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    STATE of Louisiana, Appellee v. George E. KNIGHT, II, Appellant.
    No. 45,231-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2010.

      Louisiana Appellate Project, by Paula C. Marx, for Appellant.
    Jerry L. Jones, District Attorney, Ellen R. Eade, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS and MOORE, JJ.
   MOORE, J.

|, After a one-car accident resulted in the death of a passenger, the state charged the driver with vehicular homicide. After trial, a jury found the defendant guilty of negligent homicide, a violation of La. R.S. 14:32. Thereafter, the defendant was sentenced to five years of imprisonment at hard labor. Defendant now appeals his conviction and sentence. We affirm.

FACTS

On July 19, 2003, George Knight (“defendant” herein) and his longtime friend, Stephen L. Coburn, were involved in a one-car accident sometime after 2:00 a.m. on U.S. Highway 80 in West Monroe, Louisiana. Police and emergency personnel arriving on the scene found the defendant near the vehicle and Mr. Coburn 30-40 feet away from the vehicle. Mr. Coburn was pronounced dead at the scene of the accident. The defendant, who was responsive to initial questioning by an officer, confirmed his identity and ownership of the truck, and he indicated that he was the driver of the vehicle.

The defendant was transported to a local hospital where he was treated for his injuries. At the hospital, the defendant denied he was the driver of the vehicle. Blood alcohol testing showed both the defendant and the victim were legally intoxicated at the time of the accident.

The defendant was initially charged with negligent homicide. The charge was later amended to vehicular homicide. A jury found the defendant guilty of the responsive charge of negligent homicide. Thereafter, the defendant was sentenced to five years at hard labor with credit for time served. The defendant filed a motion to reconsider sentence 12which the trial judge denied. This appeal ensued.

DISCUSSION

Defendant raises five assignments of error on appeal. Because his third assignment of error concerns the sufficiency of evidence to convict him of negligent homicide, we consider it first. By this assignment, the defendant contends that the jury verdict was contrary to the law and evidence under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Specifically, he argues that the state failed to sufficiently establish that he was the driver of the truck at the time of the accident.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2 Cir. 4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the | .¡evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2 Cir. 2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App. 2 Cir. 5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529. See also, State v. Bowie, 43,374 (La.App. 2 Cir. 9/24/08), 997 So.2d 36.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582; State v. Parker, 42,311 (La.App. 2 Cir. 8/15/07), 963 So.2d 497. When circumstantial evidence is used to convict, the statutory rule is that, assuming every fact to be proved that the evidence tends to prove, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. The circumstantial evidence rule may not establish a |4stricter standard of review than Jackson v. Virginia but it emphasizes the need for careful observance of the usual standard and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence. State v. Nealy, 450 So.2d 634 (La.1984); State v. Blake, 575 So.2d 906 (La.App. 2 Cir. 2/27/91).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App. 2 Cir. 2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App. 2 Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

The defendant contends that he was not the driver of the vehicle, and that the evidence at trial was insufficient to prove this fact beyond a reasonable doubt. He complains that Louisiana State Trooper Chris Jordan (Jordan) assumed that the defendant was the driver of the vehicle under the mistaken belief (at the time) that he was the only occupant. Louisiana State Trooper David Cummings (Cummings), he contends, incorrectly relied on Jordan’s assumption. The defendant also complains that there was not a full accident reconstruction, and that Lieutenant Tommy Lewis (Lewis), a Louisiana State Trooper, and the accident reconstructionist, based his testimony on mere “simple physics” and “occupant behavior.” The defendant contends that the testimony of Dr. Frank Peretti that the defendant’s injuries were consistent with him being the driver are unscientific. This last allegation is treated in a separate assignment of error. | ^Finally, the defendant contends that there is no forensic or DNA evidence to prove he was the driver.

The evidence that the defendant was the driver of the vehicle consisted of circumstantial, direct, and physical evidence and expert testimony. Viewed under the Jackson standard, for the following reasons, we conclude that this evidence established beyond a reasonable doubt that the defendant was the driver of the vehicle and was sufficient beyond a reasonable doubt to convict the defendant of negligent homicide.

Trooper Jordan testified that he was the first officer to arrive at the accident scene. He observed paramedics were working on a person a few feet from the vehicle. Jordan spoke with paramedics to see if the person they were assisting had a driver’s license. Jordan was not aware at that time that there was another person, the victim, involved in the accident. Jordan was given a driver’s license from a wallet removed from the defendant’s pocket. Jordan then attempted to verify that it was the same person lying on the ground three to five feet away from the truck. The defendant responded to questions that the license was his and that he owned the truck. When asked if he was driving, the defendant responded “yes.” Jordan testified that the defendant was “very coherent at that point” and responded without hesitancy or any observable difficulties. He said that his questioning of the defendant was part of the standard procedure used to gather information.

Trooper Cummings testified that he was the lead investigator in the case. Already on the scene were ambulance personnel, Ouachita Parish Fire Department personnel and Trooper Jordan. Cummings did a survey of the |ficrash scene and received the defendant’s license from Jordan, who identified the defendant as the driver of the vehicle.

In surveying the scene, Cummings noted there was debris, including beer cans, scattered over the roadway and near the truck. Cummings also found “yaw marks” or scrape marks in the roadway. Cummings explained that yaw marks are made by a vehicle as it travels down a roadway with the tires still rolling, but turned on their edge without braking. Cummings was able to determine where the accident began by following the markings left by the vehicle. In describing where the accident began, Cummings testified:

This roadway was a slight right hand curve, kind of downhill slope. Just as you come out of the curve, you can see where the right rear tire went off the roadway and then the vehicle immediately began yawing, which is where the vehicle rotated. You know, it started rotating in the road. There was [sic] scrape marks to where the left rear tire went down, dug into the asphalt, which caused the vehicle to roll over, slide on its hood, which left scrape marks on the roadway. And then where it ... when it hit the edge of the roadway, it’s on its hood and kind of on ... at an angle on its hood and its roof. And when it hit the edge of the roadway, it flipped. And when it flipped, that’s when the passenger come out, got crushed and then the vehicle continued to roll before it came to final rest.

Cummings stated that he was sure the markings were associated with the accident as they were “fresh” that night and had not started to disappear. Cummings determined only one vehicle was involved and that the occupants were the defendant and the victim, who was pronounced dead on the scene. Cummings indicated he took pictures of the scene as well as measurements using a light pole as his reference point. Cummings also indicated he was able to determine that the speed of the vehicle at the time |7of the accident was 65 miles per hour, in excess of the 45 miles per hour speed limit.

During his testimony, Cummings identified the photographs (P-2 through P-52) that he took of the scene and the vehicle. Cummings also identified drawings (P-53 and P-55) he made of the accident scene. He measured the tread of the vehicle’s tires but did not find that the low tire tread played any significance in the accident. After his investigation, during the early morning hours and later that day, Cummings concluded that the defendant was the driver of the vehicle based on the position of the victim’s body at the accident scene, “indications in the roadway,” and the way the defendant would have been ejected from the vehicle. Cummings made contact with the defendant, identifying him through his driver’s license and his hospital wristband, at the hospital to return his driver’s license and issue him a citation for negligent homicide. Cummings noticed that the defendant’s injuries appeared to be to his left side.

Lieutenant Lewis was qualified by the trial court as an expert in the field of accident reconstruction. When Lewis arrived at the accident scene, it had been secured, and he was briefed by Cummings. Based on information concerning the vehicle’s occupants and where the ejection of the victim took place, the direction the vehicle traveled after it began to skid, as well as the defendant’s injuries, the officers determined that the defendant had been the driver of the vehicle.

Lewis noted that the deceased victim had to have been ejected through the passenger window first. Lewis testified that simulators of |8“occupant behavior” have consistently shown, when two people are sitting in a car, that once the vehicle starts going from side-to-side the momentum of the vehicle would cause the passenger to be ejected first and that the driver would have injuries to the left side because the driver would hit the driver’s side door and possibly make contact with the roadway, if the windows of the vehicle were broken out. Lewis stated that it would be impossible for a driver to leave the passenger window, as it appeared in this case, unless the passenger had already been ejected from the vehicle.

