source: Caselaw Access Project

author: Judge Joy Cossich Lobrano

license: Public Domain

text:
    STATE of Louisiana v. Ardulrauman ZEITOUN
    NO. 2017-KA-0366
    Court of Appeal of Louisiana, Fourth Circuit.
    November 8, 2017

      Leon ;A. Cannizzaro, Jr., DISTRICT ATTORNEY, ORLEANS PARISH, Donna Andrieu, Assistant District Attorney, Christopher J. Ponoroff, Assistant District Attorney, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR AP-PELLEE/STATE OF LOUISIANA
    Martin E. Regan, Jr., Graham DaPonte, REGAN LAW, PLC, 2125 St. Charles Avenue, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland. L.-Belsome, Judge Joy Cossich Lobrano, - Judge Marion F. Edwards, Pro Tempore)
   Judge Joy Cossich Lobrano

Appellant Ardulrauman Zeitoun (“Defendant”) seeks review of his conviction for stalking a person for whose benefit a protective order has been issued and his sentence of four years at hard labor in the custody of the Louisiana Department of Corrections. For the reasons that follow, we affirm Defendant’s conviction and sentence.

The victim, K.Z., met Defendant in 1994. They were married that same year, and had four children together. After a March 2011 incident where Defendant was arrested for beating her, K.Z. eventually decided to divorce Defendant. Upon telling Defendant of her decision, Defendant said to K.Z., “[d]rop this [explicative] or I’ll finish your life.” K.Z. continued with the divorce, and the divorce was finalized on February 8, 2012.

As part of the property settlement after the divorce, K.Z. became responsible for managing the former couple’s rental properties and was awarded ten percent of the rental income. The upkeep on the properties was a time-consuming responsibility, so K.Z. was frequently present at one of the properties. The property settlement also'allowed Defendant to live in the property that had been the primary residence during the marriage (the “Residence”) on the condition that he paid the mortgage and the utility bills. Defendant failed to do so, and he vacated the Residence. Eventually, K.Z. moved into the Residence.

Various incidents occurred after Defendant moved out of -the Residence. First, a July 25, 2012 incident resulted in Defendant being charged with attempted first degree murder. See La. R.S. 14:(27)30. K.Z. testified that she and Defendant had a closing at a law office that they were scheduled to attend at differeht times. After completing her business, K.Z, left the law office and proceeded to her car. As she attempted to pull out of the parking space, Defendant pulled his van up beside her vehicle, which prevented her from leaving or opening her door. Defendant exited the van with a tire iron and began striking K,Z.’s vehicle and her windshield, causing it- to break. K.Z. managed to slide over to the passenger side, unlock the door, and run down the street. Defendant chased after her and struck her with a tire iron. She fell to the ground, and Defendant dropped the tire iron. His hands now free, Defendant grabbed K.Z. by the head and began beating her in the head and back. Then, Defendant started to. strangle her. K.Z. stated that he tried to break her neck, and that Defendant intended to kill her. A bystander was able to -get Defendant off of her in time. KZ. was certain that she would have died had someone not intervened. She was suffocating.

The second incident took place on April 30, 2014, when Defendant violated a protective order. On October 2, 2012, a protective order (the “Order”) was entered by a judge in Civil District Court. The terms of the Order barred Defendant from coming within 100 yards of K.Z. or contacting her by any means. The Order also required that Defendant stay at least 100 yards away from the rental properties managed by K.Z. Despite the Order, Defendant returned to the rental properties managed by K.Z. On April 30, 2014, Defendant drove by one of the rental properties in a white cargo van while K.Z. was there with her daughter, N.Z. was watering the front lawn when Defendant drove past and waved at her once, slowly. Officer Samuel Jennings (“Officer Jennings”) responded to the incident. After hearing K.Z. and N.Z.’s statements! and learning of the Order, he prepared an arrest warrant for Defendant. Defendant was arrested for violation of protective orders. See La. R.S. 14:79.

Less than a month later, on May 16, 2014, a third incident occurred between K.Z. and Defendant. K.Z. was at another one of the rental properties doing some painting with her children. After Defendant’s release from custody she began carrying a handgun, for which she has a permit. However, while she was painting, she put the gun down. At one point she had to go out to her vehicle to retrieve something. The white cargo van Defendant had previously driven by the Residence in was parked in front of the property, ten or fifteen feet away. As she exited the gate, she looked up and saw Defendant’s van blocking her in, as it had been before, on the day of the tire iron attack. Defendant was in the van. K.Z. immediately thought he was going to attack her again. She reached for her gun only to realize she had left it inside. K.Z. panicked, started screaming, and ran back inside. Her children came outside, and Defendant drove off slowly. K.Z. contacted the police, and Defendant was ultimately arrested for violation of protective orders. See La. R.S. 14:79. On June 25, 2014, as a condition of reducing Defendant’s post-indictment bond, Defendant was again prohibited from contacting K.Z. or going to. the Residence.

Less than two weeks later, on August 6, 2014, a fourth incident occurred when Defendant contacted K.Z. by phone. K.Z. captured a screenshot of the call, and recorded part of the conversation. During the call, Defendant attempted to set up a meeting with K.Z., despite the Order, regarding transferring some property. K.Z. insisted that Defendant contact her attorney to perfect any transactions stating, “[y]ou have to meet with my attorney, not me.” K.Z. then contacted her attorney and the prosecutor to report Defendant’s phone call. Despite KZ.’s attempts to keep Defendant from contacting her, at 6:24 а.m. the next morning, Defendant called her again. She did not answer.

In September and October of 2014, three more incidents occurred between K.Z. and Defendant. At this time, KZ.’s children, including N.Z., and their roommates were living at the Residence. 'On September 16, 2014, K.Z. received a call from N.Z., who informed her that Defendant was at the Residence. N.Z. had been sleeping when she heard the dog barking in the backyard. She looked out the window and saw Defendant walking in the yard with a ladder, attempting to ward the dog off. N.Z. got one of her roommates to escort her out of the house and the two drove away. K.Z. panicked and called 911. Defendant was subsequently arrested for violation of protective orders. See La. R.S. 14:79. Following Defendant’s arrest, the district court again admonished Defendant that he was to have absolutely no contact with K.Z. or with the children.

Less than a week later, on September 22, 2014, K.Z. received another phone call from N.Z. telling her that Defendant was at the Residence. Once again, N.Z. heard the dog barking. Then, when she neared the main room of the house where her roommates were located, she heard Defendant’s voice. When he saw her, he stated, “You come here.” At that point, N.Z. ran to a neighbor’s house and called the police. K.Z. also contacted the police, and Defendant was subsequently arrested for violation of protective orders. See La. R.S. 14:79. The district court once again explicitly ordered Defendant to have no further contact with K.Z. or her children. Despite this order, Defendant called K.Z. just twelve days later, on October 4, -2014.'K.Z. felt that this call was an attempt by Defendant to let her know that he was still there, and that he was not going anywhere.

