author: GRAVOIS, J.

text:
    STATE of Louisiana v. Marcus HARRIS
    NO. 17-KA-78
    Court of Appeal of Louisiana, Fifth Circuit.
    October 25, 2017

      ' COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Bou-dreaux, Gretna, Andrea F. Long, Lynn Schiffman, Douglas E. Rushton
    COUNSEL FOR DEFENDANT/APPELLANT, MARCUS HARRIS, Jane L. Beebe
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert M. Murphy
   GRAVOIS, J.

11 Defendant, Marcus Harris, appeals his conviction of one count of forcible rape of a juvenile, in violation of La. - R.S. 14:42.1. For the following reasons, we affirm defendant’s conviction and sentence.

PROCEDURAL HISTORY

‘On December 12, 2014, defendant, Marcus Harris, was charged in a bill of information filed by the Jefferson. Parish District Attorney with one count of forcible rape of a juvenile (DOB 4/17/95), in violation of La. R.S. 14:42.1. Defendant pled not guilty at his arraignment on December 15,2014;

• Trial commenced on September 6, 2016 before a twelve-person jury that found defendant guilty as charged. On September 19, 2016, defendant filed a motion for a new trial and post-verdict judgment of acquittal, which was denied on September 26,. 2016, On October 6, 2016, the trial court sentenced defendant to thirty years imprisonment at hard labor.,Also on October 6, 2016, the State filed a habitual offender bill of information, alleging defendant to be a fourth felony offender. Subsequently, on October 17, 2016, the State amended the habitual offender bill of information, alleging defendant to be a second felony offender, to which defendant stipulated. On that same day, the trial court vacated the original sentence and resentenced defendant under the habitual offender statute (La. R.S. 15:529.1) to thirty years imprisonment at hard labor without the benefit of -probation, parole, or suspension of sentence. On October 18, 2016, defendant filed a motion -for an appeal, which was granted by the trial court on October 20,. 2016. This appeal followed.

| pFACTS

Cynthia Deviney was the school counsel- or at Bissonet Plaza Elementary School in September 2009. During her time as school counselor, she begari to counsel A.R, and her half-sister, R.G. Ms. Deviney explained that she counseled both girls regarding their behavior—their lack of focus—-and assisted - them with homework. She counseled them at school and also at their home nearby on Kawanee Avenue. She described that after a successful first and second home visit with the girls, their father (defendant), and Penny Myers (defendant’s live-in girlfriend at the time), she returned a third time but was denied entrance into the home. She recounted that “the girls were very upset that [she] was there” and that they told her that their “daddy ha[d] absolutely forbidden” her to come into the house. After that, she just met and worked with the girls after school.

Ms. Deviney testified that subsequently, on March 1, 2010, R.G. came to see her, and “she was very, very, very upset,” Ms. Deviney described that she had “never seen her like that before.” After Ms. Devi-ney asked R.G. what was the matter, R.G. told Ms. Deviney that “her father had molested her.” R.G. provided Ms. Deviney with details about what had happened to her the night before. R.G. also told -Ms. Deviney that it had happened three times before the incident the previous night. Ms. Deviney also spoke with A.R., who was reluctant at first, but told Ms, Deviney that her “father did it to [her]” and that “he stuck it to [her].” After these disclosures, Ms. Deviney called the police and -the Department of Child and Family Services (“DCFS”), who arrived at the school and interviewed the girls.

[ ¡¡Deputy Eric Meaux with the Jefferson Parish Sheriffs Office responded to the call regarding a report of two juveniles “reporting rape” at Bissonet Plaza Elementary School on March 1, 2010. After his arrival at the school, Deputy Meaux spoke with Ms. Deviney, who informed him that the girls “were making a report that they had been raped by their father.” He spoke separately with both A.R. and R.G.: R.G. provided details consistent with what Ms. Deviney told him, and while A.R. disclosed inappropriate acts, she did not provide details and “was very distant and withdrawn during questioning.” After he spoke with the girls, Deputy Meaux turned the case over, to the detectiyes in the Personal Violence Unit.

Detectives Kay Horne and Randall Fernandez with the Jefferson Parish Sheriffs Office Personal Violence Unit participated in the investigation regarding defendant, A.R., and R.G. When Detective Horne arrived at the school, she met with each of the girls. She testified that A.R. told her that “the night before that her . father had entered her room and stuck his stuff inside of her.” She testified that R.G. disclosed sexual abuse by her father and that the information she provided was consistent with what she told Ms. Deviney and Deputy Meaux.

At some point later that day, defendant and Ms. Myers arrived at the school, and Ms. Deviney alerted them to the allegations. Ms. Deviney described that defendant was-“very upset” and said he “would never do anything to [his] girls.” She testified that he and Ms. Myers eventually left the .school. Deputy Meaux testified that while he. was speaking with A.R., Ms. De-viney came in to tell him that defendant and Ms. Myers arrived at the school, she apprised them of the situation, and sent them home. He described: .that if he had .encountered defendant at the school, he would have placed him under arrest. After speaking with the girls, another officer in Detective Horne’s unit applied for a search warrant of the girls’ home at 6404 Kawan-ee Avenue. She executed the warrant later that day and Rencountered Ms. Myers at the home; defendant was riot present at the home at that time.,

A.R., sixteen years old at the time of trial, admitted that when she was nine, she told Ms. Deviney something about her “dad ... touching [her] or something,” but that the night before, her sister, R.G;, “told [her] to tell something.” A.R. explained that R.G. threatened her, telling her if she did not tell, R.G. would “kill [her].” At trial, A.R. testified that her father never touched her and that she had lied to Ms. Deviney when she told her that he did. ■

R.G., twenty-one years old at the time of trial, testified that she started living with defendant in 2009 when she was fourteen; prior thereto, she lived with her mother and stepfather. She stated that her stepfather was physically abusive to her and her mother, which is why she went to live with defendant. She explained that she liked living with her- father until “weird stuff’ started happening. She elaborated that defendant told her he wanted her to be the “woman of the house,” and that at night before bed, he tried to kiss her on the mouth instead of oil her cheek. She explained that “he’d try to get a ktés, and it was weird. It was always when Ms. Penny wasn’t home.” She testified that she talked to A.R. about the “weird stuff,” and A.R. told her that defendant “tried to put it in her butt one time.” R.G. expressed to A.R. the need to tell somebody, but did not say anything right away. She expressly denied threatening A.R. about telling' someone.

R.G. described that a few nights later, defendant came into her room and started to “tickle [her].” She recalled that defendant rolled her over onto her stomach, “climbed over [her]” and tried to pull her pants down; she was holding them, and he pulled them “down hard” and it “hurt [her] finger.” She testified that “he then started to have intercourse with [her].”‘ She elaborated, stating, “he stuck his thing inside of me ... [his] penis ... in my vagina.” She described that she did not “do nothing because [she] was scared,” and that “it hurt,” and that she did not Uscream “because [she] was scared” and “didn’t know what was going to happen” if she had screamed. She described that she just “laid there” with “tears in [her] eyes.” After “he was finished,” defendant left her room and went to his bathroom. She rolled over on her bed and touched something wet, and when she turned on the -light, saw a “big white spot” on her sheets. She put a pillow over it and “just laid there.” She described that the next morning, she noticed blood in her underwear, and “tried to wash them out” and hung them in her bathroom. At school that day, she “didn’t do nothing,” but eventually realized that if she stayed quiet, “it just might continue,” and so she told Ms. Deviney.

R.G. described that after the disclosure, after she spoke with police and DCFS, and after she was placed in a foster home, she “started losing it,” and was placed in a mental hospital. She explained that she “felt disgusting” and “hated [herself] for a while ... and blamed [herself] for the longest.” She- also testified that she tried to commit suicide “a couple of times.”

Penny Myers Ramey testified that she met defendant when she was seventeen. At first she and defendant were friends, and “it turned into a relationship.” She ultimately moved in with defendant, who was approximately thirty-three at the time, arid A.R. at his home at 6404 Kawanee Avenue. She recalled that at some point, R.G. moved in. Ms. Myers recalled that “it seemed like [R.G.] was excited to finally meet her dad,” but then “it progressively got worse over time.” She generally described their home life—the girls had to clean their rooms and do daily chores. She testified that defendant told the girls there were cameras in the home, even though there were none, as a “scare tactic.” She described “odd” conversations she and defendant had about R.G.—defendant would tell her “what can you do for me that my daughter can’t?” She testified that “as a young woman ... [she] never really understood it until now ... [it] makes a lot more sense now.” She recounted that one time, she saw that R.G. had a |R“passion mark” or “hickey” on her neck, that defendant explained was the result of her little brother, who was visiting at the time, kicking her in the neck. It struck her as odd, though, that defendant had R.G. put a “frozen spoon on it,” and that later, defendant changed the story and told her “there were boys running in and out of the house” that the girls were sneaking in.

