author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Roosevelt D. LEE, Appellant
    No. 51,508-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 9, 2017
    LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III Counsel for Appellant
    ROOSEVELT D. LEE, Pro Se
    JAMES E. STEWART, SR., District Attorney Counsel for Appellee
    TRENEISHA JACKSON HILL, JOSHUA K. WILLIAMS, REBECCA ARMAND EDWARDS, Assistant District Attorneys
    Before WILLIAMS, MOORE, and GARRETT, JJ.
   MOORE, J.

Roosevelt D. Lee appeals his convictions, by jury verdict, of aggravated battery, indecent behavior with juveniles, and contributing to the delinquency of juveniles, and his sentences totaling nine years at hard labor, plus fines and default time in lieu thereof. For the reasons expressed, we amend to vacate the default time but otherwise affirm.

FACTUAL BACKGROUND

The victim, KM, was 14 years old in May 2014 and lived with her mother and aunt in the Queensborough area of Shreveport. On May 5, she phoned her uncle, JM, in Monroe, to report that her boyfriend, "Roshawn," had put his hands on her and hit her with a coat hanger. JM was surprised, not knowing that KM even had a boyfriend, and drove to Shreveport to confront Roshawn. By the time he arrived, however, he and KM decided it was better to call the police.

Corporal Clinton Grigsby was dispatched to Roshawn's house, in the Lakeside area. When he knocked on the door, the person who answered said he was not Roshawn (he claimed that Roshawn was his cousin), but Cpl. Grigsby positively identified him as KM's boyfriend, from pictures on her cellphone. Roshawn's real name was Roosevelt Lee, and he was 46 years old. Cpl. Grigsby placed him under arrest and Mirandized him; Lee denied knowing who KM was. Lee also told a sex crimes unit investigator, Det. Deandre Bell, that he did not know KM.

The next day, KM was examined by Olivia Jones, a sexual assault forensic examiner at University Health. She told Ms. Jones that while she was at his house, Lee accused her of texting with other men and told her, "I'm gonna treat you like a ho'." He then pulled his pants down, tried several times to stick his penis in her mouth, grabbed her by the neck and choked her, struck her with a coat hanger and an extension cord, and stopped only when her cellphone rang. Ms. Jones confirmed that KM had scratches around her neck and on her left flank, and bruises on her right arm and right thigh, consistent with the conduct she described. Ms. Jones took a rape kit test of KM, including an oral swab, but no DNA was recovered. She was uncertain why she had not been called to examine KM until 24 hours after the initial report.

About two weeks later, Detective Michael Jones Mirandized Lee, again; this time, Lee admitted he had met KM walking on the street about two or three months earlier, and she started coming to his house to watch movies. He insisted they were "just friends," with no sexual relationship, but admitted that while "play fighting" with coat hangers, she had hit him, and he hit her back.

The state charged Lee with indecent behavior with juveniles, R.S. 14:81 ; second degree battery, R.S. 14:34.1 ; and contributing to the delinquency of juveniles, R.S. 14:92 A(7). By amended bill of information, the state upgraded the second charge to aggravated battery, R.S. 14:34. Lee proceeded to jury trial over three days in October 2015. In addition to the facts outlined above, both KM and Lee testified extensively.

KM testified that she knew Lee as "Roshawn," and met him in February 2014 as she was walking home from school and he offered her a ride. She told him she was 14; she thought he was around 50. She went to his house that day, and then almost daily; after a few attempts at "dry humping," they started having sex regularly, and she considered him to be her boyfriend. However, they argued often, and he slapped her for refusing to have sex with him. On May 5, while she was in the bathroom, Lee searched her cellphone and saw she had a 16-year-old boyfriend. Lee got angry and called her a "whore." He grabbed her, choked her, threw her on the bed, and hit her in the head, back and buttocks with an extension cord; he then grabbed a clothes hanger and hit her on the arm and head. Next, he pulled down his pants, positioned himself over her face, and tried to make her perform oral sex on him, but she kept her mouth closed. He eventually stopped, and dropped her off near her house. He threatened her not to tell anyone what had just happened. KM added that the last time they had sex was the previous day, May 4. On cross-examination, she admitted all her bruises healed within three or four days.

KM identified a CD containing photos and audio recordings of herself and Lee, taken from her cellphone, as well as images printed from the CD. She specifically identified a photo of her, taken May 5, 2014, showing a large welt on her buttocks, and one showing redness to her neck, where Lee had struck and choked her. In various audio clips, a male voice is heard to say, "Don't be taking no picture of my thing," "It's not hard," and "Come on"-according to KM, spoken by Lee when they were trying to have sex.

Lee elected to testify and gave a strikingly different account of his relationship with KM. He denied ever using the name "Roshawn" (he said his 11-year-old son has that name), and said that KM never used her real name: she said she was "NuNu." He met KM at the Save-A-Lot store on Jewella Avenue, where she and her mother were shopping, and he gave the mother a business card in case she needed a DJ for a party she was planning. KM came to his house four or five times, but only to borrow CDs or movies; there was no sexual intercourse and no inappropriate sexual contact between them. Lee admitted that he struck KM with a clothes hanger on May 5, but only because she would not stop hitting him. He testified that he is disabled, with diabetes and neuropathy, and had to defend himself. Finally, he never looked at KM's cellphone: it had a security code, and she never disclosed it.

On rebuttal, KM's mother testified that she had never met Lee, either at Save-A-Lot or anywhere else.

After deliberating under one hour, the six-member jury unanimously found Lee guilty as charged on all counts.

The court later sentenced Lee to seven years at hard labor for indecent behavior with juveniles, to a consecutive two years for contributing to the delinquency of juveniles, and to a concurrent two years for aggravated battery, for a total of nine years at hard labor. The court also imposed three concurrent fines of $1,000, with 60 days in jail in lieu of payment.

Lee filed motions for post verdict judgment of acquittal and reconsideration of sentence, both of which were denied. This appeal followed. Counsel has filed a brief advancing two assignments of error; Lee has filed a pro se brief advancing three.

DISCUSSION

Sufficiency of the Evidence

By his second counseled assignment of error, Lee urges the evidence was insufficient to support his convictions. He acknowledges that in the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a requisite factual conclusion, State v. Ford , 28,724 (La. App. 2 Cir. 10/30/96), 682 So.2d 847, writ denied , 99-0210 (La. 5/14/99), 745 So.2d 12. He contends, however, that of the state's seven witnesses, only KM had firsthand knowledge or direct evidence of the crimes of conviction; there was no physical, DNA or other scientific evidence to support her claims; and KM's testimony was conflicting and contradictory. He also contends, with respect to the aggravated battery charge, that KM's bruises went away very quickly, and hence the state failed to prove that the coat hanger and electrical cord were used in a manner "calculated or likely to produce death or great bodily harm," La. R.S. 14:2 (3).

The state responds that KM's testimony was internally consistent and reliable. Moreover, various witnesses and photos confirmed that she sustained bodily injuries in the encounter, and cellphone pictures and videos confirmed the intimate nature of her relationship with Lee.

The standard of 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. Bryant , 2012-0233 (La. 10/16/12), 101 So.3d 429. 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. Robertson , 2014-0945 (La. 6/30/15), 172 So.3d 616 ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied , 2009-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Kelly , 2015-0484 (La. 6/29/16), 195 So.3d 449 ; State v. Taylor , 47,400 (La. App. 2 Cir. 7/18/12), 103 So.3d 405, writdenied , 2012-1898 (La. 3/8/13), 109 So.3d 355. 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. Robinson , 2002-1869 (La. 4/14/04), 874 So.2d 66, cert. denied , 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004) ; State v. Freeman , 50,282 (La. App. 2 Cir. 4/13/16), 194 So.3d 1. 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. Reed , 2014-1980 (La. 9/7/16), 200 So.3d 291 ; State v. Kidd , 45,638 (La. App. 2 Cir. 11/3/10), 55 So.3d 90. Such testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence. State v. Joyner , 50,740 (La. App. 2 Cir. 6/22/16), 197 So.3d 724, and citations therein ; State v. Johnson , 96-0950 (La. App. 4 Cir. 8/20/97), 706 So.2d 468, writ denied , 98-0617 (La. 7/2/98), 724 So.2d 203, cert. denied , 525 U.S. 1152, 119 S.Ct. 1054, 143 L.Ed.2d 60 (1999). This principle is equally applicable to the testimony of sexual assault victims. State v. Joyner , supra ; State v. Seaton , 47,741 (La. App. 2 Cir. 4/10/13), 112 So.3d 1011, writ denied , 2013-1056 (La. 11/15/13), 125 So.3d 1102.

