author: Judge Terri F. Love

text:
    STATE of Louisiana v. Kenneth LANDRIEU
    NO. 2018-KA-0964
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 12, 2019
    Thomas M. Calogero, LAW OFFICE OF THOMAS M. CALOGERO, 2955 Ridgelake Drive, Suite 114, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT
    Leon Cannizzaro, District Attorney, Michael Danon, Assistant District Attorney, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
    (Court composed of Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins )
   Judge Terri F. Love

Defendant Kenneth Landrieu ("Mr. Landrieu") seeks appellate review of his conviction and sentence for aggravated assault with a firearm. We find the testimonial evidence uncontradicted and therefore sufficient to support Mr. Landrieu's conviction. Additionally, we find evidence of the victim's federal civil lawsuit, the functionality of the weapon at issue, and the recorded conversation between police officers to be irrelevant to the issues in this case. For that reason, we find no abuse of the trial court's discretion in ruling the alleged justification and impeachment evidence inadmissible. Moreover, we find the trial court did not abuse its discretion in determining the juror in question could arrive at an impartial verdict denying Mr. Landrieu's challenge for cause. Accordingly, we affirm Mr. Landrieu's conviction and sentence.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

Mr. Landrieu was commissioned as a Reserve Deputy of the Orleans Parish Sheriff's Office ("OPSO") in 2007. At the time of the incident in question, Mr. Landrieu was still a commissioned reserve deputy.

In September 2015, the victim, Joseph Harris ("Mr. Harris"), was driving on Magazine Street when a "baby blue" Cadillac, driven by the defendant, Mr. Landrieu, abruptly pulled in front of Mr. Harris' vehicle. Mr. Harris, attempting to avoid a collision, slammed on his brakes and then used the oncoming traffic lane to pass the Cadillac.

Mr. Landrieu considered Mr. Harris' passing maneuver to be dangerous and attempted to initiate a "traffic stop." Mr. Landrieu pulled alongside Mr. Harris' vehicle and cut off Mr. Harris' path of travel. He was successful in briefly stopping Mr. Harris; however, Mr. Harris was able to maneuver his vehicle to leave the scene. Mr. Landrieu later caught up to Mr. Harris and stopped him again.

Mr. Landrieu then exited his vehicle with his personal firearm in hand and his honorary badge displayed. Mr. Harris testified that Mr. Landrieu began yelling profanities at him, accused Mr. Harris of using drugs or alcohol, pointed his weapon at Mr. Harris multiple times, and threatened to "call his boys" to have Mr. Harris' vehicle searched. Mr. Harris testified that he was afraid for his life when Mr. Landrieu pointed the firearm at him. He also indicated that he was able to take down Mr. Landrieu's license plate and later shared news of the incident with his wife and mother-in-law.

Initially, Mr. Harris did not report the incident to the police until two days after the incident occurred. Mr. Harris indicated that he did not call the police initially because he believed Mr. Landrieu was a police officer and that reporting the incident would be fruitless. However, Mr. Harris conducted his own investigation and learned that the badge Mr. Landrieu displayed was an honorary reserve badge. Consequently, Mr. Harris called the New Orleans Police Department ("NOPD"), reporting an individual pointed a gun at him while impersonating a police officer.

Detectives John Waterman, Chris Puccio, and Walter Edmonds conducted the police investigation in this case. Detective Waterman testified that he developed Mr. Landrieu as a suspect after learning that the vehicle in question belonged to Landrieu Public Relations and the primary driver was Mr. Landrieu. Detective Puccio testified that he conducted a photographic lineup, from which Mr. Harris identified Mr. Landrieu as the individual who stopped him in traffic and pointed a gun at him. Detective Waterman testified that Mr. Landrieu cooperated and turned over the handgun, which Mr. Harris later positively identified as the gun that was pointed at him. Thereafter, defense counsel stipulated that Mr. Landrieu was the individual who stopped Mr. Harris' car and pointed a gun at Mr. Harris.

On cross-examination, defense counsel attempted to question Detective Waterman about a conversation that he allegedly had with NOPD Officers Jonathan Blount and Dwight Salier. However, the trial court sustained the State's hearsay objection refusing to allow defense counsel to play the conversation for the jury. Additionally, defense counsel attempted to untie the handgun at issue in order to demonstrate how the gun operated. The trial court refused to allow defense counsel to untie the handgun. Defense counsel then attempted to introduce into evidence a photograph of the same type of handgun as the one used in the altercation between Mr. Landrieu and Mr. Harris. However, the State objected to the photograph's introduction into evidence. The trial court subsequently sustained the State's objection as the photograph was not of the handgun at issue.

The State also called Blake Arcuri, general counsel for the Orleans Parish Sheriff's Office. Mr. Arcuri testified that Mr. Landrieu was an honorary reserve deputy with OPSO. Likewise, Mr. Arcuri stated that Mr. Landrieu was not Peace Officer Standard Training-certified ("POST-certified") and therefore could not effectuate arrests or carry an OPSO registered firearm in the performance of any law-enforcement duty. Mr. Arcuri further testified that Mr. Landrieu had never done any work or filed any reports for the Sheriff's Office and had not registered his firearm with the Sheriff's Office per protocol.

On cross-examination, defense counsel attempted to question Mr. Arcuri about Mr. Harris' federal civil lawsuit. Again, the trial court refused to allow any discussion of the federal lawsuit. After the State rested, defense counsel moved for a mistrial on grounds that the defense should have been allowed to question Mr. Harris and Mr. Arcuri about Mr. Harris' federal lawsuit. Counsel argued that he should have at least been given the opportunity to question the witnesses on the existence of the lawsuit even if he was barred from questioning them on its details. The trial court denied the motion for mistrial.

Mr. Landrieu sought to present the testimony of Officers Blount and Salier, who were allegedly subpoenaed, but were not present in court. However, there is no indication in the record that either officer was ever served. Mr. Landrieu's mother Phyllis Landrieu testified that Mr. Landrieu became an honorary reserve deputy after Hurricane Katrina and that he took a 32-hour firearm training course after becoming an honorary reserve deputy.

Following the presentation of all the evidence, the jury found Mr. Landrieu guilty for aggravated assault with a firearm, in violation of La. R.S. 14:37.4. Thereafter, Mr. Landrieu timely filed this appeal.

ERRORS PATENT

A review of the record reveals two errors patent. First, Mr. Landrieu was not re-arraigned after the State amended the bill of information and the case was transferred from Section "A" to Section "G." Pursuant to La. C.Cr.P. art. 555, the "failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he pleaded not guilty." The record contains no evidence that Mr. Landrieu objected to the trial court's failure to re-arraign him after his case was transferred to Section "G" and prior to trial. Therefore, any error relating to the trial court's failure to re-arraign Mr. Landrieu was waived.

Additionally, the record reveals that the motion for appeal was filed and granted after the trial court imposed Mr. Landrieu's original sentence. However, the trial court subsequently re-sentenced Mr. Landrieu. The Louisiana Supreme Court has consistently held that an appeal cannot be taken by a defendant except from a conviction and sentence. La. C.Cr.P. art. 912 ; State v. Martin , 483 So.2d 1223, 1224-25 (La. App. 4th Cir. 1986). In Martin , this Court held that when the trial court imposes a sentence after an appeal has been granted, "[d]ismissing the appeal would simply result in a delay of the appellate process, and hinder defendant's right to appeal." Id. at 1225. Accordingly, "where a sentence is imposed after defendant's motion for appeal is filed and granted, the appeal will not be dismissed." Id.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, Mr. Landrieu asserts that the State presented insufficient evidence to sustain his conviction for aggravated assault with a firearm.

When reviewing the sufficiency of the evidence, Louisiana appellate courts apply the standard set forth in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The appellate court must determine "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 beyond a reasonable doubt." Id. , 443 U.S. at 319, 99 S.Ct. 2781, 2789 (1979). "If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted." State v. Egana , 97-0318, p. 6 (La. App. 4 Cir. 12/3/97), 703 So.2d 223, 228. Further, credibility determinations including the weight attributed to the evidence, rests solely with the trier of fact. State v. Brown , 17-0124, p. 5 (La. App. 4 Cir. 12/12/17), 234 So. 3d 978, 982.

Mr. Landrieu was convicted of aggravated assault with a firearm. La. R.S. 14:37.4 provides:

(A) Aggravated assault with a firearm is an assault committed with a firearm.
(B) For purposes of this Section, "firearm" is defined as an instrument used in the propulsion of shot, shell, or bullets by the action of gunpowder exploded within it.

Further, an assault is defined "as an attempt to commit battery, or the intentional placing of another in reasonable apprehension of receiving a battery. La. R.S. 14:36. In Brown , this Court explained that:

[i]n order to support a conviction for assault, the State must prove beyond a reasonable doubt: (1) the intent-to-scare mental element (general intent); (2) conduct by defendant of the sort to arouse a reasonable apprehension of bodily harm; and (3) the resulting apprehension on the part of the victim. State v. De Gruy , 16-0891, p. 12 (La. App. 4 Cir. 4/5/17), 215 So.3d 723, 730, citing State in the Interest of K.M. , 14-0306, p. 9 (La. App. 4 Cir. 7/23/14), 146 So.3d 865, 872.

