 was recovered from defendant.

In a recorded interview, defendant told officers that he was in a relationship with N.H., which no one else knew about. On the day of the incident, defendant said that he was spending time with the victim, they had consensual sex one time, and then N.H. started acting weird and shot him. Defendant stated that the money found in his belongings was money he got from selling weed. Defendant denied raping N.H. or putting the gun to her head. Defendant's statement that he was in a relationship with N.H. was not corroborated.

After the incident, N.H. was taken to Riverland Medical Center for a sexual assault examination. Dr. Rome Sherrod, who collected evidence for the rape kit, testified that N.H. had bruising on her neck and wrists consistent with being restrained, as well as swelling and abrasions to her vagina, which were consistent with forced or violent sexual activity. Dr. Jessica Esparza, an expert in forensic DNA analysis, testified that she conducted DNA testing of the items in the rape kit and the DNA profile obtained from the sperm from the vaginal swab, cervical swab, and vaginal washings. Dr. Esparza testified that the DNA profile found on the items in the rape kit was consistent with the DNA profile obtained from defendant's reference sample. According to Dr. Esparza, the probability of finding the same DNA profile in a randomly selected person other than defendant was one in 6.11 quadrillion, which is more than the earth's population.

After all of the testimony and evidence was presented, on the final day of the four-day trial, defendant managed to escape from his jailers as they were escorting him to the courthouse from the jail, which is directly behind the courthouse. Outside the presence of the jury, the trial judge noted that defendant was still on the loose, and it had come to the judge's attention that some of the jurors, who had been looking out the windows in the jury room, observed defendant as he was running. Defense counsel moved for a mistrial, arguing that defendant was prejudiced when the jurors saw him in police custody being escorted by two guards and possibly witnessed his escape, and that proceeding with the trial in defendant's absence was in violation of his right to be present. The trial court denied the motion for mistrial, noting that the jurors saw defendant in custody of law enforcement officers in the courtroom all week and the court took "great pains" to ensure that defendant was in neat, clean, civilian clothing, and that the only restraints he had on, which were on his legs, allowed him to walk with little difficulty. Also, the trial court found that because defendant had voluntarily absented himself, the trial could proceed without his presence. Defense counsel requested that the jurors be gauged to determine if they could still be fair and impartial, but the court stated that it only intended to tell the jury that Lewis had chosen not to be present for the remainder of the proceedings and "leave it at that." The trial court did so, and the trial resumed.

The jury ultimately found defendant guilty as charged of first degree rape, guilty of the responsive verdict of attempted second degree murder, guilty as charged of second degree kidnapping, and guilty of the responsive verdict of simple robbery. Although his attorney was present, defendant was not present at trial for the closing arguments, jury instructions, or the reading of the jury's verdict.

The defense filed a motion for post-verdict judgment of acquittal, arguing that the evidence was insufficient, and a motion for new trial, based on the denial of certain objections to testimony during trial. At a hearing on October 26, 2016, the trial court denied the post-trial motions.

Defendant waived sentencing delays. After reviewing the pre-sentence investigation report, the trial court sentenced defendant as follows: life imprisonment at hard labor without benefits for first degree rape; 50 years at hard labor without benefits for attempted second degree murder; 40 years at hard labor, with at least two years without benefits for second degree kidnapping; and seven years at hard labor for simple robbery. The trial court ordered the sentences to be served concurrently.

Defendant filed a motion to reconsider sentence, arguing that his sentences were excessive since he received the maximum sentence for each offense. The trial court denied the motion at a hearing on December 1, 2016. This appeal followed.

DISCUSSION

Sufficiency of the Evidence

Although not specifically designated as an assigned error, in the closing section of his pro se brief, defendant contends that the evidence was insufficient to support his convictions. According to defendant, the state's case against him was based on circumstantial evidence and rested solely on the victim's account of the events. Defendant claims that the facts of this case are "shady" and that it is hard to imagine how he was able to take the gun from N.H. and attempt to shoot her after she shot him, or that he would have had time, in the span of three minutes, to hide the gun and take N.H.'s money from her purse.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979) ; State v. Tate , 01-1658 (La. 05/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed. 2d 248 (2004) ; State v. Sullivan , 51,180 (La. App. 2 Cir. 02/15/17), 216 So.3d 175. 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. Pigford , 05-0477 (La. 02/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 01/14/09), 1 So.3d 833, writ denied , 09-0310 (La. 11/06/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to the factfinder's decision to accept or reject the testimony of a witness in whole or in part. State v. Sullivan , supra .

