source: Caselaw Access Project

author: JOHNSON, J.

license: Public Domain

text:
    STATE of Louisiana v. Earl Keith HARRIS
    NO. 17-KA-303
    Court of Appeal of Louisiana, Fifth Circuit.
    December 20, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Darren A. Allemand
    COUNSEL FOR DEFENDANT/APPELLANT, EARL KEITH HARRIS Earl Keith Harris Bruce G. Whittaker
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson
   JOHNSON, J.

| defendant, Earl Keith Harris, appeals his conviction and sentence for aggravated second degree battery from the 24th Judicial District Court, Division “B”. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 4, 2015, the Jefferson Parish District Attorney filed a bill of information charging Defendant .with one count of aggravated second degree battery, in violation of La, R.S. 14:34.7. Defendant pleaded not guilty at his arraignment on December 7, 2015. Trial commenced on August 24, 2016, before a six-person jury. However, the next day during trial, the trial court granted Defendant’s motion for mistrial, and the proceedings .were stayed pending a writ application to this Court, On August 26, 2016, this Court granted the State’s writ application, finding that the trial court abused its discretion in granting Defendant’s motion for mistrial and remanded the matter to' the trial court to resume trial. .Trial resumed later that day.

The following facts were elicited at trial. On the evening of September 11, 2015, Carol Clark, the victim in this case, was at her home at 1245 Aberdeen Drive in Harvey with her family. At some point that evening, she left her home to run ah errand—her granddaughter needed diapers—so she decided to walk around the corner tó her cousin’s home to acquire some. She. retrieved the diapers from her cousin, and as she was 'walking back, she ran into a friend from the neighborhood, Danny Taylor, who she asked to accompany her on her walk back home. She described that as they were walking back on Clydesbank Drive, she noticed bright lights and the roar of a vehicle that was “coming fast” from behind her. She | testified that she was struck by the vehicle, that went through a neighboring field, came back and “roll[ed] over [her] leg again.”

Ms. Clark testified that the truck went through the field again and came back a third time, but this time “pulled up on the side” and the driver “looked at [her] on the ground,” “put his left hand on the steering wheel, and looked over on the ground and smiled.” It was not until then that she recognized the driver of the vehicle as Defendant, Earl Keith Harris. She explained she had known Defendant for approximately 20 years, as he and her daughter used to date and had four children together. She also recognized the vehicle he was driving, a silver or gray Expedition, with no license plate and discoloration (a “big prime spot” on the passenger side and back) because it was the vehicle he drove when he lived with her daughter. At some point during this encounter, Mr. Taylor called 9-1-1 to report the incident.

Deputy Justin McLin was dispatched to the scene on Clydesbank. When he arrived at the scene, he observed Ms. Clark lying partially in the road, in obvious pain and distress, screaming for help. At the scene, Ms. Clark was able to identity Defendant as her attacker and provided Deputy McLin with a description of the suspect vehicle. Deputy McLin testified that while Defendant was not found at the scene, a vehicle matching the suspect car was spotted across the street on the other side of the canal with a “direct view of the entire incident” but sped off once Deputy McLin became aware of its presence.

EMS also arrived at the scene and treated Ms. Clark, who was brought to the hospital due to her injuries. Dr. Elizabeth Skeins, who treated Ms. Clark that evening at the Ochsner Westbank emergency room, explained that Ms. Clark ^sustained a comminuted displaced tibia/fibula fracture, or in other words, that her lower leg was broken into more than one piece. Defendant was later arrested in connection with this incident pursuant to an arrest warrant.

Defendant testified on his own behalf. Defendant testified that he neither ran over Ms. Clark nor did he send anyone to run her over. While he could not provide his specific whereabouts on the evening of September 11, 2015, as he does not “walk around trying to hold on to alibies,” he stated he was probably at his home.

At the conclusion of the trial, the jury found Defendant guilty as charged. On August 30, 2016, Defendant filed a motion for new trial, which was heard on September 30, 2016, and later denied on October 14, 2016. Also on October 14, 2016, the State filed a habitual offender bill of information, alleging Defendant to be a fourth felony offender. On November 29, 2016, the habitual offender bill was amended, still alleging Defendant to be a fourth felony offender.

On December 1, 2016, the trial court sentenced Defendant to 15 years at hard labor. A hearing on the habitual offender bill of information was held after sentencing on December 1, 2016. After finding Defendant to be a fourth felony offender, the trial court vacated its previously imposed sentence and resentenced Defendant, pursuant to La. R.S. 15:529.1(4)(b)', to life imprisonment without benefit of probation, parole, or suspension of sentence. On December 10, 2016, Defendant filed a motion for reconsideration of sentence and a motion for appeal. The motion for appeal was granted on December 13, 2016. The motion for reconsideration of sentence was denied on February 15, 2017. The instant appeal followed.

ASSIGNMENTS OF ERROR

^Defendant alleges two counseled assignments of error on appeal: 1) the trial court erroneously granted unwarranted challenges for cause, and 2) the trial court erred in prohibiting the defense from impeaching Ms. Clark to reveal the full extent of the favorable treatment she received for her testimony. Defendant also alleges three pro se assignments of error: 1) there was insufficient evidence to support his conviction; 2) the trial court erred by failing to grant his motion to quash; and 3) the sentence imposed is excessive.

LAW AND ANALYSIS

Sufficiency of evidence

In his first pro se assignment of error, Defendant argues that the trial court erred in denying his motion for new trial as the evidence was insufficient to support his conviction for aggravated second degree battery. Defendant maintains that the State failed to prove that he was the one who committed the crime and refers to his trial testimony where he denied his involvement. He asserts that the witnesses’ testimony was not credible and their testimony was insufficient to support the jury’s finding that he was involved in the aggravated second degree battery committed upon Carol Clark.

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

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

In making this determination, a reviewing court will not re-evaluate the credibility of witnesses or re-weigh the evidence. Caffrey, supra. Indeed, the resolution of conflicting testimony rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. See State v. Bailey, 04-85 (La. App. 5 Cir. 5/26/04); 875 So.2d 949, 955, writ denied, 04-1605 (La. 11/15/04); 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Thus, in the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon, 07-915 (La. App. 5 Cir. 3/11/08); 982 So.2d 146, 153, writ denied, 08-0987 (La. 1/30/09); 999 So.2d 745.

I sin this case, Defendant was convicted of aggravated second degree battery. La. R.S. 14:34.7(A) defines aggravated second degree battery as “a battery committed with a dangerous-weapon when the offender intentionally inflicts serious bodily injury.” Aggravated second degree battery is a crime requiring- specific criminal intent. See State v. Fuller, 414 So.2d 306 (La. 1982). Specific intent is that state of. mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S., 14:10(1). Specific intent need not be .proven as a fact, but may be inferred from the circumstances and by the actions of the defendant.. Id.

Defendant’s argument focuses on the failure of the State to prove beyond a reasonable doubt his identity as the perpetrator of -the, aggravated second' degree battery of Ms. Clark. Encompassed within proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. State v. Ray, 12-684 (La. App. 5 Cir. 4/10/13); 115 So.3d 17, 20, writ denied, 13-1115 (La. 10/25/13); 124 So.3d 1096. Where the key issue is identification, the State is required to negate any reasonable probability of misiden-tification in order to carry its burden of proof. Id.

In the present case, we find that the State presented sufficient evidence to support Defendant’s conviction of aggravated second degree battery. Here, Ms. Clark, the victim, identified Defendant immediately following the crime, as well as at trial, as the individual who ran her over with a vehicle. Positive identification by only one witness is sufficient to support a conviction. State v. Williams, 02-645 (La. App. 5 Cir. 11/26/02); 833 So.2d 497, 503, writ denied, 02-3182 (La. 4/25/03); 842 So.2d 398. Not only did she testify that Defendant hit her once with a vehicle, she described that after hitting her a first time, Defendant turned around and hit her a second time. Evidence was presented that showed the resultant collision caused severe injuries to Ms. Clark, including a broken leg.

17Both Defendant and the victim, Ms. Clark, testified at trial. While Ms. Clark identified Defendant as the perpetrator, Defendant denied his involvement but did not provide a concrete alibi. After hearing the testimony, the jury apparently chose to believe Ms. Clark’s version of events in rendering its verdict. When there is conflicting testimony about factual matters, the resolution of which depends on a .determination of credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency. State v. Brown, 01-41 (La. App. 5 Cir. 5/30/01); 788 So.2d 694, 701. We find that the evidence established that Defendant utilized an automobile as a dangerous weapon and intentionally used force against Ms. Clark by running her over with it. Therefore, in reviewing the evidence in the light most favorable to the prosecution, we find that a rational jury could reasonably find Defendant guilty of aggravated second degree battery.

Challenges for Cause

In his first counseled assignment of error, Defendant contends that the trial court erred by excusing three potential jurors from the jury pool following the State’s challenges • for cause. Defendant contends that the trial court erred in excusing jurors Rthasia Terrell, Myjah Boyd, and Sharon Delaney. As a result of the alleged error, Defendant maintains that the State was permitted a greater number of peremptory challenges than allowed by law. Defendant elaborates that the use of improper hypothetical questioning served to muddy the waters as to the thinking of the challenged jurors such that the use of their answers as a basis for a challenge for cause was suspect and improper. He notes that because there was corroborating evidence in this case, the-State’s suggestion that the jurors were to try a case with one uncorroborated witness was specious.

