author: Judge Paula A. Brown LEDET, J.,

text:
    STATE of Louisiana v. Yolanda J. KING
    NO. 2017-KA-0126
    Court of Appeal of Louisiana, Fourth Circuit.
    October 27, 2017

      Jeff Landry, ATTORNEY GENERAL, STATE OF LOUISIANA, ' DEPARTMENT OF JUSTICE, Sonceree Smith Clark, ASSISTANT ATTORNEY GENERAL, Winston E. White, ASSISTANT ATTORNEY GENERAL, 1885 North 3rd Street, P.O. BOX 94005,.BATON ROUGE, LA 70804, COUNSEL FOR APPELLEE, STATE OF LOUISIANA
    Christopher A. Aberle, ■ LOUISIANA APPELLATE PROJECT, P.O. Box 8583, Mandeville, LA 70470-8583, COUNSEL for Defendant/appellant
    (Court composed of Judge Rosemary Ledet, Judge Regina Bartholomew Woods, Judge Paula A. Brown)
   Judge Paula A. Brown

|, Defendant, Yolanda J. King (“Ms. King”),.'appeals her -conviction on one count of executing a false affidavit, a violation of La. R.S. 18:1461.3, and one count of filing a false public record, a violation of La. R.S. 14:133, for falsely claiming an erroneous domicile in documents for her candidacy for juvenile court judge in Orleans Parish. Ms. King contends that the evidence was insufficient to convict her of the crimes charged, and that she received ineffective assistance of counsel. For the reasons that follow, we - remand for an evidentiary hearing on Ms. King’s claim of ineffective assistance of counsel, reserving her right to re-urge her appeal and raise all assignments of error. We instruct the district court to grant Ms. King a new trial in the event the district court determines that her ineffective assistance of counsel claim has merit.

STATEMENT OF THE CASE

Ms. King qualified to run for juvenile court judge in Orleans Parish on February 13, 2013, and was elected oh May'4, 2013. On March 20, 2014, Ms. King was indicted by a grand jury. The indictment charged that she violated La. |2R.S. 18:1461.3 by executing a false affidavit with the Orleans Parish Clerk’s Office, wherein she attested that she was a domiciliary of the Parish of Orleans when, in fact, she was a domiciliary of the Parish of St. Tammany. The indictment also charged that she violated. La. R.S. 14:133(A)(3) by knowingly filing a false public record. Ms. King entered a plea of not guilty. After a one-day, six-person jury trial, she was found guilty on both counts.

|aOn count one, violation of La. R.S. 18:1461.3, Ms, King was sentenced to one year without' hard labor, suspended, and two years of inactive .probation. The trial court also assessed a $1,000.00 fine, court costs, and imposed the following special conditions: (1) she must be employed; (2) she must perform one hundred community service hours; and (3) she must refrain from criminal conduct. As to count two, violation of La. R.S. 14:133, Ms. King was likewise sentenced to one year without hard labor, suspended, and two years of inactive probation, to run concurrently with the sentence imposed in count one. The trial court also assessed court, costs, required one hundred hours of community service, and imposed the same special conditions provided in count one.

The trial court granted Ms. King’s pro se motion for an out-of-time appeal and this appeal followed.

FACTS

The following testimony was adduced at trial:

Mary Claire Trimble, a Deputy Clerk for the Clerk’s Office of Criminal District Court in Orleans Parish apd a notary, identified Ms. King’s Notice of Candidacy form, which the State introduced into evidence. Ms. Trimble testified that she notarized the document and that the candidacy form indicated Ms. King’s domicile was 5336 Stillwater Drive, New Orleans, Louisiana, 70128. Ms. Trimble confirmed on cross-examination that she had no personal knowledge of the information contained in the candidacy form and that she did not verify whether Ms. King was actually domiciled at the Stillwater Drive residence.

UTroy Dugas, the Chief Deputy Assessor for St. [Tammany Parish, testified that the mortgage and conveyance records of St. Tammany Parish showed that Ms. King purchased a home at 1638 Chancer Lane, Slidell, Louisiana, 70461, in 2006. On September 8, 2006, she filed for a homestead exemption for that residence. Mr. Dugas explained that an individual must own and occupy the residence as a principal place of domicile in order to qualify for a homestead exemption in St. Tammany Parish. He stated the owner’s signature on the qualifying documents meant the owner did not .claim a homestead exemption on any other property in the State of Louisiana.

Mr. Dugas testified that in St. Tammany Parish, once an individual files for a homestead exemption, it is not necessary to refile each year — the exemption is a perpetual homestead. Mr. Dugas said Ms. King claimed a homestead exemption for the Slidell residence every year from 2007 through 2013. He testified that in April 2013, Ms. King requested that the assessor retroactively remove the homestead exemption only for the years 2011, 2012, and 2013. The homestead exemption application and real estate property transfer forms were admitted into evidence and published to the jury.

John Carroll, a private investigator, testified that he was asked to by a client to investigate Ms. King. Mr. Carroll’s investigation revealed that Ms. King had two driver’s licenses — one issued in Georgia and another issued in Louisiana. The background check showed that Ms. King changed her driver’s license address from 5535 Bundy Road, New Orleans, Louisiana, to the Stillwater Drive address on April 22, 2013. Mr. Carroll went to the Bundy Road address and discovered that it was an empty lot.

liiMr. Carroll testified that he interviewed neighbors on Chancer Lane in Sli-dell, Louisiana. After running the license plate numbers, he learned that a vehicle parked in the driveway of 1638 Chancer Lane was registered to Yvette King and that another vehicle, a champagne-colored Nissan Murano, was registered to Ms. King. Each vehicle was registered to a Georgia address.

Mr. Carroll also conducted surveillance of Ms. King at the Chancer Lane residence from May 14 through May 28, 2013. He documented Ms. King’s departure and arrival times. He noted that on Mondays through Fridays, Ms. King entered the Nissan Murano and departed from Chancer Lane between 6:30 a.m. and 7:30 a.m. each morning. Mr. Carroll took photographs of the Nissan Murano while it was parked in the private parking lot for judges and city officials behind New Orleans City Hall, and he verified that the license plate number of the Nissan Murano matched the vehicle he observed Ms. King enter. Mr. Carroll said he interviewed some additional neighbors on Chancer Lane — all of whom wished to remain anonymous — who identified Ms. King as the person who lived at the Chancer Lane residence. Based on his investigation, Mr. Carroll was convinced that Ms. King lived at the Chancer Lane residence with her sister.

On cross-examination, Mr. Carroll stated that he met with Gerald Bayer and other agents from the Attorney General’s Office on May 28, 2013. At that meeting, he turned over the findings from his investigation of Ms. King. Mr. Carroll acknowledged that Ms. King’s Orleans Parish home address before Hurricane Katrina was the empty Bundy Road lot. He also admitted that.he never investigated Ms. King’s domicile before she qualified for juvenile court judge, but rather, after she was elected. With regards to the Chancer Lane neighbors, Mr. | (¡Carroll testified that he did not obtain any video, audio, or sworn statements from any of them.

Mr. Bayer — a criminal investigator for the Louisiana Department of Justice, Of-fieé of the Attorney General — testified that in May of 2018, he assisted the Secretary of State’s Office in an investigation of Ms. King. Mr. Bayer said his contact with the Orleans Parish Assessor’s Office determined that Jimmie Bobb and Grace King were the owners of the residence at 5336 Stillwater Drive in New Orleans and that the residence had been purchased on September 25,1987.

Mr. Bayer said that he interviewed a neighbor, Michael Barwell, who resided at 5346 Stillwater Drive. According to Mr. Bayer, Mr. Barwell told him that Jimmie Bobb had lived at the residence for twenty-five years and that Grace King had lived with Mr. Bobb at that residence until Hurricane Katrina. Mr. Barwell also told Mr. Bayer that after Hurricane Katrina, Ms. Grace King visited periodically. Mr. Bayer testified that Mr. Barwell confirmed that only Mr. Bobb and Grace King lived at the Stillwater Drive residence, not Ms. King. Mr. Bayer further testified that although he was unable to speak with other neighbors, he did attempt to speak with Mr, Bobb. According to Mr. Bayer, Mr. Bobb not only failed to appear for a scheduled appointment with him, Mr. Bobb also refused to speak with him, even though he had been subpoenaed.

Mr. Bayer testified that he also spoke to Mr, Carroll, the private investigator who had investigated Ms. King. Mr. Bayer said that Mr. Carroll voluntarily told him that Mr. Carroll’s investigation revealed Ms. King lived at 1638 Chancer Drive in Sli-dell. At the end of his investigation, Mr. Bayer concluded Ms. King did not reside at the Stillwater Drive residence.

|7On .cross-examination, Mr. Bayer confirmed that, after Ms. King’s election, his office received a package from the Secretary of State, which had been submitted by Cynthia Samuel, another candidate in the election. He represented that the package included a complete investigation with witness statements and letters regarding Ms. King’s domicile. Mr. Bayer spoke to the Registrar of Voters in Orleans Parish after he received the package from the Secretary of State, but he admitted he never spoke to Ms. King. Mr. Bayer also acknowledged that he was unable to secure a sworn statement from Mr. Barwell, the Stillwater neighbor, stating that Mr. Bar-well “really didn’t want to get involved.”

Sandra L. Wilson, Registrar of Voters for Orleans Parish, testified that Ms. King was a registered voter'in Orleans Parish from 2006 through the date of trial. Specifically, she stated Ms. King was a registered Orleans Parish voter in February 2013. According to Ms. Wilson, the only change in Ms. King’s voting record was a change of address from Bundy Road to Stillwater Drive or vice versa.

