author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Christopher M. BELL, Appellant
    No. 51,312-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 17, 2017

      J. RANSDELL KEENE Counsel for Appellant

      JAMES E. STEWART, SR., District Attorney REBECCA ARMAND EDWARDS, JOHN AARON CRAWFORD, WILLIAM C. GASKINS, Assistant District Attorneys Counsel for Appellee
    Before BROWN, GARRETT, and COX, JJ.
   GARRETT, J.

hThe defendant, Christopher M. Bell, was charged with aggravated burglary and possession of a firearm by a convicted felon. Following a jury trial, he was convicted of the responsive verdict of attempted aggravated burglary and as charged on the firearm offense. He was adjudicated a second felony offender and sentenced as such on the attempted aggravated burglary charge to 15 years at hard labor without benefit of probation or suspension of sentence. On the firearm offense, he was sentenced to ten years at hard labor without benefit of parole, probation, or suspension of sentence. The trial court ordered that the sentences be served concurrently with credit for time served. The defendant appeals. For the reasons stated below, we affirm the defendant’s convictions and sentences.

FACTS

On the night of July 7, 2015, Benny and Rebecca York were sleeping in recliners in the den of their home on Lowry Road in rural Caddo Parish. Mrs. York was awakened by a sound she assumed was caused by her cat. When she called the cat’s name, she heard the sound of a person’s voice. Realizing there was an intruder in their home, she immediately woke up her husband. Mr. York saw a large man leaving through the front door. He grabbed a high intensity flashlight and his unloaded shotgun, and placed three shotgun shells in his pocket. Athough he and his wife initially went out the back door of the residence together, he sent her back inside to call 911.

ls>As Mr. York went around the corner of the home, he observed car lights in his neighbor’s yard. He then came across a man crouched behind a pine tree in his yard. The man was wearing a hoodie and holding a roll of duct tape. The man told Mr. York to not “mess” with him and to go back in his house. Mr. York responded by instructing the man to put his head in the grass until the sheriff arrived. At trial, Mr. York identified this man as the defendant.

At this point, a “huge” man came up behind Mr. York and hit him in the back. This man put a gun against Mr. York’s neck and demanded his shotgun, while threatening to shoot him in the head. After taking Mr. York’s shotgun, the two men fled over a fence toward a dark-colored automobile with an open trunk, which was parked in the neighbor’s yard. Mr. York saw his shotgun thrown by one of the men but was unsure of where it landed. Initially, he thought it was in the neighbor’s yard.

Mr. York ran back to the house, where his wife was still talking to the 911 operator. In a state of great excitement, he gave descriptions of the men and their vehicle, which were then dispatched to law enforcement officers.

IsSgt. James Moore of the Caddo Parish Sheriffs Office responded to the call about a burglary in progress with two men and a gun and headed toward the crime scene. At approximately 11:30 p.m., he was about five miles from the York residence, driving west on Blanchard Latex Road, when he was passed by a vehicle matching the broadcast description of the burglars’ car and occupied by two men. Based upon his reasonable suspicion that this was the suspect vehicle, Sgt. Moore turned around and initiated a stop. The defendant, who was driving, was ordered out of the vehicle and patted down by Sgt. Moore. Sgt. Moore checked his driver’s license; the vehicle registration and insurance proof were retrieved from the car for examination. The car was registered to the defendant and a relative. Sgt. Moore walked the defendant to the front of his patrol car. A reserve deputy who arrived on scene got the passenger, Donte Demunguia, out of the car and patted him down. He kept Demunguia at the back of the defendant’s car. Unbeknownst to Sgt. Moore, who was focusing his attention on the defendant, Demunguia gave the deputy permission to open the trunk. As soon as it was opened, the defendant said he did not want his car searched. Sgt. Moore directed the deputy to secure the trunk, which he did.

In the meantime, Mr. York was brought to the scene of the stop. According to his testimony, only 30 to 45 minutes had passed since the incident at his home. He positively identified first the car and then the two men. Following the identification, the officers determined that they had probable cause to arrest the men, and a decision was made to tow the car to the impound lot. According to Sgt. Moore’s testimony, an inventory search of the vehicle was conducted before the car was moved. Two shotguns were [4found in the trunk, which was cluttered with numerous items, including shoes, boots, clothing and various bottles. The shotguns—Mr. York’s unloaded Smith & Wesson shotgun and a loaded Remington Model 870 20-gauge shotgun owned by Demunguia—were removed by Corp. John McCain, a crime scene investigator. Mr. York, who was still at the scene of the stop, identified his stolen shotgun.

Subsequently, a search warrant was obtained by Detective Purgerson, and a more thorough search of the impounded car was conducted. A plastic bag was found under the spare tire; it contained a 9 mm Ruger pistol, two black gloves, a long-sleeve black shirt, a black hood, and a chisel. Crime lab testing of these items revealed the defendant’s DNA on the gloves. While Demung-uia was excluded as the source of DNA on any of the items, the defendant could not be excluded as to the hood and the shirt. Law enforcement officers learned that the pistol had been reported stolen in Texas.

The defendant and Demunguia were charged with aggravated burglary. The defendant, who had a 2012 conviction for attempted armed robbery, . was also charged with possession of a firearm by a convicted felon. In January 2016, Demung-uia pled guilty to simple burglary and agreed to testify against the defendant.

The defendant’s attorney filed a motion in limine to exclude any reference to the pistol recovered from the. defendant’s trunk as having been stolen. The motion was argued at a hearing on March 1, 2016; the court deferred ruling until March 7, 2016, when trial was set to commence. At that time, the court granted the motion.

| ^Defense counsel also filed a motion to suppress and, alternatively, motion for a free and voluntary hearing, and/or a motion in limine as to the defendant’s statement to the police. The state agreed it would not use the statement, except for rebuttal purposes, and defense counsel deemed that motion satisfied.

On the first day of trial, the defendant filed a pro se pleading entitled “Motion of Ineffective Counsel,” in which he claimed that his appointed attorney threatened him “with intimidation” to take a plea deal and failed to file pretrial motions “that were essential to defendant charges, as well as victim/witness(s) testimony.” He requested that his attorney be relieved and that the court assign “adequate,” “competent” counsel. The trial court allowed the defendant to argue the matter in open court; it then denied the motion. Additionally, the state declined the defendant’s offer to plead guilty to attempted possession of a firearm by a convicted felon and serve four years at hard labor in exchange for the state dropping the other charge and not filing a habitual offender bill.