RThe State responds that the trial court did not err in granting the State’s challenges for cause. Reviewing the entire record, the State contends'that each of the three jurors indicated unwillingness to convict based upon the testimony of one witness. The State avers the trial court had the benefit of seeing the facial expressions, vocal intonations, and other “tells” of thé prospective jurors, and after taking their entire responses inte account, struck the prospective jurors in question for cause, and a review of the record does not reveal an abuse of discretion.

Defendant was tried and convicted of aggravated second degree battery, a. crime that is punishable with or without .hard labor. La. R.S. 14:34.7. In trials of offenses punishable by imprisonment with or without hard labor, each defendant shall .have six peremptory challenges, and the State shall have six for each defendant. La. C.Cr.P, art. 799. Here, the State used five of its six peremptory challenges, excusing jurors Caesar Ochoa, Anitria Thomas, Ruth Harmon, Paul Morales, and Jack Da-gostaro. An erroneous allowance to the State of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the State of more peremptory challenges than it is entitled to by law. La. C.Cr.P. art. 800. Therefore, to validly claim that the court made a reversible error, in this case, Defendant must prove that the trial court erroneously excused two or more jurors for cause. .

The Sixth Amendment of the United States Constitution guarantees the accused the right to a trial by an impartial jury. State v. Nelson, 09-807 (La. App. 5 Cir. 3/23/10); 39 So.3d 658, 661. Included in this right to an impartial jury is the right to an adequate voir dire to identify unqualified jurors. United States v. Beckner, 69 F.3d 1290, 1291 (5th Cir. 1995). Article I, § 17(A) of the Louisiana Constitution grants a criminal defendant the right to a full and complete voir dire. “The court, the state, and the defendant shall have the right to examine prospective jurors.” La. C.Cr.P. art. 786. The purpose of voir dire is to give counsel the ^opportunity to determine the qualifications of prospective jurors by testing their competency and impartiality and to formulate reasons for cause and peremptory challenges. State v. Ball, 00-2277 (La. 1/25/02); 824 So.2d 1089, 1110, cert. denied, 537 U.S. 864, 123 S.Ct. 260, 154 L.Ed.2d 107 (2002). La. C.Cr.P. art. 797 sets forth the grounds for which a juror may be challenged for cause. Based upon the arguments, the most relevant ground here is that “[t]he juror will not accept the law as given to him by the court.” La. C.Cr.P. art. 797(4).

“[A] challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied.” State v. Robertson, 92-2660 (La. 1/14/94); 630 So.2d 1278, 1281, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998), (quoting State v. Hallal, 557 So.2d 1388, 1389-90 (La. 1990)). The trial judge must look at the juror’s responses during his entire testimony, not just “correct,” isolated answers, or, for that matter, “incorrect,” isolated answers. Robertson, 630 So.2d at 1281 (quoting State v. Lee, 559 So.2d 1310, 1318 (La. 1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991)).

Although a court has discretion to restrict voir dire, it must nevertheless afford the attorneys wide latitude in examining prospective jurors as a means of giving effect to an accused’s right to a full voir dire. State v. Thibodeaux, 98-1673, (La. 9/8/99); 750 So.2d 916, 924, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000). Thus, while a trial court has control over the scope of jury selection and may limit voir dire examination accordingly, the limitations may not be so restrictive as to deprive counsel of a reasonable opportunity to determine grounds for challenges for cause and for the intelligent exercise of peremptory challenges. Id.

| ^Nevertheless, Louisiana law clearly establishes that a party interviewing a prospective juror may not ask a question or pose a hypothetical which would demand a commitment or pre-judgment from the juror or which would pry into the juror’s opinions about issues to be resolved in the case. Thibodeaux, 750 So.2d at 924. Voir dire examination may not encompass unlimited inquiry into all possible prejudices of prospective jurors, nor their opinions on the evidence to be offered at trial, nor hypothetical questions and questions of law which' call for any pre-judgment of supposed facts. State v. Bell, 477 So.2d 759, 766 (La. App. 1st Cir. 1985), writ denied, 481 So.2d 629 (La. 1986). However, it is permissible for voir dire questions to “reasonably explore the juror’s potential prejudices, predispositions or misunderstandings relevant to the central issues of the particular case.” State v. Duplessis, 457 So.2d 604, 606 (La. 1984).

The trial court is granted broad discretion in regulating the conduct of voir dire, and its rulings will not be disturbed on appeal absent a clear showing of an abuse of discretion. La. C.Cr.P. art. 786; Ball, 824 So.2d at 1110. In evaluating the fairness of the trial judge’s ruling, the entire voir dire examination should be considered. State v. Housley, 05-502 (La. App. 5 Cir. 1/31/06); 922 So.2d 659, 662, writ denied, 06-1183 (La. 11/17/06); 942 So.2d 531.

Juror Rthasia Terrell

With respect to Ms. Terrell, Defendant notes that she was challenged by the State because she purportedly required more than one witness. Defendant argues that she advised the court, while thinking about a hypothetical, that she could not say “100 percent” “either way” how she might respond to a particular scenario of events. Defendant contends that this modesty is not grounds for a challenge for cause and the equivocation in her answers is an insufficient basis upon which to grant the State the advantage of an extra peremptory challenge.

In At the start of the voir dire, one of the prosecutors, Andrew De Coste, instructed the potential jurors that “[a]s it relates to witnesses, the law says that the testimony of one witness is enough to convict somebody.”

During voir dire, Ms. Terrell indicated, in the context of this hypothetical, that she would not be able to convict “based on one witness” because if “one witness testified [she] would not find them credible because there [was] nobody else to back them up.” The prosecutor then presented Ms. Terrell with a hypothetical rape case where only the victim testified. Ms. Terrell was asked that if she believed the rape victim’s story, would she be able to convict the accused rapist, and she indicated she would “still hear his side, too” and that she would not “take one person’s side of the story.” The prosecutor explained that the accused rapist in the hypothetical, like Defendant, “doesn’t have to do anything” in his defense. He asked Ms. Terrell again that if she just heard “Jrom the woman who said she was raped” and if Ms. Terrell believed her, could she find the man guilty, and she indicated yes. The prosecutor, trying to reconcile these differences, asked, “what is the difference between that and me and the horse?” Ms. Terrell stated that the rape scenario was more serious, indicating that the “seriousness of the crime matters.”

At the bench, the State exercised its first challenge for cause on Ms. Terrell, with the trial court recalling that “she said she needed more than one witness.” The trial court called Ms. Terrell to the bench, and the following exchange occurred:

THE COURT: I believe you had said in response to the State that you need more than one witness in order to convict.
MS. TERRELL: Correct.
THE COURT: If you were convinced beyond a reasonable doubt by testimony of one witness could u (sic) convict?
|12MS. TERRELL: I wouldn’t be able to on one person.
MR. SCOTT: What if you heard from witnesses who were not eyewitnesses, police officers, doctors, are those the types of witnesses you are saying you would want to hear from, or another person who actually saw something knowing sometimes you don’t have one?
MS. TERRELL: Right. If it was someone other than the involved party, maybe, but I wouldn’t be able to say 100 percent. Does that make sense?
MR. SCOTT: Can you explain it a little bit more? That gives you more than one witness.
MS. TERRELL: In this case -if it was like the two parties that are involved, if you are saying that one of them would testify and there would be no one else, I wouldn’t be able to say yes 100 percent that I would be able to convict just* based off of that. If it were the two people involved and a police officer or a doctor that gave a statement, I still can’t say that I would be able to say 100 percent either way.
THE COURT: Okay. Thank you.

Defense counsel argued that he did not think “that gives rise to cause.” In this case, there was a 9-1-1 call from a neighbor, “even though she is not going to testify,” and that Ms; Terrell was “going to hear that,” arguing it was a “case by case basis.” The State responded that Ms.' Terrell stated, “if she believed them she couldn’t 100 percent say she could convict them.” The trial court struck her for cause over defense counsel’s objection.

Next, the State challenged juror Caesar Ochoa for cause. During voir dire, Mr. Ochoa indicated that based upon “one victim, one eyewitness,” he “would have to see a whole lot more evidence in the whole process” to convict. The trial court called him to the bench to question him further on that matter, asking him if there was “one witness who testifies and [he was]' convinced beyond a reasonable doubt of that witness’s testimony, [could he] convict them?” Mr. Ochoa responded in the affirmative, and the trial court denied the State’s challenge for cause.

Under Louisiana law, a victim’s or witness’ testimony alone is usually sufficient to support'the verdict. State v. Munson, 12-327 (La. App. 5 Cir. 13); 115 So.3d 6, 13, writ denied, 13-1083 (La. 11/22/13); 126 So.3d 476. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Turner, 05-75 (La. App. 5 Cir. 5/31/05); 904 So.2d 816, 823, writ denied, 05-2591 (La. 5/26/06); 930 So.2d 20.

In this case, Ms. Terrell indicated that she would not, or could not, accept this legal standard. She indicated that she would apply a different standard to a rape case as opposed to other cases, indicating that seriousness of the crime mattered. She was 'told the law allowed the State to prove its case through testimonial evidence alone in a criminal case and expressed her inability to convict on the testimony of one witness. Unlike Mr. Ochoa, who initially expressed similar concerns regarding convictions based on lack of physical evidence and was later rehabilitated, Ms. Terrell’s responses seriously called into question her ability to act as a juror in this* case. Accordingly,- we - find that the trial court did not abuse its broad discretion in granting the State’s challenge for cause with regard to Ms. Terrell, given her inability to follow the law.

