author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Terry Matthew PITTMAN, Appellant
    No. 51,602-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018.
    THE HATCH LAW FIRM, LLC By: Christopher Hatch, Counsel for Appellant
    TERRY MATTHEW PITTMAN, Pro Se
    JAMES E. STEWART, SR. District Attorney, Counsel for Appellee
    TRENEISHA J. HILL, JOSHUA K. WILLIAMS, SUZANNE M. WILLIAMS, Assistant District Attorneys
    Before WILLIAMS, PITMAN, and COX, JJ.
   PITMAN, J.

Defendant Terry Matthew Pittman was convicted of one count of indecent behavior with juveniles, one count of molestation of a juvenile under the age of 13 and one count of pornography involving juveniles. For the conviction of indecent behavior with juveniles, the trial court sentenced Defendant to serve five years at hard labor and a fine of $2,500. For the conviction of molestation of a juvenile under the age of 13, the trial court sentenced Defendant to serve 60 years at hard labor, 25 of which will be served without benefit of probation, parole or suspension of sentence. For the conviction of pornography involving juveniles, the trial court sentenced Defendant to 15 years at hard labor and a fine of $2,500. The trial court ordered that these three sentences be served consecutively. Defendant appeals his convictions and sentences. For the following reasons, we affirm Defendant's convictions; affirm his sentences, with instructions for the correction of the minutes; and remand to the trial court for the limited purpose of providing Defendant with the appropriate written notice of the sex offender registration requirements.

FACTS

The state charged Defendant by bill of information with one count of indecent behavior with juveniles in violation of La. R.S. 14:81(A)(2), one count of molestation of a juvenile in violation of La. R.S. 14:81.2 and one count of pornography involving juveniles in violation of La. R.S. 14:81.1. As to Count One, the state alleged that on April 20, 2014, Defendant transmitted a textual or written communication depicting lewd and lascivious conduct, text and words to M.P., a person reasonably believed to be under the age of 17 and reasonably believed to be at least two years younger than Defendant, with the intention of arousing and gratifying the sexual desires of M.P. or Defendant. As to Count Two, the state alleged that between 2010 and April 2014, Defendant committed lascivious acts upon the person or in the presence of M.P., a child under the age of 17 and at least two years younger than Defendant, with the intention of arousing or gratifying the sexual desires of M.P. or Defendant, by the 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 of M.P. As to Count Three, the state alleged that on April 23, 2014, Defendant possessed visual electronic reproductions of sexual performances involving children under the age of 17.

In a pretrial La. C.E. art. 412 motion, Defendant sought to introduce evidence regarding a sexual relationship between M.P. and a young man named Brian McCreary. He asserted that Mr. McCreary pled guilty to carnal knowledge of a juvenile as a result of this relationship and that this evidence is favorable to him (Defendant). The state responded that evidence of sexual behavior between M.P. and Mr. McCreary is protected by La. C.E. art. 412 and is inadmissible. Following a hearing, the trial court denied the motion, finding that M.P.'s sexual activity with Mr. McCreary is not relevant or probative and is not intended to show the consent of M.P.

Trial began on September 14, 2016. M.P. testified that her birthday is April 28, 1999, and that Defendant is her father. She stated that her father began abusing her five days before she turned 11 years old. She and her father were watching television that evening in the living room, while her stepmother, Nina Long, and her stepsiblings were asleep in their bedrooms. While watching television, Defendant fell asleep. She kissed him on the cheek to say good night, and he woke up, grabbed her by the shoulders, pulled her on top of him and started kissing her. She noted that at first she assumed he thought she was her stepmother; but, when he looked at her, she discerned that he knew who she was. He then began to run his hands over her chest and down the sides of her hips and eventually touched her underneath her nightgown. He moved her so that she was lying on her back on the couch, undressed her so that her nightgown was up around her shoulders and removed her underwear. He kissed her all over her body and then performed oral sex on her. She stated that he then took her into the bedroom where her younger sister was sleeping, and they had vaginal intercourse on the floor. She testified that this was the first time she had sexual intercourse. He then took her into the bathroom and began pacing and mumbling, acting scared and upset, like he was in trouble. He asked her if she had started her period yet, and she told him that she had not. He told her that he would get her a pill in the morning that would keep her from getting pregnant and that she would have to remind him to get her the pill. She stated that he did give her the pill.

M.P. further testified that she and Defendant continued to have sexual intercourse for four years and that she stopped counting how many times it happened after the ninth time. She stated that due to the custody agreement between her parents, she alternated weeks living with her mother and father. She noted that when she stayed with her father, she "would be lucky to leave his house after that week without having to have sex with him." They had sexual intercourse in the laundry room, in the shed, in the backyard, in the pool and in his truck. She noted that a majority of the occurrences happened in the truck and that they had oral, vaginal and anal sexual intercourse. Once she began her menstrual cycle, Defendant used a condom and would sometimes give her a pill.

M.P. also testified that when she was 11 or 12 years old, her stepmother walked into the laundry room where she and Defendant were having sexual intercourse. Defendant and Ms. Long got into an argument, and Defendant threatened Ms. Long. Ms. Long later tried to talk to her about what was going on; but, out of fear, she denied that anything was happening. Ms. Long contacted Child Protective Services, and a detective came to school to talk to her. She admitted that she lied and stated that she was about to take a bath and needed a towel, so she went to the laundry room and slipped and Defendant was trying to pick her up when Ms. Long observed them. She stated that nothing came of this investigation and that was the only time she was interviewed.

M.P. further testified that when she was 12 or 13 years old, Ms. Long saw her and Defendant having sexual intercourse a second time when they were in the shed next to the house. She stated that the sexual intercourse with her father continued until five days before she turned 15, a total of four years. She noted that Defendant did not offer her anything in exchange for sexual intercourse, but did like to give her gifts, including flowers. Defendant told her that if she went to the police, he would be taken away and would not be able to take care of her siblings and that they would grow up without a father. She stated that he specifically told her not to tell anyone.

M.P. also testified that she and Defendant communicated by text message and would exchange nude photographs of themselves with each other. She sent him photographs when he asked for them, and this occurred more times than she could remember. She stated that when she was around the age of 14, he repeatedly asked her for a video of her masturbating. She eventually used her laptop to record a video of herself in the bathroom of her mother's house. Defendant downloaded the video from her laptop onto a red and black SanDisk flash drive and then put the flash drive in his pocket. She knew Defendant viewed the video because he commented that it was suspicious that she said "Dad" a lot in the video.

M.P. further testified that she and Defendant also role played in a sexual manner via text message, i.e., she played the slave and he played the master. She stated that this role playing began after he discovered that she and her friend role played in writing. She stated that she left a paper at Defendant's house, on which she and her friend had written out their role playing, in an attempt to disgust him so that he would leave her alone.