All of these incidents affected the rental business. A tenant who used to live at one of KZ.’s rental properties near the Residence testified that she moved out in April of 2014 because she was afraid that something might happen at the rental property when she was at home, or when her children were there alone after school. K.Z. advised the tenant to Google her prior to moving into the property. At first, the tenant thought that it would be safe because Defendant was in jail. However, Defendant’s behavior upon his release altered her opinion.

During one incident, Defendant released two goats into the tenant’s backyard. Later, on January 26, 2014, Defendant randomly cut down a tree in the tenant’s front yard. The tenant also spotted Defendant hiding out in the apartment next door, one of the rental properties Defendant was prohibited from accessing by the Order. She found it strange that Defendant was in the apartment despite the fact that it had no electrical service.

The tenant was forced to call the police four .or five times during the time she resided at the rental property. Officer Charles Augustus (“Officer Augustus”) interviewed the tenant after one of the times that she saw Defendant in the apartment next door. After his interview with the tenant, Officer Augustus prepared a warrant for Defendant’s arrest. Another warrant for Defendant’s arrest was generated as a result of the tree-felling incident.

On Juné 23, 2014, Defendant was indicted for felony stalking in violation of a protective order between January 26, 2014 and May 16, 2014. The indictment also alleged that Defendant placed the victim in reasonable fear of death or bodily injury, in violation of La. R.S. 14:40.2(B)(2)(a). Defendant was arraigned on June 25, 2014, and entered-a plea of not guilty. The bill of indictment was eventually amended to extend the period of alleged stalking to January 26,2014 through October 4, 2014. '

On December 16, 2014, the State filed a notice of intent pursuant to Louisiana Code of Evidence article 404(B) to introduce evidence of Defendant’s prior bad acts. Defendant filed his opposition to the State’s notice on March 13, 2015. A contradictory hearing was held on March 26, 2015. The district court granted in part and denied in part the State’s motion, but agreed to reconsider its ruling after post-hearing briefing. On May 5, 2015, the district court denied the State’s motion for reconsideration, and affirmed its original ruling. The State sought supervisory review of the district court’s ruling. This Court granted the writ and reversed the district court’s ruling as to, among other things, the admissibility of the tire iron attack. State v. Zeitoun, unpub., 2015-0580 (La. App. 4 Cir. 6/1/15), writ denied, 2015-1285 (La. 9/25/15), 178 So.3d 571.

On June 6, 2016, Defendant proceeded to trial. After a one-day bench trial, the district court found Defendant guilty as charged. On October 21, 2016, Defendant filed'a motion for new trial. He then filed amended motions for new trial on November 2 and 15, 2016. The district court denied the motion for new trial on November 21, 2016. That same day, the district court, sentenced Defendant to serve four years in the Louisiana Department of Corrections, finding that the elements necessary to trigger the sentencing enhancement for placing the victim, for whom a protective order had been issued, in reasonable fear of death or bodily injury had been proven beyond a reasonable doubt. Defendant objected to the sentence, but did not file a motion to reconsider sentence.

This appeal timely follows.

Errors Patent

Louisiana Code of Criminal Procedure article 920 directs appellate courts to consider errors discoverable by an inspection of the pleadings and proceedings. State v. Thomas, 2012-0177, p.6 (La. App. 1 Cir. 12/28/12), 112 So.3d 875, 878. A review of the record reveals that Defendant was not arraigned on the amended bill of indictment. However, failure to arraign a defendant is harmless if the defendant goes to trial without objecting to the failure. La. C.Cr.P. art. 555. In the case sub judice, Defendant failed to object to not being arraigned on the amended bill of indictment, and has not raised the failure to arraign as an assignment of error on appeal. Accordingly, any error in the’ omission is harmless. See State v. Brown, 620 So.2d 508, 511-12 (La. App. 4th Cir. 1993) (finding that the failure to arraigh the defendant was'patent error but was harmless where defendant never objected to the lack of arraignment and did not urge it as grounds for reversal on appeal). There are no other patent errors.

Assignments of Error

Defendant assigns errors relating to both his trial and his sentence. As to his trial; Defendant argues that the evidence was insufficient to support his conviction and that other crimes evidence was introduced against him erroneously. “When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, we [the reviewing court] first determine the sufficiency of the evidence.” State v. George, 2015-1189, p. 9 (La. App. 4 Cir. 11/9/16), 204 So.3d 704, 711, (quoting State v. Marcantel, 2000-1629, p. 8 (La. 4/3/02), 815 So.2d 50, 55).

When reviewing the sufficiency of the evidence to support a conviction, this Court is controlled by the standard set forth by the United States Supreme Court in Jackson v. Virginia. 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also State v. Captville, 448 So.2d 676, 678 (La. 1984) (recognizing that Louisiana courts are bound by the standard articulated in Jackson v. Virginia). See also State v. Marshall, 2004-3139, p. 7 (La. 11/29/06), 943 So.2d 362, 367 (applying the Jackson standard to review, of verdicts in judge trials). The Louisiana Supreme Court explains the Jackson standard as follows:

Under this standard, an appellate court “must determine that the evidence, 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 had been proved beyond a reasonable doubt.” [State v. ]Tate, 851 So.2d [921]at 928 [ (La. 2003) ]. In applying this standard, a reviewing court is not permitted to second guess the rational credibility determinations of the fact finder at .trial, nor is a reviewing court required to consider the rationality of the thought processes employed by a particular fact finder in reaching a verdict. State v. Marshall, 04-3139 (La. 11/29/06), 943 So.2d 362, 367. It is not the function, of an appellate court to assess credibility or reweigh the evidence. State v. Stowe, 635 So.2d 168, 171 (La. 1994).

State v. Kelly, 2015-0484, pp. 3-4 (La. 6/29/16), 195 So.3d 449, 451; see also State v. Chambers, 2016-0712, pp. 6-7 (La. App. 4 Cir. 2/15/17), 212 So.3d 643, 648 (applying this articulation of the Jackson standard in a case before this Court). Accordingly, where rational triers of fact could disagree as -to the interpretation of the evidence, the view of all evidence in the light most favorable to the prosecution must be adopted on review. See State v. McGhee, 2015-2140, p. 2 (La. 6/29/17), 223 So.3d 1136, 1137 (La. 2017) (citing State v. Mussall, 523 So.2d 1305, 1310 (La. 1988)).

