author: BROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Robert RICHTER, Appellant
    No. 51,259-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 9, 2017
    LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant
    DANIEL W. NEWELL, District Attorney, TERESA C. CARROLL, CARY T. BROWN, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, GARRETT, and BLEICH (Pro Tempore ), JJ.
   BROWN, C.J.

Defendant, Robert Richter, pursuant to a plea bargain agreement, entered a Crosby plea to contributing to the delinquency of a juvenile, a violation of La. R.S. 14:92(A)(7). As agreed, he was sentenced to serve two years' imprisonment at hard labor, suspended, five years' supervised probation, and a fine of $1,000 or serve six months' default time in the parish jail. The trial court applied time served (August 2011 to February 2012) to the default time. Defendant appeals, arguing that the state did not timely bring him to trial. For the following reasons, defendant's conviction and sentence are affirmed.

FACTS

On July 13, 2011, defendant, Robert Richter, was charged by indictment with aggravated incest, a violation of La. R.S. 14:78.1. On November 19, 2013, defendant filed a motion to quash the indictment, arguing that the state failed to commence trial within the delays established by La. C. Cr. P. art. 578(2). The state opposed the motion, asserting that the time limit was suspended when the defense either moved to continue the trial of this matter or joined the state in continuing the trial.

The motion to quash came before the trial court for hearing on July 8, 2014. The parties agreed to stipulate as to what defense attorney H. Paul Garner's testimony would be, but the state did not agree to stipulate to the veracity of the testimony. Defendant argued that he did not file any motions that would have suspended the running of the time delay, and attorney Garner specifically did not seek a continuance of the trial. According to defendant, on three occasions, the defense was prepared for trial but the state was unprepared. The state denied defendant's assertions that it was unprepared for trial on multiple occasions, urging that Attorney Garner was unavailable for trial on at least one occasion, March 11, 2013, and defendant was not present on May 8, 2013. Defendant's motion to quash was denied.

On May 5, 2015, the trial court accepted defendant's guilty plea to the responsive verdict of contributing to the delinquency of a juvenile, in violation of La. R.S. 14:92(A)(7), with an agreed-upon sentence. Defendant's guilty plea was made pursuant to State v. Crosby , 338 So.2d 584 (La. 1976), which reserved his right to appeal the trial court's denial of his motion to quash the indictment. On November 3, 2015, defendant filed a motion to appeal. However, the record reflected that defendant was never sentenced subsequent to the trial court's acceptance of his guilty plea. As such, the matter was remanded to the trial court for sentencing.

On April 18, 2016, defendant was sentenced in accordance with the agreement to serve two years' imprisonment at hard labor, suspended, five years' supervised probation, and pay a fine of $1,000 or, in default thereof, serve six months in the parish jail. The trial court indicated that defendant's time served, August 6, 2011, through February 10, 2012, would be applied to the default time. This appeal ensued.

DISCUSSION

In his sole assignment of error, defendant argues that the state did not timely bring him to trial within the applicable legal delays.

Louisiana Code of Criminal Procedure article 578(2) provides that, in non-capital felony cases, the state must commence trial within two years from the date of institution of prosecution. According to La. C.Cr. P. art. 934(7), "institution of prosecution" means the finding of an indictment, or the filing of an information, or affidavit, which is designed to serve as the basis of a trial. The purpose of La. C. Cr. P. art. 578 is to enforce a defendant's right to a speedy trial and to prevent the oppression caused by suspending criminal prosecutions over citizens for indefinite periods of time. State v. Barnett , 50,213 (La. App. 2 Cir. 08/12/15), 174 So.3d 748. The issue that a prosecution was not timely instituted may be raised at any time, but only once, and shall be tried by the court alone. La. C. Cr. P. art. 577.

A motion to quash is the proper procedural vehicle for challenging an untimely commencement of trial. La. C. Cr. P. art. 532(7). A trial court's decision on a motion to quash should not be reversed in the absence of a clear abuse of the trial court's discretion. State v. Burrell , 50,461 (La. App. 2 Cir. 03/02/16), 189 So.3d 481 ; State v. Barnett , supra . When a defendant has brought an apparently meritorious motion to quash based upon prescription, the state bears a heavy burden to demonstrate that the time limitation period has been interrupted or that it has been suspended so that the time limitation has not yet expired. La. C. Cr. P. art. 577 ; State v. Burrell , supra ; State v. Barnett , supra .

Time limits are suspended when a defendant files a motion to quash or other preliminary plea. La. C. Cr. P. art. 580(A). For purposes of article 580(A), a preliminary plea is any pleading or motion filed by the defense that has the effect of delaying trial, which includes motions to quash, motions to suppress, applications for discovery, bills of particulars, and motions for continuances. State v. Barnett , supra . A pending motion for preliminary examination suspends the time period for bringing to trial. State v. Barnett , supra ; State v. Woodard, 35,202 (La. App. 2 Cir. 10/31/01), 799 So.2d 701. Joint motions to continue suspend the period of limitation. State v. Barnett , supra .

When the prescriptive period is suspended, the relevant period is not counted, and the running of the time limit resumes when the court rules on the motions. Id. A suspension lasts from the date a qualifying motion is filed until the date the trial court rules on the motion. After the trial court rules on the motion, the state has either the remainder of the time limitation or a minimum period of one year from the date of ruling in which to commence trial, whichever time is longer. La. C. Cr. P. art. 580(A) ; State v. Barnett , supra.

In this case, defendant was charged with aggravated incest, a violation of La. R.S. 14:78.7, a non-capital felony. Under La. C. Cr. P. art. 578(2), defendant's trial was required to begin within two years from the date the prosecution was initiated. An indictment charging defendant with aggravated incest was returned on July 13, 2011. Thus, the state had until July 13, 2013, to commence defendant's trial. As of November 19, 2013, when defendant filed his motion to quash, trial had not commenced. On its face, defendant's motion to quash had merit, and the state had the burden of showing an interruption or suspension of the two-year time limitation.

Although the arguments of both Richter and the state focus on the numerous motions to continue the trial, a review of the record shows that Richter's attorney, on October 4, 2011, filed an application for preliminary examination, a motion for a bill of particulars and for discovery. The trial court ordered that a preliminary examination be held on November 8, 2011, but the record does not reflect that any hearing was conducted on that date. A review of the record reveals that neither defendant, nor his attorney ever requested that the preliminary examination be reset or withdrawn. As such, the prescriptive period was suspended beginning on October 4, 2011, and did not end because the record does not reflect that either Richter or his defense counsel ever indicated that they were no longer pursuing, and the record does not reflect that the court ever ruled, on the motion for preliminary examination. Therefore, the trial court properly denied defendant's motion to quash. This assignment is without merit.

CONCLUSION

For the reasons set forth above, the defendant's conviction and sentence are affirmed.

AFFIRMED .

      Repealed by Acts 2014, No. 177, § 2; Acts 2014, No. 602, § 7, eff. June 12, 2014.

      Error Patent
      In addition to Richter's two-year suspended sentence and five years' supervised probation, the trial court imposed a fine of $1,000 or in default thereof, six months in the parish jail. We note this was an agreed to sentence and not appealable. Further, the trial court resolved any matter of indigency by giving credit for time served.


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Roy Leon ROBERTSON, Appellant
    No. 51,521-KA
    Court of Appeal of Louisiana, Second Circuit.
    August 16, 2017
    LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, Counsel for Appellee
    REBECCA ARMAND EDWARDS, ROSS STEWART OWEN, JASON WAYNE WALTMAN, Assistant District Attorneys
    Before WILLIAMS, PITMAN, and STONE, JJ.
   STONE, J.

The defendant, Roy Leon Robertson, was charged by grand jury indictment with aggravated rape of a person under the age of 12, in violation of La. R.S. 14:42. Following a jury trial, Robertson was found guilty as charged, and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. For the following reasons, we affirm Robertson's conviction. We vacate Robertson's life sentence and sentence him to 20 years without restriction on parole, probation, or suspension of sentence.

FACTS AND PROCEDURAL HISTORY

On November 17, 2015, a grand jury indicted the defendant, Roy Lee Robertson ("Robertson"), for the aggravated rape of his daughter, T.N., occurring between February 12, 1972, and February 12, 1976. Robertson waived arraignment and pled not guilty.

During a jury trial, the state presented testimony from T.N. and other victims whom Robertson molested and raped during their childhood. Robertson did not testify at trial nor did he present any witnesses. After deliberation, the jury unanimously found Robertson guilty as charged. The trial court denied Robertson's motion for post-verdict judgment acquittal, noting that it had listened carefully to the testimony and was satisfied that the evidence was sufficient to prove Robertson was guilty beyond a reasonable doubt of the aggravated rape of T.N. This appeal ensued.

DISCUSSION

Prior to trial, the state filed a notice of intent to use the following evidence of other similar sexual assaults committed by Robertson, pursuant to La. C.E. art. 412.2 :

• Robertson repeatedly raped and molested his juvenile granddaughter, R.S., whose date of birth is XX/XX/XXXX, from the time she was approximately six years old until she was 14 years of age.
• Robertson repeatedly raped and molested his juvenile daughter, D.J., whose date of birth is XX/XX/XXXX, from the time she was approximately six years old until she was 14 years of age.