M.P. also testified that during the four years she engaged in sexual intercourse with Defendant, she always believed that it was wrong. She stated that she went from being a straight-A student to having failing grades. She was depressed and tried to commit suicide twice by cutting her arms and legs with a razor. She testified that Defendant was arrested after she confided to her friend Mr. McCreary that she lost her virginity to her father. Mr. McCreary told his mother and his mother told M.P.'s mother, and the police were called.

Nina Long testified that she and Defendant were in a relationship for 14 years and have three children together. She stated that she has known M.P. since M.P. was three years old and that M.P. lived with her and Defendant off and on during M.P.'s childhood. She testified that in January 2012, she walked into the laundry room during the night and observed Defendant in his boxers and M.P. without clothing and that M.P. was straddling Defendant. She "freaked out," went to get her telephone and told Defendant she was going to call the police. Defendant forcefully took the telephone from her, took her keys and blocked the door. She testified that she also walked in on Defendant and M.P. in the shed and that she observed M.P. bent over the weight bench with her shorts pulled down and Defendant behind her. She also testified about other odd behavior she observed between M.P. and Defendant, including that they "would cuddle up together, and hold each other." She stated that while she and Defendant lived together, she observed pornography in their house, including child pornography. She saw child pornography on his computer and cellphone and observed Defendant watching child pornography on his computer. She knew the girls in the pornography were underage because they were visibly prepubescent.

Sergeant James Moore and Detective Jared Marshall, both of the Caddo Parish Sheriff's Office, testified about their involvement in the investigation. Sgt. Moore testified that on April 24, 2014, he interviewed M.P. and her mother. He seized M.P.'s cellphone and placed it into evidence. Det. Marshall retrieved a series of sexually explicit text messages between M.P. and Defendant from M.P.'s cellphone. Sgt. Moore determined that these text messages were probable cause to arrest Defendant for indecent behavior with juveniles, and he arrested Defendant at his house. Ms. Long allowed Sgt. Moore into the house, and he seized Defendant's cellphone. He then interviewed Ms. Long. Defendant and Ms. Long provided Sgt. Moore with Defendant's telephone number, which was consistent with the number that exchanged the explicit text messages with M.P. Sgt. Moore also retrieved a red and black SanDisk flash drive from Defendant's house. Det. Marshall ran a forensic preview on the flash drive and found approximately 15 files of child pornography, including a video of M.P. masturbating in a bathtub. Sgt. Moore noted that all of the files had been deleted from the flash drive except for the video of M.P. He viewed the contents of the flash drive and then secured an arrest warrant for pornography involving juveniles.

Defendant chose not to testify at trial, but the defense proffered a letter written by him, containing what his testimony would have been had he been permitted to testify regarding M.P.'s relationship with Brian McCreary.

On September 15, 2016, a unanimous jury found Defendant guilty as charged of all three counts.

On September 22, 2016, Defendant filed a motion for new trial. He argued that the trial court erred in denying his La. C.E. art. 412 motion seeking to introduce evidence pertaining to the sexual behavior of M.P. with Mr. McCreary. He also filed a motion for post-verdict judgment of acquittal, contending that there was insufficient evidence to prove beyond a reasonable doubt that he was guilty of molestation of a juvenile below the age of 13. In the alternative, he argued that he is entitled to a modification of the verdict and to a judgment of conviction of the lesser included responsive offense of molestation of a juvenile.

At a hearing on September 22, 2016, the trial court denied Defendant's motions for new trial and for post-verdict judgment of acquittal. Defendant waived any legal delays for sentencing. After reviewing the La. C. Cr. P. art. 894.1 factors, it sentenced Defendant to serve 5 years at hard labor and a fine of $2,500 for the conviction of indecent behavior with juveniles. For the conviction of molestation of a juvenile under the age of 13, it sentenced Defendant to serve 60 years at hard labor, 25 of which to be served without benefit of probation, parole or suspension of sentence. For the conviction of pornography involving juveniles, it sentenced Defendant to 15 years at hard labor and a fine of $2,500. It ordered these three sentences to be served consecutively.

On October 20, 2016, Defendant filed a motion to reconsider sentence and argued that his sentences are excessive. He contended that his sentences should run concurrently rather than consecutively. On October 28, 2016, the trial court filed a ruling denying Defendant's motion to reconsider sentence.

Defendant appeals his convictions and sentences.

DISCUSSION

Insufficient Evidence-Indecent Behavior with Juveniles

Defendant argues that the evidence adduced at trial is insufficient to support his conviction of indecent behavior with juveniles. He contends that his conviction was predicated on a series of text messages retrieved from M.P.'s cellphone and that the state failed to prove that he was the person who actually sent those text messages or that the messages were sent from his cellphone. He asserts that the state relied solely upon M.P.'s testimony and the contact information in her cellphone to identify the person with whom she was communicating. He contends that it is simple to change the contact name and number associated with sent or received text messages, regardless of whether the contact information accurately reflects the number or name of the person with whom the conversation occurred.

The state argues that the evidence presented at trial is more than sufficient to prove all of the elements of indecent behavior with juveniles beyond a reasonable doubt, including that the lewd or lascivious text messages received by M.P. were sent by Defendant. It notes that immediately after his arrest, investigators seized Defendant's cellphone from his house and Ms. Long identified it as his. It asserts that both Ms. Long and Defendant provided the number for Defendant's cellphone, which matched the phone number that sent the sexually explicit text messages to M.P.'s cellphone.

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 beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Hearold , 603 So.2d 731 (La. 1992). See also La. C. Cr. P. art. 821. This standard does not provide an appellate court with a vehicle for substituting its appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Robertson , 96-1048 (La. 10/4/96), 680 So.2d 1165.

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 support for a requisite factual conclusion. State v. Watson , 32,203 (La. App. 2 Cir. 8/18/99), 743 So.2d 239, writ denied , 99-3014 (La. 3/31/00), 759 So.2d 69. 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. Id. This is equally applicable to the testimony of a sexual assault victim. Id.

The trier of fact makes credibility determinations and may accept or reject the testimony of any witness. State v. Casey , 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). A reviewing court may not impinge on the fact finder's discretion unless it is necessary to guarantee the fundamental due process of law. Id. The appellate court does not assess credibility or reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam , 36,118 (La. App. 2 Cir. 8/30/02), 827 So.2d 508.

La. R.S. 14:81 provides, in pertinent part, that:

A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
* * *
(2) The transmission, delivery or utterance of any textual, visual, written, or oral communication depicting lewd or lascivious conduct, text, words, or images to any person reasonably believed to be under the age of seventeen and reasonably believed to be at least two years younger than the offender. It shall not be a defense that the person who actually receives the transmission is not under the age of seventeen.

Defendant does not challenge that a series of sexually explicit text messages were retrieved from M.P.'s cellphone, but asserts that the state failed to prove that he was the person who sent the messages. The sexually explicit text messages retrieved from M.P.'s cellphone were sent from the phone number 318-230-0201, a number that was assigned to "Dad" in her contacts. A printout of these text messages was introduced at trial as State Exhibit C, and Sgt. Moore read several of the messages to the jury. He testified that after he arrested Defendant, he seized a cellphone from his house, which Ms. Long identified as Defendant's. Ms. Long told Sgt. Moore that Defendant's cellphone number was 318-230-0201, but that she did not know his passcode. Following his arrest, Defendant provided Sgt. Moore with personal information, including his name, social security number and phone number. Defendant also stated that his phone number was 318-230-0201.