Ms. Myers testified that on March 1, 2010, when she arrived home after work and R.G. was- not home, she and A.R. walked to the school; she figured that [R.G.] was there because she “would normally go to counseling with Ms. Deviney.” She arrived at the school and encountered R.G. in Ms. Deviney’s office crying. Defendant arrived at the school soon thereafter, and Ms. Deviney told them about the allegations. Ms. Myers testified that defendant “said that he had to go to the house and [R.G.] was making up stories. So he told [her] to follow him. And at that point [they] went to the house, and [defendant] took [R.G.] ’s sheets off her bed and put them in the washer.” She recalled that defendant showed her the stains, that she recognized as semen, on the pillowcase and bedsheets, and he blamed “those boys sneaking into the house” for the stains saying that he “didn’t want to get blamed for it.” She testified that he put the linens in the washer and told her that “he had to get out of there before he got blamed for something.” She elaborated that she thought he had a warrant at the time, which was “why he explained why he was running.” She explained that she put the sheets back on R.G.’s bed after they finished drying. R.G.’s bed sheets and comforter were seized as evidence pursuant to the search warrant executed later on March 1, 2010. Detective Fernandez elaborated that R.G.’s sheets from her bed, including the fitted sheet, flat sheet, pillow case, and comforter were seized, as well as the pair of green underwear that R.G. had hung in her bathroom.

Dr. Mark Carbon, an emergency room physician at Children’s Hospital, testified that on March 1, 2010, he met with and examined A.R. and R.G. He |7performed a Physical Evidence Recovery Kit (“PERK”) on each of the girls, which included a number of swabs on specific areas to collect the evidence. He testified that he did not observe any physical injuries to their genitals; he explained that their exams were “completely normal, which is typical in most sexual abuse cases.”

Staci Lanza Hughes worked at the Jefferson Parish Child Advocacy Center as a forensic interviewer in 2010. She conducted a forensic interview with both A.R. and R.G. on March 12, 2010. The video of each girl’s forensic interview was published to the jury. In the video, R.G. gave statements consistent with her earlier disclosure.

Anne Troy, qualified as an expert as a pediatric nurse practitioner, specializing in child maltreatment, including physical, mental, and sexual abuse, testified that while she did not personally examine A.R. and R.G., she reviewed documents related to this case. She explained generally that in her experience, behavioral issues are common in children who have been victims of sexual abuse. She concluded that while there were no physical findings of sexual abuse related to R.G., she found that R.G. gave a “clear, detailed history of sexual abuse” by defendant. Also in R.G.’s case, she has had behavioral issues—“suicide ideations, the suspensions from school, the issues with anger and authority.” Ms. Troy also explained that recantation is considered part of the process of disclosure because “what happens with an outcry and when children start to say things, they realize mom’s crying, that there’s people in their life who want to look at their private parts” and “they’ll take it back to protect the adults” or because “they just want it all to stop.”

Pamela Williams Cyprian with the Jefferson Parish Sheriffs Office Crime Lab, who was qualified as an expert in the field of serological analysis of bodily fluids, first explained that serology is the study of serum, and more particularly,J^forensic serology involves the identification of bodily fluids, such as blood, sémen, and saliva. She testified that she performed a serological analysis on certain pieces of evidence in this case. She described that, she performed an acid phosphatase test, and explained that acid phosphatase is an enzyme present in seminal fluid, so “it makes it a good screen test for semen.” She further explained that she first looked at R.G.’s PERK test, and found that both the genital swab and vaginal swab were positive for acid phosphatase, All the swabs from A.R.’s PERK test were negative for acid phosphatase. She tested R.G.’s fitted sheet which was negative for the presence of blood and semen. She also tested R.G.’s flat sheet, pillowcase, and comforter,- and several of the stains were positive for acid phosphatase. She did further tests on the flat sheet, determining'it was positive for seminal fluid. Also, looking through a microscope, she was able to locate sperm on-th'e flat sheet, pillowcase, comforter, and the genital swab from R.G.’s PERK test.

Sarah Serou, a forensic DNA analyst with the Jefferson Parish Sheriffs Office DNA Lab, conducted DNA analysis in this case. She received reference samples from defendant, A.R., and R.G. From the pillowcase, she tested a sperm fraction-rthe DNA profile obtained was consistent with a singular contributor, but because of the limited quantity of DNA, no conclusion could be made regarding the contributor status of defendant. From the sheet, she tested an epithelial fraction (skin cells)— the DNA profile was a mixture with the major contributor being consistent with R.G., but the minor contributor was at too low a concentration to determine a valid DNA profile. From the comforter, she tested an epithelial fraction—the DNA profile was consistent with being a mixture of R.G.’s and defendant’s DNA. Other sperm fraction samples from the comforter, sheet, and pillowcase were tested and were consistent with defendant’s DNA profile. Detective Fernandez testified that when he received the information that the DNA profile from the bedding was consistent with defendant, he applied for an arrest | ¿warrant on February 1, 2012, He was notified that defendant was arrested on the warrant in August 2014.

Defendant presented the testimony of several witnesses in his defense. His brothers (Charlie and Nathaniel), sister-in-law (Tara Seaberry), and mother (Judy Peters), all testified regarding how R.G. first came to stay with -defendant. Charlie recounted that in 2009, when R.G. was living in Mississippi with her mother, she called him because she was “in trouble,” and -he went to pick 'her up the next day. Nathaniel described that there was “some kind of altercation” in 2009, and Tara explained that they “had to get her because there was abuse.” After, she lived with Nathaniel and Tara for approximately two . weeks, then with Charlie for a while, then..with Ms. Peters before she started living with defendant. Charlie testified that A.R. currently lives with him; he stated that he has not talked with her about the case,- but described that “over the years she’s had some episodes.’’ Charlie used to speak with R.G., but stopped because “it got really uncomfortable” arid “some of the things she was saying” “didn’t make sense,”

ASSIGNMENT OF ERROR - NUMBER ONE ■ " ■

Sufficiency of the evidence

In his first assignment of error, defendant argues that the evidence was insufficient to support the conviction. He asserts that the only evidence the State presented was R.G.’s uncorroborated testimony. Defendant claims that the residual sperm and DNA found on the flat sheet could not be date stamped as to when it was left there. He contends that since DNA remained after the sheets were admittedly laundered, it could have been from when the sheet was conceivably used by defendant and Ms. Myers. Defendant argues that -the flat sheets ■ and | mpillowcases were not proven to be exclusively used by anyone. Defendant concludes that the evidence was insufficient to support the requisite elements of the crime charged.

The State responds that the victim gave a detailed and consistent account of events that established beyond a reasonable doubt all of the. elements of .the crime of forcible rape. The State relies on the victim’s testimony that defendant rolled her over onto her stomach and tried to pull her pants down, that she held onto her pants and tried to resist, but defendant pulled them down hard, hurting her fingers, and started to have sexual .intercourse with her. Moreover, the State adds that the victim’s account was corroborated by the findings of the serological and DNA analysts. Also, the State asserts that the testimony of Ms. Myers also corroborates the physical evidence concerning .the stains on the bedding,.

In reviewing sufficiéncy of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953 (La. App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La. 1/7/11), 52 So.3d 885.

This directive that the evidence be viewed in the light most favorable to the prosecution requires the reviewing court to defer to the actual trier of fact’s rational credibility calls, evidence weighing, and inference drawing. State v. Caffrey, 08-717 (La. App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La. 2/5/10), 27 So.3d 297. This deference to the fact-finder does not permit a reviewing court to decide whether it believes a witness or whether the conviction is | T1 contrary to the weight of the evidence. Id. As a result, under the Jackson standard, a review of the record for sufficiency of the evidence does not require the reviewing court to determine whether the evidence at trial established guilt beyond a reasonable doubt, but.whether, upon review of the whole record, any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La. App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

In making this determination, a reviewing court will not re-evaluate the credibility of witnesses or re-weigh the evidence. Caffrey, supra. Indeed, the resolution of conflicting testimony rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. See State v. Bailey, 04-85 (La. App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La. 11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Thus, in the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon, 07-915 (La. App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied, 08-0987 (La. 1/30/09), 999 So.2d 745. Moreover, the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense. State v. Bruce, 14-877 (La. App. 5 Cir. 3/25/15), 169 So.3d 671, 675, writ denied, 15-833 (La. 3/4/16), 187 So.3d 1007.

In the instant case, defendant was charged with and convicted of forcible rape. At the time of the offense in 2010, La. R.S. 14:42.1 defined forcible rape, in pertinent part, as:

[R]ape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed ... [w]hen the victim is prevented from resisting the act by force or threats of physical violence under circumstances whei-e the ^¿victim reasonably believes that such resistance would- not prevent the rape.

Rape is defined as “the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.” See La. R.S. 14:41. Any sexual penetration, however slight, is sufficient to complete the crime, and emission is not necessary. See La. R.S. 14:41(B). The testimony of the victim can be sufficient to establish sexual penetration, even though there is an absence of scientific evidence of sexual intercourse. State v. Hawkins, 06-739 (La. App. 5 Cir. 9/25/07), 968 So.2d 1082, 1088, writ denied, 07-2272 (La. 4/18/08), 978 So.2d 347.

Defendant argues that R.G.’s testimony was insufficient to support his conviction because it was uncorroborated. For the following reasons, we disagree.

First, the testimony of a victim need not be corroborated to support a conviction. Indeed, it is well settled that a victim’s testimony alone can be sufficient to establish the elements of a sexual offense, even when the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense. State v. Bruce, supra.

