author: PICKETT, Judge.

text:
    STATE of Louisiana. v. Toby James FRUGE.
    No. 09-1131.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Michael Harson, District Attorney, Lafayette, LA, for Plaintiff/Appellee, State of Louisiana.
    Jason W. Robideaux, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Toby James Fruge.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

¡jFACTS:

The defendant, Toby James Fruge, was charged by bill of information filed on May 29, 2007, with two counts of forcible rape, in violation of La. R.S. 14:42.1. On June 12, 2007, a written plea of not guilty was entered. Trial by jury commenced on February 10, 2009. The jury returned verdicts of guilty of forcible rape and the responsive verdict of simple rape, a violation of La. R.S. 14:43, on February 11, 2009. On February 11, 2009, the jury returned verdicts of guilty of forcible rape of R.A. which occurred on November 5, 2004, and the responsive verdict of simple rape of J.H. which occurred on November 12, 2006.

A Motion for New Trial was both filed and denied on May 21, 2009. The defendant was then sentenced to serve thirty years at hard labor, with at least two years of the sentence to be served without benefit of probation, parole, or suspension of sentence for forcible rape. For the charge of simple rape, the defendant was sentenced to serve twenty-five years at hard labor without benefit of probation, parole, or suspension of sentence. The sentences were ordered to be served concurrently. A Motion to Reconsider Sentence was filed on May 27, 2009, and was denied on June 1, 2009.

A Motion for Appeal of Conviction and Sentence was filed on June 2, 2009, and was subsequently granted. The defendant is now before this court asserting four assignments of error. Therein, the defendant contends the following: 1) the trial court erred in denying his motion for new trial; 2) the state failed to prove he committed forcible rape beyond a reasonable doubt; 3) the state failed to prove he committed |2simple rape beyond a reasonable doubt; and 4) the trial court erred in failing to articulate any factors in formulating his sentences.

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 there is one error patent regarding the sentence imposed.

For the offense of forcible rape, the trial court ordered the defendant to serve thirty years at hard labor with at least two years without benefits:

MR. BABIN: If I may clarify, on the charge of forcible rape, you sentenced him to 30 years at hard labor. The statute says at least 2 years without benefit. Is that your sentence, at least 2 years without benefit?
THE COURT: Yes. I don’t think I have to say that because the statute says it.
MR. BABIN: I just wanted to make it clear.

Louisiana Revised Statute 14:42.1 requires at least two years of the sentence to be imposed without benefit of probation, parole, or suspension of sentence. The court rendered an indeterminate sentence in not specifying the number of years to be served without benefits. Thus, the defendant’s sentence for forcible rape must be vacated and the case remanded for resen-tencing. See La.Code Crim.P. art. 879, State v. Cedars, 02-861 (La.App. 3 Cir. 12/11/02), 832 So.2d 1191 and State v. Burton, 94-486 (La.App. 3 Cir. 11/9/94), 649 So.2d 694.

ASSIGNMENT OF ERROR NO. 2:

When multiple issues are raised on appeal, and sufficiency of the evidence is one of the alleged errors, the reviewing court should first determine whether the evidence is sufficient. State v. Hearold, 603 So.2d 731 (La.1992). Thus, we will first |sconsider the defendant’s second assignment of error, in which the defendant contends the state failed to prove he committed forcible rape beyond a reasonable doubt.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. A reviewing court may impinge on the fact-finding function of the jury only to the extent necessary to assure the Jackson standard of review. It is not the function of an appellate court to assess credibility or re-weigh the evidence.

State v. Chaison, 09-119, p. 10 (La.App. 3 Cir. 10/7/09), 20 So.3d 1166, 1173 (quoting State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86 (citations omitted)).

The defendant was convicted of forcible rape.

La. R.S. 14:42.1 provides in pertinent part:

A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
Thus, in order to convict the defendant, the State had the burden of proving: (1) an act of vaginal or anal intercourse; (2) without the lawful consent of the victim; and (3) where the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

State v. Schexnaider, 03-144, p. 10 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, 457.

Jeanne Istre testified that on the date in question, she had worked with R.A. at Subway. After work, the two went to Wrangler’s, a bar, between 9:45 and 10:00 p.m. |4on the night in question. While at Wrangler’s, R.A. danced with the defendant. Istre testified that she kept her eye on R.A. the entire time they were in the bar and she never saw R.A. leave the bar with the defendant.

Eventually, Istre and R.A. left the bar, but did not invite the defendant to go along with them. About ten minutes after they left, Istre ran off the road. Istre testified that this occurred because R.A. hollered, “Somebody’s following us.” Istre then looked in the rearview mirror, missed a curve, and hit the ditch. The defendant subsequently drove up.

Istre testified that the defendant wanted her and R.A. to leave with him so she could avoid getting a DWI. The two voluntarily left with the defendant and he brought them to the home of Istre’s ex-boyfriend. Istre testified that R.A. was not drunk or falling down at that time. However, R.A. threw up outside the home of Istre’s ex-boyfriend. The defendant then offered to bring R.A. home and she accepted.

R.A. testified that she and Istre left work together and went to Wrangler’s. R.A. further testified that during the evening, she had four or five mixed drinks and a few shots; thus, she was intoxicated. She testified that she danced with the defendant, both slow and fast. R.A. further testified that she never left the bar with the defendant and did not have sex with him in the parking lot.

R.A. indicated that when she and Istre left the bar, they did not invite the defendant to go with them. R.A. and Istre noticed someone was following them, and Istre said they were going to attempt to “lose him.” Istre subsequently missed a curve and hit the ditch. The defendant stopped and offered to take R.A. and Istre to the | Bhome of Istre’s ex-boyfriend. R.A. testified that she did not think she or Istre tried to call a wrecker.

Once at the residence, R.A. threw up both outside and inside the residence. R.A. left the residence with the defendant because he said he would take her home. R.A. did not call her boyfriend to pick her up because she and her boyfriend did not have a phone or a vehicle.

R.A. testified that she must have blacked out or fallen asleep inside the defendant’s vehicle. When she awoke, they were on a gravel road and the defendant was trying to start his vehicle. R.A. testified that she told the defendant that he better get the vehicle started. She said she then knew something was wrong. R.A. subsequently testified as follows:

A. I could just feel it in just looking at him. So I got out to take off to run, and it was just a dark gravel road. It was like darkness all the way straight. There was nowhere to go.
Q. When you got out of his vehicle, did you start to run?
A. But there was nowhere — I just stopped. There was nowhere to go.
Q. You went back to the vehicle. Did he bring you back? How did you get back to the vehicle?
A. He was right there, and he grabbed me. And, you know, I told him, “Please, no, just don’t kill me out here.” And that’s when he put me in the driver’s side of his truck.
Q. What did he say when you said, “Please don’t kill me”?
A. I don’t remember what he said, honestly, and then that’s when he had me bent over in the driver’s seat and had my pants down and started to rape me.

R.A. testified that the defendant pulled her pants down. Further, she was penetrated from the front and the back, once bending over the driver’s seat and the other while she was laying back.

[(After the incident, the defendant took R.A. home. She told him she would not call the police. As the defendant was leaving, R.A. got his license plate number. Once inside her home, R.A. woke her boyfriend, and he went to his place of employment and called 911.