After lunch, the defendant refused to return to court or to wear a leg restraint device under his civilian clothing, which would “lock up” if he attempted to run. Despite the urging of the deputies and his own attorney, the defendant insisted that he wanted to stay downstairs in the jail. Court was continued, over the state’s objection, until the following morning on the motion of defense counsel. The defendant was present when the trial presumed the next day. He- again complained of the trial court’s denial of his pro se motion. He now contended that his counsel should have filed a motion -to suppress an illegal search of his car. The trial court reiterated its prior denial of the motion. The -defendant then expressed interest in a five to six year plea agreement; however, the state rejected that offer,

"In addition to the victims, crime lab personnel and various law enforcement officers, the state presented the testimony of the defendant’s accomplice, Demunguia. Although his version of the events differed somewhat from Mr. York’s testimony, his testimony placed the defendant at the scene. He testified that the burglary was the idea of the defendant, who was his girlfriend’s cousin and a recent acquaintance. He admitted that, while he brought his own shotgun that night, the defendant was the one wearing the ski mask and gloves. According to his testimony, the defendant was about to open the door to the Yorks’ residence when Mr. York came around the side of the house with a flashlight and a shotgun. He and the defendant tried to hide behind trees. He testified that Mr. York told him to not move and that the defendant then pushed or tackled Mr. York. He .also stated that, after.they fled from the Yorks’ yard, the deféndant put Mr. York’s shotgun in the back seat of the car, and that he placed his shotgun there also. However, he testified that, after they drove away, the defendant stopped the car so Demunguia could put the shotguns in the trunk. According to his testimony, they were pulled over by the police five to six minutes after they resumed driving,

17Puring his testimony about the items recovered from the defendant’s car, Corp. McCain inadvertently made a reference to the pistol being reported stolen in Texas. The defendant’s motion for mistrial was denied, and the trial court admonished the jury to disregard the remark.

The defendant was convicted of the responsive verdict of attempted aggravated burglary and as charged on the firearm charge. Defense counsel filed a motion for post-verdict judgment of modification of verdict, which was denied.

Due to the defendant’s prior felony conviction, the state filed a habitual offender bill of information. Defense counsel filed a motion to quash the multiple offender bill of information, which was denied, and a sentencing statement which set forth mitigating factors in the defendant’s favor. After the defendant was adjudicated a second felony offender, the trial court sentenced him to 15 years at hard labor without benefit of probation or suspension of sentence, pursuant to La. R.S. 15:529.1, on the burglary charge. On the firearm charge, he was sentenced to ten years at hard labor without benefit of parole, probation, or suspension of sentence, under La. R.S. 14:96,1. The sentences were ordered to be served concurrently. Defense counsel filed a motion to reconsider sentence, which was denied. •

' On appeal, the defendant asserts an ineffective assistance of counsel claim and error in the denial of his motion for mistrial.

. ^INEFFECTIVE ASSISTANCE OF COUNSEL

In two assignments of error, the defendant claims that the trial court erred in denying his pro se motion to replace his appointed trial counsel due to ineffective assistance and in failing to hold an eviden-tiary hearing on the issue. He also contends that his attorney was ineffective because he failed to file motions to suppress based upon the search of the car .and Mr. York’s identification.

Right to Effective Counsel

The Sixth and Fourteenth Amendments to the United States Constitution guarantee accused persons the right to effective assistance of counsel in a criminal prosecution. State v. Thomas, 2012-1410 (La. 9/4/13), 124 So.3d 1049; State v. Joshua, 50,566 (La.App. 2 Cir. 8/10/16), 201 So.3d 284. If a defendant is indigent, he has the right' to court-appointed counsel; however, an indigent defendant does not have the right to have a particular attorney appointed to represent him. State v. Harper, 381 So.2d 468 (La. 1980); State v. Diggs, 43,740 (La.App. 2 Cir. 12/10/08), 1 So.3d 673, writ denied, 2009-0141 (La. 10/2/09), 18 So.3d 101. A criminal defendant who has been appointed counsel has no right under the Sixth Amendment to the counsel of his choice. State v. Reeves, 2006-2419 (La. 5/5/09), 11 So.3d 1031, cert. denied, 558 U.S. 1031, 130 S.Ct. 637, 175 L.Ed.2d 490 (2009). An accused’s unquestioned right to legal representation at trial cannot be manipulated by him, by attempts at last minute substitution or otherwise, so as to secure unwarranted delays or otherwise obstruct the orderly administration of justice. State v. Higginbotham, 46,975 (La.App. 2 Cir. 4/25/12), 122 So.3d 1, writ denied, |92012-1718 (La. 5/24/13), 116 So.3d 658; City of Baton Rouge v. Dees, 363 So.2d 530 (La. 1978).

A claim of ineffective assistance of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish that his attorney was ineffective, the defendant first 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. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra; State v. Moore, 48,769 (La.App. 2 Cir. 2/26/14), 134 So.3d 1265, writ denied, 2014-0559 (La. 10/24/14), 151 So.3d 598. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. 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. Joshua, supra; State v. Bailey, 49,362 (La.App. 2 Cir. 11/19/14), 152 So.3d 1056, writ denied, 2014-2645 (La. 10/2/15), 178 So.3d 988, cert. denied, — U.S. -, 136 S.Ct. 1204, 194 L.Ed.2d 210 (2016); State v. Grant, 41,745 (La.App. 2 Cir. 4/4/07), 954 So.2d 823, writ denied, 2007-1193 (La. 12/7/07), 969 So.2d 629. The filing of pretrial motions is squarely within the ambit of an attorney’s trial strategy. Counsel is not required to engage in futility. State v. LeBeau, 621 So.2d 26 (La. App. 2 Cir. 1993), writ denied, 629 So.2d 359 (La. 1993). The fact that a particular strategy is unsuccessful does not establish ineffective assistance. State v. Moore, supra.

Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, supra; State v. Moore, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show that the error had some conceivable effect on the outcome of the proceedings. Rather, he must show 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. Bailey, supra. 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. Moore, supra. The failure of counsel to make meritless objections or file futile motions is not ineffective assistance. State v. Bailey, supra.

Generally, a claim of ineffective assistance of counsel is properly raised in an application for post-conviction relief (“PCR”) in the trial court. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Mansfield, 50,426 (La. App. 2 Cir. 2/24/16), 190 So.3d 322. When the record is sufficient, the claim may be resolved on direct appeal in the interest of judicial economy. State v. Smith, 49,356 (La.App. 2 Cir. 11/19/14), 152 So.3d 218, writ denied, 2014-2695 (La. 10/23/15), 179 So.3d 597. However, in extraordinary circumstances, appellate courts have taken a third approach on appeal and remanded an | , ineffective assistance claim for an evidentiary hearing. State v. Mansfield, supra.

