author: Higginbotham, J.

text:
    STATE of Louisiana v. Carlos LAMPLEY
    NO. 2018 KA 0402
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 02, 2018
    Hillar C. Moore, III, District Attorney, Cristopher J.M. Casler, Assistant District Attorney, Baton Rouge, LA, Attorneys for Appellee, State of Louisiana
    Holli Ann Herrle-Castillo, LA Appellate Project Marrero, LA Attorney for Defendant-Appellant, Carlos Lampley
    Carlos Lampley, Lafayette, LA, In Proper Person
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   Higginbotham, J.

The defendant, Carlos Lampley, was charged by an amended grand jury indictment on count one with trafficking of children for sexual purposes, a violation of La. R.S. 14:46.3, and on counts two, three, and four with human trafficking, violations of La. R.S. 14:46.2. The defendant pled not guilty on all counts, and proceeded to trial by jury. Prior to the verdict, the trial court granted the defendant's motion to quash as to count four. The jury found the defendant guilty as charged on counts one and two, and guilty of the responsive offense of attempted human trafficking on count three, in violation of La. R.S. 14:27 and La. R.S. 14:46.2.

The defendant was sentenced on count one to fifteen years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence; on count two to twenty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence; and on count three to five years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The trial court ordered that all three sentences be served consecutively. The trial court denied the defendant's motion to reconsider sentence. The defendant now appeals, assigning error in a counseled brief to the sufficiency of the evidence and the constitutionality of the sentences, and assigning error in a pro se brief to the State introducing other crimes evidence without a hearing pursuant to State v. Prieur, 277 So.2d 126 (La. 1973), the State failing to disclose evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the State misrepresenting its burden of proof during voir dire.

STATEMENT OF FACTS

On June 21, 2012, the FBI, the Louisiana State Police, the East Baton Rouge Sheriff's Office, and the Baton Rouge Police Department (BRPD) conducted a multi-agency operation targeting prostitution and human trafficking in Baton Rouge, organized by FBI Special Agent Taneka Blacknell. As a result of the operation, the defendant was arrested on that date. The operation took place at the Crestwood Suites Hotels in Baton Rouge, and targets were developed from the website Backpage as well as other websites. Further, under their procedure, an undercover agent was used to contact suspected prostitutes to arrange a date and, after an agreement for sex was negotiated, the police would enter the hotel room and make an arrest.

On the date noted above, June 21, 2012, an undercover agent negotiated a sex act with a sixteen-year-old high school student, then the agent gave an audible signal for the officers to enter the room. While at the hotel, the officers made contact with the defendant who was at the hotel with another female. The officers detained, separated, and questioned the defendant and the female. The officer conducted a search of the defendant and discovered he had a hotel key for Room 326. The defendant gave the officers consent to search the hotel room, and in doing so, they discovered a bag of alprazolam pills. Once the defendant was confronted regarding the pills, he denied that Room 326 was his room, indicating that Room 240 was his room. The officers then went to Room 240, where they located two other females, a substantial amount of paperwork bearing the defendant's name, and a DVD. The room was not registered in the defendant's name, and he did not have a key to the room on his person. The defendant was placed under arrest for possession of drugs, solicitation for prostitution, and human trafficking.

M.P., the victim on count one (trafficking of children for sexual purposes), testified that her date of birth is January 14, 1994. According to the indictment, the offense was committed "[o]n or about July 2011 to October 19, 2011[.]" M.P. first met the defendant at a studio in Baton Rouge. Although she was seventeen years old at the time, she told the defendant she was eighteen years old. After the initial meeting with the defendant, she became interested in the life that he described to her, and began participating in "dates." Her first date was obtained as a result of a "backpage" ad that one of the girls posted on her behalf. M.P. specifically described the date as her going to a room with the "trick" and having sex with him. She received payment in exchange for the sex and was told to go pay her "Daddy," the defendant. She went on more dates and eventually began working the "track," which consisted of her riding around to pick someone, preferably a New Orleans tourist, and attempting to obtain their personal information, including pin numbers. In addition to stealing pin numbers, on some occasions she performed sexual acts while working the track. Whenever she would obtain money, she would give it to the defendant. When she obtained credit cards and pin numbers, she would go to an ATM to check the balance on the card, retrieve funds, and then go to Walmart to purchase money orders to give to the defendant.

M.J., the victim on count two (human trafficking when the services include commercial sexual activity), confirmed that her date of birth is August 26, 1987. She further testified that she was a prostitute for the defendant. According to the indictment, the offense was committed "[o]n or about January 2008 [.]" M.J. first met the defendant in 2007, through a female who indicated that she needed help getting away from a male who she was staying with at the time. After prostituting for another pimp who would beat her, M.J. began working for the defendant instead. All of the money that she obtained from "tricks" was given to the defendant. M.J. considered herself as one of the defendant's higher earners. She testified that $90,000 was the most amount of money she ever made for the defendant in one night. She confirmed that if she ever failed to do something that she was supposed to do, the defendant would punish her by hitting her, withholding food, or raping her.

K.W., the victim on count three (attempted human trafficking when the services include commercial sexual activity), testified that her date of birth is July 30, 1996. According to the indictment, the offense was committed "[o]n or about June 21, 2012[.]" At trial, K.W. denied that she was ever solicited by the defendant to work as a prostitute, but stated that she and D.J., her close childhood friend that she referred to as "her sister," met the defendant at a hotel. K.W. recalled giving a pretrial interview to FBI Agent Blacknell, but did not recall the content of the interview. According to Agent Blacknell, during her pretrial interview of K.W. on August 2, 2012, K.W. confirmed that she and D.J. met the defendant at a hotel, and he described the concepts of pimping and prostitution and proposed that she participate in such acts, but she refused.

SUFFICIENCY OF THE EVIDENCE

In counseled assignment of error number one, the defendant argues that because no rational juror should have found the State proved the case beyond a reasonable doubt, the convictions should be reversed. As to count one, the defendant contends that there are several things that cast doubt on the credibility of M.P., the victim on count one. First, he notes that M.P. lied about her age, a factor in the offense charged and the sentencing. Second, he contends that while incarcerated, M.P. wrote a letter to M.J., the victim on count two, stating that their stories needed to be consistent and encouraged M.J. to relay a fabricated story. The defendant further argues that the likelihood of M.P. being willing to lie to get out of trouble was further made evident by the fact that Agent Blacknell assisted her in having her criminal charges in New Orleans dismissed. Finally, the defendant asserts that M.P. was further motivated to lie because she did not have a relationship with the defendant, despite being admittedly in love with him.

As to count two, the defendant argues that M.J.'s story lacked credibility. He contends that despite the fact that she worked as a stripper in a strip club and had a "sugar daddy," she testified that she had no idea that pimps existed. In claiming that M.J.'s testimony was inconsistent with the "essence and purpose of a sugar daddy," the defendant contends that M.J. testified that her so-called "sugar daddy" did not pay her rent and that she could not recall how he helped her get an apartment. Further, the defendant notes that M.J. testified that she was not allowed to visit her mother in Baton Rouge, though she was allowed to travel to at least twelve cities across the United States. He claims that M.J. worked with M.P. in developing a plan to concoct a story and that M.J., like M.P., would say whatever was necessary to minimize her own culpability. Finally, the defendant notes that Agent Blacknell helped M.J. with traffic tickets, which he argues could be seen as a reward for cooperating with the government.

As to count three, the defendant argues that while he was found guilty of attempted human trafficking, the testimony of the victim K. W. did not establish any of the elements of human trafficking. The defendant notes that K.W. stated that he never solicited her for prostitution, that she did not recall him asking to be her pimp, and that she never saw the defendant ask her friend D.J. to serve as her pimp. He notes that Agent Blacknell's prior interview of K. W. was not recorded, and contends that the agent's interpretation of the interview was not reliable because it was possible that K.W. did not understand certain aspects of the questioning. In that regard, he notes that K.W. indicated at trial that she was unsure of the meaning of solicitation. He further contends that Agent Blacknell may have misinterpreted or skewed her answers.

In addition to arguing that the credibility of the victims is at issue, the defendant argues that there was no evidence to corroborate the crimes. He specifically contends that there was nothing linking him to any stolen credit cards, and nothing to prove that he received any money from the victims or was benefiting from the work they claimed they were doing. Finally, the defendant claims that he had a legitimate reason for being around prostitutes. In that regard, he notes that he filed proper paperwork to form several limited liability companies to create movies and write a book.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. See La. Code Crim. P. art. 821(B) ; State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove," every reasonable hypothesis of innocence is excluded. See La. R.S. 15:438 ; State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 &, 2000-0895 (La. 11/17/00), 773 So.2d 732.

In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). Further, the testimony of the victim alone is sufficient to prove the elements of the offense. State v. Dickerson, 2016-1336 (La. App. 1st Cir. 4/12/17), 218 So.3d 633, 640, writ denied, 2017-1147 (La. 8/31/18), 251 So.3d 1062. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Richardson, 459 So.2d 31, 38 (La. App. 1st Cir. 1984). The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). A court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law in accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder. See State v. Mire, 2014-2295 (La. 1/27/16), --- So.3d ----, ----, 2016 WL 314814 (per curiam ).