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. Direct evidence provides proof of the existence of a fact, for example, a witness's testimony that he saw or heard something. State v. Lilly , 468 So.2d 1154 (La. 1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. This rule applies equally to the testimony of victims of sexual assault. Such testimony alone is sufficient, even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Lewis , 50,546 (La. App. 2 Cir. 05/4/16), 195 So.3d 495, writ denied , 16-1052 (La. 05/1/17), 219 So.3d 330 ; State v. Joyner , 50,740 (La. App. 2 Cir. 06/22/16), 197 So.3d 724, writ denied , 16-1493 (La. 06/16/17), 219 So.3d 1111.

First Degree Rape

La. R.S. 14:41 provides, in part:

A. Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person's lawful consent.
B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.

La. R.S. 14:42 provides, in part:

A. First degree rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1)When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.

Attempted Second Degree Murder

Second degree murder is the killing of a human being when, among other things, the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1. 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; it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. La. R.S. 14:27(A).

To obtain a conviction for attempted second degree murder, the state must prove the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim's death. State v. Bishop , 01-2548 (La. 01/14/03), 835 So.2d 434. Attempted second degree murder requires proof of specific intent to kill; proof of specific intent to inflict great bodily harm is insufficient. State v. Jones , 49,396 (La. App. 2 Cir. 11/19/14), 152 So.3d 235, writ denied , 14-2631 (La. 09/25/15), 178 So.3d 565.

Specific intent is the 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. La. R.S. 14:10(1). As a state of mind, specific intent need not be proved as a fact; it may be inferred from the circumstances and the actions of the defendant. State v. Mickelson , 12-2539 (La. 09/3/14), 149 So.3d 178 ; State v. Walker , 51,217 (La. App. 2 Cir. 05/17/17), 221 So.3d 951. The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Lloyd , 48,914 (La. App. 2 Cir. 01/14/15), 161 So.3d 879, writ denied , 15-0307 (La. 11/30/15), 184 So.3d 33, cert. denied , --- U.S. ----, 137 S.Ct. 227, 196 L.Ed.2d 175 (2016). The determination of whether the requisite intent is present is a question for the trier of fact. Id. ; State v. Walker , supra .

Second Degree Kidnapping

Under La. R.S. 14:44.1, second degree kidnapping is the imprisoning or forcible secreting of any person, wherein the victim is physically injured or sexually abused.

Simple Robbery

La. R.S. 14:65 defines simple robbery as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon. See State v. Mason , 403 So.2d 701 (La. 1981) (acts of violence or intimidation need not be done for the very purpose of taking the victim's property; rather, it is enough that he takes advantage of a situation which resulted from the prior use of force or intimidation;

in that case, an aborted rape attempt).

The evidence presented at trial was sufficient to support all of defendant's convictions. N.H. testified that, after defendant forced his way into her house, he choked her, rendering her unconscious. Defendant tied N.H.'s arms to the head of her bed, and over the course of about seven hours, defendant repeatedly raped N.H. as she begged for him to stop. This testimony established that defendant engaged in vaginal sexual intercourse with N.H. without her consent, and that Lewis restricted N.H's movements and imprisoned her in her own house.

The jury found N.H.'s testimony credible, and her testimony alone was sufficient to convict defendant of first degree rape and second degree kidnapping. As noted above, this Court does not assess the credibility of witnesses or reweigh evidence. Defendant's argument that the state's case was based solely on N.H.'s testimony is without merit. Consistent with N.H.'s version of the events, several officers testified that N.H. had bruises on her neck and wrists. Also, defendant's DNA was found in several items from the rape kit performed on N.H. and the doctor that performed the sexual assault examination on N.H. testified that the bruising, swelling, and abrasions to N.H.'s vagina were consistent with forced sexual activity.