Viewing the evidence in the light most favorable to the prosecution, a rational jury could have found that the state proved the essential elements of indecent behavior with juveniles beyond a reasonable doubt. There was sufficient circumstantial evidence for the jury to conclude that Defendant was the person exchanging sexually explicit text messages with M.P.

Accordingly, this assignment of error lacks merit.

Insufficient Evidence-Molestation of a Juvenile

Defendant argues that the evidence adduced at trial is insufficient to support his conviction of molestation of a juvenile.

He contends that the state did not prove that he used force, threats, intimidation or use of influence by virtue of having a position of supervision or control over M.P. He contends that holding the position of supervision or control over M.P. is not sufficient to satisfy the element of force or influence, but that he must have used his influence over her to force her into participating in these acts against her will. He asserts that there was no testimony at trial to support a conclusion that he used influence over M.P., as she did not testify that she was afraid of the consequences of prohibiting him from committing the sexual acts or that he used his authority over her to accomplish the sexual acts. He states that M.P. never testified that he physically forced her to engage in sexual acts or exerted influence over her in such a way that her will to resist was overcome. He also questions the testimonies of Ms. Long and Mr. McCreary and contends that the state used conflicting statements and testimony in order to obtain the conviction. He requests that his conviction be reversed or that, in the alternative, his conviction be modified to a conviction for the responsive offense of indecent behavior with juveniles.

The state argues that the record demonstrates that Defendant used his influence by virtue of his position of control or supervision over M.P. as her father to perpetrate the offense of molestation of a juvenile. It notes that M.P. lived with Defendant every other week during the years he committed the molestation and other crimes; that M.P. was dependent on Defendant for transportation to and from his house, thus preventing her from leaving at will; and that M.P. witnessed Defendant's acts of intimidation and violence toward Ms. Long after Ms. Long observed Defendant molesting M.P.

La. R.S. 14:81.2(A)(1) provides:

Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the 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. Lack of knowledge of the juvenile's age shall not be a defense.

Louisiana courts consider the following factors when making a determination as to whether a defendant used influence by virtue of his position of supervision or control over the victim: (1) the amount of time the defendant spent alone with the victim; (2) the nature of the relationship between the victim and the defendant; (3) the defendant's age; and (4) the defendant's authority to discipline. State v. Dale , 50,195 (La. App. 2 Cir. 11/18/15), 180 So.3d 528, writ denied , 15-2291 (La. 4/4/16), 190 So.3d 1203, citing Burton v. Cain , No. CIV.A. 11-1781, 2012 WL 5966532 (E.D. La. Aug. 21, 2012), report and recommendation approved , No. CIV.A. 11-1781, 2012 WL 5960197 (E.D. La. Nov. 28, 2012).

Although Defendant asserts that the evidence was insufficient to prove that he used influence by virtue of a position of control or supervision over M.P. in order to commit the alleged acts of molestation, the application of the above factors demonstrates that the evidence sufficiently supports this element of the offense. Defendant is the biological father of M.P. When the molestation began in 2010, M.P., born April 28, 1999, was 10 years old and Defendant, born April 13, 1981, was 29; when the molestation ended in 2014, M.P. was 14 and Defendant was 33. At times during her childhood, M.P. lived with Defendant full-time. During the years of molestation, M.P. alternated weeks living at her father's house and living at her mother's house. As M.P.'s biological parent with whom she lived regularly, Defendant had the authority to discipline M.P. M.P. testified that it was during the weeks she was obligated to spend at her father's house that the molestation occurred and that she was "lucky to leave his house after that week without having to have sex with him." She stated that her father would drive her to and from his house and that they would often have sexual intercourse in his truck.

Although Defendant argues that M.P. did not testify that he threatened her or forced her to engage in sexual conduct, M.P. did testify that Defendant told her not to tell anyone about their sexual activity because if she did, he would be taken away and his children would grow up without a father. M.P. also testified that after Ms. Long observed her and Defendant in the laundry room, she witnessed Defendant threaten Ms. Long and that "[t]hings were thrown."

Viewing the evidence in the light most favorable to the prosecution, a rational jury could have found that the state proved the essential elements of molestation of a juvenile beyond a reasonable doubt. The testimony of M.P. alone is sufficient to support this conviction.

Accordingly, this assignment of error lacks merit.

Insufficient Evidence-Pornography Involving Juveniles

Defendant argues that the evidence adduced at trial is insufficient to support his conviction of pornography involving juveniles. He asserts that the state failed to prove that he ever possessed the flash drive that contained child pornography or that he viewed the videos on the flash drive, including the video that M.P. testified to making for him.

La. R.S. 14:81.1(A)(1) provides that "[i]t shall be unlawful for a person to produce, promote, advertise, distribute, possess, or possess with the intent to distribute pornography involving juveniles."

M.P. testified that, at Defendant's request, she made a video of herself masturbating. She observed Defendant download the pornographic video of her from her laptop onto a red and black SanDisk flash drive and then put that flash drive into his pocket. She stated that she knew Defendant viewed the video because he discussed details of it with her, including that she said "Dad" a lot. At trial, M.P. identified the video as State Exhibit A-1 and the flash drive as State Exhibit B. The testimony of M.P. alone is sufficient to support the conviction of pornography involving juveniles. The jury clearly chose to accept M.P.'s testimony that Defendant possessed the red and black SanDisk flash drive that was admitted as State Exhibit B and that contained the video admitted as State Exhibit A-1.

Sgt. Moore testified that he retrieved a red and black SanDisk flash drive from Defendant's house and identified it as State Exhibit B. He viewed its contents and testified that one of the videos was of M.P. masturbating in the bathtub with a shampoo bottle. He noted that the flash drive contained at least 15 deleted files of child pornography. He stated that this flash drive also contained deleted files with Defendant's personal information, including a driver's license photograph and a W-9 form. Det. Marshall corroborated this testimony about the seizure of the flash drive and that it contained 10 to 15 videos of child pornography, including a video of M.P. masturbating in a bathtub.

Based on this evidence, a rational jury could conclude that Defendant possessed and viewed the pornographic video of M.P. that was located on the red and black SanDisk flash drive. Viewing the evidence in the light most favorable to the prosecution, a rational jury could have found that the state proved the essential elements of pornography involving juveniles beyond a reasonable doubt.

Accordingly, this assignment of error lacks merit.