Defendant first argues that the evidence was insufficient to prove the crime of stalking as defined by La. R.S. 14:40.2(A). Stalking is defined as follows:

Stalking is the intentional and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress. Stalking shall include but not be limited to the intentional and repeated uninvited presence of the perpetrator at another person’s home, workplace, school, or any place which would cause a reasonable person to be alarmed, or to suffer emotional distress as a result of verbal, written, or behaviorally implied threats of death, bodily injury, sexual assault, kidnapping, or any other statutory criminal act to himself or any member of his family or any person with whom he is .acquainted.

La. R.S. 14:40.2(A).

Defendant argues that because several of the "alleged stalking incidents consisted of him simply being present at the Residence, at the adjacent rental property, or on a public street, these incidents cannot qualify as “harassing” under La. R.S. 14:40.2(A). He further argues that after excluding these incidents, the remaining incidents taken together are insufficient to establish the element of an “intentional and- repeated uninvited presence of the perpetrator.” Id.

Although Defendant argued that he had the right to be present at the Residence throughout the trial, the evidence presented contradicts that argument. K.Z. testified that although the terms of the property settlement allowed Defendant to live at the Residence, that authorization was conditional upon his paying the mortgage and utilities. Because he failed to do so, K.Z. testified, he moved out, and she eventually moved into the Residence. The record is void of any evidence to suggest that Defendant lived at the Residence at the time of any of the incidents at issue, and Defendant presented no evidence to contradict KZ.’s testimony. Compare State v. Higginbotham, 2000-1782 (La. App. 5 Cir. 5/16/01), 790 So.2d 648 (finding that the harassment, element of stalking was satisfied by evidence that the defendant, on several occasions, stood near the victim’s home and passed her home in his truck). Accordingly, Defendant’s argument that his actions resulted from his habitation at the Residence lacks merit.

Moreover, the record indicates that the only reason for Defendant’s presence at the nearby rental properties at issue was to harass and intimidate K.Z. and her children. No evidence was introduced to suggest that there was any need for Defendant to chop down a tree at one of the rental properties, or to release goats onto that property’s yard. Contrast State v. Young, 96-2079 (La. App. 1 Cir. 5/15/98), 712 So.2d 273 (finding that where the defendant, a pro se litigant, was repeatedly present in a judge’s courtroom when his matter was not on the docket and- repeatedly called the judge’s chambers, the evidence was not sufficient to support the defendant’s stalking conviction). The argument that some of the incidents at issue resulted from Defendant’s joint ownership of the rental properties lacks merit. The district court’s decision not to discount the events occurring at the Residence or the nearby rental properties was well ■ supported by the evidence.

Regarding Defendant’s allegation that one of the incidents at issue was based on his lawful presence in a public street, the record evidences that Defendant knew that he was not allowed to come within 100 yards of K.Z. or the rental property locations identified in the Order. Defendant blocked K.Z.’s car, which was only about fifteen feet from the Residence where K.Z. was present, with his van. Viewing the record as a whole, one must conclude that Defendant blocked KZ.’s car to harass her. This harassment is not somehow exempt from violating La. R.S. 14:40.2(A) because Defendant was on a public street while committing it. Viewing the evidence in the light most favorable to the prosecution, the evidence was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.

Defendant further argues that the evidence was insufficient to prove that the victim was placed in fear of death or bodily injury as defined by La. R.S. 14:40.2(2)(a), which reads:

(2)(a) Any person who commits the offense of stalking and who is found by the trier of fact, whether the jury at a jury trial, the judge in a bench trial, or the judge at a sentencing hearing following a jury trial, beyond a reasonable doubt to have placed the victim of the stalking in fear of death or bodily injury by the actual use of or the defendant’s having in his possession during the instances which make up the crime of stalking a dangerous weapon or is found beyond a reasonable doubt to have placed the victim in reasonable fear of death or bodily injury, shall be imprisoned for not less than one year nor more than five years, with or without hard labor, without benefit of probation, parole, or suspension of sentence and may be fined one thousand dollars, or both. Whether or not the defendant’s use of or his possession of the dangerous weapon is a crime or, if a crime, whether or not he is charged for that offense séparately or in addition to the crime of stalking shall have no bearing or relevance, as to the enhanced sentence under the provisions of this Paragraph.

The trier of fact has the discretion to accept or reject, either partially or wholly, the testimony of any witnesses,' including that given by the victim of a crime. State v. DeBarge, 2016-437, p. 26 (La. App. 3 Cir. 12/28/16), 210 So.3d 377, 394 (citing State v. Schexnaider, 2003-144, p. 9 (La. App. 3 Cir. 6/4/03), 862 So.2d 450, 457). In State v. DeBarge, the victim testified that she was in fear of death or serious bodily injury, cited to several past incidents that led her to that belief,' and had sought a protective order as a result of the defendant’s conduct. Id. Moreover, another witness testified that they also believed that the DeBarge defendant would kill his victim, should he be released from jail. Id. There, the Third Circuit found that the district court did not err in finding that the victim was in reasonable fear of death or bodily injury.

Likewise, in the case sub judice, the district court did not err in finding that K.Z. was in reasonable fear of death or bodily injury. K.Z. testified that Defendant threatened to kill her when she filed for divorce', attacked her with a tire iron while she was leaving á business transaction, and continued to violate the Order despite multiple arrests for the violations and multiple admonitions from the district court. The record evidences how deeply afraid K.Z. was of Defendant, and what a visceral response she had to his presence, due to Defendant’s repeated harassment. Moreover, KZ.’s tenant moved out of one of the rental properties after being forced to call the police several times because she was afraid of Defendant. Accordingly, the evidence proves beyond a reasonable doubt that Defendant placed K.Z. in reasonable fear of death or great bodily injury. This assignment of error lacks merit.

Defendant next argues that he was prejudiced by the admission of evidence relating to the July 25, 2012 tire iron attack he perpetrated against K.Z., arguing that the evidence’s probative value was substantially outweighed by its prejudicial effect. See La. C.E. art 403. This Court previously ruled on the admissibility of this evidence in State v. Zeitoun, unpub., 2015-0580 (La. App. 4 Cir. 6/1/15). When ruling, on that writ application, this Court stated:

The probative value of this evidence outweighs any prejudicial effect it would have on the defendant. These prior acts give context to the relationship of the defendant and the victim and are highly probative to show that the defendant intended to place the victim in reasonable fear of death or great bodily harm. Further, the jurisprudence establishes that the prior acquittal of the defendant for incidents D and E. does not preclude evidence of these as being admitted in the present case. See Dowling v. U.S., 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990); State v. Cotton, 2000-0850 (La. 1/29/01), 778 So.2d 569.

Zeitoun, 2015-0580 at pp. 2-3.