Car Search Issues

The defendant contends that trial counsel was ineffective because he failed to file a motion to suppress the evidence found in the car trunk. He asserts before us on appeal that there was a nonconsensual search of the trunk on the night of his arrest, which taints the post-arrest search, as well as a subsequent search with a warrant based on “false representation” by the detective who secured the warrant. As to these contentions, we find that the record before us is not sufficiently developed to allow this court to rule upon them at this point in the proceedings. The evidence adduced at the trial was not designed to address the arguments now being made pertaining to the search and seizure issues. While it seems highly unlikely that a motion to suppress would have been successful, we do not believe that this record contains sufficient information to rule on these issues at this time. Although the defendant’s appellate counsel requests that the matter be remanded to the trial court for an immediate hearing on these issues, such action is warranted only under extraordinary circumstances. No such circumstances are found in the instant case. Accordingly, we pretermit consideration of the defendant’s arguments pertaining to the car search and the failure to file a | ^motion to suppress. In due course, the defendant may raise these contentions on PCR. If warranted, the record can then be more fully developed at an evidentiary hearing, at which the defendant’s trial counsel will also be given the opportunity to explain his trial strategy.

Identifícation Issue

We do find that the record is sufficiently developed on the matter of Mr. York’s on-site identification of the defendant as one of the two men in his yard. Simply put, there is no legal basis to support the filing of a motion to suppress the identification, and the defendant’s contention that his counsel was ineffective in failing to file such a motion is groundless.

Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Even if the identification could be suggestive, it is the likelihood of misidentification which violates due process, not merely the suggestive identification procedure. State v. Odom, 47,379 (La.App. 2 Cir. 8/8/12), 104 So.3d 61, writ denied, 2012-1994 (La. 3/15/13), 109 So.3d 373. To prove a violation of due process, a defendant must first show that the identification procedure was unnecessarily suggestive and, second, that there was a substantial likelihood of mis-identifícation. Admitting evidence of a suggestive identification procedure does not violate due process if the identification is rehable. State v. Womack, 47,639 (La.App. 2 Cir. 1/16/13), 109 So.3d 418, writ denied, 2013-0304 (La. 9/20/13), 123 So.3d 163.

When assessing the reliability of ah identification, the following factors must be considered: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3)| isthe accuracy of his or her prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the length of time between the crime and the confrontation. Manson, supra; State v. Odom, supra; State v. Womack, supra.

One-on-one identifications, also known as “show-up” identifications, are not favored; however, under certain circumstances, they are admissible at trial. State v. Odom, supra. Such identifications have been found to be admissible when the identification occurred in close proximity to the time of the offense and the suspect is presented for immediate identification. State v. Robinson, 404 So.2d 907 (La. 1981); State v. Odom, supra. Such prompt confrontations between the defendant and the victim provide fairness by ensuring the reliability of the identification and .the expeditious release of innocent- suspects. State v. Womack, supra.

The testimony adduced at trial established that the identification was made within 30 to 45 minutes after Mr. York had encountered the men outside his home. His testimony demonstrated that he was at close quarters with the men, one of whom held him at gunpoint and disarmed him during a struggle. He had the benefit of a very bright flashlight to see the defendant’s features and observed him holding a roll of duct tape, which was subsequently recovered in the yard by law enforcement personnel. While Mr. York initially described ,the men as white, photos of the defendant—who is black—reveal that he is light-skinned. Mr. York was able to provide law enforcement with an accurate description of the getaway car that led to the quick apprehension of the men at a location in the vicinity of the York home.

We see nothing inappropriate in the identification procedure utilized by the law ■enfQrcement personnel under the circumstances’ presented here. | uThe incident occurred late at night in a rural area. A deputy responding to the 911 call passed a vehicle matching the description provided by the victim. The officer’s decision to bring Mr. York to the scene of the vehicle stop was prudent under the circumstances. The. prompt identification of the getaway vehicle and the perpetrators provided fairness by ensuring the reliability of the identification and the possibility of expeditious release of innocent suspects. Furthermore, nothing in this record indicates that Mr. York has ever waivered in his identification of the defendant as the man he saw in his yard with the roll of duct tape. The “show-up” identification of both the vehicle and the two perpetrators by Mr. York shortly after the- traumatic events at his home was reliable and thus admissible. Since the procedure was proper, we find no merit to the defendant’s claim that trial counsel was ineffective because he failed to file a motion to suppress Mr. York’s identification of him. Counsel is not obliged to file meritless motions.

Plea Bargain Allegations

As to the defendant’s conelusory assertion in his pro se motion that his attorney “on numerous occasions threatened” him “with intimidation” to take a plea bargain, we note that, just prior to the commencement of trial, the defendant himself twice expressed interest in pleading guilty for sentences of either four years or five to six years. However, the state had taken all plea offers off the table in January 2016, and it rejected the late offers made by the defendant. An effort by trial counsel to encourage the defendant— who had a prior felony conviction, which is an aggravating sentencing factor, and who faced the possibility of being adjudicated a habitual offender, resulting in an enhanced sentence—to accept an advantageous plea bargain which h,-,significantly reduced his sentencing exposure can scarcely be construed as an action detrimental to his client’s best interest.

Finally, we note that the defendant’s filing of his pro se motion on the first day of trial appeared—in conjunction with his other actions in refusing to return to the courtroom—to be part of a calculated effort to delay his trial. Under the circumstances of this case, the trial court did not err in denying the motion without an evi-dentiary hearing.

MOTION FOR MISTRIAL

The defendant argues that the trial court erred in denying his motion for mistrial after a police officer inadvertently mentioned that the pistol hidden under the spare tire in his car trunk was stolen when the court had previously granted a motion in limine to exclude that information.

Law

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, 2012-0086 (La. 4/20/12), 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. Wilson, 50,589 (La. App. 2 Cir. 5/18/16), 196 So.3d 614; State v. Authier, 46,903 (La.App. 2 Cir. 4/25/12), 92 So.3d 494, writ denied, 2012-1138 (La. 11/2/12), 99 So.Sd 662. Likewise, the determination of whether an admonition will adequately cure any prejudice and assure a fair trial lies within the trial court’s discretion. State v. Parker, 49,009 (La.App. 2 Cir. 5/15/14), 141 So.3d 839.