Here, R.G. testified that when she was fourteen, defendant came into her room, started tickling her, rolled her. onto her stomach, forcefully'pulled-her pants down, and had vaginal intercourse with her. She described that she tried to hold up her pants as to resist defendant, but he pulled them down hard, hurting her fingers. She described that it hurt, and because she was seared, she did not scream; she “didn’t know what was going to happen” if she had screamed. She also said she did- not know what would happen if she tried to stop him—“maybe he would [have] grab[bed] [her] mouth or something.” When asked if she thought she could | tjjhave stopped him, R.G.. replied, “I don’t know, -I don’t know. But I could not.” Dr. Carbon explained during his testimony that normal exams are typical in most sexual abuse cases. Ms. Troy also explained that the tissue around the- opening to the vagina heals very quickly, so she “know[s] 95 percent of the children [she’s] going to look at, despite whatever the allegations are, will be normal.” ,

In State v. Carter, 04-482 (La. App. 5 Cir. 10/26/04), 888 So.2d 928, 934-35, this Court upheld the defendant’s conviction for forcible rape and found the evidence of the element of force was sufficient where the victim, who was 14 years old at the time of the incident, testified at trial 'that the defendant, an adult who was larger and stronger than her, picked her up out of bed and carried her to his bedroom, despite her verbal protests. She further testified that the defendant pushed her into a reclining position on his bed and pinned both of her hands behind her back. When she tried to free her hands, the defendant gripped them tighter. The victim also testified at trial that the defendant put his penis into her vagina. Id.

Second, testimony need not be uncontra-dieted to support a conviction. The resolution of conflicting or contradictory testimony is one of the fundamental tasks for the trier of fact; who may accept or reject, in whole or in part, the testimony of any witness. See State v. Bailey, supra. In this case, the jury clearly believed R.G.’s testimony in rendering its verdict. Moreover, in this case, sperm was found from R.G.’s genital swab taken the following day and defendant’s semen was found on R.G.’s sheet, pillowcase, and comforter from her bed. Based on the foregoing, we find that a review of the record reveals that the evidence, when viewed in the light most-favorable to the prosecution, was sufficient for a rational trier of fact to have found defendant guilty of forcible rape and to support his conviction.

) ^ASSIGNMENT OF ERROR NUMBER TWO

Failure to grant a mistrial

In this assignment of error, defendant argués that the trial court erred in failing to grant a mistrial after allegedly improper comments were made by the prosecutor during closing argument's. Here, defendant asserts that the prosecution improperly commented on defendant’s right to remain silent and not testify. Specifically, defendant -points to the State’s comments in closing argument saying that the defense “can call witnesses, just like us. And we talked about in voir dire that he can testify just like any other witness.” He avers that once the jury heard this comment, the nearly unavoidable inference made a fair trial unlikely since defendant exercised his right to not testify. Defendant contends that this error was not harmless because it was so prejudicial, as it depicted defendant as unwilling to testify and defend himself against the allegations. Defendant claims that the State implied to the jury that defendant would have testified if he was not guilty of the allegation. Therefore, defendant argues that the jury’s verdict cannot be considered unattributable to the error and that the trial - court erred in denying the motion for a mistrial.

The State first responds that because defendant did not make a contemporaneous objection or motion for a mistrial after the. alleged prejudicial comment, the issue is precluded from review. The State further argues -that relief would still not be warranted on the merits because the comment was not an improper comment on the failure of defendant to testify'in his own defense, but rather a rebuttal to a specific argument raised by the defense. The State contends that the comment viewed in context-was confined to rebutting the argument directly raised by the defense in its closing argument. Moreover, the State, assuming arguendo that the brief remark was improper; avers that the jury would |1finot have been influenced by the prosecutor’s comments, and the. comments would not have contributed to the verdict in any way.

The transcript reflects that during closing arguments, defense counsel argued: .

But I -think there’s also some important parts of this story that you don’t know, things that are definitely there and that you haven’t heard about.
You heard a lot of talk about OCS coming ... Mr. Banam [sic] was the one. ... Where was he? ... [Wjhat’s his story and ... why don’t they want to let you hear it?
You know who else you didn’t hear from is my client, because he chose not to testify. But you also know that he talked to the .detectives. And he gaye a statement. But you didn’t hear that statement. They didn’t want you to .know about that. They didn’t want you, to know about what he said.

During its rebuttal closing argument, the State responded:

We didn’t choose to call [Troy Baham] as a witness. Not hiding it; we just— we’ve been here four days folks .,. [w]e could be here for two weeks, call everybody that was involved in this, but we decided not to do that.
Defense counsel told you “they didn’t want you to hear from my client, they didn’t want you to hear his statement,” right? They called witnesses, They can call witnesses, just like us. -And we talked about in voir dire that he can testify just like every other witness.
There are rules in court about evidence, about what can come in, how it can come in, and who can bring it in. And basically it comes down to you -have to have personal knowledge, and -you can’t bring in .statements from out of court. You’ve.got to come in here and say it on'the witness stand. .

It is noted that defense counsel , did not object nor move for a mistrial during -rebuttal.

The transcript further- reflects that during closing jury instructions, defense counsel asked if they could approach the bench. During this bench conference, defense counsel moved for a mistrial. Defense counsel argued that during the State’s closing argument there-was “an inference that the Defendant could or |1Sshould have taken the stand. [The State] said they can call witnesses. and ... [defense- counsel] felt that that was an inference against [his] client for not taking -the stand.” The State countered that it “was responding specifically to .... when [defense counsel] said that the State didn’t call specific witnesses to the stand,” that “they didn’t .want [the jury], to hear from these witnesses that were important.”

The State expounded that defense cqun-sel did in fact call witnesses, but not the specific witness .defense counsel mentioned. The State further responded that it was “accused of hiding the Defendant’s statement that was made,” but did not state that “he had to take the stand or he could have taken the stand.” The State explained that it was in “direct response to the accusation that [it was] hiding evidence from the jury.” The trial court denied defendant’s request for a mistrial.

First, we find that defendant did not properly preserve this issue for appellate review since he did not contemporaneously object to the alleged inflammatory statement made by the State. Defendant moved for a mistrial following closing arguments while the trial court was instructing the jury on the applicable law. This Court has previously held that a defendant who fails to object until the judge is preparing to instruct the jury has not contemporaneously objected as required by La. C.Cr.P. art. 841. In State v. Spencer, 93-571 (La. App. 5 Cir. 1/25/94), 631 So.2d 1363, 1369, the defendant argued that the trial court erred in denying his motion for a mistrial after closing argument. This Court noted that the defense objected after the State had concluded its rebuttal instead of immediately when the contested statement was made. This Court stated that the failure to contemporaneously object prevented the trial court from immediately remedying the situation if corrective action had been necessary.

J^Similarly in State v. Paul, 15-501 (La. App. 5 Cir. 1/27/16), 185 So.3d 188, 201, this Court, citing State v. Spencer, supra, found that the defendant’s failure to object during or after the State’s closing arguments prevented him from raising the issue on appeal. This Court found that since defendant did not contemporaneously object to the alleged.inflammatory statement made by the State and only moved for a mistrial, after the jury had retired for deliberation, the trial court did not have the opportunity to remedy the situation had corrective action been necessary.

Therefore, we find that defendant is precluded from raising this issue on appeal.

In any event, for the following reasons, this assignment of error is without merit.

The general rules governing closing and rebuttal argument are set forth in La. C.Cr.P. art. 774 which provides:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law.applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

The prosecutor has considerable latitude in making closing arguments; however, this latitude is not without limits. State v. Greenup, 12-881 (La. App. 5 Cir. 8/27/13), 123 So.3d 768, 776, writ denied, 13-2300 (La. 3/21/14), 135 So.3d 617; State v. Uloho, 04-55 (La. App. 5 Cir. 5/26/04), 875 So.2d 918, 927, writ denied, 04-1640 (La. 11/19/04), 888 So.2d 192. The trial judge has broad discretion in. controlling the scope of closing arguments.

Upon motion of a defendant, a mistrial shall be ordered “when a remark or comment, made within the hearing of the jury by the ... district attorney ... in argument, refers directly or indirectly to .., [t]he failure of the defendant to testify in his own defense[.]” La. C.Cr.P. art. 770(3). When a direct reference is made by [1Rthe State to the defendant’s failure to take the stand, a mistrial should be de-dared regardless- of whether the State intended for the jury to draw unfavorable inferences from the defendant’s silence. State v. Theriot, 07-71 (La. App. 5 Cir. 6/26/07), 963 So.2d 1012, 1021-22, writ denied, 07-1598 (La. 2/1/08), 976 So.2d 715. But when the State makes an indirect reference to the defendant’s failure to testify, the trial court must determine whether the remark’s intended effect on the jury was an impermissible reference to the defendant’s failure to testify or a permissible reference in a general statement that the State’s case was unrebutted. Id. An indirect reference only'requires a mistrial if the comment was intended to draw the jury’s attention to the defendant’s failure to testify. State v. Lai, 04-1053 (La. App. 5 Cir. 4/26/05), 902 So.2d 550, 560, writ denied, 05-1681 (La. 2/3/06), 922 So.2d 1175.