La. C.E. art. 412 Evidence

Defendant argues that the trial court erred when it prohibited him from eliciting testimony regarding matters outside the scope of La. C.E. art. 412. He admits that the La. C.E. art. 412 notice was deficient on its face and untimely filed, but notes that it was considered on the merits by the trial court. He asserts that at several points during the trial, defense counsel attempted to cross-examine witnesses about M.P.'s relationship with Mr. McCreary, his feelings about that relationship and an alleged confrontation between him and Mr. McCreary, but the trial court consistently ruled that any evidence about the relationship was inadmissible pursuant to La. C.E. art. 412. He argues that these rulings prevented him from presenting the only defense theory that could have viably been pursued at trial, i.e., that M.P. fabricated or exaggerated the allegations against him in order to protect her relationship with Mr. McCreary or to prevent him from obstructing that relationship. He contends that even if the trial court correctly ruled that the evidence was inadmissible, the scope of the trial court's rulings exceeded the scope of the protections contained in La. C.E. art. 412.

The state argues that Defendant's right to present a defense must be balanced against M.P.'s interest under La. C.E. art. 412 to protect her sexual history from becoming public. It asserts that the trial court did not err in excluding evidence of M.P.'s sexual history; but, had it erred in excluding this evidence, the error would be harmless given the overwhelming evidence against Defendant.

The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." This right is secured for defendants in state as well as federal criminal proceedings. State v. Authier , 46,903 (La. App. 2 Cir. 4/25/12), 92 So.3d 494, writ denied , 12-1138 (La. 11/2/12), 99 So.3d 662, citing Pointer v. Texas , 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and State v. Vaughn , 448 So.2d 1260 (La. 1983). The confrontation clause of the Louisiana Constitution directly affords each accused the right "to confront and cross-examine the witnesses against him[.]" La. Const. art. I, § 16.

Generally, a defendant may attack the credibility of a witness by examining him or her concerning any matter having a reasonable tendency to disprove the truthfulness of his or her testimony. La. C.E. art. 607(C). However, the right of an accused sex offender to present a defense must be balanced against the victim's interests under La. C.E. art. 412, which is intended to protect a victim of a sexual assault from having his or her sexual history made public. State v. Authier , supra , citing State v. Everidge , 96-2665 (La. 12/2/97), 702 So.2d 680. The purpose of the rape shield law is to "protect victims of rape from being exposed at trial to harassing or irrelevant questions concerning their past sexual behavior." State v. Williams , 05-1560 (La. 4/24/06), 927 So.2d 266, quoting Michigan v. Lucas , 500 U.S. 145, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991).

La. C.E. art. 412(A) provides:

A.(1) Opinion and reputation evidence; sexual assault cases. When an accused is charged with a crime involving sexually assaultive behavior, reputation or opinion evidence of the past sexual behavior of the victim is not admissible.
(2) Other evidence; exceptions. When an accused is charged with a crime involving sexually assaultive behavior, evidence of specific instances of the victim's past sexual behavior is also not admissible except for:
(a) Evidence of past sexual behavior with persons other than the accused, upon the issue of whether or not the accused was the source of semen or injury; provided that such evidence is limited to a period not to exceed seventy-two hours prior to the time of the offense, and further provided that the jury be instructed at the time and in its final charge regarding the limited purpose for which the evidence is admitted; or
(b) Evidence of past sexual behavior with the accused offered by the accused upon the issue of whether or not the victim consented to the sexually assaultive behavior.

Thus, in a prosecution for sexually assaultive behavior, La. C.E. art. 412 prohibits the introduction of evidence of the victim's past sexual behavior, with certain limited exceptions. State v. Authier , supra .

The trial court did not err in excluding evidence of M.P.'s past sexual behavior, specifically of her alleged sexual relationship with Mr. McCreary. This evidence is not relevant to a determination of whether Defendant committed the offenses of indecent behavior with juveniles, molestation of a juvenile or pornography involving juveniles. Evidence of M.P.'s alleged sexual relationship with Mr. McCreary is not an exception to La. C.E. art 412(A)(1) as set forth in La. C.E. art. 412(A)(2).

Accordingly, this assignment of error lacks merit.

Excessive Sentences

Defendant argues that this matter should be remanded for resentencing because his sentences are excessive. He contends that the trial court insufficiently justified his consecutive sentences and that the sentences imposed are unconstitutionally excessive in light of the facts and circumstances of this case. He asserts that the sentences imposed amount to a life sentence and are grossly out of proportion to the gravity of the offenses. He contends that he is not among the most egregious offenders because this case does not involve multiple victims, severe acts of molestation, physical damage to a juvenile or the use of force or physical threats of harm to the juvenile. He asserts that the trial court did not give any meaningful consideration to his expressions of remorse, lack of significant criminal history or potential for rehabilitation.

The state argues that the record justifies the imposition of consecutive sentences. It also notes the egregiousness of Defendant's actions and contends that the sentences imposed do not shock the sense of justice.

When reviewing an excessive sentence claim, the appellate court uses a two-prong test. First, the record must demonstrate that the trial court complied with La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating and mitigating circumstance, but the record must reflect that it adequately considered the guidelines of La. C. Cr. P. art. 894.1. State v. Smith , 433 So.2d 688 (La. 1983). The trial court should consider the defendant's personal history and prior criminal record, the seriousness of the offense, the likelihood that the defendant will commit another crime and the defendant's potential for rehabilitation. State v. Jones , 398 So.2d 1049 (La. 1981). The trial judge is not limited to a consideration of the defendant's prior convictions, but may properly review all of his prior criminal activity. State v. Russell , 40,526 (La. App. 2 Cir. 1/27/05), 920 So.2d 866, writ denied , 06-0478 (La. 9/29/06), 937 So.2d 851. The trial court is not required to assign any particular weight to any specific matters at sentencing. State v. Quiambao , 36,587 (La. App. 2 Cir. 12/11/02), 833 So.2d 1103, writ denied , 03-0477 (La. 5/16/03), 843 So.2d 1130.

Second, the appellate court must determine if the sentence is constitutionally excessive. A sentence is excessive and violates La. Const. art. I, § 20, if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno , 384 So.2d 355 (La. 1980). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Id. A trial court has wide discretion in imposing a sentence within the statutory limits, and a sentence should not be set aside absent a showing of abuse of discretion. State v. Square , 433 So.2d 104 (La. 1983) ; State v. Black , 28,100 (La. App. 2 Cir. 2/28/96), 669 So.2d 667, writ denied , 96-0836 (La. 9/20/96), 679 So.2d 430. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams , 03-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Free , 46,894 (La. App. 2 Cir. 1/25/12), 86 So.3d 29.

Regarding concurrent and consecutive sentences, La. C. Cr. P. art 883 provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

Concurrent sentences arising out of a single cause of conduct are not mandatory, and it is within a trial court's discretion to order sentences to run consecutively rather than concurrently. State v. Boudreaux , 41,660 (La. App. 2 Cir. 12/13/06), 945 So.2d 898, writ denied , 07-0058 (La. 11/2/07), 966 So.2d 591. A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. Id. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. Id. Among the factors to be considered are the defendant's criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, whether the defendant constitutes an unusual risk of danger to the public, the potential for defendant's rehabilitation and whether defendant has received a benefit from a plea bargain. Id. The failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences. Id.