The fact that this Court has, previously ruled on this issue implicates the law of the case doctrine. “The law of the case doctrine requires that, as a general rule, appellate courts refuse to reconsider their own rulings on a subsequent appeal of the same case.” State v. Garrison, 2016-0257, p. 6 (La. App. 4 Cir. 3/29/17), 215 So.3d 333, 337 (citations omitted). Unless the defendant produces new evidence showing that the prior ruling was patently erroneous and produced an unjust result, an appellate court will not reverse its prior rulings. State v. Golden, 2011-0735, p. 13 (La. App. 4 Cir. 5/23/12), 95 So.3d 522, 531. The doctrine applies to all prior rulings or decisions of an appellate court or the Supreme Court in the same case, not merely those arising from the full appeal process. Garrison, 2016-0257 at p.6, 215 So.3d at 337 (quoting State v. McElveen, 2010-0172, p. 13, n.8 (La. App. 4 Cir. 9/28/11), 73 So.3d 1033, 1054 (citations omitted)).

In the case sub judice, Defendant has produced no new evidence to suggest that this Court’s prior analysis of the admissibility of the July 25, 2012 attack was patently erroneous and produced an unjust result. As this Court previously stated, “[w]hen intent is ‘an essential ingredient of the crime charged, it is proper to admit proof of similar but disconnected crimes to show the intent with which the act charged was committed.’ ’’ Zeitoun, 2015-0580 at p. 2 (citing State v. Jackson, 625 So.2d 146, 150 (La. 1993)). This assignment of error lacks'merit.,

Next, Defendant argues that the case should be remanded for resentencing because he was sentenced immediately following the denial of his motion for new trial. He argues that his immediate sentencing contravened La. C.Cr.P. art. 873, which provides:

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

Although Defendant argues that he did not waive the statutory delay, the transcript reflects.otherwise. The record indicates that Defendant’s counsel stated “[a]t this time, the defendant would waive sentencing delays. We’re ready for , sentencing.” Accordingly, this assignment of error lacks merit.

Lastly, Defendant assigns two errors related to his sentence. First, Defendant argues that the district court failed to comply with the sentencing guidelines expressed in La. C.Cr.P. art. 894.1(C), which require that “[t]he court shall state for the record, the considerations taken into account and the factual basis therefor in imposing sentence.” Next, Defendant argues that his sentence is excessive.

La. C.Cr,P. art.' 881.1(E) sets limits on appellate review of sentences where, as in the case sub judice, a defendant fails to file a motion to reconsider sentence at the district court. La. C.Cr.P, art. 881.1(E) reads, in pertinent part:

A. (1) Within thirty days following the imposition of sentence ... the defendant may make or file a motion to reconsider sentence.
(2) The motion ... shall set forth the specific grounds on which the motion is based....
E. Failure to make or file a motion to reconsider sentence ... shall preclude ... the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Accordingly, when a defendant fails to file a La. C.Cr.P. art. 881.1 motion to reconsider sentence, an appellate court’s review of the sentence is limited to a bare review for constitutional excessiveness. State v. Mims, 619 So.2d 1059, 1060 (La. 1993). Defendant’s failure to file a motion to reconsider sentence bars him from raising the district court’s failure to follow the La. C.Cr.P. art. 894.1(C) requirement on appeal, and renders this assignment of error without merit.

Turning to Defendant’s constitutional excessiveness assignment of error, Louisiana Constitution of 1974, art, I, § 20 provides that “[n]o law shall subject any person to ... excessive ... punishment.” A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, or is nothing more than a purposeless imposition of pain and suffering that is grossly out of proportion to the severity of the crime. State v. Ambeau, 2008-1191, p. 9 (La. App. 4 Cir. 2/11/09), 6 So.3d 215, 221. A sentence is grossly out of prpportion to the seriousness of the crime if, when the crime and punishment are considered in light of the harm done to society; it shocks the sense of justice. State v. Vargas-Alcerreca, 2012-1070, p. 25 (La. App. 4 Cir. 10/2/13), 126 So.3d 569.

Defendant’s sentence of four years falls within the one to five year statutory., limit set by La. R.S. 14:40,2(A)(2). Although a sentence falls within the statutory limits, it can be reviewed. for constitutional excessiveness. State v. Dauzart, 2011-0688, p. 12 (La. App. 4 Cir. 3/21/12); 89 So.3d 1214, 1222 (citations omitted).. The penalties provided by the Legislature, however, “reflect the degree . to which criminal. conduct is an affront to society.” State v. Jones, 2015-0956, p. 28 (La. App. 4 Cir. 3/22/17), 214 So.3d 124, 144; see also La. C.C. art. 2 (stating, “[l]egislation is .the solemn expression. of legislative will”). Sentences that are within the authorized .statutory range are thus entitled to,great deference. Jones, 2015-0956 at pp. 28-29, 214 So.3d at 144.

The district court has broad sentencing discretion, and a sentence will not be set aside for excessiveness absent an abuse of that discretion. State v. Wells, 2011-0744, p. 28 (La. App. 4 Cir. 4/13/16), 191 So.3d 1127, 1147 (citations omitted). When reviewing a sentence for excessiveness, appellate courts begin by determining whether, the district court has ade-. quately considered the sentencing factors set forth by La. C.Cr.P., art. 894.1. Defendant’s motion for new trial and sentencing hearing took place on the same day. As Defendant asserted in his barred assignment of error, the district court did not state for the record the considerations taken into account and the factual basis for the sentence it imposed when it sentenced Defendant. However, the district court, who presided over Defendant’s bench trial, reiterated the evidence that it heard when ruling on Defendant’s motion for new trial in that same hearing. In so ruling, the district court stated that the offense involved multiple incidents, see La. C.Cr.P. art. 894.1(B)(11), that Defendant had persistently been involved in similar offenses, see La. C.Cr.P. art. 894.1(B)(12), that Defendant had committed some of the relevant incidents at the victim’s place of employment, see La. C.Cr.P. art. 894.1(B)(9), and that the victim had been placed in reasonable fear of death or great bodily injury. Considering that Defendant is barred from challenging the district court’s failure to state these considerations for the record as to the sentence on appeal, and further considering that the sentencing factors the district court considered are identifiable from the face of the record, we cannot find that the district court did not adequately consider the La. C.Cr.P. art. 894.1 factors.

When the reviewing court finds that the district court adequately applied the La. C.Cr.P. art. 894.1 factors, the reviewing court must then determine whether the sentenced imposed is too severe in light of this particular defendant and the circumstances of his case. State v. Ellis, 2014-1170, p. 26 (La. App. 4 Cir. 3/2/2016), 190 So.3d 354, 371. Defendant argues that he is deserving of a more lenient sentence because during the nine-month period covered in the amended bill of indictment, there were no allegations of weapons or threats of harm or violence. Given that the indictment was amended due to Defendant’s continuing harassment of the victim, that Defendant repeatedly disregarded the district court’s admonishments to stop contacting the victim, and that the district court found beyond a reasonable doubt that Defendant placed the victim in reasonable fear of death or bodily injury, the sentence was well-within the district court’s discretion. This assignment of error is without merit.