Indecent behavior with juveniles is defined, inter alia , as the commission of any lewd or lascivious act upon the person or in the presence of any child under the age of 17, where there is an age difference of greater than two years between the two persons, and is committed with the intention of arousing or gratifying the sexual desires of either person. Lack of knowledge of the child's age is not a defense. La. R.S. 14:81 A(1).

KM testified that she was born in April 2000; Lee testified that he was born in April 1968. This obviously proves that in May 2014 KM was under the age of 17, and Lee was more than two years her senior. KM testified unequivocally that they had frequent sexual encounters between February and May 2014, describing how the relationship started and evolved; crucially, her testimony was substantially similar to her statements to police detectives, to Nurse Jones and to her uncle. This consistent testimony was sufficient to prove that Lee committed a lewd or lascivious act on her person. In addition, the photos and audio clips from her phone corroborated that they were frequently together. The absence of DNA from her oral swab is not exculpatory, in light of her testimony that he never successfully ejaculated in her mouth on May 5. Finally, the jury could reasonably reject Lee's self-serving and improbable claim that he brought KM to his bedroom multiple times but never had sex with her. The evidence is sufficient to support this conviction.

Contributing to the delinquency of juveniles is defined, inter alia , as the intentional enticing, aiding, soliciting, or permitting, by anyone over the age of 17, of any child under the age of 17, to perform any sexually immoral act. La. R.S. 14:92 A(7).

At the risk of redundancy, we reiterate KM's candid testimony that she and Lee engaged in various sexual acts-vaginal intercourse, forced oral sex, "dry humping." Her testimony was substantially similar to the statements she gave to police detectives and Nurse Jones; her cellphone pictures and recordings showed her intimacy with Lee; and reasonable jurors using their human experience could rationally reject Lee's alternative account. The evidence is sufficient to support this conviction.

Aggravated battery is defined as a battery committed with a dangerous weapon. La. R.S. 14:34. A dangerous weapon includes any instrumentality which, in the manner used, is calculated or likely to produce death or great bodily harm. R.S. 14:2 A(3). Whether a weapon is dangerous is a factual question for the jury to determine, considering not only the character of the weapon, but by whom, upon whom, and in what manner it was used. State v. McClure , 34,880 (La. App. 2 Cir. 8/22/01), 793 So.2d 454. Numerous everyday items have been held to constitute a "dangerous weapon," in the manner used. State v. Sullivan , 49,183 (La. App. 2 Cir. 8/13/14), 146 So.3d 952 (tennis shoes worn while kicking the victim); State v. Pamilton , 43,112 (La. App. 2 Cir. 3/19/08), 979 So.2d 648, writ denied , 2008-1381 (La. 2/13/09), 999 So.2d 1145 (paint can and bourbon bottle); State v. Tyner , 41,937 (La. App. 2 Cir. 2/28/07), 953 So.2d 865 (metal pipe); State v. Malhiot , 41,175 (La. App. 2 Cir. 8/23/06), 938 So.2d 1158, writ denied , 2006-2352 (La. 4/27/07), 955 So.2d 682 (rum doused out of a bottle onto the victim's head, with a threat to set it on fire); State v. McClure , supra (a wooden stick the size of a metal fencepost); State v. Johnson , 598 So.2d 1152 (La. App. 1 Cir.), writ denied , 600 So.2d 676 (La. 1992) (red ink pen); State v. Munoz , 575 So.2d 848 (La. App. 5 Cir.), writ denied , 577 So.2d 1009 (La. 1991) (rubber-soled tennis shoe worn while kicking the victim).

KM firmly testified that Lee discovered she had a younger boyfriend, got mad, and beat her about the head, back, arms and posterior with a clothes hanger and a heavy extension cord. KM's uncle, Cpl. Grigsby and Nurse Jones all saw the bruises, and the photos depicted some of them. Lee even admitted using the clothes hanger on her, claiming self-defense. On this record, the jury was entitled to find that the coat hanger and extension cord, in the manner used, were calculated or likely to produce great bodily harm. The evidence is sufficient to support this conviction.

This assignment of error lacks merit.

Excessive Sentences

By his first counseled assignment of error, Lee urges the court erred by imposing harsh and excessive sentences totaling nine years at hard labor. He argues that the district court failed to consider the applicable mitigating factors, such as his lack of a significant criminal history and his severe health conditions, including diabetes and neurological disease. He also submits that the court should have considered his social history, age, contributions to society, and his family.

The state responds that the sentences are not excessive, given the vulnerability of the victim, the age of the defendant, and the fact (noted by the district court) that he could have been charged with more serious crimes, including carnal knowledge, sexual battery, or even rape.

Appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Marshall , 94-0461 (La. 9/5/95), 660 So.2d 819. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lobato , 603 So.2d 739 (La. 1992). No sentencing factor is accorded greater weight by statute than any other sentencing factor. State v. Taves , 2003-0518 (La. 12/3/03), 861 So.2d 144.

The second prong is constitutional excessiveness. A sentence violates La. Const. art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman , 99-1753 (La. 5/16/00), 769 So.2d 1158. The sentencing court has wide discretion in imposing a sentence within statutory limits, and such a sentence will not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7.

Maximum sentences are usually reserved for the worst offenders committing the most serious violations of the charged crimes. State v. Fruge , 2014-1172 (La. 10/14/15), 179 So.3d 579.

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. La. C. Cr. P. art. 883. Although concurrent sentences are presumed for such offenses, the sentencing court retains the discretion to impose consecutive sentences in cases where the offender's past criminality or other circumstances justify treating him as a grave risk to the safety of the community. State v. Walker , 2000-3200 (La. 10/12/01), 799 So.2d 461. Concurrent sentences arising out of a single course of conduct are not mandatory, and consecutive sentences for such offenses are not necessarily excessive. State v. Williams , 445 So.2d 1171 (La. 1984) ; State v. Lynn , 50,575 (La. App. 2 Cir. 5/18/16), 196 So.3d 607, and citations therein.

The district court did not order a presentence investigation report, but stated that it had reviewed the Art. 894.1 factors and the facts of the case. It specifically noted that Lee was 46 years old, and KM just 14, when the offense occurred; she was especially vulnerable given the apparent lack of parental guidance in her life; and Lee "preyed" on her while she was walking home from school. Crucially, on these facts the state could have charged Lee with much more serious crimes, including sexual battery, carnal knowledge, or rape; this justified imposing the maximum sentences for indecent behavior with juveniles and contributing to the delinquency of juveniles. We find the district court adequately considered the Art. 894.1 factors and the facts of the case.

Indecent behavior with juveniles, when the victim is not under the age of 13, is punishable by not more than seven years, with or without hard labor, and a fine of up to $5,000. La. R.S. 14:81 H(1). Lee obviously received the maximum for this offense, but in light the great age difference and KM's testimony that the lewd and lascivious acts of sexual intercourse occurred frequently for over two months, the district court did not abuse its discretion in finding him a "worst offender" and sentencing him accordingly.

Contributing to the delinquency of juveniles, when the conduct involved is performing any sexually immoral act, is punishable by not more than two years, with or without hard labor, and a fine of up to $1,000. La. R.S. 14:92 D. Again, Lee received the maximum, but given the prolonged incidence of his conduct, we cannot say the court abused its discretion.

We also find no abuse of discretion in directing these sentences to be consecutive: although it was one course of conduct, Lee engaged KM in many, many acts of indecent behavior and enticing her to perform sexually immoral acts over their three-month relationship. The court adequately justified this sentencing choice.

Aggravated battery is punishable by not more than 10 years, with or without hard labor, and a fine of up to $5,000. La. R.S. 14:34 B. The sentence imposed was on the lower end of the range and probably reflects the court's appreciation that KM's injuries were minimal, consisting of bruises that fully healed within three or four days. We perceive no abuse of discretion.