Robertson contends the evidence, along with T.N.'s testimony, was insufficient to sustain his conviction for aggravated rape of T.N. Robertson argues T.N.'s and D.J.'s testimony lacked credibility because: 1) they did not provide a reasonable explanation for waiting almost 40 years to report the alleged sexual abuse; and, 2) they have mental health issues. When viewed in the light most favorable to the prosecution, this Court finds that the state presented sufficient evidence to prove Robertson committed aggravated rape of T.N.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979) ; State v. Tate, 2001-1658 (La. 05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed. 2d 248 (2004) ; State v. Carter, 42,894 (La. App. 2 Cir. 01/09/08), 974 So.2d 181, writ denied, 2008-0499 (La. 11/14/08), 996 So.2d 1086 ; State v. Crossley , 48,149 (La. App. 2 Cir. 06/26/13), 117 So.3d 585, writ denied, 2013-1798 (La. 02/14/14), 132 So.3d 410. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La. 02/22/06), 922 So.2d 517 ; State v. Dotie, 43,819 (La. App. 2 Cir. 01/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/06/09), 21 So.3d 297 ; State v. Crossley, supra.

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. Wiltcher , 41,981 (La. App. 2 Cir. 05/09/07), 956 So.2d 769 ; State v. Burd , 40,480 (La. App. 2 Cir. 01/27/06), 921 So.2d 219, writ denied , 2006-1083 (La. 11/09/06), 941 So.2d 35. Likewise, the sole testimony of a sexual assault victim is sufficient to support a requisite factual finding. State v. Lewis , 50,546 (La. App. 2 Cir. 05/04/16), 195 So.3d 495, writ denied , 2016-1052 (La. 05/01/17), 219 So.3d 330 ; State v. Demery, 49,732 (La. App. 2 Cir. 05/20/15), 165 So.3d 1175, writ denied, 2015-1072 (La. 10/17/16), 207 So.3d 1067. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant.

State v. Ponsell , 33,543 (La. App. 2 Cir. 08/23/00), 766 So.2d 678, writ denied , 2000-2726 (La. 10/12/01), 799 So.2d 490.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen , 36,180 (La. App. 2 Cir. 09/18/02), 828 So.2d 622, writsdenied , 2002-2595 (La. 03/28/03), 840 So.2d 566, 2002-2997 (La. 06/27/03), 847 So.2d 1255,cert. denied , 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed. 2d 90 (2004). The appellate court neither assesses the credibility of witnesses nor reweighs evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam , 36,118 (La. App. 2 Cir. 08/30/02), 827 So.2d 508, writ denied , 2002-3090 (La. 11/14/03), 858 So.2d 422.

Generally, evidence of other acts of misconduct is not admissible due to the risk that the defendant will be convicted of the present offense on the basis that the unrelated evidence establishes him or her as a "bad person." La. C.E. art. 404(B)(1) ; State v. Jackson , 625 So.2d 146 (La. 1993). This exclusionary rule stems from the "substantial risk of grave prejudice to the defendant" from the introduction of evidence regarding his unrelated criminal acts. State v. Prieur , 277 So.2d 126 (La. 1973). However, statutory and jurisprudential exceptions exist when the "evidence of other acts tends to prove a material issue and has independent relevance other than showing that the defendant is a man of bad character." State v. Silguero , 608 So.2d 627 (La. 1992). In that regard, when a defendant is charged with acts that constitute a sex offense involving a victim who was under the age of 17 at the time of the offense, evidence of his other acts which involve sexually assaultive behavior or acts which indicate his lustful disposition toward children is admissible if the court determines that, pursuant to La. C.E. art. 403, its probative value outweighs its prejudicial effect. La. C.E. art. 412.2 ; See State v. Wright , 11-0141 (La. 12/06/11), 79 So.3d 309 ; State v. Williams , 02-0898, 02-1030 (La. 10/15/02), 830 So.2d 984. In determining whether such evidence will be admitted at trial, La. C.E. art. 403 states, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time."

A trial court's ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. This same standard is applied to rulings on the admission of other crimes evidence and evidence under La. C.E. art. 412.2. State v. Wright , supra ; State v. Bell, 50,092 (La. App. 2 Cir. 09/30/15), 179 So.3d 683, writ denied, 2015-1996 (La. 02/10/17), 215 So.3d 701.

At the time the offenses occurred, La. R.S. 14:42 provided in pertinent part:

Aggravated Rape is a rape committed where the sexual intercourse is deemed to be without the lawful consent of the female because it [is] committed under any one or more of the following circumstances:
* * *
(3) where she is under the age of twelve years. Lack of knowledge of the female's age shall not be a defense.

At trial, T.N. testified that Robertson first sexually abused her when she was about three years old, while her mother was away. She recalled that Robertson took her and her siblings to the bathroom and made them pull their pants down, and get on their hands and knees. He then molested each of them by inserting his Vaseline-covered fingers into their anuses and vaginas. Robertson told the children that this was his "special cleaning." T.N. testified that Robertson subjected her to this "special cleaning" about once a month for multiple years and always when their mother was gone from the home. According to T.N., she and her siblings were afraid to tell anyone because Robertson had told them that he would beat them with switches until they bled.

T.N. testified that Robertson had sexual intercourse with her on two occasions before she turned 12. She recalled that the first time was in April 1973 when she was 9 years old. Robertson had picked her up early from elementary school because she had gotten in trouble. On the ride home, Robertson told T.N. that she would get a spanking, which scared her because Robertson usually spanked them with a switch or a belt. When they arrived at the house, Robertson sent T.N. to her bedroom. Robertson then entered T.N.'s bedroom carrying a switch and told T.N. to take off her pants and put a towel over her face. T.N. testified that she put a towel over her face as instructed and was lying on the bed when she felt Robertson penetrate her vagina with his penis. T.N. said she knew that Robertson was having intercourse with her because her vagina was hurting and she felt his shirt hitting her sides. She had no doubt that Robertson raped her with his penis.

T.N. testified that when Robertson finished, she told him that she knew what he was doing, that it was "what married people do," and that she was going to tell her mother. Robertson responded that if T.N. said anything, her mother would hate her and her siblings and would leave them and then they "would really get it." T.N. further testified that she started bleeding and that her mother attributed the bleeding to her first menstruation. She was diagnosed with a yeast infection and developed urinary and kidney problems that she associated with the sexual intercourse.

T.N. testified that she was raped the second time by Robertson, behind his shop, when she was about 11 or 12 years old. She later clarified the rape occurred a couple of months before Robertson left to go to Alaska in June of 1975. T.N. testified that Robertson had her take off her pants and bend over a sawhorse at which time he proceeded to rape her. T.N. testified that she watched Robertson penetrate her vagina with his penis. She stated she did not run away from Robertson because she believed he would severely beat her if she resisted. She then described some of the severe beatings she had endured from Robertson at other times. T.N. indicated Robertson beat her with a switch after raping her.

T.N. also testified that she had heard Robertson raping and beating her sister, D.J., in his bedroom about a month after T.N. was first raped by Robertson. T.N. believed D.J. was being raped and beaten because it had just happened to her and she heard her sister screaming, the bed springs squeaking, and Robertson slapping D.J. T.N. said she knew it was D.J. with Robertson because her mother was gone and shortly before she heard the screaming, Robertson had come into the bedroom she shared with D.J. and taken D.J. out of the room.

D.J. testified that, not only had Robertson subjected her to many "special cleanings" as a child, but that he also raped her about 8 or 9 times during her childhood and recalled that at least two of those times she was under the age of 12. She also remembered an incident when Robertson made her stand in the shed with her pants down and fondled her vaginal area.

D.J. testified that she was about 10 years old when Robertson first raped her. She stated they were alone in the house because her mother was in the hospital and her siblings were staying the night with their grandparents. D.J. was asleep in her bed when Robertson picked her up, carried her into his room and placed her on his bed. D.J. was lying on her stomach, "scared to death," and pretending to be asleep, when she felt Robertson put his penis into her vagina. When it was over, D.J. left her parents' bedroom and testified, "I was scared, but my innocence was completely lost from that moment on. It was robbed from me."

D.J. testified that on several occasions she threatened to tell about the sexual molestations. She said Robertson responded by threatening to kill her and saying things that destroyed her self-worth and self-esteem. D.J. testified that Robertson beat her with switches when she tried to resist his sexual advances. D.J. indicated that Robertson stopped raping her when she was about 14 years old.

T.N. and D.J. both testified that they suffer from mental illness as a result of Robertson's sexual abuse. T.N. testified that she suffers from severe post-traumatic stress disorder, is mentally ill, and has had a series of failed marital relationships due to the sexual abuse she endured from Robertson. T.N. also testified that Robertson even put her in a mental institution for about a year, after her brother passed away.

T.N. and D.J. also testified that, as adults, they maintained contact with Robertson. They admitted to visiting Robertson and his new wife at his home. D.J. also admitted that she had allowed her son to stay with them for two weeks and her six-year-old daughter to stay with them for a couple of days. When asked why she would visit Robertson, T.N. explained that it was because she was raised to believe in honoring your mother and father and she did not know anything else. Furthermore, T.N. believed that Robertson would not sexually assault anyone else because he apologized to her on several occasions and represented that he had gotten help and would never "do that again." Likewise, D.J. testified that she had allowed her children to stay with Robertson because he had apologized to her and told her that he would not hurt anyone again, and she believed him. She also felt comfortable with her leaving her children because her stepmother, Robertson's wife, assured her nothing would happen. T.N and D.J. both testified that they decided to report the sexual molestation to authorities many years later, after they found out Robertson was molesting their niece, R.S.

