author: BROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Timothy Wayne CALHOUN, Appellant
    No. 51,218-KA
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 2017

      LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III, Counsel for Appellant
    TIMOTHY WAYNE CALHOUN, Pro Se
    R. STEPHEN TEW, District Attorney, Counsel for Appellee
    MADELEINE SLAUGHTER-YOUNG, Assistant District Attorney
    Before BROWN, WILLIAMS, and COX, JJ.
   BROWN, C.J.

| j After a jury trial, defendant, Timothy Wayne Calhoun, charged with 19 sexual offenses, was convicted of 12 offenses. On appeal, defendant challenges the sufficiency of the state’s evidence, the trial court’s failure to sever the charges, and the length of his sentences. We affirm defendant’s convictions. Defendant’s sentence for Count 1, aggravated rape, is amended to reflect that it will be served at hard labor. Additionally, defendant’s sentence for Count 19, cruelty to a juvenile, is amended to reflect that it is to be served with benefits. As amended, all sentences are affirmed.

FACTS

On August 5, 2013, the father of an alleged victim, J.C.S., contacted the Oua-chita Parish Sheriffs Office, alleging that defendant had sexually abused his daughter. On August 8, 2013, K.S., a cousin of J.C.S., also accused defendant of sexual abuse. As both girls were (and still are) minors, they were questioned by forensic interviewers at the Child Advocacy Center in Ouachita Parish.

On August 27, 2013, A.C., after learning of defendant’s arrest, contacted the Oua-, chita Parish Sheriffs Office to report sexual abuse by defendant. Then, on August 29, 2013, R.J. contacted the same office, alleging sexual abuse by defendant in 1996.

Prior to the allegations made against him in 2013, defendant had previously been arrested in 1997 for the sexual assault of another minor, C.J. These charges were later dismissed without prejudice because defendant joined the military. Due to the number of new allegations brought against defendant in 2013, the case involving C.J. was re-opened.

li>On November 14, 2013, defendant was charged by grand jury indictment, as amended, with 19 sexual offenses, including aggravated rape, sexual battery, indecent behavior with a juvenile, molestation of a juvenile, cruelty to a juvenile, attempted carnal knowledge of a juvenile, and-attempted forcible rape. According to the indictment, defendant sexually abused all five minor victims, A.C., R.J., C.J., J.C.S., and K.S., at various times between 1995 and 2013.

Defendant pled not guilty to all charges, and on March 26, 2014, he filed a motion to quash the indictment, arguing that the inclusion of crimes from the five alleged victims was highly prejudicial to his case and gave rise to possible claims of double jeopardy. This motion was heard on May 28, 2014, and was denied, with the trial court giving oral- reasons for its ruling following the hearing.

On February 8, 2016, defendant’s trial commenced. The state called 14 witnesses, including the five victims. All of the victims and their families in this case were related to, neighbors with, or friends of defendant or his family at some point since the offenses began in 1995. In an effort to simplify this appeal, the testimony presented by the state and defense is discussed below as relates to each victim and the respective crimes associated with her. Furthermore, as defendant was convicted of offenses involving three of the five victims, only witness testimony relevant to the convicted offenses is included herein.

As previously stated, after deliberations, the jury found defendant guilty of 12 of the 19 charges. Specifically, defendant was convicted of Counts 1 through 8 and Counts 16 through 19.

^Sentencing was deferred, pending a pre-sentence investigation (PSI). On April 26, 2016, the trial court sentenced defendant as follows:

The trial court ordered that the sentences for Counts 1 through 3, the convictions pertaining to A.C., run concurrently with each other. The sentences for Counts 4 through 8, the convictions pertaining to R.J., were ordered to run concurrently with each other, but consecutively with Counts 1 through 3. Similarly, Counts 16 through 19, the convictions pertaining to K.S., were ordered to run concurrently with each other, but consecutively with Counts 1 through 8.

|/The instant appeal followed.

DISCUSSION

Sufficiency of the Evidence

Defendant argues that the evidence was insufficient to sustain his convictions due to a lack of physical evidence and the state’s reliance on victims’ testimonies alone. Defendant also argues that the questionable credibility of one victim’s allegations, which caused the jury ultimately to find defendant not guilty of the charges related to that victim, calls into question the veracity of the other victims’ allegations.

On the other hand, the state argues that there was ample evidence against defendant to support his convictions.

Counts 1-3: Aggravated Raye, Sexual Battery, and Indecent Behavior ivith a Juvenile—A.C.

A.C. testified that she is the first cousin of defendant. A.C. further stated that she and her father lived at her grandmother’s house when she was in elementary school and junior high school. During that time, her paternal uncle Daniel and his children, including defendant, also periodically lived at the grandmother’s house.

A.C. stated that in 1995, during a time when defendant was living at their grandmother’s house, he forced A.C. to have sexual intercourse with him on several occasions. According to A.C., this began shortly after she turned 10 years old. On one occasion, defendant had sex with A.C. near a dirt pit. Another time, defendant entered her room while she was sleeping and forced her to have sex. A.C. stated that all of these acts occurred | ¡¡without her consent. She also testified that these incidents occurred prior to the incident involving her friend R.J.

A.C. testified that she told R.J. of the incidents, as well as several adults, including defendant’s father and her grandmother. A.C. testified, however, that “it didn’t do any good” and “nothing was ever done about it.” A.C. recalled locking her door at night, and one night, she was awakened by sounds at her door. Her door was open, and A.C. could see her grandma yelling at defendant, who was standing in his underwear, holding a butter knife, next to her open door.

In 2013, A.C. was informed of charges involving other victims pending against defendant. A.C. stated that upon learning of the charges, she consulted a lawyer and approached a detective, Darryl Frost, with the Ouachita Parish Sheriffs Office. While A.C. admitted to some prior animosity between defendant’s side of the family and her own, A.C. denied fabricating the charges. In fact, A.C. admitted to being very uncomfortable, and scared about testifying. During A.C.’s testimony, the court had the jury removed and reprimanded defendant’s wife for giving A.C. threatening looks and mouthing or mumbling threatening words. The judge ordered defendant’s wife to have no contact with A.C. and informed the wife that any violation of his order would result in her arrest and a finding of contempt. The judge ultimately ordered defendant’s wife to be removed from the courtroom for the duration of A.C.’s testimony.

Detective Darryl Frost testified that he met with A.C. in his office on August 7, 2013. He stated that A.C. complained of being touched and forced to have sexual intercourse with defendant on several occasions while they were both living at their grandmother’s house. A.C. told Det. Frost that |fithe abuse began when she was around eight years old and ended when she moved out, which was when she was approximately 13 years old. Upon receipt of A.C.’s allegations, Det. Frost referred the matter to the district attorney’s office.

Counts í-8: Aggravated Rape, Sexual Battery, Indecent Behavior with a Juvenile, Cruelty to a Juvenile, and Molestation of a Juvenile—R.J.

R.J. testified that she was childhood friends with A.C. During the summer of 1996, A.C. was living at her grandmother’s house, and R.J., who was then 11 years old, would frequently spend the night there. R.J. stated that she met defendant on one of her visits. According to R.J., one day, she, A.C., and another friend were at A.C.’s house fyhen defendant visited and offered to take them to either the zoo or a park, and the three girls agreed. Instead of going to the zoo or the park, however, defendant briefly stopped at a store to buy alcohol and then proceeded to take the girls to a room at a local “hotel.” R.J. testified that it was a small room in a crummy motel, with a bed in the center and an attached bathroom. They sat around drinking something like “Strawberry Fields.” R.J. testified that although it was the first time she had alcohol, she was not intoxicated. Defendant then ordered A.C. and the friend to go into the bathroom, which they did, leaving R.J. alone in the room with defendant, who sat on the bed next to R.J. and began kissing her “top area.”

After he started kissing R.J., defendant began to fondle her. vaginal area without her consent. R.J. testified that she tried to push his hands away, to no avail. Defendant then had R.J. lie on her back on the bed, and he removed her shorts and underwear. R.J. was still wearing her top. R.J. testified that defendant lay on top of her, and she could feel his penis Ivpenetrate her vagina. According to R.J., she immediately began to bleed. Upon realizing that R.J. was bleeding, defendant stopped what he was doing and got off of her. R.J. then went to the bathroom to be with her friends. R.J. told the two girls what had happened and showed them that she was bleeding. At trial, R.J. stated that she was 11 years old at the time of the incident and that she had never had sexual intercourse before. R.J. further testified that the bleeding was not caused by her period because her menstrual cycle did not start until she was 13 years old. When asked whether she tried to fight defendant, R.J. said that she did not because she was too afraid. According to R.J., “I was an eleven year old girl and he was a grown man.” R.J. did not tell the police or her parents about the incident because she was afraid she would get into trouble. R.J. stated that at the time of the incident, defendant had a tattoo of Thumper, the rabbit from Bambi, on one of his arms.