Regarding count one, pursuant to La. R.S. 14:46.3(A)(1) (as in effect at the time of the offense), trafficking children for sexual purposes is committed when a person knowingly recruits, harbors, transports, provides, sells, purchases, or otherwise obtains a person under the age of eighteen years for the purpose of engaging in commercial sexual activity. Further, it is unlawful for any person to knowingly benefit from activity prohibited by the statute. See La. R.S. 14:46.3(A)(2). "Commercial sexual activity" means any sexual act performed or conducted when anything of value has been given, promised, or received by any person. La. R.S. 14:46.3(B). Consent of the minor shall not be a defense to a prosecution of trafficking children for sexual purposes.

La. R.S. 14:46.3(C)(1). Further, lack of knowledge of the victim's age shall not be a defense to a prosecution of trafficking children for sexual purposes. La. R.S. 14:46.3(C)(2).

Regarding count two, pursuant to La. R.S. 14:46.2(A)(1) (in effect at the time of the offense), human trafficking is committed when a person intentionally recruits, harbors, transports, provides, solicits, or obtains another person through fraud, force, or coercion to provide services or labor. "Fraud, force, or coercion" means, in pertinent part, causing or threatening to cause serious bodily injury or physically restraining or threatening to physically restrain another person. La. R.S. 14:46.2(C)(2). Pertinent to the instant offense, the State was further required to prove that the human trafficking was committed when the services included commercial sexual activity or any sexual conduct constituting a crime under the laws of this state. La. R.S. 14:46.2(B)(2) ; La. R.S. 14:46.2(C)(1).

On count three, the defendant was convicted of the responsive offense of attempted human trafficking when the services include commercial sexual activity. Under La. R.S. 14:27(A), a person is guilty of an attempt to commit an offense when he has a specific intent to commit a crime and "does or omits an act for the purpose of and tending directly toward the accomplishing of his object." Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be inferred from the circumstances. State v. Holliday, 623 So.2d 127, 129 (La. App. 1st Cir.), writ denied, 629 So.2d 358 (La. 1993).

Herein, the DVDs in evidence are labeled with handwritten titles that include such language as "Pimpin Quick" and "Da Emperor King Carlos Pimpin Short Vedio's [sic]." Featured footage includes a tour of a furnished two-story house that was promised to the victims and dialogue referencing terms such as, "send a bitch," "track," and "lacing a bitch." Agent Blacknell, who was familiar with the terminology based on her experience with investigations and seminars, explained that females are routinely sent to make money through prostitution and/or stealing credit cards, ATM cards, and extracting funds. The term "track" references any place where a female can make money from picking up customers on the streets. As Agent Blacknell further explained, "lacing a bitch" meant to dress her up with nice clothing and grooming, and to "[t]each her the game." The video also discussed "rules" of pimping. The rule that everything must be taken away from victims means that they are deprived of their identity and anything that they might desire or enjoy. For example, the pimp will not reference them by their real names and will instead give them an assigned name and take away anything that might cause them to give less attention to the pimp. Further, the victims are not allowed to ask the pimp questions or to ask for anything, they are only to receive what the pimp decides to provide for them.

Agent Blacknell testified that M.P., the victim on count one, was seventeen years old and working for the defendant at the time of her recovery by law enforcement.

M.J., the victim on count two, came to know the defendant when she was nineteen years old, was featured in one of the videos, and worked for the defendant intermittently for several years. Agent Blacknell further testified that K.W., the victim on count three, was a fifteen-year-old juvenile who the defendant tried to lace and entice into the prostitution game, but she refused. K.W. and her friend, D.J., were simultaneously recovered by law enforcement. Agent Blacknell interviewed each of the females. Agent Blacknell confirmed that M.P. had criminal charges in New Orleans and that she received a request to provide testimony on behalf of M.P. regarding those charges. She further testified that she assisted M.J. in determining the outstanding fines and charges that she had on traffic offenses, noting that M.J. subsequently paid some of the fines on her own volition. Agent Blacknell denied that M.P., M.J., or K.W. received any monetary assistance.

M.P. testified that when she initially met the defendant, he told her that he had ten other girls who looked just like her, and she exchanged telephone numbers with him. The defendant later called her and asked her to smoke with him and "hangout." At the arranged meeting, they smoked and watched a DVD that featured footage that "looked like MTV Cribs." The defendant began telling her how they could make a lot of money, and indicated that she could get a bank account, car, and an apartment. M.P. became interested as he further told her about "dates." She initially did not fully understand what that term meant, as the defendant continued talking to her about pimping and "prepping" her, including instructions to not look directly at the males and to instead keep her head down. She confirmed that she was with her friend D.F. when she went to see the defendant. M.P. specifically described their actions in obtaining pin numbers from males who they met while on the "track" as follows,

We mainly went to this one store where we would ask them to put gas in the car and that's when one girl would be on the outside with the trick trying to get the pin number and the other [girl] would be on the inside of the car in case one missed a number the other one could have caught it.

When asked if she ever kept any of the money that she obtained, M.P. repeatedly denied it, stating, "It wasn't my money to keep...It was for Carlos." She explained that she was brainwashed, programmed, and taught to give the money to the defendant and therefore did so each time. She denied ever having a relationship with the defendant, but confirmed that he had been physical with her, specifically recalling an occasion that he slapped her when she called him a stupid pimp. She further witnessed the defendant being violent with other females. M.P. admitted to writing a letter to M.J. in preparation for their statements to law enforcement, stating that she wrote the letter because she was loyal to the defendant. M.P.'s friend, D.F., who met the defendant with M.P., testified at trial and confirmed that when they met the defendant, M.P. was seventeen years old.

M.J. testified that when she first met the defendant, he told her that he was a pimp and she did not initially believe him. She noted that she did not know that pimps really existed, as she was not raised around those sort of people. She confirmed that she was a stripper at one point, but indicated that she never met a pimp before meeting the defendant. M.J. further testified that a "love triangle" formed between her, the defendant, and the female who introduced her to the defendant. The defendant initially told her that she would never have to prostitute. She ultimately met a different pimp who "made" her work on the track. This particular pimp, whom she considered a "gorilla pimp" (a term used for an excessively physically abusive pimp), began beating her. She further observed him beat another female, and she was afraid of him. On one occasion she went to pick up another female, and she saw the defendant. As to that incident, she testified,

He, Mr. Lampley, came and blocked me in and he started telling me things, basically like, I know I love him and I know I want to be with him, and I was scared of the other pimp. ... [H]e told me the only way to get away from [the other pimp] was to choose up with himself, Mr. Lampley.

At that point, M.J. began working for the defendant. The defendant instructed M.J., along with other females, to work in New Orleans by soliciting tourists on the track. M.J. confirmed that she committed acts such as theft (stealing debit cards from "tricks") and further confirmed that she gave all of the money that she obtained to the defendant. She denied keeping any of the money. She confirmed that she acquired a credit card in her name, but only the defendant was allowed to use it. She stated that she did not want to continue to work for the defendant, but she felt trapped.

K.W. confirmed that she met the defendant in a hotel room along with D.J. K.W. further stated that she was a runaway at the time, and that she did not recall the content of the conversation that she had with the defendant. When asked to review Agent Blacknell's interview report, K.W. specifically testified that she was not denying that she made the statements reflected in the report, but testified that she did not recall what she stated during the interview. When asked if it was possible that she told the agent that the defendant solicited her for prostitution, she asked the prosecutor to define the word solicited. She interrupted the prosecutor as he began to provide a definition. She denied that she would have had a reason to lie to a federal agent.

When recalled to the stand, Agent Blacknell testified that during her interview of K.W., she indicated that she and D.J., K.W.'s friend, met the defendant at a hotel, he told her that he was a pimp, that he had a room in the hotel, and that they could come to one of his rooms to relax. He later showed them a video about pimping and started introducing them to the topic of prostitution. K.W. informed Agent Blacknell that she refused the defendant's proposal, stating that it did not make sense to her to sell her body for money and give the money to a pimp.

Agent Blacknell confirmed that through the course of her investigation, she obtained information indicating that the defendant had formed limited liability companies with the State of Louisiana, including one called "4 Da Record LLC," and one called "Strait Lace No Chase LLC." She further recovered information about possible books that the defendant was attempting to author, specifically confirming that she recalled seeing chapters from a purported book. She confirmed seeing one document entitled, "A Pimp's Confession" and another entitled "E Pluribus Unum."

The defendant's hypothesis of innocence that he was conducting business as a part of legal companies, creating a reality television show, and/or writing a book was reasonably rejected by the jury. Regardless of whether the defendant was aware of her age or not, M.P. was under eighteen at the time of the offense on count one. Victims M.P. and M.J. detailed incidents involving the defendant obtaining their services for the purpose of engaging in sexual acts performed for money. Further, the victims were forced to give the money to the defendant. M.J. specifically testified that she feared the defendant, and that he would hit, starve, or rape her for failure to abide by his rules. She said she was coerced into working for the defendant to get away from another pimp. As to victim K.W., the jury apparently accepted Agent Blacknell's testimony regarding K.W.'s description of the defendant's pitch to join his prostitution organization. Accordingly, the record amply supports an inference by the jury that the defendant had the specific intent to recruit, solicit, or obtain the use of K.W. through fraud, force, or coercion to provide services engaging in commercial sexual activity, and that he completed an act in furtherance of that goal.

In reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662. Based on our careful review of the record, we are convinced that any rational trier of fact, viewing the evidence presented at trial in the light most favorable to the State, could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of the offenses of trafficking of children for sexual purposes, human trafficking when the services include commercial sexual activity, and attempted human trafficking when the services include commercial activity. Accordingly, counseled assignment of error number one lacks merit.