R.A. was questioned about the Alleged Sexual Assault Data Form that was filled out at the hospital as follows:

Q. Number 8, it says, “Were any threats used?” There’s a box for yes and a box for no. Could you tell me what you checked?
A. No, there was [sic] no threats used. He didn’t have any guns or anything.
Q. And so the box no was checked?
A. Yes, sir.
Q. Now, underneath the yes or no boxes, under threats used, there was, “If yes,” there’s a box for not. That box is not checked, is it?
A. Yes, sir.
Q. You said there was [sic] no threats. Then there’s a box for a gun, and that’s blank also; right?
A. Yes.
Q. And there’s a box for choke, and that’s blank; right?
A. Yes, sir.
Q. Fists, blank; right?
A. Yes, sir.
Q. Verbal threats, blank?
A. Yes, sir.
Q. Restraints, blank?
A. Yes, sir.
IyQ. Blindfold, blank?
A. Yes.
Q. And then there’s the word, “Other” with a colon and a long line, I guess to write in what other type of threats; and that’s left blank also?
A. Yes, sir.
Q. Okay. And the reason the box is checked no and the reason there’s no threats identified is because you didn’t tell the doctors or the nurses about any threats, did you?
A. No, because there was no like gun or knife threats. They never asked — I don’t remember them asking me about threats or anything like that in the first place.
Q. And, [R.A.], let’s say that the doctor mistakenly forgot to ask you about all types of threats. If you were threatened, don’t you think that was something you should have volunteered when they were asking you questions how it occurred?
A. I was — I couldn’t even talk to my mom, much less anybody else about anything. It’s very embarrassing.

R.A. testified that she did not remember telling police that she had Istre’s cell phone and the defendant took it from her.

Detective Marcus Lemaire testified that he interviewed the defendant. During that interview, the defendant stated he had been at Wrangler’s on the night in question and had danced with R.A. The defendant further stated that he and R.A. had vaginal and oral sex in the parking lot of the bar. The defendant and R.A. left the bar separately. The defendant further stated that R.A. and her friend indicated they were going to Taco Bell, so he chose to follow them. On the way there, R.A. and her friend were involved in an accident, and he stopped to help. Subsequently, R.A. and the driver of the vehicle got into the defendant’s vehicle, and he brought them to the residence of a third party. At that residence, R.A. threw up a couple of times. The | ¡¡defendant indicated there was an argument over the wrecked vehicle. He left and went straight home.

Lieutenant Todd Credeur testified that he interviewed the defendant some time after the interview conducted by Detective Lemaire. During that interview, the defendant gave the same details he had provided in his previous statement. The defendant later indicated that version of the events was not true. At that time, he told Lieutenant Credeur that he had sex with R.A. on a gravel road. The defendant stated that at one point, R.A. started screaming and also said, “Don’t kill me.” The screaming began after the defendant had penetrated R.A. He also stated that R.A. said, “What are you doing to me, why are you doing this to me?” The defendant also stated that R.A. asked him to stop, and he stopped right away. He later stated he stopped a little while later. Lieutenant Credeur testified that he asked the defendant if R.A. was too drunk to remember. At first the defendant told him yes then said, “Well, no, not really. She knew what was going on.”

The defendant testified that he went to Wrangler’s. While there, he met R.A. He further testified that he was intoxicated that night, but did not know how much alcohol R.A. had consumed.

That night, he danced with R.A. He also kissed R.A. while they danced and she laughed. He testified that later, R.A. and the defendant went outside to retrieve items from their vehicles. Once at the defendant’s vehicle, the two made out and had sex, which was interrupted. The two then went back into the bar.

Shortly before leaving the bar, R.A. indicated she wanted to go to Taco Bell and invited the defendant to go. The defendant then followed Istre and R.A. Istre later drove her car into a ditch, and the defendant came upon the accident. The | ([defendant suggested that the car be left so Istre would not get a DWI. He then allowed Istre to use his cell phone to call a wrecker. The wrecker refused to assist, so the defendant drove Istre and R.A. to a residence. Once at the residence, R.A. threw up while both outside and inside the residence. R.A. said she needed to go home and Istre told the defendant to bring her.

The defendant testified that while he drove R.A. home, she put her hand on his leg and rubbed it and he in turn did the same to her. R.A. then touched his groin area, so he pulled over on a gravel road. The two then began to kiss and eventually had vaginal sex. R.A. also performed oral sex on the defendant. The defendant testified that he never used force or violence during the encounter. Further, R.A. never told him no.

The defendant testified that during the middle of having vaginal sex with R.A., she started hollering “Please don’t kill me.” The defendant further testified that he asked her what she was talking about and he told her, “I’m not trying to hurt you.” The defendant indicated that R.A. never got out of the vehicle or tried to run away, and he never grabbed her and dragged her back to the vehicle.

The defendant further testified that he stopped having sex with R.A., and he did not rape her. The defendant testified that he was not wearing a condom and could not recall if he ejaculated. Testing revealed that DNA recovered from R.A. belonged to the defendant.

After the incident, the defendant then drove R.A. home. During that drive, R.A. never' told him she would not call the police. The defendant testified that R.A. never passed out or fell asleep during the time he was with her. The defendant admitted that when he was first questioned by police he said he had sex with R.A. in Imthe parking lot of Wrangler’s, but did not say he had sex with her on the gravel road. The defendant testified that he did not do so because he was scared he would lose his kids. The defendant stated that he eventually told police what he testified to in court. Melody Sanchez testified that she had known the defendant for six years, and he was very truthful. Denise Credeur testified that the defendant was a very honest person.

In State v. Henderson, 41,657 (La.App. 2 Cir. 12/13/06), 945 So.2d 194, writ denied, 07-267 (La.11/2/07), 966 So.2d 597, the victim accepted a ride from the defendant. The defendant drove to a dead-end street in a dark isolated area. The defendant stopped the car and told the victim to get out of the car. The victim refused to comply and made repeated requests for the defendant to take her home. The defendant attempted to physically remove the victim from the car, and she made an effort to brace herself by pressing her feet onto the floorboard of the car and pushing her body into the seat. The defendant eventually dragged the victim from the car by her arm and leg. He pushed her to the back of the vehicle where he penetrated her vagina with his penis. When the defendant stopped, he pushed the victim back to the passenger side of the vehicle.

The Henderson court found the evidence was sufficient to prove the victim was prevented from resisting the act by force under circumstances where she reasonably believed that such resistance would not prevent the rape. Thus, it upheld the defendant’s conviction for forcible rape.

The defendant in the case at bar asserts the state failed to prove he used force against R.A. However, R.A.’s testimony revealed that the defendant grabbed her, put her in the driver’s side of the vehicle, then penetrated her while she was bent over the driver’s seat. This occurred in a remote area. The victim had nowhere to run and no Inhelp was possible. During this sequence of events, R.A. told the defendant, “Please, no, just don’t kill me out here.” Furthermore, the jury’s verdict indicates it chose to believe R.A.’s testimony over that of the defendant. After reviewing the evidence in a light most favorable to the prosecution, in accordance with Jackson, we find the state proved the elements of the offense charged beyond a reasonable doubt, that the defendant forcibly raped R.A.

For these reasons, we find this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3:

In his third assignment of error, the defendant contends the state failed to prove he committed simple rape beyond a reasonable doubt.

Louisiana Revised Statutes 14:43 defines simple rape, in pertinent part, as:

A. Simple rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because it is committed under any one or more of the following circumstances:
(1) When the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim’s incapacity.

In the present case, the state had to prove that the vaginal sexual intercourse with the victim was committed without her lawful consent because it was committed when she was incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent, i.e. alcohol or any other cause, that the offender knew or should have known of her incapacity, and that there was any sexual penetration, however slight.

Simple rape emphasizes the incapacity of the victim to give lawful consent to sexual intercourse because of a stupor caused by an intoxicating agent or other cause. State v. Chandler, 41,063, p. 9 (La.App. 2 Cir. 9/8/06), 939 So.2d 574, 580, writ denied, 06-2554 (La.5/11/07), 955 So.2d 1277. In order to convict the defendant, the State has the burden of proving that the victim could not consent because she was in a “stupor” or abnormal condition of mind produced by intoxicating agent, i.e., alcohol. See, State v. King, 99-1279, p. 4 (La.App. 5 Cir. 4/25/00), 760 So.2d 540, 542, writs denied, 00-1498 (La.3/16/00), 787 So.2d 298 and 00-1452 (La.3/16/01), 787 So.2d 298; State v. Porter, 93-1106, p. 10 (La.7/5/94), 639 So.2d 1137, 1143. A defendant can be convicted of simple rape when the victim’s capacity to resist was negated by an abnormal condition or state of mind caused by alcohol consumption. State v. Porter, 93-1106 at 10, 639 So.2d at 1143. In sexual offense cases, the victim’s testimony alone can be sufficient to establish the elements of a sexual offense, even though the State does not introduce medical, scientific or physical evidence to prove the commission of the offense. State v. Dixon, 07-915, p. 11 (La.App. 5 Cir. 3/11/08), 982 So.2d 146, 153-54[.]