The mandatory mistrial provisions of Article 770, which encompass a prosecutor’s direct or indirect comment on the defendant’s failure to testify, are directives to the trial judge and do not preclude an appellate court from conducting a harmless error analysis. State v. Thomas, 05-2373 (La. 4/17/06), 926 So.2d 490 (per curiam). A conviction will not be reversed due to improper remarks during closing argument unless the reviewing court is thoroughly convinced that the remarks influenced -the jury and contributed to the verdict. State v. Jackson, 04-293 (La. App. 5 Cir. 7/27/04), 880 So.2d 69, 73, writ denied, 05-0232 (La. 5/6/05), 901 So.2d 1094. See also State v. Greenup, 123 So.3d at 775-76. In making its determination, the appellate court should give credit to the good sense and fair-mindedness of the jury that has seen the evidence and heard the argument and has been instructed that the arguments of counsel are not evidence. State v. Jackson, supra.

A mistrial is a drastic remedy anc¡ ⅛ warranted only when trial error .results in substantial prejudice to the defendant that deprives him of a reasonable | ^expectation of a fair trial. Whether á mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed absent an abuse of that discretion. State v. Davis, 12-512 (La. App. 5 Cir. 4/24/13), 115 So.3d 68, 79, writ denied, 13-1205 (La. 11/22/13), 126 So.3d 479.

In this assigned error, defendant argues that a mistrial was warranted because the prosecutor’s remark was a reference to defendant’s failure to testify. The comment to which defendant refers is the State’s comment in closing rebuttal argument saying that the defense “can call witnesses, just like us. And we talked about in voir dire that he can testify just like any other witness.” The aforementioned statement does not directly mention defendant’s failure to take the stand. Further, the State’s remark was in direct response to an argument made by defense counsel.

In State v. Johnson, 10-209 (La. App. 5 Cir. 10/12/10), 52 So.3d 110, 127-28, writ denied, 10-2546 (La. 4/1/11), 60 So.3d 1248, the defendant argued that the trial court erred in failing to grant a mistrial when the State, in its rebuttal closing argument, commented on his failure to call any witnesses or to testify at trial. The State responded that the prosecutor’s comment was not intended to call attention to defendant’s failure to testify at trial, but rather was a response to defense counsel’s statement in closing argument that the prosecution had failed to present evidence that defendant sold narcotics to the three people he met with on the street corner. In Johnson, the defendant referred to the following excerpt from the prosecutor’s rebuttal closing argument:

The defendant was on a street corner some two miles from his house in a high crime, high drug area on Monday, October the 8th at 10 something at night. And if you believe what defense counsel is arguing, he was greeting friends; not selling cocaine.
|2qNow, you cannot—the defendant doesn’t have to do anything and you can’t hold it against him if he doesn’t do anything and doesn’t call any witnesses.

This Court noted that although the defendant was correct in noting that the State generally cannot comment upon his failure to testify, in the proper context, the State’s mention of a defendant’s constitutional privilege against self-incrimination is not considered an impermissible comment on the defendant’s failure to testify at .trial. For instance, the Louisiana Supreme Court has held that during voir dire, the State may mention the defendant’s constitutional privilege against self-incrimination. State v. Shea, 421 So.2d 200, 206 (La. 1982), rev’d on other grounds, 470 U.S. 51, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985). See also State v. Packnett, 04-709 (La. App. 5 Cir. 12/28/04), 892 So.2d 615, 622-24, writ denied, 05-0599 (La. 6/3/05), 903 So.2d 455.

In finding that this assignment lacked merit, this Court in Johnson'could not say that the prosecutor was commenting on the defendant’s failure to testify, but rather it appeared that the prosecutor was responding to defense counsel’s closing argument.

In State v. Williams, 14-40 (La. App. 5 Cir. 9/24/14), 151 So.3d 79, 82-85, writ denied, 14-2250 (La. 6/19/15), 172 So.3d 649, the defendant argued that a mistrial was warranted because the prosecutor’s remark was an oblique reference to defendant’s failure to testify. The defendant referenced the following statement made by the prosecutor during closing rebuttal argument:

I don’t know if Ms. Sheppard and Mr. Louque [defense counsel] want me to bring in everybody in the neighborhood, ... I don’t know if they want me to bring everybody in, but it is not our obligation. We were not asked to do that. We are asked to prove the elements of each of the crimes beyond a reasonable doubt. We have done that over the course of the last two days. Mr. Louque and Ms. Sheppard had Mr, Bailey under subpoena. They could have—

121This Court found that the State’s comment . during rebuttal about defendant’s subpoena power did not constitute either a direct or an indirect reference to defendant’s failure to testify, and found that, considering the prosecutor’s remarks in context, the comments in rebuttal were in response to defense counsel’s remarks during closing argument, and as such, a mistrial was not warranted.

In State v. Cleveland, 14-1034, 2014 WL 7332135, 2014La. App. Unpub. LEXIS 744 (La. App. 1 Cir. 12/23/14), during closing arguments, defense counsel made an issue of the State’s failure to call various witnesses, including the victim’s boyfriend and the doctor who performed the victim’s rape kit, as well as the State’s failure to admit the rape kit into evidence. In its rebuttal closing argument, the State explained that the victim’s boyfriend was not called to testify because he was not at the trailer at the time of the incident. The prosecutor went on to explain:

Let’s go back to the rape kit. Did I hide it from you? No, I didn’t. I -told you it didn’t follow protocol. The State Police, they’re required .to follow protocol. That’s why we have them. Oh, you didn’t hear from the doctor. Well, guess what? The rápe kit, we couldn’t get it. tested. So guess what? We couldn’t put. it into evidence and you couldn’t conclude anything from it because there was no testing done on it. So, again, we could of [sic] paraded another witness in here, kept you here probably throughout the weekend, for evidence that would not have been admissible, in this case because it couldn’t be tested in accordance with protocol. We didn’t hide that.
And the other thing I want to tell you about this lack-of-evidenee argument and who we didn’t hear from, from [defense counsel]. The Defense, certainly, has the ability to subpoena and call any witnesses that they like.

The, appellate court found, that the challenged statement, reviewed in context, indicated that rather than alluding to the defendant’s failure to testify, the State was responding to defense counsel’s arguments made during his closing statement. The court found that the defense, with its. closing argument, opened the door for this line of rebuttal by the State, citing La. C.Cr.P. art. 774.

12aIn the present matter, we find that the State, in making the challenged statement, did not intend to' 'draw the jury’s attention to the defendant’s failure to testify, but rather it intended to respond directly to the arguments made by defense counsel. Based on the foregoing, we -find that the trial court'did not abuse its discretion in denying defendant’s motion for a mistrial. This assignment of error is without merit.

ERRORS PATENT REVIEW

■ The record was reviewed for errors patent, according to La. C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). The following matter is noted, but no corrective action is required.

At the time of the offense, forcible rape was punishable by imprisonment' at hard labor for not less than five years nor more than 40 years. The statute further provided that at least two years of the sentence imposed be without the benefit of probation, parole, or suspension of sentence. See La. R.S. 14:42.1(B). The record indicates that- the trial court imposed an illegal sentence by not imposing restrictions when the statute required that at least two years of the sentence be served without the benefit of parole, probation, or suspension of sentence. Usually such an omission is corrected as a matter of law by virtue of La. R.S. 15:301.1. See State v. Williams, 10-265 (La. App. 5 Cir. 11/9/10), 54 So.3d 98, 105-06. However, in this case, the restriction of benefits was within the trial court’s discretion, as the statute mandates that “at least two years of the sentence” be without benefits, (Emphasis added.) However, .defendant’s sentence was later vacated, and defendant was resentenced under La, R.S. 15:529.1. As such, any patent error relating to this sentence is considered moot. See State v. Smith, 09-100 (La. App. 5 Cir. 8/25/09), 20 So.3d 501, 502, writ denied, 09-2102 (La. 4/5/10), 31 So.3d 357.

CONCLUSION

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED

      . ■ La. R.S. 14:42.1 was recently amended in 2015 by Act No. 184, which, renamed the crime as "second degree rape.”

      . See Errors Patent Review, infra, regarding restriction of benefits.

      . The victim, R.G., who was a minor at the time of the sexual offense, and the victim's family will be referred to by their initials in this opinion, pursuant to this Court’s policy to protect the identities of minor victims and victims of sexual offenses. La. R.S. 46:1844.

      . While R.G. went to school at John Quincy Adams Middle School and not Bissonet Elementary at-the time, she would .go there for counseling with Ms, Deviney.,

      . The spelling of Ms. Myers' last name appears as both "Myers” and "Meyers’.' throughout the transcript. She also is referred to by her married name “Ramey.” For purposes of this opinion, she will be referred to as "Ms. Myers,”

      . The Department of Child and Family Services is also referred to as “OCS” throughout the transcript.

      . The record reflects that at the time Sergeant Fernandez applied for a warrant, defendant was already in the custody of the Department of Corrections, Also, during cross-examination, Sergeant Fernandez testified that he conducted a taped interview with defendant in May 2010. However, the trial court ruled that statement was inadmissible by the defense, as defendant "want[ed] to use his self-serving statement in lieu of testifying and thus avoid cross-examination.”