11fiThe law regarding mistrials on the grounds of improper references to other crimes is well settled. La. C.E. art. 404(B) provides that evidence of other crimes, acts or wrongs is generally not admissible. La. C. Cr. P. art. 770(2) provides that a mistrial shall be granted upon motion of the defendant when a remark or comment is made within the hearing of the jury by the judge, the district attorney, or a court official during trial or in argument and that remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. State v. Roberson, supra. For purposes of La. C. Cr. P. art. 770, a law enforcement officer is not considered a “court official,” and an unsolicited, unresponsive reference to other crimes evidence made by a law enforcement officer is not grounds for a mandatory mistrial under La. C. Cr. P. art. 770. State v. Terry, 47,425 (La.App. 2 Cir. 11/21/12), 108 So.3d 126, writ denied, 2012-2759 (La. 6/28/13), 118 So.3d 1096; State v. Roberson, supra; State v. Ellis, 42,520 (La.App. 2 Cir. 9/26/07), 966 So.2d 139, writ denied, 2007-2190 (La. 4/4/08), 978 So.2d 325. Absent a showing of a pattern of unresponsive answers or improper intent by the law enforcement officer or prosecutor, such comments would not fall within the purview of mistrial pursuant to La. C. Cr. P. art. 771. State v. Scott, 34,949 (La.App. 2 Cir. 1/25/02), 823 So.2d 960, writ denied, 2002-1622 (La. 5/16/03), 843 So.2d 1122.

La. C. Cr. P. art. 771 sets forth permissive grounds for requesting an admonition or a mistrial when a prejudicial remark is made on grounds that do not require automatic mistrial under article 770. It covers remarks or comments made by a witness or person other than the judge, the district attorney or a court official. La. C. Cr. P, art. 775 also sets forth additional permissive grounds for mistrial. Under these articles, mistrial is at the Indiscretion of the trial court and should 'be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. State v. Roberson, supra.

Even if a mistrial was warranted under La. C. Cr. P. art. 770, 771, or 775, 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. Roberson, supra. Trial error is harmless where the verdict rendered is “surely unattributable to the error.” State v. Wilson, supra.

Discussion

As previously mentioned, immediately prior to commencement of trial, the trial court granted the defendant’s motion in limine to exclude reference to the pistol recovered from the defendant’s trunk as having been stolen. However, when Corp. McCain was questioned by the prosecutor about his role in collecting evidence as a crime scene investigator, the following exchange occurred:

Q. Okay. In regards to that, what was your purpose of collecting those items?
A. They were of evidentiary value for the commission of a crime. Also, Detective Purgerson had recovered a handgun that was reported stolen I believe out of Texas.

Defense counsel objected, and, outside the jury’s presence, moved for a mistrial. Following a conference with the attorneys, the trial court ruled that the witness’s statement did not rise to the level of a mistrial and denied the motion. The court then read to the jury an admonition agreed upon by both sides. It stated:

Admonition: The jury is admonished to disregard any testimony that is extraneous to the evidence in the case. There | TSis no evidence connecting the defendant to the theft of the handgun mentioned by the current witness.

Corp. McCain was not a court official under the mandatory mistrial article, La. C. Cr. P. art. 770. His unsolicited and unresponsive statement referencing the gun’s stolen status was not deliberately elicited by the prosecutor’s question about evidence collection. Nor is there any evidence in this record to suggest that he made the statement with any intent to prejudice the defendant.

Furthermore, the evidence of the defendant’s guilt was overwhelming. He and his ear were positively identified by the victim. The victim’s shotgun, which was forcibly taken from him by the assailants, was recovered from the trunk of the defendant’s car, along with the codefendant’s shotgun, which was used during the offense. The defendant’s accomplice testified against him at trial. In light of these facts, we find that the reference to the pistol hidden in the trunk being stolen was not so prejudicial that it made it impossible for the defendant to obtain a fair trial.

We find no abuse of the trial court’s discretion in ruling that a mistrial was not mandated and that an admonition to the jury was sufficient. This assignment of error is meritless.

ERRORS PATENT

Our review of the record reveals two errors patent. First, the minutes incorrectly state that the sentence for attempted aggravated burglary was to be served “without benefit of probation, parole or suspension of sentence.” The transcript showed that the trial court properly directed that this sentence be served without benefit of probation or suspension of sentence, pursuant to La. R.S. 15:529.1(G). Accordingly, the trial court is instructed to correct |inthis error in the minutes, as the transcript controls over the minutes when there is a conflict. State v. Lynch, 441 So.2d 732 (La. 1983); State v. Clark, 44,594 (La.App. 2 Cir. 8/19/09), 16 So.3d 1256, writ denied, 2009-2106 (La. 8/18/10), 42 So.3d 400.

Second, the defendant’s sentence is illegally lenient because the trial court faded to impose the mandatory fine for possession of a firearm by a convicted felon. See La. R.S. 14:95.1(B), which requires imposition of a fine between $1,000 and $5,000. Pursuant to La. C. Cr. P. art. 882(A), an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. However, as this court has recognized, we are not required to take such action. State v. Pena, 43,321 (La.App. 2 Cir. 7/30/08), 988 So.2d 841. The state did not object to the error and the defendant was not prejudiced in any way by the failure to impose the mandatory fine. Thus, we decline to remand the case for correction of the sentence to include a fine.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

      , A recording of the 911 call was admitted into evidence and played for the jury. The recording indicates that the call was received at 11:28 p.m.

      . According to the testimony of Detective Matthew Purgerson, the lead investigator on the case, the codefendant, Donte Demunguia, was 6’9” and weighed 220 pounds, while the defendant was 6’ and weighed 165 pounds. However, Demunguia testified that he was 6T0” and weighed 295 pounds.

      . According to the 911 call, Mr. York described the vehicle as a dark-colored or navy Dodge and the two men who attacked him as white. He further stated that one of the men was armed and that they had also taken his gun. He was able to say that the men fled east on Lowry Road, but was unable to tell if they turned north or south when they reached Highway 169. Review of the photos of the defendant found on his driver’s license and military identification, which were admitted into evidence, demonstrate that he is a light-skinned black male. As to the car, the trial testimony established that the defendant’s vehicle was a 2012 Chrysler 300. However, Detective Purgerson testified that Dodge and Chrysler cars were very similar in appearance and that both were produced by Chrysler. The photos of the car admitted into evidence showed its unusual dark blue metallic color, which Mr. York recounted in his testimony.

      . In’ response to the defendant’s refusal to come to court, defense counsel promptly filed a motion for individual voir dire. regarding 'the defendant's absence from the courtroom during voir dire examination in order to confront any' problem of undue prejudice while preserving the defendant’s right to a fair trial and due process of law. He also filed a motion in limine to bar the state from referring to and/or adducing evidence concerning the defendant’s absence from court at trial.