At trial, N.H. testified that after she shot defendant, he wrestled the gun out of her hand and said, "Now bitch, you'll know what it feels like to be shot," as he put the gun to her head and pulled the trigger. Fortunately, the gun jammed. Although no shots were actually fired by defendant, evidence that defendant pulled the trigger while he held the gun to N.H.'s head is sufficient to establish that he had the requisite intent to kill, and therefore, is sufficient to support his conviction for attempted second degree murder.

N.H. also testified that defendant took money from her purse during the incident. Pursuant to a search warrant, officers in Jackson, Mississippi, recovered $557 from defendant's personal belongings while he was in the hospital. This evidence is sufficient to support defendant's conviction for simple robbery.

Considering the evidence in a light most favorable to the prosecution, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that defendant was guilty of first degree rape, attempted second degree murder, second degree kidnapping, and simple robbery. This assignment of error is without merit.

Denial of Mistrial

The defense argues that the trial court should have granted a mistrial when the jurors saw defendant escape from custody on the last morning of trial. Noting that a defendant should not be seen shackled or handcuffed, defendant's attorney claims that this incident infringed upon defendant's presumption of innocence. The defense argues that this prejudicial conduct outside the courtroom, along with the fact that defendant was absent from the balance of the proceedings, denied defendant his right to a fair and impartial trial. Also, defendant's attorney complains that, although a request was made to gauge whether the jurors could still be impartial, the trial court declined to do so.

Regarding mistrials, La. C. Cr. P. art. 775 provides, in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.

Mistrial is a drastic remedy which is authorized only where substantial prejudice will otherwise result to the accused. State v. Roberson , 46,697 (La. App. 2 Cir. 12/14/11), 81 So.3d 911, writ denied , 12-0086 (La. 04/20/12), 85 So.3d 1270. The determination of whether actual prejudice has occurred lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. State v. Authier , 46,903 (La. App. 2 Cir. 4/25/12), 92 So.3d 494, writ denied , 12-1138 (La. 11/02/12), 99 So.3d 662.

Even if a mistrial was warranted, the failure to grant a mistrial would not result in an automatic reversal of the defendant's conviction, but would be a trial error subject to the harmless error analysis on appeal. State v. Givens , 99-3518 (La. 01/17/01), 776 So.2d 443 ; State v. Roberson , supra . Trial error is harmless where the verdict rendered is "surely unattributable to the error." State v. Wilson , 50,589 (La. App. 2 Cir. 05/18/16), 196 So.3d 614, writ denied , 16-1102 (La. 05/12/17), 221 So.3d 72.

A defendant cannot complain that prejudicial conduct requires a mistrial when the alleged prejudice stems from the defendant's own obstructive conduct which is met by a reasoned and ordered reaction by the trial court to maintain orderly procedure. State v. Tyler , 607 So.2d 910 (La. App. 2 Cir. 1992), writ denied , 612 So.2d 97 (La. 1993).

Absent exceptional circumstances, a defendant before the court should not be shackled, handcuffed, or garbed in any manner destructive of the presumption of innocence or detrimental to the dignity and impartiality of the judicial proceedings. State v. Odenbaugh , 10-0268 (La. 12/06/11), 82 So.3d 215. However, the momentary use of restraints for the limited purpose of transporting the accused does not mandate a mistrial. State v. Thornton , 36,757 (La. App. 2 Cir. 01/29/03), 836 So.2d 1235, writ denied , 03-0861 (La. 10/31/03), 857 So.2d 474 ; State v. Jones , 31,613 (La. App. 2 Cir. 04/01/99), 733 So.2d 127, writ denied , 99-1185 (La. 10/01/99), 748 So.2d 434.