      . In State v. Wallace, 00-1745 (La. App. 5 Cir. 5/16/01), 788 So.2d 578, 584, writ denied, 01-1849 (La. 5/24/02), 816 So.2d 297, this Court found the evidence was sufficient to support a conviction for forcible rape, despite the absence of physical evidence, where the victim identified defendant as the perpetrator, and a physician explained the reasons for the lack of such evidence.

      . La. C.Cr.P. art. 841 provides:
      An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of me court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.

      , It is noted that this case is published on the First Circuit's website, and therefore, may be cited as authority despite the fact it is not designated for publication. See La. C.C.P. art. 2168; State in the Interest of S.L., 11-883 (La. App. 5 Cir. 4/24/12), 94 So.3d 822, 827 n. 2.

      . It is noted that when the trial court resen-tenced defendant under the habitual offender statute, -it imposed a thirty-year sentence without the benefit of parole, probation, or suspension of sentence. The habitual offender statute, La, R.S. 15:529.1(G), provides that any sentence imposed under its provisions "shall be at hard labor without benefit of probation or suspension of sentence." Thus, the habitual offender statute does not impose a parole restriction. Nevertheless,, the underlying offense in the reference statute, La. R.S. 14:42.1, imposes a parole restriction. It requires that at least two years of the sentence imposed shall be without the benefit of probation, parole, or suspension of sentence. The restrictions on parole eligibility imposed on habitual offender sentences under La. R.S. 15:529.1 "are those called for in the reference statute.” State v. Esteen, 01-879 (La. App. 5 Cir. 5/15/02), 821 So.2d 60, 79, n. 24, writ denied, 02-1540 (La. 12/13/02), 831 So.2d 983. Thus, in sentencing under the habitual offender statute, the trial judge did not err in imposing the entire thirty-year sentence without the benefit of parole, probation, or suspension of sentence.


source: Caselaw Access Project

author: LILJEBERG, J.

license: Public Domain

text:
    IN RE: L.M.M., JR., a Minor
    NO. 17-CA-345
    Court of Appeal of Louisiana, Fifth Circuit.
    October 25, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, L. M. M., LEGAL GUARDIAN, David I. Courcelle, Scott C. Stansbury, Metairie
    COUNSEL FOR PLAINTIFF/APPEL-LEE, K. L. M. S., MOTHER, Terri M. Miles, Metairie
    Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

hln this case involving guardianship and custody, the minor child’s great aunt seeks review of the trial court’s judgment terminating her guardianship of the child and awarding her and the child’s mother joint custody, with the mother designated as the domiciliary custodian. For the following reasons, we reverse the. trial court’s judgment, reinstate the guardianship order, and remand to the trial court to set a schedule of visitation for the mother.

FACTS AND PROCEDURAL HISTORY

On November 16, 2011, the minor child, L.L.M., was born. The child’s biological mother is Kodie Servat (“Kodie”), and his biological father is Lane Mouney, Sr. (“Lane”). Lisa Mouney (“Lisa”) is Lane’s aunt and the great aunt of L.L.M. When L.L.M. was born, Kodie was 18 years old and Lane was 19 years old, and they needed assistance caring for L.L.M. During the first year of his life, L.L.M. lived on an alternating weekly basis at Lisa’s home and Kodie’s mother’s home.

According to the testimony at trial, Ko-die and Lane used drugs, including synthetic marijuana, on a regular basis after L.L.M. was born. According to Lisa, she asked Kodie and Lane to leave her house because she believed they were stealing from her, so they left the baby with Lisa and moved to Mississippi. Kodie’s mother, Denise Roques (“Denise”), and Lisa continued to care for L.L.M. on an alternating weekly basis. According to Denise, after approximately nine months, she brought L.L.M. to Kodie in Mississippi.

On or about February 19, 2013, Lane and Kodie were arrested and the Mississippi Department of Human Services (“DHS”) took custody of L.L.M., after LLane and Kodie were found with drugs during a surprise home visit by a DHS case worker. L.L.M. was placed in foster care.

On March 20, 2013, Lisa filed a Petition for Appointment of Guardian in the Chan-eery Court of Jackson County, Mississippi, and she included “Consent to Guardianship” documents signed by Kodie and Lane with her filing. That same date, Lisa was granted guardianship of L.M.M. via a Decree Appointing Guardian.

On March 30, 2015, Kodie filed a Petition to. Make Foreign Judgment Executory ih the 24th Judicial District Court, seeking to have the Decree Appointing Guardian made executory in Jefferson Parish. In her petition, Kodie stated that L.L.M. has continued to reside in Jefferson Parish with Lisa since the guardianship order was signed on- March 20, 2013,' and thus, Louisiana is the child’s “home state.” On March 31, 2015, the trial judge signed an Order declaring that the Decree Appointing Guardian “is hereby made the Judgment of this Court.”

On August 24, 2015, Kodie filed a Petition to Modify Custody and to Terminate Guardianship of Minor. In her petition, Kodie asserted that circumstances have changed since the guardian was appointed which warrant a change in custody of the minor child, returning him to his mother. Kodie asserted that it was in L.L.M.’s best interest for the guardianship to be terminated and for her to be awarded custody, because: 1) she has remained drug free for over a year; 2) she has steady employment; 3) she is now married and living in á stable environment; 4) she is no longer in contact with the child’s father, Lane, who remains incarcerated; 5) Lisa has refused to foster a good relationship between Kodie and L.L.M., and has restricted K6-die’s contact with L.L.M.; 6) she has a stable lifestyle and is well capable of parenting her child and providing a wholesome environment for him; and 7) any harm likely to be caused from a | .¡change in the guardianship is substantially outweighed by the advantages to the child of the modification sought.

On December 9, 2015, the trial court appointed Dr. Karen Van Beyer as a mental health expert to perform a custody evaluation. After Dr. Van Beyer completed the evaluation and her report, recommending joint custody, for Kodie and Lisa with Kodie designated as the domiciliary custodian, her recommendations were made an interim judgment of the court, Lisa and Kodie objected to the interim order and requested a de novo hearing by the trial judge.

At Lisa’s request, a second custody evaluator, Dr. James Klein, was appointed to perform a custody evaluation.. Kodie filed a First Supplemental and Amending Petition to Modify Custody and to Terminate Guardianship, seeking an order vacating and annulling the order of guardianship for fraud and ill practices, pursuant to La. C.C.P. art. 2004.

Trial in this matter was held on October 5, 2016, October 20,2016, and November 7, 2016. At trial,-Lisa Mouney testified that she was 48 years old, divorced, and had no children. She stated that she has known Kodie since she was about 13 years old and that Kodie was regarded as a family member. After L.L.M. was born, Kodie, Lane, and L.L.M. stayed at Lisa’s house week-to-week, but she had to ask them to leave due to theft. Kodie and Lane moved to Mississippi and initially left L.L.M. with her and Denise. After Denise took L.L.M. to Kodie in Mississippi, Kodie and Lane were arrested and L.L.M. was put ini foster care. At some point, his foster parents could not take care of him because he was sick, so Lisa contacted a Mississippi attorney and had guardianship papers prepared. Kodie and Lane each signed a document consenting to the guardianship. Lisa stated that she decided to seek guardianship, because she was told that L.L.M. was “retarded” and-needed medical attention, and no one else would take him. She was awarded guardianship in March of 2013.

14When Lisa' obtained guardianship of L.L.M., he had several problems, including not being able to walk, only being able to “army crawl,” and recurring ear infections. On the advice of his doctor, Lisa arranged for L.L.M. to get tubes in his ears and to have his adenoids removed. She. also reestablished L.L,M.’s therapy and was advised by a-physical therapist to take him to see Dr. Aaron Karlin, a pediatrician who specializes in physical medicine and rehabilitation. Lisa testified that Dr. Karlin diagnosed L.L.M. with right side cerebral palsy and developmental delay. Dr. Karlin informéd her that cerebral palsy is a lifelong condition requiring ongoing therapy and treatment.

Lisa denied ever telling Kodie that she had to sign the guardianship papers or she would not see her child again.' It was Lisa’s understanding that guardianship meant that she- would take L.L.M., protect him, and do everything she could to make him better and. try to get him back to a normal life. Lisa testified that there was never a time that she told Kodie she could not visit with L.L.M. She admitted she told'Kodie’s family that L.L.M. could not spend the night, with them if Kodie was,present, because she took her role as guardian very seriously and she believed it would be her fault if anything happened to. him. Lisa testified that she did not allow Kodie unsupervised visitation, because she was concerned that Kodie ■ could potentially put L.L.M. at risk.

Lisa testified that Kodie initially visited with L.L.M. once a week and later increased to two times per week, until Dr. Van Beyer’s recommendations were made an interim judgment of the court. Lisa stated that she did not have a problem allowing Kodie. to visit with L.L.M., but Kodie was “in and out of his life” and she sometimes did not hear much from Kodie. She testified that there were times when L.L.M. would visit with Kodie’s family and Kodie did not go to see him.