R.J. testified that she lost contact with A.C. about two years later. In 2013, A.C. contacted R.J., informing her of defendant’s arrest and encouraging R.J. to testify against defendant for what he did to her the summer of 1996. R.J. testified that she had not saved any physical evidence from the incident.

A.C. confirmed during her testimony that defendant was born in 1977, making him approximately seven years older than both A.G. and R.J. At the time of the incident, he was over the age of 18. A.C. corroborated R.J.’s testimony, adding that she and the friend were ordered by defendant to go to the bathroom and lock the door. A,C. also testified that, while she could not | Ssee or hear what occurred between defendant and R.J. because A.C. was locked in the bathroom, she knew what had happened because R.J. came into the bathroom crying and bleeding from her vagina. R.J. told A.C. that defendant tried to have sex with her, and R.J. was scared because it made her bleed.

Detective Frost testified at trial that he took R.J.’s complaint against defendant. Det. Frost further testified that, although the exact date of the incident is unclear, the motel where the incident allegedly occurred is the Quaker Motel.

Counts 16-19: Sexual Battery, Indecent Behavior with a Juvenile, Molestation of a Juvenile, and Cruelty to a Juvenile—K.S.

At trial, the state called Jo Caston, a detective with the Ouachita Parish Sheriffs Office. Det. Caston testified that she was informed of K.S.’s allegations against defendant on August 8, 2013, by KS.’s mother, Mrs. B., who is the half-sister of defendant’s wife, which makes K.S. defendant’s niece by marriage. Det. Caston interviewed K.S. at her home that same day, and then later took K.S. to the Child Advocacy Center (“CAC”) to be interviewed by a forensic interviewer. Det. Caston was given a copy of the interview and subsequently arrested defendant. Det. Caston further testified that, due to the length of time between the commission of the offenses and the reports, no physical evidence was recovered.

Next, Mrs. S., who is K.S.’s aunt (she and Mrs. B. are sisters) and mother of one of the alleged victims, J.C.S., testified that she was present when the police were informed of the allegations that defendant had sexually abused K.S. Mrs. S. explained that that she and defendant’s wife, Mrs. C., | sare half-sisters, and defendant is KS.’s uncle. Mrs. S. testified that her own child, J.C.S., had made allegations against defendant on August 5,2013.

Tiffany O’Neal, a forensic interviewer with the CAC, testified that Det. Caston brought K.S. to the CAC on August 13, 2013. Ms. O’Neal conducted a recorded interview of K.S., and a DVD copy of the interview was admitted into evidence and. played for the jury during Ms. O’Neal’s testimony. Ms. O’Neal further testified that only she and K.S. were in the interview room, but the interview was observed by her supervisor and Det. Caston from a monitor located in the supervisor’s office.

K.S. testified next. The video of KS.’s interview was replayed, and K.S. verified that she was telling the truth, and no one had instructed her on what to say. In the video, K.S. told Ms. O’Neal that she was using the restroom at “Uncle Tim’s” house when defendant entered the restroom, shut the door and stood in front of it with his arms crossed, watching her. Defendant asked K.S. if she was done using the restroom, and then asked to see her “tootie.” K.S. told him no, but, before she could put on her underwear, defendant touched the outside of her “tootie.” K.S. told Ms. O’Neal that she tried to push defendant’s hand away. During the interview, Ms. O’Neal showed K.S. a drawing of a naked woman and asked her to identify the body part where defendant touched her. K.S. pointed to the woman’s vagina and stated that was her “tootie.” K.S. then told Ms. O’Neal | inthat defendant only touched her once, and she was approximately six years old at the time. K.S. was nine years old when she testified at trial.

KS.’s mother, Mrs. B., testified next. Mrs. B. confirmed that K.S. reported being touched by defendant in the vaginal area while K.S. was using the restroom. Upon learning this, Mrs. B. immediately contacted the Ouachita Parish Sheriffs Office. Mrs. B. further testified that she had KS. examined by a doctor after learning of the allegations, but K.S. showed no signs of physical abuse.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the case in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La. 05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La. App. 2 Cir. 01/9/08), 974 So.2d 181, writ denied, 08-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La. 02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2 Cir. 01/14/09), 1 So.3d 833, writ denied, 09-0310 (La. 11/06/09), 21 So.3d 297.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court affords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2 Cir. 02/25/09), 3 So.3d 685, writ denied, 09-0725 (La. U12/11/09), 23 So.3d 913, cert. denied, 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010); State v. Hill, 42,025 (La.App. 2 Cir. 05/09/07), 956 So.2d 758, mit denied, 07-1209 (La. 12/14/07), 970 So.2d 529.

La. R.S. 14:42 (Aggravated Rape) provides in pertinent part:

A. Aggravated rape is a rape ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

La. R.S. 14:43.1 (Sexual Battery) provides in pertinent part:

A. Sexual battery is 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 ... when any of the following occur:
(1) The offender acts without the consent of the victim.

La. R.S. 14:81 (Indecent Behavior with Juveniles) states in pertinent part:

A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
(1) Any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen where there is an age difference of greater than two years between the two persons. Lack of knowledge of the child’s age shall not be a defense ....

La. R.S. 14:81.2 (Molestation of a Juvenile) states:

A. (1) Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a Imposition of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

Finally, La. R.S. 14:93 (Cruelty to a Juvenile) states in pertinent part:

A. Cruelty to juveniles is:
(1) The-intentional or criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby unjustifiable, pain or suffering is caused to said child. Lack of knowledge of child’s age shall not be a defense ....

When the defendant asserts that he was not the perpetrator, or remains silent, the state bears the burden of negating any reasonable probability of misiden-tification. State v. Powell, 27,959 (La.App. 2 Cir. 04/12/96), 677 So.2d 1008, writ denied, 96-1807 (La. 02/21/97), 688 So.2d 520; State v. Mickens, 31,737 (La.App. 2 Cir. 03/31/99), 731 So.2d 463, writ denied, 99-1078 (La. 09/24/99), 747 So.2d 1118. It is the province of the jury to resolve conflicting inferences from the evidence. State v. Mickens, supra; State v. Free, 26,267 (La. App. 2 Cir. 09/21/94), 643 So.2d 767, writ denied, 94-2846 (La. 03/10/95), 650 So.2d 1175. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness—if believed by the trier of fact—is sufficient to support for a requisite factual conclusion. State v. Jones, 34,863 (La.App. 2 Cir. 08/22/01), 794 So.2d 107, writ denied, 01-2648 (La. 08/30/02), 823 So.2d 938. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence. State v. 'Mick-ens, supra. This is equally applicable to the testiihony of sexual assault victims. State v. Rives, 407 So.2d 1195 (La. 1981); State v. Thomas, 30,490 (La.App. 2 Cir. 04/08/98), 711 So.2d 808, writ denied, 99-0331 (La. 07/02/99), 747 So.2d 8.

| iaThere was sufficient direct evidence from which the jury could have found defendant guilty of all 12 offenses. First, the testimony from A.C. alone is sufficient evidence that defendant is guilty of aggravated rape, sexual .battery, and. indecent behavior with a juvenile. A.C. clearly stated that defendant forced her to have noncon-sensua! sex on numerous occasions, beginning when she was approximately 10 years old. Despite defense counsel’s suggestion that she fabricated the story due to familial strife, A.C. stated that she was telling the truth.

Next, the testimony of R.J., corroborated in part by the testimony of A.C., is also sufficient evidence to support the jury’s finding that defendant is guilty of aggravated rape, sexual battery, indecent behavior with a juvenile, cruelty to a juvenile, and molestation of a juvenile. R. J. testified that she was 11 years old at the time of the incident, and defendant was over 18 years old. R.J. stated that, after ordering A.C. and another girl into the bathroom, defendant began kissing her “top area,” then he fondled her vaginal area. He removed R.J.’s shorts and underwear and proceeded to have sex with her. R.J. stated that this was not done with her consent, and she did not tell anyone because she was afraid. A.C. confirmed that R.J. was bleeding as a result of her encounter with defendant because she saw the blood in RJ.’s underwear.

Third, K.S.’s testimony is sufficient evidence to support the jury’s finding that defendant is guilty of sexual battery, indecent behavior, molestation of a juvenile, and cruelty to a juvenile. Despite her young age, K.S. was able to clearly recall the incident as she discussed what happened with Ms. O’Neal. In telling her story, K.S. did not hesitate or second-guess herself. K.S. stated that when defendant walked in on her using the 114bathroom, he placed his hand on the outside of her “too-tie” without her consent. Defendant further told K.S. not to tell, anyone, or she would get into trouble. The- facts clearly show that there is at least- a 20-year age difference between K.S. and defendant.

Furthermore, there appears very little chance of misidentification of defendant as the perpetrator. During their testimony, each victim clearly identified defendant as their abuser, and described the general location at which each incident occurred. In certain incidents, the victim’s own testimony was corroborated by other witnesses.