Brown , 17-0124, p. 6, 234 So.3d at 982. Assault requires only proof of general criminal intent "or showing that the defendant, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act." Id. (citing La. R.S. 14:10(2) ). "To establish the general criminal intent for an aggravated assault, jurisprudence holds that the act of pointing a weapon at another person and threatening bodily harm is sufficient to establish the element of intent." Id. , 17-0124, p. 6-7, 234 So.3d at 982. Additionally, jurisprudence recognizes that discharging of the firearm is not an element of aggravated assault with a firearm and therefore the firearm need not be operable to satisfy the elements of the offense. "Whether the gun at issue [is] operable is not determinative. So long as the weapon was used by the [defendant] in such a way as to excite fear and apprehension in [the victims], it is considered a dangerous weapon under the law." State in Interest of C.B. , 52,245, p. 8 (La. App. 2 Cir. 6/27/18), 251 So.3d 562, 568. See also State ex rel. W.H. , 10-1418, p. 7 (La. App. 4 Cir. 4/6/11), 62 So.3d 839, 845 (concluding that a toy gun or an inoperable gun would satisfy the elements of aggravated assault with a firearm); State v. Hill , 47,568, p.11 (La. App. 2 Cir. 9/26/12), 106 So.3d 617, 624 (finding aiming a pistol at victim and verbally threatening harm was sufficient proof to sustain aggravated assault conviction); State v. Jones , 18-0973 (La. App. 4 Cir. 2/27/19), --- So. 3d ----, 2019 WL 959790 (holding evidence sufficient to convict defendant of aggravated assault with a firearm despite defendant claiming he used a water gun during the incident and the gun was never recovered).

The charge against Mr. Landrieu was based on the allegation that he pointed a gun at Mr. Harris after Mr. Landrieu initiated a traffic stop on Magazine Street. Mr. Harris testified that Mr. Landrieu pointed the gun at him and said, "Shut your f*****g mouth," and made other various verbal accusations and threats. Mr. Harris testified that he was afraid for his life when the gun was pointed at him. Moreover, Mr. Landrieu stipulated, at trial, to his identity as the individual who confronted the victim while brandishing a firearm.

Nevertheless, Mr. Landrieu claims his actions were justified based on his appointment as an honorary reserve deputy. He argues that he "was issued a commission that allowed him, and even imposed a duty upon him, to investigate violations of the laws of the State of Louisiana and perform other duties imposed on him by law." Mr. Landrieu asserts that the State failed to rebut the evidence presented to support his justification defense.

The commission named Mr. Landrieu a reserve deputy, a person "charged with the duty of investigating violations of the laws of the State of Louisiana, collecting evidence in cases which the State is or may be a party in interest and performing other duties imposed on him by law." Despite the language contained in the commission, the State provided ample evidence to rebut Mr. Landrieu's contention that his actions were justified under Louisiana law. Mr. Arcuri, general counsel for the OPSO, testified that reserve deputies are not involved in off-the-clock investigations, arrests, or police activities. Further, Mr. Arcuri testified that Mr. Landrieu never registered his handgun with the Sheriff's Office, as is office protocol. He also testified that Mr. Landrieu was never assigned to wear a badge around the city nor had he ever submitted a "detail request form" to obtain permission to work a particular post. Finally, Mr. Arcuri testified that Mr. Landrieu did not submit a "use of force" report with the Sheriff's Office after the incident in accord with protocol.

Most importantly, Mr. Arcuri testified that Mr. Landrieu never received POST-certification. La. R.S. 40:2405 governs POST-certification and states in pertinent part, "any person who begins employment as a peace officer in Louisiana subsequent to January 1, 1986, must successfully complete a certified training program approved by the council and successfully pass a council-approved comprehensive examination within one calendar year from the date of initial employment." La. R.S. 40:2405. Mr. Arcuri testified that POST-certification is required for Orleans Parish Sheriff deputies to carry a weapon and act as law enforcement officials on public streets.

Based on the evidence presented by the State to rebut Mr. Landrieu's justification defense, a reasonable juror could have found that Mr. Landrieu assaulted Mr. Harris with a firearm and did not act justifiably. Therefore, when viewed in the light most favorable to the prosecution, the evidence presented is sufficient to establish Mr. Landrieu's guilt for aggravated assault with a firearm.

ADMISSIBILITY OF VICTIM'S FEDERAL CIVIL LAWSUIT

In his second assignment of error, Mr. Landrieu asserts that the trial court erred in not allowing evidence of Mr. Harris' federal civil petition to be introduced for the purposes of 1) bolstering his affirmative defense of justification, 2) cross-examining Mr. Harris regarding a prior inconsistent statement, or 3) cross-examining Mr. Arcuri on his bias regarding his testimony.

Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." La. C.E. art. 401. "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation. Evidence which is not relevant is not admissible." La. C.E. art. 402. Further, even 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." La. C.E. art. 403. "Ultimately, questions of relevancy and admissibility are discretion calls for the trial judge [and] [h]is determinations regarding relevancy and admissibility should not be overturned absent a clear abuse of discretion." State v. Mosby , 595 So. 2d 1135, 1139 (La. 1992).

Mr. Landrieu first asserts that Mr. Harris' federal § 1983 civil lawsuit was relevant to establish his justification defense. In a federal § 1983 action, the plaintiff must prove that the defendant was acting "under color of [a state] statute, ordinance, regulation, custom, or usage." 42 U.S.C. § 1983. Mr. Landrieu's justification defense, on the other hand, requires that he prove he was legally justified to act in an otherwise criminal manner. See La. R.S. 14:18. Mr. Landrieu's argument attempts to use allegations from the federal civil lawsuit to demonstrate that the State of Louisiana had in fact granted Mr. Landrieu the authority to effectuate a traffic stop.

We find Mr. Landrieu's claim that the federal lawsuit was relevant to his justification defense without merit. The legal analysis for a tort claim under a federal § 1983 claim and the analysis required under La. R.S. 14:18 are separate and distinct. Mr. Landrieu's justification defense hinges not on whether the victim believed Mr. Landrieu acted with actual or apparent authority, but instead on whether Mr. Landrieu had actual or apparent authority to act in the manner he did. La. R.S. 14:18. Therefore, Mr. Harris' allegations in his federal civil lawsuit are not relevant to Mr. Landrieu's justification defense.

Next, Mr. Landrieu asserts that the federal civil lawsuit was necessary to impeach Mr. Harris because the allegations in the federal lawsuit were inconsistent with the victim's testimony during trial. Louisiana law states that "[o]ther extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness' testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice." La. C.E. art. 607(D)(2). Mr. Landrieu focuses on the victim's testimony that he "didn't know" whether Mr. Landrieu was a police officer and then reported that Mr. Landrieu was impersonating a police officer while the victim's federal lawsuit alleges that Mr. Landrieu was, in fact, a police officer.

Mr. Harris testified, at the time of the incident, he thought Mr. Landrieu was a police officer. He stated that "[a]fter seeing the badge I just figured, and he was in some capacity, you know, off-duty." Mr. Harris further stated that he waited two days to report the incident because he believed reporting the incident would be fruitless. Mr. Harris testified, "I thought that he was a police officer. And police officers aren't going to do anything to hurt their fellow officers." In that Mr. Harris testified that at the time of the incident and for two days afterward, he believed Mr. Landrieu was a police officer, Mr. Harris' federal civil suit alleging Mr. Landrieu acted under the color of the law at the time of the incident was not inconsistent with his trial testimony.

Finally, Mr. Landrieu avers that he should have been able to cross-examine Mr. Arcuri on the topic to demonstrate Mr. Arcuri's bias since OPSO is named a co-defendant in the federal suit. Specifically, Mr. Landrieu argues that it was in Mr. Arcuri's interest to show that Mr. Landrieu did not act within the course and scope of his duties as an honorary reserve deputy so as to avoid liability in the federal lawsuit.

Louisiana courts have held that a defendant has the right to question a witness on the existence of a civil lawsuit in order to show that witness's bias. See State v. Kellogg , 350 So.2d 656 (La. 1977) (finding defendant should have been allowed to question the victim and his wife about the existence of a civil lawsuit they filed against the defendant). However, Louisiana courts have also held that prohibiting reference to a civil lawsuit does not prejudice the defendant, and thus is harmless error, when the facts of the crime are uncontradicted. See State v. Creel , 508 So.2d 859, 863 (La. App. 5th Cir. 1987) (finding harmless error after trial court refused to allow cross-examination of aggravated rape victim, who filed civil suit against the defendant's parents for harm she suffered during the rape, because the evidence was "totally uncontradicted").

We find any error in the trial court's refusal to allow cross-examination of Mr. Arcuri about the civil suit is harmless. The legal analysis that applies to a federal § 1983 claim is separate from the analysis applied to a justification defense in a criminal case. The jury's finding that the Mr. Landrieu was not justified in his actions would not remove OPSO's potential liability in a federal civil suit. Moreover, the Louisiana Supreme Court has explained that:

the bias permitted to be exposed must be personal against the defendant rather than general in nature, and the interest must be particular as to the case; therefore, general prejudices or special biases or interests too irrelevant to or too remote to the issues of the case at trial have been considered improper as impeachment for this purpose.

State v. Robinson , 337 So.2d 1168, 1170 (La. 1976). Accordingly, we find whether Mr. Arcuri was biased against Mr. Landrieu, if at all, to be irrelevant to the issues of this case.

Furthermore, central to Mr. Landrieu's justification defense was whether he was POST-certified. In addition to Mr. Arcuri testifying that the Defendant was not POST-certified, the Defendant himself stipulated that he was not POST-Certified. The facts in this case are uncontradicted. See Creel , 508 So.2d at 863. Therefore, because the substance of Mr. Arcuri's testimony that Mr. Landrieu was not POST-certified was uncontradicted, prohibiting cross-examination of Mr. Arcuri about Mr. Harris' federal civil lawsuit was at most harmless error.