Ms. Wilson testified that in April 2013, she received a letter stating that Ms. King was not eligible to vote in Orleans Parish based on her St. Tammany Parish homestead exemption. She notified Ms. King of the challenge and allowed her twenty-one days to respond. Ms. Wilson testified that Ms. 'King was removed from the Orleans Parish voter registration rolls on June 13, 2013, but was reinstated on June 17, 2013. The reinstatement was based on information she received that Ms. King had removed her St. Tammany Parish homestead exemption.

Mr, Bobb testified that he and Ms. Grace King owned the home at 5336 Still-water Drive, New Orleans, Louisiana, 70128. He has resided in the residence for over twenty years, and Ms. Grace King no longer lived at the residence. When 18asked who lived at the Stillwater Drive residence on February 13, 2013, Mr. Bobb responded that Ms, King lived there “for a minute, for a while.” Mr. Bobb could not recall exactly .how long Ms. King lived at the Stillwater Drive residence; however, he stated she might have lived there “[possibly, possibly a year, maybe more.” Mr, Bobb also could not recall when Ms. Kang moved in or out of his Stillwater Drive residence.

Mr. Bobb acknowledged that he went to the Attorney General’s Office with his attorney to discuss whether Ms. King lived at his Stillwater Drive residence. Although he was aware that he was not under investigation, he did not want to tell the investigators who .was living in his home. According to Mr. Bobb, he was- exercising his Fourth Amendment right to privacy and he felt that there was no need to reveal that information to'anyone. Mr, Bobb testified that he did not have a grudge against Ms. King or her sisters and reaffirmed it was not a secret as to whether Ms. King lived at his Stillwater Drive residence. Mr. Bobb also denied any knowledge of Ms. King’s ownership of a residence in St. Tammany Parish.

Malcolm Bezet, a special agent for the Federal Bureau of Investigation (“FBI”), testified for the defense. He stated that Ms. King contacted him in May 2013 and indicated’ that “people were- trying to get her'out of the election.” Mr. Bezet said his investigation included surveillance and wiring Ms. King with audio or video equipment to verify the alleged threats. Mr. Bezet testified that Ms. King identified the other candidates in the juvenile court race as the individuals who [ 9made the threats. Mr. Bezet did obtain some investigative documents, but his investigation ended after the election. Mr. Bezet added that neither, he, nor anyone from the FBI investigated Ms. King regarding her residency challenge. Furthermore, no one from the Attorney General’s Office contacted him regarding the pending charges.

ERRORS PATENT

Appellate courts review all criminal appeal records for the existence of a patent error. See La. C.Cr.P. art. 920(2). Here, we have reviewed the record and have found no error patent.

DISCUSSION

Ms. King raises two assignments of error, In her first assignment of error, she contends the evidence was insufficient to support the convictions. In her second assignment of error, Ms. King asserts that her trial attorney rendered ineffective assistance of counsel by his failing to lodge an objection to critical and inadmissible hearsay testimony. We will first address the sufficiency of the evidence.

Sufficiency of the Evidence

Ms. King contends that the State failed to meet its burden of proof that she was not domiciled in Orleans Parish when she executed and filed her qualifying documents as a candidate for juvenile court judge on February 13, 2013.

In support of her argument, Ms. King notes that her Louisiana driver’s, license has always listed an Orleans- Parish address; she works in Orleans Parish; and she has always been registered to vote in Orleans Parish. She argues her New | mOrleans home was destroyed during Hurricane Katrina, and, like others, • she was involuntarily displaced from New Orleans after the hurricane. Ms.. King main-, tains that while she may have lived in various places — such as, the State of Georgia and St. Tammany Parish — the State failed to present evidence that she habitually resided in St. Tammany Parish or outside of Orleans Parish at the time she qualified for judge on February 13, 2013. Ms. King points to, Mr. Bobb’s testimony that she resided with him for a time in his New Orleans home and her documented - ties to the City of New Orleans as conclusive evidence of her physical residence and intent to remain an Orleans Parish domiciliary.

As to her purchase of the St. Tammany Parish home, Ms. .King discounts her failure to remove the homestead exemption claimed for the years from 2006 through 2013 as evidence of her intent to make St. Tammany Parish her domicile. Rather, she contends the homestead exemption was no more dispositive that she was domiciled in St. Tammany Parish than a Georgia car registration and driver’s license was dis-positive that she was domiciled in the state of Georgia. Ms. King argues that neither the St. Tammany Parish home nor the Georgia car registration should be afforded greater weight than her, Orleans Parish driver’s license and voter registration as proof of an Orleans Parish domicile.

Ms. King further asserts that Mr. Carroll’s testimony regarding her departures to and from the St. Tammany Parish address is likewise not conclusive proof of a domicile in St. Tammany Parish. Ms. King notes that Mr.-Carroll’s observations covered only a few days in May 2013; they occurred after she filed her Notice of Candidacy form; and they occurred after the election. Furthermore, Ms. King highlights Mr. Carroll’s admission that he had no other information to determine her domicile on February 13, 2013, the date she signed the Notice of h,Candidacy form. Ms. King maintains that the State primarily relied on neighbors’ unsworn, inadmissible hearsay statements to secure a conviction.

For these reasons, Ms. King argues there was insufficient evidence to convict her and that her convictions should be overturned.

In' general, Louisiana jurisprudence provides that “[w]hen issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence.” State v. Miner, 2014-0939, p. 5 (La. App. 4 Cir. 3/11/15), 163 So.3d 132, 135 (quoting State v. Hearold, 603 So.2d 731, 734 (La. 1992)).

The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements -of the offense have been proved beyond a reasonable doubt. When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot.
On the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. If the reviewing court determines there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused must receive a new trial, but is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).

Hearold, 603 So.2d at 734. (Emphasis added)

This Court has also observed that “[w]hen circumstantial evidence is used to prove the commission of the offense [,] La. R.S. 15:438 requires that ‘assuming |12every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of in-' nocence.’ ” State v. Hickman, 2015-0817, p. 9 (La. App. 4 Cir. 5/16/16), 194 So.3d 1160, 1165. (quoting State v. Brown, 2003-0897, p. 22 (La. 4/12/05), 907 So.2d 1, 18 (in turn quoting State v. Neal, 2000-0674 (La. 6/29/01), 796 So.2d 649, 657)). “Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury.” Hickman, 2015-0817, p. 9, 194 So.3d at 1166 (quoting Neal, 2000-0674, p. 9, 796 So.2d at 657) (citing State v. Rosiere, 488 So.2d 965, 968 (La. 1986).

Thus, “[i]f rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all of the evidence most favorable to the prosecution must be adopted.” State v. Green, 588 So.2d 757, 758 (La. App. 4 Cir. 1991) (citing State v. Mussall, 523 So.2d 1305 (La. 1988)). It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Scott, 2012-1603, p. 11 (La. App. 4 Cir. 12/23/13), 131 So.3d 501, 508 (citing State v. Johnson, 619 So.2d 1102, 1109 (La. App. 4 Cir. 1993)). Credibility determinations, as well as the weight attributed to the evidence, are soundly within the province of the fact finder. Scott, 2012-1603, 131 So.3d at 508 (citing State v. Brumfield, 93-2404 (La. App. 4 Cir. 6/15/94), 639 So.2d 312, 316). Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. State v. Jones, 537 So.2d 1244, 1249 (La. App. 4 Cir. 1989). Absent internal contradiction or irreconcilable conflicts with physical evidence, a single eyewitness’ testimony, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Mar shall, 2004-3139, p. 9 (La. 11/29/06), 943 So.2d 362, 369.

| iaMs. King was 'convicted of executing a false affidavit and filing a false public record — the Notice of Candidacy form — at the time she qualified as a candidate for juvenile court judge.

La. Const, art. V., § 24 provides:

(A) A judge of the supreme court, a court of appeal, district court, family court, parish court, or court having solely juvenile jurisdiction shall have been domiciled in the respective district, circuit, or parish for one year preceding election and shall have been admitted to the practice of law in the state for at least the number of years specified as follows:
(1) For the supreme court or a court of appeals — ten years.
(2) For a district court, family court, - parish court, or court having solely juvenile jurisdiction — eight years.
(B) He shall not practice law.

This Court discussed the principles regarding residence and domicile in Graham v. Prevost, 2015-1033, p. 2 (La. App. 4 Cir. 9/29/15), 176 So.3d 1142, 1144-45, as follows:

The domicile of an individual is the place of that individual’s habitual residence. La. C.C. art. 38. An individual may have several residences but only one domicile. La. C.C. art. 39. If one lacks a habitual residence, any place of residence may be considered one’s domicile at the option of “persons whose interests are affected.” Id. One’s domicile remains unchanged until a new one is acquired. La. C.C. art. 44. An individual changes his domicile when he moves his residence with the intent -to make the new location his habjtúal residence. Id. The intent to establish or change one’s domicile depends upon the circumstances, such as a sworn declaration. La. C.C. art. 45. In the absence of a sworn declaration, other evidence is required.
One qualifies for a public office by filing a Notice of Candidacy. La. R.S. 18:461 A(l). By law, a Notice of’Candidacy form requires the candidate for Loui- ’ siana public office to state his domicile therein. Id.