Finally, defendant’s argument that the falsity of one victim’s allegations calls into question the truth of the other victims’ allegations is without merit. As previously stated, five young girls accused defendant of committing various sexual offenses against them. One of the alleged victims was J.C.S. At trial, the state questioned J.C.S. as well as her mother, Mrs. S. It was suggested by Mrs. S. that the allegations made by her daughter J.C.S. were concocted by J.C.S.’s father. Mrs, S. stated that, at the time the allegations were made, she and her husband were in the middle of an acrimonious divorce, Mrs. S. testified that she believed J.C.S.’s father fabricated the allegations in an effort to discredit her. Specifically, Mrs. S. testified that J.C.S.’s father thought he’ could get full custody of his children and restrict Mrs. S.’s visitation rights by alleging that she was unfit because she allowed J.C.S. to play at defendant’s home. Apparently, J.C.S.’s father also sent emails to Mrs. S. in which he threatened to label defendant a child molester. None of these emails were admitted into evidence at trial. '

It appears the jury was swayed by Mrs. S.’s testimony as defendant was acquitted of the crimes involving J.C.S. Considering this result, it is 1^illogical for defendant to argue that the veracity of J.C.S.’s allegations tainted the other victims’ allegations. As noted above, the reason for the perceived falsity of J.C.S.’s allegations was personal to her family. J.C.S’s father was attempting to discredit her mother by suggesting that she allowed their children to play at the home of a pedophile. This reason would have had no bearing on the testimony of the other victims, particularly those who are not in contact with J.C.S. or her family, and who alleged that the crimes against them took place nearly 15 years prior. It is not relevant that J.C.S.’s allegations might have been the catalyst for the other victims to come forward. Defendant’s argument that the allegations of all five victims formed some elaborate conspiracy against .him has the markings of a conspiracy theory itself. In any event, the argument made by defendant goes to credibility calls made by the jury, which will not be disturbed on appeal.

This assignment of error lacks merit.

Failure to Sever the Charges for Trial

Defendant argues that the trial court erroneously denied his timely filed motion to quash the indictment. According to defendant, the joinder of 19 charges from five victims caused irreparable prejudice to his case, and it unnecessarily confused the jury. Defendant suggests that the jury could have easily relied on evidence from certain offenses to satisfy elements of other offenses involving different victims. Defendant submits that the nature and of the charges also made the jury hostile to him, and he was unable to present a meaningful defense. Defendant urges that should he have desired 11Rto testify as to some counts but not others, he was effectively prevented from doing so by the joinder.

The state argues that because defendant was required to make factual allegations, not conclusory ones, he did not meet his burden of proving his entitlement to severance.

La. C. Cr. P. art. 493 states:

Two or more offenses may be charged in the same indictment or bill of information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transactions connected together constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

The burden rests upon the defendant to demonstrate prejudicial joinder. State v. Machon, 410 So.2d 1065 (La. 1982); State v. Smith, 600 So.2d 745 (La. App. 2 Cir. 1992). To determine if a defendant is prejudiced by the joinder of two offenses, the district court must examine whether (1) the jury would be confused by the various counts, (2) the jury would be able to segregate the various charges and evidence, (3) the defendant would be confounded in presenting various defenses, (4) the crimes charged would be used by the jury to infer criminal disposition on part of defendant, and (5) considering the charges, the jury would be hostile towards the defendant. State v. Robinson, 49,677 (La. App. 2 Cir. 04/15/15), 163 So.3d 829, writ denied, 15-0924 (La. 04/15/16), 191 So.3d 1034. The court, however, must also weigh the possibility of prejudice to the defendant against “the |17important consideration of economical and expedient use of judicial resources.” State v. Brooks, 541 So.2d 801 (La. 1989); State v. Robinson, supra, A motion to sever is within the sound discretion of the trial court, and, absent a showing of abuse of discretion, the court’s ruling should not be disturbed on appeal. State v. Williams, 418 So.2d 562 (La. 1982).

In State v. Washington, 36,224 (La.App. 2 Cir. 09/18/02), 828 So.2d 97, writ denied, 02-2963 (La. 09/19/03), 853 So.2d 631, the defendant was charged with nine counts involving the rapes and the robberies of three different women and the indecent behavior of requiring two of the women’s children to watch the rapes. The defendant was convicted of eight counts and found not guilty of one of the armed robberies. On appeal, the defendant challenged the joinder of the offenses. The Second Circuit affirmed the convictions, noting that this Court has previously upheld the joinder for trial of separate charges for the rapes of separate victims. See State v. Harris, 33,406 (La.App. 2 Cir. 08/25/00), 765 So.2d 1230, writ denied, 00-2868 (La. 08/24/01), 795 So.2d 322. In its opinion, this Court found the presentation of the evidence chronologically and separately for each victim to be sufficient to prevent confusion of the issues. State v. Washington, 828 So.2d at 106. The Court observed that the lack of confusion is evident from the jury acquitting the defendant of one charge. Id,

Defendant failed to show that the trial court abused its discretion in denying his motion to quash. In his motion, defendant offered general arguments of undue prejudice and double jeopardy. In response, the state filed a very detailed opposition, supporting its decision to join the 19 counts, while also refuting the possibility of double jeopardy. At a hearing held on | 1sMay 28, 2014, the trial court denied defendant’s motion, finding that he failed to meet his burden of proof.

The facts show that defendant did not suffer undue prejudice from the joinder. First, the crimes were properly joined because they all involved similar lewd sexual conduct with multiple minor victims. Second, the facts of each incident were clearly distinguishable from the facts involved in the other incidents. The evidence against defendant was not complex and was presented to the jury in an orderly fashion. This allowed the jury to segregate the charges and evidence.

The jury’s verdicts as to each charge also demonstrated their ability to compartmentalize each offense and victim, as defendant was found not guilty of all offenses involving C.J. and J.C.S., but was found guilty of all offenses involving A.C., R.J., and K.S. Clearly, the jury was not confused by the nature of the crimes, and, importantly, did not superimpose the credibility of one victim over that of another.

Finally, that the jury found defendant not guilty of offenses involving C.J. and J.C.S. shows a lack of hostility towards defendant.

This assignment of error is without merit.

Excessive Sentence

Defendant argues that the imposition of two consecutive life sentences plus 30 years, to be served consecutively with the life sentences, is excessive. While he acknowledges that it is within the trial court’s discretion to order sentences to run consecutively rather than concurrently, defendant asserts that these particular sentences inflict needless pain and are purposeless.

119The state argues that the number and age of victims, coupled with the lasting emotional damage caused by defendant’s actions, do not render the sentences unconstitutionally excessive.

When a defendant fails to file a motion to reconsider sentence, the appellate court’s review of a sentencing claim is limited to the bare claim that the sentence is constitutionally excessive. La. C. Cr. P. art. 881.1; State v. Mims, 619 So.2d 1059 (La. 1993); State v. Jones, 41,449 (La.App. 2 Cir. 09/20/06), 940 So.2d 61; State v. Duncan, 30,453 (La.App. 2 Cir. 02/25/98), 707 So.2d 164.

Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La. 1992); State v. Livingston, 39,390 (La.App. 2 Cir. 04/06/05), 899 So.2d 733; State v. White, 37,815 (La.App. 2 Cir. 12/17/03), 862 So.2d 1123.

A sentence violates La. Const, art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than the purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La. 1993). A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La. 01/15/02), 805 So.2d 166.

The trial court is given wide discretion in the imposition of sentences within the statutory limits. Such a sentence will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams, 03-3514 (La. 12/13/04), 893 So.2d 7; State v. Diaz, 46,750 (La.App. 2 Cir. 12/14/11), 81 So.3d 228.

| gnMaximum sentences are generally reserved for the “most egregious and blameworthy offenders in a class.” As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031 (La. 02/15/08), 974 So.2d 665; State v. Hogan, 47,993 (La.App. 2 Cir. 04/10/13), 113 So.3d 1195, writ denied, 13-0977 (La. 11/08/13), 125 So.3d 445.

La. C. Cr. P. art. 883 states that when two or more convictions arise from the same act or transaction, or constitutes part of a common scheme or plan, the terms of the imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Although La. C. Cr. P. art. 883 favors the imposition of concurrent sentences for crimes committed as part of the same transaction or series of transactions, the trial court is given the discretion to impose consecutive penalties in cases where the offender’s past criminality or other circumstances in his background justify treating him as a grave risk to the safety of the community. State v. McDuffey, 42,167 (La.App. 2 Cir. 06/20/07), 960 So.2d 1175, writ denied, 07-1537 (La. 01/11/08), 972 So.2d 1163; State v. Walker, 00-3200 (La. 10/12/01), 799 So.2d 461; State v. Feaster, 36,868 (La.App. 2 Cir. 03/05/03), 840 So.2d 675. The factors considered when determining whether to impose concurrent or consecutive sentences include: (1) the defendant’s criminal history, (2) the gravity or dangerousness of the offense, (3) the viciousness of the crimes, (4) the harm done to the victims, (5) whether the defendant constitutes an unusual risk of danger to the public, (6) the potential for the defendant’s rehabilitation, and (7) whether the defendant has received a benefit of a plea bargain. State v. McDuffey, 960 So.2d at 1181-82.