Lisa testified that L.L.M.’s right side is “tremendously” weaker than his left, so he tends to hold up his right arm. She stated that he walks with a limp and his I .-.foot drags,, so ⅛: wears a “boot” to try to correct the problem. Lisa testified that she has told Kodie several times that-Dr, Karlin diagnosed L.L.M. with hemiparesis, or cerebral palsy, but Kodie does not believe that L.L.M. has cerebral palsy or any disability. According to Lisa, L.L.M.’s cerebral palsy has to be controlled with ongoing therapy and treatments, .and she believes he will be able, to have a stable life as a grown man if he receives the treatment he needs.

Lisa has consistently taken L.L.M. to physical therapy, and medical and dental appointments. She admitted that she informed his doctors that Kodie may have been on drugs when L.L.M, was born, because it was a possibility and they needed to know all of the facts. Lisa has enrolled ' L.L.M. in gymnastics to help with his physical limitations, and she stated that Kodie has done nothing to assist her in helping L.L.M- with his disability. She stated that L.L.M. calls her home his home, and .she is more than willing to continue helping with his medical needs. She has always been in his life and, even before she was granted guardianship, Lisa helped to care for him and financially support him. In Lisa’s,view, Kodie should not have L.L.M. back in her care, because she “doesn’t finish things” and she does not believe Kodie will be persistent in keeping up with his medical care.

Kodie Servat testified that L.L.M. was a happy and healthy baby when he came home from the hospital. She .admitted that she smoked cigarettes when she was pregnant, but she did not use drugs. When he came home, L.L.M. spent alternating weeks at her mother’s house and Lisa’s house. He began therapy with a program called Early Steps,.but Kodie terminated the services in July of 2012 because he was “caught up” and “doing all that he should.” Kodie admitted that L.L.M. was placed in state custody when drugs were found in their home, but she stated that L.L.M. was healthy, not abused or neglected, and did not have any special needs of which she was aware,

| (¡Kodie testified that after L.L.M. was taken into state cústody and until she moved back to Louisiana in March 2013, she had meetings with Child Services, submitted to drug tests, and complied with her “case plan.” She was never informed by the state'of Mississippi that her parental rights were about to be terminated. Kodie admitted that she signed a “Consent to Guardianship” document, but she stated that nothing was read to her and she was just told where to sign. It was her understanding that if she signed this document, she would be able to see L.L.M. whenever she wanted. She believed that she would be involved- in any medical attention or decision making, and that the guardianship was just a temporary situation until she and Lane could get stable employment and stay off drugs. She agreed that the guardianship papers do not indicate that she was granted visitation with L.L.M. Kodie acknowledged that if Lisa had hot been granted guardianship, L.L.M. would have remained in state custody until she and/or Lane complied with Mississippi’s requirements to get him back.

Kodie stated that after Lisa was granted guardianship of L.L.M., she was only allowed to see him four or five times from March 2013 through December 2013, though she asked to see him -more often. She testified that she began having visitation with L.L.M. for two hours every Monday starting in January of 2014.

Kodie testified that she is aware that L.L.M; has some medical difficulties, but she does not believe he has cerebral palsy. She stated that he has some stiffness in the muscles of his right leg, but she claims the physical therapists were told that L.L.M.’s right side was weak so they gave him therapy to strengthen his right side, which caused his muscles to tighten. She admitted he has a lisp and she cannot always understand his speech, but she does not believe that this is a problem for a child who gets excited when he talks. Kodie admitted that Dr. Karlin’s records reflect a diagnosis of spastic hemiparetic cerebral palsy, but she thinks the diagnosis was based on the history and information provided by Lisa. 17Kodie also admits ted that one of L.L.M.’s foster parents in Mississippi was concerned that he was not able to do things he should have been able to do at his age.

•Kodie testified that she was admitted to River Oaks Hospital for depression several months after L.L.M., was. born. She stated that although the medical records indicate she was suicidal and/or homicidal, that she smoked marijuana while pregnant, and that she would burn and cut herself, those records are false. She believes the medical personnel at River Oaks made them up. She further stated that several other notations in her medical records were not true.

Kodie admitted that she believes Lisa’s care of L.L.M. benefitted him at the time that she and Lane were not in a position to' provide what was best for him However, she testified that since that time, she has remained drug-free, found employment and a good home, and. now. has a good family and support team. Kodie stated that if she were to. be granted custody, she would still want Lisa to be in L.L.M.’s life, because she has been very important in his life thus far.

Denise Roques, Kodie’s mother, testified that Kodie started getting into trouble and doing drugs when she was about 14 years old and got involved with Lane. Kodie moved out of Denise’s home and got an apartment with Lane when she was 17. According to Denise, Kodie smoked cigarettes while she was pregnant but did not use drugs. After L.L.M. was born, Kodie moved back in with Denise, and Lane moved in with Lisa. Denise testified that L.L.M. alternated weeks between her home and Lisa’s home, and Kodie would stay with L.L.M. when he was at Lisa’s as well. Denise stated that Kodie was always with the baby until they started “messing up” and “getting high with the synthetic drugs.” She stated that she and Lisa continued to care for L.L.M. while Kodie and Lane were “out doing their thing.” Denise testified that when Lane and Kodie went to live in Mississippi, she and Lisa continued to alternate weeks caring for L.L.M.

| sAfter approximately nine months, Denise brought L.L.M. to Kodie in Mississippi. Denise testified that after Mississippi took custody of L.L.M. and Lisa became his guardian, Kodie moved in with Denise. According to Denise, Kodie still smoked marijuana after Lisa became L.L.M.’s guardian, but she stated Kodie has now been “clean” for two and a half to three years. Denise stated that Lisa did not allow Kodie to visit with L.L.M. for “maybe a year,” and then Lisa allowed Kodie to see him if Denise or Denise’s mother was present.

On cross-examination, Denise admitted that after L.L.M. was born, Kodie and Lane could not take care of him without help. She also admitted that Kodie, who was 23 at the time of trial, has lived'in at least 12 different places since she was 17. Denise testified that she brought Kodie to River Oaks Hospital in May 2012 for depression. She stated that when Lane picked up Kodie from River Oaks, they “went and got high,” and they continued to use drugs. When asked if L.L.M. has cerebral palsy, Denise replied, “[n]ot to my knowledge, no.” She acknowledged that L.L.M. has issues when he walks, including a limp, he has a brace to help straighten out his right foot, and he also has issues with his right arm,

Benjamin Servat (“Ben”), Kodie’s husband, testified that he knew Kodie in high school and they started hanging out again when L.L.M. was about 18 months old. Ben stated that he has a very close relationship with L.L.M., and that Kodie and L.L.M. have a very strong relationship. He testified that L.L.M. wears a brace because he has a “duck walk,” but he is not aware of any special needs or physical difficulties. He stated that L.L.M. also has a “little stutter” and a “little lisp,” but he is able to talk' and communicate appropriately for his age. Ben was not aware that L.L.M. has been diagnosed with spastic hemiparetic cerebral palsy. He stated that he would love for L.L.M. to live with him and Kodie, and that they can provide a stable environment for him.,

laBen admitted that he had previously been arrested for simple burglary, but the charges were reduced to loitering. He has also been arrested for driving while intoxicated, first offense, and resisting arrest. Ben testified that he has never used drugs or smoked marijuana, and he has never seen Kodie use drugs. Kodie has told him that she used drugs in the past, including smoking marijuana and a synthetic marijuana known as “spice.”

Lane Mouney, Sr. testified that L.L.M. was taken into state custody in Mississippi because he and Kodie had drugs in-the house when L.L.M. was present. He stated that Lisa came to have custody of L.L.M. because “we wanted her to” and “[n]obody else would.” When he agreed for -Lisa to have guardianship, he understood that he was giving up his rights to L.L.M. until he was 18. Lane stated that he consented to the guardianship because he could not care for L.L.M. at that time and it was in L.L.M.’s best interest for Lisa to be his guardian. No one forced or threatened him into signing the consent form.

Lane further testified that he understands L.L.M. has disabilities and needs help. Lane stated that it is a “known fact” that L.L.M. has cerebral palsy. He testified that Lisa has done “everything” for L.L.M.’s medical conditions, including having tubes put in his ears and taking him to occupational therapy, speech therapy, and physical therapy. He believes L.L.M.’s condition has gotten better over time because of the treatment Lisa obtained for him. Lane admitted that he does not have any concerns about Kodie’s capability to care for L.L.M.

Dr. Van Beyer was accepted as an expert in child custody evaluations. She testified that when Lisa returned to Louisiana with L.L.M., it took Kodie a “couple of months to get clean,” and then she never . used drugs again. Dr. Van Beyer did not know of any reason why Kodie should not have been allowed to see L.L.M. She opined that Kodie appears to have very adequate parenting skills and an | ^appropriate attitude toward how to set consequences for L.L.M. Dr. Van Beyer did not have any reservations about L.L.M. transitioning into Kodie’s home.