For the reasons stated above, Defendant’s conviction and sentence are affirmed.

AFFIRMED

      . Pursuant to La. R.S. 46:1844(w), initials are used to protect the identity and provide for the safety and welfare of the victims.

      . Defendant was also charged with soliciting another person to murder the victim in a separate incident. See La. R.S. 14:(27)28.1, These two charges were tried together, On July 30, 2013, after a judge trial, Defendant was found not guilty of attempted first degree murder with respect to the July 25, 2012 incident, and found not guilty of soliciting another person to murder the victim.

      . The Order originally stated that Defendant lived at the Residence. However, on September 24, 2014, the Order was amended to order Defendant to stay away from the Residence, as Defendant was no longer living there.

      . The State introduced this arrest warrant as an exhibit at trial.

      . Both the screenshot and the recorded portion of the conversation were introduced by the State as evidence against Defendant at Defendant’s trial.

      . The State introduced a screen shot from K.Z.’s phone of the call as evidence against Defendant at trial.

      . A recording of the 911 call she placed was played during Defendant's trial.

      . It was after this incident that K.Z. went back to the Civil District Court and had the Order amended to specifically include the Residence. See supra fn. 1.

      .The State introduced copies of both of these arrest warrants as exhibits at trial.

      . When, as in the case sub judice, the stalker’s victim is under a protective order, La. R.S. 14:40.2(3) can be used to enhance the defendant's sentence. That provision reads:
      Any person who commits the offense of stalking against a person for whose benefit a protective order, a temporary restraining order, or any lawful order prohibiting contact with the "victim issued by a judge or magistrate is in effect in either a civil or criminal proceeding, protecting -the victim of the stalking from acts by the offender which otherwise constitute the crime of stalking, shall be punished by imprisonment with or without hard labor for not less than ninety days and not more than two years or fined not more than five thousand dollars, of both.
      La. R.S. 14:40.2(3). However, because the district court found that Defendant placed the victim in reasonable fear of death or bodily injury, another enhancement provision, La. R.S. 14:40.2(2)(a), was used to enhance Defendant's sentence.

      . Compare St. Fort v. State, 943 So.2d 314 (Fla. Dist. Ct. App. 4th Dist. 2006) (stating that the purpose of a stalking statute is to "criminalize conduct that falls short of assault or battery”).

      . Contrast State v. Hulbert, 2003-1149, pp. 2-3 (La. App. 4 Cir. 8/20/03), 852 So.2d 1245, 1247 (finding that where a defendant failed to object to his sentence and failed to file a motion to reconsider sentence, he was barred from raising any challenge to his sentence on appeal, including constitutional excessiveness), As discussed supra, in the case sub judice, Defendant objected to his sentence, but failed to file a motion to reconsider sentence.


author: LILJEBERG, J.

text:
    STATE of Louisiana v. Sidney Kristopher SMITH
    NO. 17-KA-296
    Court of Appeal of Louisiana, Fifth Circuit.
    November 15, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Joel T. Chaisson;- II, Baton Rouge, Louis G. Authement, Hahnville
    COUNSEL FOR DEFENDANT/APPELLANT, SIDNEY KRISTOPHER SMITH, Bruce G. Whittaker
    Panel composed of Judges Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg
   LILJEBERG, J.

11 Defendant, Sidney Kristopher Smith, appeals his conviction for manslaughter. For the following reasons, we affirm defendant’s conviction and sentence.

PROCEDURAL HISTORY

On June 19, 2015, a St. Charles Parish Grand Jury .indicted defendant with the second degree murder of Warren Sanders, a violation of La. R.S. 14:30.1. Defendant pleaded not guilty on July 8,2015.

Prior to the start of voir dire on October 17, 2016, the parties informed the trial judge that approximately thirty to forty members of the jury venire were in the courtroom when deputies escorted defendant into the courtroom secured in handcuffs and shackles. The record indicates defendant was immediately removed from the courtroom. Defendant moved for a mistrial asserting that his presence in restraints in front of the venire was likely' to have - a prejudicial effect on his case and his - presumption of innocencé. The trial court denied defendant’s motion for a mistrial after questioning the attorneys- regarding the number of prospective jurors present, how long defendant was in the courtroom, and how far into the courtroom defendant walked before he was removed from the courtroom.

On. October 17-19, 2016, the case was tried before a twelve-person jury that found defendant guilty of the responsive verdict of manslaughter. The trial court sentenced defendant on December 20, 2016, to thirty-two years in the Department of Corrections. Immediately following sentencing, defendant filed a motion for appeal which was granted by the trial court on the same day.

[gFACTS ~

' On the evening of April 18, 2015, Detective Jason1 Tiliakos of the St. Charles Parish Sheriffs Office responded to a call regarding a shooting on the Eastbank of St. Charles Parish. Upón arrival, Detective Tiliakos observed a distraught woman pacing on East Terrace Street and a male, later identified as the victim, Warren Sanders, lying in a nearby ditch. Detective Tiliakos further observed that the man sustained multiple gunshot wounds, including one to the back of his head. He also observed a tan hat on the shoulder of the roadway near the victim’s unresponsive body.

The distraught woman was identified as Lacie Gloud. According to Ms. Gloud, she was in an on-and-off relationship with Mr. Sanders for the past eight and a half years. Approximately one year prior to the shooting, Ms. Gloud met defendant and became romantically involved with him, while still dating Mr, Sanders. According to Ms. Gloud, Mr. Sanders was unaware of her relationship with defendant, but. defendant knew of her relationship with Mr. Sanders and never indicated his disapproval. It appeared to her that the men remained friendly with one another. ■

On April 18, 2015, Ms. Gloud and her children were at defendant’s house. They had been there for a week lending support to defendant as he grieved the loss of his aunt.' During that time, Ms. Gloud stated that defendant was “sad” and recalled that he told her that “he would catch a body,” meaning, “someone was going to get hurt.” Later that evening, Mr. Sanders telephoned Ms. Gloud and told her he was at her house. Mr. Sanders asked Ms. Gloud to leave defendant’s house and come home. When Ms. Gloud advised defendant that she was going home with her children to meet Mr. Sanders, defendant suggested that she tell him to pick her up from his house instead. Ms. Gloud rejected defendant’s suggestion as ^disrespectful, causing defendant to become upset. Ms. Gloud then proceeded to pack her belongings in preparation to leave.