The Graham Court further opined:

Because domicile requires a physical residence plus intent to remain, a party’s uncontroverted testimony regarding his intent “may be sufficient’ to establish’ domicile, in the absence of any documentary or | uother objective evidence to the contrary.” Landiak [v. Richmond ], [20]05-0758, p. 10 [(La. 3/24/05)], 899 So.2d [535,] 543.
When documentary or other objective evidence casts doubt on a person’s statements regarding intent, it is incumbent on courts to weigh the evidence presented in order to determine domicile in fact. Otherwise, the legal concept of domicile is meaningless and every person would be considered legally domiciled wherever he says he is domiciled. Some of the types of documentary evidence commonly considered by .courts to determine domicile in fact include such things as voter registration, homestead exemptions, vehicle registration records, driver’s license address, statements in notarial acts; and evidence that most of the person’s property is housed at that location. Obviously, the more of these items presented- by a party opposing candidacy in a given case to show lack of domicile in the district, the more difficult it will be for the candidate to overcome the plaintiffs evidence.

Id., 2005-0758, pp. 10-11, 899 So.2d at 543-544 (footnotes omitted). Graham, 2015-1033, p. 3, 176 So.3d at 1145.

In the case sub judice, review of the evidence, shows that Ms.- King owned a home at 1638 Chancer Lane in St. Tammany Parish, for which she claimed a 2006 recurring homestead exemption. Ms. King indicated on the homestead exemption form that her St. Tammany Parish home was her primary residence. In April 2013, after qualifying to run for juvenile court judge, Ms. King requested a three-year retroactive retraction of her St. Tammany Parish residence homestead exemption. There was unrebutted testimony from investigator Mr.'Bayer that Ms. King’s Louisiana Driver’s License listed an empty lot as her address. Mr, Bayer also testified that Mr. Bobb’s neighbor, Mr. Barwell, confirmed that Ms. King did not live at 5336 Stillwater Drive in Orleans Parish. Moreover, there was uncountervailing testimony from ,Mr. Carroll, the investigator who observed Ms. King every morning for two weeks coming from and going to a home she owned in 11fiSt. Tammany Parish. Mr. Carroll likewise testified that he spoke to neighbors who resided on Chancer Lane in St. Tammany Parish who confirmed that Ms. King resided in the St. Tammany home.

Although Mr. Bobb testified that Ms. King resided at his Stillwater Drive residence, he could not recall when Ms. King moved in or moved out or the duration of time she lived at his residence. It is well settled that “[wjithin the bounds of rationality, the trier of fact may accept or reject, in whole, or in part, the testimony of any witness.” State v. Casey, 99-0023, p. 14 (La. 1/26/00), 775 So.2d 1022, 1034. It is evident that the jury rejected part, if not all, of Mr. Bobb’s testimony.

Based on the totality of the evidence presented at trial — tax records, real estate transaction records, testimony from government officials, testimony from investigators, and testimony from Mr. Bobb— when viewed in the light most favorable to the prosecution, the State introduced sufficient evidence from which the trier of fact could reasonably conclude beyond a reasonable doubt that Ms. King filed an affidavit falsely attesting that she was domiciled in Orleans Parish,

This assignment of error is unpersuasive.

Ineffective Assistance of Counsel

In her second assignment of error, Ms. King alleges that her convictions resulted from inadmissible hearsay statements from neighbors that came in through the testimony of Messrs. Carroll and Bayer.

Ms. King cites to Mr. Bayer’s testimony, wherein he testified that the Orleans Parish 'Stillwater Drive neighbor, Mr. Barwell, informed him that Ms. King did not reside at the Stillwater Drive residence. She likewise points to Mr.- Carroll’s testimony, wherein he stated the St. Tammany Parish residents residing I 1fion Chancer Lane told him that Ms. King resided at the Chancer Lane address. Prodded further, Mr. Carroll’s testimony failed to confirm the identity of these anonymous St. Tammany residents.

Ms. King .also submits that the State embellished Mr. Bayer’s testimony regarding Mr. Barwell’s residency comments during closing argument when the prosecutor argued as follows:

Next, I called Mr. Gerald Bayer. Mr. Bayer told you he received some information. He conducted an investigation and the first part of his conduction [sic ] of his investigation was to go to the Stillwater address in Orleans Parish and see what was going on. He knocked on the door of the address on Stillwater Drive. Nobody answered, so he instead talked to some neighbors. One neighbor in particular that he talked to was Mr. Michael Barwell. Mr, Michael Barwell said, Yeah, I know that house. That house is owned by Jimmie Bobb, his girlfriend, Grace King, [sic] Who else lives there? Nobody. How long have you lived here? Over 20 years. Does Yolanda King live here? Nope. Had Yolanda King ever lived here? Nope.

Ms. King' avers that the testimony of Messrs. Carroll and Bayer, regarding the neighbors’ statements on- her residency status, was inadmissible hearsay evidence offered by the State to prove the truth of the matter asserted — that Ms. King resided in St, Tammany Parish and not. Orleans Parish ón the date she qualified for juvenile court judge. As such, Ms. King asserts that inasmuch as the strength of the State’s case lies in these inadmissible hearsay statements, her trial counsel was ineffective based on his-- failure to lodge an objection.

Before we address this error, we acknowledge that, generally, ineffective-assistance-of-counsel claims are more properly raised in an application for post-conviction relief, where the district court can conduct a full evidentiary hearing on the matter, if one is warranted. State v. Leger, 2005-0011, p. 44 (La. 7/10/06), 936 So.2d 108, 142. However, there is no law or jurisprudential rule that 'prohibits a defendant from raising the issue of ineffective assistance of counsel on appeal, nor is there a mandate for reviewing courts to only consider this issue during post-conviction relief. We conclude the interests of justice and judicial economy will be best served by considering Ms. King’s ineffec-five assistance of counsel claim at this time,

In Strickland v. Washington, the U.S, Supreme Court established a two-pronged test to attain relief in an ineffective assistance of counsel claim as follows: 1) the defendant must show that counsel’s performance was deficient; and 2). that this deficiency prejudiced the defense. 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). As to the first prong, “judicial scrutiny of counsel’s performance must -be highly deferential.” Id. at 689, 104 S.Ct. at 2065. “The object of an ineffectiveness claim is not to grade counsel’s performance.” Id. at 697, 104 S.Ct. at 2069. Thus, when reviewing a claim of ineffective assistance of counsel, an appellate court “does not sit to second-guess strategic and tactical choices made by trial counsel.” State v. Myles, 389 So.2d 12, 31 (La. 1980) (on rehearing).

In determining .whether counsel’s deficiency prejudiced the defendant, the defendant must show that more than counsel’s errors had some conceivable impact on the outcome -of the proceeding. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067. But rather, “[t]he. defendant must show that there is a reasonable probability that, but for .counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. Nevertheless, “even if testimony is. inadmissible .hearsay, if it is merely cumulative or corroborative of | pother testimony adduced at trial, then the admission is harmless.” State v. Hamdalla, 2012-1413, p. 12 (La. App. 4 Cir. 10/2/13), 126 So.3d 619, 625 (quoting State v. McIntyre, 381 So.2d 408, 411 (La. 1980)).

Ms. King argues that she meets the “deficiency” prong of Strickland’s ineffective assistance of counsel criteria due to her counsel’s failure to object to undisputed inadmissible hearsay testimony. Ms. King further argues that she satisfies Strickland’s “prejudice” prong because the State’s most compelling, substantive evidence — that she was a habitual resident of St. Tammany Parish — was elicited from the neighbors’ unsworn, out-of-court hearsay statements. Ms. King avers that the other evidence introduced by the State— the Notice of Candidacy form, the homestead exemption, and the investigators? testimony as to where she lived after the qualifying date — were not sufficient to prove she had a habitual residence outside of Orleans Parish. Ms. King emphasizes the neighbors’ out-of-court hearsay statements may1 have also undermined the credibility of Mr. Bobb, the only person who provided sworn testimony that Ms. King lived at the Stillwater residence for possibly a year. Therefore, but for the jury’s consideration of inadmissible hearsay evidence, Ms. King asserts the trial would have likely had a different result.

In opposition, the State does not contest the neighbors’ statements constitute inadmissible hearsay; but rather, the State argues that defense counsel failed to object because it was his trial strategy. Specifically, the State claims defense counsel’s failure to lodge an objection was deliberate in that it was his intention to use the hearsay statements to impeach the investigators’ credibility — and support the defense’s argument that Ms. King’s prosecution was politically motivated.

| ¡/The State argues that the neighbors’ out-of-court statements were merely corroborative of the other extensive evidence presented in demonstrating Ms. King’s guilt. The State maintains that, absent the hearsay statements, it provided the jury with sufficient evidence to convict Ms. King — such as, records of her ownership and a homestead exemption claim on the Chancer Street residence, the investigators’ testimony and observations as to where she lived, and documentation that Mr. Bobb owned the New Orleans home that Ms. King claimed as her domicile. The State further argues that introduction of the hearsay evidence was harmless error, as it was merely cumulative and corroborative of the other evidence produced at trial that established Ms. King’s guilt.

In the instant case, when we apply Strickland’s two-pronged “deficiency and prejudice” test, Ms. King’s ineffective assistance of counsel claim may have merit. The facts show defense counsel failed to lodge an objection to clearly inadmissible hearsay evidence that the State recited in its closing argument to the jury. As such, the jury’s consideration of those statements may be sufficiently prejudicial to undermine confidence in the verdict in that a different outcome might have resulted had defense counsel lodged an objection to the admissibility of the statements.

However, regardless of whether Ms. King was prejudiced by defense counsel’s failure to object, she cannot maintain an ineffective assistance of counsel claim in the event, as argued by the State, that the failure to object was a part of defense trial strategy. As the State properly notes, appellate courts do not second-guess tactical choices made by trial counsel. See Myles, supra.