State v. Starr, 08-341, p. 12 (La.App. 5 Cir. 11/25/08), 2 So.3d 451, 459, writ denied, 08-2991 (La.9/18/09), 17 So.3d 384.

John Paul Melancon testified that on the night in question, he drank with the defendant at the home of Kyle Credeur. The defendant then went to Melancon’s residence, and the two continued to drink. J.H. and her sister, S.H., who was also Melancon’s fiancé, were present.

Eventually, Melaneon, the defendant, and J.H. played a drinking game known as Quarters, and S.H. went to bed. After playing for a while, J.H. laid down on the couch in the living room and went to sleep. Melaneon and the defendant continued to drink and talk.

Melancon’s son woke up at approximately 2:30 or 3:00 a.m. and Melaneon went to tend to him. At that time, the defendant was in the living room watching television. Melaneon laid down with his son and fell asleep. Melaneon testified that S.H. later ran into the room screaming that the defendant attacked J.H. and was leaving. Melaneon ran outside and attempted to stop the defendant, who drove away. 113Melancon testified that the defendant had a panicked look on his face at that time. Melaneon then went back inside his home, and J.H. was hysterical.

Melaneon described the amount of alcohol J.H. consumed on the night in question as follows:

Q. So you are sure she had two or three?
A. Yeah. It wasn’t much more than that because she had about two or three beers, you know; and she took a shot. And Toby had her took [sic] a shot. He made it. And he made it again a little shortly after that, and he said, “Take another shot.” She said, “I can’t right now.” I was like, “I’ll take them, you know.” And he tried to do it again, and I was taking the shots.

J.H. drank between 8:00 and 10:30 p.m.

S.H. testified that J.H. was her sister. J.H. arrived at Melancon’s home during the afternoon. The defendant came over around 9:00 or 9:30 p.m., and the group began to drink and talk. S.H. further testified that Melaneon, the defendant, and J.H. began to play Quarters, and she went to bed.

J.H. ran into S.H.’s room at approximately 4:00 a.m. J.H. was hysterical and was screaming, “He wouldn’t get off of me. He forced himself on me.” J.H. then laid down in bed next to S.H., curled into a ball, and started screaming and crying. S.H. ran into the living room and saw the defendant walking out the door while attempting to put on his shoes. S.H. called out the defendant’s name, and the defendant took off running. S.H. then woke Melaneon, who ran after the defendant.

S.H. testified that J.H. did not have a boyfriend at the time of the incident and the two had split up a few days to a week before.

J.H. testified that she arrived at Melan-con’s home at 8:30 p.m. on the day in question. She later testified that she did not know exactly what time she got there. The defendant arrived at the home at approximately 9:00 or 9:30 p.m. J.H. testified 114that she drank a beer before the defendant arrived and prior to S.H. going to bed, she had a couple more beers. Once S.H. went to bed, she, the defendant, and Melaneon played Quarters. During that time, she had two or three shots. J.H. subsequently laid down on the couch and fell asleep. She drank over a four-hour period.

J.H. testified about the events that occurred next, as follows:

Q. After you went to sleep on the sofa, what happened next?
A. I heard moaning and kissing on my neck, and I was being held down by — he was holding me down by my breasts and—
Q. Let me stop you for a second. So what’s the first thing you felt?
A. Him kissing my neck.
Q. And then what after that?
A. I felt his penetration.
Q. Was he touching you anywhere other than the penetration?
A. With his hands? Yes. He was grabbing my breasts.
Q. Okay. You are positive that you were penetrated?
A. Very positive.

J.H. then yelled S.H.’s name over and over, kept screaming “no,” and pushed the defendant off her. She then picked up her pants and ran to S.H.’s room.

J.H. testified that her jeans and panties had been pulled down to her knees and she did not feel this while it occurred. J.H. went to S.H.’s room and laid down on the bed. She then buttoned and zipped her pants. On cross-examination, J.H. was questioned about her jeans as follows:

Q. You testified that you laid on her bed and zipped and buttoned your pants. Your pants, those were blue jeans?
Iir,A. Yes.
Q. They were button blue jeans?
A. Yes.

J.H. did not know if the defendant was wearing a condom or if he had ejaculated.

J.H. testified that she did have a boyfriend at the time of the incident and had sex with him on the date of the incident. Further, she was wearing the same clothing when she went to Melancon’s house and had not showered before the incident involving the defendant.

The defendant testified that he and Me- ■ lancon were at Kyle Credeur’s home, and people were coaxing him to drink. The defendant eventually went to Melancon’s home, where he spent time talking with S.H. At approximately 10:30 or 11:00 p.m., the defendant, Melancon, and J.H. began playing Quarters. The game lasted two to three hours. The defendant testified that he had approximately twenty shots and Melancon had more. Further, Melancon would make J.H. take shots. J.H. eventually quit the game and laid down. However, the defendant and .Melancon continued to play. The defendant testified that J.H. had more than two or three shots.

The defendant denied having sex with J.H. He further testified that he was drunk and did not know exactly what was going on, but he knew for a fact that he did not put his penis inside J.H. He asserted that he did not unbutton her pants. Further, the defendant indicated he had an amputation that would make it difficult for him to unbutton jeans.

11(;The defendant further testified that he passed out on the floor and when he woke up, J.H. was walking toward her sister’s room. As the defendant was leaving the residence, Melancon ran after him.

The defendant testified that on the night in question he was taking Morphine, MS Contin, Celebrex, and Rosarum. He was prescribed these medications for a back injury.

Carolyn Booker, an employee of the Acadiana Crime Lab and an expert in forensic DNA, testified that semen was found on J.H.’s jeans and panties and in the sexual assault kit. The semen was not that of the defendant. Booker testified that DNA would not be found if the offender wore a condom or did not ejaculate. Booker also testified that the defendant’s DNA was not found in fingernail scrapings taken from J.H.

Booker performed a contact DNA test on the hip area of J.H.’s panties and did not find DNA that matched that of the defendant. Booker then testified that there was no guarantee of finding contact DNA from the person who pulled down J.H.’s pants and panties. Furthermore, J.H.’s jeans were not tested for contact DNA.

Booker testified that her office was never asked to analyze Melancon’s DNA. The defendant asserts that it is inconceivable and irrational that a drunk, highly medicated man with an amputated finger could unbutton J.H.’s button-fly jeans and pull those jeans and her panties down to her knees, then manage to penetrate her, all without waking her. Additionally, DNA evidence contradicted the state’s contention that J.H. was raped. Further, there was no physical evidence presented.

When viewing the evidence in a light most favorable to the state, the record supports a finding that J.H. had consumed alcohol and was asleep when the defendant 117began to touch her inappropriately. Because J.H. was sleeping, she could not consent to a sexual act, and the defendant was aware of her inability to consent. Further, J.H. testified that the defendant penetrated her. The jury’s verdict indicates it chose to believe J.H.’s testimony over that of the defendant, and the victim’s testimony alone is sufficient to establish the elements of a sexual offense, even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense. See Schexnaider, 852 So.2d at 457. Accordingly, we find that when the evidence is viewed in a light most favorable to the prosecution, in accordance with Jackson, the state proved beyond a reasonable doubt that the defendant committed the offense of simple rape. For these reasons, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, the defendant contends the trial court erred in denying his motion for new trial.

During trial, the defendant introduced as “Defendant’s Exhibit 1” a report from the crime lab regarding the offense involving J.H. That report indicated that a reference DNA sample was taken from the defendant on October 23, 2003.