Whoever commits the crime of indecent behavior with juveniles shall be fined not more than $5,000, or imprisoned with or without hard labor for not more than 7 years, or both. La. R.S. 14:81(H)(1).

Whoever commits the crime of molestation of a juvenile when the victim is under the age of 13 years shall be imprisoned at hard labor for not less than 25 years nor more than 99 years. At least 25 years of the sentence imposed shall be served without benefit of probation, parole or suspension of sentence. La. R.S. 14:81.2(D)(1).

Whoever intentionally possesses pornography involving juveniles shall be fined not more than $50,000 and shall be imprisoned at hard labor for not less than 5 years or more than 20 years, without benefit of parole, probation or suspension of sentence. La. R.S. 14:81.1(E)(1)(a).

In the case sub judice , the trial court complied with the requirements of La. C. Cr. P. art. 894.1 and considered aggravating and mitigating factors prior to imposing Defendant's sentences. It found that Defendant presented an undue risk that he would commit another offense if he received a suspended sentence or probation, that Defendant was in need of a correctional or custodial environment and that lesser sentences than those imposed would deprecate the seriousness of the offenses. It noted that Defendant's conduct during the offenses manifested deliberate cruelty toward M.P., that he knew or should have known that M.P. was particularly vulnerable due to her youth and that he used his position as her father to facilitate the commission of the offenses. It further found that M.P. suffered significant, permanent emotional injury as a result of the offenses. It also noted that the evidence presented at trial showed that the abuse occurred over a four-year period and that multiple incidents occurred, but were not charged separately. The record demonstrates that the trial court complied with La. C. Cr. P. art. 894.1, addressing the relevant aggravating factors and determining that the mitigating factors outlined in the statute did not apply to this case.

The sentences imposed by the trial court are not constitutionally excessive, are within the statutory ranges and are not the maximum sentences possible for each conviction. In this case, a father sexually abused his biological daughter over a four-year period, beginning when the victim was 10 years old. Defendant and the victim had vaginal, oral and anal sexual intercourse; they had sexually explicit conversations by text message; and Defendant influenced M.P. to film a pornographic video of herself for his viewing. Considering these facts, the sentences imposed by the trial court are not grossly out of proportion to the severity of the crimes and do not shock the sense of justice. The trial court did not abuse its discretion in imposing these sentences.

Furthermore, although the trial court did not specifically articulate the reasons for imposing consecutive sentences in this case, it considered the relevant factors during the sentencing hearing, and the record provides an adequate factual basis to support consecutive sentences.

Accordingly, this assignment of error lacks merit.

ERRORS PATENT

Pornography Involving Juveniles Sentence

The trial court failed to impose the sentence for pornography involving juveniles without the benefit of parole, probation or suspension of sentence. La. R.S. 14:81.1(E)(1)(a) provides that the sentence be imposed without the benefit of parole, probation or suspension of sentence. The sentence is thus illegally lenient.

This is harmless error. La. R.S. 15:301.1(A) provides, in pertinent part:

The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.

Accordingly, there is no need to remand for correction of the sentencing error. When a trial court fails to order statutorily mandated service of sentence without benefits, the sentence will automatically be served without benefits for the required time period. See State v. Williams , 00-1725 (La. 11/28/01), 800 So.2d 790.

This court orders that the entirety of the 15-year hard labor sentence for the conviction of pornography involving juveniles be served without the benefit of parole, probation or suspension of sentence. We further order that the trial court minutes be amended to reflect this sentencing adjustment. See State v. Shelton , 50,851 (La. App. 2 Cir. 9/28/16), 207 So.3d 549.

Sex Offender Registration

The trial court failed to provide Defendant with written notice of the sex offender registration requirements set forth in La. R.S. 15:540, et seq . Indecent behavior with juveniles, molestation of a juvenile and pornography involving juveniles are defined as sex offenses under La. R.S. 15:541. La R.S. 15:543 requires that the trial court provide written notice to a defendant convicted of a sex offense 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 record does not indicate that the trial court provided Defendant with written notification of the sex offender requirements. Accordingly, this court remands this matter to the trial court for the purpose of providing the appropriate written notice to Defendant of the sex offender registration requirements and for the filing of written proof of such notice into the record of the proceedings. See State v. Wilson , 50,418 (La. App. 2 Cir. 4/6/16), 189 So.3d 513, writ denied , 16-0793 (La. 4/13/17), 218 So.3d 629.

CONCLUSION

For the foregoing reasons, we affirm the convictions of Defendant Terry Matthew Pittman. We affirm his sentences, with instructions for the correction of the minutes. We remand this matter to the trial court for the limited purpose of providing Defendant with the appropriate written notice of the sex offender registration requirements.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED, WITH INSTRUCTIONS FOR CORRECTION OF THE MINUTES; REMANDED WITH INSTRUCTIONS.

      To protect the privacy of the victim, she will be referred to by her initials, pursuant to La. R.S. 46:1844(W).

      Brian McCreary, his mother and M.P.'s mother all testified at trial and corroborated this statement made by M.P.


source: Caselaw Access Project

author: CHEHARDY, C.J.

license: Public Domain

text:
    STATE of Louisiana v. Anthony J. LEWIS
    NO. 17-KA-663
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, ANTHONY J. LEWIS, Katherine M. Franks
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois
   CHEHARDY, C.J.

Defendant, Anthony J. Lewis, appeals from sentences imposed pursuant to the revocation of his probation. His appointed appellate counsel has filed a brief in conformity with the procedure outlined in State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, 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 , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241, appointed appellate counsel requests permission to withdraw as counsel of record for defendant. After a thorough review of the record, we agree with counsel's assessment of the case, affirm defendant's sentences, and grant counsel's motion to withdraw.

PROCEDURAL HISTORY

On May 6, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, Anthony J. Lewis, with possession with the intent to distribute marijuana, a violation of La. R.S. 40:966(A) (count one), possession of codeine, a violation of La. R.S. 40:967(C) (count two), and possession of diazepam, a violation of La. R.S. 40:969(C) (count three).

Defendant initially pled not guilty to these charges, but later withdrew this plea and entered a plea of guilty on December 1, 2011. In accordance with his plea agreement, he was sentenced that day to ten years at hard labor on count one and five years at hard labor on each of counts two and three. The court suspended these sentences and placed defendant on two years of active probation followed by three years of inactive probation. Defendant did not seek an appeal and his convictions and sentences became final. See State v. Williams , 16-32 (La. App. 5 Cir. 8/24/16), 199 So.3d 1205, 1209.

About a year later, on March 4, 2013, the Louisiana Department of Corrections moved to revoke defendant's probation, alleging that he had failed to comply with the conditions of his probation and had failed to report to his probation officer since June of 2012. The motion was set for hearing on April 10, 2013, and an attachment was issued for defendant's arrest when he failed to appear. The attachment was satisfied over three years later when defendant was arrested on June 24, 2016. At the probation revocation hearing that followed on July 14, 2016, defendant stipulated to the grounds for the revocation and his probation was revoked. The court then sentenced him to ten years at hard labor on each of the three counts.