After reviewing photographs from the scene for the jury and noting that an official opinion of the accident was formed, he stated:

Yes, sir. I did. I believe the vehicle was traveling westbound in ... in the westbound. I believe that the ... that the pickup truck failed to negotiate a curve, went straight instead of taking the curve to the right, ran off the right side of the road. I believe then that the driver of that vehicle steered hard to the right, causing the vehicle to get sideways in the roadway. I believe as it got sideways on the roadway, I believe that the tires came in contact with road and it ... it caused that left rear tire to break down. The rim caught and I think ... and it caused it to turn over on its roof and it slid on its roof, causing scrapes, going back across back into the westbound lane. And as it went over, that passenger ... that side that caught and it made the vehicle continue to go over and ... and we saw that there was a — Mr. Coburn’s body laying there. And we determined that as the vehicle was going side to side, rolling over, that ... that the momentum caused from that and the occupants that were in the vehicle, that the passenger came out first, the vehicle continued to go over, and then that the driver was ... remained with the vehicle.

Turning now to the elements of the offense, La. R.S. 14:32 provides, in pertinent part:

A. Negligent homicide is either of the following:
(1) The killing of a human being by
criminal negligence.
|flB. The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.

Criminal negligence exists when, although neither specific nor general intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation of the standard of care expected to be maintained by a reasonably careful man under like circumstances. La. R.S. 14:12. Unlike general or specific criminal intent, criminal negligence is essentially negative in its nature, consisting of a kind of privation. Rather than requiring that the accused intend some consequence of his actions, criminal negligence is found from the accused’s gross disregard for the consequences of his actions. State v. Martin, 539 So.2d 1235 (La.1989); State v. Beason, 26,725 (La.App. 2 Cir. 4/7/95), 653 So.2d 1274, writ denied, 95-1388 (La.10/27/95), 661 So.2d 1359; State v. Wilcoxon, 26,126 (La.App. 2 Cir. 06/22/94), 639 So.2d 385. Ordinary negligence does not equate to criminal negligence. Thus, the state is required to show more than a mere deviation from the standard of ordinary care. State v. Wilcoxon, supra.

The state presented sufficient evidence for the jury to find the defendant guilty of negligent homicide. The state was able to show that the defendant, while driving with a blood alcohol content of more than two times the legal limit, caused the accident which killed the victim. Mr. Barnhill, qualified as an expert in forensic toxicology and the effects of alcohol on human beings, testified that the defendant’s high blood alcohol level would have caused impairment in any individual. Specifically, at the levels found in the defendant’s blood, Mr. Barnhill believed the average 110person would be greatly impaired. As the symptoms of impairment could not have gone unnoticed by the defendant, it is reasonable for the jury to conclude that the defendant’s actions were made with such disregard to the interest of the victim and others, and that the defendant’s action amounted to a gross deviation of the standard of care expected to be maintained by a reasonably careful man under like circumstances. It is generally not expected that a person would drive while his blood alcohol level is more than twice the legal limit.

We also conclude that, on the evidence discussed above, the state negated the defendant’s contention that he was not the driver. The investigating officer as well as his supervisor concluded that based on the accident investigation, the location of both the victim’s body and the defendant’s body, and the defendant’s injuries, it would have been nearly impossible for the victim to have been the driver of the vehicle. The state also presented the testimony of the first law enforcement officer to arrive on the scene of the accident. The officer testified that the defendant, when questioned, stated that the truck belonged to him and that he was driving at the time of the accident. Additionally, Dr. Peretti testified that the victim died as a result of multiple injuries which were consistent with him being a passenger in the vehicle. The victim’s injuries were consistent with him being ejected and then rolled over by the vehicle. Dr. Peretti also testified that the defendant’s injuries were typical of those a driver would receive when involved in an automobile accident. As would be generally noted, the defendant’s injuries were primarily located on his left side. The testimony of|nthe witnesses was sufficient to establish that the defendant was the driver of the vehicle at the time of the accident. This assignment of error is without merit.

We turn now to the remaining assignments of error in numerical order.

By his first assignment of error, the defendant contends that the trial court erred in refusing to grant a mistrial because of the misconduct of the prosecuting attorney in questioning the defendant about a prior criminal charge in which he had been acquitted.

Prior to the defendant’s cross-examination, the defense moved for a motion in limine, which the trial court granted, specifically prohibiting the state from questioning the defendant about any matter (arrests) that had not led to a conviction. During the cross-examination, the prosecutor asked the defendant about a third DWI arrest he had not mentioned during direct examination. The prosecutor then asked the defendant if his license had been suspended in 200B, and why it was suspended. The defendant replied, “I was stopped and they smelled alcohol on my breath.” When the prosecutor asked the disposition of the matter, the defendant replied he was found not guilty. The defendant indicates the state violated the order, and the state was not “mistaken or surprised when George Knight said he was found not guilty.” The defense attorney then asked that the jury be removed.

Defense counsel requested a mistrial arguing that there was evidence that the defendant had been found not guilty of the charge and that the | ^state’s question was inappropriate and would unduly prejudice the jury. The state responded that the jury would not be prejudiced and that the question was related to the defendant’s credibility. The prosecutor told the trial court he was unaware of the disposition of the case, but was attempting to obtain information about the defendant’s driver’s license being suspended. The trial court informed the prosecutor that he could not go into the facts of any conviction. After the discussion, the trial court ruled.

Mr. Britton, based on his record I do not think that he’s already admitted to, I do not think its going to prejudice him at all. I am going to deny your motion for mistrial, understanding you’re objecting to my ruling.”

Once the jury returned, the trial court gave the jury this admonishment:

... Ladies and gentleman of the jury, just before you exited there was a question and answer about a non-conviction. You are to disregard any question or answer in reference to any non-conviction. This is not competent legal evidence and would be improper for you as a juror to consider. Your final decision should only be based on legally admitted testimony or evidence. Do you understand that instruction?
Is there anyone here that has any doubt about them being able to follow that instruction? If so, please raise your hand. Not seeing any hands raised, you may proceed.

The state admits that the “unskilled questioning by an inexperienced prosecutor” may have been improper, but the trial court did not abuse its discretion when it denied the mistrial. The state further contends that even if the trial court was in error in failing to grant the mistrial, under the harmless error analysis, the error did not contribute to the verdict.

The law in this area is well settled. As this court stated in State v. Smith, 43,136 (La.App. 2 Cir. 4/23/08), 981 So.2d 200:

11sLa. C.E. art. 404(B) provides that evidence of other crimes, acts or wrongs is generally not admissible. La. C. Cr. P. art. 770(2) provides that a mistrial shall be granted upon motion of the defendant when a remark or comment is made within the hearing of the jury by the judge, district attorney, or a court official during trial or in argument and that remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. State v. Ellis, 42,520 (La.App. 2 Cir. 09/26/07), 966 So.2d 139.

Even if a mistrial was warranted under Art. 770, 771, or 775, the failure to grant a mistrial would not result in an automatic reversal of defendant’s conviction, but would be a trial error subject to the harmless error analysis on appeal. State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443, appeal after remand, 04-0765 (La.App. 4 Cir. 10/27/04), 888 So.2d 329, writ denied, 04-2919 (La.3/18/05), 896 So.2d 1003, cert. denied, 546 U.S. 867, 126 S.Ct. 154, 163 L.Ed.2d 154 (2005); State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94. Trial error is harmless where the verdict rendered is “surely unattributable to the error.” State v. Johnson, supra.

Mistrial is a drastic remedy, and the determination of whether the defendant has been prejudiced by the prosecutor’s argument lies within the sound discretion of the trial judge. State v. Hall, 43,125 (La.App. 2 Cir. 6/4/08), 986 So.2d 863; State v. Williams, 41,731 (La.App. 2 Cir. 1/24/07), 950 So.2d 126, writ denied, 2007-0465 (La.11/2/07), 966 So.2d 599.