La. C. Cr. P. art. 831 establishes a defendant's due process right to be present at every stage of the trial when his absence might frustrate the fairness of the proceeding. However, the provisions of La. C. Cr. P. art. 831 are not absolute. State v. Landrum , 35,053 (La. App. 2 Cir. 09/26/01), 796 So.2d 94, writ denied , 03-0493 (La. 02/20/04), 866 So.2d 823. La. C. Cr. P. art. 832 provides an exception for when the defendant voluntarily absents himself:

A. A defendant initially present for the commencement of trial shall not prevent the further progress of the trial, including the return of the verdict, and shall be considered to have waived his right to be present if his counsel is present or if the right to counsel has been waived and:
(1) He voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his obligation to be present during the trial[.]

Thus, under La. C. Cr. P. art. 832, a defendant may waive his right to be present by voluntarily absenting himself from the trial. In the case of a defendant who voluntarily absents himself from trial, the next inquiry is whether the defendant's attorney was present at every stage of the proceeding. If so, the defense attorney's presence is sufficient to satisfy the due process requirements of La. C. Cr. P. arts. 831 and 832. State v. Bolton , 408 So.2d 250 (La. 1981) ; State v. Landrum , supra .

The trial court did not abuse its discretion in denying defendant's motion for mistrial or in continuing with the trial in defendant's absence. During the trial, defendant was not forced to wear prison attire, nor was he visibly restrained. Although several jurors may have seen defendant escape from the custody of his jailers as he was being transported to the courthouse, the use of restraints for the purpose of transporting the defendant does not require a mistrial. Defendant cannot complain of alleged prejudice arising from his own obstructive conduct.

Furthermore, because of his escape, defendant voluntarily absented himself from the courtroom, thereby waiving his right to be present for the conclusion of his trial. Defendant's attorney was present at all stages of the proceedings. There is no indication that defendant's absence from the trial for closing arguments, jury instructions, or the reading of the jury's verdict altered the outcome of the trial. This Court will not allow a defendant to manipulate and frustrate the speedy trial and prosecution of criminal cases by absenting himself from a trial which has already commenced whenever he chooses to do so. State v. Landrum, supra .

Defendant failed to demonstrate any prejudice arising from his escape or absence from the conclusion of trial. As noted above, the evidence presented at trial was sufficient to support defendant's convictions. This assignment of error is without merit.

Excessive Sentence

Noting that defendant received maximum sentences for each of his convictions, the defense contends that defendant's sentences are excessive, primarily because the trial court relied on defendant's criminal history and failed to consider the mitigating factors.

At the sentencing hearing, defendant made a brief statement, apologizing to everyone for his behavior. The victim, N.H., then made a statement, explaining that the rape, the attempt to kill her, and being held in her own house for over seven hours was "pure hell," which she relives every day. N.H. stated that she is scared to open her door or leave her house, and opined that defendant does not have respect for the law or others and is a definite harm to people in the community.

The trial court outlined the facts of this case, noting that defendant brutally raped N.H. numerous times over a period of several hours during which she was held hostage in her own home and tied to the bed. The trial court further noted that the gun fortunately jammed when defendant tried to shoot N.H. in the head, and that defendant robbed N.H. of $557. Also, the trial court noted that N.H. has required two hospitalizations as a direct result of this horrific crime, and continues to suffer debilitating mental and physical infirmities.

As to his personal history, the trial court noted that defendant has four children (ages 22, 17, 6, and 5) with three different mothers, and has had many seasonal jobs during his adult life. In addition, the trial court took note of defendant's long criminal history and classification as a fourth-felony offender. The trial court observed that defendant has a juvenile record and has convictions for aggravated battery (reduced from attempted first degree murder), simple burglary, and unauthorized entry of an inhabited dwelling. The trial court also stated that defendant has numerous other misdemeanor convictions, and numerous charges against him have been dismissed pursuant to plea agreements, many of these incidents having involved violent crimes against the person. The trial court further noted that defendant has pending charges of sexual battery (against a 14-year-old), simple criminal damage to property, unauthorized entry of an inhabited dwelling, the home of the juvenile he allegedly assaulted, flight from an officer, criminal trespass, introduction of contraband into a penal institution, and simple escape.