DEMONSTRATION OF WEAPON FUNCTIONALITY

In his third assignment of error, Mr. Landrieu asserts that the trial court erred in not allowing defense counsel to demonstrate operation of the gun at issue in either a manual operation of the weapon or through photographs. Mr. Landrieu avers showing the operation of the gun was relevant to impeach the victim's testimony on how Mr. Landrieu operated the gun upon exiting the vehicle.

We find no merit to this assignment of error because the functionality of the firearm he wielded was irrelevant to the State's case against him. Mr. Landrieu stipulated to his identity as the individual who stopped Mr. Harris on Magazine Street and exited his vehicle with a handgun. As discussed, Louisiana law holds that a gun need not be operable for a defendant to be convicted under La. R.S. 14:37.4. Therefore, whether the victim's testimony was accurate regarding how Mr. Landrieu wielded his weapon upon exiting his vehicle is not probative as to Mr. Landrieu's guilt.

ADMISSIBILITY OF RECORDED CONVERSATION

In his fourth assignment of error, Mr. Landrieu argues that the trial court erred in not allowing the defense to introduce a recorded conversation between Officers Blount and Salier, who did not appear at trial to testify, to show that the victim was not in fear of bodily harm. Mr. Landrieu asserts that he should have been allowed to play the recorded conversation because the officers were "unavailable."

The Louisiana Code of Evidence states that an "unavailable" witness is one who:

cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant:... [i]s absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.

La. C.E. art. 804(A)(5). "Determining the unavailability of a witness is a preliminary question for the [trial] court." State v. Ball , 00-2277, p. 26 (La. 1/25/02), 824 So. 2d 1089, 1112. The Louisiana Supreme Court has stated that "a witness is not unavailable for purposes of the exception to the confrontation requirement unless the authorities have made a diligent and good faith effort to obtain his presence at trial." Driscoll v. Stucker , 04-0589, p. 24 (La. 1/19/05), 893 So. 2d 32, 50. "The party asserting the admissibility of the statement bears the burden of proving the unavailability of the declarant." Guidry v. Bernard , 14-234, p. 4 (La. App. 3 Cir. 6/18/14), 142 So. 3d 1063, 1066. The trial court's decision on whether a witness is unavailable "[is] reviewed for manifest error, and will not be overturned, absent an abuse of the trial court's discretion." Ball , 00-2277, p. 26, 824 So. 2d at 1112.

Louisiana law requires a diligent and good faith effort to locate a witness for him to be declared "unavailable" for the purpose of hearsay exceptions. In Guidry , the Third Circuit held that a witness was not unavailable simply because he had refused to honor a subpoena. Guidry , 14-234, p. 5, 142 So. 3d at 1067. There, the defendant subpoenaed a witness to testify at trial. Id. , 14-234, p. 3, 142 So.3d at 1065. The witness was personally served with the subpoena but refused to appear at trial. Id. The defendant then attempted to introduce an affidavit from the witness under La. C.E. art. 804. Id. The trial court refused to declare the witness unavailable and instead offered to issue an attachment for the witness. Id. , 14-234, p. 3, 142 So.3d at 1066. When the defendant did not accept the court's offer to issue an attachment, the trial court refused to allow the affidavit into evidence. Id. The Third Circuit upheld the trial court's ruling, holding that "[the defendant] failed to make a diligent and good faith effort to obtain [the witness's] presence at trial." Id. 14-234, p. 5, 142 So.3d at 1067 ; See also Driscoll , 04-0589, p. 24, 893 So. 2d at 50 (holding that a witness is not unavailable simply because a party asserts that the witness is unavailable).

Although Mr. Landrieu presented instanter subpoenas for Officers Blount and Salier, there is no evidence in the record that the subpoenas were ever actually served on the officers. Once the officers were not present at trial, the procedure afforded by law to Mr. Landrieu was to request the trial court issue an attachment for their arrest so that they could testify at trial. Mr. Landrieu failed to request an attachment for the officers. Further, absent from the record is any evidence that Officers Blount or Salier were ever served with instanter subpoenas. Thus, Mr. Landrieu failed to demonstrate a "diligent and good faith effort" to obtain the presence of the officers. Therefore, the witnesses were not "unavailable" for purposes of introducing hearsay evidence.

Finally, even if the officers were "unavailable," their recorded conversation would still not be admissible because the evidence does not meet any of the exceptions to the prohibition of hearsay testimony under La. C.E. arts. 803 or 804. Even if a witness is declared "unavailable," his testimony still must fit an exception to hearsay as outlined in the Code of Evidence. La. C.E. art. 802. Further, when a statement sought to be introduced contains multiple levels of hearsay, each separate level of hearsay must meet its own exception. See La. C.E. art. 805 ("Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided by legislation.") (emphasis added).

Here, Mr. Landrieu has not cited any applicable exception that the recorded conversation between Detective Waterman and Officers Blount and Salier would meet. Although any out-of-court statements made by the victim regarding his fear of bodily harm would fall under La. Code Evid. art. 803(3), the recorded conversation between Detective Waterman and Officers Blount and Salier discussing the victim's statements about his fear of bodily harm is a separate level of hearsay that must meet its own exception. See La. C.E. art. 805. The conversation between the officers is not "former testimony" to satisfy article 804(B)(1) since there was no potential for cross-examination by the State; the conversation was not a statement against interest under 804(B)(3); nor does it fall under the "catch-all" exception of 804(B)(6) since this is not a civil action. Therefore, the recorded conversation does not fall under any exception under La. C.E. art. 804. Nor does the officers' recorded conversation fall under any exception under La. C.E. art. 803. See State v. Diggins , 12-0015, p. 23 (La. App. 4 Cir. 10/23/13), 126 So. 3d 770, 789 (holding that the trial court properly refused to allow defense counsel to elicit inadmissible hearsay statements found in a police report from a police officer on the witness stand). Therefore, Mr. Landrieu's assertion that the trial court erred in refusing to play the recorded conversation between Detective Waterman and Officers Blount and Salier for the jury is without merit since the recorded conversation between the officers would not meet any applicable hearsay exception under Louisiana law even if the officers were found to be "unavailable."

CHALLENGE FOR CAUSE

In his fifth and final assignment of error, Mr. Landrieu asserts that the trial court erred when it denied a challenge for cause of a juror that stated that he hated the Landrieu family.

During voir dire, one of the prospective jurors, Cordill Plummer, stated that he worked in campaigns against Maurice ("Moon") Landrieu and "certainly was not a fan of" any of his children. Later, when defense counsel was describing New Orleans Mayor Mitch Landrieu's position regarding the Confederate Monuments, Mr. Plummer responded that he was against the monuments being removed and he felt as though defense counsel was adopting the same position. Mr. Plummer then expressed dislike for Mitch Landrieu and Mary Landrieu. However, when asked by the judge whether he could be fair and impartial toward Kenneth Landrieu, Mr. Plummer said he could. Further, when defense counsel specifically challenged Mr. Plummer, stating that he would be better suited for another jury, Mr. Plummer expressly disagreed. The trial court denied defense counsel's challenge for cause, requiring defense counsel to exercise a peremptory challenge on the juror. Defense counsel ultimately exhausted all of his peremptory challenges.

Louisiana courts have held that improperly refusing to dismiss a juror for cause can constitute reversible error if the defendant subsequently uses all of his peremptory challenges. "Reversible error is demonstrated and prejudice is presumed in cases in which a defense challenge for cause was erroneously denied and the defendant ultimately exhausted his peremptory challenges." State v. Coleman , 14-0402, p. 48 (La. 2/26/16), 188 So.3d 174, 210. However, Louisiana law is also clear that "[a] trial judge is vested with broad discretion in ruling on challenges for cause, and his ruling will be reversed only when a review of the entire voir dire reveals the judge abused his discretion." State v. Robertson , 630 So. 2d 1278, 1281 (La. 1994).

A challenge for cause when prospective juror expresses dislike for the defendant's family based on political reasons has not been addressed by this Court before; however, appellate courts have held that a mere acquaintance with the defendant or his family is insufficient on its own to constitute removal for cause. See State v. Mazique , 09-845, p. 19-21 (La. App. 5 Cir. 4/27/10), 40 So. 3d 224, 238-39 (holding the trial judge properly denied a challenge for cause on a juror who was the defendant's former co-worker); State v. Jackson , 548 So. 2d 57, 59-60 (La. App. 3rd Cir. 1989) (holding the trial judge properly denied a challenge for cause on a juror whose husband was the defendant's second cousin). Likewise, a trial court may only remove a juror for cause when his relationship with the defendant "would influence the juror's ability to arrive at an impartial verdict." State v. Burns , 45,539, p. 14 (La. App. 2 Cir. 9/22/10), 48 So. 3d 344, 352.

The prospective juror in this case indicated a dislike for Mayor Mitch Landrieu, the defendant's cousin, and his decision to remove the Confederate statutes from New Orleans. Mr. Plummer further indicated that he had worked on campaigns against the Landrieu family and did not like any of Moon Landrieu's children that were involved in politics. However, Mr. Plummer also indicated that he could be fair and impartial to the defendant at trial and specifically disagreed with defense counsel when defense counsel suggested that Mr. Plummer could not be fair and impartial. Based on the voir dire transcript, there is no evidence that the trial court abused its broad discretion in determining that the prospective juror could remain fair and impartial throughout the trial and thus this assignment of error is without merit.