R.S., who was 15 years old at the time of trial, testified that Robertson is her grandfather and that she has lived most of her life with Robertson and her grandmother, Robertson's wife, and her aunt, in Montgomery, Louisiana. R.S. testified that Robertson had raped her repeatedly over the years. She described the sexual contact as follows:

Q. Did he put his mouth in your private area?
A. Yes, sir.
Q. Did he make you put your mouth on his?
A. Yes, sir.
Q. Did he physically put his penis inside you?
A. Yes, sir.
Q. And so when you say raped; that's what you mean?
A. Yes, sir.
Q. But that wasn't all he did, correct?
A. No, sir.

According to R.S., Robertson raped her in the house or "pretty much anywhere on the property," and threatened to hit her if she resisted. She testified that when she was about 8 or 9 years old, she realized from things she learned at school that she was being raped by him. She stated the rape usually occurred when her grandmother and aunt were not home. R.S. testified that she kept quiet about the sexual abuse because Robertson told her to "zip it" and throw away the key and that no one would believe her. However, R.S. admitted that she told her best friend, A.S., about the rapes to prevent A.S. from visiting her at home and potentially being molested or raped by Robertson. When R.S. was about 13 years old, her friends reported what was going on to a teacher who subsequently told the school principal.

Robertson did not submit any evidence to contradict any of the testimony. Robertson's counsel attempted to discredit T.N.'s testimony on cross-examination by questioning the fact that she waited almost 40 years to report the sexual abuse and by pointing out that she had visited her father as an adult, even with her children. However, the jury found credible T.N.'s rational explanations for both the delay in reporting the sexual abuse and her visits with Robertson.

Robertson's argument that the conviction could not stand without physical evidence to support the charges is without merit, as is his argument that the state's witnesses lacked credibility. The jury found T.N.'s testimony credible and her testimony alone was sufficient to prove that Robertson committed the crime of aggravated rape. Notwithstanding, the state did not rely on T.N.'s testimony alone. Rather, through the testimony of D.J. and R.S., the state submitted evidence that Robertson had exhibited similar sexually abhorrent acts with other adolescents in his paternal care.

Robertson argues the evidence of "other crimes" is not evidence showing that he raped T.N. However, he does not raise any argument that the trial court erred in allowing the testimony and he did not object to the admissibility of the testimony at trial. A contemporaneous objection is required to preserve an error for appellate review. La. C.E. art. 103(A)(1) ; La. C. Cr. P. art. 841(A).

Moreover, there is no evidence in the record that the trial court abused its discretion in the admission of D.J. and R.S.'s testimonies. Rather, the record reflects the state timely filed a 412.2 notice which adequately informed Robertson of the nature and factual content of D.J. and R.S.'s claims consisting of other sexual assaultive behavior or acts. D.J. and R.S.'s testimonies at trial conform substantially to the details of the offenses as described by the language in the notification. See State v. Baker , 452 So.2d 737 (La. 1984). Furthermore, jurisprudence shows that evidence of other sexual assaults is highly relevant to prove propensity to commit like crimes. See e.g., State v. Wright, supra ; United States v. Enjady , 134 F.3d 1427, 1430-1431 (10th Cir. 1998), cert. denied , 525 U.S. 887, 119 S.Ct. 202, 142 L.Ed. 2d 165 (1998) ( Article 412.2 closely follows Fed. R. Evid. 413 ).

We find the evidence of other sexually assaultive behavior was highly relevant and probative to show that Robertson had a propensity for sexual activity with adolescents under his paternal care, and this evidence could be considered by the jury as proof that Robertson's behavior with T.N. was in conformity with this predisposition. Furthermore, like T.N., D.J. provided rational explanations for her delay in reporting the sexual assaults and for allowing a rational explanation for allowing her children to stay with him and his new wife, years after the assaults. Consequently, a review of the record as a whole and the egregiousness of its facts, demonstrate the jury's determination was reasonable and that a rational trier of fact could have found the evidence was sufficient under the Jackson standard to support Robertson's conviction.

ERROR PATENT

Our error patent review of the record revealed the trial court failed to sentence Robertson in accordance with the penalty range in effect at the time he committed the rapes. The law in effect at the time of the commission of the offense is determinative of the penalty that the Robertson must suffer. State v. Sugasti , 01-3407 (La. 06/21/02), 820 So.2d 518, citing State v. Wright, supra ; State v. Modisette , 50,846 (La. App. 2 Cir. 09/28/16), 207 So.3d 1108.

The penalty in effect for aggravated rape at the time Robertson committed the crimes in April of 1973 and June of 1975 was death. See La. R.S. 14:42 (1950). In 1976, Louisiana's mandatory death sentence for aggravated rape was struck down as unconstitutional by the United States Supreme Court in Selman v. Louisiana , 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed. 2d 1212 (1976). The Louisiana Supreme Court responded by requiring that aggravated rape convicts previously sentenced to death be resentenced to the most serious penalty for the next lesser included offense; e.g. attempted aggravated rape. State v. Valentine , 364 So.2d 595, 596-97 (La. 1978) ; State v. Bryant , 347 So.2d 227, 228 (La. 1977) ; State v. Sledge , 340 So.2d 205 (La. 1976) ; State v. Craig, 340 So.2d 191 (La. 1976) ; State v.Lee , 340 So.2d 180 (La. 1976). Consequently, the sentence to be imposed at the time of both crimes in this case is the mandatory maximum for attempted aggravated rape, which is 20 years at hard labor without any restriction on parole, probation, or suspension of sentence. See La. R.S. 14:27, Act. No. 471; Craig, supra at 192.

Considering the repulsiveness of Robertson's crimes, we must note that, effective September 12, 1975, La. R.S. 14:27(D)(1) was amended to change the mandatory maximum for attempted aggravated rape from 20 years to 50 years at hard labor without any restriction on parole, probation, or suspension of sentence. Therefore, if there had been evidence that either of the rapes took place on or after September 12, 1975, the appropriate penalty would have been 50 years at hard labor without any restriction on parole, probation, or suspension of sentence. However, since there is no evidence that the rapes took place on or after September 12, 1975, the trial court was constrained to sentencing Robertson to the mandatory 20 years at hard labor.

Pursuant to the authority set out in La. C. Cr. P. art. 882, this Court vacates the trial court's sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence and resentences Robertson to 20 years at hard labor without any restriction on parole, probation, or suspension of sentence. State v. Williams , 00-1725 (La. 11/28/01), 800 So.2d 790. The trial court minutes should be amended to reflect this adjustment of Robertson's sentence.

CONCLUSION

For the foregoing reasons, Robertson's conviction is affirmed. Robertson's sentence is vacated and he is resentenced to 20 years at hard labor with no restriction on parole, probation, or suspension of sentence. As amended, his sentence is affirmed.

AMENDED, AND AS AMENDED, AFFIRMED.

      In accordance with La. R.S. 46:1844(W), the victims will be identified by their initials only.

      As of August 1, 2015, the crime of aggravated rape was changed to first degree rape. See La. 14:42.

      While not raised by Robertson, La. C.E. art. 412.2 does not require a hearing prior to the admission of evidence under the article. See State v. Williams , supra at 987.

      T.N. turned 11 years old on February 12, 1975.

      The state also called A.S., who was 16 years old during trial. A.S. testified that she has been friends with R.S. since the fourth grade and that when they were in sixth or seventh grade, R.S. told her that her grandfather raped her.

      This mandate governed sentencing until the new aggravated rape statute took effect on September 9, 1977, which replaced the death penalty for aggravated rape with a life sentence at hard labor, without benefit of parole, probation, or suspension of sentence. La. Acts 1977, No. 343.

      At the time Robertson committed the April 1973 rape, pursuant to La. C. Cr. P. art. 814 (1967), the jury was authorized to return a verdict of "guilty without capital punishment," which resulted in a sentence of life imprisonment. However, Article 814 was subsequently amended to remove jury discretion to impose any penalty but death for a capital offense, including aggravated rape. Statutory amendments to responsive verdicts are procedural, and the list of responsive verdicts in effect at the time of trial, not the time of offense, should be used. State v. Martin , 351 So.2d (La. 1977); State v. Garner , 39,731 (La. App. 2 Cir. 11/17/05), 913 So.2d 874, writ denied , 05-2567 (La. 05/26/06), 930 So.2d 19. See e.g. , State v. Fraise , 350 So.2d 154 (La. 1977), (defendant, who was convicted in 1975 for an aggravated rape that occurred in 1971, was re-sentenced from death to "the most serious penalty for a lesser-included offense at the time of the commission of the crime," attempted aggravated rape).


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Christopher Lee GRIFFIN, Appellant
    No. 51,506-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 1, 2017
    LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan, Counsel for Appellant
    J. SCHUYLER MARVIN, District Attorney, JOHN M. LAWRENCE, SANTI A. PARKS, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, PITMAN, and STONE, JJ.
   WILLIAMS, J.

The defendant, Christopher Lee Griffin, was charged by bill of information with one count of aggravated incest, a violation of La. R.S. 14:78.1. The defendant pled guilty as charged and was sentenced to serve 20 years at hard labor with a $25,000.00 fine. Defendant was subsequently adjudicated a second-felony offender and sentenced to serve 40 years at hard labor. On remand after an appeal, the district court resentenced defendant to serve a term of 40 years at hard labor, with the sentence to be served without the benefit of parole, probation or suspension of sentence. Defendant's motion to reconsider sentence was denied. Defendant appeals his sentence as excessive. For the following reasons, we amend the sentence to delete the denial of parole eligibility and affirm as amended. This matter is remanded to the trial court with instructions to provide the defendant with written notice of the sex offender registration requirements.