Before Ms. Gloud finished packing, defendant left his house wearing a tan and green-colored hat. Ms. Gloud followed defendant and observed him reach into his car and then walk down the street. Ms. Gloud walked out into the street and saw Mr. Sanders’ vehicle down the street and defendant walking quickly towards it. As defendant was approaching, Mr. Sanders called Ms. Gloud, but before she was able to warn him that defendant was approaching his car, the phone disconnected. Ms. Gloud then began walking down the street with her children and yelling at defendant to stop. Despite her pleas, defendant continued to approach,Mr. Sanders’ vehicle and she heard defendant tell Mr. Sanders to get out his neighborhood. Mr, Sanders replied that he did not want any trouble, and defendant responded by saying, “you would say that, when I got a gun in your face.”

During this exchange, Mr. Sanders was in his vehicle, while defendant stood outside. Moments later, Mr. Sanders exited his vehicle, at which time Ms. Gloud heard the first gunshot. Ms. Gloud explained that defendant was standing in front of the car door and that when Mr. Sanders opened it, the door pushed defendant backwards. Ms. Gloud stated Mr. Sanders and defendant were within inches of one another when she heard the first gunshot, followed by several more gunshots a few seconds later. Defendant then walked back up the street towards Ms. Gloud, attempted to kiss her, and remarked “I guess you don’t love me anymore,” before proceeding back to his house, Ms. Gloud noticed that when defendant approached her, he was no longer wearing his hat.

|4Ms. Gloud then walked down the street to Mr. Sanders’ vehicle and called his ríame. She could not find Mr. Sanders and thought he ran to her house; so she put her children in his car and drove them back to her house. At her house she found defendant’s friend, Kenny King, and told him defendant and Mr, Sanders argued and defendant “shot behind” Mr. Sanders. Ms. Gloud and Mr. King then walked back to the scene of the shooting, stopping first to look for defendant at his mother’s house. Defendant was not there and Ms. Gloud told defendant’s mother about the shooting. Ms. Gloud and Mr. King then continued to look for Mr. Sanders, and they found him lying unresponsive in a ditch next to where he parked his vehicle at the time of the shooting.

Corporal Lance Richards of the St. Charles Parish Sheriffs Office testified that he obtained a statement from Ms. Gloud. Corporal Richards found her to be very nervous and distraught. Based on his interview with Ms. Gloud, Corporal Richards developed defendant as a suspect. An arrest warrant was issued, and defendant was apprehended after he turned himself in to the police approximately twenty-four hours after the shooting.

Dr. Richard Tracy, an expert in the field of forensic pathology, performed the autopsy on the victim. He noted that the victim sustained two gunshot wounds — one to the left side of his chest and one to the back of his head. The manner of death was classified by medical expert, Dr. Brian Brogle, as a homicide.

DISCUSSION

On appeal, defendant first contends the trial judge erred in denying his motion for mistrial based on prejudice he suffered as a result of being handcuffed and shackled in the presence of prospective jurors prior to voir dire. He argues his |Rappearance before the jury in handcuffs and shackles hindered his presumption of innocence and right to a fair trial.

The State argues that there is no evidence to establish that any of the prospective jurors actually observed defendant in restraints for the brief period of time he was in the courtroom or whether any of the potential jurors who may have observed the restraints were ultimately selected to serve on the jury. The State contends that the trial court correctly denied defendant’s motion for mistrial, and further notes that adequate voir dire ensured defendant’s presumption of innocence remained intact.

La. C.Cr.P. art. 775 provides that a mistrial shall be ordered upon motion of the defendant “when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.” The incident defendant complains of is not one of the mandatory grounds for mistrial enumerated in La. C.Cr.P. art. 770.

“A mistrial.is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial.” State v. Smith, 04-340 (La. App. 5 Cir. 10/26/04), 888 So.2d 280, 285. “Whether a mistrial should be granted is within the sound discretion of the trial court and the denial of ha motion for mistrial will not be disturbed absent an abuse of that discretion.” Id. The standard to judge whether a mistrial should have been granted is whéther the defendant “suffers such substantial prejudice that he has been deprived of any reasonable, expectation of a fair trial.” State v. Smith, 433 So.2d 688, 696 (La. 1983); State v. Cushenberry, 407 So.2d 700 (La. 1981).

“Ordinarily, a defendant before the court should not be shackled or handcuffed or garbed in any manner destructive of the presumption of his innocence and of the dignity and impartiality of judicial proceedings.” State v. Wilkerson, 403 So.2d 652, 659 (La. 1981). However, the mere fact that the defendant appeared in' handcuffs before a jury does not, in and of itself, constitute a basis for reversal of his conviction. State ex rel. Cockerham v. Butler, 515 So.2d 1134, 1137 (La. App. 5 Cir. 1987). Courts are hesitant to find that the momentary use of shackles or handcuffs for the limited purpose of transporting an accused mandates a mistrial. Rather, the defendant must show that jurors viewed him in restraints and that this resulted in prejudice to the defendant which affected the verdict. Wilkerson, supra; Cockerham, supra; State v. Cleveland, 25,628 (La. App. 2 Cir. 1/19/94), 630 So.2d 1365, 1370.

In Wilkerson, supra, trial was adjourned for the day. Before the jury was able to file out of the courtroom, a member of the sheriffs office handcuffed the defendant and his co-defendant. More than half of the jury passed within three or four feet of the defendant and, as the defendant argued; saw that he was handcuffed. On this basis, defense counsel moved for a mistrial. The Louisiana Supreme Court affirmed the denial of the motion for mistrial. 403 So.2d at 659. It stated that the defendant’s apparent disregard for the authority and lives of police officers would suggest some security measures were in order. It noted that the defendant and his co-defendant were not handcuffed during trial but solely for purposes of transport to and from the courtroom. It found that, under the |7circumstances, the possibility that on one occasion several jurors may have seen the defendant in handcuffs did not appear to have so prejudiced the defendant as to warrant relief on appeal. Id.

In State v. Logan, 07-739 (La. App. 5 Cir. 5/27/08), 986 So.2d 772, 786, writ denied, 08-1525 (La. 3/13/09), 5 So.3d 117, the defendant filed a motion for new trial arguing that his right to due process was violated when a juror viewed him wearing shackles during the trial. A deputy testified at the hearing that a juror may have seen the defendant in shackles while he was being transported from the courtroom to the jail. This Court found that the trial court did not abuse its discretion by denying the motion for new trial on the basis of one juror inadvertently observing the defendant in shackles and handcuffs. Id. at 788-89. This Court noted the defendant was only shackled and handcuffed for purposes of transport to and from the courtroom, and not during the trial, and ¡that the juror may not have seen the defendant in restraints. Id. at 789. This Court found that, .even assuming the juror did see the defendant in restraints, the brief incident did not appear to have so prejudiced the defendant as to warrant relief on appeal. Id.