DECREE

Considering Mr. Harris testimony was uncontradicted at trial, we find the evidence was sufficient to support Mr. Landrieu's conviction for aggravated assault with a firearm. Additionally, we find evidence of the victim's federal lawsuit, the functionality of the firearm, and the recorded conversation between the police officers to be irrelevant in this case. Therefore, we find no abuse of the trial court's discretion in ruling the justification and impeachment evidence inadmissible. Moreover, we find because the prospective juror indicated he could be fair and impartial, despite his feelings about the defendant's family, the trial court did not abuse its discretion in denying Mr. Landrieu's challenge for cause. Accordingly, we affirm Mr. Landrieu's conviction and sentence.

AFFIRMED

      The handgun was tied during the course of the trial in order that the trigger could not be pulled for safety purposes.

      In December 2017, Mr. Landrieu was sentenced to one year of home incarceration with special conditions and two years active probation. Subsequently, in September 2018, the trial court amended the sentence to two years at hard labor, suspended, and placed Mr. Landrieu on active probation for a period of two years.

      A copy of the commission was not entered into evidence and instead was read to the jury by Blake Arcuri, general counsel for the Orleans Parish Sheriff's Office.

      Even if the victim's statement was an inconsistent statement, the court could have properly excluded the federal lawsuit under La. C.E. art. 607(D)(2) on grounds that introduction would confuse they jury as to what issues were involved, since the victim's belief about whether Mr. Landrieu was a police officer is irrelevant to the charge of aggravated assault with a firearm or Mr. Landrieu's justification defense.


source: Caselaw Access Project

author: HIGGINBOTHAM, J.

license: Public Domain

text:
    STATE of Louisiana v. Jack Calvin CONKLIN
    NO. 2018 KA 0718
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: February 28, 2019
    Warren L. Montgomery, District Attorney, Matthew Caplan, Butch Wilson, Assistant District Attorney, Covington, LA, Attorneys for Appellee, State of Louisiana
    Jane L. Beebe, Louisiana Appellate Project, New Orleans, LA, Attorney for Defendant-Appellant, Jack Calvin Conklin
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

Defendant, Jack Conklin, was charged by bill of indictment with aggravated rape (count one), a violation of La. R.S. 14:42, sexual battery of a victim younger than thirteen (count two), a violation of La. R.S. 14:43.1(C)(2), and production of pornography involving juveniles (count three), a violation of La. R.S. 14:81.1. He pled not guilty on all three counts. Defendant filed motions to suppress his identification, arrest, statements, and evidence, which were denied. After a trial by jury, defendant was found guilty as charged. The trial court denied defendant's motion for post-verdict judgment of acquittal and motion for new trial. Defendant waived sentencing delays, and the court imposed concurrent terms of life on count one, fifty years on count two, and fifty years on count three, all at hard labor, to be served without the benefit of probation, parole, or suspension of sentence. The trial court also denied defendant's motion for reconsideration of sentence. Defendant now appeals.

STATEMENT OF FACTS

Though defendant was convicted of three offenses stemming from the ongoing abuse of A.R. between June 5, 2012 and February 14, 2013, defendant's first assignment of error regarding his motion to suppress involves facts stemming from a largely unrelated event occurring about seven months later. Police involvement in that later event led to a secondary investigation concluding in the indictments for which defendant was ultimately convicted. The following facts were adduced at a suppression hearing conducted on August 24, 2017.

On September 27, 2013, while at their home on Moonraker Drive in Slidell, Mr. and Mrs. Dobson witnessed a suspicious vehicle slowly and repeatedly passing and taking photographs of their home. After being alerted by their daughter that the vehicle passed by again, Mr. Dobson followed the driver, defendant, to his residence, and had a conversation with him. During their encounter at defendant's home, defendant told Mr. Dobson he had witnessed two young juveniles in the Dobsons' backyard engaging in sexual intercourse. Mr. Dobson had Mrs. Dobson bring their child over to see if defendant could identify whether or not she was one of the juveniles he claimed to have seen in the Dobsons' backyard. Defendant kept referring to her as "Zoey," despite Mrs. Dobson telling him that was not her name. Defendant told Mr. Dobson he keeps candy and toys in his truck for when he sees children, and he made several attempts to engage the Dobsons' seven-year-old daughter in conversation.

While at defendant's house, Mrs. Dobson noticed that he had children's toys and bicycles in his garage, even though he had no children. Mrs. Dobson also noted that defendant told her not to worry about his photograph taking because he liked to take photographs of birds. Defendant invited her daughter, who he referred to as "Zoey," to come by any time and to come back the next day to fish and ride bicycles. Defendant told Mrs. Dobson that he knew how long the Dobsons had been at their Moonraker Drive address and that "Zoey" liked to fish. Mrs. Dobson reported defendant seemed very focused on her daughter's movements.

When the Dobsons returned home, they notified the police. Thereafter, Deputy Brett Posner of the St. Tammany Sheriff's Office ("STSO") was dispatched to the Dobsons' home. The Dobsons told Dep. Posner that their daughter had been playing outside at the time, and the driver was holding the phone out of the vehicle window and appeared to be taking pictures. Their neighbor, Mr. Bouche, corroborated the story, saying he witnessed the suspect vehicle driving past with the driver holding a phone outside of the window.

The Dobsons told Det. Posner about their conversation with defendant and gave him the address where they spoke with defendant. Also, Mrs. Dobson reported to Dep. Posner that she had been called by the Office of Child Services ("OCS") twice over the previous two days asking if she had a nine-year-old daughter named "Zoey" and informing her that there were reports of children having sex in their backyard. Det. Posner noted that the Dobsons were visibly shaken and that Mr. Bouche appeared to be alarmed or scared.

Dep. Posner left the Dobsons' home on Moonraker Drive and drove to the address given to him by the Dobsons. Upon his arrival, Dep. Posner encountered defendant and informed him of his Miranda rights. Defendant waived his rights. When confronted with the allegation that he had been driving past the Dobsons' house taking photographs, defendant admitted he had driven past twice and had taken photographs. Defendant explained he was attempting to find the address of a house upon which he claimed to have made an OCS report in the weeks before. Specifically, defendant claimed to have witnessed indecent behavior between juveniles in the backyard. Defendant showed Dep. Posner the photos he had taken of the Moonraker Drive house on his phone.

After having talked about the incident with the Dobsons and their neighbor, Mr. Bouche, seeing their reactions and demeanor, along with defendant's later corroboration of some of their details, Dep. Posner found probable cause that defendant had committed the offense of stalking and arrested him.

In court, Dep. Posner identified the defendant as the man he arrested that day. Additionally, after the deputy viewed copies of the photographs recovered from defendant's phone, he Deputy Posner said the photographs were low quality and he couldn't tell whether there were children depicted in any of them.

Following defendant's arrest, STSO Detective Scott Davis went to the jail to speak with defendant regarding a pre-existing investigation. Det. Davis testified that he would have taken steps to interview defendant even had defendant only received a summons for stalking, rather than being arrested. Following that interview, Det. Davis furthered an investigation leading to the factually unrelated instant convictions. Det. Davis also testified that defendant's former employer, unprompted, contacted law enforcement in 2016 to notify them that they found on his work computer photographs of defendant performing sex acts on a minor.

ASSIGNMENT OF ERROR # 1: MOTION TO SUPPRESS

In his first assignment of error, defendant contends that the trial court erred in denying his motion to suppress. Specifically, defendant argues that he was arrested for innocuous, though admittedly "creepy" behavior, and his version of events were the most accurate; therefore, there was no probable cause or reasonable suspicion of stalking to justify any police contact with him on September 27, 2013. Without that contact, defendant reasons that there would not have been the subsequent investigation, including the search warrants obtained by police, leading to the instant convictions from which he appeals. The State, highlighting the testimony of Dep. Posner and written witness statements from the Dobsons and Mr. Bouche, contends there was sufficient evidence establishing probable cause such that law enforcement would have been "grossly negligent" had the officer not arrested defendant for stalking.

The Fourth Amendment to the United States Constitution and article I, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. Subject only to a few well-established exceptions, a search or seizure conducted without a warrant issued upon probable cause is constitutionally prohibited. See State v. Matthews, 2015-1281 (La. App. 1st Cir. 2/26/16), 191 So.3d 1080, 1083, writ not considered sub nom., State ex rel. Matthews v. State, 2016-1182 (La. 11/15/16), 209 So.3d 787. Once a defendant makes an initial showing that a warrantless search or seizure occurred, the burden of proof shifts to the State to affirmatively show it was justified under one of the narrow exceptions to the rule requiring a search warrant. La. Code Crim. P. art. 703(D). A trial court's ruling on a motion to suppress the evidence is entitled to great weight, because the district court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Poole, 2009-1933 (La. App. 1st Cir. 3/26/10), 2010 WL 1170634, *2 (unpublished). When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e ., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 280-81 ; State v. Magee, 2017-1217 (La. App. 1st Cir. 2/27/18), 243 So.3d 151, 161. However, atrial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 751.

A peace officer may lawfully arrest a person without a warrant when he has reasonable cause to believe that the person to be arrested has committed an offense. La. Code Crim. P. art 213(A)(3). Probable cause to arrest exists when facts and circumstances within the arresting officer's knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. Kennedy v. Sheriff of East Baton Rouge, 2004-0574 (La. App. 1st Cir. 3/24/05), 899 So.2d 682, 688, writ granted, 2005-1418 (La. 1/13/06), 920 So.2d 217, and rev'd on other grounds, 2005-1418 (La. 7/10/06), 935 So.2d 669. Although mere suspicion cannot justify an arrest, the officer does not need proof sufficient to convict. Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. Whether probable cause existed at the time of the arrest must be determined without regard to the result of the subsequent search. State v. Lumpkin, 2001-1721 (La. App. 1st Cir. 3/28/02), 813 So.2d 640, 644, writ denied, 2002-1124 (La. 9/26/03), 854 So.2d 342.