      . The defendant filed a writ application seeking supervisory review of the trial court’s ruling, On May 19, 2016, this court denied the writ, finding that the matter "may be raised at a later time either on appeal or in an application for post-conviction relief, if appropriate.”

      . The defendant was further ordered to have no contact with the victims, to stay away from the location of the offenses, to refrain from possessing or owning firearms, and to pay concurrent court costs. The trial court recommended the defendant for any special programs for which he might be eligible, includr ing reentry and work release.

      . As cogently argued by the state in its brief before us, under the "inevitable discovery” doctrine, evidence found as a result of an alleged violation of the defendant’s constitutional rights would be admissible if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), The "inevitable discovery” doctrine has been followed by Louisiana courts. State v. Lee, 2005-2098 (La. 1/16/08), 976 So.2d 109, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008); State v. McGraw, 43,778 (La.App. 2 Cir. 12/10/08), 1 So.3d 645, writ denied, 2009-0317 (La. 11/6/09), 21 So.3d 297. The state has also presented other arguments in support of the search of the trunk as an exception to the search warrant requirement or as an inventory search.


source: Caselaw Access Project

author: BROWN, C.J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Christopher Jiiarreld HICKS, Appellant
    No. 51,272-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 17, 2017

      LOUISIANA APPELLATE PROJECT By: Douglas L. Harville Counsel for Appellant
    J.- 'SCHUYLER MARVIN, District Attorney JOHN M. LAWRENCE, RICHARD R. RAY, DALE N. MONTGOMERY, II, Assistant District Attorneys Counsel for Appellee
    Before BROWN, WILLIAMS, and STONE, JJ. •
   BROWN, C.J.

11 Defendant, Christopher Jiiarreld Hicks, was charged with molestation of a juvenile and, following a jury trial, he was convicted of indecent behavior with a juvenile. Defendant was sentenced' to serve seven years at hard labor and to pay a $5,000 fine. Defendant now appeals, arguing that the evidence was insufficient to convict him. For the following reasons, we affirm.

‘ FACTS

On October 13, 2014, J.S. called the Haughton Police Department to report that her 14r-year-old son, W.V., had been molested by defendant, Christopher Jiiar-reld Hicks, a 27-year-old man, while taking a shower at defendant’s home. Police interviewed J.S., W.V., and defendant. During his interview, defendant confessed to performing oral sex on W.V. and was arrested. On August 31, 2015, defendant was charged by amended bill of information with molestation of a juvenile.

At trial, W.V. testified that he met' defendant, whom he identified in open court, through his mother when she began working at a convenience store where defendant was a manager. Defendant was also W.V.’s neighbor in a trailer park in Haughton, Louisiana, Although W.V. knew defendant for only a few months, he felt he could trust defendant.

On or around October 1, 2014, a water pipe burst at W.V.’s family home. Defendant offered to allow W.V.’s family to take showers at his home, and W.V. went to defendant’s home by himself to shower. According [ 2to W.V., at some point, defendant attempted to enter the shower with him, but W.V. told him “no,” and defendant left the bathroom. However, when W.V. was finished taking a shower, defendant called for him to come into the bedroom. W.V. testified that he complied with defendant’s request because W.V. was taught to listen to his elders.

Upon entering the room, W.V. saw that defendant was naked. Defendant told W.V. to take off his clothes and sit on the bed, which W.V. did. Defendant then performed oral sex on W.V. while masturbating. W.V. explained that he tried to leave the room two or three times during the incident, but defendant pushed him back on the bed each time. After defendant ejaculated, he put W.V.’s hand on his penis. Defendant told W.V. not to tell anyone what had happened, and W.V. left. W.V. testified that he did not tell anyone about what defendant had done until two weeks later because he was embarrassed. W.V. testified that he was 14 years old at the time of the incident and still suffers from nightmares as a result of the abuse.

On cross-examination, W.V. admitted that he was “not really good with remembering dates” but believed the incident with defendant occurred in October 2014.

J.S. corroborated her son’s testimony that the water pipe burst on or around October 1, 2014, and that W.V. went to defendant’s home to shower. J.S. noticed that around that time, W.V, started acting strangely by spending a lot of time in his room alone and not eating. Approximately two weeks after going to defendant’s house to shower, W.V. confided to his mother that | -¡defendant had touched him inappropriately. J.S. called the. Haughton Police Department to report the crime.

On cross-examination, J.S. testified that she was fired from the convenience store prior to the incident with W.V. and defendant. However, J.S. explained that the store owner; not defendant, actually fired her, J.S. claimed that she called defendant after learning that her son had been molested, and defendant admitted that he “had sex” with W.V. in his shower. J.S. explained that she was unaware that anything had occurred in defendant’s bedroom until she heard her son testify at trial. J.S.testified that she did not know at the time of the incident that defendant was a registered sex offender

Deputy Herren of the Webster Parish Sheriffs Office, formerly an officer with the Haughton police department, responded to J.S.’s house on October 13, 2014. Deputy Herren spoke with J.S. and W.V. and then went to defendant’s trailer to interview him. A video -recording of the interviews was played for the jury.

The video showed Deputy Herren’s interview with J.S. wherein she stated that defendant “tried to rape [her] son.” J.S. mentioned that she knew defendant had been convicted of a sex offense and was on parole. W.V. also spoke with Deputy Her-ren and said that he went to defendant’s home to take a shower, and that while he was in the shower defendant came in and tried to |4make W.V. perform oral sex on him. W.V. stated that defendant also “touched him on the front.” W.V. said that he was at defendant’s house at around 7:00 or 8:00 p.m. when the incident happened. However, W.V. never specifically stated what day defendant committed the offense.

After speaking with J.S. and W.V., Deputy Herren went directly to defendant’s home. Prior to interviewing defendant, Deputy Herren advised him of his Miranda, rights, which defendant waived. Thereafter, defendant admitted that he performed oral sex on “the little boy, the fourteen-year-old.” Defendant was then placed under arrest. Defendant claimed that J.S. had given him “parental consent” to engage in sexual activity with W.V.

Deputy Herren testified that based on W.V.’s interview, he thought that the molestation had occurred the previous evening, and not two weeks prior. However, Deputy Herren explained that in his experience, victims of sex offenses often wait to report the crime, which can lead to confusion as to the exact date and time of the offense.

Defendant testified at his trial. He admitted to having a prior conviction for forcible rape. According to defendant, the victim in the previous case (a 15-year-old boy) claimed that defendant (who was 21 years old at the time) performed oral sex on the victim without his consent. Defendant stated that he went door-to-door in the trailer park and let all of his neighbors know that he was a registered sex offender.

