text:
    Florenda BEALS and Kathy M. Beals, Plaintiffs-Appellants v. NEW FELLOWSHIP MISSIONARY BAPTIST CHURCH OF DELHI, INC., c/o Daniel L. Dixon, Defendant-Appellee
    No. 51,868-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018
    FLORENDA BEALS, In Proper Person
    KATHY M. BEALS, In Proper Person
    COTTON, BOLTON, HOYCHICK & DOUGHTY, LLC By: David Paul Doughty, Counsel for Appellee
    Before BROWN, COX, and GASKINS (Ad Hoc ), JJ.
   COX, J.

Appellants, Florenda and Kathy Beals ("the Beals"), appeal a judgment from the Fifth Judicial District Court, Parish of Richland, State of Louisiana, wherein the trial court granted judgment in favor of Appellee, New Fellowship Baptist Church of Delhi ("New Fellowship"), dismissing their claims of trespass pertaining to a strip of land located within a tract of land owned by the Beals. Appellants contend that the trial court erred: (1) by failing to find that they were in constructive possession of the disputed property; (2) in establishing the boundary line between the two contiguous tracts of land; (3) in finding that New Fellowship possessed the disputed property openly, continuously, and without interruption within the statutory period required by law; and, (4) in not allowing the Beals to introduce evidence that could have changed the outcome of the case. The Beals request that the trial court's judgment be reversed and a new trial be granted on the merits. For the following reasons, we affirm.

FACTS

New Fellowship was established in 1919 when the Church purchased land outside of Delhi, Louisiana, from Jerome May. In 1920, a wooden building was erected on the land. In approximately 1950, two additions were made to the sides of the building. Originally, outdoor bathroom facilities were located on the back edges of the Church property until a septic tank was added in the early 1970s. In 2008, the Church placed a storage building on the back portion of its lot.

In October 2010, the Church was contacted by David May, who wanted to make a donation to rebuild the Church. May wanted to receive the tax benefit, so the Church was incorporated to form New Fellowship Missionary Baptist Church, Inc. The Church Board of Trustees met to discuss the donation and rebuilding. The Church Board further contemplated purchasing the property located behind the Church. Florenda Beals, a member of the Church's Board, was present at the meeting.

The donation was ultimately delayed, and on October 29, 2014, the Beals purchased the landlocked piece of property located behind the Church from Leroy Theus, Jr. The act of sale describes the property as follows:

One half (½) acre, more or less, from a certain parcel of land situated in the North Half of the Southeast Quarter of the Southeast Quarter (N ½ of SE ¼ of SE ¼) of Section 26, Township 17 North, Range 9 East (T 17N-R9E), Richland Parish, Louisiana.

On November 25, 2014, the Beals sent notice, by letter, to the Church that the property located behind their north boundary line had changed ownership. In the letter, the Beals stated they would allow New Fellowship's building to extend onto the property, as well as access necessary to maintain the needs of the building, with an understanding that New Fellowship would accept full liability pursuant to a lease agreement. In addition, the Beals requested removal of the portable storage building, any sewage lines/septic tank, litter/trash, and any other items stored or placed on or under the grounds of their property.

In response to the letter, New Fellowship requested a surveyor's report and certified maps showing the legal description of the Beals' property. Furthermore, on December 15, 2014, New Fellowship sent Florenda Beals a letter asking her to resign her position as a board member.

On January 8, 2015, the Beals sent New Fellowship a notice of trespass warning, giving the Church 90 days to remove any buildings, structures, or other movables placed on their property. New Fellowship declined to take action without a legal/certified land survey. However, provided the Beals could produce a clear deed to the property, New Fellowship stated they were willing to discuss purchasing the property from the Beals.

In April 2015, the Beals contacted the Justice of the Peace to enforce the trespass warning. A notice to vacate was issued on April 22, 2015, but was later rescinded due to improper venue. On January 5, 2016, the Beals filed a complaint of trespass to real property. The Church filed an answer and reconventional demand to fix the boundary line according to a survey conducted by Messinger and Associates, Inc.