Louisiana Revised Statute 14:40.2(A) provides in pertinent part:

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

Stalking cannot consist of a single incident; the behavior must, by definition, be recurring or renewed. State v. Jacks, 2007-0805 (La. App. 1st Cir. 11/2/07), 978 So.2d 922, 926, writ denied. 2008-0345 (La. 9/19/08), 992 So.2d 951.

In the instant case, the State set forth evidence that defendant was observed driving in front of the Dobsons' home multiple times. Defendant was seen driving slowly and taking photographs while children were outside. Mrs. Dobson presented in her statement to Dep. Posner that someone had called OCS at least twice to report allegations of child sex abuse at her residence involving a child named "Zoey," a name incorrectly and insistently used by only defendant when referring to the Dobsons' daughter. Moreover, Mrs. Dobson reported the manner in which defendant acted toward her daughter, namely, soliciting the seven-year-old to "come by any time" and providing specific details about her child that could only come from extensive surreptitious surveillance. Dep. Posner testified that the Dobsons and their neighbor, Mr. Bouche, were alarmed by defendant's behavior. While the actions taken by defendant individually are not illegal in-and-of themselves, taken as a pattern of activity, Dep. Posner reasonably viewed it as indicative of an intent to cause emotional distress in the Dobson family. Given the great discretion given the trial court's credibility determinations at trial, and that the State only need show the officer had probable cause to believe the offense had been committed, defendant fails to show an abuse of that discretion in the trial court's denial of his motion to suppress.

Further, even assuming arguendo that there was no probable cause to arrest defendant as a result of a stalking investigation, the State elicited testimony that defendant's former employer contacted the STSO sua sponte to report that defendant possessed apparent child pornography on his work computer. Additionally, Det. Davis testified defendant would have been brought to his attention had defendant only received a summons, instead of being arrested. As such, defendant and the evidence recovered in his home would have come to law enforcement's attention independently of the stalking investigation. See State v. Lee, 2005-2098 (La. 1/16/08), 976 So.2d 109, 127, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008). This claim is without merit.

ASSIGNMENT OF ERROR # 2: VOIR DIRE

In his next assignment of error, defendant makes two general claims. First, defendant alleges the trial court erred when it denied his challenges for cause of three different jurors, based on answers they gave. Two of the venire members at issue were police officers, and a third said he would expect to hear from defendant, that he believed child witnesses were more credible, and that he would be thinking of his own ten-year-old daughter during the proceedings. Second, defendant contends the trial court should have struck an entire panel after one juror, another former law enforcement officer, made "improper commentary." The State argues the three venire members at issue in the first claim demonstrated they were able to render judgment according to the law and that the statements made by the juror in the second issue were not of the degree as to render the remainder of the panel unable to fairly decide the case.

Under La. Code Crim. P. art. 797(2), in relevant part, a defendant may challenge a juror for cause if "[t]he juror is not impartial, whatever the cause of his partiality." A challenge for cause should be granted, even if the juror declares an ability to remain impartial, when the juror's responses reveal facts from which bias, prejudice or impartiality may be reasonably inferred. State v. Anthony, 98-0406 (La. 4/11/00), 776 So.2d 376, 392, cert. denied, 531 U.S. 934, 121 S.Ct. 320, 148 L.Ed.2d 258 (2000). A charge of juror bias may be removed if the prospective juror is rehabilitated, that is, if the court is satisfied that the juror can render an impartial verdict according to the evidence and instructions given by the court. Anthony, 776 So.2d at 392. The trial judge has broad discretion and reviewing courts will not disturb its rulings absent an abuse of that discretion. State v. Dotson, 2016-0473 (La. 10/18/17), 234 So.3d 34, 39. An appellate court grants great deference to atrial court's evaluation of juror responses and "should not attempt to reconstruct the voir dire by a microscopic dissection of the transcript in search of magic words or phrases that automatically signify the jurors' qualification or disqualification." State v. Miller, 99-0192 (La. 9/6/00), 776 So.2d 396, 405-06, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001). However, if the judge erroneously denies a cause challenge and defendant exhausts his peremptory challenges, prejudice is presumed. See e.g. State v. Ball, 2000-2277 (La. 1/25/02), 824 So.2d 1089, 1102, cert. denied sub nom., 537 U.S. 864, 123 S.Ct. 260, 154 L.Ed.2d 107 (2002). Moreover, a defendant must use a peremptory challenge, should he still have one, on the venire member in question lest he waive the complaint on appeal. State v. Sparks, 88-0017 (La. 5/11/11), 68 So.3d 435, 460, cert. denied, 566 U.S. 908, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012).

Brian Englade

During his voir dire testimony, Englade indicated he understood that children can lie, that while he would want to testify, he understood that not everyone would want to, and that he would not find defendant guilty unless all of the elements of the offense were proven. Additionally, though Englade acknowledged that having a child "might impair" his judgment and that a child witness may start with a "little bit of veracity other people might not start with[,]" he still felt he could give defendant the same trial he would want for himself.

Defendant challenged Englade for cause because he alleged that with Englade "a child would have a heads up on credibility." Defendant also argued that Englade had said having a 10-year-old daughter would "also weigh in the back of his mind, favoring the [S]tate." The trial court denied the challenge, holding it did not find Englade's "comments rise to a level of bias or prejudice on his part." Defendant objected, and later used a peremptory challenge on Englade.

Jared Lunsford

During general voir dire questioning, Lunsford explained that he worked in the major crimes unit of the St. Tammany Sheriff's Office, that he conducts his investigations in an unbiased fashion, was only acquainted with and did not work with Det. Davis, did not work on child cases, would not lend a law enforcement witness more credibility by virtue of their job, would hold the State to its burden of proof, understood that children can lie, and understood the State carries the ultimate burden at trial.

Defendant challenged Lunsford for cause, claiming his working in the same Sheriff's Office as a key witness would color his views. The court denied the challenge. Defendant did not use a remaining peremptory challenge on Lunsford as the jury panel was completed before Lunsford was called for further questioning.

Jonathan Harrison

Harrison stated he was a special agent with the United States Department of Housing and Urban Development, that his law enforcement background would not influence his decision either way, that he could detach emotions from consideration of the case, that he could hold the State to its burden, and law enforcement witnesses would not be regarded as more credible before their testimony, and he acknowledged that children can lie. Harrison also stated that while he had worked on a child pornography case as a customs agent, he would never want to work one again.

Defense counsel raised a challenge for cause, but the trial court denied it, finding Harrison's history in law enforcement alone did not rise to the level of a cause challenge. Again, defendant did not require a peremptory challenge as the jury was selected before consideration of Harrison was necessary. On that subject, however, defense counsel noted on the record he did not use up his peremptory challenges on Lunsford and Harrison in order to "[accept] one lesser evil" because of both of them being "worse" venire members.

Scott Hurley

Defendant points to statements made by venireman and former St. Bernard Sheriff's Deputy Scott Hurley that he claims tainted the entire panel, which should have been excused for cause as a result. Specifically, Hurley was asked about his prior background in law enforcement in general and his familiarity with Det. Davis in particular. Hurley acknowledged that he knew Det. Davis and that he knew Davis to be someone "that you went and learned from." Hurley said, if "[Det. Davis] brought a case up I'm going to trust him." When Hurley was asked if he was going to make any determinations before [Det. Davis] testifies he said "No. But knowing the kind of man and detective he is - Hurley was then cut off by defense counsel, who objected and moved to strike the entire panel.

Defendant claimed Hurley vouched for Det. Davis' credibility, and that by explaining he knew Det. Davis personally, the remaining panel members would similarly value his testimony more. The trial court reasoned that while Hurley may have disqualified himself as a juror, it did not believe the entire panel had formed an opinion about Det. Davis' credibility. In the trial court's view, without more, there was insufficient evidence to strike the remaining panel members. At the conclusion of voir dire of that panel, the court reiterated that it had heard nothing indicating the remaining members had "some preconceived notion that a witness somehow rose to this great level of being perfect and beyond question." The State stipulated the cause challenge to Hurley.

As an initial matter, defendant did not exhaust his peremptory challenges and only one of the complained-of jurors was selected to serve on the jury. Defendant used two remaining peremptory challenges on proposed alternate jurors. As a result, defendant arguably waived his claims on appeal by failing to exhaust his peremptory challenges, notwithstanding his stated strategy of accepting a disfavored juror rather than take one of them. See Sparks, 68 So.3d at 460.

In any event, defendant fails to demonstrate how the trial court abused its considerable discretion in denying his challenges for cause. That Lunsford and Harrison were law enforcement officers is of no moment. A law enforcement officer is not automatically excluded from service by nature of his job, but rather a trial court should determine a potential juror's impartiality on a case-by-case basis. State v. Murphy, 2016-0901 (La. App. 1st Cir. 10/28/16), 206 So.3d 219, 225. The court was evidently satisfied with both Lunsford and Harrison's ability to apply the law as given and evaluate the credibility of the police officer witnesses as they would anyone else. Defendant shows nothing specific in their exchanges with the prosecutor, defense counsel, or court indicating the court's conclusions to be in error.