We conclude that the conduct of the prosecution was inexcusable misconduct and cannot be attributed merely to inexperience. The questioning by the prosecutor was clearly improper in that it referenced a prior arrest that did not lead to a conviction. The questioning was clearly 114related to “another crime committed or alleged to have been committed by the defendant as to which the evidence is not admissible” La. C. Cr. P. art. 770(2). The defendant had not been convicted of the crime, and the prosecutor admitted he did not have evidence of a conviction. Even if it is assumed that the prosecutor was attempting to elicit the information merely for the purposes of attacking the defendant’s credibility, the details or facts of the arrest or stop and the defendant’s driver’s license suspension would not have been admissible. The trial court acknowledged this fact in its discussion of the matter. Further, the prosecutor was in violation of the trial court’s ruling on the defense motion in limine which specifically informed the prosecutor that he could only question the defendant about convictions. It was incumbent upon the prosecutor to know the disposition of the case before questioning the defendant.

Finding that the trial court did err in denying the mistrial, this court must analyze the error under a harmless error analysis and determine if the verdict rendered is “surely unattributable to the error.” State v. Johnson, supra.

Sufficient evidence was presented to show that the defendant was intoxicated at the time the accident occurred and, while the defendant denied driving the vehicle, it was shown that he was the driver. The state presented testimony showing that the defendant’s injuries were consistent with him being the driver of the vehicle and that, immediately after the accident, the defendant admitted that he was the driver of the vehicle. Additionally, as noted by the trial court, the defendant did have three prior |ir,arrests for DWI to which he admitted. Considering the fact that the defendant indicated to the jury that he had been found not guilty of the questionable DWI, it is doubtful that the line of questioning contributed to the verdict. Further, the trial court’s admonishment could have been a sufficient curative measure. This assignment of error is without merit.

By his second assignment of error, the defendant contends that the trial court erred when it allowed the pathologist, Dr. Peretti, who examined the decedent in the accident, to give expert testimony about the defendant’s medical records. The defendant argues that the trial court incorrectly allowed Dr. Peretti to testify regarding the defendant’s “pattern of injuries” sustained during the accident. Furthermore, he contends that Dr. Peretti’s opinion testimony was a last minute surprise, and the introduction of the evidence that the defendant’s injuries were consistent with him being the driver of the vehicle was unfair and violated his due process right to a fair trial.

The standard for accepting expert testimony was set forth in State v. Foret, 628 So.2d 1116 (La.1993), wherein the supreme court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); State v. Boudreaux, 41,660 (La.App. 2 Cir. 12/13/06), 945 So.2d 898. Daubert requires the trial court to act in a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Chauvin, 02-1188 (La.5/20/03), 846 So.2d 697. A trial court has great discretion in determining the competence of an expert witness, and that | ^determination will not be overturned absent an abuse of discretion. La. C.E. art. 702. State v. Gipson, 37,132 (La.App. 2 Cir. 6/25/03), 850 So.2d 973, writ denied, 03-2238 (La.1/30/04), 865 So.2d 75. The test of competency of an expert is his knowledge of the subject about which he is called upon to express an opinion. A combination of specialized training, work experience and practical application of the expert’s knowledge can combine to demonstrate that a person is an expert. State v. Gipson, supra.

While the defendant initially stipulated to Dr. Peretti’s qualifications as an expert in the field of forensic pathology, when the state began to question Dr. Peretti regarding the defendant’s medical record, the defense lodged an objection. The defendant requested and was granted a Daubert hearing. During the hearing, the state elicited testimony from Dr. Peretti showing that he had performed numerous autopsies and evaluated patterns of injuries in deceased people. Dr. Peretti testified he is a licensed physician with subspecialty training in forensic pathology which included interpreting patterns of injuries and rendering opinions as to cause and manner of death. As a physician, Dr. Peretti indicated he could review medical records and give opinions.

The state tendered the witness, and was asked to discuss his qualifications in relation to the elements of Daubert. The state noted that Dr. Peretti testified he had experience as a forensic pathologist for nearly 20 years. The state noted that Dr. Peretti indicated he had seen articles regarding the interpretation of patterns of injury in peer review publications and some medical journals, though he was not able to specifically name any |17articles. However, Dr. Peretti had not established whether the theory had been tested. The trial court indicated the defendant needed to elicit additional information from Dr. Peretti in an attempt to address all elements. In additional questioning, Dr. Per-etti noted that he was aware of four or five textbooks containing the information. He also stated that he was a former editor of the Journal of Forensic Medicine and Pathology and all of its articles are “peer reviewed” before publication. Dr. Peretti testified that forensic pathologists are trained to recognize patterns of injury. The trial court qualified Dr. Peretti as an expert in “pathology which encompasses the patterns, interpreting patterns of injury.”

Through Dr. Peretti’s testimony during the Daubert hearing, the state presented evidence that Dr. Peretti is knowledgeable in the subject area in which he was called to express an opinion. Specifically, Dr. Peretti noted that he was a licensed physician and trained in forensic pathology, and he was called upon to interpret the patterns of injuries associated with deceased persons. The skill of interpreting the injuries was directly transferable to interpreting injuries of a living person based on their medical records. Dr. Peretti’s specialized training, work experience, and practical application (prior testimony as an expert) of the expert’s knowledge combined to demonstrate that Dr. Peretti was an expert in the tendered fields. We conclude that the trial court did not abuse its discretion in allowing Dr. Peretti to testify regarding the defendant’s injuries. This assignment of error is without merit.

11 sin his fourth assignment of error, the defendant contends that his maximum sentence is excessive for his conviction of negligent homicide. The defendant argues that he is not the most egregious and blameworthy of offenders. The defendant indicates he and the decedent were best friends over 30 years. The decedent’s sister acknowledged the decedent was intoxicated at the time of the accident and the decedent easily could have been on trial for the defendant’s murder. The defendant also notes that the decedent’s brother and sister suggested probation for the defendant despite the fact that some other family members requested a maximum sentence.

The test imposed by the reviewing court in determining the exces-siveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2 Cir. 2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2 Cir. 1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57 and 04-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2 Cir. 4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Swayzer, 43,350 (La.App. 2 Cir. 8/13/08), 989 So.2d 267; State v. Shumaker, 41,547 (La.App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 35.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379.

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330.

12f)The defendant was sentenced to five years at hard labor with credit for time served. Following his sentencing, the defendant filed a motion to reconsider sentence which was denied by the trial court. In the motion to reconsider sentence, the defendant alleged the sentence imposed was “cruel and unusual and beyond the scope of the court’s authority.”

The record shows that the trial judge considered the appropriate sentencing factors prior to imposing the sentence. During the sentencing hearing, the trial judge summarized the presentence investigation noting the defendant’s self-reported social history and also noting that the defendant stated he and the victim had been close friends for a long time. The trial judge found that the defendant’s claims of not having a drinking problem were belied by the defendant’s arrest history which the trial judge characterized as “extensive.”

The trial judge reviewed the sentencing guidelines listed in La. C. Cr. P. art. 894.1, finding that the defendant’s conduct caused serious harm, that there was no substantial grounds for excusing or justifying the defendant’s behavior, and that the victim’s independent criminal conduct did not induce or facilitate the commission of the crime. Additionally, the trial judge found that the defendant had not and could not make compensation for the loss of the victim’s life. The trial judge concluded that the defendant’s character and attitude indicated that he would commit another crime and he would not respond affirmatively to probation. Id. Finally, the trial judge concluded that the defendant’s conviction did not reflect the “true crime” that was committed. As an aggravating factor, the court observed that the defendant J^had not accepted responsibility for his action and that he had in fact tried to transfer responsibility to the victim. The defendant’s “good work history” was considered as a mitigating factor in the case. Id.

In determining the sentence, the trial judge also considered the fact that there would be an undue risk that during a period of a suspended sentence or probation that the defendant would commit another crime and that the defendant was in need of correctional treatment or a custodial environment that could be provided most effectively by his commitment to an institution.

We concluded that the trial court did not abuse its discretion in imposing the defendant’s sentence. The sentence imposed, though a maximum sentence, is appropriate and particularized for this offender. Despite the defendant’s first offender status he had numerous arrests for traffic-related offenses including three previous arrests and two convictions for DWI-first offense. The evidence presented in this case showed that alcohol was more probable than not a contributing factor to the accident. Both the defendant and the victim’s blood alcohol levels were twice the legal limit at the time of the accident. Further, the trial court found that the defendant’s actions caused great emotional harm to the victim’s family and despite the defendant’s claims that he was a great longtime friend of the victim, the defendant had not shown any remorse for his actions.