In State v. Hunter, 563 So.2d 291 (La. App. 4 Cir. 1990), on direct appeal, this Court reviewed the defendant’s claim of ineffective assistance of counsel, | ?namong other assignments of errors, and found the defendant was not afforded effective assistance of counsel. This Court reversed the defendant’s conviction and ordered the defendant be granted a new trial. Id. at 295. After granting the State’s application for rehearing, this Court, again, reversed and remanded the case for a new trial. Id. at 296-97. On the State’s petition for writ of certiorari, the Supreme Court reversed the Fourth Circuit and remanded the case for an evidentiary hearing.on the ineffective assistance of counsel claim. State v. Hunter, 567 So.2d 1112 (La. 1990). In the instant matter, resolution of this dispute requires a more comprehensive record to evaluate the reasons and the propriety of defense counsel’s failure to lodge an objection to inadmissible hearsay statements. Therefore, we remand to the trial court for a full evidentiary hearing on Ms. King’s ineffective assistance of counsel claim.

DECREE

This ease is remanded to the trial court for an evidentiary hearing on Ms. King’s claim of ineffective assistance of counsel. If the trial court finds merit to this error, it should set aside the conviction and grant a new trial. See State v. Addison, 94-2745, p. 3 (La. 6/23/95), 657 So.2d 974, 975. In the event the trial court does not find ineffective assistance of counsel, Ms. King’s right to appeal and re-urge all assignments of error is reserved. See State v. Hunter, 567 So.2d 1112 (La. 1990).

REMANDED WITH INSTRUCTIONS

LEDET, J., CONCURRING IN PART AND DISSENTING IN PART WITH REASONS

LEDET, J.,

CONCURRING IN PART AND DISSENTING IN PART WITH REASONS ■'

hAlthough I agree with majority’s conclusion as to the sufficiency of the evidence, I write separately to express my view that, even without the complainéd-of hearsay testimony elicited by the State from investigators Gerald Bayer and John Carroll, the evidence offered at trial was sufficient to support the jury’s verdicts.

I dissent from the majority’s decision to consider the merits of Ms. King’s claim of ineffective assistance. of counsel. The record before us is insufficient to address the issue on appeal. I would therefore affirm Ms. King’s convictions and sentences. See State v. Berniard, 14-0341, pp. 32 (La. App. 4 Cir. 3/4/15), 163 So.3d 71, 91-92 (observing that, “[a]s a general rule, claims of ineffective ^assistance of counsel are more properly raised by application for post-conviction relief in the trial court where a full evidentiary hearing-may be conducted if warranted” and affirming the defendant’s conviction and sentence); see also Gail Dalton Schlosser, Louisiana Criminal Trial Practice § 28:6 (4th ed. 2005) (“[A] claim of incompetent counsel raised on appeal is likely to be deferred to post-conviction proceedings since the appellate record usually is inadequate to review the complaint) (collecting cases). Ms. King may raise.the ineffective assistance of counsel issue through the filing of an application for post-conviction relief in the district court, which, upon an adequate showing, may afford Ms. King an eviden-tiary hearing.

      . Throughout the record, the minute entries and docket master erroneously indicate that Ms. King was charged and sentenced pursuant to La. R.S. 18:1461(14), The minute entries also erroneously indicate that Ms. King was charged and sentenced pursuant to La. R.S. 14:133'with respect to count one and pursuant to La. R.S. 18:1461 with respect to count two, when, in fact, it is the reverse.
      However, the applicable statute, La. R.S. 18:1461,3, is correctly listed on the indictment, and the sentencing transcript evidences that the trial court sentenced Ms, King pursuant to La, R.S. 18:1461.3 with respect to count one. It is well-settled that "where a conflict exists between a minute entry and a transcript, the transcript controls." State v. Fortenberry, 2011-0022, p. 5 (La. App, 4 Cir. 7/27/11), 73 So.3d 391, 394,

      . La. R.S. 18:1461.3 provides in pertinent part:
      A. No person shall knowingly, willfully, or intentionally:
      (1) Being an election official, permit fraudulent votes to be cast, or knowingly count votes not entitled to be cast.
      (2) Fail,' refuse, or neglect to discharge any duty imposed upon him, .either individually or in an official capacity, by any provision of this Title.
      (3) Supply a false answer or statement to an election official or in any document required by this Title, or execute an affidavit knowing it to contain false or incorrect information.

      .La. R.S. .1,4:133(A)(3) provides.(in pertinent part: :
      A, Filing false public records is the filing or depositing for record in any public office or with any public official, or the .maintaining as required by law, regulation, or rule, with knowledge of its falsity, of any of the following:
      ⅜* * *
      (3) Any document containing a false statement or false representation of a material fact, .

      . Mr. Carroll testified that he identified Ms. King by one of her campaign photos.

      . The State then rested and defense counsel made an oral motion for dismissal based on a lack of evidence. However, the trial court noted that, pursuant to La. C.Cr.P. art, 778, there is no directed verdict in a jury case, and accordingly, denied Defendant’s motion,

      .- Mr. Bezet testified that initially campaign . workers or volunteers reported the incident to the FBI and that Ms. King came to the FBI afterwards.

      .La, C.Cr.P. art. 920(2) provides that the scope of appellate review ’ includes: " [A]n • error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

      . La. C.E. 801(C) provides that " ‘[hjearsay’ is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.”

      . The Court based its finding on trial counsel’s failure to produce the police report at trial or use the report to impeach the identification testimony of the prosecution's key witness. Id. at 294-295.

      . The parsing of ádmissible versus allegedly inadmissible evidence is not permitted when considering the sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). McDaniel v. Brown, 558 U.S. 120, 131, 130 S.Ct. 665, 672, 175 L.Ed.2d 582 (2010) (per curiam) (" '[A] reviewing court must consider all of the evidence admitted by the trial court,' regardless whether, that evidence was admitted erroneously.'') (quoting Lockhart v. Nelson, 488 U.S. 33, 41, 109 S.Ct. 285, 291, 102 L.Ed.2d 265 (1988); accord State v. Hearold, 603 So.2d 731, 734 (La. 1992) ("[W]hen the entirely of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal ...."); see also generally 6 Wayne R. LaFave, Criminal Procedure § 25.4(c), at 652 (3d ed. 2007) ("As one court put it, the appellate court applying Burks [v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)] is ‘assessing the legal sufficiency of the evidence not at the trial that will be, but at the trial that was.’ ”) (citation omitted). Nevertheless, because the majority bases its conclusion that Ms. Ring may have been prejudiced by her counsel’s decision not to object to such testimony, I believe it is useful to consider the evidence in this way.

      . See La. C.Cr.P. art. 929(A) (“If the court determines that the factual and legal issues can be resolved based upon the application and answer, and supporting dochments,' including relevant transcripts, depositions, and other reliable documents submitted by either ■“party or available to the court, the court may grant or deny relief without further proceedings.”); La. C.Cr.P. art. 930(A) ("Am eviden-tiary hearing for the taking of testimony or other evidence shall be ordered whenever there are questions of fact which cannot properly be resolved pursuant to Articles 928 and 929.”)

      . Because Ms. King was sentenced to two years of inactive probation on February 18, 2016, it appears that the delay for filing an application for post-conviction relief has not yet lapsed. See La. C.Cr.P. 924(1) (“An ‘application for post conviction relief means a petition filed by a person in custody after sen- ■ tence following conviction for the commission of an offense seeking to have- the conviction and sentence set aside.”); La. C.Cr.P. 924(1) (“ ‘Custody’ means detention or confinement, of probation or parole supervision, after sentence following conviction for the commission of an offense.”);


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Terry James GOODEAUX -aka- Terry Goodeaux
    KA 17-441
    Court of Appeal of Louisiana, Third Circuit.
    November 2, 2017

      John Foster DeRosier, Fourteenth Judicial District Attorney, Carla Sue Sigler, Elizabeth Brooks Hollins, Fourteenth Judicial Assistant District Attorneys, 901 Lakeshore Drive, Ste. 800, Lake Charles, LA 70601, (337) 437-3400, COUNSEL FOR: State of Louisiana
    Chad M. Ikerd, Louisiana Appellate Project,' P.O. Box 2125, Lafayette, LA 70502, (225) 806-2930, COUNSEL FOR DEFENDANT/APPELLANT: Terry James Goodeaux
    Terry Goodeaux, Allen Correctional Center, 3751 Lauderdale Woodyard Rd., Kinder, La 70648
    Court composed of John D. Saunders, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
   EZELL, Judge.

1TTerry James Goodeaux was indicted on November 13, 2013, with two counts of sexual battery, violations of- La.R.S. 14:43.1, and one count of attempted sexual battery, a violation of La.R.S. .14:27 and 14:43.1. A jury trial commenced on September 15, 2015, following which Defendant was convicted of two counts of sexual battery and one count of attempted simple battery, violations of La.R.S. 14:27 and 14:35. On October 29, 2015, Defendant filed a “Motion for New Trial.” A hearing was held on the motion on January 22, 2016, following which the trial court denied Defendant’s motion for a new trial. Defendant was sentenced on January 22, 2016, to twenty-five years on each conviction for sexual battery, to be served concurrently, and to three months in the parish jail on the attempted simple battery conviction, to be served concurrently with the twenty-five year sentences, and was given credit for time served on all sentences. Defendant filed a “Motion to Reconsider Sentence.” The motion was denied on February 1, 2016, without a hearing. On November 5, 2016, Defendant filed an “Application for Post-Conviction Relief,” wherein he sought an out-of-time appeal. Defendant was granted an out-of-time appeal on December 9, 2016.