Out of the presence of the jury, the trial court informed the parties that the jurors wanted to know why the sample DNA was from 2003 when the events at issue happened in 2004 and 2006. The following exchange then occurred:

THE COURT: ... My response was, “I really don’t know and since the” — which was a lie — “but since the person is not here any longer to answer that, all I can tell you is this relates to the incident in 2006; and that’s all you need to know.” And so one of the persons said, “Well, why is it all we need to know?” And I said, “Because the person is not here, and you can’t ask questions.” But I know it’s from a previous incident. Now I know that because you told me that. You ask to put it in?
|iSMR. ROBIDEAUX: I do, but I still think it’s improper to comment on the facts to a jury.
THE COURT: Well, it is. I didn’t comment on them, and that’s what I said. I can’t answer that question for you. They asked me a question, “I read this date;” and I said, “I can’t answer that question for you. The person who is here from the criminal lab is not here, and this DNA evidence belongs to the 2006 case.” That’s not commenting. I didn’t say anything more than that.
MR. BABIN: Had they asked that, that would have been the response you would have given them?
THE COURT: That’s what I would have said if they asked that here. What would you like me to say when they view that and then they have a question? Or would you rather them not and then be — I don’t know what the answer of [sic] that is.
MR. BABIN: There’s a presumption here that that’s prejudicial, and I don’t know that that’s a correct presumption.
THE COURT: I don’t either.
MR. ROBIDEAUX: Just note my objection. In fact, let me get the appropriate code article.

The defendant filed a motion for new trial. Therein, the defendant asserted the trial court gave an opinion to the jury that defendant’s Exhibit 1 related to the offense that occurred in 2006. Thus, he was entitled to a new trial. The trial court denied the motion.

The denial of a motion for new trial is not subject to appellate review except for an error of law. LSA-C.Cr.P. art. 858. The ruling on a motion for a new trial is committed to the sound discretion of the trial judge and will be disturbed on appeal only when there is a clear showing of an abuse of that discretion. State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212, 1218. The merits of such a motion must be viewed with extreme caution in the interest of preserving the finality of judgments. State v. Pickrom, 31,987 (La.App. 2 Cir. 5/5/99), 732 So.2d 800, 813.

State v. Rodriguez, 02-334, p. 40 (La.App. 5 Cir. 1/14/03), 839 So.2d 106, 133, writ denied, 03-482 (La.5/30/03), 845 So.2d 1061, cert. denied, 540 U.S. 972, 124 S.Ct. 444, 157 L.Ed.2d 321 (2003).

La.Code Crim. Proc. art. 772 provides:

The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.
This no-judge-comment rule is designed to safeguard the role of the jury as the sole judge of the facts on the issue of guilt or innocence. State v. Hodgeson, 305 So.2d 421, 430 (La.1974). Thus, if the effect of a comment is to permit a reasonable inference that it expresses or implies the judge’s opinion as to the defendant’s innocence or guilt, this constitutes a violation of the defendant’s statutory right to no-comment and thus requires reversal. State v. Green, 231 La. 1058, 93 So.2d 657, 659 (1957). To constitute reversible error, however, the effect of the improper comment must be such as to have influenced the jury and contributed to the verdict. State v. Johnson, 438 So.2d 1091, 1102 (La.1983).

State v. Camper, 08-314, p. 9 (La.App. 4 Cir. 10/1/08), 996 So.2d 571, 578.

We need not determine whether the trial court’s remarks were improper, as the defendant cannot prove the remarks influenced the jury and contributed to the verdict. The jury already knew the lab report was related to the offense that occurred in 2006, as the victim’s name and the date of the offense were included in the lab report, and when the report was introduced into evidence, defense counsel stated the lab report was being introduced “in regards to the victim, [J.H.]” Accordingly, we find the trial court properly denied the defendant’s motion for new trial.

For theses reasons, this assignment of error lacks merit.

| .^ASSIGNMENT OF ERROR NO. 4:

In his fourth assignment of error, the defendant contends the trial court erred in failing to articulate any factors whatsoever in formulating his sentences. We will not address the defendant’s claims regarding his sentence for forcible rape, as that sentence must be vacated due to an error patent.

At the sentencing hearing, the trial court merely recited the sentencing range for simple rape and imposed the maximum sentence of twenty-five years.

The record reflects no compliance with Louisiana Code of Criminal Procedure Article 894.1, which requires the trial court to state for the record the considerations taken into account and the basis for imposition of the sentence.

Because the trial court failed to mention any basis for imposition of the sentence for simple rape, we cannot say the defendant’s maximum sentence is supported by the record. See State v. Spencer, 00-1335, pp. 10-11 (La.App. 3 Cir. 2/28/01), 781 So.2d 780, 788. Accordingly, the sentence for simple rape is vacated, and the matter is remanded to the trial court for resentenc-ing in compliance with article 894.1.

CONCLUSION:

The defendant’s convictions are affirmed. His sentence for forcible rape is vacated, and the case remanded for imposition of a determinate sentence. Further, the defendant’s sentence for simple rape is vacated, and the matter remanded for re-sentencing and compliance with La.Code Crim.P. art. 894.1.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED WITH INSTRUCTIONS.

      . The victims’ initials are being used in accordance with La. R.S. 46:1844(W).


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Chrishon M. ARCHIELD.
    No. 09-1116.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      David W. Burton, District Attorney, Richard F. Blankenship, Assistant District Attorney, DeRidder, LA, for Appellee, State of Louisiana.
    G. Paul Marx, Lafayette, LA, for Defendant/Appellant, Chrishon M. Archield.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

|,The defendant was convicted of one count of aggravated rape and one count of aggravated burglary. He was sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence for the aggravated rape and thirty-years imprisonment at hard labor for the aggravated burglary. The trial court ordered the defendant to serve the sentences consecutively. The defendant appeals his convictions as violations of the prohibition against double jeopardy. He also argues his convictions were based upon unconstitutionally applied evidence and that his sentences are excessive. For the following reasons, we affirm the defendant’s convictions, affirm the aggravated burglary sentence, and affirm the aggravated rape sentence as amended. We remand for the limited purpose of correcting the minutes.

Facts and Procedural History

The offenses alleged in this matter occurred on May 30, 2008 in DeRidder, Louisiana. C.S. testified that on that day, the defendant, who was an ex-boyfriend of C.S., appeared at her front door and asked if he could speak with her. She stated that when she told the defendant that they could step outside and talk, he became enraged and forced himself into her house. Once inside, the defendant allegedly began to hurl insults at C.S., who became terrified and attempted to flee. C.S. testified that the defendant caught her, dragged her to the living 12room, knocked her to the floor by punching her, and demanded she “shut up”. She further recalled that the defendant grabbed a vase in the living room, threatened to hit her with the vase, and beat her about the head with his fist until he successfully removed her lower garments. C.S. testified that the defendant demanded that she get up from the living room floor and go into the bedroom. Once in the bedroom, the defendant pushed her on the bed, threatened to kill her, and then raped her.

C.S. testified that after he raped her, the defendant dressed and left the home, taking C.S.’s cell phone with him. C.S. then used her home phone and called her sister, who was out shopping. After C.S. told her sister that she had been raped by the defendant, her sister reported the crime to a police officer who was working security detail in the store where C.S.’s sister was shopping. That police officer made a request over the police radio for patrol officers to respond to a disturbance at C.S.’s home.

Officer Timothy Hardy and Lieutenant Greg Hill responded to the call. Officer Hardy testified that while taking C.S.’s statement, he noticed “a bruise to the left side of her face, and it was beginning to swell.” Before sending her to the hospital, the officers photographed several bruises on the face, arm, and foot of C.S. The officers also took pictures of the crime scene.

Officer Hardy also gathered information from C.S. about the defendant, including a description of the vehicle he was driving, and gave that information over the radio to other patrol officers. The record indicates that while the officers were still attending to C.S. at the crime scene, the defendant was detained by responding patrol officers.

The defendant was charged by indictment with aggravated burglary, a violation of La. R.S. 14:60, and two counts of aggravated rape, violations of La. R.S. 14:62. Following a trial on the merits, the jury found the defendant guilty as charged on one count of aggravated rape and aggravated burglary; it acquitted the defendant of the second aggravated rape charge.

|SF ollowing the convictions, the trial court sentenced the defendant to life imprisonment without benefit of probation, parole, or suspension of sentence for the aggravated rape and thirty-years imprisonment at hard labor for the aggravated burglary. The trial court ordered the defendant to serve these sentences consecutively.