Juror Myjah Boyd

Ms.-Boyd also expressed her reluctance to convict someone based upon the testimony of a single- witness. With respect to Ms. Boyd, Defendant argues that she actually said she would be able to convict if convinced beyond a reasonable doubt and only could not convict if she thought the victim was lying. Defendant contends that while her answers may not have been that clear, her responses to poorly constructed hypotheticals did not provide a basis for a challenge for cause.

| 14A1so using the rape hypothetical during voir dire, the prosecutor asked Ms. Boyd if she could convict based on the word of one witness, with no physical evidence to corroborate it, and she responded that she did not think she “would be able to convict somebody off of a sole testimony of one person.” The prosecutor inquired further, asking, “even if the law says you can, you can’t?” Ms. Boyd responded, “Yes, I don’t think so.”

At the bench, the State moved to strike Ms. Boyd for cause for the “same issue.” The trial court requested her presence at the bench where she was further questioned:

THE COURT: Ms. Boyd, would you step up here, please. I guess the whole thing revolved around your answers, and that you couldn’t convict based upon the testimony of one witness, and I think that was one eyewitness. '
MS. BOYD: Yeah. Exactly.
THE COURT: Suppose the State put on other witnesses so that it was not a . one witness case, but it was only one witness as it pertains to the identity of the perpetrator. If you believe that witness beyond a reasonable doubt you are telling me you could not convict?
MS, BOYD: No, if I believe them beyond a reasonable doubt, the eyewitness, but I would need the , police as well. For example, the rape happened,. I would need the police to,say when she came in .she was like this, you know, she was distraught and everything else, but I wouldn’t just take the person’s comments.
THE COURT: If some- lady got on the witness stand and said I was raped and that’s the person, that did it, and you believed it beyond a reasonable doubt you could not convict?
MS. BOYD: I would be able to convict if I believe it beyond a reasonable doubt.
THE COURT: Mr. Scott? '
MR. SCOTT: I have no questions.
MR. DE COSTE: I guess the question I asked you before, .right, if you got the one woman who comes and testified and says they are (sic) raped, and the defendant sitting silent and you believe her beyond a reasonable doubt, you could convict him?
|1fiMS. BOYD: Yes. I thought you meant if it was just her, and the,evidence wasn’t—
MR. DE COSTE: If it is just her, and then let’s say a police officer who says he talked to her and she was crying, because she is crying that is enough for you to convict the guy of the ■ rape?
MS. BOYD: Yeah, the police officer along with the evidence and everything,
MR. DE COSTE: What do you mean evidence and everything?
MS. BOYD: The evidence, like if there was a struggle or if there was a gun involved. . ,
MR. DE .COSTE: But we are talking about this one woman on the jury (sic) who comes in and says she is raped. The police officer says I met with her at the •hospital, she was distraught, -no D.N.A., she told me what happened. That is all you got.
MS. BOYD: If I wouldn’t believe her beyond a reasonable doubt, I would be lying if I just would convict him and I didn’t believe her.
MR. SCOTT: She is weighing it whether or not it is a beyond a reasonable doubt, or not, Judge.
MR. DE COSTE: I don’t think she is. She is saying there needs to be other corroborating evidence.
THE COURT: If there is no other corroborating evidence.
MS. BOYD: I couldn’t be able to do it.
THE COURT: Any other questions?
MR. SCOTT: You wouldn’t be able to do it because you would not believe her, or you would believe her and just say you are sh-t out of luck, I’m not going to convict' this guy?
MS. BOYD: Yés, I would need something more.

Defense counsel remarked that she “wouldn’t believe it without corroborating evidence,” and the trial court struck Ms. Boyd for cause. Defense counsel then lodged a Batson challenge, noting that “all the sustained causes [were] black females,” and that was “three out of the four black people on this panel.” The trial court commented that all the challenges had “not been based on l^race” but were “based upon the fact that they need more than one witness.” Defense counsel argued that was “not what Ms. Boyd said,” and the prosecutor explained that she “just asked her” if she needed “more than one witness, and she said yes.” Defense counsel argued that it was “because she would not believe that witness without more,” and the trial court noted his objection.

First; defense counsel’s objection coincided with thé denial of his Batson challenge. With regard to Ms. Boyd, defense counsel failed to provide the trial court-with reasons for his objection regarding the State’s challenge for cause, other than invoking a Batson objection. On appeal, Defendant argues Ms. Boyd was erroneously struck for cause when her answers did not provide a proper basis.

La. C.Cr.P. art. 841 provides that an error cannot be availed of after verdict unless it was objected to at the time of the occurrence. In order to seek appellate review of an alleged trial court error, a party must make a contemporaneous objection at trial, and he must state the grounds for the objection. La. C.Cr.P. art. 841; State v. Brooks, 12-226 (La. App. 5 Cir. 10/30/12); 103 So.3d 608, 613-14, writ denied, 12-2478 (La. 4/19/13); 111 So.3d 1030. Considering the foregoing, we decline review of this issue with respect to the State’s challenge for cause exercised on Ms. Boyd because it is not properly before the Court.

Juror Sharon Delaney

With regard to Ms. Delaney, Defendant argues that she only expressed reluctance to convict someone based upon the completely uncorroborated word of a lone witness. Even so, Defendant argues that her equivocal answers were given in response to hypothetical questions that were confusing, fluid, and leading. He argues that she did not tell the court that she could not follow the law, and her answers did not rise to grounds for a challenge for cause.

Also using the rape hypothetical during voir dire, the prosecutor asked Ms. Delaney that if she believed the victim and “prove[d] to her satisfaction whatever 117charge exist[ed],” could she find the person accused guilty. Ms; Delaney expressed that she “would find it hard to convict without more evidence” and that “every case is going to be different,” so it was “really hard to say.” The prosecutor asked her if it would be impossible, and Ms. Delaney responded that it was “hard to say.” The prosecutor continued, presenting Ms. Delaney with the following scenario:

MR. DE COSTE: The woman tells you her story. You believe her. That is all you got, her word. The defendant sits with his attorney and doesn’t say anything. You believe what she said, you believe the Voracity [sic] of what she has told you. You have to go back and deliberate am I going to find this guy guilty or not. What you are saying is it would be close to impossible to convict?
MS. DELANEY: Based on that, yes.

At the bench, the State moved to strike

Ms. Delaney for cause, with defense counsel noting it was for “the same issue.” She was questioned further:

THE COURT: Ms. Delaney, we have a question or two. I believe in response to the State’s question you said you would need more than one witness.
MS. DELANEY: I would think I would need more than one.
THE COURT: If there was only one witness and you were convinced beyond a reasonable doubt of that witness’s testimony, you are telling me you could not convict the person based on that?
MS. DELANEY: I would have a hard, hard time, because there is a lot of people’s lives involved, even if he is not guilty or is guilty.. .1 would have a hard time based on how it would affect his life. Being brought into court has already affected his life in a negative way. I would be hard pressed. It would depend on the circumstances. It is hard to ' say. • ■
MR; SCOTT: If you hear from more than one witness, but only one is the victim arid the eyewitness, because there is only one victim, it was more than one person collaborate everything? [sic]
MS. DELANEY: If it is one person’s word against the other person’s word, I don’t know.
MR. DE COSTE: You are just saying you would not believe them beyond a reasonable doubt?
11sMS. DELANEY: Possibly not, no.

Defense counsel objected “to the cause for the, reason stated,” with the trial court noting the objection.

■ Ms. Delaney, like Ms. Terrell, expressed her reluctance to convict someone based upon the testimony of a single witness. She indicated uncertainty ori being able to convict an individual on one witness’ testimony alone. Her inability to follow the law was exhibited through her reluctant responses, e.g., “possibly not,” “I would be hard pressed,” and “it is hard to say.” This inability was apparent to the trial court after attempts at rehabilitation concerning her views failed. After scrutinizing the record as a whole, Ms. Delaney’s responses reflect an inability to render a judgment according to the law. Thus, we find that the trial court did not abuse its discretion in granting the State’s challenge for cause as to Ms. Delaney, given her inability to follow the law.

Cross-examination of Ms. Clark

In this counseled assignment of error, Defendant asserts that Ms. Clark, the victim in this case, had two active attachments subjecting her to arrest as she testified in open court. Defendant contends the State, and trial court knew, she would not be arrested on these attachments, and Defendant was prohibited from revealing this information to the jury. Defendant avers that he was barred from questioning Ms. Clark about the substantial benefit she received either by intervention of the State or perhaps the trial court, but regardless of the source of the benefit, and argues the bias that was likely to flow from such forbearance was a subject within the scope of proper cross-examination. Defendant alleges that this error was not harmless as the case hinged on the credibility of Ms. Clark, and the |1fldenial of the right to confront Ms. Clark about her favorable treatment denied him his Sixth Amendment right of .confrontation. Such argument was also made in Defendant’s motion for. new trial—that trial counsel was not allowed to cross-examine Ms. Clark regarding favorable treatment, to wit: not being arrested despite open attachments.

The State responds that the trial court did not err in prohibiting defense counsel from cross-examining Ms. Clark regarding her attachments. The State first notes that even though raised in his motion for new trial, this issue was not properly preserved under the contemporaneous objection rule. Nevertheless, the State argues that Defendant was able to impeach Ms. Clark’s credibility by exposing her prior convictions and her pending charges and was able to elicit that she had outstanding attachments. The State avers that any error was harmless, as Ms. Clark was the victim in this case who consistently identified Defendant as her attacker, and it is inconceivable that had the jury known more about her outstanding attachments, the verdict would have been different.