EXCESSIVE SENTENCE

In the second counseled assignment of error, the defendant argues that the sentences imposed in this case, while within the sentencing range, are excessive when imposed consecutively. He argues that the trial court judge had an emotional reaction to the case, noting that she compared the defendant to a slave master and stated that both she and the defendant carried in their DNA the rapes of their African American ancestors by persons of European descent. He further notes that the trial court judge, at one point, noted that one of her ancestors ran a brothel during Jim Crow in Baton Rouge. The defendant argues that the trial court judge's consideration of personal feelings and emotions was improper and prejudicial. He also claims that the trial court judge considered statements that he made in his videos although the references were not proven to be actions that he actually employed, as opposed to actions he only spoke about. He argues that the trial court judge did not justify the imposition of consecutive sentences in this case, contending that the counts were part of a common plan or scheme.

In accordance with La. Code Crim. P. art. 920(2), all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we note the following: the trial court imposed the defendant's sentences without the benefit of parole on each count, and the penalty provisions of the statutes under which the defendant was convicted do not authorize such a restriction on parole eligibility. See La. R.S. 14:46.3(D)(l)(a) ; La. R.S. 14:46.2(B)(2) ; La. R.S. 14:27(D)(3). Thus, the inclusion of the parole restriction rendered the sentences illegal. In State v. Williams, 2000-1725 (La. 11/28/01), 800 So.2d 790, 802, the Louisiana Supreme Court recognized that this court has the authority to correct an illegal sentence despite the failure of either party to raise the issue in the district court or on appeal if the correction is ministerial. La. Code Crim. P. art. 882(A).

Herein, the sentencing errors noted involve discretion in regard to the length of the term of imprisonment and/or the imposition of a fine. As the Supreme Court has previously admonished, "[t]o the extent that the amendment of defendant's sentence entails more than a ministerial correction of a sentencing error, the decision in State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, does not sanction the sua sponte correction made by the court of appeal on defendant's appeal of his conviction and sentence." State v. Haynes, 2004-1893 (La. 12/10/04), 889 So.2d 224. Thus, we must vacate the sentences and remand for resentencing. Therefore, we pretermit consideration of the excessive sentence arguments in the second counseled assignment of error.

LACK OF A PRIEUR HEARING

In the first pro se assignment of error, the defendant claims that the trial court erred in allowing the State to introduce other crimes evidence without first conducting a Prieur hearing. The defendant notes that the State, prior to trial, filed notice to introduce evidence of other crimes, wrongs, or acts under La. Code of Evid. art. 404(B) and requested a Prieur hearing. The defendant further notes that his attorney filed an objection to the State's notice, which was based on the lack of specificity of the State's notice. The defendant further notes that when other crimes evidence is offered, the evidence must have substantial independent relevance and tend to prove a material fact at issue or rebut a defense. He reiterates that other crimes evidence was introduced at trial in this case without a hearing.

At the outset, we note that the defendant has not specified which evidence admitted at trial required a pretrial hearing or provided any record reference to any portion of the trial in support of his vague argument. Pursuant to Uniform Rules-Courts of Appeal, Rule 2-12.4(A), in pertinent part, the brief of the appellant shall contain an argument, which shall include appellant's contentions, with references to the specific page numbers of the record and citations to authorities on which the appellant relies. The court may disregard the argument on an assignment of error or issue for review if suitable reference to the specific page numbers of the record is not made. Uniform Rules-Louisiana Courts of Appeal, Rule 2-12.4(B)(3). Herein, the defendant's pro se brief on this issue simply contains generalized statements of law without any reference to any specific evidence presented at trial. We note that not every Prieur violation mandates reversal. Before a defendant can complain of a Prieur violation, he must first show prejudice. State v. Sanders, 93-0001 (La. 11/30/94), 648 So.2d 1272, 1284, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996). In State v. Lee, 25,917, (La. App. 2d Cir. 5/4/94), 637 So.2d 656, 662, writ denied, 94-1451 (La. 10/7/94), 644 So.2d 631, the second circuit explained that "[t]he rules of Prieur were not meant to be used as additional, technical procedures sacramental to a valid conviction" (quoting State v. Banks, 307 So.2d 594, 597 (La. 1975) ) and noted that substantial compliance with Prieur is all that is required.

In the present case, the defendant has made no attempt to show prejudice. Despite the defendant's inference otherwise, a pretrial hearing is not required by the mandates of Prieur .See State v. Davis, 2005-543 (La. App. 3d Cir. 12/30/05), 918 So.2d 1186, 1197, writ denied, 2006-0587 (La. 10/13/06), 939 So.2d 372. Further, while La. Code Evid. art. 1104 governs the burden of proof in a pretrial hearing held in accordance with Prieur , the article does not mandate such a hearing. Accordingly, pro se assignment of error number one lacks merit.

ALLEGED BRADY VIOLATION

In pro se assignment of error number two, the defendant argues that his constitutional rights were violated when the State failed or otherwise refused to disclose "specific types of evidence." He contends that the State's failure to disclose evidence resulted in the defense counsel filing a Brady motion. After citing the law as to the constitution of a Brady violation, the defendant asserts that "said alleged evidence" introduced by the State was admitted at trial by the trial court. The defendant does not provide any specification as to what evidence was withheld by the State.

At the outset, we note that the defendant has not provided any indication of the evidence at issue in the assignment of error. As stated above in regard to the first pro se assignment of error, pursuant to Uniform Rules-Courts of Appeal, Rule 2-12.4(A), in pertinent part, the brief of the appellant shall set forth an argument giving specific page numbers of the record and citations to authorities. As further stated, this court may disregard the argument on an assignment of error or issue for review if suitable reference to the specific page numbers of the record is not made. Uniform Rules-Louisiana Courts of Appeal, Rule 2-12.4(B)(3). While the defendant notes in his second pro se assignment of error that his attorney filed a motion requesting Brady information, on appeal the defendant does not indicate which, if any, parts of the motion were not satisfied or how he was prejudiced by any particular failure to disclose.

In order to prove a Brady violation, the defendant must establish, inter alia , that the evidence in question was, in fact, exculpatory or impeaching. State v. Garrick, 2003-0137 (La. 4/14/04), 870 So.2d 990, 993 (per curiam). Late disclosure of favorable evidence may require reversal if the timing significantly impacted the defendant's opportunity to effectively present the material. State v. Kemp, 2000-2228, (La. 10/15/02), 828 So.2d 540, 545-46. However, Brady and the decisions that follow do not establish a general rule of discoverability and the State's failure to disclose or late disclosure does not automatically mandate a reversal. Rather, the defendant must first show he suffered prejudice as a result. La. Code Crim. P. art. 921 ;

State v. Coleman, 2014-0402 (La. 2/26/16), 188 So.3d 174, 203, cert. denied, --- U.S. ----, 137 S.Ct. 153, 196 L.Ed.2d 116 (2016) ; see also United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976) ; State v. Willie, 410 So.2d 1019, 1030 (La. 1982). In this case, the defendant has made no assertion on appeal as to how he suffered any prejudice regarding any Brady violation. Thus, pro se assignment of error number two lacks merit.

VOIR DIRE

In the final pro se assignment of error, referencing a record page number for a portion of the voir dire, the defendant argues that the State was allowed to explain to the prospective jurors that only one element was needed to be proven to convict the defendant. The defendant notes that under the due process clause, the State is required to prove beyond a reasonable doubt every element of a crime charged. He further notes that the State's failure to meet its burden of proof results in the defendant's acquittal. Finally, the defendant notes that subsequent to the State's voir dire remarks, the trial court otherwise instructed the sworn jurors during opening instructions that the State had to prove every element beyond a reasonable doubt.

We note that there was no objection by the defendant to the referenced statements at issue. Under La. Code Crim. P. art. 841, a contemporaneous objection is required to preserve an error for appellate review. The purpose of the contemporaneous objection rule is to allow the trial judge the opportunity to rule on the objection and thereby prevent or cure an error. State v. Hilton, 99-1239 (La. App. 1st Cir. 3/31/00), 764 So.2d 1027, 1035, writ denied, 2000-0958 (La. 3/9/01), 786 So.2d 113. Irregularities or errors cannot be availed of on appeal if they are not objected to at the time of the occurrence. State v. Walker, 94-0587 (La. App. 1st Cir. 4/7/95), 654 So.2d 451, 453, writs denied, 95-1124 (La. 9/22/95), 660 So.2d 470 & 95-1125 (La. 9/22/95), 660 So.2d 470. Therefore, because the defendant did not object at the time of the alleged error, this particular assignment of error is not preserved for appellate review.

Moreover, we note that the scope of voir dire examination is within the sound discretion of the trial court; its rulings will not be disturbed on appeal in the absence of a clear abuse of discretion. Coleman, 188 So.3d at 205 ; State v. Williams, 560 So.2d 519, 523 (La. App. 1st Cir. 1990). Our review of the portion of the record cited by the defendant does not support his assertion that the State indicated that there was only one element to prove at trial. Further, as mentioned by the defendant on appeal, the empaneled jury was subsequently given full instructions on the State's burden of proof in this case. Considering the foregoing, we find no merit in the final pro se assignment of error.

CONVICTIONS AFFIRMED, SENTENCES VACATED, AND REMANDED FOR RESENTENCING.

      On count one, the defendant was originally charged with human trafficking and the State later amended the charge as provided above. On counts two and three, consistent with La. R.S. 14:46.2(B)(2), the indictment includes the language "when the services include commercial sexual activities." As to count three, while the record shows that the victim was under the age of eighteen at the time of the offense, the State did not seek the harsher punishment pursuant to La. R.S. 14:46.2(B)(3). The statutory citations provided herein are consistent with the version of the applicable statute in effect at the time of the offenses.