On appeal, Defendant asserts five assignments of error, as follows:

1. The State failed to sufficiently prove Terry Goodeaux was guilty of sexual battery although the lesser included offense of simple battery was proven beyond a reasonable doubt.
2. Terry Goodeaux’s conviction for “attempted simple battery” is patently erroneous because no such crime exists under Louisiana Law. Thus, the trial court erred by instructing the jury that attempted simple battery was a lesser included offense of. attempted sexual battery.
3. The Trial Court erred in allowing the State to amend the bill of information to include the phrase “or instrumentality” after the jury had been selected and sworn in, because such a change was not a procedural change, but was rather substantive.
|⅞4. The trial court[’s] effort to determine whether Terry Goodeaux’s waiver of the conflict of interest between his legal team and their firm’s previous representation of an adverse witness did not follow the necessary procedures to ensure that Terry Goodeaux’s waiver was knowing and intelligent.
5. The trial court erred by overruling a hearsay objection to Tiffany White’s testimony regarding statements her daughters made to her, out of court, when they were being offered for the truth of their assertions.

We find there is merit to Defendant’s assignment of error number two in that attempted simple battery is not a crime under Louisiana law. Accordingly, the conviction for attempted simple battery should be reversed and the sentence imposed on the conviction vacated. However, Defendant failed to show merit with the remaining assignments of error. Accordingly, this court' should affirm the two convictions and sentences for sexual battery.

PACTS

At trial, the following testimony was submitted to the jury:

Two of the victims were twin sisters, K.W. and C.W., whose birthdates are October 14, 2005. The third victim was M.V., whose birthdate is April 10,2006.

Deputy McKee, a patrol officer with the Calcasieu Parish Sheriffs Office, responded on August 7, 2013, to a complaint that two young girls had been inappropriately touched by a neighbor. He went to a trailer park located in South Lake Charles and spoke with Tiffany White, the mother of two of the victims. The deputy spoke with Defendant, who lived a few trailers away from the victims’ trailer, and later with Willis Comeaux, who witnessed the alleged acts of inappropriate touching of two of the victims.

Cinnamon Salvador, a detective with the Calcasieu Parish Sheriffs Office in the sex' crimes and child abuse unit, testified that she spoke with C.W. and K.W. on|sAugust 7, 20l3. She stated Defendant agreed to be transported to headquarters, and he gave a videotaped statement. Mr. Comeaux was also transported to headquarters and gave a videotaped statement. Detective Salvador stated she scheduled interviews for the victims with the Child Advocacy Center. The interviews, took place on August 15, 2013. While the detective was not physically present during the interviews, she observed the interviews via video telecast. She stated that the victims’ statements to the interviewer were consistent with the statements they made to her on the day of the offense. The detective stated that she also learned from the victims’ mother that, there was another possible victim, M.V. After speaking with M.V.’s mother, the detective scheduled another interview with the Child Advocacy Center. M.V.’s grandparents lived at the trailer park, and it was outside the grandparents’ trailer where the alleged offenses took place.

Mr. Comeaux testified he was home the day of the incident. He lived with his girlfriend in a trailer next to M.V.’s grandparents’ trailer. He stated he was in the bathroom when he happened to look out the window and saw Defendant sitting in a chair, a little behind' the grandparents’ trailer, talking to the twins. Mr. Comeaux said the girls began crawling on their hands and knees in front of Defendant. As they crawled past Defendant, he reached down and touched them between their legs, oyer their clothing. He said Defendant touched one of the victims twice and the other once. Mr. Comeaux demonstrated on a doll supplied by the State where Defendant touched the girls. He described the touch as “rubbing.” Mr. Comeaux stated he got so,upset he started out to confront Defendant, but his girlfriend stopped him. After he cooled down a little, he drove to the victims’ parents’ trailer and told their stepdad, Ennis Peterman, about what Rhe had seen Defendant do to the girls. Mr. Comeaux stated that later the same day he gave a statement to the police.

Ms. White testified that she accompanied her daughters to the Child Advocacy Center and -viewed their statements with Detective Salvador. She asserted that they-had never made any allegations of inappropriate touching before. Both' Ms. White and Mr. Peterman testified that the girls showed them where Defendant -touched them. C.W. said Defendant touched her on her “butt,” and K.W. said he touched her on her “butt” and “vagina.” '

. Both of the victims testified. They were nine years old at the time of trial. K.W, used the doll to show the jury where Dei fendant touched her. She described the locations of the touching as the.“front and in the back.” She stated the back was her “butt,” When asked if it was a good or bad touching, she responded “bad.” C. W., using the doll, pointed to between the doll’s legs and to the back of'the doll, stating that Defendant touched her in the “front” and “butt.” She, too, described the "touching as “bad.”

Finally, M. V. testified. She was nine years old at the time of trial. She remembered visiting with her grandparents when they lived in the trailer park. She stated she used to play with KW. and C.W. However, while she stated she remembered Defendant, she could not point him out in the courtroom. She testified that Defendant tried to touch her in the front part of her “wrong spot,” but she ran away.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record.

RFor each of Defendant’s convictions of sexual battery, the court sentenced him two twenty-five years with the Louisiana Department of Corrections to run concurrently. At least twenty-five years of each of Defendant’s sentences were required to be imposed without the benefit of parole, probation) or suspension of sentence. La.R.S. 14:43.1. Thus, .the trial court’s failure to impose each of the sentences without the benefit of parole renders them illegally lenient. However, this court will not consider an illegally lenient sentence unless it is raised as error. State v. Jacobs, 08-1068 (La.App. 3 Cir. 3/4/09), 6 So.3d 316, writ denied, 09-755 (La. 12/18/09), 23 So.3d 931.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the evidence was insufficient to sustain the two convictions of sexual battery. Although, he argues the evidence was sufficient to prove beyond a reasonable doubt that he committed the offense of simple battery.

In State v. F.B.A., 07-1526, pp. 1-2 (La. App. 3 Cir. 5/28/08), 983 So.2d 1006, 1009, writ denied, 08-1464 (La. 3/27/09), 5 So.3d 138 (alteration in original), this court discussed sufficiency of the evidence, as follows:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61-L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983). To obtain a conviction, the elements of the crime must be proven beyond a reasonable doubt.
State v. Freeman, 01-997, pp. 2-3 (La. App. 3 Cir. 12/12/01), 801 So.2d 578, 580.
Furthermore, the testimony of a single witness is sufficient to support a conviction “[i]n the absence of internal contradiction or irreconcilable conflicts with physical evidence.” State v. Dixon, 04-1019, p. 12 (La.App. 5 Cir. 3/15/05), 900 So.2d 929, 936, The trier of fact may accept or reject the testimony of any witness, and the determination of the credibility of that witness, in whole or in part, is left to its sound discretion and “will not be re-weighed on appeal.” Id. at 936.

At the time of the offense, sexual battery was defined, in pertinent part, as “the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender[.]” La.R.S. 14:43.1(A),. Defendant argues the victims’ descriptions of where he touched them were too vagué to prove that he touched'their anus or genitals. He further points to inconsistent testimony as to who was touched where and how they were touched.

Defendant argues that the State used an anatomically incorrect doll as demonstratives and that the State did not “ ‘clarify the record’ by saying the girls were pointing to the anus or genital of the doll, for the record.” In a footno.te, Defendant argues: “The defense [sic] failure to object and ask for clarification can hardly be an error on the defense who could only benefit from the State’s failed effort to establish facts necessary for the record to later be reviewed by this Court.”

Defendant is correct in that the State did not specifically note for the record that the area the victims at trial indicated they were touched was the “anus” or the “vagina.” The victims referred only to the “front,” “back,” and “butt” and stated that the touching was “bad.” While this court canpot see where the victims pointed, the jury had the benefit of seeing where they indicated they were touched using the doll. Defendant objected at trial because the doll was not- anatomically correct. However, it is not necessary for there to be a vagina on the doll for the [ jury to recognize that between the doll’s legs was, in this case, the victims’ genitals and. that the anus was located in the “butt” area.

Mr. Comeaux, who saw the interaction between Defendant.and the girls, testified that Defendant touched them on the genitals and described the touch, as “rubbing.’! He further demonstrated for the jury where the victims were touched using the doll.

Defendant also suggests that the inconsistencies in the twins', their parents’, and Mr. Comeaux’s testimonies regarding who was touched where, were indicative of the State’s failure to establish all the elements of sexual battery. Defendant argues that he was guilty only of simple battery. Louisiana Revised Statutes 14:33, in pertinent part, defines battery as “the intentional use of force or violence upon the person of another[.]” Simple battery is defined as a “battery committed without the consent of the victim.” La.R.S. 14:35. While touching of the genitals or the anus are elements of the offense of sexual battery, the jury heard all the inconsistencies of how many times one or the other was touched and where. The jury, who are the finders of fact, was able to evaluate the inconsistencies and obviously believed j;he witnesses regardless of the inconsistencies. We find no internal contradiction established by the inconsistencies Defendant complains of; accordingly, we see no reason to upset the jury’s credibility determinations. As noted above, the testimony of a single witness is sufficient to support a conviction. In this case, there were two witnesses, the victims, as well as an eyewitness to the offenses. The State met its burden of proof beyond a, reasonable doubt.

There is no merit to this assignment of error.

| «ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that the trial court erred when it instructed the jury that attempted simple battery was a lesser included offense to sexual battery. Defendant argues that attempted simple battery is a non-crime, and because the jury returned an invalid conviction, the conviction should be dismissed. He argues:

In State v. Trackling, the Louisiana Supreme Court proclaimed the crime of attempted simple battery is “not [a] separate, cognizable offense[ ]” under Louisiana Law because attempting to commit a simple battery is already recognized under Louisiana Law as an “assault,” pursuant to La.R.S. § 14:38. 04-3222 (La. 1/19/06), 921 So.2d 79, 84. Therefore, even though simple battery may be a lesser included offense to sexual battery, attempted simple battery is not a lesser included offense to attempted sexual battery.
Because an attempted battery already has a “companion offense,” the Courts cannot use the general provisions of La. C.Cr.P. art. 815 to allow a jury to find a defendant guilty of attempted simple battery.