FACTS

The record shows that the defendant was charged with one count of aggravated incest of his 14-year-old daughter for acts occurring in June 2012. Defendant pled guilty as charged. He was adjudicated a second-felony offender and sentenced to serve 40 years at hard labor. On appeal, defendant's conviction and adjudication as a second-felony offender were affirmed. However, this court remanded for resentencing, finding that the sentencing judge should have recused himself because he had worked on the case as an assistant district attorney. State v. Griffin , 50,265 (La. App. 2 Cir. 11/18/15), 183 So.3d 585.

On remand, another judge of the district court imposed a sentence of 40 years at hard labor, to be served without the benefit of parole, probation or suspension of sentence, and denied defendant's motion to reconsider sentence. This appeal followed.

DISCUSSION

The defendant contends the trial court erred in imposing an excessive sentence. Defendant urges that the record does not support the sentence imposed.

In reviewing a claim of excessive sentence, the appellate court first considers whether the record shows the trial court took cognizance of the sentencing guidelines in La. C.Cr.P. art. 894.1. State v. Jackson , 51,011 (La. App. 2 Cir. 1/11/17), 211 So.3d 639 ; State v. Taylor , 49,467 (La. App. 2 Cir. 1/14/15), 161 So.3d 963. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects adequate consideration of those guidelines. Id.

The reviewing court next determines whether the sentence is constitutionally excessive by considering whether the sentence is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. La. Const. art. I, § 20 ; State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Lindsey , 50,324 (La. App. 2 Cir. 2/24/16), 189 So.3d 1104. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. Id.

The trial court has wide discretion in the imposition of sentences within the statutory limits and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Washington , 50,337 (La. App. 2 Cir. 1/13/16), 185 So.3d 852. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Jackson , 48,534 (La. App. 2 Cir. 1/15/14), 130 So.3d 993.

At the time of the offense in 2012, the penalty for conviction of "aggravated incest" was imprisonment, with or without hard labor, for a term not less than 5 years, nor more than 20 years or a fine of not more than $50,000.00, or both. La. R.S. 14:78.1. Under La. R.S. 15:529.1, the penalty for a second-felony offender is imprisonment for a determinate term of not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

On remand, the district court sentenced defendant to a term of 40 years at hard labor, the maximum allowable sentence under the habitual offender statute for a second felony offense. Prior to imposing sentence, the trial court stated that it had reviewed the presentence investigation (PSI) report and considered the nature of the crime and each of the factors set forth in Article 894.1. The trial court specifically cited defendant's lengthy criminal history "dating back to ... young adulthood" and noted that defendant actually has three felony convictions. The trial court stated that the nature of this crime is "kind of shocking" and that the defendant's behavior exhibited deliberate cruelty to the victim.

In his brief, defendant asserts that the trial court did not consider his letter accepting responsibility and expressing remorse or his substance abuse problem generated by physical and sexual abuse he suffered at a young age. However, the trial court considered the PSI report, which included defendant's statement that he had been sexually and physically abused as a child. As stated above, the trial court is not required to expressly list every aggravating and mitigating circumstance, and in considering defendant's history of perpetrating sexual crimes on children, the trial court reasonably found that imposing anything less than the maximum sentence would deprecate the seriousness of the offense committed.

In addition, a review of defendant's criminal history contained in the prior record on appeal and the PSI report reveals that his criminal behavior has continued despite being afforded numerous opportunities to rehabilitate himself. Defendant has shown that he is unable to curb his criminal behaviors even when faced with further incarceration, as indicated by his prior parole violation and the sex offense charge pending at the time of his conviction in this case.

The defendant's contention that his sentence is constitutionally excessive is not supported by the record. The sentence imposed was within the trial court's discretion and is appropriate under the facts and circumstances of this case. Based upon the defendant's lengthy criminal history, the seriousness of the offense and his previous failures at rehabilitation, the sentence does not shock the sense of justice, nor is it disproportionate to the severity of the offense. Thus, we cannot say the 40-year sentence imposed is constitutionally excessive. The assignment of error lacks merit.

Defendant contends the trial court erred in ordering that his sentence be served without parole. The statute of conviction provided a penalty of 5 to 20 years at hard labor. La. R.S. 14:78.1. The habitual offender statute provides that the sentence be served without the benefit of probation or suspension of sentence, but does not prohibit parole. La. R.S. 15:529.1(G). The state agrees in its brief that the sentence should not deny parole eligibility. Based upon the applicable law, we shall amend the sentence imposed to delete the denial of parole eligibility.

Defendant also contends the trial court erred in failing to properly advise him of the time limits for seeking post-conviction relief. An application for post-conviction relief must be filed within two years from the date the judgment of conviction and sentence becomes final. La. C.Cr.P. art. 930.8.

As shown by state exhibit 4 of the prior record on appeal, when defendant was originally sentenced for aggravated incest on June 11, 2013, the trial court correctly advised him of the time limits within which to apply for post-conviction relief as required by Article 930.8. Although defendant was resentenced without again being advised of this time limitation, he has been provided with notice that the two-year time period for seeking post-conviction relief begins on the date his conviction and sentence become final. Thus, the assignment of error lacks merit.

Error Patent

In reviewing the record for error patent, we note that the trial court failed to inform defendant of the sex offender notification and registration requirements, as mandated under La. R.S. 15:543. The defendant's conviction of aggravated incest, a "sex offense" under La. R.S. 15:541, requires that defendant be subjected to the sex offender notification and registration requirements. La. R.S. 15:542. Pursuant to Section 543, the trial court is required, using the form contained in La. R.S. 15:543.1, to notify a defendant convicted of a sex offense in writing of the registration and notification requirements. The statute further requires that an entry be made in the court minutes stating that the written notification was provided.

Here, the record does not indicate that the defendant was provided with either written or oral notification of the sex offender registration requirements. As a result, remand is required with instructions to the trial court to provide the appropriate written notice to the defendant of the sex offender registration requirements and to make an entry in the court minutes stating that such notice was provided. See State v. Scott , 50,920 (La. App. 2 Cir. 11/16/16), 209 So.3d 248 ; State v. Preston , 47,273 (La. App. 2 Cir. 8/8/12), 103 So.3d 525.

CONCLUSION

For the foregoing reasons, the defendant's sentence is hereby amended to delete the denial of parole eligibility and affirmed as amended. This matter is remanded for the purpose of providing written notice to the defendant of the sex offender registration requirements.

SENTENCE AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.


author: COX, J.

text:
    SUCCESSION OF Ulysses ROGERS and Lizzie Mae Crane Rogers
    No. 51,267-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 27, 2017.
    SENTELL LAW FIRM, L.L.C., By: Charles S. Sentell, Jr., Minden, Counsel for Appellant
    STEWART & STEWART, By: Jonathan M. Stewart, Counsel for Appellees
    Before BROWN, WILLIAMS, STONE, COX, and BLEICH (Pro Tempore ), JJ.
   COX, J.

Appellant, Bobby Ray Rogers, appeals a final judgment of the trial court finding that the last will and testaments of the decedents, Ulysses Rogers ("Mr. Rogers") and Lizzie Mae Crane Rogers ("Mrs. Rogers"), were in valid form and should be filed, probated, and executed in accordance with the law. For the following reasons, we respectfully reverse the ruling of the trial court.

FACTS

Mr. Rogers died on August 18, 2011, and his wife, Mrs. Rogers, died on September 7, 2015. They were survived by ten children, including the appellant, Bobby Ray Rogers ("Appellant"). Mr. and Mrs. Rogers each left a typed purported will, both signed by a notary and two witnesses, and dated December 10, 1992.

In his will, Mr. Rogers bequeathed to his wife a usufruct for life over all of his property. He bequeathed the remainder of his property to his children in equal proportions, subject to conditions. Mr. Rogers stated that the portion bequeathed to Appellant shall be subject to a usufruct for life to Joycetta Rogers Bradford and Barbaraetta Rogers Dunn, two of Appellant's sisters. The will states that the usufruct "shall be joint and successive, for the life of whoever of them shall li[v]e longest." Next, the bequest to all of his children is subject to the following:

None of my children or their descendants shall sell or lease, with the exception of sale of mineral rights or mineral leases, any of the immovable property or undivided interest in same acquired from me hereunder without first offering the same to my other children on the same terms and conditions as may be offered by a bonafide third purchaser.

Mr. Rogers' will declared that any sale or lease made in violation of this provision shall be null and void. He also stated that the provision "shall be effective for the maximum period of time allowed by Louisiana law or ten (10) years after my death, whichever period is lesser." Mrs. Rogers' will contains the same language and conditions.

Mr. and Mrs. Rogers' wills also contain the same attestation clause, with the exception of their respective names. The attestation clause reads as follows:

In witness whereof, I have signed this, my Last Will and Testament, in the presence of the witnesses hereinafter named and undersigned.
/s/ Ulysses Rogers
Signed on each page and declared by Ulysses Rogers, executor above named, in our presence to be his Last Will and Testament, and in the presence of the testator and each other we have hereunto subscribed our names on this 10th day of December, 1992.
/s/ Ulysses Rogers, Glenda Madden (witness), and Sheila R. Delk (witness)
BEFORE ME, the undersigned authority, personally came and appeared ULYSSES ROGERS, who declared to me that the foregoing instrument is his Last Will and Testament. SWORN TO AND SUBSCRIBED before me on this 10th day of December, 1992.
/s/ Jonathan M. Stewart

On January 12, 2016, Appellant filed a petition requesting the trial court to order Jonathan Stewart, the attorney for his nine brothers and sisters ("Appellees"), to produce and file the original wills of his parents. Appellant claimed that both wills were null and void due to the invalid attestation clause and the double disposition of the usufruct.