The defendant appeals, asserting that:

1. The convictions in this case violate the Constitutional Prohibitions against Double Jeopardy because the same facts are relied upon for the Aggravated Burglary and the Aggravated Rape. The unlawful entry was enhanced to Aggravated Burglary by the commission of Aggravated Rape, and as such there could not be additional punishment for the separate element of Aggravated Burglary. The effect was to impose two punishments for a single act.
2. The sentence in this case is excessive because the Trial Court imposed Life without benefit of Parole, Probation or Suspension of Sentence consecutive to Thirty Years Hard Labor for a single act or continuum of acts. The sentence also sought to deny “good time” or other diminution of sentence.
3. The provisions of the Code of Evidence regarding “lustful disposition” evidence were unconstitutionally applied to deny Archield the Presumption of Innocence because they enhanced the credibility of the victim with mere “clear and convincing” allegations. The application of Article 412.2 was unfairly prejudicial and the Trial Court erroneously applied Federal Law in contravention of the Louisiana enactment which is more narrow.

Discussion

Error Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. We have identified one error patent requiring amendment to the defendant’s conviction for aggravated rape. We discuss this below, however, in the context of the defendant’s assignment of error as to sentencing.

J[¿Double Jeopardy

The defendant argues his convictions for aggravated rape and aggravated burglary violate the constitutional prohibitions against double jeopardy. Both the United States and Louisiana Constitutions prohibit double jeopardy; the imposition of multiple punishments for a single criminal act. See U.S. Const, amend. V; La. Const, art. 1, § 15. See also, La.Code Crim.P. art. 591. Louisiana courts use two methods, the “Bloekburger Test” and the “same evidence test”, to determine whether double jeopardy exists. State v. Williams, 07-931 (La.2/26/08), 978 So.2d 895.

In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the United States Supreme Court interpreted the Fifth Amendment’s prohibition of double jeopardy and enunciated the following test to be employed by the federal courts, as follows:

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

In interpreting Article 1, Section 15 of the Louisiana Constitution, Louisiana courts have also used the broader “same evidence test” which provides:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial.

State v. Cotton, 00-850, p. 5 (La.1/29/01), 778 So.2d 569, 573, quoting State v. Steele, 387 So.2d 1175, 1177 (La.1980).

The defendant argues that his convictions for aggravated rape and aggravated burglary violate double jeopardy “because the same facts are relied upon for the | ¡¡Aggravated Burglary and the Aggravated Rape. The unlawful entry was enhanced to Aggravated Burglary by the commission of Aggravated Rape, and as such there could not be additional punishment for the separate element of Aggravated Burglary.”

The relevant provisions of the indictment, that is the charges the defendant was ultimately convicted of, charged the defendant with aggravated burglary, a violation of La. R.S. 14:60, “by the unauthorized entry of the inhabited dwelling of C.S., with the intent to commit a felony or theft therein and after entering did commit a battery upon C.S.[.]” Further, it charged the defendant with aggravated rape, a violation of La. R.S. 14:42(A)(2), “by having vaginal intercourse with C.S., without the lawful consent of C.S., who was prevented from resisting the acts by threats of great and immediate bodily harm, accompanied by apparent power of execution[.]” Aggravated burglary is defined in La. R.S. 14:60 as the:

[Ujnauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(8) Commits a battery upon any person while in such place, or in entering or leaving such place.

Louisiana Revised Statutes 14:42(A)(2) defines aggravated rape, as follows:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.

_J^Blockburger Test

As previously noted, to determine whether the defendant’s convictions violated prohibitions against double jeopardy, courts employ the Blockburger test which requires that each of the statutory violations require proof of an additional fact which the other does not. Blockburger, 284 U.S. 299, 52 S.Ct. 180. In the present case, there is no double jeopardy under the Blockburger test because aggravated burglary requires the unique element of “unauthorized entry of any inhabited dwelling....” See La. R.S. 14:60. On the other hand, aggravated rape requires proof of the unique element of “sexual intercourse.” See La. R.S. 14:42(A)(2); See also State v. Williams, 05-1338 (La.App. 3 Cir. 3/1/06), 924 So.2d 1159, writ denied, 06-1471 (La.12/15/06), 944 So.2d 1284.

Same Evidence Test

Under the same evidence test, if the evidence required to support a conviction for one crime would also have supported the conviction of the other crime, the two crimes are the same offense and thus violate double jeopardy. Williams, 924 So.2d 1159. See also, Cotton, 778 So.2d 569.

At trial, C.F. testified that the defendant forcibly entered her home, without authority, and to accomplish this entry, shoved C.S. Additionally the record reveals that after the defendant gained entry into the home, he proceeded to grab C.S., knock her to the floor and drag her into the living room, all while beating C.S. about the head and face with his fists. C.S. testified that after the defendant gained entry into her home, he lifted a vase off the living room table and threatened to harm C.S. with it if she did not cooperate.

17Chief of Police John Gott, testified that when he arrived at the crime scene, C.S.’s face appeared to be red and swollen. Dr. John McMillian, the emergency room physician who examined C.S., testified that she sustained injuries to her face and head which were consistent with her allegations that she had been hit with a fist. Additionally, Dr. McMillian testified that C.S. also sustained deep impact bruising to her arm which indicated that C.S. had been “held down” and injuries “like a carpet burn” to the top of her foot, indicating that C.S. had been pulled across the floor.

In regard to the aggravated rape conviction, C.S. testified that the defendant demanded she go into the bedroom and that he pushed her onto the bed. She stated further that “he was looking around the room, looking for something to — He said he was going to kill me.” After this threat, C.S. testified that the defendant raped her, and she complied out of fear. Dr. McMillian testified that upon examination of C.S., “it was [his] impression that [C.S.] had been sexually assaulted.”

The record supports the determination that in the present matter the crimes of aggravated rape and aggravated battery were separate and distinct offenses. The defendant could have been convicted of aggravated rape without proof that an aggravated burglary occurred. The evidence adduced through testimony showed that the defendant had non-consensual sexual intercourse with C.S. and C.S. was prevented from resisting because the defendant threatened to kill her with the apparent power to execute that threat. La. R.S. 14:42(A)(2).

Further, the defendant could have been convicted of aggravated burglary without proof that any rape occurred, considering that he committed battery upon C.S. by hitting, dragging and shoving her, after he forcibly gained entrance into the |8house. La. R.S. 14:60(3). Also, aggravated burglary could have been proven under the second aggravating factor of La. R.S. 14:60 — when a perpetrator arms himself with a dangerous weapon after entering the inhabited dwelling. A dangerous weapon is defined as instrument “which, in the manner used, is calculated or likely to produce death or great bodily harm.” La. R.S. 14:2(A)(3). A vase held over one’s head in the manner presented in this case, arguably constitutes a dangerous weapon.

Separate and distinct evidence was presented for both crimes, thus we find that the conviction for both offenses of aggravated rape and aggravated burglary did not subject the defendant to double jeopardy.

This assignment lacks merit.

Excessiveness of Sentence

Following his convictions, the trial court sentenced the defendant to life imprisonment without the benefit of probation, parole, or suspension of sentence for the aggravated rape and thirty-years imprisonment at hard labor for the aggravated burglary. The defendant asserts that his sentences are constitutionally excessive in that the trial court ordered them to run consecutively. He contends that imposing a thirty-year sentence in addition to his life sentence is excessive because, realistically, he will not be able to serve the additional thirty years at the conclusion of his life sentence.

This court has set out a standard to be used in reviewing excessive sentence claims, as follows:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless | ¡¡imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

Related jurisprudence adds further structure to the analysis:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

Louisiana Code of Criminal Procedure Article 883 provides in pertinent part:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.