In addition to the hard time, the district court ordered Lee to pay concurrent fines of $1,000 and 60 days in jail in default. An indigent defendant cannot be subjected to default time in lieu of payment of a fine, costs or restitution. Bearden v. Georgia , 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) ; State v. Roebuck , 94-1127 (La. 6/30/95), 657 So.2d 1009. Indigence may be discerned from the record. State v. Pratt , 50,152 (La. App. 2 Cir. 12/30/15), 184 So.3d 816, writ denied , 2016-0123 (La. 1/25/17) 215 So. 3d 262, and citations therein. This court considers a defendant indigent when he is represented at trial by an indigent defender's office or a court-appointed attorney, and on appeal by the Louisiana Appellate Project. State v. Fontenot , 51,072 (La. App. 2 Cir. 1/11/17), 211 So.3d 1236, and citations therein. Lee meets each of these criteria, and thus his indigence is apparent from the record. We will therefore vacate the portion of the sentence ordering 60 days' jail time in default of payment of the fines.

In all other respects, the sentences are affirmed.

Denial of Self-Representation

By his first uncounseled assignment, Lee urges the court denied his Sixth Amendment right to proceed pro se, under Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). He contends he unequivocally invoked his right on October 22, 2015, by addressing the court, "I would like to file oral motion of pro se. I pro se myself." The court advised him to "stick with" his attorney, as the state had only one witness left; Lee complained, "But we fighting [sic ], judge." After further colloquy with the court, Lee agreed, "For the record then, I cannot pro se myself," and the court concluded, "No, you need to keep [your counsel]." Lee now contends this violated his right of self-representation.

The right to counsel may be waived, but the accused must know of the right and intentionally relinquish it. Faretta v. California , supra. For a defendant to enter into self-representation, his waiver of counsel must be clear and unequivocal. State v. Hegwood , 345 So.2d 1179 (La. 1977). There is no particular formula which must be followed by the trial court in determining whether the defendant has knowingly and intentionally waived counsel. State v. Carpenter , 390 So.2d 1296 (La. 1980). A defendant who waits until after the commencement of trial to assert for the first time his right to represent himself, after having acquiesced in representation by an attorney throughout pretrial procedures and the start of trial, cannot thereafter successfully assert that right unless he makes a showing that the prejudice to his legitimate interests overbalances the potential disruption of the proceeding already in progress. State v. Hegwood , supra ; State v. Yates , 44,391 (La. App. 2 Cir. 7/1/09), 15 So.3d 1260, writ denied , 2009-2096 (La. 8/18/10), 42 So.3d 398.

Lee raised his motion for self-representation well into the third day of trial , when the state had almost completed its case-in-chief. He had acquiesced in representation through 16 months of pretrial discovery and motions, through jury selection and the cross-examination of six witnesses, including KM. His request for self-representation was facially untimely. State v. Hegwood , supra ; State v. Yates , supra. Moreover, Lee disclosed, on questioning by the court, that he made this motion because his appointed counsel refused to ask a witness, Det. Bell, a question pertaining to discovery in Lee's civil suit against the detective. This falls far short of proving a legitimate interest that would outweigh the risk of disrupting the trial. The district court did not err in denying Lee's motion. This assignment lacks merit.

Ineffective Assistance of Counsel

By his second uncounseled assignment, Lee urges he was denied his Sixth Amendment right to effective assistance of counsel, as a result of a conflict of interest between his court-appointed counsel and himself. He argues that a conflict of interest may result in ineffective assistance, under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that he never waived his right to conflict-free counsel, knowingly, intelligently, or otherwise. He also provides a long exposition of the funding crisis afflicting Louisiana's public-defender system, suggesting that all public defense is inadequate.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry , 591 So.2d 774 (La. App. 2 Cir. 12/4/91). Courts assess any claim of ineffective assistance under the two-prong test developed by the U.S. Supreme Court in Strickland v. Washington , supra : whether counsel's performance was deficient, and whether the deficient performance prejudiced the defense. A defendant asserting ineffective assistance of counsel must identify certain acts or omissions of counsel to support the claim; general statements and conclusory charges will not suffice. Strickland v. Washington , supra ;

State v. Conner , 49,351 (La. App. 2 Cir. 11/19/14), 152 So.3d 209 ; State v. Jordan , 35,643 (La. App. 2 Cir. 4/3/02), 813 So.2d 1123.

On close examination, we find that Lee has identified not one single act or omission in support of his general claim that counsel was ineffective. The fact that he may have disagreed with counsel's decision not to cross-examine Det. Bell about matters of discovery in a civil suit falls far short of establishing a genuine conflict of interest and totally fails to establish any prejudice. He also has not specified any act or procedure, in or out of court, that was denied him because of budget constraints. This assignment lacks merit.

Improper Jury Instruction

By his third uncounseled assignment, Lee urges the district court erred in giving a constitutionally deficient jury instruction regarding reasonable doubt. He argues that the charge was "essentially identical" to the one held unconstitutional in Cage v. Louisiana , 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990).

The jury charge defined "reasonable doubt" as follows:

Reasonable doubt is doubt based on reason and common sense and is present when, after you have carefully considered all of the evidence, you cannot say that you are firmly convinced of the truth of the charge.

Contrary to Lee's assertion, this instruction does not suggest that in order to be "reasonable," doubt must create "grave uncertainty" or rise to a level of "moral certainty," points found to overstate the burden in Cage v. Louisiana , supra. Instead, the charge is identical to that approved by the Louisiana Supreme Court in State v. Harris , 2001-2730 (La. 1/19/05), 892 So.2d 1238, cert. denied , 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005), affirmed by this court in State v. Jasper , 28,187 (La. App. 2 Cir. 6/26/96), 677 So.2d 553, writ denied , 96-1897 (La. 2/21/97), 688 So.2d 521, and used as a model charge by Professors Cheney Joseph and P. Raymond Lamonica, Criminal Jury Instructions & Proceedings , 17 La. Civ. L. Treatise, 3 ed., § 3.3 (2016). The instruction was correct. This assignment lacks merit.

CONCLUSION

For the reasons expressed, Roosevelt D. Lee's convictions are affirmed. His sentences are amended to vacate the imposition of 60 days' jail time in default of the payment of fines, but are otherwise affirmed.

CONVICTIONS AFFIRMED. SENTENCES AMENDED TO VACATE DEFAULT TIME, BUT OTHERWISE AFFIRMED .

      The recordings were actually video clips but, KM said, she took them in the dark and they had no video component. The audio portions were played at trial.

      The transcript seems to indicate the fines were applied only to the indecent behavior and contributing to the delinquency charges, but the minute entry states that the fine also applied to the aggravated battery charge.

      These seven pages of Lee's pro se brief appear to be paraphrased, if not directly copied, from the petition in Joseph Allen, et al. v. John Bel Edwards, et al. , Docket No. 655,079, seeking class certification, declaratory judgment and injunctive relief, filed in the 19th Judicial District Court (East Baton Rouge) on February 6, 2017.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Randel I. ENGLISH, Appellant
    No. 51,505-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 9, 2017
    STEPHEN A. GLASSELL, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, MEKISHA S. CREAL, SENAE D. HALL, TOMMY J. JOHNSON, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, COX, and BLEICH (Pro Tempore ), JJ.
   WILLIAMS, J.

The defendant, Randel I. English, was charged by bill of information with driving while intoxicated ("DWI"), third offense, in violation of La. R.S. 14:98(D). Following a jury trial, the defendant was found guilty as charged. He was sentenced to serve five years at hard labor, with two and one-half years suspended. One year of the prison sentence was ordered to be served without the benefit of parole, probation or suspension of sentence. The trial court also imposed a fine of $2,000. Further, the court ordered the defendant to serve two years of supervised probation upon release from prison and placed special conditions on the defendant's probation. For the following reasons, we affirm the defendant's conviction. However, we vacate the defendant's sentence and remand this matter to the trial court with instructions to resentence the defendant in full compliance with the provisions set forth in La. R. S. 14:98(D).

FACTS

On October 18, 2013, the defendant, Randel I. English, was arrested for DWI. On November 18, 2013, the state filed a bill of information charging the defendant with DWI, third offense, in violation of La. R.S. 14:98(D). The bill of information identified two previous convictions, both on November 26, 2007, for DWIs that occurred on January 11, 2007, and on February 11, 2007. The defendant waived arraignment and entered a plea of not guilty. Due to numerous requests by defense counsel, the trial was continued until May 16, 2016.