Also citing State v. Trackling, 04-3222 (La 1/19/06), 921 So.2d 79, the State concedes there is no such crime as attempted simple battery and agrees the conviction was erroneous. Therefore, we reverse the conviction of attempted simple battery and vacate the sentence imposed.

ASSIGNMENT OF ERROR NO 3

As noted above, the sexual battery statute, at the time of the offense, in pertinent part, read that sexual battery was “the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender!.]” La.R.S. 14:43.1(A). However, the State left out the phrase, “any instrumentality or” in the original indictment. After the commencement of trial, before any witnesses testified, the State moved to amend the bill to include the above phrase. Defendant objected, stating that the addition |flwas not just a technical change to the bill but a substantive change. The trial court allowed the amendment and the additional wording was added to the bill.

At the time of the offense, La.Code Crim.P. art. 487, Defective indictment; amendment, provided, in pertinent part:

A, An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.

In State v. Simon, 10-1111 (La.App. 3 Cir. 4/13/11), 62 So.3d 318, writ denied, 11-1008 (La. 11/4/11), 75 So.3d 922, the defendant objected to an amendment of the indictment when the State moved to add the victim’s age to the indictment. The defendant argued the change was substantive rather than form. In Simon, 62 So.3d at 325 (alterations in original) this court cited State v. Johnson, 93-394 (La. 6/3/94), 637 So.2d 1033, 1034-35, as follows:

La. Const. 1974, Art. I, § 13 provides that “[i]n a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him,” This requirement protects the accused’s right to prepare a defense and exercise fully his rights of confrontation and cross-examination. State v. Germain, 433 So.2d 110 (La. 1983). The bill of information must therefore inform the defendant of the nature and cause of the accusation against him in sufficient detail to allow him to prepare for trial, as well as to allow the court to determine the admissibility of the evidence. State v. Marcal, 388 So.2d 656 (La.1980); State v. Meunier, 354 So.2d 535 (La. 1978). Accordingly, the state may not substantively amend a bill of information to charge a new offense once trial has begun, La.C.Cr.P, art. 487; Cf., State v. Roberts, 319 So.2d 317, 320 (La.1975), rev’d on other grounds, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), on remand, 340 So.2d 263; State v. Bluain, 315 So.2d 749 (La.1975)[.]

In brief, Defendant argues that the State alleged and agreed that he never used any part of his body to touch the victims. Defendant argued [T]he only way the state could have satisfied its burden of proof in this cáse was through its effort to prove [he] used an ‘instrumentality’ to commit sexual battery.” Therefore, the “instrumentality” was the girls’ clothing. Thus, Defendant argues the amendment' to allow the additional language prejudiced him, “making it a per se ‘substantive’ amendment, not a procedural amendment.”

To support his argument that the amendment was substantive, Defendant states that in 2015, the legislature amended La.R.S. 14:43.1, to add the phrase “directly or through clothing.” 2015 La. Acts No. 256 § 1. He goes on to argue that “[p]rior to that change, touching through the clothing was not expressed] in the statute as a means to accomplish the crime.” Defendant therefore argues the trial court erred when it did not order a mistrial. However, in State v. Bouton, 615 So.2d 23, 25-26 (La.App. 3 Cir. 1993), wherein the defendant, who was charged with sexual battery, argued that since the victims were clothed there was no skin to skin contact, the third circuit stated:

We hold that skin on skin contact is not necessary for a sexual battery, A sexual battery can be committed by touching through clothing. LSA-R.S. 14:34.1 makes no distinction between a clothed or unclothed victim. See State v. Schenck,[ 513 So.2d 1159 (La.1987)] at 1164, n. 8. Moreover, it specifically includes the touching of the genitals of the victim by the offender using any instrumentality. We find that clothing constitutes an instrumentality with which to touch the victim’s genitals. Therefore, the fact that defendant touched the victims through their clothes is not a defense to the crime of sexual battery.[]

. | ^Furthermore, in State v. Delandro, 01-2514, p. 7 (La.App. 1 Cir. 5/10/02), 818 So.2d 1011, 1017, the first circuit described “substance” for the purpose of amending an indictment after trial had commenced, as follows:

“A ‘defect of substance’ as contemplated by Article 487 of the Code of Criminal Procedure is intended to mean a defect which will work to the prejudice of the party accused.” City of Baton Rouge v. Norman, 290 So.2d 865, 870 (La.1974); see also State v. Harris, 478 So.2d 229, 231 (La.App. 3 Cir.1985), writ denied, 481 So.2d 1331 (La.1986). The purpose of requiring the state to file an amendment to the indictment before trial is to provide the defendant with adequate notice of the charge so that he may properly prepare his defense. State v. Young, 615 So.2d 948, 951 (La.App. 1 Cir.), writ denied, 620 So.2d 873 (La. 1993). When the indictment against him provides sufficient notice of the crime with which he is charged, a defendant suffers no prejudice.

In the current case, the citation to the sexual battery statute was provided in the indictment. The absence of the words “any instrumentality or” was an omission and thus was a defect of form. Defendant had sufficient notice of the crimes with which he was being charged.' Moreover, Defendant has not shown that he was not prepared to defend himself; therefore, he has not established prejudice in this case.

ASSIGNMENT OF ERROR NUMBER 4

During trial, following Willis Co-meaux’s direct testimony, Attorney Marsha Montgomery, a public defender, stated she had just learned that the State’s two witnesses, Mr. Comeaux and Mr. Peterson, had been clients of the Public Defender’s Office. She raised the concern that there was now a conflict of interest which would pit her loyalty to Defendant against the two" prior clients. While an oral waiver of a potential conflict of interest was obtained from Defendant, he now argues that “[t]he trial court failed to take the necessary steps to ensure that Terry Goodeaux’s Sixth Amendment right to conflict-free counsel was protected, committing reversible error in this case.” Defendant asserts that the trial court |T Jailed to follow the correct procedure to ensure that his waiver of the conflict of interest was knowingly and intelligently made. Defendant’s defense counsel’s prior representation' of the witnesses was imputed to her via her employment ' with the Public Defender’s Office.

As a general rule, .Louisiana courts have held that an attorney laboring under an actual conflict of interest cannot render effective legal assistance to the defendant whom he is representing. State v. Cisco, 2001-2782 p. 17 (La.12/3/03), 861 So.2d 118, 129, cert. denied, 541 U.S. 1005, 124 S.Ct. 2023, 158 L.Ed.2d 522 (2004). An actual conflict of interest has been defined, as follows:
If a defense attorney owes duties to a party whose interests are adverse to those of the defendant,' then an actual conflict exists. The interest of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to the other client.
The issue of conflicting loyalties may arise in several different contexts, but may include the circumstance “where an attorney runs into a conflict because he or she is required to' cross-examine a witness who is testifying against the defendant and who was or is a client of the attorney.” Cisco, 2001-2732 p. 17, 861 So.2d at 129, citing State v. Tart, 1993-0772 p. 19 (La.2/9/96), 672 So.2d 116, 125, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996).
If the issue of counsel’s alleged conflict of interest is raised in a pretrial setting, the district court has two options: “appoint separate counsel or take adequate steps to ascertain whether the risk of a conflict of interest is too remote to warrant separate counsel. ... Failure to do one or the other in a case in which an actual conflict exists requires reversal.” Cisco, 2001-2732 p. 17, 861 So.2d at 130. If the issue of counsel’s alleged conflict of interest is not raised until after trial, “the defendant must prove that an actual conflict of interest adversely affected his lawyer’s performance.” State v. Kahey, 436 So.2d 475, 484 (La.1983); Because the prejudice to the defendant may be subtle, even unconscious, “where the conflict is real, a denial of effective representation exists without a showing of specific prejudice.” Id., 436 So.2d at 485.
I iaThe first step in the analysis of an alleged conflict of interest raised either pretrial or post-trial is whether an actual conflict of interest existed. We find it to be unnecessary to determine the tuning of the challenge in this case because we find that Reeves fails to prove that his counsel labored under a conflict of interest while representing him for first degree murder. There was no actual conflict in Ware’s representation of Reeves in the guilt phase of the first degree murder trial because Ware was not called upon to cross-examine any of his former or current clients in the state’s prosecution. Furthermore, there was no ■actual conflict of interest in the penalty phase because the state did not present evidence of Reeves’ prior conviction for attempted simple escape. Even if the state had presented evidence of this pri- or conviction, and a former or current client of Ware had been called to testify by the state, the district judge would have had available to him the' alternative remedy of having second chair counsel, who was' not similarly conflicted, conduct the cross-examination of those witnesses. See Cisco, 2001-2723, p. 25, 861 So.2d at 134.

State v. Reeves, 06-2419, pp. 78-79 (La. 5/5/09), 11 So.3d 1031, 1081-82, cert. denied, 558 U.S. 1031, 130 S.Ct. 637, 175 L.Ed.2d 490 (2009) (footnotes omitted) (alternation in original). “Actual conflicts of interest that adversely affect counsel’s performance must be established by specific instances in the record, and the mere possibility of divided loyalties is insufficient proof of actual conflict.” State v. Castaneda, 94-1118, p. 12 (La.App. 1 Cir. 6/23/95), 658 So.2d 297, 305.