Generally, while La.Code Crim.P. art. 883 favors the imposition of concurrent sentences for convictions based upon the same act or transaction, or part of a common |inscheme or plan, the trial court retains its discretion to impose consecutive sentences, if it has a particular justification for doing so. State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461. The egregiousness of the offense, the vulnerability of the victim, the harm done to the victim, a defendant’s criminal history, whether the defendant poses a danger to the public, and the potential for the defendant’s rehabilitation are several factors to be considered by the trial court when imposing consecutive sentences. State v. Leyva-Martinez, 07-1255 (La.App. 3 Cir. 4/30/08), 981 So.2d 276, writ denied, 08-1200 (La.1/30/09), 999 So.2d 747.

At sentencing, the trial court stated the following:

In arriving at the appropriate sentence in this matter, the Court has reviewed the entire record, including all discovery provided by the Office of the District Attorney to the defendant in the course of trial preparation, the presen-tence investigation report from the Louisiana Department of Public Safety and Corrections dated June 24, 2009. The Court has also considered the testimony from the trial held in this matter, and the Court has reviewed all of the factors of sentencing as per Article 894.1 of the Code of Criminal Procedure.
The Court in this matter, in particular, notes the extensive criminal history of the defendant, including a felony conviction for second-degree battery in 1992, at least four DWI convictions or charges, a ... felony conviction of molestation of a juvenile from 1996, a felony conviction of second-degree battery from 2001, as well as a[n] aggravated battery felony conviction from 1997, as well as the Court takes notice of the testimony received in this matter at the other crimes hearing of the sexually as-saultive behavior of this defendant in 2005. Even though that did not result in a charge or conviction, the Court does take notice of the defendant’s conduct as testified to in that matter. The bottom line is that Mr. Archield has been convicted of a very serious charge and perhaps received significant benefits in the past from plea bargains that reduced charges that would have been this serious in the past.

The record reflects that the trial court was persuaded to impose consecutive sentences in light of the defendant’s extensive criminal history, persistence in | n committing sex offenses, and ineffectiveness of previous leniency by the courts in persuading the defendant to cease his criminal behavior.

The trial court considered appropriate factors and particularized its reasons for imposing consecutive sentences. Thus,, we find that it did not abuse its discretion in sentencing this defendant.

Diminution of Sentence

The defendant asserts that the trial court erred in sentencing because the penalty “sought to deny ‘good time’ or other diminution of sentence.” At the sentencing hearing, the trial court stated as follows:

The sentence that will be imposed on count 2, the aggravated rape count, is a mandatory sentence without discretion by the Court; and the Court will impose the sentence that the defendant be committed to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
I will note for sentencing that the defendant — this is a sexual offense for which the defendant would be required to register as a lifetime registered sex offender under-Title 15, and I order that the defendant comply with all provisions of the sexual registration laws. Also, I will note for the record that that sentence — that the defendant is not eligible for diminution of sentence under the law for that conviction, as well.
On the count 1 conviction of aggravated, burglary, the sentence range is from one to thirty years. It will be the sentence of the Court in this matter that, considering the conduct of this defendant, that the defendant be sentenced to thirty years at hard labor with the Department of Corrections, that that sentence is to run consecutive to the sentence in count 2. That also in that sentence, the defendant, as per Article 890.1 of the Code of Criminal Procedure, the defendant is denied eligibility for diminution of sentence in that matter, as well.

Louisiana Code of Criminal Procedure Article 890.1 provides:

A. When the court imposes a sentence, the court shall designate whether the crime involved is a crime of violence or an attempted crime of violence as defined or enumerated in R.S. 14:2(B).
|12B. Notwithstanding any provision of law to the contrary, if a person is convicted of or pleads guilty to a crime of violence as defined or enumerated in R.S. 14:2(B) and is sentenced to imprisonment for a stated number of years or months, the sentencing court may deny or place conditions on eligibility for diminution of sentence for good behavior unless diminution of sentence is prohibited by R.S. 15:571.3(0 or (D).

The trial court stated that “as per Article 890.1 of the Code of Criminal Procedure, the defendant is denied eligibility for diminution of sentence” for aggravated burglary. Aggravated burglary is one of the enumerated crimes of violence in La. R.S. 14:2(B). Additionally, the sentence for aggravated burglary was imposed for thirty years, which is a definite number of years. Accordingly, the trial court had the authority under La.Code Crim.P. art. 890.1 to deny diminution of sentence for aggravated burglary. See State v. H.L.J., 08-1070 (La.App. 3 Cir. 4/1/09), 6 So.3d 997.

Aggravated rape is listed as a crime of violence under La. R.S. 14:2(B). However, the defendant was sentenced to life imprisonment for aggravated rape, and life imprisonment is not a sentence that is stated for a number of years of months. See State v. Prejean, 08-1192 (La.2/6/09), 999 So.2d 1135 (wherein the supreme court discussed that under La. R.S. 15:537(A), an identical provision as La. Code Crim.P. art. 890.1(B), a life sentence is not the type of sentence defined in these statutes as “imprisonment for a stated number of years or months”). Because life imprisonment is not a sentence for a stated number of years or months, the trial court lacked authority to deny eligibility for diminution of sentence pursuant to La.Code Crim.P. art. 890.1. Accordingly, that portion of the sentence is deleted, and the trial court is instructed to note the change in the court minutes.

11 .¿Evidence of Other Crimes

In his last assignment of error, the defendant contends that:

The provisions of the Code of Evidence regarding “lustful disposition” evidence were unconstitutionally applied to deny [him] the Presumption of Innocence because they enhanced the credibility of the victim with mere “clear and convincing” allegations. The application of Article 412.2 was unfairly prejudicial and the Trial Court erroneously applied Federal Law in contravention of the Louisiana enactment which is more narrow.

On May 27, 2009, the State filed a Notice of Intent to Introduce Evidence Pursuant to C.E. Article 412.2. The notice stated that it intended to offer evidence of three other identified sexual assault victims “to show defendant’s intent to have sexual intercourse with the victim without her consent.” The notice also included a request by the State to have a hearing to determine the admissibility of the evidence.

Subsequently, the trial court held a hearing on the admissibility of the other crimes evidence. The State called three prior victims of the defendant to testify as to sexual assaults perpetrated by the defendant. S.S. testified that she and others were walking in Ruston, Louisiana, when the defendant stopped and asked them for directions. S.S. recalled that she volunteered to get in the defendant’s car to help him find his location. She related that, after showing the defendant his desired location, he refused to let her out of the car and attempted to rape her. A physical altercation ensued and, after being beaten, S.S. managed to escape from the defendant and alert the police. The defendant ultimately pled guilty to aggravated battery of S.S. in June 1997.

| UE.F. testified that the defendant, who at the time was dating a friend of E.F., offered to bring her to a graduation party for her friend. E.F. related that the defendant then drove her to a remote area and raped and beat her. The defendant pled guilty to molestation of a juvenile for this offense.