At trial, Michael Mattingly, a taxi cab driver, testified as follows: on October 18, 2013, he was driving his taxicab downtown in Shreveport; the defendant "flagged [him] down" near Stray Cats Bar; the defendant entered his taxicab and instructed him to drive him to another bar called The Cub Lounge; he noticed that the defendant "had a hard time just getting into the cab"; when they arrived at The Cub Lounge (where the defendant's truck was parked), the defendant told him that he was going to drive himself home; he observed the defendant getting out of the taxicab and determined that the defendant "was obviously inebriated"; he advised the defendant "numerous times" that he should not be driving in his condition; he watched the defendant get into a dark gray Ford Ranger pickup truck and start the engine; he watched as the defendant "killed the engine three times" trying to "roll off"; he believed the defendant was having trouble driving the standard-shift vehicle; he called the police department to report a suspected intoxicated driver because he feared for the defendant's safety and the safety of others; and he had known the defendant for 10 years but he did not recognize him on the morning of the incident. Mattingly stated:

I feared for his safety or [the safety of] anyone else. I've actually had friends hit somebody while they were drunk. I've had people I knew get hit by drunk people. And he was way too intoxicated. I tried to advise him four or five times not to drive, but he was persistent.

On cross-examination, Mattingly testified that the defendant did not pay for the taxicab ride. He denied calling 9-1-1 because the defendant failed to pay the cab fare. Mattingly explained that he told the police officer that the defendant did not pay the cab fare because the officer asked him whether the defendant had paid.

Sergeant James Germain, a patrol supervisor for the Shreveport Police Department, testified as follows: on October 18, 2013, at approximately 4:45 a.m., he responded to a call from dispatch; he was informed by dispatch that a taxicab driver had reported that he had driven a customer to The Cub Lounge and the customer did not pay the cab fare, was highly intoxicated, was getting into a vehicle and was "fixing to drive away"; the caller had described the vehicle as a gray Ford Ranger pickup truck; he located the vehicle at an intersection near The Cub Lounge; he activated his mobile video system ("MVS") and pursued the truck; the defendant pulled over and stopped after "maybe 30 seconds"; the defendant exited the vehicle when he was given a verbal command to do so; another Shreveport police officer, Shane Prothro, was assigned to the DWI Unit; Ofc. Prothro arrived on the scene as he was stopping the defendant; and Ofc. Prothro performed field sobriety tests on the defendant.

On cross-examination, Sgt. Germain admitted that prior to stopping the defendant, he observed the defendant driving for approximately one-half mile, down several streets, taking several turns and negotiating a 60-90 degree curve. He also admitted that he did not see the defendant run off of the road or commit any traffic violation. Sgt. Germain testified that he had probable cause to stop the defendant due to the report of a theft (of the taxicab fare). He stated that he did not suspect the defendant of being intoxicated until the defendant exited his truck. Sgt. Germain testified that when the defendant exited the vehicle, he observed that he had a "slight waver to his stance[.]"

Ofc. Shane Prothro testified as follows: on the morning October 18, 2013, he was assigned to the DWI task force with the Shreveport Police Department; he responded to a call from Sgt. Germain, who told him that he was following a driver who was possibly impaired; he arrived on the scene in time to observe the defendant exiting his truck; the defendant "appeared to stumble out of the driver's side door" of his vehicle; the defendant approached Sgt. Germain's patrol vehicle when he was ordered to do so; he patted the defendant down and "detected the strong odor of an alcoholic beverage coming from him"; the odor of alcohol was "more pronounced" when [the defendant] was speaking towards [Ofc. Prothro]"; the defendant denied drinking alcohol that night; the defendant "appeared to be off-balance," and he was "swaying from side to side and front to back"; the defendant's "eyes were very glassed over and red" and his speech was slurred; his observations led him to believe the defendant was "extremely impaired, the highest level of impairment"; he performed a field sobriety test on the defendant; specifically, he performed the horizontal gaze nystagmus ("HGN") eye test, looking for a nystagmus, an involuntary jerking of the eyes, at certain points in the test, which indicates that a subject is impaired; the HGN results showed that the defendant exhibited six clues of intoxication; he also noticed that the defendant swayed with the movement of stimulus; the defendant was unable to recite the full alphabet, despite being given three opportunities to do so; he determined that the defendant was impaired after he was given the HGN eye test and the defendant's inability to recite the alphabet "just made my feelings about him being impaired even stronger."

Ofc. Prothro further testified as follows: he instructed the defendant to perform a "one-leg test," but the defendant refused to comply any further "without an attorney being present"; he determined that the defendant "was too impaired to be operating a motor vehicle in the public roadways"; he arrested the defendant and placed him in the backseat of the patrol car; the defendant appeared "very relaxed with his head down"; and when they arrived at the police station, the defendant refused to submit to a chemical blood alcohol test.

On cross-examination, Ofc. Prothro testified as follows: the defendant was cooperative during the traffic stop; the defendant produced his driver's license when requested to do so and he responded to the police officers' questions; the defendant walked to the patrol car when instructed and he did not "trip, fall or stumble" while doing so; various medical conditions can cause nystagmus, such as some types of astigmatism and head trauma ; he did not ask the defendant if he suffered from astigmatism prior to administering the eye test; he asked the defendant to complete a medical questionnaire when they arrived at the police station, but the defendant refused to do so and invoked his right to counsel; the defendant was placed in the backseat of the patrol car with his hands handcuffed behind him and without a seatbelt; when they arrived at the police station, he escorted the defendant to the "Intoxilyzer room," where DWI suspects are usually taken, advised the defendant of his Miranda rights, including his rights in connection with the Intoxilyzer test and reviewed the medical questionnaire with him; and the defendant "refused everything."

The Intoxilyzer room contains a camera that recorded the interaction between Ofc. Prothro and the defendant. The video recording was played in the presence of the jury during the cross-examination of Ofc. Prothro. After the video was played, Ofc. Prothro admitted that the recording did not show the defendant "fumbling or stumbling" as he walked into the Intoxilyzer room. He stated that the video showed that the defendant had "one little stumble, does a little bit of swaying while standing in the room, but otherwise was fairly erect and appears to be attentive." Further, he testified that he instructed the defendant to stand in one spot in the room while he asked him a series of questions; after each question he instructed the defendant to say, "I refuse" if he did not want to respond. He stated that the defendant responded to each question by stating, "I refuse." Ofc. Prothro admitted that the defendant was attentive, responsive to questions and gave "logical answers" based on the instructions given to him.

On redirect examination, Ofc. Prothro testified as follows: in his experience, people who are impaired can be cooperative and do not necessarily have to be combative; the defendant never told him that he had any health problems or eye conditions; he was unaware of any medical issues that would cause a strong odor of alcohol to emanate from a person; he uses a focal point in the Intoxilyzer room to determine if a person is swaying; he determined that the defendant was swaying while standing in the room; and there was nothing in the Intoxilyer room that would have caused the defendant to stumble.

Detective Danny Duddy, the supervisor of crime scene investigation unit for the Shreveport Police Department, testified as a fingerprint expert. Det. Duddy testified that he compared fingerprints from the two November 26, 2007 convictions, Criminal Docket No. 256764 and Criminal Docket No. 257434, for DWI, second offense, of a defendant named Randel English, with fingerprints obtained from the defendant in the courtroom. Det. Duddy concluded that the defendant was the same person convicted in both cases in 2007.

The defendant did not call any witnesses to testify. After deliberating, the jury found the defendant guilty as charged of DWI, third offense. Thereafter, the defendant filed a motion for a new trial and a motion for judgment of acquittal; the trial court denied both motions. Following a sentencing hearing, the trial court stated:

The Court will impose the mandatory fine of $2,000. As to this period of incarceration, the Court believes that five years at hard labor, [sic]. I will suspend two and one-half years. So it will be an evenly split sentence. Two and a half years is suspended. The other portion is unsuspended, and one year of that-one year of the two and a half years that is not suspended is also to be served as required by statute without the benefit of parole, probation or suspension of sentence. So that is two and a half and two and a half. Upon the completion of the unsuspended portion, the defendant is placed on active, supervised probation for a period of two years. Special conditions, that he only drive vehicles equipped with ignition interlock on any public road[.] Substance abuse and alcohol counseling and all other lawful conditions of probation as set forth under Code of Criminal Procedure Article 895. Court costs and fine may be assessed through inmate banking. If they're not satisfied, then any remaining balance will be a condition of probation.