      We note that the verdict sheets do not include the language "when the services include commercial sexual activities" as stated in the grand jury indictment as to counts two and three. However, during the jury instructions prior to deliberations, the jury was specifically instructed that they had to find proof beyond a reasonable doubt that the services included commercial sexual activity on all three counts. See La. R.S. 14:46.3(A)(1) ; La. R.S. 14:46.2(B)(2).

      Prior to this date, the FBI had information indicating that the defendant was involved in human trafficking. Specifically, the Shreveport Resident Agency of the New Orleans Division came into contact with the defendant during an operation. At that time, the defendant and other females were arrested, and DVDs containing footage of what was purported to be a reality television show on "pimping" and prostitution were collected.

      The defendant was also in possession of marijuana at the time.

      One of the documents contained written notes titled, "Pimping in Motion."

      Herein, the victims will be identified by initials only in accordance with La. R.S. 46:1844(W)(1)(a), which allows the court to protect the identity of a crime victim who is a minor or a victim of a human trafficking-related offense by using his or her initials.

      Out of the presence of the jury, K.W. initially confirmed that she was subpoenaed to testify at trial, but informed her counsel that she did not wish to do so. She further stated that she could not recall her pretrial statements, noting that she was sixteen years old at the time.

      We note during the time period that the offense was alleged to have been committed, La. R.S. 14:46.3(A)(1) was amended by 2011 La. Acts No. 64, § 1, to add the phrase "maintain the use of' to the above list of words preceding the phrase "a person under the age of eighteen."

      According to the human trafficking statute in effect at the time of the offense on count three, it is unlawful "[f]or any person to knowingly recruit, harbor, transport, provide, solicit, obtain, or maintain the use of another person through fraud, force, or coercion to provide services or labor." La. R.S. 14:46.2(A)(1) (as amended by 2011 La. Acts No. 64, § 1) (emphasis added).

      In accordance with FBI policy, interviews of individuals who are not taken into custody are not recorded and the interviewer will instead take notes on their responses and complete an interview report. Agent Blacknell noted that another female, K.G., was the mother of at least two of the defendant's children. K.G. was known as the "bottom bitch," someone who has either made a lot of money for the pimp in the past or may be the mother of one or more children of the pimp, and is in charge of supervising the other females who work for the pimp. On the night of the operation, June 21, 2012, Room 240, the room that the defendant referenced as his room and where his items were recovered, was rented under K.G.'s name.

      In State v. Templet, 2005-2623 (La. App. 1st Cir. 8/16/06), 943 So.2d 412, writ denied, 2006-2203 (La. 4/20/07), 954 So.2d 158, another panel of this court sua sponte amended a sentence to delete the illegal portion of the sentence and remanded solely for the correction of the minutes, despite this court's decision in State v. Paoli, 2001-1733 (La. App. 1st Cir. 4/11/02), 818 So.2d 795, 799-00, writ denied, 2002-2137 (La. 2/21/03), 837 So.2d 628, and the clear dictates of Haynes, 889 So.2d at 224. Given the Supreme Court's decision in Haynes, notions of judicial efficiency cannot override the judicial discretion reserved to the trial court.

      Brady , 373 U.S. at 87, 83 S.Ct. at 1196-97.


source: Caselaw Access Project

author: McCLENDON, J.

license: Public Domain

text:
    Jessica HEAD v. David ROBICHAUX
    2018 CA 0366
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 02, 2018
    Jessica Head, Gheens, Louisiana, Plaintiff/Appellee, In Proper Person
    Tyler J. Breaux, Larose, Louisiana, Counsel for Defendant/Appellant, David Robichaux
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   McCLENDON, J.

In this appeal, the defendant challenges a protective order forbidding him to have contact with the plaintiff. For the reasons that follow, we amend the protective order, affirm as amended, and remand for correction of the Uniform Abuse Protection Order.

FACTUAL AND PROCEDURAL HISTORY

On December 21, 2017, the plaintiff, Jessica Head, filed a Petition for Protection from Stalking pursuant to Louisiana Revised Statutes 46:2171, et seq. Therein, Ms. Head sought a protective order for herself against the defendant, David Robichaux, who was an acquaintance of Ms. Head and her boyfriend, Cody Matherne. Ms. Head alleged that Mr. Robichaux harassed her, threatened her, and made or sent telephone calls, texts, emails, or other electronic communications to her. Particularly, Ms. Head asserted that Mr. Robichaux would not leave her alone although she tried to block him from social media and that "he seems crazy over me, [obsessive], and won't stop." She further alleged that she felt unsafe and that after seven months it was getting worse. As a result, the trial court issued a temporary restraining order (TRO) pursuant to "[LSA-] R.S. 46:2131 et seq. (Domestic Abuse)" and set the matter for hearing. The TRO and original hearing date were continued, and the matter was heard on January 30, 2018. Following the hearing, the trial court signed a permanent order of protection, pursuant to the Domestic Abuse Assistance statutes, prohibiting Mr. Robichaux from:

• abusing, harassing, assaulting, stalking, following, tracking, monitoring, or threatening Ms. Head in any manner;
• contacting Ms. Head personally, through a third party, or via public posting, by any means, including written, telephone, or electronic (text, email, messaging, or social media) communication;
• going within 100 yards of Ms. Head or her residence; and
• damaging any property or belongings of Ms. Head or in any way interfering with her living conditions.

Mr. Robichaux now appeals, asserting in several assignments of error that the trial court erred in granting the protective order.

APPLICABLE LAW

Ms. Head petitioned the trial court for an order of protection from stalking, pursuant to LSA-R.S. 46:2171, et seq. , known as the "Protection from Stalking Act."

Under this Act, "stalking" means any act that would constitute the crime of stalking under LSA-R.S. 14:40.2 or cyberstalking under La. R.S. 14:40.3. See La. R.S. 46:2172 ; Scott v. Hogan, 17-1716 (La.App. 1 Cir. 7/18/18), 255 So.3d 24, ----. A victim of stalking by a perpetrator who is a stranger to or acquaintance of the victim shall be eligible to receive all services, benefits, and other forms of assistance provided by Chapter 28 of Title 46, which is the "Protection from Family Violence Act" and includes specific statutes on "Domestic Abuse Assistance," provided the services, benefits, and other forms of assistance are applicable based on the status of the relationship between the victim and perpetrator. See LSA-R.S. 46:2173.

Pursuant to the Domestic Abuse Assistance statutes, LSA-R.S. 46:2131, et seq. , upon good cause shown in an ex parte proceeding, the court may enter a temporary restraining order to protect a person who shows immediate and present danger of abuse. LSA-R.S. 46:2135A. If a temporary restraining order is granted without notice, the matter shall be set within twenty-one days for a rule to show cause why a protective order should not be issued, at which time the petitioner must prove the allegations of abuse by a preponderance of the evidence. LSA-R.S. 46:2135B. Proof is sufficient to constitute a preponderance of the evidence when the entirety of the evidence, both direct and circumstantial, shows that the fact sought to be proved is more probable than not. Hanks v. Entergy Corp., 06-477 (La. 12/18/06), 944 So.2d 564, 578.

Louisiana law mandates that trial courts use a uniform form for the issuance of any TRO or protective order, called the "Uniform Abuse Prevention Order." See LSA-R.S. 46:2136.2C. The trial court checks off a box provided on the uniform form to indicate under which law it issues the TRO and/or protective order: (1) LSA-R.S. 46:2131, et seq. (Domestic Abuse); (2) LSA-R.S. 46:2151 (Dating Violence); (3) LSA-R.S. 46:2171, et seq. (Non-intimate stalking); (4) LSA-R.S. 2181, et seq. (Non-intimate sexual assault); (5) LSA-Ch.C. art. 1564, et seq. (Children's Code Domestic Abuse); or, (6) a court approved consent agreement. See Scott v. Hogan, 255 So.3d at 31.

A trial court's decision to issue or deny a protective order is reversible only upon a showing of an abuse of discretion. Rouyea v. Rouyea, 00-2613 (La.App. 1 Cir. 3/28/01), 808 So.2d 558, 561. Additionally, the trial court sitting as a trier of fact is in the best position to evaluate the demeanor of the witnesses, and its credibility determinations will not be disturbed on appeal absent manifest error. James v. Warren, 17-0757 (La.App. 1 Cir. 12/21/17), 240 So.3d 967, 969.

DISCUSSION

In this matter, Ms. Head testified that she filed for a protective order because Mr. Robichaux would not leave her alone although she asked him several times to do so. She stated that she became scared because he would send her texts or messages through social media that did not make sense. Ms. Head stated that the problem began when Mr. Robichaux posted a picture of her on Instagram after she requested that he leave her alone. After she blocked Mr. Robichaux on her telephone and social media accounts, she believed that he tried to contact her through an account with a fake name. Ms. Head testified that although she did not accept the friend request from the "fake" account, Mr. Robichaux called her several times with "TextFree" numbers, but would not say anything. Ms. Head stated that, as a result, she changed her telephone number.