The trial court found that, although good cause could be found to order defendant's sentences to be served consecutively, it would not do so because of the mandatory life sentence for first degree rape. Also, in explaining the impact of defendant's actions in escaping from custody during trial, the trial court noted an emotional moment in the courtroom when defendant's mother was consoled by a member of the victim's family. The court also pointed out that defendant had not shown any remorse until that day, which the court hoped was sincere.

The trial court did not abuse its discretion in sentencing Lewis. The trial court reviewed the pre-sentence investigation report and adequately considered the appropriate factors set forth in La. C. Cr. P. art. 894.1. Although the defense claims that the trial court failed to consider the mitigating factors, the defense failed to identify any such factors or establish how they outweigh the aggravating circumstances in this case.

The imposed maximum sentences are not constitutionally excessive. Considering the facts of this case and defendant's extensive criminal history, the sentences imposed by the trial court neither shock the sense of justice nor are they grossly disproportionate to the severity of the offenses of conviction. State v. Dorthey, 623 So.2d 1276 (La. 1993) ; State v. Lewis, 49,138 (La. App. 2 Cir. 06/25/14), 144 So.3d 1174.

Ineffective Assistance of Counsel

In this pro se assignment of error, defendant argues that he received ineffective assistance of counsel on several grounds. The state did not respond to this pro se assignment of error.

Claims of ineffective assistance of counsel are more properly raised in an application for post-conviction relief in the trial court because it provides the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Moore , 48,769 (La. App. 2 Cir. 02/26/14), 134 So.3d 1265, writ denied , 14-0559 (La. 10/24/14), 151 So.3d 598 ; State v. Eiskina , 42,492 (La. App. 2 Cir. 09/19/07), 965 So.2d 1010. However, when the record is sufficient, allegations of ineffective assistance of trial counsel may be resolved on direct appeal in the interest of judicial economy. Id.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by U.S. Constitutional Amendment VI. State v. Wry , 591 So.2d 774 (La. App. 2 Cir. 1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984).

First, to establish that his attorney was ineffective, the defendant must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that counsel's deficient performance prejudiced his defense and that, but for counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland , supra ; State v. Reese , 49,849 (La. App. 2 Cir. 05/20/15), 166 So.3d 1175, writ denied , 15-1236 (La. 06/03/16), 192 So.3d 760.

A reviewing court must give great deference to trial counsel's judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Smith , 49,356 (La. 1App. 2 Cir. 11/19/14), 152 So.3d 218, writ denied , 14-2695 (La. 10/23/15), 179 So.3d 597. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland , supra ; State v. Reese , supra .

The filing and pursuit of pre-trial motions is squarely within the ambit of the attorney's trial strategy, and counsel is not required to engage in efforts of futility. State v. Jones , 49,396 (La. App. 2 Cir. 11/19/14), 152 So.3d 235, writ denied , 14-2631 (La. 09/25/15), 178 So.3d 565.

If the record is arguably insufficient to resolve this matter on appeal, this claim would be more appropriately raised in an application for post-conviction relief, where a full evidentiary hearing may be ordered. However, on the record before us, defendant's claims of ineffective assistance of counsel are without merit. There is no evidence that defendant's attorney failed to conduct an adequate investigation into the facts of this case or failed to interview witnesses. To the extent that Lewis complains that the evidence was insufficient to support his convictions, that claim is without merit, as discussed above.

Defendant also claims that his attorney was ineffective in failing to file a motion to suppress based on the warrantless search of his personal belongings at the hospital. However, at trial, Investigator Huff testified that he obtained a search warrant for defendant's personal belongings after it was discovered that defendant allegedly took money from N.H. during the incident. The sum of $557 was recovered during a search and seizure conducted pursuant to the warrant, and defendant has failed to allege any other facts which would require suppression of the money. Defendant has neither shown that a motion to suppress should have been granted nor that his attorney was deficient in failing to file a motion to suppress.

As to defendant's claim that his attorney was ineffective in failing to obtain independent expert witnesses, defendant does not set forth a specific reason why such experts were necessary or allege that the state's expert testimony was incomplete or suspect in any way. Mere conclusory statements are insufficient to establish a claim of ineffective assistance of counsel. Defendant failed to show that his attorney was deficient in failing to obtain expert witnesses, or that the testimony of such witnesses would have changed the outcome of this case. Defendant failed to meet his burden of proving that he received ineffective assistance of counsel.