On January 13, 2016, the trial court ordered Jonathan Stewart to produce and file the original wills so that the court could determine their validity.

On March 28, 2016, Appellant filed a motion contesting the validity of the wills. After considering the pleadings filed, the original wills, and the memoranda and arguments of counsel, the trial court found both wills to be valid and executed according to law. On June 29, 2016, Appellant filed a motion for devolutive appeal with this Court setting forth the following assignments of error: (1) the trial court erred in finding the attestation clauses in the statutory wills substantially complied with La. R.S. 9:2442 ; (2) the trial court erred in refusing to find an impermissible double disposition of a usufruct; (3) the trial court erred in failing to find that the double usufructs constituted a prohibited substitution; and, (4) the trial court erred in failing to strike the clause prohibiting free alienation by the heirs of their inheritance.

LAW

In a will contest, an appellate court must accord great weight to the factual findings of the trial court and cannot disturb such findings in the absence of manifest error. Matter of Succession of Biscamp , 2016-673 (La. App. 3 Cir. 2/1/17), 211 So.3d 472. "However, the trial court's interpretation and application of legal principles and statutory provisions are legal findings subject to de novo review." Id.

A disposition mortis causa may be made only in the form of a testament authorized by law. La. C. C. art. 1570. The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null. La. C. C. art. 1573. "The purpose of prescribing formalities for the execution of wills is to guard against mistake, imposition, undue influence, fraud or deception, to afford a means of determining the will's authenticity, and to prevent substitution of some other writing in its place." In re Succession of Hebert , 2012-281 (La. App. 3 Cir. 10/3/12), 101 So.3d 131.

A notarial testament is one that is executed in accordance with the formalities of Articles 1577 through 1580.1 of the Louisiana Civil Code. La. C.C. art. 1576. At the time both wills were executed, La. R.S. 9:2442 was controlling, but has since been repealed and reproduced in La. C.C. art. 1577. La. R.S. 9:2442 stated, in pertinent part, the following:

The statutory will shall be prepared in writing and shall be dated and executed in the following manner:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his last will and shall sign his name at the end of the will and on each other separate page of the instrument.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "The testator has signed this will at the end and on each other separate page, and has declared or signified in our presence that it is his last will and testament, and in the presence of the testator and each other we have hereunto subscribed our names this _____ day of _______, 19_____."

The word "shall" is mandatory. La. R.S. 1:3.

There is a presumption in favor of the validity of a testament, but proof of the nonobservance of formalities must be exceptionally compelling to rebut that presumption. In re Succession of Holbrook , 2013-1181 (La. 1/28/14), 144 So.3d 845. "Louisiana courts have held statutory and notarial wills invalid when they contain material deviations from form requirements, even in the absence of any indication of fraud." Successions of Toney , 2016-1534 (La. 5/3/17), 226 So.3d 397, 2017 WL 1709827, reh'g denied (June 29, 2017).

Regarding the attestation clause requirement, the Louisiana Supreme Court has stated:

There must be an attestation clause, or clause of declaration. However, its form is not sacrosanct: It may follow the form suggested in the statute or use a form substantially similar thereto. The attestation clause is designed to evince that the facts and circumstances of the confection and execution of the instrument conform to the statutory requirements. In construing the attestation clause of this type of will, this court has been most liberal in its determination of whether the clause complies in form and whether it evidences the requisites to supply validity to the instrument.

Succession of Morgan , 257 La. 380, 242 So.2d 551 (1970). There are three elements required for a valid attestation clause: the notary and witnesses are required to declare (1) the testator signed the will at its end and on each separate page, (2) the testator declared in the presence of the notary and witnesses that the instrument was his will, and (3) in the presence of the testator and each other, the notary and witnesses signed their names on a specified date. Succession of Brown , 458 So.2d 140 (La. App. 1 Cir. 1984).

DISCUSSION

Based on the Louisiana Supreme Court's recent decision in Successions of Toney , supra , we find both wills to be invalid. Although Appellant sets forth four assignments of error, we will only address the first assignment of error since the absolute nullity of each will renders the remaining assignments moot.

We find that the clauses contained in each will, even considered in aggregate, are not substantially similar to the sample attestation clause contained in La. R.S. 9:2442. Thus, we respectfully reverse the ruling of the trial court.

The first element of a valid attestation clause requires the notary and witnesses to declare that the testator signed the will at its end and on each separate page. Although the last page of each will states it was "Signed on each page and declared... in our presence [the two witnesses] to be his/her Last Will and Testament," it does not declare that the notary viewed the will being signed at the end and on each separate page.

The second element requires the testator to declare in the presence of the notary and two witnesses that the instrument was his/her will. This requirement appears to be met since the two witnesses and the notary declared that each party "personally came and appeared... who declared to me that the foregoing instrument is [his/her] Last Will and Testament."

The final element of La. R.S. 9:2442 requires the notary and two witnesses to sign their names on a specified date in the presence of the testator and each other. Although the witnesses declared "in the presence of the [testator/testatrix] and each other we have hereunto subscribed our names," the witnesses do not mention signing the will in the presence of the notary. Likewise, the notary does not mention signing the will in the presence of the witnesses. Most significant, in Mrs. Rogers' will, is the fact that the witnesses signed on December 10, 1992, but it appears the notary originally signed on December 18, 1992, and then changed that number to a 10 to coincide with the date the witnesses originally signed. This change shows that the will may not have been signed in the presence of both the witnesses and notary, but rather was done on two separate occasions.

As stated in Successions of Toney, supra , "an attestation clause is defective when the clause does not indicate the notary and witnesses signed in the presence of the testator and each other." The wills' attestation clauses state that the testator/testatrix signed the will in the presence of the witnesses and declared the instrument to be his/her last will and testament. They also state that the testator/testatrix signed the will in the presence of the notary and declared the instrument to be his/her last will and testament. However, neither clause states that the testator/testatrix signed the will in the presence of both the notary and two witnesses.

Furthermore, the "sworn to and subscribed" portion appears as a general notarization of the will, rather than an attestation of the notary because the clause does not clearly state that the necessary signatures were signed in the presence of all persons, including the notary; it merely states the testator/testatrix declared the instrument to be his/her will. Additionally, the notary portion of the attestation clause does not declare that the testator/testatrix signed the will at the end and on each separate page, whereas the witnesses' portion does.

Louisiana courts "have held statutory and notarial wills invalid when they contain material deviations from form requirements, even in the absence of any indication of fraud." Successions of Toney, supra . Although there does not appear to be any indication of fraud, we find the deviation from the required testamentary form in this case is significant and material. As stated in In re Hendricks , 2008-1914 (La. App. 1 Cir. 9/23/09), 28 So.3d 1057, writ not cons. , 2010-0480 (La. 3/26/10), 29 So.3d 1256 :

The fact that there is no fraud, or even a suggestion or intimation of it, will not justify the courts in departing from the codal requirements, even to bring about justice in the particular instance, since any material relaxation of the codal rule will open up a fruitful field for fraud, substitution, and imposition.

We are aware that the trial court did not have the benefit of the Louisiana Supreme Court's opinion in Successions of Toney, supra , at the time it rendered this judgment. We value its interpretation of the law, but must follow the Louisiana Supreme Court's opinion and reverse the trial court's decision. The purpose of the requirements set forth in La. R.S. 9:2442 is to guard against fraud. When there is no proof within the four corners of the instrument that both the witnesses and notary were present, along with the testator/testatrix, during the declaration and signing of the wills, it creates room for fraud. All parties-the witnesses, notary, and testator/testatrix-are required to be present during the declaration and signing of the will. It was not the intent of the Legislature to have the testator/testatrix declare and sign the will in the presence of the witnesses and then have it notarized on a separate occasion, which appears to be the situation in this case. Although the testator/testatrix did declare the instrument to be his/her last will and testament to the notary, there is no indication that the witnesses were present during this time. Additionally, the notary did not declare that the testator/testatrix signed the will at the end and on each other separate page. Again, the noticeable date change by the notary in Mrs. Rogers' will is of concern.

Nowhere on the final page of the wills is it indicated that the notary and witnesses signed in the presence of the testator/testatrix and each other. Therefore, we find that the attestation clauses in Mr. and Mrs. Rogers' wills do not substantially comply with La. R.S. 9:2442. Because there was a material deviation from the codal requirements, we declare both wills to be invalid.

CONCLUSION

Based on the foregoing reasons, we respectfully reverse the ruling of the trial court and find the wills of Mr. and Mrs. Rogers to be invalid. All costs of this proceeding are assessed to Appellees.

REVERSED.

BLEICH, J. (Pro Tempore ), concurs with written reasons.

STONE, J., concurs with the majority for the reasons assigned by J. Bleich.

WILLIAMS, J., dissents with written reasons.

BLEICH (Pro Tempore ), J., concurring.

Erosion shall occur in precisely adopted law if we were to uphold the validity of the documents proffered in this case as "wills." Practitioners of the law, and more importantly the public, will be misled into thinking that exceptions to the rule of law are permissible, are the norm, and will be overlooked. Thereafter, the rule of law, which provides stability and certainty, will disintegrate into meaningless, suggestive words rather than certain, reliable, clearly written law. Concurring in the result of the majority opinion, these observations are added.