Following the testimony of Javon Paul, Ms. Clark’s granddaughter, the trial court indicated to its bailiff and counselors to approach the bench where the following exchange occurred:

THE COURT: They are telling me she has an attachment, so after she leaves the courtroom check to see if it is outstanding, and if it is outstanding pick her up.
MR. SCOTT: Judge, about that, I looked in Jeffnet this morning. I have printouts from it. There is two [sic] from Second Parish on her, both for theft. We are talking about the witness?
THE COURT: No, she has an attachment, too. '
MR. SCOTT: Uh-huh (AFFIRMATIVE RESPONSE). For a pending charge?
THE COURT: I don’t know what it was. She was attached on a seatbelt. Let her go.
J^MR. SCOTT: Okay. '
* * *
MR. SCOTT: When it comes to the victim she does have pending charges and attachments. I’m allowed to cross-examine her, not on the nature of the charges, but the fact that she does have pending charges in this parish where this case is being prosecuted, if she has any hope of receiving favorable treatment for the testimony.
THE COURT: I don’t think you can.
MR. SCOTT: Yes. I didn’t even get the • case law on this.
MS. BECKNER: There is no plea agreement.
MR. SCOTT: It is Code of Evidence 607, and there is a federal case on it,..I can pull up a motion for you in a different case that says we understand he can cross-examine them about favorable treatment, but not go into the facts of the case.-

The record, indicates following this exchange, the trial court held a recess, but the issue was not brought up again on the record until the following day of trial, before Ms. Clark took the stand.

Before Ms. Clark took the stand for her testimony, the following, exchange occurred:

MR. DE COSTE: The victim brought the paperwork. Supposedly when they went there she didn’t go in, but her husband signed for her, but she has a court date and she is still attached.
THE COURT: We told this woman to go handle this.
MR. DE COSTE: I guess we should have been explicit and told her to personally handle it. What is your position regarding attachment? It is just as it was yesterday.
THE COURT: Since the case is so screwed up to begin with I’m going to allow him to ask her, because it goes tó her credibility.
MR. DE COSTE: Are you going to have her arrested?
THE COURT: I’m not going to arrest her. They have a date for Monday?
MR. DE COSTE: Yeah.
THE COURT: I’m going to order her to go over there on Monday—
la,MR. DE COSTE: Okay.
THE COURT: —and get those recalled, and then I’m going to find out whether or not she did it or not, and if she didn’t I’m going to issue an attachment for her, and send somebody out to pick her up and hold her in contempt.
MR. DE COSTE: Assuming everything works out, if he has a sentencing date, . do you want to have her served for the sentencing so if she doesn’t handle that—
THE COURT: No, I’m going to see what happens on Monday. By Tuesday if she has not taken care of it, I’m going to issue an attachment for her arrest.
MR. DE COSTE: That’s fíne. All right.
. THE COURT: And she is going to do six months contempt. - .
MR. DE COSTE: We’ll let her know after everything.

During Ms. Clark’s cross-examination,' the following exchange occurred:

MR. SCOTT: You are aware that you have two attachments right now?
MS. CLARK: Yes, I am aware of it.
* * *
MR. SCOTT: Do you bélieve by sticking to your story and telling—giving ■ favorable evidence for the State you are going to get'some kind of favorable treatment for that?
MS. CLARK: No, sir. It was—it is not, and it is not going to be nothing favorable for the State. I’m here for my leg.
MR. SCOTT: Are you aware of what normally happens to people who have attachments for their arrest?
MR. DE COSTE: Objection,-Your Hon- or.
MS. BECKNER: Objection.
THE COURT: Sustained.
MR. SCOTT: Do you expect to get arrested because of your attachments?
MS. BECKNER: Objection;
MR. DE COSTE: Objection.
I22MR. SCOTT: Can we approach?
THE COURT: Yes.
(Bench conference)
MR. SCOTT: Attachments get you arrested. She is not getting arrested.
* * *
MR. SCOTT: It is a matter of record. She is already getting favorable treatment because she is not getting arrested. That is being put on the record in this case.’
MS. BECKNER: We have.nothing to . do with her not getting arrested.
MR. SCOTT: It is the fact that it is not happening.
THE COURT: She knows to be there Monday.
MR. SCOTT: She has open attachments.
MR. DE COSTE: The only person to affect her arrest is him and you cannot bring that in front of the jury.
THE COURT: You can redirect and try to clear it up.
MR. DE COSTE: You can’t talk about a judicial proceeding.
MR. SCOTT: It is favorable treatment.
MR. DE COSTE: No it isn’t.
MR. SCOTT: She can still get arrested.
THE COURT: So I should tell her she is getting arrested?
MR. SCOTT: No you don’t tell her she is getting arrested.
MS. BECKNER: I already had this conversation.
MR. SCOTT: And then between now and then—
MS. BECKNER: She has attachments.
MR. SCOTT: Between now and then it has been put on the record that she’ll not be arrested, despite the fact that she has open attachments.
MR. DE COSTE: Who has control? Does the State have control?
| aaMR. SCOTT: I recall y’all requesting—
MR. DE COSTE: I didn’t request anything.
MS. BECKNER: Calm down.
THE COURT: I’ll have her arrested on this.
MR. SCOTT: Okay.

A defendant must make a contemporaneous objection “to a claimed confrontation violation” in order to preserve it for appellate review. State v. Vallo, 13-1369 (La. 1/10/14); 131 So.3d 835, 837. The contemporaneous objection rule, La. C.Cr.P. art. 841(A), not only provides that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence,” the rule also requires that a defendant state the grounds for the objection. State v. Smith, 11-638 (La. App. 5 Cir. 3/13/12); 90 So.3d 1114, 1123. Further, a defendant is limited on appeal to those grounds articulated at trial. State v. Snyder, (La. App. 5 Cir. 10/9/13); 128 So.3d 370, 377, writ denied, 13-2647 (La. 4/25/14); 138 So.3d 643.

The Sixth Amendment to the United States Constitution guarantees the right of the accused in a criminal prosecution “to be confronted with the witnesses against him.” Additionally, the confrontation clause of the Louisiana Constitution directly affords the accused the right to “confront and cross-examine the witness against him....” La. Const. Art. I, Sec. 16.

The credibility of a witness may be attacked by any party, including the party calling him. La. C.E. art. 607(A). The right to impeach a witness for bias or interest is encompassed in the right of confrontation and is specifically dictated by La. C.E. art. 607(D). State v. Hollins, 97-627 (La. App. 5 Cir. 11/25/97); 704 So.2d 307, 309, writ denied, 99-507 (La. 8/25/99); 747 So.2d 50. However, La. C.E. art. 608(B) provides: “Particular acts, vices, or courses of conduct of a witness may not be inquired into or proved by extrinsic evidence for the purpose of ^attacking his character for truthfulness, other than conviction of a crime as provided in Articles 609 and 609.1 or as constitutionally required.” La. C.E. art. 609.1(B) provides that “[generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.”

Despite the general rule, the possibility that the prosecution may have leverage over a witness due to that witness’ pending criminal charges is recognized as a valid area of cross-examination. State v. Wiley, 10-811 (La. App. 5 Cir. 4/26/11); 68 So.3d 583, 592, writ denied, 11-1263 (La. 3/30/12); 85 So.3d 106 (citing State v. Rankin, 465 So.2d 679, 681 (La. 1985); State v. Brady, 381 So.2d 819, 822 (La. 1980)).

In State v. Schexnayder, 96-98 (La. App. 5 Cir. 11/26/96); 685 So.2d 357, 368, writ denied, 97-2251 (La. 1/16/98); 706 So.2d 973, defense counsel requested that he be able to cross-examine an eyewitness regarding outstanding attachments on him at the time of the victim’s murder. The defense counsel claimed that he wanted to show that information given to the police and testified to at trial by the eyewitness was influenced by the State’s promise of favorable treatment with respect to the open attachments. Additionally, the eyewitness was on probation at the time of the murder. The eyewitness stated that he had not been promised anything in exchange for his police statements. However, one of the detectives did tell the eyewitness that he would not act on the attachments for him on that night. That detective testified that he did not promise the eyewitness anything in exchange for the identification. According to the detective, he did not discover the open attachments on the eyewitness until after the identification was made. Id.

This Court found that although the eyewitness and the detective both testified that there was no agreement made in exchange for the information, the | ^detective’s failure to act immediately on eyewitness’ attachments might be construed as giving favorable treatment in exchange for the eyewitness’ continued cooperation.' Id. This Court found that defense counsel should have been allowed to question the eyewitness about any expectations he may have had of favorable treatment, even though there was no proof of an overt ágreement with the State. Id. at 369. However, this Court noted that, even if the trial court improperly restricted defense counsel’s cross-examination of the eyewitness, the error was harmless. Id. In addition, this Court noted other evidence at trial corroborated the eyewitness’ testimony. Therefore, the guilty verdict was not attributable to any error that may have occurred when the trial court refused to allow the defense counsel to question the eyewitness concerning his bias. Id.

In State v. Merwin, 07-807 (La. App. 5 Cir. 4/15/08); 984 So.2d 842, the defendant argued that the trial court erred in not allowing her to cross-examine the victim concerning his probation violation and the resultant outstanding warrant in Georgia. This Court stated that defense counsel was unable to address the victim’s impartiality or bias, since she was unable to question him about his outstanding warrant for a probation violation or about whether Louisiana State officials had discussed with or ensured the victim that he would not be prosecuted for the probation violation in Georgia. Id. at 846. However, this Court found that any error was harmless because the witness was the victim, he had an interest in pursuing the matter without coercion, and other evidence at trial corroborated the victim’s testimony. Id. at 847.