Ms. Head confirmed with the trial court that she, her boyfriend, and Mr. Robichaux spent the day in the French Quarter on May 27, 2017. This was also the day that Mr. Robichaux took a picture of Ms. Head that was later posted on Instagram. Ms. Head stated that, while in the French Quarter, Mr. Matherne became very intoxicated and was arrested, and Mr. Robichaux drove her home. She testified that she was also intoxicated, and after arriving at her home, she and Mr. Robichaux engaged in sexual relations. Ms. Head testified that she and Mr. Robichaux communicated for about a month after that, but she eventually asked him to leave her alone. Nevertheless, according to Ms. Head, late one night in November 2017, there was a banging on her door, which she did not answer, but she believed it was Mr. Robichaux. Ms. Head testified that she called the sheriff's office on December 18, 2017, and that a few days later Mr. Robichaux posted an implied threat to Mr. Matherne on Facebook.

Ms. Head also believed that Mr. Robichaux was pretending to be other people on social media in an attempt to have contact with her. Additionally, Mr. Robichaux sent to Lindsey Sapia, a friend of Ms. Head, a message and slideshow video on Facebook containing pictures of Ms. Head. Ms. Sapia testified at the hearing, confirming that she received the Facebook message and video with pictures of Ms. Head on December 20, 2017. Ms. Sapia showed the trial court the message and slideshow on her cellphone. Ms. Head further testified that, on December 20, 2017, Mr. Robichaux messaged Ms. Head's cousin on Snapchat, and thereafter, she sought the restraining order. She introduced into evidence copies and screenshots of several social media posts, including one of her clearly in a drunken state with the following comments by Mr. Robichaux:

• She didn't want to take this picture she don't know she's beautiful in and out.
• That night was great true colors came out.
• No lie the rest was in black and white but we was in screaming color!

Mr. Robichaux also testified, stating that he had been in a relationship with Ms. Head since late 2015 or early 2016, but that it was "undercover" until he sent Ms. Sapia the video in December. He stated that he and Ms. Head were close and that she told him that he saved her life that night. Mr. Robichaux explained to the trial court that he and Ms. Head were the same zodiac sign and he thought they were "going to the stars." He denied banging on Ms. Head's door in November 2017 and testified that Ms. Head continued to contact him by text. He admitted that he changed his name on a social media account and believed that because Ms. Head unblocked him on the account, she was trying to talk to him. At that point, the trial court stated it had heard enough and asked Mr. Robichaux to sit down.

Two of Mr. Robichaux's friends, Caleb Foret and Timothy Theriot, then testified, both denying that they ever sent a message to Ms. Head for Mr. Robichaux. Mr. Foret also testified that Mr. Robichaux was with him the night in November 2017, when Mr. Robichaux allegedly banged on Ms. Head's door. After the presentation of testimony, Mr. Robichaux stated that he had not contacted Ms. Head since the issuance of the TRO. He was allowed to introduce his own set of social media posts. Thereafter, at the conclusion of the hearing, the trial court orally granted the permanent protective order and signed the permanent order of protection.

As mentioned previously, Ms. Head sought a protective order against Mr. Robichaux for stalking. The crime of stalking, set forth in LSA-R.S. 14:40.2A, provides that "[s]talking 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. "Harassing" is defined as "the repeated pattern of verbal communications or nonverbal behavior without invitation which includes but is not limited to making telephone calls, transmitting electronic mail, sending messages via a third party, or sending letters or pictures." LSA-R.S. 14:40.2C(1). A "pattern of conduct" means "a series of acts over a period of time, however short, evidencing an intent to inflict a continuity of emotional distress upon the person." LSA-R.S. 14:40.2C(2).

Additionally, the crime of cyberstalking, is set forth in LSA-R.S. 14:40.3 :

B. Cyberstalking is action of any person to accomplish any of the following:
* * *
(2) Electronically mail or electronically communicate to another repeatedly, whether or not conversation ensues, for the purpose of threatening, terrifying or harassing any person.

LSA-R.S. 14:40.3B(2). The cyberstalking statute defines "electronic communication" as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature, transmitted in whole or in part by wire, radio, computer, electromagnetic, photoelectric, or photo-optical system." LSA-R.S. 14:40.3A(1). The statute also defines "electronic mail" as the "transmission of information or communication by the use of the Internet, a computer, a facsimile machine, a pager, a cellular telephone, a video recorder, or other electronic means sent to a person identified by a unique address or address number and received by that person." LSA-R.S. 14:40.3A(2). The offense is deemed to have been committed where the electronic communication was "originally sent, originally received, or originally viewed by any person." LSA-R.S. 14:40.3D. Thus, the cyberstalking statute does not require that the electronic communication be transferred or transmitted directly to the victim.

Ms. Head presented evidence that she repeatedly asked Mr. Robichaux to leave her alone, but that after seven months he was still trying to contact her. She testified that she felt unsafe, was afraid, and indicated that Mr. Robichaux's actions were escalating. Based on the totality of the record, we find no abuse of discretion in the trial court's determination that Mr. Robichaux's actions constituted harassment within the meaning of the stalking and cyberstalking statutes, LSA-R.S. 46:14:40.2 and 46:14:40.3.

Additionally, we do not find the trial court's indication that it had heard enough of Mr. Robichaux's testimony denied Mr. Robichaux the opportunity to testify and present his case. When Mr. Robichaux's testimony went off topic, the trial court asked him to take a breath and tell the court what he wanted to say. In this regard, we note that "[t]he court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done." LSA-C.C.P. art. 1631. Further, although Mr. Robichaux claimed that he was denied the opportunity to cross-examine Ms. Sapia, he never asked to do so.

However, we note that although Ms. Head requested that the trial court issue a protective order pursuant to the anti-stalking statutes, the trial court checked the box for protection from domestic abuse when it granted the permanent injunction. Yet, in the section labeled "[t]he protected person(s) is related to the defendant as: (check all that apply)," the trial court only checked the box identifying the relationship between Ms. Head and Mr. Robichaux as an "acquaintance," for "(s)talking or sexual assault only," and failed to check any other relationship between the parties. Therefore, considering that Ms. Head requested protection from stalking only and that the evidence clearly supports a finding of stalking, we hereby amend the protective order to show that it is issued pursuant to " La. R.S. 46:2171 et seq. (Non-intimate stalking)," and, as amended, the judgment granting the permanent protective order in favor of Jessica Head is affirmed.

CONCLUSION

For the above reasons, the January 30, 2018 judgment is amended to show that the permanent order of protection is issued pursuant to " La. R.S. 46:2171 et seq. (Non-intimate stalking)," and, as amended, the judgment is affirmed. We remand to the trial court for the limited purpose of correcting the Uniform Abuse Protective Order in accordance with our ruling herein. All costs of this appeal are assessed to the defendant, David Robichaux.

AMENDED AND, AS AMENDED, AFFIRMED; REMANDED WITH INSTRUCTIONS.

      Ms. Head has not filed an appellate brief.

      The statement of purpose of the Act is set forth in LSA-R.S. 46:2171, which provides:
      The legislature hereby finds and declares that there is a present and growing need to develop innovative strategies and services which will reduce and treat the trauma of stranger and acquaintance stalking. The nature of stalking allegations are sometimes not easily substantiated to meet the prosecution's burden of proving the case beyond a reasonable doubt, and victims of stalking are left without protection. Orders of protection are a proven deterrent that can protect victims of stalking from further victimization; however, many victims are forced to pursue civil orders of protection through ordinary process, often unrepresented, rather than through a shortened, summary proceeding. Additionally, victims of stalking are not always aware of the vast resources available to assist them in recovering from the trauma associated with being a victim of stalking. It is the intent of the legislature to provide a civil remedy for victims of stalking that will afford the victim immediate and easily accessible protection.

      Louisiana Revised Statutes 46:2136.2C provides:
      The courts of this state shall use a uniform form for the issuance of any protective or restraining order, which form shall be developed, approved, and distributed by the Judicial Administrator's Office, shall be titled the "Uniform Abuse Prevention Order".
      Further, the Louisiana Protective Order Registry encompasses temporary restraining orders, protective orders, preliminary injunctions, permanent injunctions, and court-approved consent agreements resulting from actions brought pursuant to R.S. 46:2131, et seq. , R.S. 46:2151, R.S. 46:2171, et seq. , R.S. 46:2181, et seq. , R.S. 9:361, et seq. , R.S. 9:372, Children's Code Article 1564, et seq. , Code of Civil Procedure Article 3607.1, or peace bonds pursuant to Code of Criminal Procedure Article 30B, or as part of the disposition, sentence, or bail condition of a criminal matter pursuant to Code of Criminal Procedure Articles 327.1, 335.1, 335.2, or 871.1 as long as such order is issued for the purpose of preventing violent or threatening acts or harassment against, contact or communication with, or physical proximity to, another person to prevent domestic abuse, stalking, dating violence, or sexual assault. LSA-R.S. 46:2136.2B.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Chadwick MCGHEE
    15-286
    Court of Appeal of Louisiana, Third Circuit.
    January 30, 2019
    Charles A. Riddle, III, District Attorney, Twelfth Judicial District Court, Michael F. Kelly, Assistant District Attorney, P. O. Box 1200, Marksville, LA 71351, (318) 253-5815, COUNSEL FOR APPELLEE: State of Louisiana
    Paula C. Marx, Louisiana Appellate Project, P. O. Box 80006, Lafayette, LA 70598-0006, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Chadwick McGhee
    Chadwick McGhee, Louisiana State Penitentiary, Main Prison - Walnut 4, Angola, LA 70712, PRO SE
    Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   GREMILLION, Judge.