The defendant now appeals.

DISCUSSION

The defendant contends the evidence was insufficient to support his conviction for DWI, third offense. He argues that the state did not have sufficient evidence to prove, beyond a reasonable doubt, that he operated a vehicle while intoxicated. According to the defendant, the video recordings introduced into evidence proved that he did not speak or behave as if he was intoxicated. Specifically, the defendant argues that the video recordings show that he did not "stumble, fumble," speak with slurred speech, argue with the police officers or "do any of the other manifestations of a person who is intoxicated."

The standard of appellate review of 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. 5/20/03), 851 So.2d 921, cert denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). 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. 2/22/06), 922 So.2d 517 ; State v. Robertson , 1996-1048 (La. 10/4/96), 680 So.2d 1165. On appeal, a reviewing court must view the evidence in the light most favorable to the prosecution, and must presume in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence. Jackson , supra .

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason , 43,788 (La. App. 2 Cir. 2/25/09, 3 So.3d 685, writ denied , 2009-0725 (La. 12/11/09), 23 So.3d 913, cert. denied , 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010) ; State v. Hill , 42,025 (La. App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied , 2007-1209 (La. 12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial 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. Barakat , 38,419 (La. App. 2 Cir. 6/23/04), 877 So.2d 223 ; State v. Owens , 30,903 (La. App. 2 Cir. 9/25/98), 719 So.2d 610, writ denied , 98-2723 (La. 2/5/99), 737 So.2d 747.

To convict a defendant based upon circumstantial evidence, every reasonable hypothesis of innocence must be excluded. State v. Barakat , supra , citing La. R.S. 15:438. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Burd , 40,480 (La. App. 2 Cir. 1/27/06), 921 So.2d 219, writ denied , 2006-1083 (La. 11/9/06), 941 So.2d 35.

At the time of the defendant's arrest, La. R.S. 14:98 provided, in pertinent part:

A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle *** when:
(a) The operator is under the influence of alcoholic beverages; or
(b) The operator's blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred centimeters of blood[.]
* * *

Thus, in this case, in order to support the defendant's conviction of DWI, the prosecution must prove that (1) the defendant was operating a vehicle and (2) he was under the influence of alcohol or drugs while doing so. La. R.S. 14:98(A)(1)(a) ; State v. Pickard , 40,422 (La. App. 2 Cir. 12/14/05), 918 So.2d 485 ; State v. Minnifield , 31,527 (La. App. 2 Cir. 1/20/99), 727 So.2d 1207, writ denied , 99-0516 (La. 6/18/99), 745 So.2d 19. To support a conviction of DWI, third offense, the state must also prove that the defendant has had two prior valid convictions, as defined in La. R.S. 14:98(F)(1), and that the prior convictions are not stale under La. R.S. 14:98(F)(2). State v. Pickard , supra ; State v. Inzina , 31,439 (La. App. 2 Cir. 12/9/98), 728 So.2d 458.

The defendant does not dispute his prior convictions for DWI. Therefore, the only issue on appeal is whether the evidence was sufficient to support his conviction in the instant matter.

It is well settled that behavioral manifestations, independent of any scientific tests, are sufficient to support a conviction of DWI.

State v. Henix , 46,396 (La. App. 2 Cir. 8/10/11), 73 So.3d 952 ; State v. Gage , 42,279 (La. App. 2 Cir. 8/29/07), 965 So.2d 592, writ denied , 2007-1910 (La. 2/22/08), 976 So.2d 1283 ; State v. Harper , 40,321 (La. App. 2 Cir. 12/14/05), 916 So.2d 1252. It is not necessary that the conviction be based upon a breath or blood alcohol test. The observations of an arresting officer may be sufficient to establish guilt. Intoxication is an observable condition about which a witness may testify. State v. Allen , 440 So.2d 1330 (La. 1983) ; State v. Henix , supra . Furthermore, a defendant's refusal to submit to a breath test is admissible to support a conviction for DWI; the weight of that evidence is left to the trier of fact. La. R.S. 32:666(A) ; State v. Dugas , 252 La. 345, 211 So.2d 285 (1968), cert denied , 393 U.S. 1048, 89 S.Ct. 679, 21 L.Ed.2d 691 (1969) ; State v. Henix , supra .

In the instant case, the defendant refused to undergo a breath or blood alcohol test. Consequently, his conviction rests solely upon the observations of the witnesses.

During the trial, Mattingly and Ofc. Prothro described the defendant's appearance and behavior on the morning of his arrest. According to Mattingly and Ofc. Prothro, the defendant's behavior was consistent with a person who is intoxicated. Mattingly testified that he was familiar with the defendant and described him as "obviously inebriated." He also testified that the defendant was unable to drive his vehicle because he was unable to keep the standard-shift vehicle in the proper gear. Further, Mattingly testified that he called 9-1-1 because he was concerned about the defendant's safety and the safety of others.

Ofc. Prothro, who is trained to identify persons who are impaired by alcohol or drugs, testified that he observed the defendant and noted that he emitted a "strong odor" of alcohol. He also testified that the defendant had stuttered speech and "glassy and red" eyes. Further, the officer testified with regard to administering field sobriety tests to the defendant. According to Ofc. Prothro, the defendant stumbled, swayed and failed the field sobriety tests. Based on that evidence, Ofc. Prothro opined that the defendant was "highly" intoxicated.

Further, the video and audio recordings introduced into evidence confirmed Ofc. Prothro's testimony. A review of those recordings reveals that the defendant had difficulty reciting the alphabet while he was on the arrest scene. He also appeared to stumble as he entered the Intoxilyzer room at the police station.

It is apparent from the verdict that the jury found the testimony of Ofc. Prothro and Mattingly to be credible. In addition, the jury was able to view the video evidence of the defendant firsthand. After reviewing the evidence in a light most favorable to the prosecution, we find that the jury had sufficient evidence to conclude that the defendant was driving while intoxicated. This assignment lacks merit.

The defendant also contends the trial court abused its discretion in denying his request to advise and instruct the jury with regard to the mandatory minimum sentence for DWI, third offense. He argues that he was prejudiced by the trial court's refusal to inform the jury of the "harsh penalties" for a DWI, third conviction, in light of the fact that minutes from the prior convictions show that the penalties for those convictions were "far more lenient" than the penalty for DWI, third offense. The defendant concedes that Louisiana law does not require a jury to be instructed on the penalties imposed. However, he cites State v. Gage , supra , to support his argument that the trial court abused its discretion by failing to instruct the jury on the penalties. According to the defendant, had the jury known of the harsh penalties for DWI, third offense, it may have returned a different verdict because there was no "scientific evidence" of his intoxication.

It is well settled that when the penalty imposed by the state is a mandatory one, upon the defendant's request, the trial court must inform the jury of the penalty and must permit the defense to argue the penalty to the jury. State v. Jackson , 450 So.2d 621 (La. 1984), citing State v. Hooks , 421 So.2d 880 (La. 1982) ; State v. Washington , 367 So.2d 4 (La. 1978). In other instances, the decision to deny an instruction or argument on the penalty for an offense is within the discretion of the trial judge. State v. Jackson , supra , citing State v. Williams , 420 So.2d 1116 (La. 1982) ; State v. Blackwell , 298 So.2d 798 (La. 1974) (on reh'g), cert. denied , 420 U.S. 976, 95 S.Ct. 1401, 43 L.Ed.2d 656 (1975) ; State v. Chatman , 43,184 (La. App. 2 Cir. 4/30/08), 981 So.2d 260 ; State v. Gage , supra ; State v. Green , 437 So.2d 302 (La. App. 2 Cir. 1983), writ denied , 443 So.2d 1121 (La. 1984). Sentence regulations, such as those relating to mandatory terms, parole or probation, form no part of the applicable law for the judge to charge the jury. State v. Prater , 337 So.2d 1107 (La. 1976) ; State v. Harris , 258 La. 720, 247 So.2d 847 (La. 1971) ; State v. Green , supra .