The defendant contends that some of the victim’s family members were in agreement with him receiving a probated sentence; however, he failed to acknowledge the fact that the family’s agreement had been ^obtained by the state to facilitate a plea agreement offered to the defendant prior to trial. As noted in the presentence investigation, the family members who were contacted believed their lives had been irreparably changed and that the defendant had not shown any remorse for his actions. The family members who chose to comment on sentencing indicated their desire for the defendant to receive the maximum sentence. Despite the fact that the imposed sentence is the maximum punishment for the crime of which the defendant was convicted of, when considering the crime and punishment viewed in light of the harm done to society, the sentence does not shock the sense of justice. This assignment of error is without merit.

By his final assignment of error, the defendant contends that his alleged admissions after the accident that he was driving the vehicle should not have been allowed at trial pursuant to La. R.S. 15:451. The defendant argues that while making the statements, his blood alcohol content level was .24 grams percent, that he was in pain, confused, and was being treated by emergency medical personnel. The defendant notes that he was observed to be confused an hour after the accident and he could not remember the circumstances of the accident. The facts, the defendant argues, make the statement inadmissible.

La. R.S. 15:451 concerns the “free and voluntary rule” as a “condition precedent to use of a confession.” The term “admission” is applied to those matters of fact which do not involve criminal intent; the term “confession” is applied only to an admission of guilt, not to an aeknowledg-merit of facts merely tending to establish guilt.” La. R.S. 15:449. Additionally, the freehand voluntary rule does not apply to admissions not involving criminal intent. La. R.S. 15:454.

Prior to the start of the trial, a free and voluntary hearing was held to determine the admissibility of the defendant’s statements made to Tpr. Jordan soon after the accident. Jordan, who was off-duty at the time, was traveling home and was in the area when he heard the call of the accident with injuries. Jordan testified he arrived at the scene of the accident and made contact with the paramedics who were treating the defendant. At that time, the defendant was lying three to five feet from his vehicle and was conscious and responsive. Jordan asked one of the paramedics if the defendant had a wallet on his person. Jordan was given the wallet and located the defendant’s driver’s license. At this point, Jordan asked the defendant if he was George Knight, whether the vehicle belonged to him and whether he had been driving. The defendant responded “yes” to each of the questions. Id. The defendant was not advised of his Miranda rights.

Jordan then went back to his vehicle and “started doing stuff for the accident.” Jordan indicated he did not advise the defendant of his Miranda rights because he “had no reason to believe there was a criminal act” or that “it [sic] was a fatality at that point.” He said the questioning was simply standard procedure. Jordan stated he did not find out until later that there was another person involved in the accident and the initial call for the accident was that of an “injury wreck” or crash with injuries. Jordan believed he was the first law enforcement officer to arrive on the scene. Id.

1240n cross-examination, Jordan testified the defendant was receiving medical treatment during the questioning. While Jordan believed “at the very least somebody could get a ticket,” he was not conducting a criminal investigation at that time. Jordan stated he did not know alcohol was involved in the accident and he was not close enough to the defendant to smell any alcohol emitting from his person. Jordan also testified that he did not have any information about the defendant’s injuries or what treatment he was receiving on the scene. Jordan recalled that the defendant was responsive and answered the questions posed to him. Jordan stated that the questions he asked were typical of what an officer arriving on the scene would ask to ascertain information about the accident in either a criminal or civil offense. Jordan reiterated that the defendant had not been in custody at the time of questioning. Jordan did not author a report for the accident, but did provide a written statement that was made part of the investigating officer’s report. After the testimony, the state argued that there had not been a custodial interrogation and Miranda warnings had not been necessary for the officer to obtain the basic information from the defendant. The trial court found that the defendant had not been in custody and it was not necessary to advise him of his Miranda rights before questioning. The trial court also found that the officer was merely investigating the accident which was proper under the circumstances.

The trial court did not err in admitting the defendant’s statements to Trooper Jordan. Jordan testified that he was conducting a preliminary investigation of a traffic accident, in an attempt to determine the facts and | ^circumstances of the accident, when he questioned the defendant. Jordan made a simple inquiry of the defendant to aid in his general investigation. The defendant had not been identified as a suspect in any wrongdoings at the time he was questioned; therefore, Miranda warnings were not required prior to the questioning. While the defendant was under the influence of alcohol, Jordan testified that he appeared coherent. The defendant was apparently coherent enough to provide appropriate responses to the questions posed to him; thus, in this instance, the mere fact of the defendant’s intoxication is not sufficient to vitiate his statement. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).

This assignment of error is without merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . Even though in his other assignments the appellant alleges trial error regarding the admissibility of certain evidence, we consider first whether the evidence adduced was sufficient to sustain the conviction.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. John R. THOMAS, Appellant.
    No. 45,215-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2010.

      Louisiana Appellate Project By Margaret S. Sollars, for Appellant.
    Charles R. Scott, District Attorney, Geya D. Prudhomme, Ron Christopher Stamps, Dhu Thompson, Assistant District Attorneys, for Appellee.
    Before BROWN, PEATROSS & MOORE, JJ.
   PEATROSS, J.

| defendant, John R. Thomas, was convicted of two counts of aggravated rape and two counts of molestation of a juvenile. Defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence for each of the aggravated rape convictions, with the sentences to run concurrently. Defendant was sentenced to six years at hard labor for each of the molestation of a juvenile convictions, with the sentences to run concurrent to each other, but consecutive to the sentences for the aggravated rape convictions. Defendant now appeals. For the reasons stated herein, Defendant’s convictions and sentences are affirmed.

FACTS AND PROCEDURAL HISTORY

In 2004, Defendant met T.W. at their mutual place of employment and the two began a romantic relationship. In less than a year, Defendant moved into T.W.’s home where she lived with her two minor children, J.B., her 8-year-old daughter, and X.B., her 7-year-old son. During this time, Defendant worked during daylight hours and T.W. worked nights, beginning around 4:00 p.m. and ending around 2:00 a.m. T.W. worked these hours seven days a week and was unable to be at the home with her children after their school day. As a single mother of two, she relied on the help of others for child care.

On her way to work every day, T.W. would drop off her children at the home of her friend, T.G. When Defendant finished his day shift, he would pick up T.W.’s children from T.G.’s house and take them back to the | ¿residence that he shared with T.W. where the children would remain under his supervision until she returned home from work. On many weekends, T.G.’s children accompanied T.W.’s children to their home with Defendant.

On December 3, 2004, at approximately 2:00 a.m., T.W. returned home from work, checked on her children and found her daughter, J.B., awake and crying. After being questioned by T.W., J.B. revealed that Defendant had “hurt” her. When T.W. asked J.B. to explain how Defendant hurt her, the child motioned toward her vaginal area. T.W. immediately confronted Defendant, who denied the allegations. Both T.W. and Defendant returned to the child’s room where, in the presence of both adults, J.B. reiterated the same accusation. T.W. told Defendant to leave their home and she spent the night in her daughter’s room.

That morning, T.W. took J.B. to LSU Hospital where she was examined by Dr. Farrah Huval. J.B., who was nervous and tearful at the time, told Dr. Huval that her mother’s boyfriend had placed “his privates” inside of her “privacy” and indicated her vaginal and anal areas. During the examination, Dr. Huval observed that J.B.’s vaginal opening was red, raw and had a yellow and brown discharge with a purulent odor. Suspecting that J.B. had contracted a sexually transmitted disease, Dr. Huval swabbed the area for testing and immediately placed the child on antibiotics. Testing from the swab indicated that J.B. had contracted Chlamydia, a sexually transmitted disease. On completing the examination, Dr. Huval contacted the Shreveport Police Department.

|sOn December 7, 2004, T.W. brought J.B. to the Gingerbread House, a local facility for evaluation of abused children. The recorded interview was conducted by Wendy Westerman; T.W. was not present in the room during the evaluation. Officer Simmie Brown of the Shreveport Police Department supervised the interview from a separate room and communicated with Ms. Westerman via a radio earpiece. On December 13, 2004, J.B. was treated at the Cara Center, a part of the local Christus Schumpert Health System, which offers physical exams of sexually and physically abused children. The results of this exam were normal.