Defendant, Chadwick McGhee, was originally charged with second degree kidnapping, a violation of La.R.S. 14:44.1, but was found guilty of simple kidnapping, a violation of La.R.S. 14:45. He was adjudicated a third felony offender and sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence. This court vacated his conviction due to insufficient evidence being presented at trial, which required the vacating of his habitual offender life sentence. State v. McGhee , 15-285 (La.App. 3 Cir. 11/4/15), 179 So.3d 739 ; State v. McGhee , 15-286 (La.App. 3 Cir. 11/4/15), 178 So.3d 316. The supreme court reversed this court's ruling and remanded the case for consideration of the pretermitted assignments of error. State v. McGhee , 15-2140, 15-2141 (La. 6/29/17), 223 So.3d 1136.

On remand, this court affirmed Defendant's conviction and relegated two of Defendant's pro se assignments of error to post-conviction relief. State v. McGhee , 15-285 (La.App. 3 Cir. 10/4/17), 229 So.3d 581. His habitual offender sentence was affirmed as well. State v. McGhee , 15-286 (La.App. 3 Cir. 10/4/17), 227 So.3d 863.

Defendant filed a writ application in the supreme court, and on September 21, 2018, the court issued the following ruling:

Writ granted. Defendant, charged with second degree kidnapping, was found guilty of simple kidnapping. This court determined in State v. Price , 17-K-0520 (La. 6/27/18), 250 So.3d 230, that guilty of simple kidnapping is not responsive to a charge of second degree kidnapping. In addition, the return of a nonresponsive verdict constitutes an error patent reviewable even in the absence of a defense objection. La.C.Cr.P. 920 ; State v. Mayeux , 498 So.2d 701, 703 (La. 1986) ; State v. Thibodeaux , 380 So.2d 59 (La. 1980) ; State v. Vincent , 387 So.2d 1097 (La. 1980). Therefore, we grant the application to remand to the court of appeal to reconsider its affirmance of defendant's conviction in light of State v. Price .

State v. McGhee , 17-1951 (La. 9/21/18), 252 So.3d 895.

In light of the supreme court's ruling, Defendant's conviction for simple kidnapping has been set aside in 15-285 and remanded to the trial court for the entry of a post-verdict judgment of acquittal on the charge of second degree kidnapping. As a result, Defendant's life sentence is vacated.

DECREE

Defendant's life sentence is vacated.

SENTENCE VACATED .


author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Ladray BIAS, Jr.
    18-268 18-665
    Court of Appeal of Louisiana, Third Circuit.
    February 6, 2019
    John F. DeRosier, District Attorney, Fourteenth Judicial District Court, Daniel Vermaelen, Elizabeth B. Hollins, Assistant District Attorneys, 901 Lakeshore Drive, Suite 800, Lake Charles, LA 70601, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana
    Edward K. Bauman, Louisiana Appellate Project, P. O. Box 1641, Lake Charles, LA 70602, (337) 491-0570, COUNSEL FOR DEFENDANT/APPELLANT: Ladray Bias, Jr.
    Ladray Bias, Jr., General Delivery, Louisiana State Penitentiary, Angola, LA 70712, PRO SE DEFENDANT: Ladray Bias, Jr.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and D. Kent Savoie, Judges.
   SAUNDERS, Judge.

Defendant, Ladray Bias, Jr., was charged with the attempted second degree murder of the victim, Brittany Dionne Watson, in violation of La.R.S. 14:27 and 14:30.1, on September 8, 2016. He was found guilty as charged on June 15, 2017. The trial court sentenced him to serve forty years at hard labor with credit for time served. Defendant filed a motion to reconsider his sentence, and the trial court denied it on September 11, 2017.

On June 26, 2017, the State charged Defendant as a third felony offender pursuant to La.R.S. 15:529.1. The trial court vacated Defendant's sentence on November 29, 2017, and resentenced him to serve seventy years at hard labor without benefit of probation, parole, or suspension of sentence. Defendant filed a motion to reconsider his habitual offender sentence, contending the original forty-year sentence was appropriate. The trial judge denied the motion on December 13, 2017. Defendant now seeks review of his conviction and sentence. We will address Defendant's first assignment of error, alleging insufficient evidence for a conviction, in this opinion. We will address the second assignment of error, alleging an excessive sentence, in our opinion under docket number 18-665, the appeal taken after Defendant's habitual offender adjudication and resentencing.

FACTS:

Defendant stabbed the victim four times in her head, neck, chest, and back during an argument on July 29, 2016.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find that there are no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE:

Defendant contends the evidence at trial was insufficient to convict him of attempted second degree murder. The standard of review in a sufficiency of the evidence claim is "whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged." State v. Leger , 05-11, p. 91 (La. 7/10/06), 936 So.2d 108, 170, cert. denied , 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Captville , 448 So.2d 676 (La.1984) ). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court "to substitute its own appreciation of the evidence for that of the fact-finder." State v. Pigford , 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521 (citing State v. Robertson , 96-1048 (La. 10/4/96), 680 So.2d 1165 ; State v. Lubrano , 563 So.2d 847 (La.1990) ). The appellate court's function is not to assess the credibility of witnesses or to reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442.

The factfinder's role is to weigh the credibility of witnesses. State v. Ryan , 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring the sufficiency evaluation standard of Jackson , "the appellate court should not second-guess the credibility determination of the trier of fact," but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert , 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27 ). Our supreme court has stated:

However, an appellate court may impinge on the fact finder's discretion and its role in determining the credibility of witnesses "only to the extent necessary to guarantee the fundamental due process of law." State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve " 'the factfinder's role as weigher of the evidence' by reviewing 'all of the evidence ... in the light most favorable to the prosecution.' " McDaniel v. Brown, 558 U.S. 120, 133-34, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 [ (2010) ] (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, ... this fundamental principle of review means that when a jury "reasonably rejects the hypothesis of innocence presented by the defendant[ ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt." State v. Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother , 09-2357, pp. 10-11 (La. 10/22/10), 49 So.3d 372, 378.

Our supreme court has provided, "It is the intent to commit the crime, not the possibility of success, that determines whether the act or omission constitutes the crime of attempt." State v. Smith , 94-3116, p. 3 (La. 10/16/95), 661 So.2d 442, 444.
Further, La.R.S. 14:30.1 states:
A. Second degree murder is the killing of a human being:
(1) When the offender has the specific intent to kill or to inflict great bodily harm[.]
In State v. George , 09-143, pp. 4-5 (La.App. 3 Cir. 10/7/09), 19 So.3d 614, 618, the court explained, in pertinent part:
The essential elements of the crime of attempted second degree murder are a specific intent to kill the victim and the commission of an overt act that tends toward the accomplishment of the victim's death. La.R.S. 14:30.1 ; State v. Hollingsworth , 42,317 (La.App. 2 Cir. 8/15/07), 962 So.2d 1183.

Further, our court has explained:

Reading the pertinent parts of these articles together, the state in this case had the burden of proving that the defendant had the specific intent to kill and did an act for the purpose of and tending directly toward accomplishing it. State v. Butler , 322 So.2d 189 (La.1975) ; State v. Guin , 444 So.2d 625 (La.App. 3 Cir.1983). Specific criminal intent has been statutorily defined as the state of mind which exists when circumstances indicate that the offender actively desired the proscribed criminal consequences to follow his act or failure to act. La.R.S. 14:10(1). Since specific intent is a state of mind, it need not be proven as a fact, but rather may be inferred from the circumstances and the actions of the defendant. State v. Graham , 420 So.2d 1126 (La.1982).
State v. Hongo , 625 So.2d 610, 613 (La.App. 3 Cir. 1993), writ denied , 631 So.2d 1163 (La.1994).

State v. Williams , 16-579, pp. 7-8 (La.App. 3 Cir. 4/5/17), 216 So.3d 107, 112-13.

Officer Chris Baudin of the Lake Charles Police Department answered a call about a disturbance at 2001 North Lincoln Street around 11:09 p.m. on July 28, 2016. The victim "was intoxicated and she was pretty emotional, talking about [how] her and her boyfriend got into a fight. He threw some glass at a car, but [Officer Baudin] didn't observe any marks on her that would have indicated any kind of physical altercation." He further described the victim as angry and belligerent.

During Officer Baudin's second encounter with the victim that evening, she told him her boyfriend had returned and caused another disturbance. However, by the time she called the police, he had "left in his vehicle and was just driving around the location." Officer Baudin observed no marks on the victim, who was still intoxicated, angry, and belligerent, and, according to Officer Baudin, she was not making sense.

Officer Baudin was called to the location a third time that night regarding a report of a stabbing. Other officers already at the scene described the suspect and his vehicle. Officer Baudin "knew who it was off the description." He searched the area and located Defendant's vehicle with fresh blood on the interior.

Around 2:50 a.m. on July 29, 2016, Officer Caleb Young, a patrol officer with the Lake Charles Police Department, also received a call about the incident at 2001 North Lincoln Street. When he and another officer arrived, they found the victim, who appeared to have been stabbed, sitting in a chair. The victim "was hysterical. She was scared. She was screaming.... She [ ] said, 'He stabbed me,' and she was stating that she was going to die. She kept going in and out of consciousness."

A drawer where knives were kept was open in the kitchen. Officer Young found a knife in the yard outside the south entrance of the residence with no dew on it, indicating to him it had not "been there long." He also saw drops of blood on the floor from the north bedroom of the house to the chair in the living room where the victim was seated when he arrived.