Trial was held on March 30 and 31, 2017. Ken McKay, Jr., a licensed surveyor who conducted a survey of the disputed property for the Beals, was the first to testify. McKay testified that he had been practicing as a surveyor in Louisiana for 30 years and was familiar with the surveyed area because he had been surveying the area with his father since the early 1970s. He stated that the oldest parcel of property in that area was the Church.

McKay explained that the Church deed calls the property line of the Church to be 100 yards along Turkey Creek Road. He stated he was under the impression that "probably whoever marked it off would be the members of the church and the May family, it says [300] yards to a stake with a point of beginning, I'm assuming they paced a hundred steps and drove a stake in the ground." In 1979, he noted there was a white pipe "about mid-thigh high" at the front two corners of the Church.

When he returned in 1988 to survey for Leroy Theus, Jr., the previous owner of the disputed property, McKay said he located the southeast corner of the Church from the white pipe. The property to the east-the Fountain property-and the southeast corner of the Turner tract were also marked in the same fashion. Upon measuring to the north, McKay found a pipe at the northeast and northwest corners of the Church. At that time, there was a water meter on the southwest corner of the Church; McKay expressed that he could "only assume that that may have torn out the southwest corner which used to be marked with the same thing, a white pipe." As McKay's job at that time was to survey the Theus property, he testified that he did not reset that property corner, but utilized it and went up to the northeast corner of the Jackson property and set an 8-foot offset because it was near a ditch. He also set a 12-foot offset at the northwest corner of the Church property. McKay stated he then went to the northeast corner of the Church property and surveyed across the canal, over to the Lynch Edwards property, and back up to the north line.

When McKay returned in 2016 to survey for the Beals, he stated he located some of the same corners he had utilized in 1979 and 1980, although some corners were missing, and marked the ½ acre to the best of his ability. McKay noted that the deed said to go to the south edge of the canal, but if the called distance did not reach the canal or went across the canal, he stopped at the south edge of the canal "which seemed to be the intention of the deed." Additionally, from the stake, the deed called for the point of beginning to go 105 feet north and about 210 feet east; McKay communicated that he found irons that matched those distances. Ultimately, McKay asserted he was "fully satisfied with the survey."

Jeffery Messinger, a licensed surveyor who conducted a survey of the disputed property for New Fellowship, also testified regarding his methods. He noted that the Church was not surveyed in 1919, so "no one knows exactly where they measured from to come up with the [105] feet." In his professional opinion, Messinger believed the Church should have 113 feet by 210 feet instead of what is stated in the deed.

Messinger stated that when the Church received its deed, the intention was to build the Church on its property. Therefore, Messinger surveyed the Church by where he felt the line should be. He said he used other markers he found on other properties surrounding the area. Using these markers, he determined where the starting point should be located. He testified that his method "meshes" with the other deeds, including the deed for Leroy Theus, Jr.

Messinger also stated he surveyed by possession. He explained, "since the deed distances come down [81] feet from the deed to the east and then you come down on the west side, when you come down those distances it will give you more footage going to the road which makes the church a lot bigger." He testified that he informed the Beals in a letter that either they would get more land or the Church would get more land, but with the Church being built where he "felt it was" and because it had not been added onto, "that was possession."

James Beals, a member of New Fellowship, testified that there was nothing behind the Church "that would give anyone incentive to go back there." However, he stated that since the Beals purchased the property, they had removed the trees and brush behind the Church and mow "quite frequently."

Azell Cornist, who was hired by the Beals to clear the property, testified that he cleared the property from the back of the Church to the ditch line. He stated he did not know anything else about the dispute.

Leroy Theus, Jr., the previous owner of the disputed property, testified that he purchased the property from Charles Stubblefield in 1988. He stated that there were no existing structures or anything beyond the 105-foot boundary line when he purchased the property. He also expressed that there was no clearing to the land. However, Theus conceded that the three-window section of the choir stand was there when he bought the property. When the Church made an addition to the building, Theus asserted that he did not have a problem with it or tell the Church to remove it from his property. Finally, Theus noted that the Church had been maintaining up to the thickets located behind the Church since he had purchased the property.