1 ai Furthermore, a trial court’s failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support the consecutive sentences imposed. State v. Hampton, 38,-017 (La.App. 2 Cir. 01/28/04), 865 So.2d 284, writs denied, 04-0834 (La. 03/11/05), 896 So.2d 57, 04-2380 (La. 06/03/05), 903 So. 2d 452.

Since the charges in the instant case span an 18-year period, legislative changes during that time resulted in varying sentencing ranges for some of the offenses. The sentencing ranges for the 12 counts of conviction are as follows:

UaThe consecutive sentences imposed by the trial court are not excessive by constitutional standards. As previously stated, the trial court is granted wide discretion in determining what sentence to impose and, when dealing with multiple sentences, whether said sentences will run concurrently with, or consecutively to, each other. Generally, sentences resulting from convictions that arise from the same act, transaction, or constitute a common scheme will run concurrently with each other unless the trial court states otherwise.

Defendant was convicted of crimes involving three victims. The crimes occurred at various points over an 18-year period, and the crimes against the victims were independent of each other. As noted above, Counts 1 through 3 involved A.C. The trial court ordered that all sentences for these counts would run concurrently with each other. Similarly, Counts 4 through 8 involved R.J., and the trial court ordered sentences for these to run concurrently with each other. Finally, Counts 16 through 19 involved K.S.; these sentences were ordered to run concurrently with each other. However, the trial court then ordered that the concurrent sentences imposed for Counts 4 through 8 run consecutively to the concurrent sentences imposed for Counts 1 through 3, and Counts 16 through 19 run consecutively with the concurrent sentences imposed for Counts 1 through 8.

| ¾⅞At sentencing, the trial court examined defendant’s criminal history, which consisted of convictions for shoplifting, aggravated battery (pled down from attempted second degree murder), and disturbing the peace. The trial court also examined defendant’s family background, work and educational history, military service, and the previously ordered PSI. In sentencing defendant, the trial court justified its decision based on defendant’s pattern of sexual abuse, his need for correctional treatment, and the use of his position or status to take advantage of young girls. Additionally, the court stated that any lesser sentence would deprecate the seriousness of defendant’s crimes and that there were no mitigating factors. The sentences as imposed do not shock the sense of justice.

This assignment of error is without merit.

Pro se Assignment of Error-Ruling on Jury Instructions Objection

Defendant argues that he should only have been convicted of aggravated rape by a unanimous jury verdict, and that the trial court erred in instructing the jury that defendant could be convicted of aggravated rape by a vote of ten to two in favor of guilt. Defendant, who received two consecutive life sentences, equates a life sentence to the death penalty because such a sentence can only be completed at death. Consequently, he argues that a life sentence, like the death penalty, should only be imposed after a unanimous finding of guilt.

Louisiana Constitution article 1, § 17(A) provides in part that a case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. See also Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L]^Ed.2d 184 (1972); La. C. Cr. P. art! 782(A); State v. Bertrand, 08-2216 (La. 03/17/09), 6 So.3d 738; State v. Henry, 47,323 (La.App. 2 Cir. 07/25/12), 103 So.3d 424, writ denied, 12-1917 (La. 03/08/13), 109 So.3d 356. This assignment of error is without merit.

Error Patent

When sentencing defendant for Count 1, aggravated rape, the court failed to specify that the life sentence was to be served at hard labor. Under the statute, any person convicted of aggravated rape shall be sentenced to life at hard labor without the benefit of probation, parole, or suspension of sentence. La. R.S. 14:42(D).

When sentencing defendant for Count 19, cruelty to a juvenile, the court imposed the sentence without the benefit of probation, parole, or suspension of sentence. In accordance with the statute, the sentence should be imposed with benefits. La. R.S. 14:93(D).

Therefore, we amend defendant’s sentence for Count 1 to reflect that it will be served at hard labor, and we amend defendant’s sentence for Count 19 to reflect that it shall be served with the benefit of probation, parole, or suspension of sentence.

CONCLUSION

For the foregoing reasons, all 12 of defendant’s convictions are affirmed. All sentences, including those for Count 1 and Count 19 as amended herein, are affirmed. Defendant’s sentence for Count 1 is amended to reflect that it must be served at hard labor. Defendant’s sentence for Count 19 is amended to grant benefits.

CONVICTIONS AFFIRMED; AS AMENDED, ALL SENTENCES ARE AFFIRMED.

      . Because the offenses occurred over an 18-year time period, some sentences for the same crimes vary according to the statute in effect at the time of each offense.

      . Defense counsel filed a timely brief on defendant’s behalf. Defendant, however, also filed an untimely pro-se brief on January 24, 2017.

      . Defendant's father testified that defendant did not get this tattoo until he went into the military, approximately one year later.

      . J.C.S. alleged that she had been sexually abused by defendant. Defendant was acquitted of these charges, which were Counts 12-15, at trial. Mrs. S. testified that she initially believed that her ex-husband had fabricated the allegations involving J.C.S. in an effort to discredit Mrs. S. during their acrimonious divorce and custody proceedings. However, she questioned her doubts once K.S.'s allegations against defendant were made, Mrs. S. testified that she had no knowledge whether K.S.’s allegations were true.

      . There was extensive colloquy between the parties and the trial court regarding the number of charges against defendant for single incidents. Judge Ellender ordered the state to file a memorandum justifying its decision on how it billed the charges, and after reviewing the issue himself, Judge Ellender found the number of charges to be permissible.


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    Judy Dove SWAGGART, Respondent v. John DOE, Brett Munson, Regions Bank and ABC Insurance Company, Applicant
    No. 50,739-CW
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 5, 2017
    Rehearing Denied May 16, 2017

      COOK, YANCEY, KING & GALLOWAY, By: Bernard S. Johnson, Andrew P. Lambert, Counsel for Applicant, Regions Bank
    THE UPTON LAW FIRM, L.L.C., By: Timothy F. Upton, Counsel for Respondent
    Before LOLLEY, PITMAN, and COX, JJ.
   PITMAN, J.

11 Applicant Regions Bank (“Regions”) seeks review of the trial court’s overruling of its exceptions of prematurity and lack of subject matter jurisdiction and the denial of its alternative motion to stay pending arbitration. This court granted the writ and made it peremptory, but the supreme court granted writs and remanded, ordering that this court have the matter fully briefed and argued. After briefing and oral argument, the writ is granted, made peremptory and the judgment of the trial court is vacated. The motion to stay pending arbitration is granted.

FACTS

Respondent Judy Dove Swaggart filed suit against Regions; Brett Munson, the manager of the branch bank; an unknown person identified as John Doe; and ABC Insurance Company; alleging that, she entered into a contract with a Regions branch in Monroe, Louisiana, to lease two safe deposit boxes on July 7, 2011. These boxes were allegedly leased when Byron Johnson was the manager of that branch of the bank. She alleged that she later acquired a third box. She claimed she was never given a copy of the contracts leasing two boxes or the box keys. She asserted that between $600,000 and $700,000 in gold coins, silver bars and jewelry, comprising her entire life savings and retirement funds, were placed in the boxes.

Respondent alleged that, in August 2014, when she went to Regions to withdraw some items for appraisal and possible sale, Munson had |¡>replaced the previous branch manager, Johnson. Munson told her that Regions had registered only one box to her, Box 1148, and claimed it had no records that she had leased any other boxes. She opened Box 1148 and retrieved a few items, but, otherwise, found the box empty of the valuable property she claimed it should have contained. She returned two days later and asked to see the paperwork associated with her safe deposit box. Munson showed her the paperwork for Box 1148, the lease and the box entry log. She asked him for a cashier’s check; and, when he left the office, she apparently took the documentation and left the building. He discovered her paperwork was missing from his desk and called her to ask if she had mistakenly taken it, but she denied doing so.

Respondent claims that, a few days.later, she received an anonymous letter in the mail which enclosed a copy of the contract referencing Box 1121 with account number 10480011215, created on July 7, 2011. This contract is not signed by Respondent. She also had a copy of the contract for lease of Box 1148, but that contract had been altered in that the box number and account numbers had been scratched out and 1148 was written above the box number and the number 00010480011484 was written above the account number. Her signature is present on the lease of Box 1148, and it is dated July 7, 2011.

A few days later, an attorney named Sedric Banks went to the same branch of Regions and, on behalf of Respondent, showed the manager the contract with the scratched-out information, but he refused to tender it or allow Regions to make a copy of it. He claimed that Respondent had lost a [.^significant amount of property as a result of placing her valuables in Regions’ safe deposit box(es).

In September 2014, Regions filed a demand for arbitration with the American Arbitration Association seeking recovery of the contract and the log associated with the safe deposit box, as well as seeking a declaration that Regions was not liable to Respondent for any losses. Although Regions tried to twice serve this demand on Respondent, service was never made.