Notwithstanding that the consideration in this case involves examination of a former statute, now replaced, the dangers of failure to precisely comply with the provisions of the new codal article remain the same. Consideration of formality in the analysis of this case does not stem from rudimentary or baseless routine. This case is one governed by mandatory edicts set in place for the specific reason of allowing members of the public to execute a document of finality with the peace of mind to which they are entitled. The statutory language contains affirmative, unambiguous duties and is not simply a recitation of bland, parenthetical or optional suggestions. The required formality of a meaningful, effective attestation clause has significant substantive purposes. The mandatory duty of the notary public in this setting is related to a major evidentiary consideration, as proper compliance with the law is intended to confect a "self-proving" document. Testimony by those who were present cannot be adduced, either orally or in writing, to prove that a fatally defective document has now been "resurrected." The testator is classically "unavailable." The other participants may also be deceased, absent, or possessed of fading memory or bias. Therefore, our legislature chose specific mandatory requirements for the creations of a valid will.

Without strict compliance with the requirements for will preparation, including insertion of a valid attestation clause, unnecessary, protracted, and widespread litigation would be our norm. In will preparation, including a valid attestation clause, the declaration of a notary public is far more momentous than just a "simple notarization" of only one signature. The notary public is affirming, while assuming the role of a witness to the acts of others, that he saw the testator and witnesses perform their required functions. The notary public, with an arguably more important role than the witnesses to a will, is called upon by law to state that he/she saw three other people sign the most formal of documents. This might be referenced as a "required four." Four persons-the testator, two witnesses, and the notary public-must assemble together, sign as required, and observe the actions of the others.

It is meaningless to speculate what could have occurred outside of the presence of the notary public. That consideration is rendered moot with the examination of a proper attestation clause. Thus, formalities require there be no doubt of compliance with the statutory attestation clause for the creation of a valid last will and testament. Under the facts of this case, the only necessary considerations are the examination of the proffered documents in comparison to the clearly written statute. In the instant case, unfortunately, the notary public, as confirmed by the language of the subject documents, did not cause those documents to be properly and effectively signed.

As just one example of a defect in the subject documents, here there is no statement of the notary public that the alleged witnesses signed the document. While there are witness signatures ostensibly present, one cannot know with required certainty who placed those signatures on the subject documents. No internal clarity exists confirming that either Glenda Madden or Shelia R. Delk, the purported witnesses, are the persons whose signatures appear on the documents. The reason for this conclusion is most glaring: there is no confirmation of the existence of these people or their signatures due to the missing confirmation of such from the notary public.

Another defect concerns the placement of the testator's signature. The statute provides that the "testator ... shall sign his name ... at the end of the will and on each other separate page." However, here, the fact that the testator signed at the end of the will comes only from the notary public, not the witnesses; and, while the witnesses confirm each page was signed, the notary public does not.

The most troubling defect is the disregard of the statutory requirement of attesting to "presence." The statute requires that "[i]n the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar." Here the testator's attestation clause states he signed in the presence of the witnesses; the witnesses' attestation clause states that the testator signed in their presence, and they signed in the presence of the testator; and, notary public's attestation clause states the testator subscribed the document before him. Nowhere in the subject documents does a statement appear that could be considered substantially similar to that which is required by law.

There exists a jurisprudential yearning to maintain the validity of wills. This presumption of validity is well established, consistent and faithfully followed. See Successions of Toney , 2016-1534 (La. 05/03/17), 226 So.3d 397, 2017 WL 1709827, reh'g denied (La. 06/29/17); Succession of Holbrook , 2013-1181 (La. 1/28/14), 144 So.3d 845 ; Bernard v. Francez , 166 La. 487, 117 So. 565 (La. 1928) ; Succession of Dawson , 51,005 (La. App. 2 Cir. 11/16/16), 210 So.3d 421, 424. Here, there only theoretically available procedural option for this court to have implemented to ascertain if the subject documents could be "revived" as valid wills, might have been to remand the case to the trial court to determine if the "required four" did actually all properly sign the appropriate language in the presence of one another. Cf. In re Succession of Sampognaro , 38,112 (La. App. 2 Cir. 1/28/04), 865 So.2d 307 (distinguishable because, here, the subject documents lack valid attestation clauses). The futility and impropriety of examining the subject documents outside the "four corners" to find a valid attestation clause, even under former procedural standards, is rejected in Succession of English , 508 So.2d 631 (La. App. 2 Cir. 1987). In English at 632,, the court, with compelling clarity, emphasized the distinction between the requirement of a correctly confected attestation clause and an attempt to revive a defective document by probate affidavit:

There must be an attestation clause, or clause of declaration, but its form is not sacrosanct. The attestation clause is designed to evidence that the facts and circumstances of the confection and execution of the instrument conform to the statutory requirements. Where there is no formal attestation clause the dispositive provisions of the testament will be scrutinized in order to ascertain whether the instrument as a whole complies with the statutory requirements. The attestation clause is not self-proving and witnesses by affidavit or in person must be produced in accordance with La. C.C.P. art. 2887. Succession of Porche , 288 So.2d 27 (La. 1973). The court in Porche supra , reasoned "the purpose of the attestation clause is primarily to evidence at the time the will was executed, that the statutory formalities ... had been satisfied. The affidavit used to probate the will cannot "cure" the total lack of an attestation clause . Such an interpretation would render meaningless the mandatory requirements of the statute and do violence to the jurisprudentially recognized purpose of the attestation clause. The purpose of the clause is to provide evidence that the mandatory formalities have been complied with and La. C.C.P. art. 2887 is a source of proof that the testator signed what he formally indicated to be his testament. To hold the probate affidavit can supply a complete lack of an attestation clause ... or to substantially comply with the statute, would be to judicially rewrite the stature and carve out an exception with its language does not support. (Emphasis supplied; some internal citations omitted).

As stated in English , to "recover" substantial compliance in the instant case would be akin to this court's creating a legislative amendment. This court's potential creation of a legislative exception is contrary to public policy.

Silence, or absence of words, can sometimes be quite loud and deafening. Missing language in the subject documents indicates patent deficiencies. The absence of the "attestation clause" in the subject documents could easily allow the court to logically conclude that the notary public was actually not present at the signing. Without clearly stating the notary public was "present," via the attestation clause, could lead to the inference that the notary public was indeed absent. In the subject documents, the notary public does not state that the testator signed each page. The only way that this court can be assured of such signing on each page by the testator is by inclusion of a proper attestation clause.

The verbiage used by the notary public, not containing any reference to the witnesses, could lead to the inquiry that the witnesses may not have actually seen the testator sign the documents. Stated differently, it could be inferred from the document itself that the notary public is stating that the documents were not witnessed at all. They typewritten language of the notary public states: "declared to me that the foregoing instrument is his last will and testament." It does not include the words "that the testator signed each page in the presence of the witnesses."

Further, the witnesses' purported "attestation clause" does not say "the entire instrument was 'subscribed before' the notary." The words "each other" may be construed to mean that only the testator signed-again, without the notary public present. It can only be known, with minimally mandated certainty, that the "required four" were present together and properly signing the document, with the use of the required attestation clause.

Summarizing the defective language, this court does not and cannot know from the pages of the documents whether: the signatures of the witnesses are genuine; the witnesses saw the testator sign each page; the testator saw the signatures of the witnesses; the notary public saw the witnesses sign; or, the witnesses saw the notary public sign. The absence of any one of these required statements would be a problem. In aggregation, these errors create a fatally flawed document, incapable of resurrection, which cannot be decreed a valid will.

Louisiana R.S. 9:2442 does not create formality just for its sake. For the subject documents to be validly declared wills, there must be internal clarity of compliance with the pertinent statute. It must appear within the respective document , and no other place , that the testator, the witnesses, and the Notary Public-the "required four"-were assembled together, and properly executed the documents together , at the same time, and in the presence of each other. The lack of mandatory language within the ineffectual "attestation clauses" of the subject documents evidences these four persons were not together as mandated.

The purported "will" are facially defective. Multiple reasons for this conclusion lead to the inescapable conclusion that the trial court's judgment is required to be reversed.

WILLIAMS, J., dissents.

I respectfully dissent. The record and the applicable law demonstrate that the attestation clause of each will substantially complies with the statute.

For a statutory will to be valid as to form (1) the testator must declare in the presence of a notary and two witnesses that the instrument is his testament, (2) the testator must sign his name at the end of the testament and on each separate page, and (3) the notary and two witnesses must sign a declaration in the presence of each other and the testator attesting that the formalities of La. R.S. 9:2442 (currently La. C.C. art. 1577 ) have been followed. Succession of Smith , 49,118 (La. App. 2 Cir. 8/13/14), 146 So.3d 917.

Although a valid statutory will must have an attestation clause, its form is not sacrosanct. The attestation clause may use the form suggested in the statute, or use language substantially similar thereto. Courts liberally construe and apply the provisions of Section 2442, maintaining the validity of the will if at all possible, as long as the will is in substantial compliance with the statute. Succession of Holbrook , 2013-1181 (La. 1/28/14), 144 So.3d 845 ; Succession of Guezuraga , 512 So.2d 366 (La. 1987). Section 2442 provided that in the presence of the testator and each other, the notary and witnesses shall sign the following, or a substantially similar, declaration: "The testator has signed this will at the end and on each other separate page and has declared or signified in our presence that it is his last will and testament, and in the presence of the testator and each other we have hereunto subscribed our names" on a certain date.