In State v. Gage , supra , the trial court allowed jury instructions regarding some of the sentencing provisions for DWI, fourth offense. Specifically, the trial court instructed the jury that, if the defendant was convicted as charged, he would be fined and imprisoned "from 10 to 30 years, sixty days" of which would be served without the benefit of probation, parole or suspension of sentence. The defendant appealed his conviction, arguing, inter alia , that his trial counsel was ineffective because he failed to object to the aforementioned jury charge which did not correctly identify the amount of time that the defendant would serve without benefits. This Court affirmed the defendant's conviction, finding that a jury charge regarding the mandatory minimum sentence was not one mandated by law, but was within the discretion of the trial court. State v. Gage , supra , at 609, citing State v. Jackson , supra . This Court also held that the incorrect portion of the jury charge did not prejudicially lead to the defendant's conviction. It concluded that the main thrust of the jury charge clearly revealed the possibility of the sentencing range of 10 to 30 years, which opened the door for the defendant to argue the harshness of the sentencing range in the hope of a verdict of a lesser included charge.

In State v. Chatman , supra , the defendant was convicted of possession of a firearm by a convicted felon. On appeal, he argued, in pertinent part, that the trial court erred in granting the state's motion in limine to prevent him from mentioning the potential sentencing range for the charged offense (not less than 10 but no more than 15 years at hard labor) during voir dire or argument. The defendant argued that preventing the jury from hearing information regarding the sentencing range "cheated" the jury from exercising its right of jury nullification and that the information was a part of the law. On appeal, this Court held that the defendant did not have a right to notify the jury of the sentencing range. Citing State v. Jackson , supra , this Court found that a sentence imposed with judicial discretion is the province of the trial court, not the jury, and is not the law of the case. We also found that a mandatory minimum sentence is not the same as a mandatory penalty that would entitle a defendant to a jury instruction or argument as to the sentencing range. Id. at 270-71. Further, we noted that in State v. Blackwell , supra , the Louisiana Supreme Court "ultimately concluded that it was not error for the trial court to refuse to instruct the jury on possible penalties in cases where the jury determines only issues of guilt or innocence and the trial court imposes the penalty because, in those cases, the penalty is simply of no concern to the jury." State v. Chatman , supra, at 270-71, quoting State v. Blackwell , supra , at 803-04. Consequently, we concluded that the trial court's refusal to allow a jury instruction or arguments to the jury on the penalty provisions of the offense was not reversible error "because it was not a miscarriage of justice, it did not prejudice the substantial right of the defendant, and it did not violate a constitutional or statutory right. State v. Chatman , supra, at 271.

In the instant case, the record reveals that on the day of trial, the defense requested permission to discuss sentencing for the offense with the prospective jurors during voir dire, mention sentencing in opening and closing statements and to have the jury instructed with regard to the sentencing range. The state objected to the defendant's request, citing State v. Johnson , 2001-2350 (La. App. 4 Cir. 6/12/02), 820 So.2d 1223, writ denied , 2002-1948 (La. 10/3/03), 855 So.2d 293, on the basis that the court is not required or mandated to instruct the jury regarding any mandatory sentence unless it is a life sentence. The trial court, citing State v. Johnson , supra , and State v. Lewis , 296 So.2d 824 (La. 1974), found that when the sentence is a "mandatory minimum," it is within the court's discretion whether to inform the jury of the penalty, but that it is generally disfavored. The trial court denied the defendant's request, stating:

And in the exercise of my discretion on that point, I would not permit reference to the mandatory minimum since it could in this Court's opinion only serve to violate the instruction from the jury charge that they are not to be influenced by sympathy, passion, prejudice or public opinion. They might think it's too harsh, and they might conversely think it is too lenient. And that should not be what they decide in either event since they are not the ones imposing the sentence. So the Court will deny the request-the defense request and instead issue an order that there is to be no mention by either side as to the range of penalties possible under the sentencing law of 14:98(D).

We find that the trial court did not abuse its discretion in denying the defendant's request for a jury instruction or argument regarding the mandatory minimum sentencing range for a conviction of DWI, third offense. Louisiana jurisprudence clearly holds that, except for those cases where the trial court has no judicial discretion in the sentence imposed, it is not error for the trial court to refuse to instruct the jury regarding the penalty for an offense. See State v. Blackwell , supra ; State v. Chatman , supra . Any penalty the trial court might have imposed in this case had no impact on the jury's determination of guilt or innocence. This assignment lacks merit.

ERROR PATENT

In accordance with La. C. Cr. P. art. 920, we have reviewed this record for errors patent. We have found errors with regard to the defendant's sentence. Specifically, the sentence is illegally lenient because the trial court failed to comply with the sentencing provisions set forth in La. R.S. 14:98(D) (as it existed at the time of the offense) in the following regards: (1) the court failed to order the defendant to serve the entirety of the suspended portion of the sentence under supervised probation pursuant to subsection (1)(a); (2) the court failed to order the defendant to participate in 30 eight-hour days of court-approved community service activities pursuant to subsection (1)(b); the court failed to order that the defendant be subjected to a period of home incarceration during his supervised probation pursuant to subsections (1)(c) and (3); and the court failed to order that the defendant be required to obtain employment pursuant to subsection (3)(b). Furthermore, although the trial court ordered the defendant to undergo substance abuse and alcohol counseling, it did not specifically order him to participate in one of the two mandated substance abuse programs mandated by La. R.S. 14:98(D)(1)(b)(i)-(ii).

The requirements set forth in the previous paragraph are not corrected automatically by operation of La. R.S. 15:301.1, which applies to determinate terms of a sentence to be served without benefits. See State v. Williams , 2000-1725 (La. 11/28/01), 800 So.2d 790 ; see also State v. Hotard , 44,431 (La. App. 2 Cir. 6/24/09), 17 So.3d 64. Although neither the state nor the defendant raised this sentencing error in either the trial court or on appeal, this Court may notice illegally lenient sentences on error patent review. La. C. Cr. P. art. 882 ; State v. Payne , 47,481 (La. App. 2 Cir. 12/12/12), 108 So.3d 174 ; State v. Smith , 44,011 (La. App. 2 Cir. 4/8/09), 7 So.3d 855. Accordingly, we vacate the defendant's sentence and remand this matter to the trial court with instructions to resentence the defendant in full compliance with the provisions set forth in La. R. S. 14:98(D) in effect at the time of the commission of the offense.

CONCLUSION

For the foregoing reasons, we affirm the defendant's conviction. We vacate the defendant's sentence and remand this matter to the trial court with instructions to resentence the defendant in full compliance with the provisions set forth in La. R. S. 14:98(D).

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

      The MVS recorded the pursuit and the stop. The video recording was admitted into evidence and played for the jury without objection.

      Ofc. Prothro stated, "On all three [alphabet] tests, [the defendant] was able to recite A, B, C. And then on all three tests he would pause after C, and he would mumble a couple of additional letters. I believe J, K, L, maybe. And then he would pause again."

      During Det. Duddy's testimony, the state submitted into evidence copies of the bills of information and minutes from both 2007 convictions, which reflected that the defendant had pled guilty to both charges, was informed of his constitutional rights and was represented by counsel during the plea colloquy.

      La. R.S. 15:438 provides:
      The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

      At the time of the defendant's arrest, La. R.S. 14:98(F)(1) provided:
      For purposes of determining whether a defendant has a prior conviction for violation of this Section, *** a conviction under the laws of any state or an ordinance of a municipality, town or similar political subdivision or another state, which prohibits the operation of any motor vehicle *** while intoxicated, while impaired, or while under the influence of alcohol, drugs, or any controlled dangerous substance shall constitute a prior conviction. This determination shall be made by the court as a matter of law.

      At the time of the defendant's arrest, La. R.S. 14:98(F)(2) provided:
      For purposes of this Section, a prior conviction shall not include a conviction for an offense under this Section *** if committed more than ten years prior to the commission of the crime for which the defendant is being tried and such conviction shall not be considered in the assessment of penalties hereunder[.]