Subsequently, on July 21, 2015, Respondent filed this suit alleging negligence on the part of Regions and its employees, breach of contract and that damages were due .for mental anguish she suffered for her loss of $750,000 worth of property.

Regions filed a dilatory exception of prematurity, declinatory exception of lack of subject matter jurisdiction and an alternative motion to stay pending arbitration. It contended that, when Respondent rented the safe- deposit box, she signed a Safebox Customer Contract, the first page of which notified her that the lease agreement, which began on the reverse side of the form, limited or waived certain of her rights, including that she- agreed to arbitrate pursuant to the lease and she was waiving the right to bring a court action. The contract also provided that:

[a]ll unresolvable disputes or claims pertaining to Your Box and this Lease or the relationships that arise therefrom, whether based in contract, tort, or otherwise, shall be resolved by binding arbitration under the expedited procedures of the Commercial Financial Disputes Arbitration Rules of the American Arbitration Association (AAA) and Federal Arbitration Act in Title 9 of the US Code. ■

In conformity with the contract provisions, Regions alleged that Respondent’s litigation was premature because the parties had | ¿mutually agreed to arbitrate her claims. Alternatively, it alleged that the trial .court lacked subject matter jurisdiction to adjudicate the matter based on the enforceable arbitration agreement. Finally, and in the alternative, it prayed that a motion to stay proceedings pending arbitration should be granted based, on the provisions of the Louisiana Binding Arbitration Law, La. R.S. 9:4201 et seq.

In connection with the exceptions, Regions filed an affidavit by Munson, which stated that he was aware of Respondent’s complaints, that she had leased Box 1148 and signed a Safebox Customer Contract, which was the same, or substantially similar to one attached to the affidavit, at least insofar as the provisions relating to arbitration of claims, and that it was a copy of the forms used by all branches of Regions as of the date Respondent contracted to lease her safe deposit box. He further stated that Respondent had come to the bank and taken the contract and log book associated with Box 1148. He also stated that Attorney Banks had left Regions with Respondent’s claims unresolved and had later informed Regions in writing that he no longer represented Respondent.

Respondent filed an opposition to the exceptions and alleged that Johnson, Regions’ branch manager at the time she rented the boxes, had to assist her with carrying a large, heavy bag of property into the bank to be deposited into a safe deposit box. She claimed that, on January 1, 2012, she and Wayne Hummel, an appraiser, viewed at least two of the boxes and the valuables therein. Hummel allegedly provided her with an appraisal and purchased some of the items. Attached to the opposition were copies of | ¡¡three Safe-box Customer Contracts. The contract for Box 1121 was unsigned, a contract for Box 1148 was unsigned and the third, for the same Box 1148, was the altered contract containing the scratched-out information, and it was signed by Respondent.

It is unclear where Respondent obtained the clean, but unsigned, copy of the contract indicating she was renting Box 1148. The copy that was signed, she argued, was prepared by Johnson in July 2011. Thus, she claimed, the one contract for the box (1148) that Regions acknowledged as hers was not the contract for which she consented or signed. She argued that Regions denied she even had contracts for the other two boxes that she claims.

Respondent contended that the Safebox Customer Contract for Box 1148 lacked her consent and was, therefore, void and unenforceable. She stated that, because Regions denied knowledge of her renting the two other boxes, it should be denied the right to enforce the alleged arbitration agreement in the contracts pertaining to those boxes. She argued that her suit was not premature since there was no valid arbitration agreement, that the trial court did not lack subject matter jurisdiction and that there was no need to stay this matter pending arbitration.

In response, Regions argued that Respondent’s opposition addressed the merits of her underlying claims, but did not present any evidence to rebut the existence of a valid arbitration clause. It asserted that, regardless of how many safe deposit boxes Respondent leased, she would have signed a contract containing an unambiguous arbitration clause for each box. It noted that the contracts submitted by Plaintiff were incomplete and consisted of |fionly the first page of each contract. However, it also noted that the first page of the contract contained an arbitration clause located just above Respondent’s signature.

The exceptions and motion came before the trial court for hearing on October 15, 2015. Only Munson was called to testify. He testified that, if a person wished to lease a safe deposit box from Regions, he/she would choose the size and location of the box before registering it in his/her name. He stated that, in his employment at Regions, he had never known anyone to lease a box without signing a contract. The customer would receive a copy of the contract and Regions would retain the original. The customer would be issued the only-two keys for the box. He identified the three-page blank contract, introduced as Defendant’s Exhibit 1 (“D~l”), as the contract which every customer would sign to lease a safe deposit box.

Munson further testified that, while he did not personally witness Respondent sign the contract for Box 1148, he did see the contract (D-2), with information marked out and additional information handwritten in, and the related entry log, on his desk in his office with Respondent. He stated he did not know if the box number was changed before or after Respondent signed the contract; however, he explained that the number of the box and the account had been changed, probably because Respondent originally chose Box 1121 and then it was discovered that that box was unavailable. He opined that, for that reason, Region’s copy of the contract was altered to replace the box number and account number for Box 1148, which was available. Regions had only the first page of the contract for Box 1148 since ^Respondent had denied taking the contract from his office and had filed only the first page with her opposition.

Munson also stated that, following the visits by Respondent, he conducted some research on her business with Regions and discovered that all of her safe deposit boxes in Arkansas were closed and that she had not accessed any boxes leased to a family member in Monroe. He further stated that, when Attorney Banks came to Regions within days of Respondent’s visit when the contract disappeared, he brought with him the same contract for Box 1148 that had the altered box and account numbers above the scratched-out information that had disappeared the day Respondent was in his office. While cross-examining Munson, Respondent introduced only the first page of the unsigned contract for Box 1121.

After the hearing on the exceptions, the trial court noted that the only contract bearing Plaintiffs purported signature also contained changes to the account and box numbers, which were in a different ink than her signature. It further noted that no evidence was presented as to whether Respondent signed the contract before or after the changes were made and that such changes were not standard practice. It found no evidence that Respondent received any pages of any contract, other than the single page of the contract concerning Box 1148, which contained the changes. It noted:

In this matter on this date, given this evidence, the Court [denied] the exception of prematurity and subject matter jurisdiction. The Court [did] not find that Ms. Swaggart has waived or under these circumstances has given up her right to bring these matters in district court, based on the contract presented and the evidence presented in court on this date.

IsA written judgment denying Regions’ exceptions of prematurity and lack of subject matter jurisdiction, and alternative motion to stay pending arbitration, was signed on November 6, 2015. Regions sought writs with this court.

On February 18, 2016, this court granted the writ, made it peremptory and vacated the trial court’s judgment. A motion to stay pending arbitration was also granted. The ruling stated, in pertinent part, that La. R.S. 9:4201 and 4202 mandate that an arbitration provision in a written contract shall be valid and enforceable, and that any doubt concerning the scope of arbitra-ble issues should be resolved in favor of arbitration. This court stated:

In this case, the evidence presented by the defendants showed that the plaintiff entered into a contract with Regions Bank for the lease of at least one safe deposit box. The contract, signed by the plaintiff, contained at least one unambiguous, and enforceable, arbitration clause. The plaintiffs claims are referable under the terms of that ai’bitration agreement.

For these reasons, the writ was granted.

Respondent sought writs with the supreme court, which remanded and ordered that the matter be fully briefed and argued.

DISCUSSION

Regions argues that the trial court erred in requiring it to produce an original signed contract in order to prove the existence of a valid agreement to arbitrate. In a related argument, it claims that the trial court erred in failing to apply La. R.S. 18:3740, which permits proof of the contents of a lost or stolen instrument by direct testimony.

It also argues that the only evidence adduced at the hearing was Munson’s testimony and documents introduced without objection. Munson | testified without contradiction that anyone renting a safe deposit box would have been required to sign a contract and that the contract used by Regions contained arbitration clauses. He also testified that Regions had one such contract on file for Respondent, for one safe deposit box, and that he personally saw the signed contract dated July 7, 2011.

Regions further argues that, because Munson’s was the only testimony provided at the hearing, the trial court should have decided the issue based solely on his testimony, not Respondent’s allegations or her counsel’s arguments. It complains that the trial court did not rely on the uncontradict-ed testimony of Munson, but, instead, held that, because Regions did not have the original contract and because Munson did not personally witness her signing the document or see her leaving with the document from his office, there was insufficient proof of the existence of a signed contract containing an arbitration clause.

Regions further argues that Respondent introduced the first page of the contract, which mysteriously disappeared from Munson’s desk when she left his office, and that that contract does contain her signature. This was the first page of a Regions standard-form, three-page contract for every safe deposit box. Respondent did not testify that her signature or the date was forged; and, in fact, her attorney conceded that she signed the contract. Therefore, she should be presumed to know the contents of the document and cannot avoid its obligations by contending that she did not read it, did not understand it or that the other party failed to explain it to her. The forum selection provisions appeared plainly above her signature and gave her notice that on the second page were listed the rights she would be forgoing |1(lif she signed the document. Therefore, Regions contends that the trial court erred in ruling that it had not provided proof of the contract between them.