Here, the attestation clause of each will states: "Signed on each page and declared by [the testator] in our presence to be his Last Will and Testament, and in the presence of the testator and each other we have hereunto subscribed our names" on December 10, 1992. The signatures of the witnesses follow this declaration. The notary's signature follows additional language stating that the testator personally appeared and declared the instrument was his will.

The majority has determined that the attestation clauses fail to state that the witnesses and notary saw the testator sign the will while in each other's presence. However, in reading the attestation language as a whole, the clause declares that the testator signed each page in the presence of the witnesses and that the entire instrument was "subscribed before" the notary, indicating that the testator, witnesses and notary all signed while together on December 10, 1992. Additionally, the record does not support the majority's accusation that the notary actually signed Mrs. Rogers' will on December 18th and then backdated the instrument.

The situation in this case can be distinguished from that in the recent supreme court case of Successions of Toney , 2016-1534 (La. 5/3/17), 226 So.3d 397, 2017 WL 1709827. Thus, contrary to the majority's assertion, Toney does not require reversal in this case. In Toney , the court found that the will form was invalid because the testator initialed the other pages of the will and the attestation language did not show that the testator declared the instrument was his will before the notary. Here, in contrast, the testator signed each page of the will and the attestation clause specifically states that the testator declared that the instrument was his will before the notary.

Consequently, the attestation clause at issue confirms that the testator declared that the instrument was his will and signed in the presence of the witnesses and notary on the stated date. Although the attestation clause is not identical to the statutory declaration that the testator signed the will "at the end," the instrument itself demonstrates that the testator signed at the end and the failure of the clause to state this obvious fact does not support a finding that the will is invalid. See Succession of Dawson , 51,005 (La. App. 2 Cir. 11/16/16), 210 So.3d 421. Further, Section 2442 required only that the language of the declaration be "substantially similar" to the language expressed in the statute. Based upon the applicable law, I conclude that the language of the attestation clause in each will substantially complies with the requirements of Section 2442.

Therefore, I would affirm the judgment finding that the wills are valid and address the remaining issues raised on appeal that were pretermitted by the majority opinion.

      For purposes of this opinion, we will refer to Mr. Rogers' will.

      Louisiana C.C. art. 1577, the replacement to La. R.S. 9:2442, reads as follows:
      The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
      (1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument in his testament and shall sign his name at the end of the testament and on each other separate page.
      (2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ___ day of ______, ___." (Emphasis added).
      The primary difference between the previous and current law is that the words "notarial testament" are substituted for "statutory will" or "will."

      In La. R.S. 9:2442, the word "shall" appears five times; the word "presence" appears four times. The word "and, mandatorily significant, appears twelve times. The only time the disjunctive "or" is used is to separate "declared or signify(ied)." It is clear that the legislative intent is patent, requiring application of the most focused formality in the process of will preparation.

      In this opinion, as the term "testator" does not specify the word "testatrix," the writer uses the term "testator" to include both "testator" and "testatrix." There are two documents proffered as wills, and it is to be understood, as set forth in the statute, that "testator" can and does include either or both parties.

      The requirement of formality with the confection of the will together, with all attendant requirements such as use of valid attestation clauses, is heightened for wills prepared after the enactment of Act 1421, § 8 of the 1997 Session of Louisiana Legislature, effective July 1, 1999. The reason inter alia is that under the subject will, proof requirements were necessary pursuant to the former La. C.C.P. art. 2887. Wills prepared as notarial testaments after Act 1421 of 1997 are not "self-proving." The rationale for allowing a notarial testament to be self-proving is questionable, yet this evidences an intent of the legislature that the very instrument itself must be carefully prepared. This writer concludes that this may be considered in light of the argument of some that a "liberal trend" exists in connection with the interpretation of the validity of wills in the context of their preparation. Indeed, the path of legislative development indicates a more stringent importance placed on proper will preparation.

      A cursory examination of this point might lead one to think that obviously these persons witnessed the signing of the documents, because signatures appear stating as much. However, verification of witness signatures must come from inside the document-by the notary public. Examination of only the document itself indicates that there is no verification of witness identity. These questions would not arise had all been in the "presence" of one another, and had the notary public "witnessed" the signing of the documents by the witnesses via a proper attestation clause.

      There has been much discussion concerning the "changed date" from December 18, 1992, to December 10, 1992. This writer believes that the trial judge would have made a factual/legal finding as to this issue if deemed significant. There was no such finding; thus, this writer does not engage in placing emphasis on this point.


author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Anthony Lemarcus LARKINS, Appellant
    No. 51,540-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 27, 2017
    LOUISIANA APPELLATE PROJECT By: Douglas Lee Harville, Counsel for Appellant
    ANTHONY LEMARCUS LARKINS Pro Se
    JAMES E. STEWART, SR., District Attorney, JASON WALTMAN, ERICA N. JEFFERSON, Assistant District Attorneys, Counsel for Appellee
    Before PITMAN, COX, and BLEICH (Pro Tempore ), JJ.
   PITMAN, J.

Defendant Anthony Lemarcus Larkins was charged with one count of aggravated rape in violation of La. R.S. 14:42. After a bench trial, he was found guilty as charged and sentenced to life imprisonment without the benefit of probation, parole or suspension of sentence. He filed a pro se motion to reconsider sentence, which was not ruled on by the trial court. On appeal, Defendant challenges the sufficiency of the evidence and argues that the case must be remanded to the trial court to rule upon the outstanding motion to reconsider sentence. For the following reasons, Defendant's conviction and sentence are affirmed, and the matter is remanded to the trial court for sex offender registration notification.

FACTS

On October 17, 2013, Defendant was indicted by a grand jury for the aggravated rape of D.W. in 2003. At arraignment, he pled not guilty and elected to have a bench trial. He also chose to represent himself.

The first witness at trial was D.W., who testified that he was born on January 15, 1997, and currently lives in Shreveport, Louisiana, with his mother and two sisters. He stated that he, his mother and his sister previously lived with his great-grandparents in Shreveport from the time he was in preschool until about first or second grade. While they were living there, Defendant began dating his mother. D.W., his mother and his sister moved in with Defendant and his son in 2003.

D.W. further testified that his mother worked the night shift at Wal-Mart, and Defendant or D.W.'s great-grandparents would watch him and his sister while their mother worked. He stated that when Defendant was watching them, Defendant would take him into the master bedroom and force him to perform oral sex on him. He noted that he was in the second or third grade at that time and that his sister was present on at least two occasions. He further stated that Defendant also forced him and his sister to remove their clothes and touch each other's private parts while he watched.

According to D.W., he eventually told his aunt about Defendant's conduct, and she called Child Protective Services ("CPS"). After his aunt contacted CPS, he briefly lived with his aunt in Shreveport, while his mother and sister moved into an apartment. He stated that after living with his aunt for one year, he moved to Georgia with his mother, his sister and his newborn sister, where they resided for approximately 2½ years. He testified that his family returned to Shreveport when he was age 10 or 11 and lived with his mother's friend, Keshia Prim. Defendant frequently visited the family at Prim's home, and D.W., his mother and his sisters moved back in with him a year later.

D.W.'s sister (whose initials are also D.W.) testified that shortly after her family moved into Defendant's home in 2003, Defendant called her and her brother into the master bedroom and twice forced her to watch D.W. perform oral sex on him. She noted that the incidents generally occurred at night when their mother was at work. She further stated that on at least one occasion, Defendant forced her and D.W. to remove their clothes and attempted to force them to have sex with each other in the living room. She testified, "I was laying on the floor, and he [Defendant] made [D.W.] get on top of me and try to put his private part in me. And if we didn't do it, [Defendant] would whoop us." She further testified that she told her mother of the incident, but she could not recall her mother's response. After the incident, she, D.W. and her mother first moved to the Villa del Lago apartments and then relocated to Georgia.

D.W.'s sister corroborated his testimony that upon returning to Shreveport several years later, the family lived with a friend for a brief period, but eventually moved back in with Defendant. She stated that, while living with him, Defendant choked her and then offered her money in exchange for sex. She testified that she initially resisted his repeated advances, but ultimately agreed to have sex with him. D.W.'s sister noted she was 15 years old when she and Defendant first had sex, and they engaged in vaginal sexual intercourse approximately two or three times a month. The encounters occurred either in her room or her mother's room and always when her mother was at work. She testified that her mother, K.W., discovered she and Defendant were having sex after reading text messages between her and her boyfriend, "Trey," which detailed her sexual encounters with Defendant. After reading the text messages, K.W. called the police and CPS.

K.W. testified that she has three children, D.W. and her older daughter (who are not Defendant's biological children), and her younger daughter (who is Defendant's biological daughter). She stated that she met and began dating Defendant in 2002 while working at the Wal-Mart on Mansfield Road. She, D.W. and D.W.'s sister were living with her grandparents at that time. The three of them eventually moved in with Defendant, his mother and his son in 2003. She testified that Defendant and his mother would watch the children while she was working. She further noted that she got into an argument with Defendant because he was spanking her children; and, as a result, the three of them moved back into her grandparents' home in 2004. It was there that D.W. told her that Defendant forced him and his sister to engage in sexual activities either with each other or with Defendant. She stated that D.W. did not appear to understand that Defendant's behavior was inappropriate. She called CPS, but she did not know what happened with the investigation. She discovered she was pregnant with Defendant's child after reporting him to CPS. After she delivered the baby, she moved to Georgia with her children, where she lived for several years. She moved back to Shreveport, and Defendant moved into her house with her and her children.