A district court is vested with broad discretion in ruling on challenges for cause, and these rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Smith, 2014-0456 (La. App. 1st Cir. 12/23/14), 2014 WL 7331935 *6 (unpublished). When addressing whether a challenge for cause should be granted, the district court judge must look at the juror's responses during his or her entire testimony, not just isolated answers. State v. Johnson, 2016-0514 (La. App. 1st Cir. 10/31/16), 2016 WL 6427710 *9 (unpublished), writ denied, 2016-2185 (La. 9/15/17), 225 So.3d 477. Thus, only where it appears that the judge's exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the accused, will the ruling of the district court be reversed. See State v. Dorsey, 2010-0216 (La. 9/7/11), 74 So.3d 603, 625, cert. denied, 566 U.S. 930, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012) ; State v. Mills, 2013- 0573 (La. App. 1st Cir. 8/27/14), 153 So.3d 481, 487, writ denied, 2014-2027 (La. 5/22/15), 170 So.3d 982, and writ denied sub nom., State ex rel. Mills v. State, 2014- 2269 (La. 9/18/15), 178 So.3d 139. Given the court's discretion stemming from its ability to see and hear Englade and his responses, defendant provides nothing to this court to warrant overturning the trial court's decision.

Finally, regarding venire member Hurley, whether or not to strike a single juror or an entire panel is committed to the discretion of the trial judge. State v. Lucky, 96-1687 (La. 4/13/99), 755 So.2d 845, 853, cert. denied, 529 U.S. 1023, 120 S.Ct. 1429, 146 L.Ed.2d 319 (2000). While Hurley was excused for his statements, there were no other jurors expressing similar feelings regarding inherent officer credibility. Here, there is no support for a contention the remaining panel members could not apply the law as given, or could not be fair and impartial. See Smith, 2014 WL 7331935 *6 ; State v. Cook, 598 So.2d 423, 427 (La. App. 5th Cir. 1992) ; State v. Baker, 528 So.2d 776, 779 (La. App. 3d Cir. 1988). This claim is without merit.

CONVICTIONS AND SENTENCES AFFIRMED.

      Defendant was charged for an offense occurring prior to the 2015 amendment to the statute by 2015 La. Acts No. 256, § 1.

      In accordance with La. R.S. 46:1844(W), the initials for minor victims will be used.

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      The "reasonable cause" standard of La. Code Crim. P. art 213(3) is equivalent to "probable cause" under the general federal constitutional standard. To read Article 213 as allowing an arrest on less than probable cause would put the article afoul of the Fourth Amendment. State v. Caples, 2005-2517 (La. App. 1st Cir. 6/9/06), 938 So.2d 147, 154, writ denied, 2006-2466 (La. 4/27/07), 955 So.2d 684.


author: WHIPPLE, C.J.

text:
    STATE of Louisiana v. Joleslie LOONEY
    2018 KA 1416
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: February 28, 2019
    Hillar C. Moore, III, Dana J. Cummings, Allison Miller Rutzen, Baton Rouge, LA, Counsel for Appellee, State of Louisiana
    Bertha M. Hillman, Covington, LA, Counsel for Defendant/Appellant, Joleslie Looney
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

The defendant, Joleslie Looney, was charged by grand jury indictment with one count of manslaughter, a violation of LSA-R.S. 14:31. She pled not guilty, but later withdrew the plea and pled not guilty and not guilty by reason of insanity. The trial court appointed a sanity commission to examine the defendant's sanity at the time of the commission of the crime. Thereafter, the State and the defense stipulated to the doctor's reports, and the trial court ordered the matter to proceed. After a trial by jury, the defendant was found guilty as charged of manslaughter. The trial court sentenced the defendant to forty years imprisonment at hard labor. The defendant now appeals, claiming that the sentence is constitutionally excessive. For the following reasons, we affirm the defendant's conviction and sentence.

STATEMENT OF FACTS

In early 2013, Bessie Looney, the victim, was living in Rogersville, Tennessee, near Thomas Looney, III, the victim's son and the defendant's brother, who lived in Kingsport, Tennessee. At that time, Bessie suffered from a bad back and was "getting a little forgetful." Sometime in 2013, Thomas called his sister, the defendant, and suggested that either they place their mother in an assisted living facility in Tennessee or that the defendant move to Tennessee and help him take care of their mother. Sometime between February and April of 2013, the defendant and her daughter, Lauren Looney, brought Bessie back with them to Baton Rouge, Louisiana. Thomas stated that he was sure Bessie could have afforded a good nursing home and that he and Bessie owned several properties. Thomas worked for a paper mill and made a salary in excess of $ 100,000.00. He explained that if the defendant had indicated she needed help caring for their mother, he would have called on one of the members of their large extended family for assistance. Additionally, he had always sent money to the defendant when she asked for assistance, and on the last occasion, he had sent the defendant $ 500.00.

On September 29, 2014, Sergeant Glenn Hutto was called to the home of the defendant in Baton Rouge to photograph the scene of a death. Regarding the condition of the residence, Sgt. Hutto noted that it had a strong, bad odor. In one of the bedrooms, he discovered Bessie dead and slumped over in a wheelchair. Sgt. Hutto testified that the floors were sticky from "some form of waste all over it." When Bessie was removed from the wheelchair by someone from the coroner' office, police officers observed that she had multiple wounds on her lower back and posterior. Her skin had so adhered to the wheelchair's strap that the officers had difficulty removing the strap. Her skin had also adhered to the pad on which she sat. She was nude from the waist down with a dress draped over her head. Corporal Sherri Harris, the lead detective on the case, testified that it appeared someone had attempted to dress Bessie, but was unable to fit the dress onto Bessie's body because of the onset of rigor mortis. Corp. Harris noted that the sheets were the only clean items in the room. When police returned with a search warrant, they discovered that the stench came partially from the closet in Bessie's room. When police opened the door, the swarm of flies that flew out was so thick that the officers were forced to exit the house because they could not breathe without inhaling a fly. The officers discovered that the closet was full of soiled bedsheets, soiled diapers, and "paddings." Additionally, the officers discovered that Bessie's bedroom was "covered in urine and fecal matter" and that it also covered her wheelchair, the bathtub, the bathroom, and the clothes recovered from the closet.

When police officers received information from the coroner regarding Bessie's bedsores, they arrested the defendant and Lauren for cruelty to the infirmed. Bessie's doctor indicated at trial that on April 11, 2013, the last time he weighed her, Bessie weighed one hundred and thirty pounds. He stated that the family told him they had not been giving Bessie her prescribed B-12 shots because they did not have any syringes. He also testified that after May of 2013, there was no indication that Bessie was seen again by any doctor at the Baton Rouge Clinic.

Dr. William "Beau" Clark, the East Baton Rouge Parish coroner and the State's expert witness in emergency medicine, testified that Bessie weighed eighty-two pounds at the time of her death. She also had multiple infected bedsores, one of which extended into the muscle and bone of her right hip. Other bedsores were found on the rest of her body, including her shoulder, elbow, foot, knee, wrist, and hand. Dr. Clark testified that Bessie's cause of death was septic shock as a result of the bedsores becoming infected with bacteria from feces. The autopsy also revealed that Bessie suffered from high blood pressure, Alzheimer's disease, vascular dementia, and osteoporosis and that her kidney functions were consistent with an individual who was dehydrated. The toxicology report revealed that none of the medicines that are used to treat the medical conditions from which Bessie suffered were present.

At trial, the defendant's friend, Cynthia Eagles, indicated the defendant worked for the City of Baton Rouge Public Works Department, and her employers did not appreciate her hard work, and her work environment was "hostile" because she was "bullied" at work. She characterized the defendant as a "hard-working person that struggled a lot" and "a proud person who didn't want people to know about her struggle." Ms. Eagles also testified that the defendant, who did not have a vehicle, never asked her to drive Bessie to the doctor.

Another friend of the defendant, Chinquania Gallo, testified that the defendant had a number of physical ailments and suffered from work stress. She also stated that the defendant struggled with her finances and a lack of transportation. The defendant did not, however, ever ask Ms. Gallo to help her transport Bessie to the doctor or hospital.

Dr. Herman Soong, a psychiatrist, testified that the defendant could distinguish between right and wrong at the time of the offense and that the defendant told him that she was unaware that her mother had bedsores. However, she later told him that she knew of the bedsores, but claimed she was unaware of their severity. The defendant also told Dr. Soong that she waited approximately an hour to call 911 after she discovered her mother had died because she wanted to change the sheets and dress her mother first. Dr. Soong testified that at the time of the offense, the defendant suffered from stress and depression, but did not meet any criteria for a "major mental disorder or depression."

At trial, the jury was instructed that in order to find the defendant guilty of manslaughter, it must find that she was guilty of cruelty to the infirmed.

EXCESSIVE SENTENCE

In her sole assignment of error, the defendant contends that the sentence of forty years, as applied to her at fifty-seven years old, is unconstitutionally excessive because it is essentially a life sentence. She argues that this court should consider the sentence in light of her age and in light of the fact that her issues with depression and work stress, limited resources, and lack of necessary skills rendered her unable "to deal with the situation."

Article I, Section 20 of the Louisiana Constitution prohibits the imposition of cruel or excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. A district court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Forrest, 2016-1678 (La. App. 1st Cir. 9/21/17), 231 So.3d 865, 872, writ denied , 2017-1683 (La. 6/15/18), 257 So.3d 687.

The Louisiana Code of Criminal Procedure sets forth items that must be considered by the district court before imposing sentence. See LSA-C.Cr.P. art. 894.1. The district court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the guidelines. Forrest, 231 So.3d at 872.