Defendant said that he worked with and supervised J.S.' and that he fired her on October 10, 2014, via a text message. Defendant read the text | ^message to the jury wherein he stated that the owners of the store had decided to terminate her employment due to her numerous absences. Defendant explained that J.S. was very upset with him about being fired.

Defendant claimed that on October 1, 2014, he was in Haughton with his probation officer until approximately 7:00 p.m. On October 12, 2014, defendant traveled to Texas and did not return to his home until early the next morning. He explained that he had not slept for three days and had been drinking alcohol before he confessed to Deputy Herren.

Defendant’s ex-boyfriend, Shane Me-shell, lived with defendant until October 2, 2014. Meshell also worked with defendant at the convenience store. J.S. told Meshell that she was very upset that she had been fired. Meshell corroborated defendant’s story that he went to Texas on October 12, 2014, and did not return until around 1:30 a.m. the next morning. Around 3:30 a.m., Meshell received a phone call from J.S. informing him that W.V. had accused defendant of molesting him. Meshell testified that he only saw W.V. go to defendant’s trailer one time to shower, and defendant was not home at the time. On cross-examination, Meshell confirmed that he was not living with defendant from approximately October 2, 2014, to October 13, 2014.

On December 16, 2015, following a jury trial, defendant was convicted of indecent behavior with a juvenile. On February 16, 2016, the trial court sentenced defendant to serve seven years at hard labor and to pay a $5,000 fine. On May 13, 2016, defendant was granted an appeal.

J^DISCUSSION

Defendant claims that the evidence adduced at trial was insufficient to convict him of indecent behavior with a juvenile. He points to inconsistencies in W.V.’s and J.S.’s trial testimony and the statements they gave to Deputy Herren on October 13, 2014. Specifically, defendant notes that W.V. never told Deputy Herren that defendant had performed oral sex on him in defendant’s bedroom, but only stated that defendant had touched him in the shower. Additionally, W.V. could not give a specific date for when the incident occurred. Defendant asserts that W.V. and J.S. fabricated the allegations against defendant in retribution for the fact that defendant fired J.S. from the convenience store where he worked as her manager.

The state counters that the jury accepted the testimony of W.V. and J.S., and that such credibility determinations should not be disturbed on appeal. The state argues that evidence adduced at trial proved all of the essential elements of indecent behavior with a juvenile.

A claim of insufficient evidence is determined by whether, on the entire record, a rational trier of fact could find defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review, the appellate court considers 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, supra; State v. Tate, 01-1658 (La. 05/20/03), 851 So.2d 921; State v. Crossley, 48,149 (La.App. 2 Cir. 06/26/13), 117 So.3d 585, writ denied, 13-1798 (La. 02/14/14), 132 So.3d 410. The appellate court does not assess the credibility of witnesses or reweigh evidence, and gives great deference to the jury’s decision to |7accept or reject the testimony of a witness or the weight the jury gives to direct or circumstantial evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442; State v. Eason, 43,788 (La.App. 2 Cir. 02/25/09), 3 So.3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So.3d 913, cert. denied, 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010).

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness in whole or in part; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La. 01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000); State v. Woodard, 47,-286 (La.App. 2 Cir. 10/03/12), 107 So.3d 70, writ denied, 12-2371 (La. 04/26/13), 112 So.3d 837; State v. Hill, 42,025 (La.App. 2 Cir. 05/09/07), 956 So.2d 758.

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

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:
(1)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. Lack of knowledge of the child’s age shall not be a defense....

' The Louisiana Supreme Court has previously stated that oral sex with a juvenile victim constitutes a lewd or lascivious act. State v. Jones, 10-0762 (La. 09/07/11), 74 So.3d 197.

Both J.S. and W.V. testified that on or around October 1, 2014, when W.V. was 14 and defendant was 27, a water pipe burst at their house, and W.V. took a shower at defendant’s trailer home. W.V. | «testified that while there, defendant forced him to undress and then performed oral sex on him while defendant masturbated. The foregoing evidence, in and of itself, was sufficient to prove that defendant committed the offense of indecent behavior with juveniles upon W.V.

Defendant also admitted to Deputy Her-rén that he performed oral sex on “the fourteen-year-old” and claimed that he had J.S.’s consent to do so. Although defendant points out that W.V. could not recall the specific date when the incident occurred, Deputy Herren explained that in his experience, sexual abuse victims often wait to report sex crimes, which can lead to confusion as to the specific date and time of the offense. Furthermore, the jury’s decision to accept W.V.’s testimony as true is enti-' tied to great deference.

CONCLUSION

For the aforementioned reasons, defendant’s conviction and sentence are AFFIRMED.

      . In accordance with La, R.S. 46:1844(W)(3), ' the victim and his mother will be identified by their initials. The victim's date of birth is listed on the amended bill of information as November 27, 2000. Defendant’s date of birth is September 24, 1987.

      . Defendant represented himself at trial with the assistance of stand-by counsel.

      . Prior to trial, and outside the presence of the jury, a free and voluntary hearing was held, after which the trial court determined that defendant’s statement to Deputy Herren was freely 'and voluntarily made. Immediately following the free and voluntary hearing, a 404(b) hearing was conducted. The trial court initially restricted the state's ability to play the entire videotaped confession because mention was made during the interview of defendant’s previous sex offense conviction. However, after defendant made mention during J.S.’s cross-examination that he had a prior conviction for forcible rape, the trial court held that the state was permitted to play the entire videotaped interview. The video recording was admitted into evidence as State’s Exhibit 1.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Three of defendant’s neighbors, Carl Robbins, Suzie Lucas and Chelsea Movan, testified for the defense that they received notice in the mail that defendant was a registered sex offender.


author: STONE, J.

text:
    STATE of Louisiana, Appellee v. Paul Jacob NORMAN, II, Appellant
    No. 51,258-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 17, 2017.
    Rehearing Denied June 15, 2017

      LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville Counsel for Appellant
    PAUL JACOB NORMAN, II Pro Se
    JOHN SCHUYLER MARVIN, District Attorney CECIL PAXTON CAMPBELL, II, JOHN MICHAEL LAWRENCE, RICHARD RUSSELL RAY, Assistant District Attorneys Counsel for Appellee
    Before BROWN, WILLIAMS, and STONE, JJ.
   STONE, J.

hThe defendant, Paul Jacob Norman, II, was charged by bill of information with felony carnal knowledge of a juvenile in violation of La. R.S. 14:80. Following a bench trial, Norman was found guilty as charged and subsequently sentenced to five years at hard labor. For the following reasons, we affirm.