Detective Hope Sanders of the Lake Charles Police Department investigated the stabbing incident. She interviewed Defendant on the day of the stabbing, and he had an injury to the palm of his right hand. After speaking with the witnesses and seeing the collected evidence, she issued an arrest warrant for Defendant for attempted second degree murder.

Phillip "Toby" Harrison was living at the residence at the time of the incident with his cousin, Phillip "Pepper" Harrison. He was asleep when Ms. Coco Landry, another resident of the address, woke him and "said an incident had happened in the house and [he] needed to come see." He saw the victim with "a little cut on her head and stuff," but he did not know what happened. He got a towel for the victim, wrapped her head, and told her to stay awake. Toby, Ms. Landry, the victim, and "Peanut," another resident of the house, were present.

The victim said she was hurt and thought she was dying. Toby said he told her, " 'You ain't [sic] dying. It ain't [sic] that bad.' " She did say "her [sic] and Junior had got [sic] into it[,]" and "she said Junior had cut her." Toby identified "Junior" as Defendant, his friend.

Coco Landry lived at the residence with six others: Toby, Peanut, Darrell, Pepper, Constance (Darrell's girlfriend), and Little Ricky (Ms. Landry's "ex"). The victim sometimes came to the house to visit Ms. Landry as she was doing at the time of the incident. Ms. Landry said Defendant and the victim knew each other, but she did not think they had ever had a relationship as a couple.

Ms. Landry testified Defendant stabbed the victim, and she identified him at trial. Around midnight on the night of the incident, she and someone named "Hooch" asked Defendant to take them to the store to get beer. When they returned to the house, Ms. Landry saw a car there she knew belonged to the victim. Defendant walked "up to the house yelling, 'I don't want that bitch inside our family house. This is our house. Why is she over here? Why is she following me like this? I asked her not to come around me when I'm over here,' and this and that." As Ms. Landry helped "Hooch" exit their vehicle, she heard a beer bottle fall, and she "knew [Defendant] had done threw [sic] it probably at the back glass of the victim's car." Defendant and the victim were arguing as they came out the front door. After Defendant again told the victim to leave, he got in his vehicle and left. Ms. Landry did not know what had transpired inside the house, but she had heard both of them hollering "back and forth[.]"

Ms. Landry saw the victim when she went inside, and the victim had "a fist print [on] her face." Police were called, and the victim explained Defendant had thrown the beer bottle. Police took Defendant's name and a description of the clothes he wore. They told the women to call if anything else happened. Ms. Landry gave the victim a towel with some ice in it to put on her jaw. She had one beer, and the victim had one drink as they visited.

Their friend Jeremy Bias arrived, and Defendant called for him on the house phone. Mr. Bias went outside, and Ms. Landry returned to the table and her conversation with the victim. About five minutes later, Mr. Bias and Defendant came into the house. Defendant was on the phone with his father, and he said to the victim, " 'Bitch, why you got [sic] your baby daddy calling my daddy [sic] house phone at this time of the night?' " Ms. Landry told him the victim had been there talking to her, and she had not been on the phone. The victim told Defendant she did not use the phone; Defendant called her a liar.

Defendant hung up the phone and walked toward the kitchen. Ms. Landry heard a drawer open, and she heard Mr. Bias and Little Ricky, who were standing in the kitchen, "telling [Defendant], 'No.' " She tried to signal the victim to go through the house where she could get out the front door. Defendant grabbed a knife and moved into the corner of the living room where the victim stood. He held the knife "upward in his hands[,]" as in overhead stabbing, with the blade pointed to the ground. Ms. Landry testified:

He was saying, "I'm gonna [sic] kill you, Bitch. I'm gonna [sic] kill you." And I knew something was fixing to happen. So, I was trying to signal her to go to the back room out through the front door, the actual front door. And, before I could even turn around he was stabbing her, and the guys were trying to fight him, and I was pulling his shirt telling him, "No. Don't do that."

The victim went down onto the floor after the first stab. The second stab was to her head as she was on the floor. Mr. Bias and Little Ricky tried to grab Defendant to make him release the knife and leave. Defendant took off his shirt as Ms. Landry pulled on it, and he left it by the door. Ms. Landry thought Defendant "just got tired and he walked outside." Defendant dropped the knife in the yard as he exited the side door. Ms. Landry identified the knife shown in State's Exhibit 26 as the knife Defendant used to stab the victim.

Ms. Landry got towels for the victim to try to stop her bleeding, and she threw ice water on the victim to keep her awake while she called an ambulance and the police. Only Ms. Landry, Toby, Peanut, and the victim remained in the house; everyone else had left. Ms. Landry woke Toby, who was asleep in his bedroom, and told him, "He's stabbing her."

Joseph "Peanut" Offord also lived at the house on Lincoln Street when the victim was stabbed; he was in a nursing home at the time of trial. He was lying on the couch when Defendant "came in fussing and all that, and then he went in the house and got a knife out of the kitchen drawer and said he was going to kill her[.]" Defendant said "something about ... they had called his daddy[,]" and "[h]e said he could kill her[.]" Mr. Offord first testified he saw Defendant stab the victim. However, when asked if he could see into the kitchen, Mr. Offord responded, "No, not that good [sic]." He thought the victim was in the kitchen. Defendant and the victim were hollering at each other. Mr. Offord did not see the victim hit Defendant.

Jeremy Bias, Defendant's cousin, worked as a chef at the time of this incident. He testified he had been at the house on North Lincoln since the day before, and Defendant came to meet him there. Mr. Bias cooked that day, and he and Defendant went to the store twice to get some beer. Everyone was drinking.

The victim was at the house the second time they returned. After a while, she and Defendant began to argue. Mr. Bias had used a knife while he was cooking, and it was still on the kitchen counter. He said he was "messing with [his] phone"; when he looked up, the victim and Defendant were "already tussling." He did not know who grabbed the knife. He could not say whether he ever saw it in the victim's hands. He did see Defendant holding the knife during the incident, but he did not know "if he took it from [the victim] or what[.]"

The victim, Brittany Watson, testified she and Defendant started dating in June or July of 2015. They broke up around the end of May or the beginning of June 2016, approximately six weeks to two months before this incident. During that time, Defendant tried to get back together with the victim. The victim said Defendant "was a jealous type." After they broke up, Defendant would call her phone, but she would not talk to him.

On July 29, 2016, the victim said she went to the house on North Lincoln around 1:00 a.m., and Defendant saw her car there. When she arrived, Ms. Landry, Mr. Offord, Toby, and Ricky were present. The victim and Ms. Landry cooked spaghetti and sat at the kitchen table to eat.

Defendant came by the house three times according to the victim. The first time, he brought Hooch to the house. He saw the victim outside and threw a beer bottle at her car, but the bottle did not hit it. The victim went inside and called the police because she "felt threatened." When Defendant came to the house the second time - the victim thought he came to get Hooch - he hit the victim in the face, and she "kind of ... threw a lick back." Defendant was yelling at her, " 'I'm gonna [sic] kill you bitch. You stupid, stupid bitch. What you doing? What you doing at my people's house? Get away from here,' stuff like that. Everything was, 'bitch, bitch, bitch.' " She told him to stop and to get away from her. Defendant punched her "a couple of times[,]" and the victim hit him "[m]aybe once or twice." The victim called the police again and said Defendant had hit her.

When Defendant came back the third time, the victim testified she and Ms. Landry were sitting at the kitchen table. Defendant "barged in, busted in the door." He ran to the kitchen and grabbed a knife from a drawer, yelling continually that he was going to kill her, calling her a "bitch and ho." He kept saying, " 'I'm gonna [sic] kill this bitch. I'm sick of you. You gonna [sic] die ho[.]' " The victim ran through the kitchen and living room, and Defendant caught her. She testified she felt "[l]ike I - I - I was losing my life, like I was about to die." She thought he was about to kill her.

Defendant stabbed the victim one time in the neck as she stood, before she got through the living room. The victim screamed, and Defendant said, " 'Bitch you gonna [sic] die" before he stabbed her in her chest. Defendant stabbed her a third time in her head or her back. She thought she was standing all four times as Defendant stabbed her from overhead and as he kept saying, " 'Bitch I'm gonna [sic] kill you.' "

After Defendant stabbed the victim four times, she said he ran out of the house. The victim went in and out of consciousness as Ms. Landry wrapped a towel around her wounds. Someone called 911, and emergency medical personnel and the police came. The victim spent half a day in the hospital. The wound to her head required three staples. She also denied ever holding the knife or using it against Defendant.

While Defendant was incarcerated after the incident, the victim said he called and asked her to sign an affidavit dropping the charges against him. At one time she told him she would, but she did not do it. He called her other times from jail, saying he loved her and one time saying he was sorry. He called the victim another time from jail, about six weeks prior to trial, and she talked to him at his mother's request. The victim told him during that call that she would sign a paper to drop the charges against him. Defendant's mother also asked the victim not to testify against him; she told the victim Defendant was sorry for what he had done.

Defendant also testified at trial. He said he had known the victim his entire life;

they were raised together. In fact, their fathers were cousins. Defendant and the victim became romantically involved around July 2015. He described the victim as "a little violent."

On the night of the stabbing, Defendant went to the house on North Lincoln around 11:30 p.m. He said he went there "all the time to sit down and watch the football game or basketball game and drink." He left to go to the store and saw the victim there. He told her to come see him later. They were not really dating at the time because they were cousins, but she wanted to marry him.