The articulation of the factual basis for a sentence is the goal of LSA-C.Cr.P.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C.Cr.P. art. 894.1. The trial judge should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. State v. Dufrene, 2017-1496 (La. App. 1st Cir. 6/4/18), 251 So.3d 1114, 1125.

As applicable in this case, manslaughter is a homicide committed, without any intent to cause death or great bodily harm, when the offender is engaged in the perpetration or attempted perpetration of cruelty to the infirmed. See LSA-R.S. 14:31(A)(2)(a) and LSA-R.S. 14:93.3(A). Cruelty to the infirmed, a felony, is the intentional or criminally negligent mistreatment or neglect by any person, including a caregiver, whereby unjustifiable pain, malnourishment, or suffering is caused to the infirmed, a disabled adult, or an aged person, including but not limited to a person who is a resident of a nursing home, mental retardation facility, mental health facility, hospital, or other residential facility. LSA-R.S. 14:93.3(A) (prior to amendment by 2014 La. Acts No. 811, § 6). "Caregiver" is defined as "any person or persons who temporarily or permanently is responsible for the care of the infirmed, physically or mentally disabled adult, or aged person, whether such care is voluntarily assumed or is assigned." LSA-R.S. 14:93.3(B) (prior to amendment by 2014 La. Acts No. 811, § 6). "Caregiver" includes but is not limited to adult children, parents, relatives, neighbors, daycare institutions and facilities, adult congregate living facilities, and nursing homes, which or who have voluntarily assumed or been assigned the care of an aged or infirmed person or disabled adult, or have assumed voluntary residence with an aged or infirmed person or disabled adult. Id. An aged person is any individual sixty years of age or older. LSA-R.S. 14:93.3(C) (prior to amendment by 2014 La. Acts No. 811, § 6).

As applicable here, whoever commits the crime of manslaughter shall be imprisoned at hard labor for not more than forty years. LSA-R.S. 14:31(B). The defendant was sentenced to forty years at hard labor. Thus, the defendant received the maximum sentence allowed under the law. Maximum sentences may be imposed only for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. State v. Parker, 2012-1550 (La. App. 1st Cir. 4/26/13), 116 So.3d 744, 754, writ denied, 2013-1200 (La. 11/22/13), 126 So.3d 478.

At the sentencing hearing, the trial judge found the defendant to be one of the worst offenders and the offense to be one of the worst of its kind. He noted the offense's highly disturbing nature and added that despite the physical violence he has witnessed in murder cases during his lengthy tenure as a judge, he had "never, ever been as affected by a case as I was [in] this one." In finding the defendant to be one of the worst offenders, the trial court noted that the defendant and her daughter "starved her mother to death and left her strapped in a wheelchair[,]" and did not offer her any assistance. He did not "understand how any human being could have done that to anybody, much less their mother." When the defendant attempted to make a statement and said, "Your Honor, the things, it was not like that[,]" the trial judge responded, "Ma'am, I heard the trial. It was exactly like that[,]" and cut her off from speaking further.

The trial court also took note of a letter to the court from Thomas Looney III in which he discussed their mother's caring nature. He stated that he never wanted to have any contact with the defendant or her daughter again.

In light of these considerations, the trial judge, having presided over the trial and having heard all relevant facts and arguments, concluded that the aggravating circumstances outweighed any mitigating circumstances in this case. We agree. A thorough review of the record reveals that the trial court adequately considered the criteria of Article 894.1 and did not manifestly abuse its discretion in imposing the sentences herein. See LSA-C.Cr.P. art. 894.1(A)(2), (B)(1), (B)(2), (B)(3), (B)(4), & (B)(21). Additionally, given the reprehensible circumstances of this case, including the extreme cruelty inflicted upon Bessie, who suffered from dementia and failing physical health and was dependent upon the defendant, for her care, the record provides ample justification for the sentence that the trial court imposed. We find that the trial court reasonably concluded that the defendant was one of the worst offenders and that the instant crime was one of the worst offenses of its kind. The defendant neglected her role as the primary caregiver to her elderly mother to the point of strapping her into a wheelchair, allowing her to lose almost fifty pounds, and not administering any medication for her medical issues. The defendant allowed her mother to develop muscle- and bone-eating bedsores and ultimately stood by and allowed her mother to die of septic shock as a result of infection from the filth in which the defendant allowed her mother to wallow. Therefore, the sentence imposed was not grossly disproportionate to the severity of the offense or shocking to the sense of conscience, and was not constitutionally excessive.

This assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.

Higginbotham, J., concurs.

      The defendant's daughter, Lauren Looney, was also charged with manslaughter.

      The coroner's report indicated that in the defendant's home, two bottles of Donepril and one bottle of Amlodipine, all of which were filled in 2014 for quantities of thirty, were discovered. The first bottle, filled on July 1, 2014, had eleven pills remaining; the second bottle, filled on August 11, 2014, had twenty-two pills remaining; and the third bottle, filled on August 11, 2014, had fifteen pills remaining.


author: WILLIAMS, C.J.

text:
    STATE of Louisiana
    In the INTEREST OF W.A.P.
    No. 52,779-JAC
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019
    NEWMAN, OLIVEAUX & MAGEE, LLP, By: Todd G. Newman Counsel for Appellant, W.A.P.
    ROBERT S. TEW, District Attorney, S. CHARLOTTE FARSHIAN, Assistant District Attorney, Counsel for Appellee, State of Louisiana
    Before WILLIAMS, STONE, and McCALLUM, JJ.
   WILLIAMS, C.J.

The juvenile, W.A.P., was adjudicated a delinquent youth for the offense of third degree rape, a violation of La. R.S. 14:43. The disposition was to commit him to the Louisiana Office of Juvenile Justice (OJJ) for three years, with all but one month suspended to be served in an unsecure facility, and three years of supervised probation. W.A.P. now appeals. For the following reasons, we affirm.

FACTS

The record shows that on September 16, 2017, around 8:00 p.m., L.B., a 15-year-old high school student, attended a party with three of her friends. The party was held at a residence in Monroe, Louisiana. During this teenage party, the homeowners discovered there was alcohol present and threatened to call the police. Some of the teenagers in attendance walked from the backyard of the house to an adjacent park, where they continued to drink. L.B. later admitted to consuming two bottles of hard lemonade, which she took from home, and unknown alcohol "off the table in a bowl" at the party. At some point, L.B.'s friends were unable to find her and began looking for her in the park. L.B. was found lying on the ground in the park, with W.A.P. seen fixing his shorts and running away snickering and yelling about having sex. L.B.'s friends helped her get up, located her phone and her shoes. As they were walking back from the park, a friend noticed blood on L.B. and asked what happened. L.B. began to cry and explain that she said no many times, but W.A.P. did not stop. L.B. called her mother, who came immediately to pick her up from the scene.

After arriving home, L.B.'s mother took photographs, but due to the continuous bleeding her mother took her to St. Francis Hospital. Once at the hospital, L.B. was seen by a S.A.N.E (Sex Assault Nurse Examiner) nurse, who noted lacerations of the girl's vaginal area. An emergency room physician evaluated L.B. to determine if surgery or anything else needed to be done due to the girl's injuries and the excessive amount of blood loss. L.B. was released from the hospital the next day and four days later, she saw Dr. Meade O'Boyle, a pediatrician board certified in child abuse and neglect. L.B. was also interviewed by Monroe Police Detective Stephen Snowberger.

In January 2018, the state filed a petition to declare W.A.P. a delinquent, alleging third degree rape ( La. R.S. 14:43 ). W.A.P. was arraigned and entered a denial. The state later filed an amended petition to declare W.A.P. a delinquent, alleging that he committed third degree rape by having vaginal sexual intercourse without lawful consent of the victim contrary to the provisions of R.S. 14:43. In August 2018, at the close of evidence, the trial court adjudicated W.A.P. a delinquent for the offense of third degree rape.

At the disposition hearing, the trial court noted its review of the predisposition investigation (P.D.I.) and the recommendation of the OJJ. The trial court ordered that W.A.P.'s disposition was commitment to OJJ for a period of three years, all but one month suspended and to be served in a non-secure detention center. The trial court also placed W.A.P. on three years of supervised probation with conditions, including a curfew, completion of sexual offender therapy, no contact with the victim and no unsupervised access to the internet or to social media. This appeal followed.

DISCUSSION

In three assignments of error, W.A.P. contends the evidence was insufficient to support his conviction. W.A.P. first argues that the trial court erred in finding that L.B. was in a stupor or abnormal condition of mind because evidence showing the mere consumption of alcohol is not enough to establish that the victim is in a stupor.

In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed. 2d 560 (1979) ; State v. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717, writ denied , 2016-1419 (La. 5/19/17), 221 So.3d 78. To adjudicate a child delinquent, the state must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. La. Ch.C. art. 883. The standard for the state's burden of proof in a juvenile delinquency proceeding is no less strenuous then the standard of proof required in a criminal proceeding against an adult. State in the Interest of A.G. , 630 So.2d 909 (La. App. 4 Cir. 1993).

La. Const. art. V, § 10 (B) mandates that an appellate court review both law and facts when reviewing juvenile adjudications. Therefore, as in the review of civil cases, a factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong. See State ex rel. E.D.C. , 39,892 (La. App. 2 Cir. 5/11/05), 903 So.2d 571, writ denied , 2005-1568 (La. 1/27/06), 922 So.2d 544 ; State in Interest of S.S. , 557 So.2d 407 (La. App. 4 Cir. 1990).