Several days later, J.B. told her mother’s friend, T.G., about the alleged sexual abuse. Since her three daughters, A.G., C.G. and J.W., had spent a lot of time at T.W.’s home under Defendant’s supervision, T.G. questioned each one of them separately. All three girls indicated that Defendant had initiated contact with their vaginal areas while they were at T.W.’s home.

C.G., age 13, told her mother that Defendant had touched her vaginal area. A.G., age 8, told her mother that Defendant had put grease on her “private” and then inserted his penis into her vagina. J.W., age 6, told her mother that Defendant had put his hands inside her “private” in order to check if she was clean following her bath.

T.G. contacted Officer Brown to inform him of her three daughters’ allegations against Defendant. On January 7, 2005, T.G. brought A.G. to LSU Health Sciences Center (LSUHSC) where she received a physical examination. T.G. was informed by LSUHSC medical personnel that her ^daughter had been raped and that she had contracted the sexually transmitted diseases (STDs) Chlamydia and Gonorrhea. On January 11, 2005, all three girls were brought to the Gingerbread House for interviews. The recorded interviews were conducted by Gingerbread House personnel and supervised by Officer Brown.

On May 11, 2005, Defendant was charged by bill of indictment with the aggravated rapes of J.B. (d/o/b: 9/15/95) and A.G. (d/o/b: 9/12/96) and molestation of a juvenile against C.G. (d/o/b: 9/15/91) and J.W. (d/o/b: 2/16/98). Discovery motions were filed through 2005 and 2006. A jury trial in the matter commenced on June 17, 2008.

The State’s first witness, J.B., testified that she understood the difference between the truth and a lie. The State moved to introduce into evidence the videotaped interview of the child; and, overruling Defendant’s objections, the trial judge allowed the tape to be admitted and played for the jury.

During the videotaped interview, J.B. appeared visibly upset, rarely made eye contact and spoke softly, oftentimes inaudibly. When asked if she knew why she was there, J.B. shook her head no. J.B. stated that her mother’s friend John “put his privates” inside her “privacy.” J.B. indicated that this had happened ten times in her mother’s bedroom while she was at work. With the assistance of two stuffed animals, J.B. demonstrated that, during the assaults, she would lie on her back while John would get on top of her and insert his penis into her vaginal and anal areas. J.B. explained that she had never seen John’s “private” because she tried not to look. IsUsing a sketch of a female child, J.B. marked the vagina and anus as areas that John touched on her body. J.B. explained the she did not initially tell her mother about the abuse because John told her that she would get in trouble if she did.

After the videotape was played, J.B. testified that it was her on the tape, that she was telling the truth and that no one had told her what to say. J.B. identified Defendant in open court as the same person that she had referred to on the tape as “John.”

The State’s next witness was J.B.’s mother, T.W., who testified as to the child care arrangements she had with Defendant between May and December 2004 for her two children, J.B. and X.B. T.W. identified Defendant in open court and detailed the events of December 3, 2004, when she first discovered the alleged abuse of J.B. and the subsequent chain of events involving the child’s medical examinations and interviews at the Gingerbread House.

The State’s next witness was Dr. Huval of LSU hospital, a physician specializing in pediatric medicine, who testified as to the details of J.B.’s physical examination on December 3, 2004. Dr. Huval stated that J.B. presented with complaints of vaginal pain and claimed that her mother’s boyfriend had inserted his penis into her vagina and anus approximately ten times. The hospital categorized her complaint as a “scan” complaint which stands for “suspected child abuse and neglect.”

IfrDr. Huval described T.W. as devastated, tearful and heartbroken. During the physical exam, Dr. Huval noted “no hymen visualized.” The physical exam revealed the following:

The vaginal opening was very red and raw and she had quite a bit of discharge. The discharge was sort of yellow to brown in color, which is not a normal color for a vaginal discharge and it was a very foul odor ... So it was a purulent, foul smelling discharge, and then we would proceed with doing cultures to try to see if this child does, in fact, have a sexually transmitted disease.
Because she had pointed at her ... anal area, I was attempted [sic] to look at her anus but she wouldn’t allow me to. She began to cry, she sat up, she didn’t even want me to look, she was very fearful, and so at that point that’s when I said, okay, we don’t have to look at that.... In keeping with the do no harm and not traumatizing this patient further, I did not proceed with doing an anal exam on her at all.

Dr. Huval testified that, after examining J.B., she followed standard protocol and contacted Child Protection Services, the Shreveport Police Department and Dr. Ann Springer and made an appointment for J.B. at the Cara Center. During cross-examination, Dr. Huval conceded that, although she did not observe the presence of the hymen, she did not use a colposcope, which is the most accurate tool because of its magnification properties. She further testified that LSU hospital was not equipped with a colposcope, but that the Cara Center had the instrument.

The State’s next witness was T.G.’s daughter, A.G., who testified that she knew the difference between the truth and a lie and that no one had told her what to say. The State moved to introduce into evidence the videotaped interview of the child; and, overruling Defendant’s objections, the trial judge allowed the tape to be admitted and played for the jury.

17During the videotaped interview, A.G. indicated that John had touched her “behind” and her “privacy part.” A.G. stated that John put grease on her “privacy” and then put his “privacy” into her “privacy part.” Using a sketch of the female body and male body, A.G. indicated that her “privacy” was her vagina and his “privacy” was his penis. A.G. stated that the assaults occurred on the couch in the living room of T.W.’s home while she was at work. A.G. indicated that Defendant vaginally raped her on two separate occasions, that he tried to anally rape her once and that one of these incidents occurred just weeks prior.

After the tape was played, A.G. testified that it was her on the videotape and that she was telling the truth on the videotape. She then identified Defendant in open court as the same person she had referred to on the videotape as “John.”

The State’s next witness was T.G.’s daughter, C.G., who testified that she remembered giving the videotaped interview at the Gingerbread House. The State moved to introduce into evidence the videotaped interview of the child; and, overruling Defendant’s objections, the trial judge allowed the tape to be admitted and played for the jury.

During the interview, C.G. stated that John had put his hand in her “private part” while she was in T.W.’s bedroom. C.G. indicated that, on one occasion around Halloween, John asked her to follow him alone into T.W.’s room and, once inside, he reached into her shorts, pulled her underwear to the side and inserted his finger into her vagina. C.G. stated that she did not initially report the abuse to anyone because she was scared and she did not |sknow whether John had done this to anyone else. After the tape was played, C.G. testified that it was her on the tape and that she told the truth. She then identified Defendant in open court as the same person that she referred to on the tape as “John.”

Next, the State called T.G.’s daughter, J.W., who testified that she remembered giving the videotaped interview at the Gingerbread House. The State moved to introduce into evidence the videotaped interview of the child; and, overruling Defendant’s objections, the trial judge allowed the tape to be admitted and played for the jury.

During the interview, J.W. stated that John had touched her inappropriately at T.W.’s home. Using a sketch drawing of the female body, J.W. marked the mouth and vagina as the areas where John had touched her. J.W. explained that, after she took a bath, John used his fingers to separate her labia and looked inside in order to “make sure she was clean.” After the tape was played, J.W. testified that it was her on the tape and that she told the truth. She then identified Defendant in open court as the same person that she referred to on the tape as “John.”

The State’s next witness was T.G. T.G. testified that she left her children under the supervision of Defendant on numerous occasions because she believed he was a good caregiver. T.G. indicated that all three of her daughters claimed to have been sexually assaulted by Defendant and all three denied Defendant’s allegation that it was their brother who performed the sexual assaults.

|flThe State’s next witness was Dr. Jennifer Rodriguez, a medical doctor at LSUHSC, who was qualified as an expert in the field of sexual abuse involving children. While working at the Cara Center, Dr. Rodriguez examined J.B. and A.G. On December 13, 2004, after taking J.B.’s history, Dr. Rodriguez performed a colpo-scopic exam on the child, which revealed that the hymen had no tears or scarring and that her anus was normal. Dr. Rodriguez was asked to explain why, on December 3, 2004, Dr. Huval’s examination revealed that the hymen was not visualized, but yet on December 13, 2004, just ten days later, Dr. Rodriguez observed that the hymen had no tears or scarring.