Regions also argues that the trial court erred by reaching the factual conclusion that Respondent did not sign an agreement that included an arbitration clause. The evidence presented at the hearing consisted only of Munson’s testimony and the two documents introduced and admitted without objection. Respondent did not testify; thus, there was no evidence presented that there was ever more than one box.

Regions further argues that Respondent’s counsel claimed that Respondent had signed a contract for Box 1121, but acknowledged it was not clear whether she had signed the document before or after the box number was changed from 1121 to 1148. It contends that, whether Respondent signed a document indicating Box 1121 or Box 1148 was being rented, both contracts clearly require arbitration of any dispute and the first of such provisions is located directly above Respondent’s signature.

For these reasons, Regions argues that the trial court erred in ruling that it did not meet its burden of proof that the parties agreed to arbitration of the differences between them.

Respondent reiterates her arguments in opposition to the exception of prematurity and the need for arbitration. On the basis that the contract for Box 1148 lacked her consent, she argues that the contract which called for arbitration was void and unenforceable. She further argues that, as to the two boxes of which Regions denied knowledge, Regions should not be permitted to enforce an arbitration agreement in a contract that they denied existed. Therefore, since there was no valid arbitration agreement, she h, contends that her suit was not premature, that the trial court did not lack subject matter jurisdiction and that there was no need to stay this matter pending arbitration.

The issue of whether the trial judge should have compelled arbitration is a question of law. Hansford v. Cappaert Manufactured Hous., 40,160 (La.App. 2 Cir. 9/21/05), 911 So.2d 901; Williams v. Keller Williams Realty, 14-0202 (La.App. 4 Cir. 11/5/14), 154 So.3d 605. Therefore, when reviewing the grant or denial of a motion to compel arbitration, appellate courts determine whether the trial court was legally correct or incorrect. Williams, supra.

The failure of a party to arbitrate in accordance with the terms of an agreement may be raised either through a dilatory exception of prematurity demanding dismissal of the suit or by a motion to stay the proceedings pending arbitration. Long v. Jeb Breithaupt Design Build Inc., 44,-002 (La.App. 2 Cir. 2/25/09), 4 So.3d 930; Wied v. TRCM, LLC, 30,106 (La.App. 2 Cir. 7/24/97), 698 So.2d 685.

La. R.S. 9:4202 provides for a stay of proceedings as follows:

If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.

Under that provision, a court shall stay the trial of an action in order for arbitration to proceed if any party applies for such a stay and shows (1) that there is a written arbitration agreement and (2) the issue is referable to | ^arbitration under that arbitration agreement, as long as the applicant is not in default in proceeding with the arbitration. Coleman v. Jim Walter Homes, Inc., 08-1221 (La. 3/17/09), 6 So.3d 179; Int'l River Ctr. v. Johns-Manville Sales Corp., 02-3060 (La. 12/3/03), 861 So.2d 139.

There is a strong policy in Louisiana favoring arbitration when it has been agreed to by the parties. Mortial v. BPI Home Builder, LLC, 12-2195 (La. 11/2/12), 99 So.3d 1006; Aguillard v, Auction Mgmt. Corp., 04-2804 (La. 6/29/05), 908 So.2d 1; Lincoln Builders, Inc. v. Raintree Inv. Corp. Thirteen, 37,965 (La.App. 2 Cir. 1/28/04), 866 So.2d 326. La. R.S. 9:4201 states:

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

La. R.S. 9:4201 and 4202 mandate that an arbitration provision in a written contract shall be valid and enforceable. Once the court finds an agreement to arbitrate and a failure to comply therewith, the court shall order arbitration. Lincoln Builders, Inc., supra-, Matthews-McCracken Rutland Corp. v. City of Plaquemine, 414 So.2d 756 (La. 1982). In Aguillard, supra, the Supreme Court of Louisiana held that any doubt concerning the scope of arbitrable issues should be resolved in favor of arbitration:

Even when the scope of an arbitration clause is fairly debatable or reasonably in doubt, the court should decide the question of construction in favor of arbitration. The weight of this presumption is heavy and arbitration should not be denied unless it can be said with positive assurance that an arbitration | ^clause is not susceptible of an interpretation that could cover the dispute at issue.

La. C.C.P. art. 930 allows the introduction of evidence at the contradictory hearing on the dilatory exception to “support or controvert any of the objections pleaded.” When the issue of failure to arbitrate is raised by the exception pleading prematurity, the defendant pleading the exception has the burden of showing the existence of a valid contract to arbitrate, by reason of which the judicial action is premature. Cook v. AAA Worldwide Travel Agency, 360 So.2d 839 (La. 1978); Long, supra-, Wied, supra. Although the party who files the exception carries the burden of proof on the exception, when the plaintiff attacks the validity of the contract, he cannot simply rest on the allegations of his petition. Long, supra. Furthermore, facts referred to solely in the arguments of counsel, in brief or otherwise, are not considered record evidence. Thomas v. Connolly, 31,447 (La. App. 2 Cir. 1/20/99), 726 So.2d 1052.

The existence of a contract and its terms must be proved by a preponderance of the evidence. A contract, an agreement established by the mutual consent of the parties, may be entered into orally, in writing or by action or inaction that under the circumstances is clearly indicative of consent. La. C.C. art. 1927; Morphy, Makofsky & Masson, Inc. v. Canal Place 2000, 538 So.2d 569 (La. 1989); Strozier v. Clay Water Sys., Inc., 573 So.2d 595 (La. App. 2 Cir. 1991). Under Louisiana law, “[a] contract is formed by the consent of the parties established through [an] offer and acceptance.” La. C.C. art. 1927. La. R.S. 9:4201 does not require that the written agreement to arbitrate be signed by the parties.

114La. C.E. art. 1004(1) provides that other evidence of the contents of a writing is admissible if “[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.” La. R.S. 13:3740 provides:

When an instrument in writing, containing obligations which the party wishes to enforce, has been lost or destroyed, by accident or force, evidence may be given of its contents, provided the party show the loss, either by direct testimony, or by such circumstances, supported by the oath of the party, as render the loss probable.

Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memo-randa do not constitute evidence and cannot be considered as such on appeal. Denoux v. Vessel Mgmt, Servs., Inc., 07-2143 (La. 5/21/08), 983 So.2d 84. Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. Id.; La. C.C.P. art. 2164.

Although the failure of a party to arbitrate in accordance with the terms of an agreement is properly raised either through a dilatory exception of prematurity or by a motion to stay the proceedings pending arbitration, this court has also reviewed an arbitration agreement on an exception of lack of subject matter jurisdiction. In Aeneas Williams Impends, LLC v. Carter, 47,989 (La.App. 2 Cir. 12/13/12), 131 So.3d 894, this court found that the trial court properly sustained the defendants’ exception of lack of subject matter jurisdiction because the evidence demonstrated the existence of a valid arbitration agreement.

11fiMuch of the evidence cited by Respondent in her opposition to this application is not part of the record for review, as it was not admitted into evidence at the hearing on Regions’ exceptions and motion. The only evidence properly admitted was a copy of a blank contract, page one of a contract signed by Respondent, and page one of an unsigned contract for Box 1121. Although she attached the “sworn statements” of Johnson and William French to her opposition to Regions’ exceptions, Respondent did not admit the statements into evidence at the hearing. Such documents do not constitute evidence and may not be considered as such on review. The allegations of the petition and the arguments of counsel are also not considered evidence for purpose of review.

Page one of a three-page Regions Bank Safebox Customer Contract was admitted into evidence (D-2). The page is dated July 7, 2011, and is signed by Judy Dove Swag-gart. The original, typed box number has been marked through and the number “1148” written in. Above the customer’s signature is the following notice (in pertinent part):

The safe deposit box agreement lease agreement which begins on the reverse side of this form limits or waives certain of your rights. With respect to Claims you are agreeing to arbitrate pursuant to the lease, you are waiving your right to bring a court action, and you are waiving the right to have a jury trial on all controversies, whether settled by arbitration or by a court.

In its oral reasons for the denial of Regions’ exceptions and motion, the trial court focused on the fact that Munson did not personally see Respondent sign the contract and that the contract had been altered at some point. However, an arbitration agreement does not have to be signed in order to be valid. La. R.S. 9:4201. Further, Respondent has made no |1fiattempt to rescind the contract or denied that she signed the contract and complains only that the box number and account number had been altered. As such, Regions clearly showed the existence of a written arbitration agreement and that Respondent’s claims fell under the terms of that agreement.

The trial court also noted that Regions was unable to produce the original contract for Box 1148, or the contracts for the other two boxes Respondent allegedly leased. When a document is lost or stolen, evidence may be given of its contents if the proponent shows the loss by direct testimony or circumstances which render the loss probable. Munson’s uncontradicted testimony showed that the contract with Respondent’s signature on it, directly below the arbitration clause of the standard safe deposit box contract of Regions, existed and that, through no fault of Regions, it no longer had a copy. Regions, through Munson, made a request that the missing document be returned, but Respondent has refused to do so. Therefore, Regions proved the loss by direct testimony and circumstances, and the fact that it did not have a copy of the document cannot be held against it in this matter of arbitration.