FACTS

On April 17, 2012, Bossier City Police Detective Shawn Poudrier (“Detective Poudrier”) received information from the school resource officer at Rusheon Middle School concerning 13-year-old student, C.S. A family member reported C.S. was involved in a sexual relationship with 26-year-old Paul Jacob Norman, II (“Norman”), who had been living with C.S. and her family. Thereafter, C.S. was interviewed at the Gingerbread House, a children’s advocacy center in Shreveport, Louisiana. In her forensic interview, C.S. denied having a sexual relationship with Norman. However, C.S.’s mother, D.S., admitted to police that she was aware of her daughter’s sexual relationship with Norman. Moreover, C.S.’s cousins, Rhydo-nia Gullette (“Gullette”) and Jessica Peters (“Peters”), informed police that they previously witnessed Norman and C.S. having sex.

On May 25, 2012, Norman was charged by bill of information with felony carnal knowledge of a juvenile in violation of La. R.S. 14:80. Norman chose to represent himself at trial and following a two-day bench trial was found guilty as charged. Thereafter, Norman filed a motion for |anew trial arguing that the trial court’s verdict was contrary to the law and evidence because, among other things, he was not permitted to cross-examine Gullette and Peters. Norman also alleged C.S., who testified at trial that she had sex with Norman multiple times, had been coached into testifying against him. Norman’s motion for new trial was denied, and he was sentenced to five years at hard labor. He now appeals.

DISCUSSION

Sufficiency of the Evidence

Norman asserts the evidence adduced at trial was insufficient to prove he had sexual intercourse with C.S. In support of his claim, Norman notes that C.S.’s trial testimony is contrary to the initial statements she made in her Gingerbread House interview. Furthermore, Norman contends none of the state’s witnesses testified that they actually saw him having sexual intercourse with C.S.

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, 2001-1658 (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. Carter, 42,894 (La. App. 2 Cir. 01/09/08), 974 So.2d 181, writ denied, 2008-0499 (La. 11/14/08), 996 So.2d 1086; State v. Crossley, 48,149 (La. App. 2 Cir. 06/26/13), 117 So.3d 585, writ denied, 2013-1798 (La. 02/14/14), 132 So.3d 410. 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. State v. Pigford, 2005-0477 (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, 2009-0310 (La. 11/06/09), 21 So.3d 297; State v. Crossley, supra.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of 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 thus viewed, the facts established by the direct evidence and inferred from the circumstances 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. Speed, 43,786 (La. App. 2 Cir. 01/14/09), 2 So.3d 582, writ denied, 2009-0372 (La. 11/06/09), 21 So.3d 299; State v. Crossley, supra.

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. State v. Wiltcher, 41,981 (La. App. 2 Cir. 05/09/07), 956 So.2d 769; State v. Burd, 40,480 (La. App. 2 Cir. 01/27/06), 921 So.2d 219, writ denied, 2006-1083 (La. 11/09/06), 941 So.2d 35. Likewise, the sole testimony of a sexual assault victim is sufficient to support a requisite factual finding. State v. Lewis, 50,546 (La. App. 2 Cir. 05/04/16), 195 So,3d 495, 499; State v. Demery, 49,732 (La. App. 2 Cir. 05/20/15), 165 So.3d 1176. 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. Ponsell, 33,543 (La. App. 2 Cir. 08/23/00), 766 So.2d 678.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La. App. 2 Cir. 09/18/02), 828 So.2d 622, writs denied, 2002-2595 (La. 03/28/03), 840 So.2d 566, 2002-2997 (La. 06/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). The appellate court neither assesses the credibility of witnesses nor . reweighs 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. 08/30/02), 827 So.2d 508, writ denied, 2002-3090 (La. 11/14/03), 858 So.2d 422.

La. R.S. 14:80 provides in pertinent part that:

A Felony carnal knowledge of a juve- ■ nile is committed when:'

(1) A person who is seventeen years of age or older has sexual intercourse, with consent, with a person who is thirteen years of age or older but less than seventeen years of age, when the victim is not the spouse of the offender, and when the difference between the age of the victim and the age of the offender is four years or greater; or
. ⅜ ⅜ ⅜
■ B. As used in this Section, “sexual intercourse” means anal, oral, or vaginal sexual intercourse.
|BC. 'Láck of knowledge of the juvenile’s age shall not be a defense. Emission is not necessary, and penetration, howevér slight, is sufficient to complete ; the crime.

. At trial, Detective Poudrier testified he interviewed Gullette and her sister, Peters, who stated they saw Norman and C.S. having sex at C.S.’s house. Norman did not object to Detective Poudrier’s reference to either Gullette’s or Peters’ statement. On cross-examination, Norman requested that Detective Poudrier’s recorded interviews with Gullette and Peters be played in open court. In her interview, Gullette stated she was at C.S.’s hoüse for a cookout when she and Peters went around the outside of the house to knock on'C.S.’s bedroom window as a prank. Gullette said that before she knocked, she looked inside and saw Norman and C.S. having sex. Gullette and Peters immediately went inside the house and confronted C.S. and Norman. According to Gullette, Norman responded that “he was a grown man and could do what he wanted.” Gullette did riot actually see C.S. and Norman having sexual intercourse, but stated they were under the bed covers, C.S. did not appear to be wearing pants, and Norman’s pants were pulled down.

In her interview, Peters stated she and Gullette walked around C.S.’s house to knock.on her bedroom, window while they were at C.S.’s house for a cookout, Peters told Detective Poudrier that Gullette saw C.S. and Norman having sex through C.S.’s bedroom window, but that she did not. Peters said that she and Gullette told D.S. what Gullette had seen, but D.S. told them to leave C.S. and Norman alone, Gullette and Peters then went inside the house and Gullette told Norman that he needed to “put his thing away.” C.S. and Norman both responded by saying that they were grown and could do what they wanted. Two days later, D.S., C.S., and Norman | (¡stayed with Peters at her home. Peters stated she saw Norman grab C.S.’s crotch, butt, and breasts. C.S. also told Peters that she had sex with Norman the evening before.