      At the time of the defendant's arrest, La. R.S. 32:666(A)(2) provided, in pertinent part:
      (2) [A] person under arrest for a violation of R.S. 14:98 *** may refuse to submit to such chemical test or tests, after being advised of the consequences of such refusal *** subject to the following:
      ***
      (c) Evidence of his refusal shall be admissible in any criminal action or proceeding arising out of acts alleged to have been committed while the person, regardless of age, was driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of alcoholic beverages or any abused substance or controlled dangerous substance[.] ***

      Whether Mattingly was truly concerned about the defendant driving a vehicle while intoxicated or about not receiving his cab fare was a credibility question for the jury and not relevant to the central issue of whether the defendant was operating a vehicle while intoxicated.


author: BROWN, C.J.

text:
    STATE of Louisiana IN the INTEREST OF K.K.
    No. 51,501-JAC
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 9, 2017
    KELLIE ARTHUR CARRELL, In Proper Person
    GILLEY & GILLEY, By: Patricia D. Gilley, Counsel for Mother-Appellant
    DEPARTMENT OF CHILDREN AND FAMILY SERVICES, By: Kimberly S. Smith, Counsel for State-Appellee
    CHILD ADVOCACY PROGRAM, By: Nancy G. Cooper, Counsel for Child-Appellee
    WILLIAM A. HAYNES, Counsel for Father-Appellee
    Before BROWN, DREW, and PITMAN, JJ.
   BROWN, C.J.

In this child in need of care proceeding, the mother has appealed from a juvenile court judgment that (1) denied the mother's motion to modify a previously entered disposition and a permanency hearing judgment, both of which placed her child in the legal custody of the child's adult brother; and (2) granted the child's motion for guardianship. For the reasons set forth below, we affirm the judgment of the juvenile court.

FACTS AND PROCEDURAL HISTORY

K.K., who was 11 years old, was removed from her mother K.A.'s custody on August 8, 2014, based on allegations that K.K. was a child in need of care pursuant to La. Ch. C. art. 606(A) due to neglect, lack of supervision and inadequate shelter. Because of instances of domestic violence between the mother and her ex-husband, he had secured a restraining order against her. After a recent altercation, the mother was arrested and detained overnight for violation of the restraining order. Because the mother and her daughter had been kicked out of the home they had previously shared with the mother's ex-husband, the child was forced to find a place to stay with neighbors while her mother was in custody. Also included in the child in need of care allegations were concerns about the effects that the mother's neglect of her mental health issues had on the child.

The child was placed in the custody of the Louisiana Department of Children and Family Services ("DCFS"). A continued custody hearing was held on August 12, 2014. The juvenile court vacated the custody of the DCFS and granted custody of K.K. to her adult brother, Chad Cherry, a resident of Colorado, pursuant to La. Ch. C. art. 627(B).

On October 24, 2014, after an evidentiary hearing, the mother stipulated that the child was a child in need of care. The juvenile court accepted the stipulation and adjudicated the child as a child in need of care under Title VI of the Louisiana Children's Code.

A disposition hearing was held on November 21, 2014. The juvenile court found that the child continued to be in need of care and entered a judgment of disposition which, inter alia , maintained custody of the child with her brother and listed reunification as the case plan goal. The court minutes also show that the judge entered an order allowing the mother to communicate with the child via text messaging and by telephoning the mother once every other week.

In a motion for modification of visitation filed by counsel for the child on March 12, 2015, it was alleged that the phone calls and texts from the mother were adversarial in nature and stressful to the child. Attached to the motion was a copy of a letter in support from the child's counselor in Colorado. After a contradictory hearing held on March 31, 2015, the visitation order was revised to allow contact between the child and the mother only if or when initiated by the child.

A permanency hearing was held on August 6, 2015. The DCFS report to the court indicated that the mother had secured housing and employment. The mother advised the court that she had begun counseling with a new therapist, Shari Moncla, and her counsel requested additional time during which her client could demonstrate compliance with her case plan. The juvenile court agreed to give the mother additional time before closing the case and declined to approve reunification as a case plan goal at that time. Thus, the "Permanency/Case Review Judgment" rendered on August 19, 2015, did not contain a ruling setting forth the court's findings regarding the permanent plan that it considered to be in the best interest of the child. The court set the matter for a case review hearing on October 29, 2015.

Evidence was adduced at the review hearing on October 29, 2015. The mother's attorney filed a motion for a continuance and an objection to the latest case plan filed by the DCFS; this plan had as its goal guardianship with the child's older brother rather than reunification with the mother. The motion for continuance was granted, and the matter was reset for a review hearing on December 11, 2015.

At the review hearing, counsel for the mother filed a motion to modify disposition pursuant to La. Ch. C. art. 714. In her motion, the mother reiterated her objection to the latest case plan proposed by DCFS, and asserted that her counselor was available to testify as to her significant progress in treatment. Attorneys for the other parties sought a continuance as they were served with the motion and supporting memorandum in court. The matter was reset, and the parties were informed that a contested hearing would be held on January 28, 2016. Prior to this hearing, counsel for the child filed a motion for guardianship.

The hearing on the parties' competing motions, both of which addressed the issue of the appropriate permanency plan for the child that had been left unresolved by the court at the August 6, 2016, hearing, took place over the course of several days, with live testimony from witnesses, before concluding on March 30, 2016. After receiving memoranda from the parties, the juvenile court rendered its judgment on October 31, 2016, denying the mother's motion to modify disposition and granting the child's motion to have her brother Chad appointed as her guardian. The judgment also relieved the DCFS from further involvement in the case. The mother filed the instant appeal.

DISCUSSION

In her first assignment of error, the mother asserts that the juvenile court erred in granting custody of the child to her half-brother Chad at the continued custody hearing held on August 12, 2014. This assignment of error is without merit. As set forth in La. Ch. C. art. 330 :

(A) An appeal may be taken from any final judgment of a court and shall be to the appropriate court of appeal.
(B) In ... child in need of care proceedings pursuant to Title VI ... an appeal may be taken only after a judgment of disposition . The appeal shall include all errors assigned concerning the adjudication and disposition. (Emphasis added).

In her second assignment of error, the mother argues that the juvenile court erred in denying her motion to modify disposition, which granted custody of the child to her half-brother, Chad. The mother urges this Court to reverse the juvenile court's judgment granting guardianship to Chad and order the immediate return of the child so mother and daughter can reconnect and rebuild their lives together.

The purpose of Title VI of the Children's Code, entitled "Child in Need of Care," is "to protect children whose physical or mental health and welfare are substantially at risk of harm by physical abuse, neglect, or exploitation and who may be further threatened by the conduct of others[.]" La. Ch. C. art. 601 ; State in Interest of A.H. , 51,053 (La. App. 2 Cir. 09/28/16), 206 So.3d 1081, writ denied , 16-2017 (La. 01/09/17), 214 So.3d 867 ; State ex rel. L.M. , 46,078 (La. App. 2 Cir. 01/26/11), 57 So.3d 518. The health, safety, and best interest of the child shall be the paramount concern in all proceedings under Title VI. Id.

The trial court may modify a judgment of disposition on its own motion or on the motion of the district attorney, the department, the child or his/her parents. La. Ch. C. art. 714. A judgment of disposition may be modified if the court finds that the conditions and circumstances justify the modification. La. Ch. C. art 716. The burden of proving justification for modification of a custody disposition of a child earlier found in need of care is on the party who seeks to modify the disposition of custody. State in the Interest of Tooraen , 397 So.2d 69 (La. App. 2 Cir. 1981) ; Fowler v. Fowler , 98-953 (La. App. 3 Cir. 12/09/98), 722 So.2d 125 ; State in the Interest of S.G. , 95-2063 (La. App. 1 Cir. 03/25/96), 676 So.2d 109.

Louisiana Children's Code article 702 provides in part:

C. The court shall determine the permanent plan for the child that is most appropriate and in the best interest of the child in accordance with the following priorities of placement:
(1) Return the child to the legal custody of the parents within a specified time period consistent with the child's age and need for a safe and permanent home. In order for reunification to remain as the permanent plan for the child, the parents must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care.
(2) Adoption.
(3) Placement with a legal guardian.(4) Placement in the legal custody of a relative who is willing and able to offer a safe, wholesome, and stable home for the child.
(5) Placement in the least restrictive, most family-like alternative permanent living arrangement. The department shall document in the child's case plan and its report to the court the compelling reason for recommending this plan over the preceding higher priority alternatives.
D. The trial court shall consider a child's need for continuing contact with any relative by blood, adoption or affinity with whom the child has an established and significant relationship as one of several factors in determining the permanent plan that is most appropriate and in the best interest of the child.
E. The trial court shall determine whether the department has made reasonable efforts to reunify the parent and child or to finalize the child's placement in an alternative safe and permanent home while considering that the child's health and safety will be the paramount concern in the court's determination of the permanent plan.