Also, in State v. Smith, 504 So.2d 1070 (La. App. 1st Cir. 1987), writ denied, 520 So.2d 423 (La. 1988), the defendant moved for a mistrial when it was brought to the court’s attention that several jurors witnessed defendant leaving the courtroom in handcuffs and shackles during the trial. In denying the defendant’s motion, the trial court reasoned that to ensure courtroom security, it required the defendant be shackled and handcuffed at certain times, particularly when being transported between jail and the courtroom. The defendant objected to the court’s ruling and requested the court admonish those jurors who actually saw. defendant in shackles and handcuffs to disregard same. The trial court refused the defendant’s request, opining, that the admonishment would merely aggravate the situation and raise the curiosity, of the other jury members.

IsOn appeal, the defendant argued that his presence before certain members of the jury in handcuffs and shackles may have prejudiced the jury and thus deprived him of a fair trial. In upholding the defendant’s conviction, the First Circuit agreed with the trial court, finding there was' no showing that the use of restraints prejudi-cially affected the accused and thus did not warrant the overturning of his conviction. Id. at 1078. It further reasoned that there was no showing that the jurors were influenced by seeing the defendant in restraints, nor that they could not render a fair and impartial verdict -based on .the evidence. Id.

Lastly, in State v. Nelson, 46,915 (La. App. 2 Cir. 2/29/12), 86 So.3d 747, 751-52, the Second Circuit found the trial court did not abuse its discretion by denying the defendant’s motion for mistrial on the basis that it was possible that a member of the jury venire might have seen the defendant sitting in the courtroom in shackles on the morning that jury selection commenced. The record contained no evidence that any of the prospective jurors actually saw the defendant in restraints. Further, the court noted that the defendant was not shackled or handcuffed during trial. Accordingly, the court reasoned that the only evidence of potential prejudice was the fact that there were three seats in which prospective jurors could possibly have been afforded a view of the defendant’s legs during the time period in which he was restrained. Id. The court further noted that there was no evidence that those prospective jurors actually served on the jury. Id.

During voir dire in the instant matter, the jury members selected for the panel stated an ability to presume defendant’s innocence. Furthermore, even if some members of the venire saw defendant in restraints, there was no showing made that these prospective jurors actually served on the-jury. Additionally, even | ¡¡assuming defendant’s restraints were in fact observed by prospective jurors ultimately selected, a momentary observation does not automatically mandate a mistrial or reversal. We find no indication in the record that defendant’s brief appearance in restraints prejudiced defendant to the extent that it effected the verdict. Therefore, the trial court did not abuse its discretion in denying defendant’s motion for mistrial.

Defendant also argues on appeal that the trial court erred in prohibiting defense counsel from directly questioning the prospective jurors during voir dire about observing the defendant in restraints. Defendant claims that such questioning would have aided in the determination of whether their possible observation would impact their ability to give defendant the benefit of the presumption of innocence. Such prohibition, defendant argues, denied him his constitutional right to full voir dire, essential to the intelligent exercise of peremptory and cause challenges.

In response, the State maintains that the trial court did not restrict the parties’ ability to question any juror who may have expressed a concern over defendant’s presumption of innocence, and as such, defendant was permitted to conduct a full arid complete voir dire.

Although an accused in Louisiana has the right to full voir dire examination of prospective jurors, the scope of the examination during voir dire shall be within the discretion of the trial court. La, C.Cr.P. art. 786. Because the right to full voir dire examination has a constitutional basis, wide latitude should be given to the defendant to test prospective jurors’ competency and impartiality, La. Const., art. 1, § 17; State v. James, 431 So.2d 399, 403 (La. 1983), cert. denied, 464 U.S. 908, 104 S.Ct. 263, 78 L.Ed.2d 247 (1983). “The accused’s right to intelligently exercise cause and peremptory challenges may not be curtailed by the exclusion of non-repetitious voir dire questions which reasonably explore the juror’s potential |inprejudices, predispositions or misunderstandings relevant to the central issues of the particular case.” State v. Duplessis, 457 So.2d 604, 606 (La. 1984).

A trial judge in a criminal casé does have discretion to limit voir dire examination “as long as the limitation is not so restrictive as to deprive defense counsel of a reasonable opportunity to probe to determine a basis for challenges for cause and for the intelligent exercise of peremptory challenges.” Id. On review, an examination of the entire voir dire must be made to determine whether the - trial court abused its discretion. Id.

Based on our review of the entire record, defendant’s voir dire was riot unduly restricted. While the trial court advised the parties not to ask the prospective jurors'specific questions as to whether they observed defendant in shackles and handcuffs so as to limit drawing additional attention to the issue, the trial court acknowledged that the issue could be explored during the discussion of the concept of defendant’s presumption of innocence, if jurors expressed any reservations on this issue. The record indicates that during voir dire, the trial court addressed the law regarding the presumption of innocence and the prospective jurors indicated their ability to accept the law. The State and defense counsel questioned the prospective jurors in detail regarding defendant’s presumption of innocence and whether they believed defendant, at that time, had committed any crime. The record does not contain any further requests by defendant to explore the issue of whether a prospective juror observed him in restraints in the courtroom based on the prospective jurors’ responses to questions regarding the presumption of innocence.

Accordingly, we find the trial court did not abuse its discretion as it did not unduly restrict defendant’s voir dire examination.

jjjERROR PATENT DISCUSSION

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 presented for the panel’s review.

Neither the transcript nor the minute entry indicates that the trial court advised defendant of the applicable prescriptive period for post-conviction relief. It is well-settled that if a trial court fails to provide an advisal,j pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief. See State v. Neely, 08-707 (La. App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La. 10/30/09), 21 So.3d 272; State v. Davenport, 08-463 (La. App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La. 10/16/09), 19 So.3d 473. Accordingly, we advise defendant by way of this opinion that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if filed more than two years after the judgment of conviction and. sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.

AFFIRMED

      . Although the trial court did not state that defendant’s sentence was to be served at hard labor, “a sentence committing a prisoner to the Department of Corrections is necessarily at hard labor.” State v. Lawson, 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618, 621, fn. 2, writ denied, 05-244 (La. 12/9/05), 916 So.2d 1048.

      . Ms. Gloud identified the hat in evidence as the same hat worn by defendant on the night of the shooting. Defendant could not be ex-eluded as a contributor of the DNA found in the hat recovered at the scene.

      , Mr. King, a close friend of defendant, corroborated Ms. Gloud's testimony, testifying that on the night of the shooting he was at Ms. Gloud’s house with her sister. Mr, King was unaware that a shooting had occurred until Ms. Gloud retrieved him and brought him to the residence of defendant’s mother located a few blocks away. After speaking with defendant’s mother, Mr. King and Ms. Gloud left and began walking along East Terrace Street, where they observed the victim in a nearby ditch. Ms. Gloud called 9-1-1, while Mr. King proceeded back to the house where defendant’s mother resided to inform her of what he witnessed.