Regions also produced and admitted a blank, three-page Regions Safebox Customer Contract (Ex. D-l). The first page of that contract is identical to the page of the contract which bears Respondent’s signature. The second page contains a paragraph labeled “Arbitration and Waiver of Jury Trial.” Unfortunately, the only copy of Exhibit D-l available to this court is a scanned, faxed copy and the terms of the arbitration paragraph are very difficult to read. Nonetheless, Regions, through the direct testimony of |17a witness, proved the existence and contents of the contract and that the original contract was lost or stolen.

Although Respondent argues that the contract lacked her consent and was, therefore, void, her petition specifically alleged breach of that contract and she has made no attempt to rescind the contract. Notably, she presented no evidence to rebut the existence of a valid arbitration clause. Through argument of counsel, she conceded that she signed a “Safebox Customer Contract,” but made no allegation that the arbitration clause was not part of the contract that she signed.

As outlined above, the evidence showed that Respondent entered into a contract with Regions for the lease of at least one safe deposit box, which contained at least one unambiguous and enforceable arbitration clause. Because Regions proved the existence of a valid arbitration agreement, Respondent may not rest upon the allegations of her petition or the argument of counsel. She failed to produce any positive evidence to rebut the evidence presented by Regions that arbitration is warranted in this case.

CONCLUSION

For the foregoing reasons, the writ is granted and made peremptory and the judgment in favor of Respondent Judy Dove Swaggart and against John Doe, Brett Munson, Regions Bank and ABC Insurance Company, overruling the exceptions of prematurity and lack of subject matter jurisdiction and denying the alternative motion to stay pending arbitration, is hereby reversed. Costs of appeal are assessed to Judy Dove Swaggart.

haWRIT GRANTED AND MADE PEREMPTORY; JUDGMENT REVERSED; MOTION TO STAY PENDING ARBITRATION GRANTED.

APPLICATION FOR REHEARING

Before CARAWAY, DREW, and LOLLEY, JJ.

Rehearing denied.

      . The parties dispute the number of safe deposit boxes leased by Respondent; however, the dispute is not material to the issues before this court.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Kennon RICHARD aka Kennan Richard
    16-525
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2017

      Herbert Todd Nesom, District Attorney—33rd Judicial District Court, Steven Sumbler, Assistant District Attorney—33rd Judicial District Court, Joe Green, Assistant District Attorney - 33rd Judicial Distinct Court, P. 0. Box 839, Oberlin, LA 70655, Telephone: (337) 639-2641, COUNSEL FOR: Plaintiff/Appellee—State of Louisiana
    Edward Kelly Bauman, Louisiana Appellate Project, P. 0. Box 1641, Lake Charles, LA 70602-1641, Telephone: (337) 491-0570, COUNSEL FOR: Defen-danVAppellant—Kennon Richard a/k/a Kennan Richard
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Phyllis M. Keaty, Judges.
   THIBODEAUX, Chief Judge.

| defendant Kennon Richard was a passenger in a vehicle driven by co-defendant Christopher James. The vehicle was stopped for a traffic violation and Mr. James was placed under arrest. While Mr. James was being placed in handcuffs, he tossed a plastic bag of cocaine onto the car seat, whereupon Mr. Richard grabbed the bag and attempted to hide it in the car. Kennon Richard was found guilty by a jury of obstruction of justice pursuant to La.R.S. 14:130.1. Mr. Richard timely appeals his conviction, his adjudication, and the trial court’s ruling on his Batson challenges. For the following reasons, we affirm.

I.

ISSUES

We must determine:

1. whether the evidence presented at trial was sufficient to find Kennon Richard guilty of obstruction of justice;
2. whether the trial court erred in denying defense counsel’s Batson challenges;
3. whether the trial court erred in finding Kennon Richard to be a third felony offender; and
4.whether the trial court erred in denying Kennon Richard’s Motion in Arrest of Judgment.

II.

FACTS AND PROCEDURAL HISTORY

Kennon Richard was a passenger in a vehicle driven by Christopher James when it was stopped for a traffic violation. While being placed in handcuffs, Mr. James removed several items from his pocket, including a clear |2plastic bag of cocaine, which he threw onto the driver’s seat. The arresting officer then observed Mr. Richard take the bag of cocaine and stuff it between the passenger seat and the center console. The bag remained in plain view at all times. Mr, Richard was also placed under arrest.

Mr. Richard was charged with possession of cocaine with the intent to distribute in violation of La.R.S. 40:967(A)(1), and obstruction of justice in violation of La. R.S. 14:130.1. A jury unanimously found Mr. Richard not guilty of possession of cocaine with the intent to distribute, but guilty of obstruction of justice. Mr. Richard was charged as a habitual offender, and the trial court sentenced him to thirteen years and two months at hard labor, to run concurrent to any other sentence.

III.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find that there is one error patent.

Mr. Richard was incorrectly advised at sentencing that he had two years from that date to file an application for post-conviction relief. Louisiana Code of Criminal Procedure Article 980.8(A) provides that a defendant has two years after conviction and sentence become final to seek post-conviction relief. Thus, we find that the trial court should be directed to inform Mr. Richard of the provisions of Article 930.8 by sending appropriate written notice to him within ten days of the rendition of this opinion and to file written proof that Mr. Richard received the notice in the l'ecord of the proceedings. State v. Baylor, 08-141 (La.App. 3 Cir. 11/26/08), 998 So.2d 800, writ denied, 09-275 (La. 11/20/09), 25 So.3d 795.

IV.

LAW AND DISCUSSION '

Obstruction of Justice

Mr. Richard contends that the evidence at trial was insufficient to find him guilty of obstruction of justice. He argues that his conduct cannot permit the inference that he had the specific intent to distort the results of any criminal proceeding as he made no attempt to conceal the bag of suspected cocaine.

Louisiana appellate courts are controlled by the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard when reviewing the sufficiency of evidence to support a conviction. State v. Captville, 448 So.2d 676 (La.1984). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. This court discussed the claim of insufficient evidence in State v. Lambert, 97-64 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27 (citations omitted):

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. It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review.

The appellate court’s function is not to assess the credibility of witnesses or to reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442,

| Obstruction of justice occurs when the offender tampers “with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding.” La.R.S. 14:130.1(A)(1). Tampering includes “the intentional alteration, movement, removal, or addition of any object or substance” at the location of an incident subject to investigation. Id. Because obstruction of justice is a specific intent crime, it does not need to be proven by fact, “but can be inferred from the circumstances and the actions of the defendant.” State v. Vercher, 14-1211, p. 11 (La.App. 3 Cir. 5/6/15), 162 So.3d 740, 747, -unit denied, 15-1124 (La. 5/20/16), 191 So.3d 1065.

In State v. Blanche, 47,015 (La.App. 2 Cir. 4/H/12), 91 So.3d 1189, an officer stopped a vehicle for a traffic violation. He observed a type of cigarette he knew to be commonly used with the substance PCP on the defendant’s lap in the back seat of the car. The officer saw the defendant grab the cigarette and throw it onto the front seat as the defendant exited the vehicle. At trial, the defendant testified that he first noticed the cigarette on his lap as the officer approached the vehicle. He brushed it out of his lap, and it landed on the front passenger seat. The jury found the defendant not guilty of possession of a controlled dangerous substance, but guilty of obstruction of justice.

Officer Johnson testified that, during the arrest, Christopher James grabbed a handful of contents out of his pocket, reached into the window of the car, and dropped the contents on the seat. The contents of his pocket included a clear bag of cocaine, lighters, keys, a pack of cigarettes, and money. Officer Johnson testified that Mr. Richard reached over and snatched the clear plastic bag |sof cocaine and then attempted to stuff the bag between the console and the passenger seat.

Viewing the evidence in the light most favorable to the prosecution, pursuant to the Jackson standard, it is clear that a jury could reasonably conclude sufficient evidence was presented to support Mr. Richard’s conviction for obstruction of justice. Mr. Richard chose the bag of cocaine from all the items that Mr. James threw on the car seat. In fact, it was the only item that Mr. Richard attempted to hide. The jury could reasonably infer that Mr. Richard was trying to hide the drugs and evade criminal charges when he pushed the bag of cocaine between the console and the seat. The undisputed evidence at trial reasonably showed that Mr. Richard had the specific intent to distort the result of the investigation or proceeding and thereby was sufficient to convict him of obstruction of justice.

Batson Challenges

Mr. Richard contends that the trial court erred in denying his challenges based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, Mr. Richard argues that no race-neutral reasons existed for Ammie Cole, Equilla Sapp, and Zealon Solomon, all African-Americans, to be excluded from serving on the jury. The State excluded nine African-Americans altogether, five by peremptory challenges, resulting in Mr. Richard being tried by an all-white jury.