In response, Dr. Rodriguez stated that, for a sexually abused child, the physical exam should be performed in the first 72 hours of abuse because “a child’s hymen and anal area has ... great capacity to heal, and even in studies it’s been shown that in a few days to weeks that even acute injuries can heal and have no significant anatomic changes that would indicate abuse.” Dr. Rodriguez testified that her findings regarding the hymen neither confirmed nor denied abuse, but rather indicated a normal exam.

On January 11, 2005, Dr. Rodriguez performed a colposcopic exam on A.G., which revealed that her hymen was normal and her anus was normal. “When asked whether a normal exam was common in child sexual abuse cases, Dr. Rodriguez responded:

It’s actually more common to have a normal exam than to have an abnormal exam. By my experience at the Cara Center and by literature that supports it, 85 to 90 percent of the time you have a normal exam in child abuse. You only have an abnormal exam 5 to 15 percent of the time.

| lf)Dr. Rodriguez also testified that, based on her experience, training and knowledge, the contraction of a sexually transmitted disease by children of the same ages as the victims in this case would be considered diagnostic for sexual abuse.

The State’s next witness was Dr. Springer, who was qualified as an expert in pediatrics with a specialty in child abuse medicine. Dr. Springer testified that, when children come to the Cara Center as a result of alleged sexual abuse, the most common finding is nothing. Eighty-five percent of the time the physical exam and relevant laboratory findings are negative due to the fact that the injuries usually have time to heal before the patient presents for investigation. Regarding the presence of STDs in minor children, Dr. Springer testified as to the following:

The presence of sexually transmitted diseases means that they are sexually transmitted. And the American Academy of Pediatrics, the American Pediatric Infectious Disease Organization, and the child abuse authorities agree that certain sexually transmitted diseases are diagnostic of sexual abuse.

Dr. Springer explained that, in instances involving multiple sexual partners where one has an STD, some participants may contract the STD while others may not due to the stage of infection and timing.

The State’s next witness was Carol Hale, a deputy at the Caddo Correction Center (CCC) and a licensed practical nurse in the medical department. Part of Officer Hale’s duties involve conducting the medical assessments of inmates when they first arrive at the CCC. Officer Hale testified that, on December 9, 2005, she conducted a medical assessment of | nDefendant during which he disclosed that he had been treated for Chlamydia nine to ten years prior. Additionally, in November 2007, Defendant was treated with Doxycycline after testing positive for Chlamydia. Officer Hale identified Defendant as the same person that she assessed and treated in CCC.

Next, the State called Officer Brown, who testified that he had been contacted by Dr. Huval and advised that she had an eight-year-old female patient who had alleged that her mother’s boyfriend sexually assaulted her. Officer Brown further indicated that he had spoken with T.W., whose story was identical to that presented in court. Officer Brown stated that, on December 7, 2004, he was present for J.B.’s Gingerbread House interview, but was in a separate room where he supervised and communicated with the interviewer via a radio earpiece.

After the interview, Officer Brown contacted Defendant to schedule an interview, which took place on January 4, 2005. Officer Brown testified that, prior to beginning the interview, Defendant was informed of his Miranda rights and signed and dated the acknowledgment form. Officer Brown identified Defendant in open court as the same person he interviewed.

Officer Brown testified that, during the interview, Defendant indicated that he met T.W. approximately two years prior to the reported incident and that he moved in with her within a year of their meeting. Defendant further admitted to being a caretaker of her two minor children, but denied the allegations of abuse and declined to voluntarily submit a |1?DNA sample via a non-intrusive buccal swab. Defendant told Officer Brown that he believed T.W. was forcing her daughter to make the allegations in order to “put him out.” He also alleged that it was T.G.’s son who was responsible for the abuse of the four children.

Officer Brown stated that he was contacted three days after interviewing Defendant and advised to speak with T.G. T.G. told Officer Brown that her daughters claimed that Defendant had sexually assaulted them and an appointment was subsequently made for each one at the Gingerbread House. Officer Brown was present for the Gingerbread House interviews of T.G.’s daughters, but was in a separate room where he supervised and communicated with the interviewer via a radio earpiece.

Following his investigation of the allegations against Defendant, Officer Brown forwarded the information to the prosecutor’s office. Defendant was charged with the aggravated rape of J.B. and A.G. and molestation of a juvenile against C.G. and J.W. The assistant district attorney presented the evidence to a grand jury. After appearing at the grand jury, Defendant was arrested.

After presenting Officer Brown’s testimony, the State rested. Defendant then called as a witness, Shernita Ashley, who was an acquaintance of Defendant. Ms. Ashley testified that she met Defendant in January 2005, at a Shreveport nightclub and the two began a romantic relationship which continued for approximately five months. Ms. Ashley testified that, during their relationship, she and Defendant had unprotected sexual intercourse on two occasions, but that after doing so, she did not test [^positive for any STDs during her annual medical exam at the health unit on Creswell.

As previously stated, on June 20, 2008, a unanimous jury found Defendant guilty as charged on both counts of aggravated rape and both counts of molestation of a juvenile. On March 81, 2009, Defendant was sentenced to life imprisonment for each of the aggravated rape convictions, with the sentences to run concurrently, and to six years at hard labor for the molestation of a juvenile convictions, with the sentences to run concurrent to each other, but consecutive to the concurrent life sentences.

Defendant now appeals.

DISCUSSION

Assignment of Error Number One (verbatim): The trial court erred by allowing the videotapes from the Gingerbread House into evidence when the requirements of La. R.S. 15:440.4 and 15:440.5 were not met.

Defendant asserts that the recorded interviews of the victims from the Gingerbread House were improperly admitted into evidence because the State did not meet its burden of proving that the videotapes complied with the requirements set forth in La. R.S. 15:440.4 and 15:440.5. Defendant further argues that the State failed to lay a proper foundation for the tapes, that the content of the recordings was hearsay and that he was denied his constitutional right of confrontation. Defendant contends that the State failed to call the interviewers as witnesses to testify as to their respective qualifications. Defendant further alleges that the interviewers utilized leading questions designed to elicit certain responses from the children.

114The State counters that the recordings were properly admitted into evidence because there is no statutory requirement to call the interviewer to testify or to prove the interviewer’s qualifications. The State argues that the questions utilized by the Gingerbread House interviewers were intended to clarify the children’s responses, which were oftentimes nonverbal.

La. R.S. 15:440.1 provides:

It is declared to be in the best interest of the state that protected persons be spared from crimes of violence, and that persons who commit such crimes be prosecuted with a minimum of additional intrusion into the lives of such protected persons.

La. R.S. 15:440.2 provides in pertinent part:

A. (1) A court with original criminal jurisdiction or juvenile jurisdiction may, on its own motion or on motion of the district attorney, a parish welfare unit or agency, or the Department of Social Services, require that a statement of a protected person who may have been a witness to or victim of a crime be recorded on videotape.
(3) Such videotape shall be available for introduction as evidence in a juvenile proceeding or adult criminal proceeding.
B. For purposes of this Part, “videotape” means the visual recording on a magnetic tape, film, videotape, compact disc, digital versatile disc, digital video disc, or by other electronic means together with the associated oral record.
C. For purposes of this Part “protected person” means any person who is a victim of a crime or a witness in a criminal proceeding and who is ... (1) Under the age of seventeen years.