ERROR PATENT REVIEW

Pursuant to La. C. Cr. P. art. 920, all appeals are reviewed for errors patent on the face of the record. Our review of the record reveals four errors patent. First, defendant's sentence for second degree kidnapping is indeterminate. The sentencing provision for second degree kidnapping requires that at least two years of the sentence be served without parole, probation, or suspension of sentence. La. R.S. 14:44.1(C). The trial court sentenced defendant to 40 years at hard labor "with at least two years to be served without benefit of parole, probation, or suspension of sentence." A trial court is required to impose a determinate sentence. La. C. Cr. P. art. 879 ; State v. Thompson , 50,025 (La. App. 2 Cir. 09/30/15), 178 So.3d 1058. The trial court failed to clearly state a determined term for the restriction from benefits, as the words "at least" do not convey a specific length of time. Id. Accordingly, we vacate defendant's sentence for second degree kidnapping and remand the matter to the trial court for resentencing. See State v. Thompson , supra .

Second, the trial court minutes incorrectly state that defendant's sentence for simple robbery is to be served "without the benefit of parole or suspension of sentence." The sentencing transcript shows that the trial court did not restrict any benefits as to that sentence. When the transcript and the court minutes conflict, the transcript prevails. State v. Lynch , 441 So.2d 732 (La. 1983). See also La. R.S. 14:65(B). On remand, the trial court is ordered to correct the court minutes to accurately reflect that defendant's sentence for simple robbery was imposed with no restriction of benefits.

Third, the trial court did not properly inform defendant of the sex offender registration and notification requirements outlined in La. R.S. 15:543. First degree rape is defined as a sex offense under La. R.S. 15:541. La. R.S. 15:543 requires that the trial court notify a defendant convicted of a sex offense, in writing, of the registration and notification requirements, and that an entry be made in the court minutes stating that the written notification was provided to the defendant.

On remand, the trial court is to provide the appropriate written notice to defendant of the sex offender registration requirements and file written proof of such notice into the record of these proceedings. State v. Wilson , 50,418 (La. App. 2 Cir. 04/06/16), 189 So.3d 513, writ denied , 16-0793 (La. 04/13/17), 218 So.3d 629 ; State v. Scott , 42,997 (La. App. 2 Cir. 02/13/08), 975 So.2d 782.

CONCLUSION

For the foregoing reasons, defendant's convictions are affirmed. Defendant's sentences for first degree rape, attempted second degree murder, and simple robbery are affirmed. Defendant's sentence for second degree kidnapping is vacated, and the matter is remanded to the trial court for resentencing. The trial court is instructed to correct the court minutes and comply with the sex offender notification requirements.

      No further information regarding defendant's juvenile history was provided.


author: BLEICH, J. (Pro Tempore )

text:
    Terry NEWSOME and Cynthia Newsome, Plaintiffs-Appellants v. CITY OF BASTROP THROUGH its Mayor, Honorable Arthur JONES and Veolia Water North America-South, LLC, Defendants-Appellees
    No. 51,752-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 15, 2017
    SMITH & NWOKORIE, LLC By: Anselm Nwokorie, Brian G. Smith, Counsel for Appellants
    HUDSON, POTTS & BERNSTEIN, LLP By: Robert M. Baldwin, Johnny R. Huckabay, II, Larry D. McCarty, Counsel for Appellee, City of Bastrop
    CHRISTOVICH & KEARNEY, LLP By: Mindy Brickman, Christy Lynn McMannen, Counsel for Appellee, Veolia Water North, America-South, LLC
    Before WILLIAMS, DREW (Ad Hoc ), and BLEICH (Pro Tempore ), JJ.
   BLEICH, J. (Pro Tempore )

This action for damages arises from alleged malfunctions of the City of Bastrop's sewerage system. Plaintiffs appeal a summary judgment granted in favor of the City of Bastrop and Veolia Water North America-South, LLC. We affirm.