In the instant case, defense counsel was able to question Ms. Clark about her prior convictions; Ms. 'Clark acknowledged she had prior convictions, one for child desertion and two for theft. Defense counsel also questioned Ms. Clark about “pending theft charges” that she was unaware of but did not deny. Notably, defense counsel was able to briefly question Ms. Clark regarding her expectations |2fiof favorable treatment regarding pending attachments. She indicated that she was aware she had two pending attachments for her arrest but-that she did not expect favorable treatment from the State for “sticking to [her] story.” The State only objected after Ms. Clark indicated that she did not expect favorable treatment when defense counsel questioned her further on the matter. .Ms. Clark did not express that she had a specific agreement with the State..

. Also in. this case, Ms. Clark was the victim, not just a witness. While she may have had an interest in not being arrested on the pending attachments, her interest in having Defendant prosecuted for running her over with his car outweighed that interest. Although the questioning was somewhat limited, Defendant was not deprived of his right to confrontation. Defense counsel was able to cross-examine Ms. Clark regarding her numerous convictions and was able to attack her credibility in other ways. Accordingly, we find the guilty verdict was not attributable to the trial court’s refusal to allow, defense counsel to question Ms. Clark further concerning any favorable treatment.

Denial pf Motion-to Quash

In this pro se assignment of error, Defendant argues that his predicate convictions are invalid for habitual offender' bill purposes because the evidence presented by the State does not show that the trial judge specifically addressed his waiv-" er of his rights under Boykin—his right against self-incrimination, right to trial by jury, and right to confront one’s accusers—because the transcripts from his guilty pleas were not introduced. He further argues that his predicate convictions are invalid.to enhance his conviction because evidence presented does not show that he made an express and. knowing waiver of his constitutional rights. He also avers that the State did not prove that he was represented by. counsel when his prior guilty pleas were entered.

| p.7Here, Defendant was adjudicated a fourth felony offender. To prove a defendant is a habitual offender, the State must initially prove the prior felony convictions and that the defendant is the same person who was convicted of the prior felonies. State v. Fleming, 04-1218 (La. App. 5 Cir. 4/26/05); 902 So.2d 451, 455, writ denied, 05-1715 (La. 2/10/06); 924 So.2d 161. The latter can be established by expert testimony matching the accused’s fingerprints with those in the record from the prior proceedings. Id.

The Louisiana Supreme Court in State v. Shelton, 621 So.2d 769, 779-80 (La. 1993) set forth the framework for addressing a defendant’s challenge to a predicate guilty plea in a habitual offender proceeding:

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.

In State v. Thomas, 06-654 (La. App. 5 Cir. 1/16/07); 951 So.2d 372, 379, writs denied, 07-464 (La. 11/21/07); 967 So.2d 1153 and 08-2267 (La. 6/19/09); 10 So.3d 726, the defendant argued that the State failed to prove he was properly “Boykin-ized” before entering guilty pleas to the predicate felonies. This Court noted that when the defendant denied the allegations in the habitual offender bill, the‘burden shifted to the State to prove the existence of the prior guilty pleas and that the defendant was represented by counsel. This Court reasoned that the State | ?Rwas not, as the defendant contended, required to produce Boykin transcripts to meet that burden. The certified copies of the predicate guilty pleas (including waiver of rights forms listing the three Boykin rights) produced by the State established both the existence of the guilty pleas and that the defendant was represented by an attorney when he entered them. The State’s production of the pertinent waiver of rights/guilty plea forms was sufficient to satisfy, its burden of proof. This Court found that the burden shifted back to the defendant- to produce some affirmative evidence of .a procedural irregularity in connection with his guilty pleas, and he failed to do so, therefore, the burden did not shift back to the State to prove the guilty pleas were constitutionally sound.

In this case, Defendant denied the allegations of the habitual offender bill when he filed his written objection to the habitual offender bill of information and incorporated motion to quash challenging his predicate guilty pleas. Therefore, the burden shifted to the State to prove the existence of the- prior guilty pleas and that Defendant was -represented by counsel when it was taken. The State met this burden when it introduced into evidence; the certified conviction packets from Defendant’s four predicate guilty pleas, including bills of information with fingerprints, commitments, and Defendant’s waiver of rights forms of his predicate guilty pleas, signed by 'Defendant, his attorney, and the trial judge.

The waiver of rights forms- introduced by the State for all four predicate pleas include a waiver of the three essential Boykin rights. Defendant also indicated on the forms that he had not been forced, coerced, or threatened to enter his guilty pleas. This evidence also established that Defendant was represented by counsel at the time of his pleas; The State proved the identity of Defendant in the predicate pleas, through the testimony of Kortni Si-non, a fingerprint expert, who linked the fingerprints contained in the State’s exhibits to Defendant. Consequently, the burden shifted back to Defendant-to produce some affirmative 1 ^evidence showing an infringement of his rights or a procedural irregularity in -the taking of his plea. As in Thomas’, the State was not required to produce the Boykin transcripts to meet its initial burden as Defendant argues. Accordingly, we find .that Defendant has failed to present affirmative evidence of any infringement on his rights or procedural irregularity in the taking of his predicate pleas.

Excessive Sentence

In this pro se assignment of error, Defendant argues that .the trial court erred in denying his motion to, reconsider sentence. He argues that his enhanced sentence is constitutionally excessive.

After being adjudicated a fourth felony-offender, the trial court vacated Defendant’s previous sentence and sentenced him to life imprisonment without benefit of probation, parole, or suspension of sentence. Defendant filed a motion to reconsider sentence on December 10, 2016, arguing that his sentence was excessive, that the sentence imposed should be reconsidered, and that a lower sentence should be imposed that promotes fairness and state and federal constitutional standards. On February 15, 2017, a hearing on the motion was held, and Defendant challenged his life sentence as excessive as he was “convicted in a crime that did not result in the death of anyone.” The State responded that based on Defendant’s status as a quadruple felony offender, a mandatory life sentence was imposed, and contended that based on the facts of Defendant’s prior offenses, the sentence was proper. The trial court denied the motion.

Where the defendant’s motion to reconsider -sentence alleges mere exces-siveness of sentence, the reviewing court is limited to only a review of whether the sentence is constitutionally excessive. La. C.Cr.P. art. 881.1; State v. Mims, 619 So.2d 1059, 1059-60 (La. 1993). Accordingly, due to Defendant’s bare claim of exces-siveness of sentence in his motion, Defendant’s sentence is limited to a review for constitutional excessiveness. ,

IsnThe Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it may be reviewed for constitutional excessiveness. State v. Smith, 01-2574 (La. 1/14/03); 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334 (La. App. 5 Cir. 9/28/04); 885 So.2d 618, 622.

The Louisiana Supreme Court has recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness. State v. Taylor, 06-839 (La. App. 5 Cir. 3/13/07); 956 So.2d 25, 27, writ denied, 06-0859 (La. 6/15/07); 958 So.2d 1179. When a trial court determines that the minimum sentence mandated by La. R.S. 15:529.1 makes no “measurable contribution to' acceptable goals of punishment,” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge must reduce the sentence to one that would not be constitutionally excessive. Taylor, 956 So.2d at 27-28; State v. Douglas, 03-1266 (La. App. 5 Cir. 2/23/04); 868 So.2d 896, 900, writ denied, 04-0955 (La. 10/1/04); 883 So.2d 1006 (citing State v. Dorthey, 623 So.2d 1276, 1280 (La. 1993); State v. Ventress, 01-1165 (La. App. 5 Cir. 4/30/02); 817 So.2d 377, 383).

However, it is presumed that the mandatory minimum sentence under the Habitual Offender Law is constitutional. Taylor, 956 So.2d at 28 (citing State v. Johnson, 97-1906 (La. 3/4/98); 709 So.2d 672, 676); Douglas, 868 So.2d at 900 (citing Johnson, 709 So.2d at 676; State v. Harbor, 01-1261 (La. App. 5 Cir. 4/10/02); 817 So.2d 223, 226, writ denied, 02-1489 (La. 5/9/03); 843 So.2d 388). |31In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is “exceptional, which ... means that because ■ of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case.” Id. (citing Johnson, 709 So.2d at 676).

Downward departures from the minimum sentence mandated by La. R.S. 15:529.1 should only occur in rare situations. When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism. Taylor, 956 So.2d at 28. Compliance with sentencing guidelines pursuant to La. C.Cr.P. art. 894.1 is not required when the sentence imposed is statutorily prescribed under the Habitual Offender Law. State v. Jenkins, 07-586 (La. App. 5 Cir. 1/22/08); 977 So.2d 142, 148 (citing State v. Johnson, 01-0842 (La. App. 5 Cir. 2/13/02); 812 So.2d 106, 118, writ denied, 02-1037 (La. 3/21/03); 840 So.2d 532).

It is first noted that Defendant’s sentence is within the statutory limits. At the time of the offense, La. R.S. 15:529.1(A) provided in pertinent part:

(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(b) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime ' punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

| agHere, Defendant’s fifth and underlying conviction was for aggravated second degree battery, in violation of La. R.S. 14:34.7, which is defined as a crime of violence. That offense was punishable by imprisonment with or without hard labor for not more than 15 years.