After considering the evidence presented at the hearing, the trial court determined the other sex crimes evidence was admissible under La.Code Evid. art. 412.2. The transcript of that hearing reflects the following:

In this situation, the evidence is clear that the other crimes, wrongs, or acts do involve either sexually assaultive behavior and/or acts which indicate a lustful disposition towards children or in this situation anyone under the age of 17.
So it clearly fits under 412.2. The question then becomes, one, is it relevant; and then, two, does it meet the balancing test of Article 403.
Article 401 of the Code of Evidence provides that relevant evidence is any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
And as I understand the thrust of this case, the primary issue at trial will be whether the sexual act was consensual or not. And so certainly the evidence that we have heard from the three ladies today is relevant in terms of that particular element of the crime for which Mr. Archield is charged.
So then the question becomes under Article 403 even if relevant as the evidence to be excluded, only if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or considerations of undue delay or waste of time.
Well, in my mind, the only one of those that [on which the evidence] would possibly be excluded because of is if it was a danger of unfair prejudice that outweighed the probative value of the evidence.
And I believe that the appropriate balancing test to be applied is that enunciated in US versus Enjady, 134 Federal 3rd, 1427, Tenth Circuit, 1998, which basically has four prongs of the balancing test.
1 isOne, how clearly the prior act has been proved; two, how probative the evidence is of the material fact it is admitted to prove; three, how seriously disputed the material fact is; and, four, whether the Government can avail itself of any less prejudicial evidence.
I will take those in order. One, how clearly the prior act has been proved. There’s really been no contradictory evidence to contradict the testimony of the three ladies that have testified today.
Mr. Evans has cross-examined them about some of the details of the incident. I don’t know if there is other information that would be presented at trial in cross-examination of these ladies; but for the purposes of today’s hearing in determining whether it’s admissible or not, I find that the prior acts have clearly been proved because there’s nothing contradictory that’s been testified to.
Two, how probative the evidence is of the material act it is admitted to prove. As to the issue of [sic] whether the conduct that Mr. Archield is on trial for in this matter was consensual or not, certainly the probative value of the testimony today goes to the heart of that material fact that the State is trying to prove.
Thirdly, how seriously disputed that material fact is. As I see the case before the Court that Mr. Archield is to stand trial for, that is the material issue, the very heart of the defense is whether or not the victim consented or didn’t consent to the sexual act.
And, four, whether the Government can avail itself of any less prejudicial evidence. And certainly, the Government will have the testimony of the victim in this case; but other than that, I am not aware of any other evidence.
So the bottom line of all of that is I believe that it meets the balancing test of Article 403. Certainly, it’s prejudicial. There’s no question about that.
The question is whether there is a danger of unfair prejudice. Considering that two of these incidents which were testified to have both resulted in convictions, not necessarily for the crime of rape but both for assaultive and/or sexually assaultive behavior; and two of the incidents and the third instant [sic] as I have indicated, there is nothing at this point of evidence to contradict the testimony.
So I am going to rule that the three sexually assaultive acts, crimes, or wrongs that are being offered in this matter involving [E.F.] on or about May 28th, 1995; [S.S.] on or about August 2nd, 1995; and involving [L.H.] on or about June 11th, 2006, are admissible under the Code of Evidence, Article 412.2. That will be the ruling of the Court.
| lf,At this point in time, certainly I think as this case goes along, if there was — Mr. Evans has the right to offer contradictory evidence to contradict the testimony of these witnesses at trial; and Mr. Blankenship and the State can offer other supportive testimony to these witnesses’ testimony if this matter goes to trial.

Burden of Proof

The defendant argues that the State failed to meet its burden of proof as to the other crimes evidence. Specifically, the defendant argues that proving the other crimes requires the State to present evidence “that is more than a mere statement by a person, or an opinion, or hearsay.”

“Commission of another crime, which is independently relevant and admissible, need not be proven beyond a reasonable doubt. It is sufficient if the evidence is clear and convincing.” State v. Davis, 449 So.2d 466, 467-68 (La.1984) (citation omitted). On review, a trial court’s ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996).

The record indicates that the testimony presented at trial by E.F. and S.S. was consistent with that testimony offered at trial. The defendant presented no rebuttal evidence, nor does the defendant point to any inconsistencies in support of his argument that the crimes were not proven. Additionally, the State offered into evidence the records indicating the defendant’s guilty pleas in the two eases which support the claims of E.F. and S.S. The record indicates that the State offered uncontested testimonial and documentary evidence that the defendant committed the offenses as described by the victims. Accordingly, the defendant’s contention that the State presented insufficient evidence is without merit.

117Balancing Test

The defendant claims that the trial court erred in its reliance on the federal case, United States v. Enjady, 134 F.3d 1427 (10 Cir.1998), cert. denied., 525 U.S. 887, 119 S.Ct. 202, 142 L.Ed.2d 165. Specifically, the defendant contends that the balancing test as enumerated in Enjady, and applied by the trial court in the present matter, constituted legal error. The defendant claims that the balancing test required in the present matter is provided in La. Code Evid. art. 403, which provides “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.”

The above quoted transcript of the trial court’s ruling on the admissibility of other crimes evidence clearly shows that the trial court employed both the Enjady balancing test and the test provided in La. Code Evid. art. 403. Louisiana Code of Evidence Article 403 requires an examination of whether the danger of unfair prejudice substantially outweighs the probative value of the evidence. However, the Enjady balancing test, as described by the trial court, contains an evaluation, asking: (1) whether the prior act had been clearly proven; (2) how probative the evidence is to the material fact it is introduced to support; (3) how seriously the parties are disputing the material fact; and (4) whether less prejudicial evidence is available to the government. Enjady, 134 F.3d 1427. This court has observed “Although the wording of the federal rule differs from the Louisiana rule, as observed by the Louisiana Supreme Court in Williams, [830 So.2d 984,] a review of federal jurisprudence reveals the two rules are virtually identical in application.” State v. Willis, 05-218, p. 27 (La.App. 3 Cir. 11/2/05), 915 So.2d 365, 386, writ denied, 06-186 (La.6/23/06), 930 So.2d 973.

Unfair Prejudice

The defendant contends the use of the La.Code Evid. art. 412.2 evidence unfairly prejudiced his case and denied him his presumption of innocence because it supported the victim’s, C.S.’s, credibility.

Louisiana Code of Evidence article 412.2 provides that “evidence of the accused’s commission of another sexual offense may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.” “The clear wording of the statute covers evidence of other sexual offenses and anything that forms an integral part of that act.” State v. Willis, 915 So.2d at 385. This evidence may be admissible for such purposes as motive, intent, plan, preparation, knowledge, identity, or absence of mistake or accident. Id.

Here, the State offered evidence in the form of testimony of the defendant’s prior victims which revealed that he obtained the compliance of his victims through beating the victims about the head with fist and death threats. The record indicates that C.S., E.F., and S.S. were all treated for injuries resulting from punches to the side of the head. Evidence regarding the type of beatings received in relation to a sexual act would be admissible under La. Code Evid. art. 412.2 as an integral part of the offense. Willis, 915 So.2d 365.

However, even relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” |1flLa.Code Evid. art. 403. In the present case, the jury was given a special instruction as to evidence under La.Code Evid. art. 412.2. The instruction stated, in pertinent part:

Furthermore, Louisiana Code of Evidence Article 412.2 provides that when an accused is charged with a crime involving sexually assaultive behavior, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior may be admissible and may be considered for its bearing on any matter to which it is relevant. It is not to be considered for the purpose of deciding that the defendant is a “bad” person, but rather whether the evidence establishes that the defendant has the propensity to commit the offenses charged in this case. However, it is important to remember that the accused is on trial only for the offenses charged. You may not find him guilty of the offenses charged in the present bill of indictment merely because he may have committed another offense.

We find that the record supports the trial court’s determination that the probative nature of the evidence substantially outweighed any risk of unfair prejudice. The defendant does not allege any specific prejudice, instead he generally argues he was unfairly prejudiced because the other crimes evidence increased the victim’s credibility. However, the record indicates that the State offered other evidence to corroborate C.S.’s testimony. The emergency room doctor testified that his exam of C.S. gave him the impression that C.S. had been sexually assaulted, and that his medical findings were consistent with C.S.’s report of the incident. In addition, the State introduced semen samples collected during the rape examination which confirmed the defendant’s identity as the perpetrator.

Also, the record does not support a finding that the jury was confused or misled by the other crimes evidence in that the jury acquitted the defendant on the second aggravated rape charge. This acquittal, in addition to the limiting instruction given to them, supports a determination that the defendant was not unfairly prejudiced by the inclusion of the other crimes evidence.

| ^Accordingly, this assignment of error is without merit.

DECREE

For the foregoing reasons, the defendant’s convictions are affirmed. The defendant’s sentence for aggravated burglary is affirmed. That portion of the defendant’s aggravated rape sentence denying diminution of sentence is deleted. The defendant’s sentence for aggravated rape is affirmed as amended. We remand this matter to the trial court for the limited purpose of noting the amendment to the defendant’s sentence for aggravated rape in the minutes.