The victim was at the house after Defendant went back a second time. She and Defendant argued about why he had not called her; he had "backed away" because she broke his window and kicked his car. Defendant denied he threw a beer bottle at the victim's car; he said he threw a bottle toward an open trash can and missed. He left the house then, but he returned a third time because the victim "kept calling [him] all night." She asked him to come back to the house, and he agreed.

The victim was sitting in the kitchen when he arrived. Defendant testified, "And then she just flashed out like it was like a setup. She just flashed out on me." Defendant said the victim was angry and yelling at him. She had learned he had been talking to Melissa Fontenot, whom the victim considered an enemy.

During the argument, Defendant said the victim grabbed a knife. She, Ms. Landry, and Mr. Bias were in the kitchen, and Defendant was standing by a china cabinet next to the side door. He said he "never made it into the kitchen." Defendant testified, "She come [sic] at me with it. So, I started wrestling with her." He grabbed the knife from the victim, ran outside, and threw the knife. The victim came outside running at him. He was cut on his right hand and "was bleeding bad." He ran to his car and left. He had no time to wipe the knife.

Defendant said the victim, Ms. Landry, Mr. Bias, and Mr. Offord were all lying when they said he grabbed the knife; he testified, "They must have seen when I grabbed the knife from her." He insisted they were "telling it wrong" by saying he grabbed the knife, swung it, and said he would kill the victim. They could only have seen Defendant and the victim "tussling." Defendant repeatedly testified he wrestled with the victim, but he did not stab her. They were both holding the knife when the victim's wounds were inflicted. When asked how the victim sustained a stab wound to her back, Defendant explained, "Because we was [sic] wrestling, and when I grabbed the knife, it slipped like. We was [sic] wrestling like that. That's a big girl, and she was just wrestling." Defendant also said the victim "was real drunk." He said the victim was not on the ground, and she "got stabbed in the wrestling." Ms. Landry "probably was in the back[,]" in the bathroom, when the victim came at him.

Defendant testified he went to his mother's house after the incident. The victim told him she pressed charges against him because she thought he would press charges against her. He "didn't even know she had no [sic] little scratches or nothing [sic] until they put a warrant out" for him. He had no intent to harm or kill the victim. He testified, "That's my cousin. I love her."

The victim kept telling Defendant's mother she would sign an affidavit. Defendant admitted he told the victim during his call to her from jail that he loved her, and he asked her not to come to court and to sign the affidavit dropping the charges. Nevertheless, he denied trying to talk her into not testifying against him. He said the victim was talking about not coming to court before he spoke of it. Defendant also told the victim during the call that he was going to marry her, even though he testified he would not marry her because she was his second cousin. Defendant admitted to having a sexual relationship with the victim, but he described it as, "we was [sic] talking, and we was just like sleeping around. We wasn't [sic] boyfriend and girlfriend." The victim at one point was carrying Defendant's baby, but she had a miscarriage. Defendant testified, "I said I wouldn't marry her because she's my second cousin, but I will marry her."

Christopher Singletary, a forensic DNA analyst at the Southwest Louisiana Crime Lab, qualified as an expert in the field of forensic DNA analysis at trial. He examined a knife submitted to him and found suspected blood on it. However, his testing failed to demonstrate the presence of blood.

Mr. Singletary examined the knife, two swabs containing possible blood, and buccal swabs from the victim and Defendant for DNA. He found DNA from one major contributor and from one partial minor contributor on the handle of the knife. The major contributor's DNA matched Defendant's reference buccal swab. The minor contributor's DNA contained an insufficient amount of information to compare. Swabs from blood stains from the driver's seat of Defendant's vehicle also contained DNA that matched Defendant's reference sample. Mr. Singletary could not say how long the stains had been on the seat. None of the DNA from the knife or the swabs matched the victim. Mr. Singletary found no blood on the knife and none of the victim's blood on the swabs taken from Defendant's vehicle.

The stabbing incident was not the first altercation between the victim and Defendant. The victim testified she was dating Defendant in November 2015. They were riding in his car together, leaving a store, when she told him she "didn't want to be with him no [sic] more." They stopped at a convenience store, and she got of the car to walk home. Defendant began chasing her in his car as she ran through yards and tried to hide. When he caught her, he got a crowbar out of the trunk of the car and began beating her in the back of the head as she lay on the ground. Defendant dragged the victim by the hair and put her in the trunk of the car. She thought he was going to kill her.

The victim testified Defendant took her to his mother's house. As she "was playing possum[,]" she heard him say, " 'I killed the bitch" to his mother. When Defendant took the victim out of the trunk, he saw her finger move, and he started kicking and punching her in the head. Defendant's mother started screaming, and his father came outside and helped the victim, whom Defendant had left on the front porch. The State introduced a photograph of blood on the ground at Defendant's parents' house. Other photographs showed the victim at the hospital wearing a neck brace with blood on her face and head. Although the victim pressed charges against Defendant, she "didn't finish[.]"

The victim admitted she was previously involved in a knife fight with another woman, Melissa Fontenot. At trial, Defendant's counsel questioned the victim about whether the purported crowbar incident actually involved injuries from the knife fight with Ms. Fontenot. She denied telling Defendant's mother she had been in a fight and ran to the house for help.

Officer Christopher Breland testified at trial about the prior incident with the victim and Defendant. Officer Breland answered a call to 2125 Knapp Street "involving a black female that was basically screaming for help and needed an ambulance and was injured." The homeowner, Linda Bias, told him "[s]he heard screaming coming outside of her front door." She found the victim, bleeding and asking for help. When Ms. Bias asked the victim what had happened, "all she could say or state repeatedly was, 'Junior.' " Ms. Bias identified "Junior" as Defendant, her son.

Officer Breland spoke to the victim, who "was banged up" and "had some obvious severe injuries," at the hospital. The victim told him she and Defendant were in a car together arguing, and he threatened her. She decided to exit the vehicle and run. Defendant stopped the vehicle, exited it, and grabbed something from the trunk. He chased and caught her, hit her over the head with the object, and rendered her unconscious. When she regained consciousness, she was "back inside the vehicle[.]" Defendant took her to his mother's house, "dropped her off at the front door in the front yard and then left."

Ms. Bias gave conflicting testimony about the day in November 2015 when the victim came to her house "full of blood[.]" Ms. Bias testified the victim said she had been fighting with some girls who were beating her up at a store on Simmons Street. The victim went to Ms. Bias's home because she thought Defendant was there. When Defendant told the victim to " '[j]ust leave it alone[,]" she became angry and took a crowbar out of the trunk of Defendant's car while Defendant tried to stop her. She used the crowbar to shatter the windshield of Defendant's car.

On cross-examination, Ms. Bias testified she called 911 and said the victim was outside her house, crying for help, lying on the ground, and bleeding from her head. She did not tell 911 anything about the other girls that purportedly hurt the victim. Ms. Bias testified she told the officers who responded to the call about those girls. She thought Defendant was present when the ambulance arrived, but she also said she did not remember. She further testified she told police she did not know where Defendant was because she "didn't know if he left to go see where the girls was [sic] to see what happened" to the victim.

Defendant testified he never hit the victim in the head with a crowbar, and he did not know what happened when the victim ended up at his mother's house. He did go looking for the girls he was told were fighting the victim "to see what was going on." The victim broke a window in his car that night. She was "always busting [his] windows all the time."

The only testimony in the record about the victim being the aggressor during the stabbing on July 29, 2016, came from Defendant himself. Police officers testified the victim identified Defendant as her attacker. Toby Harrison testified the victim identified Defendant as her attacker. Coco Landry, an eyewitness, testified Defendant struck the victim earlier in the evening and then stabbed her without provocation. Peanut Offord thought Defendant stabbed the victim. None of these witnesses testified about the victim and Defendant tussling or wrestling when the victim was wounded. Additionally, Ms. Landry and the victim testified Defendant clearly stated his intent to kill her. Peanut Offord testified Defendant got the knife from the drawer and said he was going to kill the victim.

The victim suffered four stab wounds in her head, neck, back, and chest. Defendant's brief argues the victim was injured while she wrestled with him over the knife. Defendant also contends the victim's wounds"were superficial and non-life threatening[,]" and she only stayed in the hospital for half a day. She required only three staples to the stab wound in her head. Defendant argues the knife recovered from the scene "could have inflicted serious injuries if that was [Defendant's] intent." Thus, he suggests the evidence shows only his general intent to commit an aggravated battery on the victim. He did not make that contention in his motion to reconsider his sentence.

Credibility determinations are functions of the jury. Ryan , 969 So.2d 1268. "Specific intent to kill can be inferred from the intentional use of a deadly weapon such as a knife or a gun." State v. Washington , 50,424, p. 6 (La.App. 2 Cir. 3/16/16), 188 So.3d 350, 356, writ denied, 16-718 (La. 4/13/17), 218 So.3d 119.

The jury could have reasonably found the testimony of the witnesses who said Defendant took the knife, told the victim he was going to kill her, and stabbed her four times to be credible. Accordingly, we find that the evidence is sufficient to establish the elements of attempted second degree murder, and Defendant's conviction is affirmed.

ASSIGNMENT OF ERROR NUMBER TWO:

Defendant alleges his seventy-year sentence is excessive. Because that sentenced was imposed pursuant to Defendant's habitual offender adjudication, we will address the issue in docket number 18-665, the appeal of the habitual offender proceeding.

DECREE:

Defendant's conviction for attempted second degree murder is affirmed.

AFFIRMED.

      Because two residents of the house were named Phillip Harrison, we will refer to them by their nicknames, Toby and Pepper.

      The record does not explicitly identify "Hooch."