The State also proved that Defendant had four predicate felony convictions, ‘including distribution of cocaine, in violation of La. R.S. 40:967(A); false representation of a controlled dangerous substance, to wit: cocaine, in violation of La. R;S. 40:971.1; second degree battery, in violation of La. R.S. 14:34.1; and armed robbery, in- violation of La. R.S. 14:64. -

La. R.S. 14:2(B) defines second degree battery, armed robbery, and aggravated second degree battery as crimes of violence. See La. R.S; 14:2(B)(6), (21), and (31). Further, La. R.S. 40:967(A) was defined as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more. Thus, the State proved that Defendant had two prior felonies defined as crimes of violence. Pursuant to La. R.S. 15:529.1(A)(l)(c)(ii), the sentence applicable to Defendant' was mandatory life imprisonment without benefit of parole, probation, or suspension of sentence, which was the sentenced imposed.

Additionally, this Court has found that if the trial judge who imposed sentence on a defendant’s underlying conviction is the same • judge who imposes the enhanced sentence in a multiple offender adjudication, that judge is deemed to be aware of the nature of the crime for the underlying conviction. State v. Woods, 09-399 (La. App. 5 Cir. 3/9/10); 38 So.3d 391, 412, writ denied, 10-0784 (La. 10/29/10); 48 So.3d 1096. In the instant case, in light of the fact that the trial judge who presided over Defendant’s conviction and sentencing on his underlying offense was the same judge who presided over Defendant’s adjudication and I ¡«sentencing as a habitual offender, we find that the trial judge was aware that Defendant committed aggravated second degree battery upon Ms., Clark and was aware of his criminal history.

The record further reflects Defendant’s propensity to continually commit violent crimes as evidenced by the instant conviction and. his underlying convictions for second degree battery and armed robbery, all of which have been defined as crimes of violence under La. R.S. 14:2. Defendant’s criminal history of violence is precisely what the Habitual Offender Law was designed to deter and punish. See Taylor, 06-839, 956 So.2d at 28. The Louisiana Supreme Court has noted that La. R.S. 15:529.1 treats the défendant with multiple felony convictions “as a recidivist who is to be punished for the instant crime in light of his continuing disregard for the laws of our state. He is subjected to a longer sentence because he continues to break the law.” State v. Johnson, 97-1906 (La. 3/4/98); 709 So.2d 672, 677.

Moreover, this Court -has held that repeat offenders are to receive serious sentences. State v. Carter, 96-358 (La. App. 5 Cir. 11/26/96); 685 So.2d 346, 353. In State v. Wise, 14-378 (La. App. 5 Cir. 10/15/14); 182 So.3d 63, 72, writ denied, 14-2406 (La. 9/18/15); 178 So.3d 143, the ■ defendant’s underlying conviction was attempted simple robbery, and his three prior felony convictions were attempted simple robbery, first degree robbery, and aggravated battery upon a police officer. In Wise, this Court after considering .that , the record reflected that the nature oí the instant offense was very' serious and that the defendant had an extensive criminal history consisting of violent crimes, found the defendant’s enhanced life sentence without benefits as a fourth felony offender was not excessive.

Further, the record in.this case reflects that Defendant failed to produce any evidence to rebut the presumption of constitutionality of, the sentence. Based pn the foregoing, we find that Defendant has not shown exceptional circumstances ^necessary to successfully rebut the presumption of constitutionality of the mandatory life sentence. Additionally, considering that the record reflects that'the nature of the instant offense was very serious and that Defendant has an extensive criminal history consisting of violent crimes, we find that the mandatory life sentence as a fourth felony offender was not excessive.

■ Errors Patent Discussion

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5th Cir. 1990). Our review found no errors that require corrective action.

DECREE

For the foregoing reasons, we affirm Defendant’s conviction and sentence,

AFFIRMED

      . See State v. Harris, 16-K-490 (La. App. 5 Cir. 8/26/16) (unpublished writ disposition).

      . Deputy Jesus Falcon discovered through listening to Defendant’s jailhouse phone calls that Defendant intended to sell his SUV, which was located at his mother's home in Algiers. Ms. Clark identified that vehicle as the one that struck her through photographs.

      . Efforts were made to locate Mr. Taylor during the investigation but were unsuccessful. He did not testify at trial.

      . The State and defense counsel stipulated to the authenticity of the 9-1-1 call, which was admitted into evidence and published to the jury.

      . The amended habitual bill of information added a predicate offense and changed another predicate offense.

      . Pursuant to La. C.Cr.P. art. 916, the trial court maintained jurisdiction to rule on the motion to reconsider sentence after granting the appeal. See La. C.Cr.P. art. 916.

      . When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court first determines the sufficiency of the evidence. State v. Griffin, 14-251 (La. App. 5 Cir. 3/11/15); 169 So.3d 473, 483, citing State v. Hearold, 603 So.2d 731, 734 (La. 1992).

      . Defense counsel filed a motion for new trial arguing: 1) the verdict was contrary to the law and evidence in that the victim's testimony contradicted the physical evidence, 2) trial counsel was not allowed to cross-examine the victim regarding favorablé' treatment, and 3) the ends of justice would be served by, the granting of a new trial considering the totality of the errors. Defendant also made an oral pro se motion for new trial urging that his Sixth Amendment rights were violated because he was denied the right to cross-examine the victim himself. Both motions were denied by the trial court.

      . It is noted that in Defendant’s appellate brief, he initially complains about jurors Terrell, Boyd, and Smith, but it appears that was in error as Defendant later more specifically contends juror Delaney was improperly • struck, It is also noted that these three jurors were from the same venire p'anel;

      . The prosecutors in this case were Andrew De Coste and Brittany Beckner, and defense counsel was Brad Scott.

      . See Munson, 115 So.3d at 13, where a juror indicated that she could not apply the legal standard that a witness’ testimony alone is sufficient to support a verdict. She also indicated she would' apply a different standard to murder cases as opposed to other cases, Although she was told that the law allowed the State to prove its case through testimonial evidence alone in any criminal case, including a murder trial, she indicated that in a murder trial, she would need physical evidence before "weighting] in on a murder.” She further expressed that she could convict on testimony alone on a "lesser” offense but that she could not do so with respect to a murder case. Accordingly, this Court found that the trial court did not abuse its discretion in granting the State’s challenge for cause. Id. at 14.

      . Batson v. Kentucky, 476 U.S. 79, 94-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . See Munson, 115 So.3d at 14, where’another juror indicated uncertainty on being able to convict an individual on witness testimony alone. Her inability to follow the law was exhibited through her reluctant responses, e.g. "I'm not really sure,” "I just don’t think,” and “I would have a hard time.” This Court found that her responses reflected a bias, prejudice, or inability to render a judgment according to the law, and determined that the trial court did not abuse its discretion in granting the State’s challenge for cause'.

      . The Louisiana Supreme Court has held a defendant should be sentenced pursuant to the version of La. R.S. 15:529.1 in effect at the time of the commission of the charged offense. State v. Parker, 03-0924 (La. 4/14/04); 871 So.2d 317, 326.

      . La. R.S. 40:967(B)(4)(b) provided for a term of imprisonment at hard labor for not less than two years nor more than 30 years, with the first two years without benefit of probation, parole, or suspension of sentence.


author: BEAM, JUSTICE,

text:
    Troy WESLEY v. WASHINGTON COUNTY DEMOCRATIC EXECUTIVE COMMITTEE and Carl McGee
    NO. 2016-EC-00675-SCT
    Supreme Court of Mississippi.
    11/30/2017

      ■ ATTORNEY FOR APPELLANT: JAMIE . FERGUSON JACKS, CLEVELAND
    ATTORNEYS FOR APPELLEE: SANDRA JARIBU HILL, WILLIE GRIFFIN, GREENVILLE
    BEFORE WALLER, C.J., KITCHENS, P.J., AND BEAM, J.
   BEAM, JUSTICE,

FOR THE COURT:

¶ 1. Appellant Troy Wesley lost the Democratic primary election for Washington County District 3 Supervisor on August 4, 2015. He subsequently petitioned the circuit court to request a new election, alleging that numerous irregularities had invalidated the former one. After a hearing on the matter, the Washington County Circuit Court granted summary judgment to' defendants Carl McGee and the Washington County Democratic Executive Committee. Aggrieved, Wesley now appeals to this Court. In his appeal, Wesley cites no discrepancy in the original vote totals and instead focuses his arguments on procedural problems, including an alleged lack of ballot-box security. While the failure to maintain ballot-box security is a serious issue worthy of reprimand, we find that Wesley’s arguments are insufficient to raise a genuine issue of material fact and that summary judgment was properly entered in favor of the defendants.

FACTS

¶ 2. On August 4, 2015, the Democratic primary for Washington County District 3 Supervisor resulted in candidate Carl McGee receiving 448 votes and Troy Wesley receiving 378. The vote totals for the two candidates differed by 70 votes, but Wesley challenged the election—first by filing a petition with the Washington County Democratic Executive Committee (WCDEC), then by filing a complaint in Washington County Circuit Court against Carl McGee and the WCDEC. Before the trial court, Wesley alleged that numerous violations of election law had taken place and asked for a new election.

¶ 3. Prior to trial, both sides requested summary judgment. On October 21, 2015, McGee filed such a motion; then the WCDEC filed a motion for dismissal or, in the alternative, summary judgment. Wesley then filed for summary judgment and offered his own affidavit and various photos of ballot boxes in support of his allegations in the case. The trial court eventually held a hearing on February 23, 2016, and concluded that “[tjhere has not been demonstrated to the Court that there [were] enough illegal votes cast ... to change the result of the election.” The court continued, explaining that “[i]t has not been established that so many votes are disqualified that the will of the voters is not established by this vote count.” Accordingly, the court issued an Order of Dismissal, in which it dismissed the case “with prejudice and all cost taxed to Plaintiff.” Though noting that all of the parties admitted election irregularities had occurred, the court denied Wesley’s motion for summary judgment and granted the motions of McGee and the WCDEC. Aggrieved, Wesley appealed to this Court.