Dr. Van Beyer also testified that Kodie discussed the signing of the guardianship papers with her. Kodie told her that she was told to sign the consent to guardianship document or she would have to give up her child forever. Kodie informed Dr. Van Beyer that it was her understanding that the guardianship would be temporary and that she would have visitation with l.l.m;

Dr. Van Beyer testified that she met with Lisa during the evaluation process, and she did not feel that Lisa overstated L.L.M.’s needs. She noted that L.L.M. was born premature and that Lisa was very determined and avid in her pursuit of all the medical attention he needed. She stated that Lisa took L.L.M. to physical therapy, speech therapy, a neurologist, and other doctors, and did a “very good job” at getting him the medical attention he needed. According to Dr. Van Beyer, by the time she saw L.L.M., he was no longer really “behind.” It was Dr. Van Beyer’s understanding that Kodie was not notified and did not attend any. medical or therapy appointments. Dr. Van Beyer believes that Lisa should have made every effort to include Kodie in- L.L.M.’s everyday life, medical treatment, and psychotherapy. She recommended that Kodie and Lisa share joint custody for a year and then Kodie should have sole custody.

Dr. Alan Klein, an expert in custody evaluations, testified that he performed a custody evaluation in this matter and -reviewed medical records and other documents, When Dr. Klein met with L.L.M., he did not appear to be significantly disabled, from a lay perspective, though he appeared to have a mild preference for one side and his language was not very clear. He testified that Kodie admitted her Inhistory of substance abuse, but it was his impression that she has turned her life around significantly. He did not see any negative markers regarding her ability to parent. During the course of his evaluation, Dr. Klein did not see any indication that Kodie had emotional or mental- health issues or significant depression. Dr. Klein recommended. that Kodie. and Lisa be granted joint, custody, with Kodie as the domiciliary parent,- as noted in his evaluation,.

On December 8, 2016, the trial judge rendered a judgment terminating the guardianship of L.L.M. and awarding joint, custody to Kodie- and Lisa, with Kodie designated as the-domiciliary custodian. In her judgment, the trial judge set forth a visitation schedule, appointed a parenting coordinator, and set forth requirements for Kodie and Lisa to share educational, medical, and other information pertaining to L.L.M. Lisa appeals the trial court’s judgment.

LAW AND DISCUSSION

Guardianship is a form of custody in Louisiana. La. Ch.C. art. 719. The best interest of the child is the principal consideration in all child custody determinations. Tracie F. v. Francisco D., 15-1812 (La. 3/15/16), 188 So.3d 231, 239; Ferrand v. Ferrand, 16-7 (La. App. 5 Cir. 8/31/16), 221 So.3d 909, 938.

In Louisiana, 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. La. Ch.C. art. 718(A). Although guardianship is intended to be permanent, there are circumstances under which guardianship may be modified or terminated under Louisiana law, as set forth in La. Ch.C. art. 724. Specifically, La. Ch.C, art. 724(D) provides as follows:

A guardianship order may be modified or terminated if the court finds by clear and convincing evidence that there has 112been a substantial and material change in the circumstances of the guardian or child because of any of the following:
1) The guardian no longer wishes to serve or can no longer serve as guardian of the child.
2) Continuation of the guardianship is . - so deleterious to- the child as to jus- , tify a modification or termination of the relationship or the harm likely to be caused from a change in the guardianship is substantially outweighed'by the advantages to the child of the modification.

In her first assignment of error on appeal, Lisa argues that the trial court erred in terminating her guardianship of L.L.M. and granting domiciliary custody to Kodie. She argues that Kodie did not meet the “heightened” requirements to terminate the guardianship pursuant to La. - Ch.C. art. 724(D), because she did not prove by clear and convincing evidence that a substantial and material change in the circumstances of the guardian or child existed. Further, she contends that Kodie did not prove that continuation of the guardianship was so deleterious to L.L.M. as to justify modification or termination of the guardianship, or that the harm likely to be caused from a change in the guardianship was substantially outweighed by the advantages to the child of the modification. Lisa argues that Kodie’s personal improvements and rehabilitation from drug use are insufficient to satisfy the requirements .of La. Ch.C. art. 724(D). .

Kodie responds that the guardianship order did not comply with the law and that it should also be annulled due to fraud or ill practices. Kodie further argues that even if the guardianship order was properly obtained, the requirements of La. Ch.C. art 724(D) for termination or modification of guardianship have been met. Specifically, she claims that the continuation of a guardianship which denied her any significant contact with her son and denied her the right to have any input into medical or educational decisions is so deleterious to L.L.M. as to justify a modification or termination. She further contends that the harm likely to be caused |1Rby a change in the guardianship is substantially outweighed by the advantages to L.L.M. of being raised by his mother.

The Fourteenth Amendment to the United States Constitution protects a biological parent’s due process right to “the companionship, care, custody, and management” of a child. Tracie F., 188 So.3d at 242; In re Adoption of B.G.S., 556 So.2d 545, 549 (La. 1990). Custody proceedings “involving a parent and non-parent present the confluence of two powerful and basic principles: the child’s substantive right to live in a custodial arrangement which will serve his or her best interest and a parent’s constitutional right to parent his or her biological child.” Ferrand, 221 So.3d at 918-919. The guardianship articles in the Louisiana Children’s Code are intended to ensure that the fundamental needs of children are met and the constitutional rights of all parties are recognized and enforced. La. Ch.C. art. 718(B).-

La. Ch.C. art. 724(D) provides that an order of guardianship may be modified or terminated if the court finds by clear and convincing evidence that there has been a substantial and material change in the circumstances of the guardian or the child. This article sets forth three situations under which a material change in circumstances may be found: 1) the guardian no longer wishes to serve or may no longer serve as guardian; 2) the continuation of the guardianship is so deleterious to the child as to; justify a modification or termination of the relationship; or 3) the harm likely to be caused from a change in the guardianship is substantially outweighed by the advantages to the child of the modification.

In the present case, there has been no material change in the circumstances of Lisa or L.L.M. Rather, the only material change has been, in Kodie’s circumstances. Clearly, the first two situations for finding a material change in the circumstances of the child or guardian have not been met, as Lisa wishes to |14continue as L.L.M.’s guardian, and' the record fails to show that the guardianship has been deleterious to L.L.M. To the contrary, the record reflects that Lisa’s guardianship has greatly bene-fitted L.L.M.

Also, the third situation in which a material change in circumstances can be proven, i,e. the harm likely to be caused from a change in guardianship is substantially outweighed by the advantages to the child of the modification, has not been shown. No one disputes that Kodie has remained drug free for some time now, and her drug rehabilitation is certainly commendable. However, Kodie has failed to prove that the advantages to L.L.M. gained from her self-impiovements “substantially outweigh” the harm from modifying or terminating Lisa’s guardianship of L.L.M. By all accounts, Lisa has consistently been in L.L.M.’s life, has taken care" of him, given him a stable home, obtained medical care and therapy for him, and became, in the words of Dr. Klein, a “psychological parent” to L.L.M. Kodie admitted at trial that Lisa’s care of L.L.M. benefitted him at a time when neither of his parents was in a position to provide what was best for him.

Further, according to the medical records provided, L.L.M. has been diagnosed with spastic hemiparetic cerebral palsy. Dr. Karlin stated in a letter dated October 11, 2016, that L.L.M.’s “spasticity is a lifelong condition that will'require him to have ongoing physical therapy and treatments.” The record shows that Lisa has been diligent in obtaining medical care and therapy for L.L.M., and will presumably continue to obtain any medical care or assistance that L.L.M. may require.

We note that comment (c) of the 2011 Official Revision Comments to La. Ch.C. art. 724 specifically provides that the material change required for modification or termination of a guardianship must occur in the circumstances of 11sthe guardian or child. It provides that La. Ch.C. art, 724(D) “reflects the policy that the most important feature of a guardianship was its permanence during the'child’s minority; therefore the standard for modification or termination ought to be quite stringent.” This comment further provides that improvement of a parent’s capabilities “would not satisfy the threshold requirement that some deterioration in the quality of the guardian’s care must be demonstrated.” In the present case, the record does not show that there has been any deterioration in the quality of Lisa’s care of L.L.M.

In her reasons for judgment, the trial judge noted that her findings of fact were issued pursuant to La. Ch.C. art. 724, which contains the applicable standard for modification or termination" of guardianship. She found that guardianship should be terminated, noting that she made this decision after considering the custody evaluators’ reports, the best interest of the child, and a finding that Kodie has developed a stable lifestyle and is capable of caring for her child.

The trial court is entitled to vast discretion in matters of child custody and visitation, and its determination will not be disturbed on appeal absent a clear showing of abuse of discretion. Stephens v. Stephens, 02-402 (La. App. 1 Cir. 6/21/02), 822 So.2d 770, 774. Applying the abuse of 'discretion standard to the guardianship matter before us, we are compelled to reverse the judgment of the trial court. Considering the testimony and evidence, we find that the trial judge abused her discretion in finding that Kodie met her burden of proving the guardianship should be terminated. Specifically, the testimony and evidence | ^presented clearly did not show any material change in the circumstances of L.L.M. or Lisa, or that the harm likely to be caused from a change in the guardianship was substantially outweighed by the advantages to L.L.M. of the modification. Accordingly, we reverse the trial court’s judgment and reinstate the guardianship order. We remand to the trial court to set a visitation schedule for Kodie.