La. R.S. 15:440.8 provides:

The videotape authorized by this Sub-part is hereby admissible in evidence as an exception to the hearsay rule.

| ifiLa. R.S. 15:440.4 provides the following:

A. A videotape of a protected person may be offered in evidence either for or against a defendant. To render such a videotape competent evidence, it must be satisfactorily proved:
(1) That such electronic recording was voluntarily made by the protected person.
(2) That no relative of the protected person was present in the room where the recording was made.
(3) That such recording was not made of answers to interrogatories calculated to lead the protected person to make any particular statement.
(4) That the recording is accurate, has not been altered, and reflects what the protected person said.
(5) That the taking of the protected person’s statement was supervised by a physician, a social worker, a law enforcement officer, a licensed psychologist, a licensed professional counselor, or an authorized representative of the Department of Social Services

La. R.S. 15:440.5 provides the following:

A. The videotape of an oral statement of the protected person made before the proceeding begins may be admissible into evidence if:
(1) No attorney for either party was present when the statement was made;
(2) The recording is both visual and oral and is recorded on film or videotape or by other electronic means;
(3) The recording is accurate, has not been altered, and reflects what the witness or victim said;
(4) The statement was not made in response to questioning calculated to lead the protected person to make a particular statement;
(5) Every voice on the recording is identified;
(6) The person conducting or supervising the interview of the protected person in the recording is present at the proceeding and available to testify or be cross-examined by either party;
(7) The defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence; and
(8) The protected person is available to testify.

| i6The record establishes that the State complied with the requirements of La. R.S. 15:440.4 and 15:440.5. All videotaped interviews were both visual and audio electronic recordings. Each of the four victims on the videotaped interviews testified in open court that it was them on the tape, that no one had told them what to say and that the ■videotapes depicted what had actually transpired during their interviews. The testimony of Officer Brown and T.W. indicated that no relatives were present in the room with the children during the interviews. Additionally, a review of the videotapes establishes that no one other than the victims and the interviewers were present during each videotaped interview. While Officer Brown supervised all of the interviews, he did so from a separate room and communicated with the interviewers via a radio earpiece.

Defendant’s complaint that the interviewers were not called as witnesses to testify as to their credentials is without merit. The statute only requires that the interview be supervised by one of several specific enumerated persons, including a law enforcement officer. Since the videotaped interviews complied with the competency and admissibility requirements set forth in the statute, they are admissible into evidence as an exception to the hearsay rule.

Defendant further contends that the interviewers utilized leading questions to elicit specific responses from the vie-tims. While La. R.S. 15:440.4(A)(3) and La. R.S. 15:440.5(A)(4) prohibit leading questions designed to elicit a particular statement, the Louisiana Supreme Court has held that “[t]he rule forbidding leading questions is not so rigid that it 117should not yield somewhat to the discretion of the trial judge in the examination of a very young or timid witness.” State v. Carthan, 377 So.2d 308 (La.1979); State v. Roberts, 42,417 (La.App.2d Cir.9/19/07), 966 So.2d 111. It is not erroneous for a trial court to admit into evidence the videotaped interview of a child, in spite of leading questions by the interviewer, “when the questions were for clarification purposes and were appropriate under the circumstances.” State v. Roberts, supra; State v. Watson, 39,362 (La.App.2d Cir.4/20/05), 900 So.2d 325.

In the case sub judice, we find that the trial court did not err in overruling Defendant’s objections to the videotaped interviews on the grounds that leading questions were utilized by the interviewers. The victims were young children who were recounting horrific experiences, speaking softly when speaking at all and oftentimes only nodded their heads in response. Considering the children’s tender ages, the context of the interview and the fact that the questions were for clarification purposes only, the questions were appropriate under the circumstances. State v. Roberts, supra; State v. Watson, supra.

This assignment of error is without merit.

Assignment of Error Number Two (verbatim): A mistrial should have been granted when other crimes evidence was presented and the prosecutor impermis-sibly referred to Mr. Thomas’ right to remain silent.

Defendant asserts in his second assignment of error that he was deprived of a fair trial because of the State’s reference to “other crimes evidence” and because the prosecutor allegedly referenced Defendant’s failure to testify on his own behalf during closing arguments. According to | ^Defendant, when Officer Brown stated during his testimony that Defendant had been arrested “for another charge,” a mistrial should have been granted. Additionally, Defendant argues that he should have been granted a mistrial when the prosecutor stated in closing that “[i]t comes down to the statement of the children against the statement of a defendant.”

The State counters that Officer Brown’s comment regarding “another charge” was not the erroneous admission of other crimes evidence; however, if it was, the error was harmless. The State further contends that the response did not rise to a level that would warrant the granting of a mistrial. With regard to the prosecutor’s comments during closing arguments, the State alleges that the comments were not intended to focus the jury’s attention on the fact that Defendant chose not to testify and, therefore, did not warrant the granting of a mistrial. We agree.

La. C. Cr. P. art. 770 provides in pertinent part:

Upon motion of the defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible; [or]
(3) The failure of the defendant to testify in his own defense.

La. C.E. art. 404 B(l) provides:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal | |9case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Though generally inadmissible, evidence of other crimes, wrongs or acts may be introduced when it “relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.” La. C.E. art. 404(B)(1); State v. Salter, 31,633 (La.App.2d Cir.2/24/99), 733 So.2d 58, writ denied, 99-0990 (La.9/24/99), 747 So.2d 1114. In State v. Salter, supra, this court stated:

The erroneous introduction of other crimes evidence is a trial error and subject to harmless error review. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94. Although La. C. Cr. P. art. 770, which pertains to mistrials, is couched in mandatory terms, it is a rule for trial procedure and subject to harmless error review. State v. Ingram, 29,172 (La.App.2d Cir.1/24/97), 688 So.2d 657, writ denied, 97-0566 (La.9/5/97), 700 So.2d 505. Reversal is mandated only when there is a reasonable possibility that the evidence might have contributed to the verdict. State v. Harris, 97-0300 (La.4/14/98), 711 So.2d 266; State v. Wille, 559 So.2d 1321 (La.1990).

The objected-to testimony occurred when the State asked Officer Brown whether he arrested Defendant at the conclusion of the interview, to which Corporal Brown responded “for another charge.” It is highly unlikely that this comment contributed to the verdict or deprived Defendant of a fair trial. Additionally, should this statement qualify as the erroneous admission of other crimes evidence, we find the error to be harmless.

With regard to the prosecutor’s comments during closing statements, we agree with the trial court that the comments were not in reference to lanDefendant’s failure to testify. The prosecutor stated the following in his closing argument:

This case really comes down to credibility, and we all know when it comes to these types of cases, it’s not going to be a situation where it’s done in the presence of other people. It comes down to the statement of children against the statement of a defendant. And the ultimate question is, do these children have a right to be believed. Do they have a right to be believed given the testimony that you’ve heard this week.

In State v. Shed, 36,321 (La.App.2d Cir.9/18/02), 828 So.2d 124, writ denied, 02-3123 (La.12/19/03), 861 So.2d 561, this court explained:

The purpose behind [La. C. Cr. P.] art. 770(3)’s prohibition against prosecutorial comment is to protect the defendant’s Fifth Amendment right against self-incrimination by preventing attention being drawn directly or indirectly to the fact that the defendant has not testified on his own behalf. State v. Mitchell, 00-1399 (La.2/21/01), 779 So.2d 698; State v. Fullilove, 389 So.2d 1282, 1283 (La.1980). To warrant the granting of a mistrial, the inference must be plain that the remark was intended to focus the jury’s attention on the defendant’s not testifying. State v. Mitchell, supra; State v. Reed, 284 So.2d 574, 576 (La.1973); State v. Howard, 262 La. 270, 263 So.2d 32 (1972).

It is clear from the prosecutor’s comments that he was referring to Defendant’s statement to the police wherein he denied the allegations against him made by the four children. Furthermore, the comments did not draw attention to Defendant’s choice not to testify at trial.

This assignment of error is without merit.

Assignment of Error Number Three (verbatim): The trial court erred in allowing expert opinion testimony without reports being submitted to the defense.

In his last assignment of error, Defendant asserts that the trial court erred in overruling his objections to the expert witness testimony of Drs. Springer, Rodriguez and Huval when none of the experts had | ¾, previously provided Defendant with a report detailing their opinions prior to testifying.

In response, the State points out that Dr. Springer simply did not provide a report. Dr. Rodriguez did produce reports of the two examinations she conducted on J.B. and A.G., as did Dr. Huval for her examination of J.B., all of which were made available to Defendant. The State concedes that the experts did not provide a report detailing their opinions, but argues that their testimony indicated neutral findings which neither proved nor negated Defendant’s guilt. Further, Drs. Rodriguez and Springer were made available to Defendant’s counsel during a pre-testimony conference.

La. C. Cr. P. art. 719(A) provides:

Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph, or otherwise reproduce any results or reports, or copies thereof, of a physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial. Exculpatory evidence shall be produced under this Article even though it is not intended for use at trial.