¶4. In his appeal, Wesley continues to allege that numerous election irregularities occurred and that those irregularities require a new election for Washington County District 3 Supervisor. Narrowing his arguments to focus on ballot-box security, Wesley alleges the following:

1) The election result ballot boxes were not properly sealed as prescribed by law;
2) Election machine memory cards and results from machines 'were not in • any closed box whatsoever, but in an open cardboard box in the circuit clerk’s office;
3) The circuit clerk did not control and secure the ballot boxes as she was not in control of the boxes for weeks following the election;
4) Ballot boxes were left in the hallway of the courthouse, their tops open and at least one member[] of the WCDEC removed items from these boxes, all prior to Wesley’s examination of the boxes;
5) Because of the WCDEC’s failure to ■ properly tally affidavit and absentee-•votes, the circuit clerk herself was forced to tally these votes;
6) Washington County Election Commission (William Gist) also handled and canvassed ballots for the WCDEC;
7) There is no agreement between the Washington County Election Commissioners and the WCDEC to assist in the canvass of ballots;
8) There was no evidence in any of the election boxes, that ballots were properly received and accounted for by the Receiving Managers at the polls—there were no receipts signed showing how many ballots were delivered (affidavit and curbside); and
9) The results from the Lake Vista Lodge Machine # 1 could- not be - .found during Wesley’s examination.

Wesley argues that “the ballot box security issues alone are enough to warrant a new election.”

¶5. In response to Wesley’s appeal, McGee asserts that Wesley failed “to provide concrete evidence to prove” that “alleged ‘radical-departures’ changed the outcome of the election.” Indeed, McGee claimed that, even if true, the irregularities noted by Wesley applied only to the 2.8% of the.votes cast on paper, rather than electronic ballots. By themselves, the paper ballots were too few in number to change the election outcome. McGee admitted that “various technical glitches” and “improper handling of paper ballots” had occurred, but he noted that Wesley “did not allege fraudulent of intentional illegal conduct on the part of election officials,” According to McGee, allegations of fraud or intentional wrongdoing are necessary before a Mississippi court will overturn an election.

¶6. Meanwhile, the WCDEC presents arguments similar to McGee’s. It notes that only twenty-four ballots cast in the election were known to be paper ballots, but it concedes “that there were irregularities committed while the paper ballots were being counted.” Still, the WCDEC emphasizes that voters cast 97.2% of the ballots in the election on electronic voting machines (EVMs) and that Wesley “offered no evidence that the integrity of the 802 votes cast by EVMs was destroyed or placed in doubt.” Per the WCDEC, Wesley should have shown that an error in the EVM vote totals had occurred. Since, he did not, too few disqualified votes existed to warrant a new election.

1. In response to the arguments. of McGee and the WCDEC, Wesley asserts that “the multiple ballot box security issues called all of the votes into question.” He also remarks that “no one ... can be certain how many paper ballots were cast in this election because the boxes were never properly secured.” Thus, according to Wesley, the percentage of paper ballots versus electronic ballots was irrelevant, and the irregularities require a new election, whether or not they were fraudulent in nature.

ANALYSIS .

¶ 8. Now, more than two years after voters first went to the polls in the Democratic primary for Washington County District 3 Supervisor, this Court must decide whether summary judgment against Wesley was appropriate.

¶ 9. In doing so, and in accord with longstanding practices, “[t]his Court applies a de novo standard of review to a circuit court’s grant or denial of summary judgment.” Indemnity Ins. Co. of N. Am. v. Guidant Mut. Ins. Co., 99 So.3d 142, 149 (Miss. 2012). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as, a matter of law.” Miss. R. Civ. P. 56(c); see also Indemnity Ins. Co. of N. Am., 99 So.3d at 149. In assessing summary judgment, “the evidence must be viewed in the light most favorable to the party against whom the motion has been made,” Kilhullen v. Kansas City S. Ry., 8 So.3d 168, 174 (Miss. 2009) (citing Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss. 1993)).

¶10. When a case involves an election, courts tread carefully, warranting new primary elections only under certain circumstances. “In a primary election contest, an election should be voided only if there has been such a departure from statutory compliance ‘as to destroy the integrity of the election and make the will of the qualified electors impossible to ascertain.’ ” Waters v. Gnemi, 907 So.2d 307, 315-16 (Miss. 2005) (quoting Riley v. Clayton, 441 So.2d 1322, 1328 (Miss. 1983)). The key to reviewing an election is to take the interests of the candidates into account while at the same time ultimately seeking to fulfill the will of the voters. Noxubee Cty. Democratic Exec. Comm. v. Russell, 443 So.2d 1191, 1197 (Miss. 1983); Rogers v. Holder, 636 So.2d 645, 651 (Miss. 1994); see also Guice v. McGehee, 155 Miss. 858, 124 So. 643, 647 (1929) (noting “a general rule that election laws are construed liberally in favor of the electors”).

¶ 11. Mississippi law sets detailed guidelines for local officials, to follow when conducting an election, and those guidelines address the proper means for securing election materials both before and after voters have cast their ballots. In the case before us, Mississippi Code Section 23-15-597 controls. This section requires that, after a county primary election, a major political party’s county executive committee is required to canvass the votes, unless it has an otherwise legal, written agreement with the circuit clerk or the county election commission permitting the circuit clerk or county election commission to help in the process. Miss. Code Ann. § 23-15-597 (Rev. 2015). Once the canvassing process for a ballot box is complete, the law requires that

[A]ll the contents of the box required to be placed and sealed in the ballot box by the managers shall be replaced therein by the election commission or executive committee, as the case may be, and the box shall be forthwith resealed and delivered to the circuit clerk, who shall safely keep and secure the same against any tampering therewith.

Miss. Code Ann. § 23-15-911(1) (Rev. 2015). Items that should have been sealed in the ballot box by that point include “all ballots-voted, all spoiled ballots, all unused ballots,” a certificate declaring the voting-results, and:

[0]ne of the duplicate receipts given by the manager who received the blank ballots received for that box; and the total ballots voted, and the spoiled ballots and the unused ballots must correspond in total with the Said duplicate receipt or else the failure thereof must be perfectly accounted for by a written statement, under oath of the managers, which statement must be inclosed in the ballot box. There shall be also inclosed in said box' the tally list, the receipt booklet containing the signed names of the voters who voted; and the number of ballots voted must correspond with the number of names signed in said receipt booklet.

Miss. Code Ann. § 23-15-591 (Rev. 2015). Circuit clerks even must follow specific procedures for sealing and resealing ballot boxes. Miss. Code Ann. § 23-15-595 (Rev. 2015). When irregularities occur regarding ballot-box materials, determining the “will of the voters” is a core consideration, and under certain circumstances, if the will of the voters is impossible to discern, “the entire box may be. thrown out.” Miss. Code Ann. § 23-15-593 (Rev. 2015). Therefore, the law unquestionably requires that local officials handle ballot-box materials with great care.

¶ 12. The need for care also extends to votes cast on electronic voting equipment. In 2015, after assessing election results, poll managers had to transport electronic voting materials to county or municipality tabulating centers. Miss. Code Ann. § 23-15-531.10 (Rev. 2015). Subsequently, the following procedure was to take place:

Upon receipt of the sealed envelope or communication pack containing the zero tapes, results tapes and memory • cards, the officials in charge of the election shall verify the signatures on the envelope or communication pack. Once verified, the officials in charge of the election shall break the seal of the envelope or communication pack and remove its contents. The officials in charge of the election shall then download the results stored on the memory card from each DRE unit into the election management system located at the central tabulation point of the county in order to obtain election results for certification.

Miss. Code Ann. § 23-15-531.10(7) (Rev. 2015).

¶ 13. This Court has addressed election challenges on numerous occasions. See, e.g., Rogers, 636 So.2d 645; Waters, 907 So.2d 307; Ruhl v. Walton, 955 So.2d 279 (Miss. 2007); Esco v. Blackmon, 692 So.2d 74 (Miss. 1997); Noxubee Cty., 443 So.2d 1191. In such cases, several considerations have played roles in the Court’s decisions. In general, the Court has sought to uphold the integrity of the election process and follow the wishes of the voters. Waters, 907 So.2d at 315-16. More specifically, the Court also has looked to determine whether a violated statute is mandatory or merely directory. Rogers, 636 So.2d at 647-48. “If the violated statute is directory rather than mandatory and there is no allegation or proof of fraud, the noncomplying ballots are valid and properly counted,” as long as the integrity of the election is preserved. Id. at 648. On the other hand, “[v]otes not in compliance with mandatory provisions of election statutes are illegal. Votes illegally cast are improperly counted.” Id. Thus, the nature of election statutes helps to determine which votes count or not.

¶ 14. Sometimes, though, election irregularities rise to a level warranting consideration of a new election. In such cases, this Court has implemented the following test:

When an election has been successfully contested, this Court has employed different tests over the years to aid its determination of what form of relief is in order. By various routes, we have attempted to discern whether the entire election should be thrown out or only the tainted votes. We have employed a two pronged test which though it has been stated in different ways, essentially provides that special elections will be required only when (1) enough illegal votes were cast for the contestee to change the result of the election, or (2) so many votes are disqualified that the will of the voters is impossible to discern.