Minnie Dykes, a member of New Fellowship since the late 1960s or 70s, described the back of the Church as being a wooded area. She stated that the Church, however, had mowed "right down to the thicket," and the area was not fully cleared until it was purchased by the Beals.

Carolyn Beals, a 49-year-old member of the Church, testified that she remembered the bathroom inside the Church being located behind "[the preacher] and to the left." She stated that the Church has had plumbing for over 30 years. Additionally, she noted that the back wall of the Church with the three windows had been there as long as she could remember.

Azell Cornist, Jr., a member of the Church who helped his father clear the property for the Beals, testified that there was a 4-foot strip of land from the Church to the Beals' land that had been mowed.

Marilyn Beals Theus testified that the land behind the Church had been overgrown since she was a little girl. She stated that the back wall of the Church had also been there since she was a child, but the wall was "smaller." Marilyn noted that the wall had widened, but said it had not moved further back.

Edna Morrison, an 80-year-old member of New Fellowship, testified that the back wall of the Church was in the "same identical place" as it had been in 1949. Morrison stated that the Church has been maintaining the property behind it as far back as that year. She also recalled the outhouses located behind the Church, which were located near a sweet gum tree marked on the Messinger survey. Once the outhouses were removed, she said the Church added bathrooms, which have been in place for more than 30 years.

Jackie Robinson, a member of New Fellowship who continued maintenance and mowing for the Church after his father passed, testified he had personally been keeping up the grounds for 30 years. He stated that the main area he and his father had been maintaining was along the Messinger line back behind the storage building. Robinson recalled that the Church's septic tank was approximately seven or eight feet behind the building and believed it had been there for more than 30 years.

Daniel Dixon, the pastor at New Fellowship for the past 26 years, testified that there had been no new additions to the Church since he had been there; the choir loft had not changed in any way; and, Jackie Robinson had mowed the area behind the Church for years. Additionally, Dixon stated that once the survey was completed, Messinger informed him that the Church was not encroaching on the Beals' property.

Pete McCall, an engineer, deacon, and chairman of the Church's Board of Trustees, was the last to testify. He stated that the back wall located in the choir area has been the same since at least the 1950s. He also noted that, upon inspection of the attic, the choir loft was part of the original building constructed in 1920. He said that the texture and size of the lumber used for the construction was more in line with lumber one could have purchased in the 1920s and 30s, rather than in the 1970s and 80s. McCall, like Edna Morrison, recalled the outhouses being by a sweet gum tree. Additionally, he expressed that the "mow line" was the same line that had been maintained and mowed by the Church for as long as he could remember.

On April 10, 2017, the trial court rendered a judgment in favor of New Fellowship, dismissing the claims of trespass by the Beals. Although it felt that the McKay survey was more accurate, the trial court ordered, based on witness testimony, that the north boundary line of the New Fellowship property and the southern boundary of the Beals' tract be set at the Messinger survey line. New Fellowship was ordered to reroute its sewer line, which ran across the Beals' property, onto its own property. New Fellowship was also required to fence its northern bound property at its own expense. This appeal followed.

DISCUSSION

Whether a party has possessed disputed property for 30 years without interruption is a factual issue that will not be reversed on appeal absent manifest error or a showing of an abuse of discretion. Luffey Timber Co., L.L.C. v. Florence , 47,482 (La. App. 2 Cir. 9/26/12), 106 So.3d 596. To reverse a fact-finder's determination under the manifest error standard, an appellate court must engage in a two part-inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact, and (2) the court must further determine that the record establishes a finding that is clearly wrong. Middlebrooks v. City of Bastrop , 51,073 (La. App. 2 Cir. 1/11/17), 211 So.3d 1231, writ denied sub nom. Middlebrooks o/b/o Middlebrooks v. City of Bastrop , 2017-0286 (La. 5/1/17), 219 So.3d 331.

In their first assignment of error, Appellants assert that the trial court erred in finding that they did not acquire ownership and were not in constructive possession of the disputed property, pursuant to La. C. C. art. 531, contrary to evidence and testimony presented at trial. Louisiana C. C. art. 531 provides that one who claims the ownership of an immovable against another in possession must prove that he or she has acquired ownership from a previous owner or by acquisitive prescription. If neither party is in possession, he or she need only prove a better title.