FACTS

In 1999, Terry and Cynthia Newsome ("the Newsomes") purchased immovable property on Rose Street in Bastrop, Louisiana. Shortly after the purchase of the property, the Newsomes began to experience sewage backup in their home due to the overburdened wastewater collection system that could not contain the increased amount of water caused by rainfall. The water overflow escalated and eventually caused sewage water to back up into the tubs, toilets, and sinks inside the house and produced varying types of water damage to the residence.

On February 4, 2015, the Newsomes filed a petition for damages against the City of Bastrop, through its Mayor Arthur Jones ("the City"), and Veolia Water North America-South, LLC ("Veolia") alleging that the flooding of the property caused by sewage overflow was due to negligence and failure to properly maintain the sewerage system. The City is the owner of the sewerage system, but contracted with Veolia in 2012 to maintain and operate the sewerage system and pumps.

After discovery, Veolia filed a motion for summary judgment on the grounds that any claims the Newsomes may have had against the City or Veolia had prescribed. The City filed a separate motion incorporating and adopting Veolia's motion. After a hearing, the trial court granted summary judgment in favor of the City and Veolia, and denied a motion by the Newsomes to strike an affidavit submitted in support of the summary judgment. The Newsomes now appeal that judgment.

DISCUSION

Summary Judgment/Prescription

Although typically asserted through the procedural vehicle of the peremptory exception, the defense of prescription may also be raised by motion for summary judgment. Hogg v. Chevron USA, Inc. , 2009-2632 (La. 07/06/10), 45 So.3d 991, 997. When prescription is raised by motion for summary judgment, review is de novo , using the same criteria as that of the trial court in determining whether summary judgment is appropriate. Id.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief sought by a litigant. Schultz v. Guoth , 2010-0343 (La. 01/19/11), 57 So.3d 1002 ; Samaha v. Rau , 2007-1726 (La. 02/26/08), 977 So.2d 880. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 (A)(3). The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966 (D)(1). An adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or other appropriate summary judgment evidence, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B) ; Larson v. XYZ Ins. Co. , 2016-0745 (La. 05/03/17), 226 So.3d 412.

Delictual actions are subject to a liberative prescription of one year. La. C.C. art. 3492. When damage is caused to immovable property, the one-year prescription commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage. La. C.C. art. 3493.

Constructive knowledge has been defined as whatever notice is enough to excite attention and put the injured party on guard or call for inquiry. Campo v. Correa , 2001-2707 (La. 06/21/02), 828 So.2d 502, 510-511. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry might lead, and such information or knowledge as ought to reasonably put the injured party on inquiry is sufficient to start the running of prescription. Id. In assessing whether an injured party possessed constructive knowledge sufficient to commence the running of prescription, the ultimate consideration is the reasonableness of the injured party's action or inaction in light of the surrounding circumstances. Id.

When private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run after the completion and acceptance of the public works. La. R.S. 9:5624. The purpose of the legislature in adopting Section 5624 was to limit the exposure of the state and its political subdivisions by requiring that any and all actions be brought within two years after damages are sustained. Pracht v. City of Shreveport , 36,504 (La. App. 2 Cir. 10/30/02), 830 So.2d 546, 549, writ denied , 2003-0007 (La. 03/14/03), 839 So.2d 46. The prescriptive period applies when the damage to private property complained of is a necessary consequence of a public purpose. Lyman v. Town of Sunset , 500 So.2d 390 (La. 1987). The two-year prescriptive period does not apply when the act which caused the damages was not a necessary consequence or result of a public construction project. Pracht , supra .

By their first assignment of error, the Newsomes argue that their action for damages has not prescribed. Specifically they contend that the two-year prescriptive period set forth in La. R.S. 9:5624 is applicable under the circumstances and that the suit was timely filed regarding incidents occurring from 2013 and forward. Alternatively, the Newsomes claim that the continued instances of flooding in aggregate constitute a continuing tort which suspended prescription.