Third degree rape is committed when the sexual intercourse is deemed to be without the lawful consent of a victim because it is committed when the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent and the offender knew or should have known of the victim's incapacity. La. R.S. 14:43(A)(1). Third degree rape is also committed when the offender acts without the victim's consent. La. R.S. 14:43(A)(4).

A defendant may be convicted of simple rape (third degree rape) when the victim's capacity to resist was negated by an abnormal condition or state of mind produced by alcohol consumption. State v. Porter , 93-1106 (La. 7/5/94), 639 So.2d 1137. The element of a stupor or abnormal condition of the mind produced by an intoxicating agent, such as alcohol, does not require an unaware victim with no capacity to resist, but rather an agent-influenced incapacity to effectively resist the advances of the perpetrator. The degree of alcohol influence is for the fact finder to decide. See State v. Porter , supra ; State v. Kelly , 51,701 (La. App. 2 Cir. 5/23/18), 244 So.3d 1251. The provisions of La. R.S. 14:43 criminalize behavior which takes advantage of a person who has had too much to drink and participates in an act to which he or she would not otherwise have consented. State v. Kelly, supra .

In the present case, L.B.'s mother testified that her daughter was recently prescribed Adderall, which is an amphetamine, and that she had taken the prescription medication on the day of the party. L.B.'s mother stated that the girl admitted to taking two alcoholic beverages from their house. L.B.'s mother was aware that L.B. had been drinking at the party and consumed enough alcohol to be considered legally drunk, but was not sure of the actual amount of alcohol used.

Dr. Robert Kerry testified that he saw L.B. when she arrived at the emergency room after the incident. Dr. Kerry stated that a toxicology test showed that L.B.'s blood alcohol level was 123 and that the current legal intoxication level is .08 or 80 if you move the decimal. Dr. Kerry testified that L.B. stated that she had consumed alcohol that evening and listed Adderall as one of her routine medications. Dr. Kerry confirmed that L.B.'s blood alcohol level was 1½ times greater than the limit for an adult to operate a vehicle, plus she tested positive for amphetamines.

Teresa Daniel, R.N., testified she was the S.A.N.E. nurse who examined L.B. when she presented to the St. Francis emergency room. Nurse Daniel stated that L.B. indicated that she had consumed alcohol and had taken Adderall, an amphetamine. Nurse Daniel testified that the mixture of alcohol and amphetamines was not good for a person's health and could cloud one's judgment.

Dr. Meade O'Boyle testified that she saw L.B., who said she had been drinking prior to the incident. Dr. O'Boyle stated that the medical records showed that the child's blood alcohol level was .123 and that such a level was inconsistent with a small amount of drinking. Dr. O'Boyle opined that L.B. had been impaired and unable to give consent because of her level of intoxication at the time.

The record shows that sexual intercourse occurred between L.B. and W.A.P. and that L.B. was under the influence of both alcohol and amphetamine. L.B. testified that she had been drinking alcohol at the time and had previously taken her prescribed Adderall. Dr. Kerry and Nurse Daniel testified that L.B.'s blood alcohol level was .123 and that she tested positive for amphetamines. Dr. O'Boyle opined that L.B. could not have consented with such a level of intoxication. As the court stated in Porter , the element of stupor or abnormal condition of the mind produced by an intoxicating agent, such as alcohol, does not require an unaware victim with no capacity to resist, but rather an agent-influenced incapacity to effectively resist the advance of a predator. Thus, the evidence presented supports a finding by the trial court that L.B. was unable to consent to sex and incapable of resisting the sexual aggression of W.A.P. because of her impaired condition of mind as a result of being under the influence of the intoxicating agents of alcohol and amphetamines. This assignment of error lacks merit.

W.A.P. asserts that the trial court erred in finding that he knew or should have known of L.B.'s stupor or abnormal condition of mind. He argues the state did not prove such knowledge because the evidence did not show that he gave the alcohol to the victim or saw her drinking.

Contrary to W.A.P.'s assertion, the evidence is sufficient to support a finding that W.A.P. knew or should have known of L.B.'s impaired condition of mind. The offense of third degree rape does not require that the accused be the person who has created the stupor or abnormal condition of mind, i.e. provided the alcohol. Instead, the law requires only that the accused know or have reason to know of the condition. The parties stipulated that W.A.P. freely and voluntarily waived his rights and gave a statement to Detective Snowberger and it is this statement that Detective Snowberger referenced during trial. Detective Snowberger testified that W.A.P. "said that he believed L.B. was drunk." Although at trial W.A.P. denied making this statement to Detective Snowberger, the trial court heard the testimony and considered the credibility of the individuals. The trial court is given great deference in assessing the credibility of witnesses and could reasonably have determined that W.A.P. was not telling the truth at trial in denying that he told police that he believed L.B. was drunk at the time of the incident. The trial court accepted Detective Snowberger's testimony regarding W.A.P.'s knowledge of L.B.'s intoxication. Viewing the evidence in the light most favorable to the state, we find the evidence sufficient to show that W.A.P. knew and took advantage of L.B.'s impaired condition of mind in committing the offense. This assignment of error lacks merit.

W.A.P. contends the trial court erred in finding that his interaction with the victim was not consensual. He argues that there is not a sufficient basis to convict for lack of consent under R.S. 14:43(A)(4) because the trial court's ruling addresses only factors of incapacity under R.S. 14:43(A)(1).

A fact-trier is not constitutionally required to agree on a single theory to convict a defendant where the evidence supports an instruction as to alternative theories. Schad v. Arizona , 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). A conviction can be upheld if there is sufficient evidence presented on any of the alternative theories with which the fact-trier was charged. State v. Vergo , 594 So.2d 1360 (La. App. 2 Cir.), writ denied , 598 So.2d 373 (La. 1992). Similarly, if the evidence, considered in the light most favorable to the state, is sufficient to prove any theory under the applicable statute, the conviction will be upheld.

In this case, L.B. testified that she walked to the park to find her friends and that she pulled away from W.A.P. when he started kissing her. L.B. stated that she fell when W.A.P. pushed her and he then pulled down her pants and stuck his finger in her vagina. L.B. testified that she told W.A.P. to stop what he was doing more than once, but he refused. L.B. stated that when her friends approached, W.A.P. stood up and ran away.

W.A.P. testified that when he and L.B. went to the park and began having sex, she did not say stop or tell him don't do this. W.A.P. acknowledged that when her friends approached, he got dressed and ran off. W.A.P. testified that when he later saw blood on his clothes, he did not go back to check on L.B.

Nurse Daniel testified that she examined L.B.'s genital area and found lacerations on the vaginal opening and a cut on the hymen. Nurse Daniel described these injuries as being caused by blunt force. Nurse Daniel also testified that the excessive bleeding and severe laceration of the victim's vaginal area were uncommon and concerning, which is why she contacted Dr. Kerry to make sure that suturing or some type of repair was not needed. Nurse Daniel opined that the girl's injuries were not typical of consensual sex.

Dr. O'Boyle testified that she examined L.B. four days after the incident and found extensive tears, trauma, bruising, swelling and active bleeding of the girl's vaginal wall. Dr. O'Boyle stated that there was a complete avulsion of L.B.'s vagina in two areas with a lot of bruising. Dr. O'Boyle opined that L.B.'s significant injuries were inconsistent with consensual sex and resulted from violence.

The trial court took into consideration the witness testimony and medical evidence presented and found that L.B. lacked the ability to process what was happening due to her intoxication. Thus, the trial court determined that the state met its burden of proof by establishing a theory for conviction under R.S. 14:43(A)(1) to adjudicate W.A.P. as a delinquent for the offense of third degree rape. This conclusion is reasonably supported by the evidence. In addition, the state presented the victim's testimony that she told W.A.P. to stop what he was doing and the medical records documenting L.B.'s severe injuries, which indicated that the sexual encounter was nonconsensual. Further, W.A.P.'s acts of running away from the scene and failing to check on L.B.'s condition after seeing blood on his clothes were not consistent with a consensual interaction. When viewed in a light most favorable to the prosecution, the evidence produced at trial was sufficient to support a finding that W.A.P. acted without L.B.'s consent in violation of La. R.S. 14:43(A)(4). Accordingly, based upon the evidence in this record, the trial court did not err in adjudicating W.A.P. delinquent for the offense of third degree rape. The assignment of error lacks merit.

Error Patent

In reviewing the record for error patent, we note that at the time of disposition, the trial court failed to advise W.A.P. of the time period within which to apply for post-conviction relief. The Louisiana Supreme Court has held that La. C.Cr.P. art. 930.8(C), which requires the trial court to inform the defendant of the limitation period for filing an application for post-conviction relief, is supplicatory language which does not bestow an enforceable right on an individual defendant. State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. Although no similar provisions exist in the Children's Code, La. Ch.C. art. 104 provides that when the Children's Code is silent, the Louisiana Code of Criminal Procedure applies. Thus, the juvenile should be advised of the time limitation for seeking post-conviction relief. See State in Interest of A.H. , 95-1094 (La. App. 3 Cir. 1/31/96), 670 So.2d 361. We now advise W.A.P. by this opinion that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence (adjudication and disposition) have become final under the provisions of La. C.Cr.P. arts. 914 or 922. See State v. Pugh , 40,159 (La. App. 2 Cir. 9/21/05), 911 So.2d 898.

CONCLUSION

For the foregoing reasons, W.A.P.'s adjudication and disposition are affirmed.

AFFIRMED.