Ownership and other real rights in immovables may be acquired by the prescription of 30 years without the need of just title or possession in good faith. La. C. C. art. 3486. Ownership of immovable property under record title may be eclipsed and superseded by ownership acquired under prescriptive title. La. C. C. art. 3487. A possessor lacking good faith and/or just title may acquire prescriptive title to land by corporeally possessing a tract for 30 years with the intent to possess as owner. La. C. C. art. 3424. Such possession confers prescriptive title upon the possessor only when it is continuous, uninterrupted, peaceable, public, and unequivocal, and confers title only to such immovable property as is actually possessed. La. C. C. art. 3476 ; Marks v. Zimmerman Farms, L.L.C. , 44,279 (La. App. 2 Cir. 5/20/09), 13 So.3d 768.

With regard to findings of fact based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact's findings. Knight v. Tucker , 50,993 (La. App. 2 Cir. 11/16/16), 210 So.3d 407, reh'g denied (1/5/17), writs denied , 2017-0241, -0247 (La. 4/7/17), 218 So. 3d 109. Only the fact finder "can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said." Id.

The trial court did not err in finding that New Fellowship acquired ownership of the disputed property through 30 years' acquisitive prescription. Pursuant to La. C. C. art. 531, Appellants proved they had acquired ownership from the previous owner. However, pursuant to La. C. C. art. 3487, New Fellowship's prescriptive title eclipsed and superseded the Beals' record title because New Fellowship corporeally possessed the disputed property for 30 years with the intent to possess as owner. Therefore, the Beals were not in constructive possession of the property.

At trial, witness testimony established that New Fellowship corporeally possessed the disputed property for 30 years. Multiple witnesses testified that the three-window wall of the choir stand had been in the same location for over 30 years. For example, Edna Morrison recalled that the wall had been there since at least 1949, and Pete McCall stated that the choir stand was part of the original building constructed in 1920. Additionally, Jackie Robinson asserted that he had personally maintained the grounds for over 30 years, mowing back to the Messinger survey line. More than one witness also conveyed that the Church has had indoor plumbing for over 30 years.

The trial court is accorded great deference in accepting or rejecting witness testimony, and the trial court accepted the testimony of the witnesses who established that the Church had corporeally possessed the disputed property for 30 years. The Church clearly intended to possess the property as owner, which is showcased by the three-window wall of the choir stand and the indoor plumbing being placed on and under the disputed property. Their possession was continuous, uninterrupted, peaceable, public, and unequivocal. As this is a reasonable finding based on the record, this assignment of error is without merit.

In their second assignment of error, Appellants claim that the trial court erred in establishing the boundary line between the two contiguous tracts of land based upon New Fellowship's survey. The Beals argue that the trial court incorrectly relied upon the Messinger survey rather than the McKay survey because McKay was more familiar with the history of the two tracts of land and had previously surveyed the property in 1988.

When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party in title possessed for 30 years without interruption, within visible bounds, more land than their title called for, then the boundary shall be fixed along these bounds. La. C. C. art. 794.

One claiming possession without title can show adverse possession by enclosures, meaning natural or artificial marks that give notice of the character and extent of possession. Luffey Timber Co., L.L.C. v. Florence, supra . What constitutes adverse possession depends on the nature of the property and must be determined based upon the facts of each case. Id.

As stated, New Fellowship proved 30 years' acquisitive prescription; therefore, the boundary shall be fixed according to limits established by prescription, rather than titles. Witness testimony established that the three-window wall of the Church had not moved for at least 30 years. Testimony also showed that the Church added bathrooms that had been in place for at least 30 years. Most importantly, it was clear from the record that the Church had been mowing and maintaining the disputed property for more than 30 years. The wall, indoor plumbing, and natural boundary created by mowing gave notice of the character and extent of New Fellowship's adverse possession. It is clear from the testimony at trial that New Fellowship possessed the property without interruption, within visible bounds, more land than their title called for, and the boundary should be fixed along these bounds.