Because of the similarity of facts, we find the case of Pracht v. City of Shreveport , supra , to be dispositive of the issues raised in this appeal. In Pracht , the plaintiff owned a building near a cement drainage canal, which was owned and operated by the City of Shreveport. Varying degrees of damage to plaintiff's property resulted from the flooding of the canal ten years prior to the filing of suit. The plaintiff argued that because the canal flooded each time it rained, eventual erosion resulted over time in the nature of a continuing tort that suspended the running of prescription. The trial court granted summary judgment in favor of the City of Shreveport and dismissed plaintiff's claim on the basis of prescription. On appeal, the Pracht court held,

We do not believe that separate instances of flooding caused by the negligent maintenance of a drainage canal constitutes such a continuous tort. Since we can reasonably rely on the fact that it will always rain (hence the need for drainage canals), plaintiffs' proposition would have the result of postponing the running of prescription in perpetuity. For the flooding damage will never abate until either it stops raining or the necessary repairs/ modifications are made to the drainage canal to prevent the flooding. A review of the jurisprudence supports the conclusion that repeated instances of flooding do not constitute a continuous tort.

Id. at 551.

Additionally, the Pracht court found that the two-year prescriptive period of La. R.S. 9:5624 for public constructions projects does not apply when the plaintiffs' damages are not caused by the construction of the public work and the plaintiff alleges negligent maintenance of the public work. Thus, the court applied the general one-year prescriptive period of La. C.C. art. 3493, noting that plaintiff's deposition indicated his awareness of erosion some ten years before the suit was filed and that prescription would have run one year thereafter.

In this matter, the Newsomes also seek to recover damages from the City for the negligent maintenance of the City's sewerage system, and from Veolia based on its contract with the City to operate and maintain the sewerage system. The damages they seek are not caused by the construction of the public work. Thus, we hold that the occurrences of sewage overflow causing damage to the Newsomes' property is not a continuing tort, and that the one-year prescriptive period of La. C.C. art. 3493 applies.

Mr. Newsome's deposition indicated that he was aware of the sewage backup in the "[e]arly 2000's," when he first complained to the city and that flooding from the manhole happened probably over 100 times and escalated over the years. Further, Mr. Newsome admitted that he considered moving out of the house in 2004 because the bathroom was inoperable due to flooding. Likewise, in answers to interrogatories, the Newsomes conceded that in 2002 they started noticing that the water from the house (bathroom, washer and kitchen) was not draining out properly, especially when it rained.

In aggregate, the collection of documents submitted by the Newsomes in opposition to the summary judgment fails to provide any evidence that their claims related to those occurrences have not prescribed. Although the Newsomes allege that other flooding events occurred within one year of when the suit was filed, they have failed to show that the alleged damage to the home was caused by anything other than the overburdened sewerage system. Thus, the record before us shows that the damage caused by the alleged negligence was evident to the Newsomes by 2004, at the latest. Based solely on the evidence properly before the trial court at the summary judgment hearing, it is clear that the only material factual issue-the date upon which the Newsomes acquired knowledge of the damage sufficient to commence the running of prescription-unquestionably occurred over a year before filing this suit. For these reasons, we find that the trial court did not err in granting summary judgment in favor the City and Veolia. This assignment of error has no merit.

In light of our disposition of this matter on these grounds, it is not necessary for us to decide the Newsomes' second assignment of error. Nevertheless, we find no error in the trial court's denial of the motion to strike the affidavit of Antrena Trimble, Veolia's project manager in Bastrop. In her affidavit, Trimble established that her position as project manager required her to have personal knowledge of the operation and maintenance of the City's sewerage system and all past and prospective incidents of malfunction or overflow. Thus, any challenge to Trimble's affidavit on the grounds that her tenure as plant manager did not coincide with the events which are the subject matter of this litigation is without merit.

CONCLUSION

For the reasons discussed, we affirm the judgment granting summary judgment in favor of the City of Bastrop and Veolia Water North America-South, LLC, and denying the Newsomes motion to strike the affidavit of Antrena Trimble. Costs of this appeal are cast to Terry and Cynthia Newsome.

AFFIRMED.

      Notably, the documents submitted in opposition to the summary judgment are not contained in the exclusive list of documents that may be filed in opposition to the summary judgment under newly-amended La. C.C.P. art. 966 (A)(4).