Bossier City Police Detective Karen McDonald (“Detective McDonald”) testified that she interviewed D.S. According to Detective McDonald, D.S. admitted that she allowed Norman to move into her house when he was having family , problems. D.S. further acknowledged that she knew Norman and C.S. were having sex. D.S. stated C.S. would throw a fit and threaten to run away when she attempted to get Norman to leave the house. On cross-examination, Norman requested that D.S.’s recorded interview be played for the court. In the interview, D.S. stated Norman began coming over to D.S.’s house and spending a lot of time with C.S. D.S. explained that she once caught Norman in bed on top of C.S., and upon seeing D.S., Norman immediately jumped out of the bed with his pants around his ankles. At trial, D.S. testified that after C.S. admitted she was having sex with Norman, she took C.S. to a healthcare provider to get her birth control shots. D.S. asserted she never reported Norman’s inappropriate behavior with C.S.

c.S., 17 years old at trial, testified she dated Norman for almost a year before his arrest. C.S. stated she and Norman had vaginal sexual intercourse more than ten times. C.S. further admitted that she lied to the forensic interviewer at the Gingerbread House about not having sex with Norman in order to protect him. On cross-examination, C.S. confirmed that Gullette I T-and Peters looked into her window when she was having sex with Norman. At Norman’s request, C.S.’s Gingerbread House interview was played for the trial court. During the interview, C.S. denied multiple times that anything sexual occurred with Norman, and claimed Norman never slept or laid in her bed.

When viewed in a light most favorable to the prosecution, the state presented sufficient evidence to prove Norman committed felony carnal knowledge of a juvenile. At the time of the sexual encounters, Norman was 26 years old and C.S. was 13 years old. C.S. testified that she and Norman had vaginal sexual intercourse “more than ten” times, and her testimony alone is sufficient to prove the essential elements of the crime. Lewis, supra. While C.S. initially denied having sex with Norman, her trial testimony admitting her sexual relationship with Norman is corroborated by the testimony of her mother, D.S., as well as the testimony of her cousins, Gul-lette and Peters. It is not the duty of this court to assess C.S.’s credibility or reweigh the evidence presented at trial. As a result, we find the record is sufficient to sustain Norman’s conviction.

Motion for Continuance

After the first day of trial, and following Detective Poudrier’s testimony and the admission of Gullette’s and Peters’ statements, Norman noted his desire to subpoena Gullette and Peters because the state was not presenting them as witnesses. The state had no objection to Norman’s request, and the trial court issued instanter subpoenas for both Gullette and Peters. The next morning, Detective Poud-rier testified the police were unable to locate either Gullette or Peters, and the trial court concluded that “a good faith effort was made to secure the presence of these individuals at |strial.” Thereafter, Norman requested a continuance to attempt to personally locate the witnesses. However, the trial court denied Norman’s motion for a continuance, explaining he should have subpoenaed Gullette and Peters before trial to secure their presence.

Norman now argues that he was denied his right to cross-examine his accusers when Detective Poudrier testified regarding statements he received from Gullette and Peters. Norman asserts Gullette and Peters did not comply with the state’s subpoenas to testify at trial, and he was forced to play the women’s recorded statements to show the inconsistencies in their statements.

The Confrontation Clause of the Sixth Amendment provides that in “all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him,” and limits the admission of testimonial hearsay statements at criminal trials to situations when the declarant is unavailable to testify and the defendant has had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Confrontation errors are subject to a harmless error analysis. See Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); State v. Robinson, 01-0273 (La. 05/17/02), 817 So.2d 1131; State v. Cope, 48,739 (La. App. 2 Cir. 04/09/14), 137 So.3d 151, writ denied, 14-1008 (La. 12/08/14), 153 So.3d 440 (“The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.”). Furthermore, an irregularity or error cannot ]abe availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841.

Detective Poudrier’s testimony regarding the content of Gullette’s and Peters’ out-of-court statements violated Norman’s confrontation rights because the statements were testimonial in nature and neither woman was available for cross-examination. Nonetheless, any such confrontation error was undoubtedly harmless, because the remaining evidence presented by the state, including the trial testimony of C.S. and D.S., was sufficient to prove Norman’s guilt. Moreover, Norman failed to contemporaneously object to Detective Poudrier’s testimony regarding Gullette’s and Peters’ out-of-court statements, and in fact, chose to seek admission of both women’s recorded statements. La. C. Cr. P. art. 841. Based on Gullette’s and Peters’ recorded statements, cross-examination of either woman would not have been particularly helpful to Norman, because their statements were largely consistent and only differed in minor respects. Consequently, we find no error in the trial court denying Norman’s motion for continuance.

ERRORS PATENT

Our review of the record reveals two errors patent. First, the trial court failed to sufficiently advise Norman of the time within which to apply for post-conviction relief pursuant to La. C. Cr. P. art. 930.8. The correct time period for Norman to seek post-conviction relief is two years from the date his conviction and sentence become final. We hereby advise Norman that he has two years from the date his conviction and sentence become final to apply for post-conviction relief.

Secondly, Norman’s conviction of felony carnal knowledge of a juvenile, a “sex offense” under La. R.S. 15:541(24), requires that Norman be |insubjected to the sex offender notification and registration requirements. See La. R.S. 15:542. Although the trial court verbally advised Norman at sentencing that upon his release he would be required to register as a sex offender for “fifteen years on supervision,” the record does not indicate that the court complied with the written notification procedure outlined in La. R.S. 15:543. Because Norman was verbally notified of the requirements, remand is unnecessary. However, the trial court is directed to provide the appropriate written notice of the sex offender registration requirements to Norman within ten days of the rendition of this opinion, and to file written proof of Norman’s receipt of such notice in the record of the proceedings. La. R.S. 15:543(A); State v. Sule, 50,774 (La. App. 2 Cir. 08/10/16), 200 So.3d 396, 400, 268; State v. Diggs, 43,740 (La.App. 2 Cir. 12/10/08), 1 So.3d 673, writ denied, 09-0141 (La. 10/02/09), 18 So.3d 101.

CONCLUSION

For the foregoing reasons, Norman’s conviction and sentence are affirmed. By this opinion, the trial court is hereby instructed to provide Norman with the appropriate written notice of the sex offender registration requirements within 10 days of the rendition of this opinion and to file written proof of his receipt thereof in the record.

AFFIRMED WITH INSTRUCTIONS.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, DREW, STONE and BLEICH, JJ.

Rehearing denied.

      . In accordance with La. R.S. 46:1844(W), the victim and her mother will be identified by their initials only.

      . At trial, Detective Poudrier testified that Norman's date of birth is June 2, 1985, and C.S.’s date of birth is April 29, 1998. Norman does not dispute their ages, or that he and C.S. were not married.

      . D.S. pled guilty to the crime of contributing to the delinquency of a minor. At trial, D.S. testified that she was not obligated pursuant to a plea agreement to testify at Norman’s trial.