DECREE

For the foregoing reasons, we reverse the trial court’s December 8, 2016 judgment terminating Lisa’s guardianship of L.L.M. We reinstate the guardianship order and remand for the trial court to set a visitation schedule for the mother.

REVERSED AND REMANDED

      . L.L.M. was hospitalized for some time due to dehydration and other symptoms during his foster care placement,

      . Dr. Van Beyer also met with Ben Servat, Kodie’s husband, and .she did not see any reason why L.L.M. would be at risk around Ben.

      . The record indicates that L.L.M. was. born at 30 weeks gestation.

      .During the evaluation process, Dr. Van Beyer also spoke with Lane, who indicated that he would be released from prison soon and would make every éffort to become a good father to L.L.M. However, after he was released from prison, Lane was apparently arrested again and was incarcerated at the time of this trial.

      . See Justice Weimer’s dissent in George v. Dugas, 16-710 (La. 11/7/16), 203 So.3d 1043, in which he discussed guardianship. law in Louisiana.

      , Although the guardianship' Order was initially rendered in a Mississippi court, the parties and L.L.M, have resided in Jefferson Parish, Louisiana, since the guardianship order was issued in March of 2013. By order dated March 31, 2015, the guardianship order was made a judgment of the 24th Judicial District Court. All parties agree that Louisiana law applies in this matter.

      . ' While statements contained in the official comments are not binding on the court, the comments to the code article represent an extrinsic aid that assists in statutory interpretation. First National Bank of Picayune v. Pearl River Fabricators, Inc., 06-2195 (La. 11/16/07), 971 So.2d 302, 314.

      . We note that while the custody evaluators recommended joint custody, with Kodie designated as the domiciliary custodian, the record does not show that they evaluated the situation under the stringent requirements for modification or termination of guardianship, as set forth in La. Ch.C. art. 724(D).

      .In her reasons for judgment, Judge Darens-burg also stated that the petition for guardianship did not comply with the requirements of La. Ch.C. art 720 and that Kodie was told to sign the guardianship papers or give up her child forever. -However, Kodie moved to have the guardianship order made executory and thus, recognized as a valid judgment in Louisiana. Because she did not appeal the guardianship order, challenging it for formal defects or vices of consent, she is precluded from challenging the validity of the original guardianship order in this proceeding.


author: FAIR, J.,

text:
    Sharon SALLIE a/k/a Sharon Jean Sallie a/k/a Sharon Plaxico Sallie, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00801-COA
    Court of Appeals of Mississippi.
    04/25/2017
    Rehearing Denied November 21, 2017
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. Sharon Sallie was convicted of conspiring with her daughter, Jessica Plaxico, and son-in-law, Ahmad Fryar, to obtain money from Wilma Colora through false pretenses, and for actually committing the crime of false pretenses. The circuit court sentenced Sallie as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015), ordering that she serve five years for her conspiracy conviction and ten years for her false-pretenses conviction. The court further ordered that the sentences run concurrently and that Sallie pay restitution jointly and severally in the amount of $15,518.25 (the total amount of money that Colom lost from the scam).

¶2. Sallie claims, for the first time on appeal, that her indictment in Count II was fatally flawed because it did not contain specific facts surrounding the alleged crime. Finding Sallie’s indictment sufficient, we affirm the judgment of the circuit court.

FACTS .

¶ 3. Colom owned a motel in Tiplersville, Mississippi. Plaxico and Fryar were two of her tenants. Colom testified that Plaxico often came to her with financial problems and that she was not an "ideal tenant.” The scam leading to Sallie’s conviction started when Plaxico told Colom that a doctor left medical tools inside her body when she gave birth to her child, Plaxico said she planned to sue the doctor and claimed that she needed money for the lawsuit. She promised that she would re-páy Colom once she had the money. When Colom asked Sallie if Plaxico’s story was true, Sallie said that it was. Plaxico initially asked Colom to send money through Moneygram in Sallie’s name because she was the only one with valid identification. Colom sent Sallie $2,160 in September 2012, and then two $50 money orders—one in October 2012 and one in July 2013.

¶ 4. Colom kept giving money directly to Plaxico and Fryar until she found out there was no lawsuit in Plaxico’s name. She testified that, although Sallie did stop telling her to send money, Sallie never said the story was a scam. Sallie testified that Colom kept sending Plaxico and Fryar money even though she told her there was no pending lawsuit. Sallie also denied ever conspiring with Plaxico and Fryar.

DISCUSSION

¶ 6. Sallie claims that Count II of the indictment was defective because it lacked an essential element of the crime— the specific nature of the false pretenses— and prevented her from preparing an adequate defense. She further argues that the indictment did not provide specific details protecting her from double jeopardy. .

¶6. “Challenges to the substantive sufficiency of an indictment may not be waived and consequently may be raised for the first time on appeal.” Ross v. State, 954 So.2d 968, 1015 (¶ 126) (Miss. 2007) (citing State v. Berryhill, 703 So.2d 250, 254 (¶ 16) (Miss. 1997)). Since “a challenge to an indictment for failure to charge the essential elements of a criminal offense affects a fundamental right,” it “may not be waived.” Id. (citing Jefferson v. State, 556 So.2d 1016, 1019 (Miss. 1989)).

¶7. On Count II, Sallie was indicted under Mississippi Code Annotated section 97-19-39(2). (Rev. 2014), which states in pertinent part:

Every person, who with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by another false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, with a value of Five Hundred Dollars ($500.00) or more, upon conviction thereof shall be guilty of a felony and punished by imprisonment in the State Penitentiary not exceeding ten (10) years, and by a fine not exceeding Ten Thousand Dollars ($10,000.00).

Count II of Sallie’s indictment read:

[O]n or about and between the dates of September 1, 2012—October 15, 2013, a date more certain unknown to the grand jury,.Sharon Sallie wilfully, unlawfully, feloniously and knowingly with intent to cheat or defraud Wilma Colom by color of any false token or writing, or by another false pretense, did obtain from Wilma Colom, money with a value of Five Hundred Dollars ($500.00) or more in violation of Section 97-19-39, Mississippi Code, 1972, as amended ....

¶ 8. An indictment that tracks the language of the statute is generally sufficient to inform the accused of the charge against her, as long as the statute “fully, directly, and expressly, without any uncertainty or ambiguity,” sets out all of the elements necessary for the offense. Tran v. State, 962 So.2d 1237, 1241 (¶ 17) (Miss. 2007). Depending on the nature of the case and language of the statute, some indictments may need additional words or facts to sufficiently put a defendant on notice. Id. Sallie argues that, based on our supreme court’s ruling in State v. Cohran, 226 Miss. 212, 83 So.2d 827 (1955), her case falls into the latter category.

¶ 9. In Cohran, the State appealed the circuit court’s judgment sustaining the defendant’s demurrer to the indictment because the indictment was defective. Id. at 827. The defendant had been charged under Mississippi Code Annotated section 2149 (Rev. 1942) for falsifying cotton tickets. Cohran, 83 So.2d at 827-28. In 1955, section 2149 read as follows:

Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by another false pretense, obtain a signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing ... shall be punished by imprisonment ....

The indictment charged that the defendant:

[D]id wilfully, unlawfully, knowingly, fraudulently, designedly, and feloniously, with intent to cheat and defraud one Ross Brown and Barry Brown, a partnership, by color of certain false writings, in words and figures as follows, to wit:
obtain of and from the said Ross Brown and Barry Brown by means and color of the said false writings the sum of $25.56 good and lawful money of the United States,
Against the peace and dignity of the State of Mississippi.

Cohran, 83 So.2d at 827-28.

¶ 10. The supreme court stated that the indictment was speculative since there were no extrinsic facts showing how the words and figures in the tickets were fraudulent. Id. at 828. In affirming the circuit court’s judgment, the court held:

[For a prosecution of] false pretenses, it is necessary to charge that the pretenses were false; that the defendant knew them to be false; that he obtained from another certain money or other valuable things; and that the pretenses were the moving cause by which the money or things were obtained.
Because of the absence of extrinsic facts in explanation of the pretense and wherein it consisted, the indictment was fatally defective. In addition, it also failed to charge that the defendants knew that the writings were false.

Id. (citing State v. Freeman, 103 Miss. 764, 60 So. 774 (1913)). See also Westmoreland v. State, 286 So.2d 807, 809 (Miss. 1973).

¶ 11. The present case is readily distinguishable from Cohran because Sallie’s indictment was not speculative. Sallie was clearly charged for willfully, unlawfully, feloniously, and knowingly obtaining more than $500 from Colom through false pretenses. Her indictment fully and directly set out all of the elements necessary for her offense. See Tran, 962 So.2d at 1241 (¶ 17). Therefore, no additional facts were necessary. Accordingly, we affirm the circuit court’s judgment.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF TIPPAH COUNTY OF CONVICTION OF COUNT I, CONSPIRACY TO COMMIT FALSE PRETENSES, AND SENTENCE AS A HABITUAL OFFENDER OF FIVE YEARS; AND COUNT II, FALSE PRETENSES, AND SENTENCE AS A. HABITUAL OFFENDER OF TEN YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY RESTITUTION JOINTLY AND SEVERALLY IN THE AMOUNT OF $15,518.25, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TIPPAH COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.