Although it conceded that the McKay survey was the more accurate survey, the trial court relied on witness testimony, coupled with Messinger's surveying methods, to establish the boundary line. The trial court noted it was impressed by the previous owner's acknowledgement that the back of the building was the same wall that was there when he bought the disputed property in 1988. The trial court conceded this was not quite 30 years, but almost 30 years, and noted that Jackie Robinson confirmed that the back of the building had not changed with regard to the original choir stand. Edna Morrison also confirmed that the back wall had not moved in over 30 years. Additionally, Pete McCall confirmed that the choir stand was an original construction by going into the attic and looking at the boards.

Based on the record, the trial court did not err in determining that the Messinger line was the boundary line in this dispute. Jackie Robinson testified that he had mowed back to the Messinger line for more than 30 years. This assignment of error lacks merit.

In their third assignment of error, the Beals contend that the trial court erred in finding that New Fellowship possessed the disputed property openly, continuously, and without interruption within the statutory period required by law, contrary to the evidence and testimony presented at trial.

As previously stated, corporeal possession confers prescriptive title upon the possessor only when it is continuous, uninterrupted, peaceable, public, and unequivocal, and confers title only to such immovable property as is actually possessed. La. C. C. art. 3476. Neither the Beals nor the previous owner interrupted New Fellowship's possession. The Church was built in 1920, and the Beals purchased the disputed property in 2014. During this time, the Church was not asked or told to remove the three-window wall or indoor plumbing from the disputed property. Additionally, the Church maintained up to the Messinger line by mowing and was never asked to stop. No one objected to the Church's corporeal possession of the disputed property. In fact, in their first letter to New Fellowship, the Beals stated they would allow the Church's building to extend onto their property. Thus, it is clear that the possession was continuous, uninterrupted, and peaceable. The possession was also public and unequivocal as the three-window wall and mow line were clearly visible to the public and unambiguous. This assignment of error lacks merit.

In their final assignment of error, Appellants argue that the trial court erred in not allowing them to introduce evidence that could have changed the outcome of the judgment. Specifically, the Beals claim "the trial court objected to documentation that establishes the New Fellowship Missionary Baptist Church incorporated in 1920 and is heir property." Because the Beals believe New Fellowship to be "heir property," they assert that a new organization cannot be formed to litigate the property without consent of all the heirs.

Referencing La. C. C. P. art. 1363, this Court has previously stated, "It is incumbent upon the party who contends its evidence was improperly excluded to make a proffer, and if it fails to do so, it waives its right to complain of the exclusion on appeal." Webb v. Roofing Analytics, L.L.C. , 48,248 (La. App. 2 Cir. 7/24/13), 121 So.3d 756, 763. In the absence of a proffer of the documentation, this Court will not consider on appeal that the trial court ruled it inadmissible. Id.

At trial, the Beals produced a document that purportedly established that New Fellowship was formally incorporated in 1920. Appellants stated they retrieved the document from the Clerk of Court, but could not confirm whether it had been registered with the Secretary of State. The deed, however, does not indicate that the property was sold to a corporation; it indicates that it was sold to a church. Appellants attempted to distinguish the original deed from the transfer deed, but the trial court correctly pointed out that this was not a chain of title dispute, but rather a boundary dispute.

From the record, it is clear that Appellants failed to make a proffer. Thus on appeal, the Beals have waived their right to complain of the exclusion of the document. This Court will not consider this complaint on appeal; however, we do observe that the record supports the trial court's findings.

Regarding Appellant's argument pertaining to "heir property," the trial court correctly stated that the "exclusive to heirs and assigns" language in the deed was standardized language used in every deed and refers to persons in the chain of title. It does not mean that all heirs must consent to the formation of a new organization in order to litigate the property. This assignment of error is without merit.

CONCLUSION

Based on the foregoing, we affirm the rulings of the trial court. The record clearly established that New Fellowship acquired the disputed property through 30 years' acquisitive prescription. According to the testimony at trial, the three-window wall, indoor plumbing, and mow line had not changed in over 30 years. New Fellowship's corporeal possession was continuous, uninterrupted, peaceable, public, and unequivocal. The trial court did not err in setting the boundary line according to the Messinger survey. Costs of this appeal are assessed to Appellants.