K.W. further testified that Defendant had been living with her and the children for approximately eight months when she learned that he was paying her older daughter for sex. She stated that she confronted Defendant and began hitting him. She then locked herself in her car, called the police and remained there until the police arrived.

Sergeant Anthony Rei, a sex crimes investigator and officer with the Shreveport Police Department, testified that in 2007, he was assigned to conduct a follow-up investigation for the alleged crimes against D.W. and his sister in 2003. He stated that prior to his involvement, another officer had been assigned to investigate the allegations, but no action had been taken. He testified that he contacted K.W., via letter, informing her that he was following up on the 2003 investigation and asking her whether she was willing to pursue criminal charges. K.W. advised him that she did not want to pursue charges because she did not intend to return to Shreveport. Based on this response, he closed the case.

Corporal Stephen Desselle, a patrol officer with the Shreveport Police Department, testified that on August 12, 2013, he was dispatched to a residence at 3146 Pleasant Drive in response to an alleged sexual assault. Upon arriving at the home, he met K.W. in the front yard and took her statement. Based on that statement, he detained Defendant and placed him in the back seat of the patrol unit. After securing Defendant, he made contact with D.W.'s sister, who admitted that she had sexual intercourse with Defendant approximately ten times in exchange for money. He advised Defendant of his Miranda rights and interviewed him, but Defendant denied any knowledge of the crime. He stated that he contacted Det. Jeff Allday in the sex crimes unit and also CPS. He wrote a report and then turned the investigation over to Det. Allday.

Corporal Saiz, an officer with the Shreveport Police Department, who was also dispatched to 3146 Pleasant Drive on August 12, 2013, testified that he and a third officer spoke to D.W. at the scene. He stated that D.W. appeared nervous about speaking, but told the officers that when he was a child, Defendant would give him money and gifts in exchange for performing oral sex on him.

Finally, Det. Allday testified that he is an investigator in the Shreveport Police Department sex crimes unit and was assigned to the instant case on August 12, 2013. Upon arriving on scene, he spoke with Cpl. Desselle, who relayed D.W.'s sister's story to him. He stated that he transported D.W. and his sister to the Gingerbread House, where he interviewed them. Based on their statements, he obtained an arrest warrant for Defendant. He could not recall whether he was the arresting officer, but noted that he did not interview Defendant after his arrest because he believed he would continue to deny the charges.

On cross-examination, Det. Allday stated that he questioned K.W. on August 14, 2013, who stated that she did not remember the specific acts her children were forced to do for Defendant, but did remember that they were sexual in nature.

He recalled that K.W. stated that she had asked her youngest child, Defendant's biological daughter, whether Defendant had touched her private part, and the little girl responded that Defendant had made her touch his private part.

Following Det. Allday's testimony, the state rested. Defendant moved for a judgment of acquittal under La. C. Cr. P. art. 778, which was denied, and then rested his case without calling witnesses. On September 8, 2016, the trial court found him guilty as charged of the aggravated rape of D.W. On September 19, 2016, the trial court sentenced Defendant to life imprisonment without the benefit of probation, parole or suspension of sentence. He filed a pro se motion to reconsider sentence, which was not ruled on by the trial court.

The instant appeal followed.

DISCUSSION

Insufficiency of the evidence

Defendant argues there is insufficient evidence to support his aggravated rape conviction and to prove he is guilty beyond a reasonable doubt. He contends that the testimony from D.W., D.W.'s sister and K.W. is very inconsistent as to the nature of abuse D.W. suffered at his hands.

The state argues that there is ample direct evidence to support Defendant's conviction.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the case in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979) ; State v. Tate , 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Carter , 42,894 (La. App. 2 Cir. 1/9/08), 974 So.2d 181, writ denied , 08-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied , 09-0310 (La. 11/6/09), 21 So.3d 297.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in a light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Broome , 49,004 (La. App. 2 Cir. 4/9/14), 136 So.3d 979, writ denied , 14-0990 (La. 1/16/15), 157 So.3d 1127.

The trier of fact makes credibility determinations and may accept or reject the testimony of any witness. A reviewing court may not impinge on the fact finder's discretion unless it is necessary to guarantee the fundamental due process of law. State v. Casey , 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed. 2d 62 (2000). The appellate court does not assess credibility or reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442.

At the time of the offense, La. R.S. 14:42 provided in pertinent part:

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

In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness-if believed by the trier of fact-is sufficient support for a requisite factual conclusion. State v. Jones , 34,863 (La. App. 2 Cir. 8/22/01), 794 So.2d 107, writ denied , 01-2648 (La. 8/30/02), 823 So.2d 938. Such testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence. State v. Mickens , 31,737 (La. App. 2 Cir. 3/31/99), 731 So.2d 463, writ denied , 99-1078 (La. 9/24/99), 747 So.2d 1118.

The state is required to prove beyond a reasonable doubt that Defendant engaged in either anal, oral or vaginal intercourse without the lawful consent of the victim who was under the age of 13 at the time of the offense. La. R.S. 14:42(A)(4). We find that there is sufficient direct evidence to support Defendant's conviction.

D.W. and his sister testified that Defendant forced D.W. to perform oral sex on him multiple times and occasionally attempted to force the two children to have sex with each other. According to both witnesses, the events occurred in 2003, when D.W. was approximately five or six years old. While Defendant attempted to confuse the witnesses as to dates, locations and whom the victim's mother was dating between 2002 and 2013, it was clearly established that Defendant forced D.W. to perform oral sex on him on multiple occasions without D.W.'s lawful consent because D.W. was under the age of 13 during the incidents. All the witnesses testified that the events took place in Caddo Parish.

Ultimately, it was the trial court's decision as fact finder to assess the credibility of the witnesses. When stating its verdict of guilty, it made the following observations:

THE COURT: The Court listened to-in particular of interest to the Court were the two witnesses, [D.W. and his sister]. The Court notes that [D.W.] testified first. The Court found his testimony to be credible. The Court observed very carefully his demeanor on the stand. [D.W.] barely could look at Mr. Larkins; however, Mr. Larkins was smiling most of the time that he was looking at [D.W.]. That's not reflected in the record. That was the Court's observation. [D.W.] articulated in great detail the acts of which he was subjected to at the hands of Mr. Larkins.
[The sister] testified in detail about the things that [D.W.] was subjected to by Mr. Larkins. The Court found both of these very young witnesses to be very credible, reliable. Their demeanor on the stand was shame, embarrassment and great emotional pain.

The trial court listened to and determined the credibility of each witness. The trier of fact weighed the evidence and concluded there was proof beyond a reasonable doubt that Defendant had committed the crimes of which he was accused. Its decision will not be disturbed on appeal.

Therefore, this assignment of error is without merit.

Motion to Reconsider Sentence

Defendant argues that the trial court erred in failing to rule on his pro se motion to reconsider sentence, and the matter should be remanded for a ruling.

The state argues that remand is not necessary since Defendant is not challenging his sentence on appeal.

The trial court retains jurisdiction to rule on a motion to reconsider sentence, and a defendant is within his rights to provoke same, even after an order of appeal is entered. See La. C. Cr. P. arts. 881.1(C) and 916(3). In addition, no provision within the Code of Criminal Procedure prohibits an appellate court from reviewing a sentence for constitutional excessiveness in spite of the trial court's failure to rule on a motion to reconsider sentence. Should the trial court later rule upon a defendant's motion to reconsider sentence, he may seek appellate review of the decision pursuant to La. C. Cr. P. art. 914(B)(2) ; State v. Farris , 51,094 (La. App. 2 Cir. 12/14/16), 210 So.3d 877.

There is no indication in the record that the trial court ever ruled on Defendant's pro se motion to reconsider sentence filed on October 18, 2016. However, the absence of a ruling on a motion to reconsider sentence does not affect this court's ability to review the issues of sufficiency of the evidence and excessiveness of sentence. We have addressed Defendant's argument regarding sufficiency of the evidence in this opinion. He did not raise excessiveness of sentence on appeal.

This assignment of error lacks merit.

ERROR PATENT

A review of the record reveals that the trial judge did not properly inform Defendant of the sex offender registration and notification requirements outlined in La. R.S. 15:543. Aggravated rape is defined as a sex offense under La. R.S. 15:541. La. R.S. 15:543 requires that the district court notify a defendant convicted of a sex offense, in writing, of the registration and notification requirements and that an entry be made in the court minutes stating that the written notification was provided to the defendant.

There is nothing in the record to indicate Defendant is aware of the sex offender registration requirements for his crime. Therefore, this matter is remanded for the purpose of providing the appropriate written notice to Defendant of the sex offender registration requirements and for the filing of written proof of such notice into the proceeding's record. State v. Wilson , 50,418 (La. App. 2 Cir. 4/6/16), 189 So.3d 513, writ denied , 16-0793 (La. 4/13/17), 218 So.3d 629.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant Anthony Lemarcus Larkins are affirmed. Further, this matter is remanded with instructions to provide Defendant with appropriate written notice of his sex offender registration obligations in compliance with La. R.S. 15:542 -543.1 and for the filing of written proof thereof in the record.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      The statute was amended in 2003 to change the victim's age from 12 to 13 years. It became effective in August 2003. The record does not reflect in which months the crime occurred, but this is inconsequential since D.W. was 5 years old in 2003.