      . La. C.Cr.P. art. 770 provides:
      Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4) The. refusal of the judge to direct a verdict.
      An admonition to the jury to disregard the remark or comment shall not be. sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the juiy to disregard the remark or comment but shall not declare a mistrial.

      . According to the record, approximately thirty to forty members of the venire were filing into the courtroom at the time defendant was brought into the courtroom in restraints. The minute entry from the first day of trial indicates that a total of ninety potential jurors were present when the venire was polled in open court.


author: MURPHY, J.

text:
    STATE of Louisiana v. Rogelio Lucater GONZALEZ
    NO. 17-KA-249
    Court of Appeal of Louisiana, Fifth Circuit.
    November 15, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, ROGELIO LUCATER GONZALEZ, Holli A. Hérrle-Castillo
    DEFENDANT/APPELLANT, ROGELIO LUCATER GONZALEZ In Proper Person
    Panel composed of Judges Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg
   MURPHY, J.

11 Defendant, Rogelio Gonzalez, appeals his sentence following conviction for sexual battery of a juvenile. For the reasons that follow, we affirm.

PROCEDURAL HISTORY

This case comes before us for the second time on appeal. In defendant’s prior appeal, State v. Gonzalez, 15-26 (La. App. 5 Cir. 8/25/15), 173 So.3d 1227, writ denied, 15-1771, 2016 La. LEXIS 1955 (La. 9/23/16), this Court affirmed defendant’s convictions for aggravated rape and sexual battery, affirmed defendant’s life sentence for aggravated rape, vacated his illegal 25-year sentence for sexual battery, and remanded the matter for resentencing. After remand, on January 7, 2016, the trial court sentenced defendant to ten years without benefit of parole, probation, or suspension of sentence on the sexual battei-y conviction (count two) to run concurrently with defendant’s life sentence on count one. Defendant filed a motion for an out of time appeal on February 23, 2017, which was granted. The instant appeal follows.

LAW AND ANALYSIS

In his sole counseled assignment of error, and in his first pro se assignment of error, defendant asserts that the ten-year sentence for his sexual battery conviction is. excessive. Conversely, the State argues that the sentence imposed is not grossly disproportionate and is supported by the record.

At the outset, we note that .defendant did not object at the time of sentencing, nor did'he file a written motion to reconsider sentence. Accordingly, defendant is limited to a bare review for constitutional excessiveness by this Court. State v. Dupre, 03-256 (La. App. 5 Cir. 5/28/03), 848 So.2d 149, 153, writ denied, 03-1978 (La. 5/14/04), 872 So.2d 509.

The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Nguyen, 06-969 (La. App. 5 Cir. 4/24/07), 958 So.2d 61, 64, writ denied, 07-1161 (La. 12/7/07), 969 So.2d 628. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly- disproportionate. to the severity of the offense or imposes needless and purposeless pain and suffering. Nguyen, 958 So.2d at. 64. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society'and gauge'whether the perialty is so disproportionate as to shock -the sense of justice. State v. Taylor, 06-839 (La. App. 5. Cir. 3/13/07), 956 So.2d 25, 27, writ denied, 06-0859 (La. 6/15/07), 958 So.2d 1179 (citing State v. Lobato, 603 So.2d 739, 751 (La. 1992); State v. Pearson, 07-332, 07-333, 07-539 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 655-56).

According to La. C.Cr.P. art. 881.4(D), the appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. In reviewing a sentence for excessiveness, the reviewing court shall consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice, while recognizing the trial court’s wide discretion. Nguyen, 958 So.2d at 64. In reviewing a trial court’s sentencing discretion, three factors' áre considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Allen, 03-1205 (La. App. 5 Cir. 2/23/04), 868 So.2d 877, 880 (citation omitted). However, there is no requirement that specific matters be given any particular weight at ^sentencing. State v. Tracy, 02-0227 (La. App. 5 Cir. 10/29/02), 831 So.2d 503, 516, writ denied, 02-2900 (La. 4/4/03), 840 So.2d 1213 (citation omitted).

In the instant case, defendant received the maximum sentence under the version of La. R.S. 14:43.1(C) in effect at the tipie the offense was committed. In State v. Anderson, 12-869 (La. App. 5 Cir. 6/27/13), 121 So.3d 119, writ denied, 13-1861 (La. 2/21/14), 133 So.3d 679, this Court considered a similar issue of whether the maximum sentences imposed for two counts of sexual battery of a juvenile, which occurred in connection with other forms of sexual abuse, was excessive. We upheld the defendant’s sentences in that case, taking into account the jurisprudence which indicates that maximum terms of imprisonment are not excessive when the defendant has exploited a position of trust to commit the sexual battery of a juvenile. Id at 126-27. Here, the evidence presented at trial showed that defendant, a relative left in a position of authority, as a babysitter or caregiver, raped and sexually abused the victim when she was between the ages of nine and ten. We find that defendant’^ ten-year sentence, which runs concurrently with his life sentence for aggravated rape, is supported by the record, and is not constitutionally excessive. These assignments of error by counsel and defendant are without merit.

In his second pro se assignment: of error, defendant contends.that his sentence, for sexual battery is illegal because the trial court did not first vacate his sentence for the aggravated rape conviction prior to re-sentencing him. As noted above, defendant’s conviction and sentence for aggravated. rape were previously affirmed- in his first appeal. We remanded the matter to the trial court for the limited purpose of re-sentencing defendant for his sexual battery of a juvenile | conviction, and the trial court fully complied with this Court’s order. Defendant’s assignment is without merit. •

ERROR PATENT DISCUSSION

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). Our review revealed no errors. .

DECREE

Accordingly, for the reasons provided herein, defendant’s sentence for sexual battery of a juvenile is affirmed.

AFFIRMED

      . In vacating the sentence as illegal, we noted that the sexual battery offense occurred on or between October 27, 2005, and April 21, 2006. At that time, La, R.S. 14:43.1(C) provided that: “[w]hoever commits the crime of sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, 'for not more than ten'yeafs.” State v. Gonzalez, 173 So.3d at 1239.

      . Specifically, this Court relied on State v. Morgan, 97-997 (La. App. 3 Cir. 2/4/98), 706 So.2d 1084; State v. Curtis, 08-99 (La. App. 3 Cir. 6/5/08), 987 So.2d 294; and State v. Dykes, 38,092 (La. App. 2 Cir. 3/3/04), 867 So.2d 908, writ denied, 04-847 (La. 9/24/04), 882 So.2d 1169.

      . See, State v. Pearson, 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656.