Noxubee Cty., 443 So.2d at 1197. Sometimes the test shows that a new election is warranted. Sometimes it does not, even if a limited number of votes is discounted.

¶ 15. Either way, the factors we consider when evaluating elections sometimes combine to deem votes illegal or disqualified for reasons that, on their face, might seem minor. In Noxubee County, four voting boxes were worthy of disqualification because “the receiving manager and initialing manager were one and the same person.” Id.; see also Prescott v. Ellis, 269 So.2d 635, 636 (Miss. 1971). Even so, the disqualification affected too few votes to require a new. election. Noxubee Cty., 443 So.2d at 1198.

¶ 16. In another case, this Court threw out three absentee ballots because the town clerk delivered them to her relatives improperly. Lewis v. Griffith, 664 So.2d 177 (Miss. 1995). In still another case, a new Democratic primary election was permitted because, during and after the initial primary, neither the Democratic Party county executive committee nor the circuit clerk had maintained proper control of the election materials and because materials from several precincts ended up in two, unsecured cardboard boxes. Waters, 907 So.2d at 332-35.

¶ 17. Importantly, a showing of fraud or similar activity is not required in order for a new election to be warranted. As noted in Noxubee County, demonstrating fraudulent electoral activity helps meet ■the threshold for calling voters back to the polls; though “the disenfranchisement of a significant number of voters will cast enough doubt on the results of an election to warrant voiding it.” Noxubee Cty., 443 So.2d at 1198. As a result, evidence of fraudulent activity is not required before calling a new election, even if the lack of such a requirement risks the possibility that losing candidates could try to benefit from “innocent human error.” Id. at 1197. In Waters, this Court reaffirmed this standard, granting a new election and specifically stating that it was not accusing Holmes County election officials of “intended wrongdoing.” Waters, 907 So.2d at 336.

¶ 18. Just as fraudulent activity in an election is not required in order for votes to be discounted, no hard and fast equation exists for determining when to reject the results of an election and hold a new one. Some cases suggest that when thirty percent of the votes are disqualified, courts should order a new election; yet those same cases leave the door open for new elections even when the percentage of discounted votes is smaller. Noxubee Cty., 443 So.2d at 1198; Rizzo v. Bizzell, 530 So.2d 121, 128 (Miss. 1988). Ultimately then, one of the most important tests for assessing an election is the two-pronged test examining the numbers of illegal and disqualified votes. Noxubee Cty., 443 So.2d at 1197. The first prong of the test examines whether “enough illegal votes were cast for the contestee to change the result of the election,” and the second prong examines whether “so many votes are disqualified that the will of the voters is impossible to discern.” Id.

¶ 19. We readily find that the first prong of the test is irrelevant to the facts of this case. On appeal, Wesley admits' that he “may not have alleged fraud.” With no allegations of illegal voting and no specific allegations of fraudulent election activity, we turn our analysis to the second prong of the Noxubee County test.

¶20. Applying the second prong, we ask whether Wesley established a genuine issue of material fact regarding' the number of votes that should have been disqualified in the election. The cases cited above show that thq disqualification of votes can occur even without fraudulent activity by election officials. Here, Wesley supported his position, making largely un-contradicted allegations of lapses in ballot-box security; though he failed to show that enough votes should be disqualified to give him another chance to win the election.

¶ 21. Of Wesley’s nine allegations on appeal,- the fifth, sixth, and seventh addressed potentially improper activity by the circuit clerk- and county election commissioners when processing election results. Significantly though, Wesley made no specific claims indicating that the officials reached the wrong results. Admittedly, the Waters case examined similar improper activity and granted a new election; but in that case, an almost complete breakdown of responsibility occurred among the Democratic county executive committee members, the election commissioners, and the circuit clerk. Waters, 907 So.2d at 331-33. Almost no one fulfilled his or her proper eleption role, and though not determinative of the outcome of the case, officials had made severe mistakes in calculating the initial winner of the primary. Id. at 310-12, 331-33.

¶ 22. Wesley failed to allege such severe irregularities here. He indicated that at least one commissioner participated in canvassing the vote when the WCDEC alone should have been involved. He also argued that the circuit clerk tallied the absentee and affidavit ballots when the WCDE.C should have done so instead. Such activities, if true, certainly call into question the accuracy of WCDEC’s efforts involved. However, by themselves, the activities do not call foto question the integrity of the entire election.

¶ 23. Of more significance are Wesley's claims that election officials almost entirely neglected ballot-box security in the aftermath of the election. Wesley alleged that the seals on boxes were inappropriate, that the circuit clerkfailed to maintain control of the boxes, and that “there was no evidence in any of the boxes that ballots were properly received and accounted for by the Receiving Managers at the -polls.” If true, the irregularities represent serious violations of election law. In Noxubee County and Waters, this Court discounted votes for similar violations, and in Waters, a new election was warranted. Waters, 907 So.2d 307; Noxubee County, 443 So.2d 1191. If paper ballots, alone had been involved here, the circumstances almost certainly would demonstrate the need for voters to cast their votes again. But paper ballots were not the only ballots in this election: the record indicates that only twenty-four paper ballots were successfully cast. Wesley aptly claimed that, due to the election irregularities, no one can know how many paper ballots voters tried to cast. On appeal, however, he points to no specific discrepancies in the paper-ballot vote count. Even if this Court discounted all of the paper ballots tallied in the race, the election results would remain unchanged,

¶24. Alternatively, the record demonstrates that electronic ballots represented the vast majority of votes cast during the election. If Wesley successfully called into question their integrity, our decision today likely would be different. But on appeal, Wesley’s only specific references to the electronic bhllots were that “the election machine memory cards and results from machines were not in any closed box whatsoever”' and that “the results from the Lake Vista Lodge Machine # I could not be found during Wesley’s examination.” Notably, he did not say whether he could determine if the electronic votes were properly downloaded after the election. See Miss. Code Ann. § 23-15-531.10(7) (Rev. 2015). He also did not suggest that the memory cards showed signs of tampering. Wesley may have alleged irregularities in the election process, but given the safeguards normally built into electronic voting machines, it is difficult to conclude that the irregularities either called into question the integrity of the election or blurred the will of the voters. Without more, Wesley has failed to establish a genuine issue of material fact that would suggest the need for a new election.

¶ 25. The Court recognizes and critically considers Wesley’s allegations of violations of election procedure. Those allegations may have failed to refute the validity of the election, but if true, they represent serious violations of existing election law and a failure of election officials to fulfill their duties. This is especially true here, where both McGee and the WCDEC appeared to agree with Wesley that at least some irregularities occurred. While we recognize that no election is flawless, we encourage election officials in the county to adopt a stricter adherence to the State’s election laws.to prevent similar matters in the future.

CONCLUSION

¶ 26. After applying the two-pronged test from Noxubee County, we affirm the trial-court judgment. Noxubee Cty., 443 So.2d at 1197. A key part of analyzing an election involves determining whether the will of the voters is clear. See, e.g., Waters v. Gnemi, 907 So.2d at 315-16. Wesley’s allegations suggest that serious violations of election law may have occurred during the 2015 Democratic primary for Washington County-District 3 Supervisor, but Wesley failed to indicate that enough illegal votes were cast to warrant a new election. He also failed to show that enough votes were disqualified to warrant a new election. Finding that Wesley failed to meet the requirements under the Noxubee County test, we affirm the circuit court’s decision to dismiss the case on defendant’s summary judgment motion.

¶ 27. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., COLEMAN, MAXWELL, CHAMBERLIN AND ISHÉE, JJ., CONCUR. KING, J., NOT PARTICIPATING.

      . Wesley fails to elaborate on the alleged issues regarding Lake Vista Lodge Machine # 1 in his brief to this Court. Instead, he references a personal affidavit he filed at the trial level, in which he states that one of his representatives was unable to locate the memory card and results print-out from the machine in question. The affidavit presents various concerns with the lack of security and carelessness exhibited by the defendants in the. execution of their responsibilities throughout the election. However, this personal affidavit—sworn out by the plaintiff, and including information received from third-party personnel—constitutes the only record evidence pre-. sented regarding Machine # 1. Moreover, the affidavit itself is unclear as to whether the Lake Vista Lodge Machine # 1 memory card was missing entirely or was merely in a different box than expected. Only in response to Defendants' motions and in an Itemization of Undisputed Facts did Wesley suggest that the circuit clerk had been “unable to locate the memory card” when Wesley examined the ballot boxes. He neither presented the clerk as a witness nor attempted to present evidence to corroborate this claim. Several months later, in the motions hearing before the trial court, Wesley’s attorney merely emphasized that the results print-out from the machine was missing. Without more, Wesley's affidavit and his attorney's argument amount to nothing but unsupported claims. With no accompanying allegations of fraud or serious discrepancies in the vote count and no reason to doubt that the original election failed to express the will of the voters, we cannot find that the claims regarding Lake Vista Lodge Machine # 1 create a genuine issue of material fact to reverse summary judgment against Wesley.

      . "Canvass” here means "[t]o formally count ballots and report the returns.” Canvass, Black's Law Dictionary (4th pocket ed. 2011).

      . A 2017 amendment to this statute added the word “poll” in front of managers and removed.the word "therewith.”

      .A 2017 amendment to this statute made minor revisions to the statute’s wording.-

      . A 2017 amendment to this statute made minor revisions to the statute's wording and removed the reference to verifying signatures on the envelope or communication pack.