Defendant complains:

Even assuming the conflicted attorney’s representing Terry could provide him with the legal advice necessary to ensure he understood the conflict, the court failed to secure a “narrative statement from Terry” proving to the Court Terry understood the waiver issue. Instead of asking Terry to write or make a statement on the record in narrative form, showing he fully understood his right, the trial court sought to ask him multiple “yes or no” questions. See, e.g., Leading questions and “yes, sir” answers do not constitute a narrative statement. In fact, after a break, but before any other evidence was offered in the case. Terry began “questioning the waiver that he just made.” Ultimately, Terry again consented to waive the conflict, but his change of mind shows he was not certain of how the process worked, and his waiver was not likely knowing and intelligent..

In State v. Cisco, 01-2732, pp. 21-23 (La. 12/3/03), 861 So.2d 118, 132-33, cert. denied, 541 U.S. 1005, 124 S.Ct. 2023, 158 L.Ed.2d 522 (2004) (footnote omitted) (second, 114third, and fourth alteration in original), the supreme court outlined the procedure to be followed when it was determined a conflict existed:

After the court has been alerted that an actual conflict of interest exists, the judge must take the proper steps to assure that the defendant’s Sixth Amendment right to effective assistance of counsel is not violated. State v. Carmouche, 508 So.2d 792. As noted above, when a defendant raises the issue of a conflict of interest prior to trial, the judge is required either to appoint other counsel or to take adequate steps to determine whether the risk of a conflict of interest is too remote to warrant other counsel. State v. Edwards, 430 So.2d 60, 62 (La.1983) (quoting Holloway v. Arkansas [435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978]). Those steps were set forth in Carmouche, wherein we determined that the judge, while being mindful of the restrictions inherent in the attorney/client privilege, should first require the attorney to disclose the basis of the conflict. 508 So.2d at 805. Then, “[i]f the judge determines that the conflict is not too remote, he should explain the conflict to the defendant ... and inform the defendant of his right to representation that is free of conflict.” Id. Thereafter, if the defendant chooses to proceed with conflicted counsel, “a statement should be prepared in narrative form, which indicates that the defendant is fully aware of his right [to conflict free counsel] but has chosen to make a knowing and intelligent waiver thereof. Id. (citing United States v. Winkle, 722 F.2d 605 (10th Cir.1983), and United States v. Martinez, 630 F.2d 361 (5th Cir.1980)); see State v. Odle, 02-0226, pp. 19-20 (La.App. 3d Cir. 11/13/02), 834 So.2d 483, 497; State v. Sartain, 98-0378, pp. 11-12 (La.App. 4th Cir.12/1/99), 746 So.2d 837, 846; see also United States v. Schwarz, 283 F.3d 76, 95 (2d Cir.2002); United States v. Kliti, 156 F.3d 150, 153 (2d Cir.1998).
This court has previously set forth the requirements for a knowing and intelligent waiver of the right to counsel unburdened by a conflict of interest. Before a defendant can knowingly and intelligently execute a valid waiver of conflicted counsel he must be told (1) that a conflict of interest exists; (2) the consequences to his defense from continuing with conflict-laden counsel; and (3) that he has a right to obtain other counsel. Sartain, 98-0378 at 12, 746 So.2d at 846 (citing State v. Castaneda, 94-1118, p. 5 (La.App. 1st Cir.6/23/95), 658 So.2d 297, 301)); see also United States v. Garcia, 517 F.2d 272, 276 (5th Cir.1975); State v. Salinas, 97-0716, p. 5 (La.App. 3d Cir.10/29/97), 703 So.2d 671, 674; Duncan v. Alabama, 881 F.2d 1013, 1017 (11th Cir.1989).

| T¡After defense counsel suggested there may be a conflict of interest involving two of the State’s witnesses, the trial court excused the jury, and the following conversations ensued:

THE COURT:
But the bottom line is there’s a conflict with the witnesses, with two of the witnesses, Mr. Comeaux being one, Willis Comeaux being one, and Ennis Peter-man, who has not yet been called but as the other conflict. The public defender’s office has represented both of those witnesses in the past, and they are currently representing the defendant in this case, Mr. Goodeaux.
And based on case law, the conflict is not the witnesses’ to waive, but it’s the defendant’s to waive, even though it’s the defendant’s — even though it would be the witnesses’ information that would be disclosed through cross-examination, apparently it’s still the defendant’s conflict that — it’s the defendant’s — the defendant that has the — that has to waive in order to go forward.
So with that being said, we took an extended recess for approximately 45 minutes now to give counsel — defense counsel, Ms. Montgomery and Mr.. Andrew Casanave, her supervisor, time to visit with the defendant, Mr. Comeaux, and — about whether he wants to waive his — waive any potential conflict in order to go forward with his case, to continue with the trial.
MR. CASANAVE:
I will, Your Honor, just to clarify. And as to Mr. Comeaux, the conflict comes from a case that’s quite a number of years ago. And, in fact, you know, — it would — I can safely say, despite — despite my belief that a conflict continues to exist that we actually wouldn’t necessarily even know how to find Mr. Co-meaux’s office flies at this point because it is so far back.
MR. CASANAVE:
So there a good chance that we might never be able to find Mr. Comeaux’s file. As to Mr. Peterman, his most recent conviction is such that he may have been arrested while this case was pending. The lawyer on that case would have had no reason to know to look up this |1ficase, because, you know, you’re not thinking of this guy as a witness someplace out in the space.
THE COURT:
Right.
MR. CASANAVE:
And that was a theft case, an unauthorized use of an access card case that was opened and closed while Mr. Goodeaux was incarcerated pending trial. So that’s something that was easy to miss in that sense,—
THE COURT:
Okay. Would you slide that microphone in front of Mr. Goodeaux.
Mr. Goodeaux, you spend a good while — you’ve probably spent about 30 minutes talking to your lawyers,' correct?
THE DEFENDANT:
Yes, sir.
THE COURT:
Mr. Casanave and Ms. Montgomery, y’all were back there for about 30. minutes in the jury deliberation room just by yourselves, correct?
THE DEFENDANT:
Yes, sir.
THE COURT:
And y’all were discussing this issue, the conflict of interest issue,—
THE DEFENDANT:
Yes, sir.
THE COURT:
Is that correct?
J^THE DEFENDANT:
Yes, sir.
THE COURT:
.Did you understand what they were saying?
THE DEFENDANT:
Yes, sir.
THE COURT:
And you understand that in order for this trial to go forward, you have to waive — in other words, they may have information in their file because they were — they used to represent Mr. Goo-deaux and Mr. Peterman. They may have information in their file that could help them cross-examine those witnesses that could potentially help you.
THE DEFENDANT:
Yes. And it could hurt me.
THE COURT:
Or it could hurt you.
THE DEFENDANT:
Yes, sir.
THE COURT:
You just don’t know at this point. But do you — so the question is — under the case law, you have- to be the one to waive, any potential conflict of interest there in order for us to go forward with this trial. . . ...
And so my question to you is; Do you want to do that? -
THE DEFENDANT:
The jury wouldn’t know' nothing about it, would they?
JjgTHE COURT:
The jury wouldn’t know anything about it. The only thing the jury would know is that, you know, something came up, and we had to take , an extra-long recess, which happens all the time. '
THE DEFENDANT:
You know, sir, she’s doing a great job. I’m very, you know, — I’m impressed with her performance. So, like I said, I would rather go forth with it, you know.
THE COURT:
Okay.
THE DEFENDANT:
Let her cross-examine. She’s been doing good so far.
THE COURT:
All right. So you — so that I’m clear, you want to waive any potential conflict of interest because you feel like .you’re satisfied with the representation of Ms. Montgomery and that you understand that, you know, that .the — now, they don’t currently represent Mr. Goodeaux [sic] or Mr. Peterman. .
THE COURT:
All right. Your lawyer spent 30 minutes talking to you about it. I’ve spent just a few minutes visiting with you about it, and you. want to waive any potential conflict in order to go forward in this case; is that right?
THE DEFENDANT:
Yes, sir. Yes, sir.
THE COURT:
All right. Let the' record so reflect. I do And that Mr. Goodeaux- is knowingly and intelligently waiving any potential conflict of interest here with regard to, you know, the public defender’s office’s prior representation of two of the witnesses for the State, and in order |infor them to continue representing him. And that’s what you want to happen, right?
THE DEFENDANT:
Yes, sir.

However, before trial resumed, Ms. Montgomery advised the trial court that Defendant decided that he wanted to represent himself and was having second thoughts about the waiver. The trial court again dismissed the jury and spoke with Defendant. Defendant told the trial court that he remembered a witness he wanted subpoenaed, who was also an eyewitness to the alleged offenses, and this eyewitness would testify that the alleged offenses never happened. After a lengthy discussion of who the witness was and his whereabouts, it was agreed that if defense counsel could locate the witness, he could testify. Defendant then stated that he had.no problem going forward with the trial and agreed that he had waived any potential conflict of interest.

In brief, Defendant argues, that the trial court found an actual conflict existed that was not too remote: -“[I]t is clear that the trial court felt the ‘conflict is not too remote’ because, the court took several actions it felt was necessary to address and remedy the problem.” Despite Defendant’s assertion, the trial court never made the statements that there existed an actual conflict-or that the public defenders’ representations of the witnesses were not too remote.