In Batson, the United States Supreme Court held that the use of peremptory challenges to exclude persons from a jury based on their race violates the Equal Protection Clause. Batson, 476 U.S. 79, 106 S.Ct. 1712, 90 L,Ed.2d 69. The holding in | fíBatson was adopted by the Louisiana Supreme Court in State v. Collier, 553 So.2d 815 (La.1989), and has been codified in Louisiana law under La.Code Crim.P. art. 795.

When a Batson challenge is asserted, the proponent bears the burden of presenting a prima facie showing of purposeful discrimination in the selection of the jury. State v. Nelson, 10-1724, 10-1726 (La. 3/13/12), 85 So.3d 21. The burden then shifts to the opponent to show a nondiscriminatory basis for its peremptory challenge. Id. The trial court then determines whether the proponent has carried his burden of proving purposeful discrimination. Id. In State v. Tilley, 99-569 (La. 7/6/00), 767 So.2d 6, 12-13, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001), the supreme court set out criteria for evaluating the State’s answer to whether the peremptory challenge was race-neutral:

Although the state’s explanation must be based on more than an assumption or a hunch, State v. Collier, supra, to be facially valid, it need not be persuasive, or even plausible; thus unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-neutral. State v. Hobley, 98-2460 (La. 12/15/99), 752 So.2d 771]; Purkett [v. Elem,] 514 U.S. [765] at 767, 115 S.Ct. [1769] at 1771, 131 L.Ed.2d 834 [ (1995) ].
Faced with a race-neutral explanation, the defendant then must prove to the trial court purposeful discrimination. Id. (Citing Batson, supra; Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). The proper inquiry in the final stage of the Batson analysis is whether the defendant’s proof, when weighed against the prosecutor’s proffered race-neutral reasons, is sufficient to persuade the trial court that such discriminatory intent is present. Id. (Citing State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 290).... Because the factual determination pertaining to intentional discrimination rests largely on credibility evaluations, the trial court’s findings are entitled to great deference by the reviewing court. Id.; State v. Snyder, 98-1078 (La. 4/14/99), 750 So.2d 832.

ItPotential Juror Ammie Cole

Ammie Cole initially asked to be excused because she “was taught not to judge anyone.” However, the trial court did not excuse her at that time. She further indicated that she had worked with Mr. Richard’s attorney as a teacher. The State exercised a backstrike to Ms. Cole based on her history of actually working with Mr. Richard’s attorney. Mr. James’s counsel adamantly objected to her removal citing a Batson challenge, and Mr. Richard’s attorney joined in the objection. The trial court excused Ms. Cole subject to the Batson challenge, and Mr. Richard did not object to the trial court’s ruling. Failure to object to the trial court’s ruling on a Bat-son challenge waives the issue on appeal. La.Code Crim.P. art. 841. State v. Odenbough, 10-268 (La. 12/6/11), 82 So.3d 215, cert. denied, — U.S.—, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012). Accordingly, this court may not consider the trial court’s determination regarding why the State challenged Ms. Cole.

Potential Juror Equilla Sapp

Ms. Sapp stated that she knew the Assistant District Attorney, Mr. Sumbler, through church, was a cousin to his father, and best friends with his mother. Ms. Sapp also knew Mr. Richard and his mother from their neighborhood. The State exercised a challenge to exclude Ms. Sapp based on her being a family friend. Mr. Richard’s counsel lodged no objection to the State’s challenge. Accordingly, Mr. Richard waived any objection to the State’s peremptory challenge of Ms. Sapp. Furthermore, the State had no discriminatory intent in striking her. She was a close family friend of Mr. Richard and was also a member of the A.D.A.’s family. This relationship was a sufficient race-neutral reason for striking her from the jury.

| fPotential Juror Zealon Solomon

Mr. Solomon was an eighth grade math teacher, tennis coach, small business owner, and a 2012 graduate of LSU Law School. He and the State’s attorney, Mr. Sumbler, are cousins, and he went to school with Mr. Richard. Additionally, Mr. Solomon’s students had midterm exams the week of trial.

Mr. Richard’s counsel raised a Batson challenge to the State’s peremptory exclusion of Mr. Solomon. As race-neutral reasons, the State argued that Mr. Solomon and the State’s attorney, Mr. Sumbler, were related, and Mr. Solomon’s focus was on his students’ exams. The trial court denied the challenge for cause but allowed the peremptory strike. Mr. Richard’s counsel objected to that ruling.

The familial relationship between Mr. Solomon and Mr. Sumbler was a sufficient race-neutral reason to strike him from the jury. The striking of family members and close relationships undermines the appearance of stacking the jury in favor of the State, a factor that supports denying the Batson challenge. For that reason, the trial court correctly found that the State provided sufficient race-neutral reasons to exclude Mr. Solomon and did not indicate any discriminatory intent. That determination, based on the trial court’s credibility evaluations pertaining to intentional discrimination, will not be disturbed.

Habitual Offender

Mr. Richard argues that the trial court erred in finding him to be a third felony offender. He contends that the record does not show that he was advised of his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), when he entered his plea of no contest to simple burglary, one of the predicate offenses.

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boy-kin rights.

State v. Shelton, 621 So.2d 769, 779-80 (La.1993) (footnotes omitted).

An absence of a Boykin notation in the minutes is not sufficient to shift the burden of proving the constitutionality of the plea to the State. State v. Coleman, 99-1925 (La.App. 3 Cir. 6/21/00), 762 So.2d 1134. In Coleman, the State introduced a minute entry from the predicate plea showing that the defendant had been represented by counsel at the plea hearing. “Thus, the burden shifted to the Defendant to show an infringement of his rights or procedural irregularity at the taking of the plea.” Id. at 1136. The defendant argued that the minute entry failed to show whether he was advised of his Boykin rights. This court found that the defendant’s claim lacked merit. The defendant merely relied on the absence of |]na Boykin notation in the minute entry, and that “was insufficient to shift the burden back to the State to produce a ‘perfect’ transcript of the guilty plea.” Id. at 1137.

Mr. Richard’s case presents a similar situation to that in Coleman. At Mr. Richard’s habitual offender hearing, the State provided documentation of Mr. Richard’s prior conviction for possession of cocaine with intent to distribute. The plea form included Mr. Richard’s waiver of his Boy-kin rights. The State also offered certified copies of court minutes and the bill of information where Mr. Richard pled no contest to simple burglary in October 2009. The trial judge asked for the Boykin form. The State told the court that the form was not attached to the minutes and bill of information, but it had the actual minutes. Mr. Richard’s attorney objected to the simple burglary conviction being used to establish a predicate offense because there was no Boykin form and no transcription of the colloquy between Mr, Richard and the sentencing judge.

The trial judge found Mr. Richard to be a third felony offender. When analyzing the court minutes regarding the simple burglary conviction, the trial judge noted that the minutes reflected that Mr. Richard had knowingly, freely, and voluntarily entered his plea. The trial judge observed that Mr. Richard was advised of his rights at sentencing, which typically includes Boykin rights. Accordingly, the trial court found that both prior convictions were satisfactorily presented and proved to the Court.

We find that the State met its initial burden of proving the existence of the prior conviction and Mr. Richard’s representation by counsel at the plea. The burden then shifted to Mr, Richard to produce affirmative evidence of an infringement of his rights or of a procedural irregularity. The absence of a recitation of Mr. Richard’s Boykin rights in the minutes is not such evidence. \ ^Coleman, 762 So.2d 1134. Thus, the burden did not shift back to the State to prove the constitutionality of the plea. This argument lacks merit.

Motion in Arrest of Judgment

Mr. Richard argues that the trial court erred when it denied his Motion in Arrest of Judgment. He contends that the verdict form should have included additional responsive verdicts for obstruction of justice. Louisiana Code of Criminal Procedure Article 803 provides that the trial court shall charge the jury as to the law applicable to the charged offense and to any other offenses of which the accused could be found guilty under the provisions of La.Code Crim,P. arts, 814 or 815. “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” La. Code Crim.P. art. 841. Mr. Richard failed to preserve this issue for appeal.

The trial court reviewed the jury charge with all counsel. The trial judge removed a reference to conviction of a prior offense and to discrediting testimony because of a prior inconsistent statement. Mr. Richard made no objection regarding the responsive verdicts, and the verdict sheet went to the jury without the choices Mr. Richard now raises on appeal. Mr. Richard did not object when the jury was charged or when the verdict form was submitted to the jury and thus, did not properly preserve the issue for review on appeal.

V.

CONCLUSION

Accordingly, we affirm Mr. Richard’s conviction, the State’s Batson challenges, Mr. Richard’s status as a third felony offender, and the denial of his Motion in Arrest of Judgment. We also direct the trial court to inform Mr. | ^Richard of the provisions of La.Code Crim.P. art. 930.8, by sending appropriate written notice to Mr. Richard within ten days of the rendition of this opinion and to file written proof into the record indicating that Mr. Richard received the notice.

AFFIRMED.