CONVICTIONS AFFIRMED. SENTENCE FOR AGGRAVATED BURGLARY AFFIRMED. SENTENCE FOR AGGRAVATED RAPE AFFIRMED AS AMENDED. REMANDED WITH INSTRUCTIONS.

      . Pursuant to La. R.S. 46:1844(W), the victim's initials are used throughout for confidentiality purposes.

      . "Battery is the intentional use of force or violence upon the person of another." La. R.S. 14:33.

      . While three woman testified at the hearing on the admissibility of the evidence, the State did not call one of the women, L.H., to testify at trial. Also, the State did not directly solicit any information about the crime involving L.H.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Eric BLUE.
    No. 09-1111.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      James E. Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant/Appellant, Eric Blue.

      Charles A. Riddle, III, District Attorney — Twelfth Judicial District, Assistant District Attorney, Norris J. Greenhouse, Marksville, LA, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and DAVID E. CHATELAINE, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   GENOVESE, Judge.

| ,In this criminal case, the Defendant, Eric Blue, was convicted of first degree robbery and was sentenced to serve six years at hard labor. He appeals his six-year sentence alleging excessive sentence. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 7, 2007, [the] Defendant entered a convenience store owned by Ahmed Guzar in Bunkie, Louisiana. As indicated by Mr. Guzar’s testimony, [the] Defendant placed a bag of chips on the counter and told Mr. Guzar to open the register drawer. When Mr. Guzar did not open the drawer, [the] Defendant pulled out a gun. Mr. Guzar asked [the] Defendant if he was playing, and [the] Defendant stated that he was not. Mr. Guzar then opened the register drawer, and [the] Defendant took all of the money inside, which was about six or seven hundred dollars.

State v. Blue, 08-756, p. 1 (La.App. 3 Cir. 12/10/08), 998 So.2d 1242, 1243.

On September 18, 2007, the Defendant was charged with armed robbery, a violation of La. R.S. 14:64. On November 7, 2007, subsequent to trial by jury, he was unanimously found guilty of the responsive verdict of first degree robbery, a violation of La. R.S. 14:64.1. A Motion for Post Verdict Judgment of Acquittal or in the alternative a Motion for New Trial was filed on January 15, 2008. Those motions were heard and denied on January 17, 2008. On that same date, he was sentenced to ten years at hard labor without benefit of parole, probation, or suspension of sentence. On February 6, 2008, a Motion to Reconsider Sentence was filed. That hearing was held on April 3, 2008, and the motion was denied. On appeal, this court affirmed the Defendant’s conviction, but remanded the matter for resen-tencing, ruling that the trial court “gave undue consideration to the rash of armed robberies in the area and its apparent desire to deter similar crimes in the future ... resulting in a sentence that was not particularized to this Defendant.” Id. at 1247.

On February 3, 2009, the trial court once again sentenced the Defendant, but 12reduced the ten-year sentence to six years at hard labor, without the benefit of parole, probation, or suspension of sentence. On February 10, 2009, the Defendant filed a Motion to Reconsider the sentence imposed. At a hearing on March 19, 2009, the Motion to Reconsider was denied by the trial court. On March 30, 2009, a Motion for Appeal was filed by the Defendant and granted by the trial court.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are no errors patent; however, the minutes of the sentencing proceeding are in need of correction.

The transcript of the February 3, 2009 sentencing proceeding reflects that the trial court imposed the Defendant’s six-year sentence for first degree robbery without the benefit of parole, probation, or suspension of sentence; however, this is not reflected in the minutes of the sentencing proceeding. “[I]t is well settled that when the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62. Thus, the trial court is ordered to amend the minutes of the February 3, 2009 sentencing proceedings to accurately reflect the sentencing transcript. See State v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342.

ASSIGNMENT OF ERROR

The Defendant contends that the trial court failed to give sufficient consideration to mitigating factors in fashioning its sentence in this case and that a six-year sentence for this offender is excessive. The Defendant cites La.Code Crim.P. art. 894.1 and the several factors set forth therein in support of his claims. The | ^Defendant then asserts that it is clear from the record that the trial court’s primary purpose in imposing the six-year sentence was to deter others from considering or committing similar crimes. In support of his argument, the Defendant cites the following portion of the trial court’s comments at sentencing:

I’m going to re-sentence you on this matter[,] and I want you to understand the reasoning behind this. First of all Mr. Blue, there’s no doubt in my mind that you are truly remorseful. I believed that the first time[,] and I still believe that today. Right versus wrong, you know what’s right, you intend to do what’s right from now on, I know that. But there still must be a penalty, you still must pay a penalty to society. Now what’s very important in that is precedent. I cannot send out precedent to any young men in Bunkie, in Cheney-ville, or anywhere in the state that the first time they commit a robbery they get away with it, that the first time they commit an armed robbery, first degree robbery, or simple robbery[,] that there’s no jail penalty. I cannot do that because there is, there has to be. For me to do that, for me to establish that precedent would be for me to deprecate the seriousness of it and say it’s okay if the person is really remorseful, I can’t do that. It’s okay if the person has a strong family structure and just didn’t rely on it previously, I can’t do that. It’s still a robbery, one of those variations, which is extremely serious, these are violent crimes. And the precedent cannot be established for anyone out there that I might take this shot at it because if I’m not successful I still have a good shot of not going to prison. They’d have to know that prison awaits.
Previously I had commented on the deterrent effect that I needed to sentence you for. That was a factor, it was not a controlling factor[,] but it was a factor. And the Third Circuit was cautious about that and so I want to ... although it was not a controlling factor, I want to defer to and be cautious to [sic] you, you’re the person jailed, you’re the person serving the penalty now. And so I defer in your favor on that argument and give you a break on that argument. Although it was never controlling, but still I’ll defer in your favor and knock four years off of the original sentence.

The Defendant further asserts that the sentence imposed was excessive, as he is a first offender and a candidate for probation.

In his Motion to Reconsider Sentence, the Defendant merely alleged that his sentence was excessive. Therefore, we will not consider the Defendant’s claim that |4the trial court failed to sufficiently consider mitigating factors at sentencing. See La.Code Crim.P. art. 881.1(E); Uniform Rules — Courts of Appeal, Rule 1-3; State v. Hebert, 08-542 (La.App. 3 Cir. 11/5/08), 996 So.2d 688.

This court discussed the standard of review applicable to claims of ex-cessiveness in State v. Bailey, 07-130, p. 3 (La.App. 3 Cir. 10/3/07), 968 So.2d 247, 250, as follows:

A sentence which falls within the statutory limits may be excessive under certain circumstances. To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.

State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted).

In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted), this court discussed the factors it would consider in order to determine whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”

The Defendant was convicted by a jury of the responsive verdict of first degree | ^robbery, which is punishable by imprisonment “at hard labor for not less than three years and for not more than forty years, without benefit of parole, probation[,] or suspension of imposition or execution of sentence.” La. R.S. 14:64.1. The Defendant was sentenced to serve six years with the Department of Corrections, without benefit of parole, probation, or suspension of sentence.

In State v. Washington, 05-210 (La.App. 5 Cir. 10/12/05), 917 So.2d 488, the court found that the sentence of eighteen years imposed for first degree robbery upon a first offender who had a mental health condition was not excessive.

In State v. Sutton, 04-88 (La.App. 3 Cir. 7/7/04), 879 So.2d 419, writ denied, 04-2617 (La.6/24/05), 904 So.2d 730, the defendant argued that his eight-year sentence for first degree robbery was excessive, as he was a twenty-four-year-old first offender who was drunk when he took eleven dollars from the victim while using a toy gun. This court affirmed the defendant’s sentence in that case.

After considering the factors set forth in Bailey, 968 So.2d 247, and the cases cited herein, we find that the Defendant’s sentence is not excessive. Accordingly, this assignment of error lacks merit.

DISPOSITION

The Defendant’s sentence is affirmed. Additionally, the trial court is hereby instructed to amend the minutes of sentencing to accurately reflect the sentencing transcript.

SENTENCE AFFIRMED WITH INSTRUCTIONS.