La. C. Cr. P. art 729.5(A) provides:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

122As the trial court pointed out, Defendant was aware that Dr. Springer would be called as a witness and failed to raise the issue of the absence of her report prior to trial. Ultimately, the trial judge granted Defendant an opportunity to question Drs. Rodriguez and Springer outside of the presence of the jury in order to ascertain their opinions. Following the conference with the expert witnesses, counsel for defense stated the following:

[W]e found out from the two of them that they are prepared to give opinions about the regenerative capacities of the tissue of the vagina. And to the extent that the negative findings — or correction, the normal — the data of hymen no tear, no scar and anus normal could not be taken to rule out injury having— signs of injury having been present ten days earlier because remarkable regeneration has been noted. That opinion will be expressed, and that’s documented in the literature and in the personal experience of both.
Another opinion would be expressed that Chlamydia is a sexually transmitted disease, ... and that if you have Chlamydia it means you have a sexually transmitted disease. And if you have a sexually transmitted disease, it means that it was sexually transmitted. Whether it can be transmitted by means other than sexual contact, I don’t have clear sense of what the answers to that would be, but these are opinions they are going to express.

Although Defendant was not provided with written reports detailing the anticipated testimony of Drs. Huval, Rodriguez and Springer as is contemplated by La. C. Cr. P. art. 719, we find the error to be harmless. The record shows that Defendant, through a hearing which interrupted the jury trial, was made aware of the opinions that the expert witnesses would offer in their testimony. Further, the State was never in possession of any such reports because they were never provided by the medical experts. In addition, Defendant was provided with copies of the reports from the physical examinations which formed the basis of the opinions of Drs. Huval | ¡^and Rodriguez. Finally, the testimony given by Drs. Rodriguez and Springer indicated neutral findings, which neither proved nor negated Defendant’s guilt.

Accordingly, we find the admission into evidence of the testimony of Drs. Huval, Spring and Rodriguez, without the prior submission of a written report detailing their opinions, to be harmless error.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant, John R. Thomas, are affirmed.

AFFIRMED.

      . To maintain the anonymity of the four child victims in this case, we will use the initials of the mothers of the victims throughout this opinion.

      . Dr. Rodriguez's statement was made in accordance with the findings of the American Academy for Pediatrics and the Centers for Disease Control.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Sharon LEWIS, Appellant.
    No. 45,251-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2010.

      G. Paul Marx, for Louisiana Appellate Project Appellant.
    J. Schuyler Marvin, for District Attorney Appellee.
    John Michael Lawrence, C. Sherburne Sentell, III, Marcus Ray Patillo, Assistant District Attorneys.
    Before DREW, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| defendant, Sharon Lewis, seeks review of the sentence imposed for her conviction on one count of distribution of cocaine, a schedule II controlled dangerous substance, a violation of La. R.S. 40:967(A). The trial court imposed a sentence of 14 years at hard labor, the first 2 years to be served without the benefit of probation, parole or suspension of sentence. For the following reasons, we affirm the trial court’s conviction and sentence.

Facts

On three separate occasions in early April 2008, Lewis was caught on audio and video surveillance selling $40.00 worth of crack cocaine to a confidential informant who was assisting the Minden Police Department in an undercover drug surveillance operation. By bill of information filed on August 8, 2008, Lewis was charged with three counts of distribution of cocaine, a Schedule II controlled dangerous substance in violation of La. R.S. 40:967(A). On August 11, 2008, the state reached a plea agreement with Lewis under which she would plead guilty to one count of distribution of cocaine in violation of La. R.S. 40:967(A) with the benefit of a presen-tence investigation in exchange for the state’s agreement to dismiss the additional two counts.

After the trial court informed Lewis of all of her applicable constitutional rights and ensured that she knowingly and intelligently waived those rights, it asked the state to supply a factual basis for the plea. The prosecutor informed the trial court that on April 3, 2008, the Minden Police Department conducted an undercover drug surveillance operation in 12Webster Parish during which a confidential informant, equipped with audio and video surveillance equipment, approached Lewis and purchased $40.00 worth of crack cocaine from her. Lewis admitted to the described conduct and responded “guilty” when asked by the trial court how she wished to plead. The court then ordered the preparation of a presentence investigation (“PSI”) and set the defendant’s PSI bond at $2,000.00.

On July 20, 2009, the trial court sentenced Lewis to 14 years’ imprisonment at hard labor, the first 2 years of which were to be served without the benefit of parole, probation or suspension of sentence. On July 28, 2009, Lewis filed a motion to reconsider her sentence raising only a bare excessiveness claim. Although the order attached to the motion to reconsider indicates it was set for hearing on August 24, 2009, the record does not indicate that the court has ruled on the motion. Lewis now appeals, assigning error only as to the sentence imposed being constitutionally excessive.

Discussion

This court may review the defendant’s sentence for constitutional exces-siveness in spite of the pending motion to reconsider sentence. Should the trial court later rule upon defendant’s motion to reconsider sentence, the defendant may seek appellate review of that decision pursuant to La. C. Cr. P. art. 914(B)(2). State v. Lathan, 41,855 (La.App.2d Cir.02/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.03/28/08), 978 So.2d 297.

Here, since Lewis’ motion for reconsideration merely alleged that the sentence is excessive, she is “simply relegated to having the appellate court | ..¡consider the bare claim of excessiveness.” State v. Mims, 619 So.2d 1059, 1060 (La.1993). This bare claim preserves only a claim of constitutional excessiveness. Id.; State v. Lofton, 41,423 (La.App.2d Cir.09/27/06), 940 So.2d 702, writ denied, 2006-2952 (La.09/28/07), 964 So.2d 359. Constitutional review turns upon whether the sentence is illegal, grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379.

Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.04/30/08), 981 So.2d 792; State v. Black, 28,100 (La.App.2d Cir.02/28/96), 669 So.2d 667, writ denied, 1996-0836 (La.09/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 1999-1528, 1999-1753 (La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.05/12/04), 873 So.2d 939.

LAt Lewis’ sentencing, the trial court began by noting that Lewis pled guilty to only one of three counts of distribution of crack cocaine, although she had been videotaped engaging in the same conduct on three separate occasions. The trial court then reviewed her PSI and set forth the information contained therein for the record. The trial court considered the fact that although the defendant pled guilty to only one count of distribution of crack cocaine committed on April 3, 2008, she had been videotaped engaging in the same conduct on two other occasions. The trial court noted that Lewis was classified as a fourth felony offender having been convicted of three separate felonies in the State of Texas, including a felony drug charge in 1997, an aggravated robbery, first degree in 1998, and theft of property in 1999. In all three instances she received hard labor sentences. Additionally, the trial court noted Lewis’ extensive misdemeanor criminal history which included convictions for prostitution, DWI first and DWI second. Her record also included arrests for drug possession, DWI, driving under suspension, careless operation and issuing worthless checks, although no disposition of these charges was found. On two separate occasions Lewis had been placed on probation and had her probation revoked for arrests and convictions on criminal behavior committed while on probation.

The trial court reviewed Lewis’ social history and considered as mitigating factors the fact that she was taking care of a sick father (presumably her stepfather, since the PSI reflects her biological father died | sin 1983) and was raising a grandchild. The court also considered as a mitigating circumstance Lewis’ completion of a drug rehabilitation program while out on bond awaiting sentencing.

Lewis argues essentially that the sentence is excessive because the trial court failed to give sufficient weight to the needs of her family and her completion of a substance abuse program while she was out on bond awaiting sentencing. There is no requirement, however, that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.09/28/07), 964 So.2d 351. Given the defendant’s extensive criminal history, significant reduction in potential exposure to confinement resulting from her plea bargain, and her prior probation violations, the trial court did not err in concluding that she is in need of correctional treatment in a custodial environment and that she presents an undue risk of re-offending during a probated or suspended sentence.

The sentence imposed is neither illegal, grossly disproportionate to the seriousness of the offense, shocking to the sense justice, or merely a purposeless and needless infliction of pain and suffering. Accordingly, the sentence is not unconstitutionally excessive. This assignment is therefore without merit.

Conclusion

For the foregoing reasons, Sharon Lewis’ conviction and sentence are affirmed.

AFFIRMED.