A little over a year later, in light of ameliorative amendments to the pertinent drug laws that took effect on August 1, 2017, defendant filed a pro se motion to reconsider sentence on August 7, 2017. On August 9, 2017, the district court denied relief on the two bases that this motion was untimely under La. C.Cr.P. art. 881.1 and that La. C.Cr.P. art. 881 precludes amendment of defendant's felony sentences at hard labor because he had already started serving them.

On September 18, 2017, the court vacated defendant's sentences on counts two and three, and resentenced him to five years at hard labor on each, in accordance with his plea agreement. On October 5, 2017, defendant filed a pro se motion for appeal, alleging that "the record herein shows error to his prejudice." The court granted defendant's appeal on October 16, 2017.

FACTS

Because defendant pled guilty, the underlying facts were not developed at a trial; however, the State alleged in the bill of information that on or about April 9, 2011, defendant possessed marijuana with the intent to distribute, and that he possessed codeine and diazepam.

PRELIMINARY ISSUE

Before considering defendant's appeal, we first address a preliminary jurisdictional issue.

Louisiana jurisprudence generally holds that a judgment revoking probation is not appealable but is subject to an appellate court's supervisory jurisdiction. State ex rel. Clavelle v. State , 02-1244 (La. 12/12/03), 861 So.2d 186, 187 ; State v. Manuel , 349 So.2d 882 (La. 1977) ; State v. Hoskins , 09-476 (La. App. 5 Cir. 4/27/10), 40 So.3d 199, 201 ; State v. Franks , 04-1208 (La. App. 5 Cir. 4/26/05), 902 So.2d 450, 451. This jurisprudence, however, distinguishes between review of the probation revocation itself versus review of the sentence imposed pursuant to the probation revocation. See Hoskins , supra at 201-02, (finding that because the defendant challenged the sentence imposed pursuant to the probation revocation, and not the merits of the revocation, this Court's appellate jurisdiction attached) ; State v. Edwards , 08-1527 (La. App. 3 Cir. 3/4/09), 11 So.3d 1 ("While La. C.Cr.P. art. 912(C)(1) provides that a defendant may appeal a final judgment imposing sentence, Defendant questions the merits of the probation revocation, not the sentence imposed."). Thus, while a probation revocation is only reviewable under supervisory jurisdiction, a sentence imposed pursuant to that probation revocation is reviewable on appeal.

This jurisprudence as applied to the present case is complicated by the vagueness of defendant's pro se motion for appeal and the lack of a pro se appellant brief. In his motion for appeal, defendant did not assign any specific errors but merely asserted that "the record herein shows error to his prejudice." And with only an Anders brief, it is not clear what defendant seeks to appeal. If he is appealing his probation revocation, that ruling is not subject to our appellate jurisdiction. If, on the other hand, he is appealing his sentences imposed pursuant to that probation revocation, the jurisprudence dictates that we have jurisdiction to review those sentences on appeal. To further complicate matters, defendant's sentences imposed pursuant to his probation revocation were not imposed at the same time. His sentence on count one was imposed on July 14, 2016, while his sentences on counts two and three were imposed on September 18, 2017. Thus, if defendant is appealing his sentence on count one, we lack jurisdiction to review that matter because defendant did not timely appeal that sentence. See La. C.Cr.P. art. 914 ; Williams , supra . But if defendant is appealing his sentences on counts two and three, defendant's motion for appeal was timely and our appellate jurisdiction attaches to review those sentences.

Confronted with how to interpret defendant's motion for appeal, rather than interpret it in such a way so as to foreclose our appellate jurisdiction, in the interest of justice, we choose to presume that defendant is appealing those matters that are in fact appealable and which he timely appealed: his sentences imposed on September 18, 2017. With this in mind, we now turn to consider the brief filed by defendant's appellate counsel in conformity with Anders , supra .

ANDERS BRIEF

Under the procedure adopted by this Court in Bradford , supra , appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders , supra and Jyles , supra , 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 Jyles , supra , 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." Id.

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. Bradford , supra at 1110. If, after an independent review, the reviewing court determines 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 the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

DISCUSSION

Defendant's appellate counsel asserts in her brief that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel recounts the pertinent procedural history of this case dating back to its inception in 2011 and contends that each stage of the proceedings does not present any non-frivolous issues. Likewise, in its brief, the State recounts the pertinent procedural history of this case and agrees with appellate counsel that there are no non-frivolous issues for appellate review. The State also responds that appellate counsel's brief shows a conscientious and thorough review of the procedural history of the case with references to the record for the convenience of this Court. The State notes that appellate counsel has "cast an advocate's eye" over the record and determined there were no non-frivolous issues to raise on appeal. As such, it maintains that appellate counsel has conformed with and followed the procedures set forth in Anders and Jyles , and should be granted permission to withdraw.

As discussed above, our jurisdiction limits our review only to the sentences imposed on September 18, 2017, and thus, our independent review of this record in accordance with Anders is correspondingly limited. In their respective briefs, both appellate counsel and the State note that defendant was sentenced in accordance with his plea agreement and that the sentences imposed were within statutory limits. Our independent review of the record confirms appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal stemming from defendant's sentences imposed on September 18, 2017.

Furthermore, our review of these sentences is limited by the fact that defendant pled guilty in this case. Louisiana Code of Criminal Procedure Article 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, 1173. Here, defendant's sentences on counts two and three were imposed in accordance with the terms of his plea agreement as set forth in the record at the time of his plea. In any event, we note that these sentences are within the sentencing ranges set forth in the respective statutes in effect at the time of the offenses. See La. R.S. 40:967(C) ; La. R.S. 40:969(C).

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and our independent review of the record supports counsel's assertion, appellate counsel's motion to withdraw as attorney of record is hereby granted.

ERRORS PATENT

The portion of the record relating to defendant's sentences on counts two and three has been reviewed 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). The following requires corrective action.

One, the record reflects that the district court did not advise defendant of the prescriptive period for seeking post-conviction relief at any of his three sentencing hearings on December 1, 2011, July 14, 2016, or September 18, 2017. By way of this opinion, and in accordance with La. C.Cr.P. art. 930.8(A), we advise defendant 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. Oliver , 14-428 (La. App. 5 Cir. 11/25/14), 165 So.3d 970, 978, writ denied , 14-2693 (La. 10/9/15), 178 So.3d 1001.

And two, the Uniform Commitment Order incorrectly reflects the date of defendant's probation revocation as September 18, 2017, rather than July 14, 2016. Accordingly, we remand this matter to the district court with instructions to amend the Uniform Commitment Order to reflect July 14, 2016 as the date of defendant's probation revocation. The Clerk of Court for the 24th Judicial District Court is ordered to transmit the original of the amended Uniform Commitment Order to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections' Legal Department. See State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

DECREE

For the foregoing reasons, defendant's sentences on counts two and three are affirmed and the matter is remanded for correction of the Uniform Commitment Order. Appellate counsel's motion to withdraw as counsel of record is granted.

SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED

      See Acts 2017, No. 281, § 2.

      The record is devoid of an explanation as to how defendant returned to court for resentencing. The record does not contain any filing from defendant or the State prompting this resentencing.

      This Court in Hoskins ultimately dismissed the defendant's appeal as premature because the transcript of the probation revocation hearing did not indicate that the trial court had in fact revoked the defendant's probation. See Hoskins , supra at 202.


author: EDWARDS, JUDGE PRO TEMPORE, J.

text:
    STATE of Louisiana v. Rashed V. JOHNSON
    NO. 17-KA-630
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gail D. Schlosser, Jennifer C. Voss
    COUNSEL FOR DEFENDANT/APPELLANT, RASHED V. JOHNSON, Prentice L. White
    Panel composed of Judges Marc E. Johnson, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore
   EDWARDS, JUDGE PRO TEMPORE, J.

Defendant, Rashed V. Johnson, appeals his conviction and sentence for introducing contraband into the Jefferson Parish Correctional Center. For the reasons that follow, we affirm defendant's conviction and sentence, and we grant appellate counsel's motion to withdraw as attorney of record.

STATEMENT OF THE CASE

On September 1, 2017, the Jefferson Parish District Attorney's office filed a bill of information charging defendant with one count of introducing contraband into correctional facility employee, in violation of La. R.S. 14:402. Defendant pled not guilty to the charge at his arraignment on September 8, 2017. On September 28, 2017, defendant withdrew his not guilty pleas and pled guilty as charged. Defendant was sentenced by the trial court to 30 days at hard labor with credit for time served, pursuant to La. C.Cr.P. art. 880, with the sentence to run consecutively to any other sentence he was then serving. Various fines and fees were also imposed. On October 13, 2017, defendant sent a letter to the trial court requesting an appeal, which the trial court considered as a motion for appeal and granted on October 24, 2017. This timely appeal follows.

FACTS

Because the instant conviction was a result of a guilty pleas, the underlying facts of the matter were not fully developed at trial. However, the State provided the following factual basis at the time of defendant's guilty plea.

THE STATE:

If this matter had proceeded to trial, the State would prove beyond a reasonable doubt that on or about June 30th of 2017 the Defendant did violate Louisiana Revised Statute 14:402 in that he did introduce into or possess in the Jefferson Parish Correctional Center contraband, to wit, a lighter.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford , 95-929, pp. 3-4 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, 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 , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967) and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders , supra , 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) (internal citation omitted).

In State v. Jyles , 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. 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." Id.

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. Bradford , 95-929 at 4, 676 So.2d at 1110. If, after an independent review, the reviewing court determines 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 the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

ANALYSIS

Defendant's appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Counsel indicates that defendant pled guilty pursuant to a counseled plea agreement, and that the trial court's colloquy was thorough and complete. Appellate counsel has filed a motion to withdraw as attorney of record and has mailed defendant a copy of his brief.

The State asserts that the record shows that prior to defendant's guilty plea, the district court fully explained to him the rights he was waiving, and defendant affirmed his understanding. The State agrees with counsel that defendant made a knowing and voluntary act of pleading guilty. Further, defendant was informed of his right to appeal. The State concludes, therefore, that defendant's convictions and sentences should be affirmed and that appellate counsel should be allowed to withdraw.

An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

The record shows that defendant was present at the sentencing and was represented by counsel. Prior to sentencing, the trial court entered into a colloquy with defendant wherein the court advised defendant of his Boykin rights and asked defendant if he understood that he was waiving those rights by pleading guilty. Defendant was advised of the sentence he would receive if he pled guilty. Defendant's sentence was in the statutory range for a violation of La. R.S. 14:402. Furthermore, La. C.Cr.P. art. 881.2(A)(2) provides that 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. Defendant was also properly advised of the time limitations for filing post-conviction relief.

Because appellant counsel's brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel's assertion, we affirm defendant's sentence and conviction and grant appellate counsel's motion to withdraw as attorney of record.

ERROR PATENT DISCUSSION

Defendant requests an error 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. 5th Cir. 1990) regardless of whether defendant makes such a request. Our review no errors which require correction.

DECREE

Accordingly, for the reasons provided herein, defendant's convictions and sentences are affirmed and appellate counsel's motion to withdraw as attorney of record is hereby granted.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-0981, pp. 1-2 (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).

      Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until January 10, 2018, to file a pro se supplemental brief. Defendant did not file a pro se brief.

      Boykin v. Alabama , 393 U.S. 820, 89 S.Ct. 200, 21 L.Ed.2d 93 (1968).


author: JOHNSON, J.

text:
    STATE of Louisiana v. Eric FITCH
    NO. 17-KA-614
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Darren A. Allemand
    COUNSEL FOR DEFENDANT/APPELLANT, ERIC FITCH, Jane L. Beebe
    Panel composed of Judges Marc E. Johnson, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore
   JOHNSON, J.

Defendant, Eric Fitch, appeals his conviction for purse snatching on the basis the evidence was insufficient to convict him. For the reasons that follow, we affirm.

Defendant was charged in a bill of information on January 14, 2016 with purse snatching in violation of La. R.S. 14:65.1. He pled not guilty and filed a motion to suppress identification, which was denied after a hearing. After being found competent to stand trial, Defendant proceeded to trial before a six-person jury on February 14, 2017, and was found guilty as charged.

On February 16, 2017, before Defendant was sentenced, the State filed a multiple offender bill of information alleging Defendant to be a third felony offender. Defendant appeared for sentencing on February 24, 2017, and was sentence to 20 years at hard labor. Immediately following the imposition of sentence, Defendant stipulated to the allegations contained in the multiple bill. The trial court vacated his original sentence and resentenced Defendant as a third felony offender to an enhanced 20 years at hard labor without the benefit of probation or suspension of sentence. This out-of-time appeal follows.

On November 28, 2015, Rosalie Palmisano-the victim-and her friend, Danielle Scott, left a local sports bar on Jefferson Highway where they had been drinking and watching an LSU football game. Upon leaving the bar that evening, the victim was approached in the parking lot by a man requesting a cigarette. The victim advised the man that she did not smoke and proceeded to open the passenger-side car door. Placing her leftover food from the bar on the dashboard and her purse on the floorboard, she began to climb into the car when the man pushed her up against the car's interior console, grabbed her purse, and ran down the street.

The victim recalled that the man who approached her was Caucasian, in his early thirties, "maybe blonde hair," and was wearing black pants, a white shirt, and dark rimmed glasses. She further reported that her cell phone was in the purse that was taken. The reporting officers were able to trace the victim's cell phone to the 500 block of Arnoult Road; however, efforts to locate the suspect were fruitless so a second trace was performed indicating the location of the cell phone near the neighboring 500 block of Sizeler Road. The officers relocated to the area near Sizeler Road where they found Defendant, matching the description given by the victim, hiding in a dumpster behind a Winn Dixie parking lot along with the victim's purse and its contents, refusing to surrender to the authorities.