Permanent placement is defined in the Children's Code as: (1) return of the legal custody of the child to his or her parent(s); (2) placement of the child with adoptive parents pursuant to a final decree of adoption; or (3) placement of the child with a legal guardian . La. Ch. C. art. 603(22). (Emphasis added).

A juvenile court's determination that a parent has not made significant measurable progress toward achieving the goals of his/her case plan, as required by La. Ch. C. art. 702(C)(1), has been held sufficient to support the permanent placement of a child outside the parental home. See State in the Interest of T.B., 16-215 (La. App. 5 Cir. 09/22/16), 202 So.3d 555 ; State ex rel. E.F., Jr. , 10-1185 (La. App. 1 Cir. 10/29/10), 49 So.3d 575.

After a child has been adjudicated to be in need of care, a motion for guardianship may be filed by the department, parent, counsel for the child or person named as a successor guardian, or the department may submit a case plan along with the case review report to the court and all counsel of record recommending guardianship. La. Ch. C. art. 720(A). The purpose of guardianship is to provide a permanent placement for children when neither reunification with a parent nor adoption has been found to be in their best interest; to encourage stability and permanence in the lives of children who have been adjudicated to be in need of care and have been removed from the custody of their parent; and to increase the opportunities for the prompt permanent placement of children, especially with relatives, without ongoing supervision by the department. La. Ch. C. art. 718.

An appellate court's review of a juvenile court's permanent placement determination is governed by the manifest error standard. State in Interest of N.C. , 50,446 (La. App. 2 Cir. 11/18/15), 184 So.3d 760 ; State in Interest of C.S. , 49,955 (La. App. 2 Cir. 03/18/15), 163 So.3d 193 ; State ex rel. C.M. v. Willis , 41,908 (La. App. 2 Cir. 12/27/06), 946 So.2d 316, writ denied , 07-0190 (La. 02/16/07), 949 So.2d 413 ; State in Interest of T.B., supra .

As set forth above, La. Ch. C. art. 702(C) orders that the trial court determine the permanent placement that is most appropriate and in the best interest of the child. In order for reunification to remain as the permanent plan for the child, the parent(s) must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care. La. Ch. C. art. 702(C)(1). To find that a parent has made significant and measurable progress on a case plan, the record must show a reasonable expectation of reformation by the parent. State ex rel. P.A.P. , 44,221 (La. App. 2 Cir. 02/04/09), 4 So.3d 182. Reformation requires more than mere cooperation with the department. The parent must have altered or modified in a significant way the behavior that was the basis of the child's removal. State in Interest of S.M. , 98-0922 (La. 10/20/98), 719 So.2d 445 ; State ex rel. J.B. v. J.B., Jr. , 35,846 (La. App. 2 Cir. 02/27/02), 811 So.2d 179.

In its judgment of guardianship rendered on October 31, 2016, the juvenile court held, inter alia :

THIS MATTER having come for hearing on the Motion by [K.A.], mother of the above referenced child, [K.K.], to Modify the Disposition rendered by this Court on November 21, 2014, and the Permanency Hearing Judgment rendered August 6, 2015, both placing the child in the legal custody of Chad Cherry, adult brother of the child; the Court also hearing the child's competing Motion to Modify seeking a Guardianship with Chad Cherry;
The Court having heard testimony and received other evidence on both Motions on various dates between January 28, 2016, and March 30, 2016; the parties having submitted briefs after the preparation of a transcript of the proceedings;
The Court finding that [K.A.] has not met her burden to show that the previously ordered successful relative placement of the child is now contrary to the child's best interest; the Court further finding that removal of the child from the stable, loving, and wholesome environment of her adult brother and his wife would be contrary to her best interest; the Court further finding that the grounds for guardianship under Children's Code Article 722 have been proven by clear and convincing evidence and that guardianship with Chad Cherry is in the child's best interest, with a plan of continued contact with and support from the mother as the twelve year old child matures;
IT IS ORDERED, ADJUDGED AND DECREED that the Motion to Modify the Judgment of Disposition filed by [K.A.] is hereby dismissed.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Motion for Guardianship with Chad Cherry filed by counsel for the minor child, [K.K.], is hereby granted and remains in effect until the child's 18th birthday unless modified by this Court, which retains exclusive jurisdiction over the custody and placement of [K.K.]. The Department of Children and Family Services supervision is hereby vacated.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED, in order to reestablish and promote healthy communication between the mother and child, that [K.A.] may send written communication by mail to the minor child at reasonable frequency addressed to Chad Cherry, who as Guardian, shall review the communication and exercise his reasonable judgment as to whether to pass said communication on to [K.K.]. ... The guardian shall not interfere with any communication initiated by [K.K.] with her mother and shall facilitate same by letter, telephone or computer. [K.A.] may request telephone and/or computer contact and visitation with [K.K.] as their relationship matures, through the Court's social worker or by motion through counsel.

The judge issued written reasons for judgment in which he further explained his findings. Specifically, the court wrote:

The Court has made findings that the mother, did not carry her burden of proof to modify the disposition placing the child in the legal custody of the child's adult brother and his wife in Colorado. The Court found that this custodial placement has been extremely beneficial for the child, stabilizing her life and providing much needed structure in which the child is thriving.
The Court also found that, while the mother has sustained employment and a stable place to live, she has consistently refused to acknowledge her past behavioral instability, her continued exposure of the child to her own domestic violence with her latest partner, and ignores her serious need for intensive mental health treatment. Allegations of physical abuse against the child committed by the mother surfaced after the initial removal, allegations which the mother reluctantly admitted but failed to obtain counseling to resolve.
While the mother argued that the Court should not have placed the child out of state with the adult brother, the Court was required by Children's Code Article 627(B) to place the child with a relative who could provide a good home for the child as an alternative to being with strangers in foster care. The Court made this determination at the Continued Custody Hearing, at the Disposition, and at the Permanency Hearing. The mother did not appeal these Judgments and stipulated in court and in argument to the appropriateness of the removal of the child from the mother.
....
[T]he Court, looking forward at Disposition, could not conclude that the mother would be unable to rehabilitate herself regarding her mental health treatment and family issues. Accordingly, while not required by law, the Court exercised its discretion to allow the mother this opportunity and attempted to afford her a reasonable opportunity by ordering the Department of Children and Family Services to assist with a case plan of services and supervision and reporting to the Court. The Court ultimately found, however that the mother did not cooperate with the mental health treatment deemed necessary. ... She also did not deal with the physical abuse issues, and did not act reasonably in exercising the Court authorized contact with her child. Rather, she regressed to blaming [K.K.'s] adult brother and sister, whose only fault was to come to the rescue of their 11-year-old baby sister.
Accordingly, it was contrary to the best interest of the child to return the child to her mother.
The child's interest in the stability and structure offered by her adult brother is clearly paramount to the desire of the mother to disrupt this placement without having worked to alleviate her mental health needs and her physical abuse issues. While the Court remains hopeful that as the child matures, she will be better able to cope with her mother and develop a healthy relationship, considering the mother's lack of cooperation and the dysfunctional relationship with her adult children, the Court is no longer optimistic this will occur. Nevertheless, the Court's Judgment sets up parameters within which this can occur with the child's emotional safety being protected by her brother as guardian and the Court's Social Worker to assure fairness to the mother.

After a thorough review of the record and due consideration of the arguments of the parties on appeal, this Court does not find that the juvenile court was manifestly erroneous in denying the mother's motion to modify disposition and in concluding that guardianship was the permanent plan that is the most appropriate and is in the child's best interest.

CONCLUSION

For the reasons set forth above, we affirm the judgment of the juvenile court awarding guardianship of the child, K.K., to Chad Cherry.

AFFIRMED.

      La. Ch. C. art. 627(B) provides in part that if a child is not returned to the parents, the court shall place the child in the custody of a suitable relative unless the court has made a specific finding that such placement is not in the best interest of the child.