The State argues that there was no actual conflict. We agree with the State. Regarding Mr. Comeaux, who was an eyewitness to the. offense and whose testimony was damaging to Defendant, defense counsels agreed that Mr. Comeaux’s representation was so long .ago that they doubt-. ed his file even still existed. The record does not reflect that Mr. Casanave or Ms. Montgomery represented either of the witnesses. In the case of Mr. Comeaux, there was no hnshowing how Ms. Montgomery’s loyalty to Defendant or to Mr. Comeaux was compromised. In a recent circuit case, State v. Thomas, 16-578 (La.App. 3 Cir. 4/19/17), 217 So.3d 651, this court addressed a similar situation wherein it was determined there was no conflict of interest. In that case, the witness’s testimony was not necessarily prejudicial to the defendant and the prior representation by the public defender had been minimal. However, this court set out the parameter for finding whether there was an actual conflict of interest between the client and the witness, as follows:

. In the present case, the trial court was made aware of a potential conflict during trial. The trial court found, however, that there was no actual conflict because there was no indication that either one of Defendant’s attorneys actually represented Ms. Kibodeaux. As Defendant argues in brief, however, the testimony is unclear as to whether Mr. Monroe actually represented Ms. Kibo-deaux. Additionally, it appears that if another member of the Public Defender’s Office represented Ms. Kibodeaux, that representation would be imputed to Defendant’s .attorneys as employees of the Public Defender’s Office. Nonetheless, we conclude that the evidence presented was insufficient to prove'that either of Defendant’s attorneys was operating under an actual conflict of interest. The fifth circuit addressed a factually similar case and' foupd no actual conflict existed. See State v. Kelly, 14-241 (La.App. 5 Cir. 10/29/14), 164 So.3d 866, writ denied, 14-2499 (La. 9/25/15), 178 So.3d 163. The defense attorney in Kelly had previously represented one of the State’s witnesses. Kelly argued that “an actual conflict arose when [his attorney] ivas required to cross-examine [the witness at trial,] that the conflict was not cured by a valid waiver and that the error ... was not harmless." Id. at 877. The State contended, however, that no actual conflict existed because Kelly’s attorney had “only represented [the witness] in her role as an indigent defender at a preliminary hearing in an unrelated matter.” Id. Agreeing that no actual conflict existed, the fifth circuit explained:
The phrase “actual conflict of interest” means “precisely a conflict that affected counsel’s performance — as opposed to a mere theoretical division of loyalties.” Mickens [v. Taylor], 535 U.S. [162,] 171, 122 S.Ct. [1237,] 1243, 152 L.Ed.2d 291 [ (2002) ]. An actual conflict of interest arises when a defense counsel is “put in the unenviable position of trying zealously to represent Defendant at trial while simultaneously trying to protect the confidences of a former client who was testifying for l^the state against De~ fendant.” State v. Bell, 04-1183 (La. App. 3 Cir. 3/2/05), 896 So.2d 1236, 1243, writ denied, 05-0828 (La. 11/28/05), 916 So.2d 143, citing Carmouche, 508 So.2d [792] at 804 [ (La. 1987)]. The facts presented in this case do not show that defense counsel was forced.to labor under an actual conflict with clearly divided loyalties.

Id. at 879 (footnote omitted).

Recently, in State v. Tucker, 13-1631, p. 37 (La. 9/1/15), 181 So.3d 590, 619, cert. denied, — U.S. -, 136 S.Ct. 1801, 195 L.Ed.2d 774 (2016), the supreme court explained that even if a defendant proves an actual conflict, he still must show that a “lapse in representation” resulted from the conflict:
“[0]nce Defendant established that there was an actual conflict, he need not prove prejudice, but simply that a ‘lapse in representation’ resulted from the conflict. [United States v.] Iorizzo, 786 F.2d [52,] 58 [(2d Cir. 1986)] (quoting Cuyler [v. Sullivan], 446 U.S. [335,] 349, 100 S.Ct. [1708,] 1718, 64 L.Ed.2d 333 [(1980)]). To prove a lapse in representation, a defendant must “demonstrate that some ‘plausible alternative defense strategy or tactic might have been pursued,’ and that the ‘alternative defense strategy was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests,’ ” United States v. Levy, 25 F.3d 146, 157 (2d Cir. 1994) (quoting Winkler [v. Keane], 7 F.3d [304] at 309 [ (1993) ]).

Id. at 672-73 (alterations in original except for ellipsis).

In the current case, Ms. Montgomery cross-examined Mr. Comeaux extensively and aggressively regarding what he alleged he saw Defendant do to the victims. She further questioned him regarding his criminal history. In brief, Defendant does not indicate by specific instances in what way defense counsel’s performance was impeded or conflicted by a sense of loyalty to either her client or to Mr. Comeaux. Nor does Defendant argue an alternative defense strategy that might have been pursued but was not because of a conflict of interest.

|22As for Mr. Peterson, his ease with the Public Defender’s Office was concluded by the time of Defendant’s trial. His testimony comprised of what he learned from Mr. Comeaux and what the girls told him and Ms. White. During direct-examination, Mr. Peterson admitted he had a criminal history. On cross-examination, Ms. Montgomery never questioned him about his criminal history and only questioned him briefly about how the victims described the alleged touching. As with Mr. Co-meaux, Defendant does not indicate by specific instances in what way defense counsel’s performance was impeded or conflicted by a sense of loyalty to her client or to Mr. Peterson.

Furthermore, the trial court also assigned a friend of the court to speak with both of the witnesses and they both waived any elient/attorney confidentiality associated with the representation they received from the Public Defender’s Office. As the State points out in brief, once Mr. Co-meaux and Mr. Peterson waived attorney/client confidentially, any loyalty owed to the witnesses was voided; Defendant was free to impeach the witnesses or divulge any confidential information. There was no indication in the record that Ms. Montgomery owed a duty of loyalty to either Mr. Comeaux or Mr. Peterson that conflicted with her representation of Defendant.

Based on the above facts, circumstances, and jurisprudence, Defendaht failed to show an actual conflict of interest existed. The trial court in this ease took the cautionary action to seek an intelligent and voluntary waiver from Defendant, and Defendant failed to establish his oral waiver was not voluntarily or intelligently given.

There is no merit to this assignment of error.

^ASSIGNMENT OF ERROR NUMBER 5

Defendant argues that the trial court erred when it allowed Ms. White to testify as to what her daughters told her about where Defendant touched them. He argues this testimony was inadmissible hearsay evidence. Louisiana Code of Evidence Article 801(C) provides that '“[hjearsay’ is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the'truth' of the matter asserted.”

The State argues that an original complaint by a young child to his mother about sexual abuse is admissible evidence. Citing State v. Free, 26,267, p. 11 (La.App. 2 Cir. 9/21/94), 643 So.2d 767, 776, writ denied, 94-2846 (La. 3/10/95), 650 So.2d 1175, the State noted that “[bjecause the child may not have a clear understanding of what has been done to her, her ‘original complaint’ often consists of responses to the questioning, of a patient, persistent adult who draws the child’s story from her.”

Moreover, La.Code Evid. art. 801(D) provides, in . pertinent part, that a statement is not hearsay if:

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(d) Consistent with the declarant’s testimony and is one of initial complaint of sexually assaultive behavior.

At trial, Ms; White testified that after she and her husband had been told by Mr. ■Comeaux what he had seen Defendant do to the girls, they immediately called the girls in and asked them what happened. Ms. White testified that C.W told her Defendant touched her on her “butt,” and K.W. said he touched her on the “butt” and the “vagina.” Defendant objected to the testimony as hearsay.

| g^In brief, Defendant argues that Ms. White’s .testimony was the. only evidence the jury received regarding where Defendant actually touched the victims. He asserts that without this evidence, the jury would not have been - able to find the element of touching of the anus or genitals as required to achieve a valid verdict. Accordingly, Defendant contends that the error was not harmless. When performing a harmless, error analysis, the reviewing court must determine “ ‘whether thei:e is a reasonable possibility that the evidence complained of might have conributed to the conviction,’ ” and “the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) (quoting Fahy v. State of Connecticut, 375 U.S. 85, 86, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963). The inquiry “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whethér the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993).

The State argues that even if the statements were inadmissible, in this case, the admission of the statements was harmless error. There was other testimony that established the sexual abuse by Defendant. As discussed above, ■ the victims and an eyewitness • to the sexual activity testified. The victims indicated,- as did* the eyewitness, where Defendant touched them using a doll to show the location of the touching. Even without Ms. White’s testimony the evidence was.sufficient, and thus, the verdict was not attributable to the error.

There is no merit to this assignment of error.

^CONCLUSION

Defendant’s convictions and sentences for the two convictions of sexual battery are affirmed. However, we reverse the conviction of attempted'• simple battery, which is a not a crime under Louisiana law, and vacate the sentence imposed on the convictiom

CONVICTIONS AND SENTENCES FOR SEXUAL BATTERY AFFIRMED; CONVICTION AND SENTENCE FOR ATTEMPTED SIMPLE BATTERY REVERSED AND VACATED.

      . Pursuant 'to La.R.S. 46:1844(W), the' victims' initials are used to protect their identities.

      . Reference to La.R.S. 34.1, in this quote was a misprint wherein the numbers four and three were switched. In 1993, the statute not- . ed pertained to second degree battery.

      , Defendant spent several pages of his brief arguing that all of the attorneys that work for the Public Defender’s Office are imputed with the same conflict of interest concerns if he or she is required to cross-examine a witness who was or is a client of the Public Defender's Office and testifying against the defendant they are currently representing at the time. See State v. Garcia, 09-1578 (La. 11/16/12), 108 So.3d 1, cert. denied, 570 U.S. 926, 133 S.Ct. 2863, 186 L.Ed.2d 926 (2013). However, this assertion was never contested by the State at trial or in brief.