Defendant was eventually apprehended and the victim was contacted by police officers who transported her to the alleyway behind the Winn Dixie store where she identified Defendant-after having asked the officers to have the suspect put on the dark rimmed glasses in his possession-as the man who had stolen her purse earlier that evening. The victim's purse and its contents-including her cell phone, sunglasses, and wallet containing money and "various cards"-were recovered in the dumpster where Defendant was found hiding.

In his sole assignment of error, Defendant argues the evidence presented at trial was insufficient to support his conviction for purse snatching, and at most, the evidence only proved the crime of theft. Specifically, Defendant contends the State was unable to meet an essential element of the crime charged when it failed to prove that the victim's purse was in her immediate control or on her person at the time it was taken. Defendant further challenges the State's proof regarding his identity as the perpetrator, noting that the description of the suspect provided by the victim did not reference the notable tattoo on the left side of his neck.

A conviction based on insufficient evidence cannot stand as it violates due process. See U.S. Constitution amend. XIV ; La. Constitution art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, 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). See also La. C.Cr.P. art. 821(B) ; State v. Ordodi , 06-207 (La. 11/29/06), 946 So.2d 654, 660. Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell , 01-841 (La. App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019. A reviewing court is required to consider the whole record and determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Price , 00-1883 (La. App. 5 Cir. 7/30/01), 792 So.2d 180, 184.

Defendant was convicted of purse snatching, which is defined as "the theft of anything of value contained within a purse or wallet at the time of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon." La. R.S. 14:65.1(A).

In addition to proving the statutory elements of the charged offense at trial, the State is required to prove the defendant's identity as the perpetrator.

State v. Draughn , 05-1825 (La. 1/17/07), 950 So.2d 583, 593, cert. denied , 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). "As a general matter, when the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the [s]tate is required to negate any reasonable probability of misidentification." Id. , quoting State v. Neal , 00-674 (La. 6/29/01), 796 So.2d 649, 658, cert. denied , 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

The supreme court has held that "snatching" does not require an actual face-to-face confrontation, and is distinguished from "use of force" and "intimidation" by the statute's very wording. State v. Anderson , 418 So.2d 551, 552 (La. 1982). The State need only show that force or intimidation or snatching was used to accomplish the theft of something of value from the purse that is within the immediate control or on the person. State v. Boss , 03-133 (La. App. 5 Cir. 5/28/03), 848 So.2d 75, 78, writ denied , 03-1968 (La. 5/14/04), 872 So.2d 508 (emphasis as found in original). La. R.S. 14:65.1 does not require that the victim know at the time of the taking that his or her property is taken or snatched. State v. Smith , 07-2028 (La. 10/20/09), 23 So.3d 291, 298 n.3 (per curiam ). Thus, it is possible in Louisiana to "snatch" a victim's purse from her possession without her awareness at the time of the taking. Id.

Defendant contends the victim had relinquished control over her purse when she placed it on the floorboard and, thus, it was not in her immediate control. However, the jurisprudence makes clear that the evidence in this case sufficiently proves a purse snatching. In Anderson , supra , sufficient evidence of a purse snatching was found where the victim testified only that she felt a vibration, then noticed that her purse was no longer on the floor by her feet. In State v. Capote , 474 So.2d 497 (La. App. 4th Cir. 1985), the court held that even though the victim did not feel her purse being removed from the back of her chair, the theft constituted purse snatching, recognizing that no face-to-face confrontation was required. The court found sufficient evidence to support the purse snatching conviction. And, in State v. Phillips , 10-582 (La. App. 4 Cir. 2/17/11), 61 So.3d 130, writ denied , 11-582 (La. 10/07/11), 71 So.3d 311, the court upheld the defendant's conviction for purse snatching, finding the wallet snatched by the defendant was in the immediate control of the victim after noting that it was lying right next to her hand on the counter of the McDonalds.

Also, in State v. Harrche , 11-183 (La. App. 5 Cir. 12/13/11), 81 So.3d 861, writ denied , 12-342 (La. 8/22/12), 97 So.3d 372, this Court upheld the defendant's conviction for purse snatching, specifically finding that the purse was snatched while it was in the victim's immediate control. The victim testified that she was loading groceries into her vehicle from a shopping cart, and that her purse was in the top section of the cart, where a baby would be seated. As the victim finished loading her groceries into her car, she noticed her purse was gone and that the defendant was running away from her vehicle. The victim indicated that she was close enough to her purse at the time it was taken that she could have reached over and grabbed it. This Court determined that this evidence sufficiently proved a purse snatching.

Further, in Boss , supra , this Court found the evidence sufficient to uphold the defendant's conviction for purse snatching after finding all elements of the crime were proven, including that the purse had been in the victim's immediate control at the time it was taken. The victim testified that she was grocery shopping with her purse in the top compartment of her cart at the time of the incident. The victim stepped away from her cart to approach the dairy case, which was about three feet away. When she returned to her cart, her purse was missing and she saw the defendant proceeding down a grocery aisle with her purse on his shoulder.

In the present case, the victim opened the front passenger-side door of her friend's vehicle and placed her purse on the floorboard. She had one foot in the car when Defendant pushed her into the car's interior console and grabbed her purse from beneath her feet before fleeing the scene.

Additionally, the victim provided a description of the perpetrator to the police who were able to locate Defendant, who matched the perpetrator's description, by tracking the victim's cell phone which was in Defendant's possession along with her purse and its contents at the time of his apprehension. The officers testified at trial that Defendant was found hiding in a dumpster refusing to surrender to the authorities. Once detained, the victim was taken to Defendant's location where she positively identified Defendant as the man who stole her purse. Positive identification by one witness is sufficient to support a conviction. State v. Harris , 07-124 (La. App. 5 Cir. 9/25/07), 968 So.2d 187, 193.

Viewing the evidence in the light most favorable to the prosecution, we find the evidence presented at trial was sufficient to support Defendant's conviction for purse snatching. The record demonstrates that any rational trier of fact could have found the essential elements of the crime, including that the purse was snatched or taken by force by Defendant while it was in the victim's immediate control and his identity as the perpetrator beyond a reasonable doubt.

We have reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920, and find no errors that require corrective action.

Based on the foregoing, Defendant's conviction and sentence for purse snatching is affirmed.

AFFIRMED

      The victim testified that she had one foot in the vehicle and was pushed with such force that she broke Ms. Scott's sunglasses that were near the console.

      The victim's friend, Ms. Scott, was already seated in the car when the perpetrator reached in and grabbed the victim's purse from the floorboard, but she testified that the perpetrator was a Caucasian male, with short hair, and was wearing a white shirt.
      It was established at trial that Defendant had a large tattoo on his neck-a distinguishing trait which was provided in the descriptions of the suspect given by witnesses. The victim stated that she did not notice any tattoos on Defendant because she was "face to face" with him when he first approached her.

      According to one of the arresting officers, Defendant advised that he was "resting" in the dumpster.