AFFIRMED.

      In 2017, the unincorporated association transferred ownership of the tract of land to the new corporation.

      The letter accused Florenda of the following: (1) sharing information which the board discussed concerning the property with persons outside the church family, failing to keep church business confidential; (2) using the knowledge gained as a board member to conspire with an outside party to purchase property she knew the church was interested in purchasing; (3) personally profiting from the purchase of the property that the church was interested in; and, (4) making demands of the church concerning the property that could cost the church thousands of dollars.

      On cross-examination, McKay conceded that there was no way to really know where Turkey Creek Road was located because it had moved south a couple of feet.

      Jeffery Messinger was originally hired by the Beals to perform a survey. However, once the Beals discovered Messinger was performing a survey for the Church, they hired Ken McKay, Jr.

      The remainder of McCall's testimony consisted of questions by Florenda Beals pertaining to her removal from the Board of Trustees and McCall's authority to do so.


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Damon Allen WING, Appellant
    No. 51,857-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018.
    LOUISIANA APPELLATE PROJECT, By: Katherine M. Franks, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, TRENEISHA JACKSON HILL, JASON WALTMAN, JOSHUA WILLIAMS, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, PITMAN, and GARRETT, JJ.
   GARRETT, J.

The defendant, Damon Allen Wing, was convicted of two counts of simple burglary and sentenced to serve eight years at hard labor on each count, to be served consecutively. Wing appeals, claiming his sentences are excessive and should not have been ordered to be served consecutively. For the following reasons, we affirm the convictions, vacate the sentences, and remand for resentencing.

FACTS

On the afternoon of April 14, 2016, Caryn McCabe, the concessions manager at the Blanchard Athletic Club, arrived at the business to find it had been burglarized. A window was broken out of a door and the door had been unlocked from the inside. A cinderblock brick and a piece of rebar, apparently used to break the window, were found on the ground nearby. A bottle of sports drink, which had been partially consumed, was found on the counter, along with an ICEE, which was still frozen. The bathroom had been used and the toilet had not been flushed. The cash register and items on the safe had been moved. When Ms. McCabe left the building around 10 p.m. the night before, it had been completely cleaned and straightened.

Ms. McCabe called the Blanchard Police Department. Sergeant Brian Anderson responded to the call and photographed the scene. Ms. McCabe put some plastic over the broken window.

Early on the morning of April 15, Sgt. Anderson received information that Wing, who was 19 years old, was involved in the burglary. Sgt. Anderson contacted Wing. He was advised of his Miranda rights and signed a waiver of those rights. That morning, Wing wrote out a confession, in his own handwriting, which stated:

Yesterday afternoon I used a brick and rebar to break into the concesion [sic] stand at the ballpark and got a drink and some candy and then used the bathroom and hit the safe with a hammer and then people showed up and I left.

The statement regarding hitting the safe with a hammer was puzzling to Sgt. Anderson because he had not observed much damage to it.

Later that morning, following the initial interview with Wing, Sgt. Anderson was again dispatched to the Blanchard Athletic Club, which had been burglarized a second time. The plastic on the door had been broken through and the safe had been severely damaged, but had not been opened. Sgt. Anderson photographed the scene and went back to Wing, who was again advised of and waived his Miranda rights. Wing admitted that he burglarized the concession stand again after Sgt. Anderson photographed the scene on April 14. Wing added the following sentence to his statement:

Came back later that night and used a hammer on the safe to no evail [sic].

Wing was charged with two counts of simple burglary and was tried by a six-person jury on March 7, 2017. Immediately before trial, a hearing was held on the admissibility of Wing's handwritten confession. The statement was found to be given freely and voluntarily and was admitted into evidence at trial. After hearing testimony from Ms. McCabe and Sgt. Anderson, examining the photographs admitted at trial, and reading Wing's confession, the jury convicted him as charged on both counts of simple burglary. The trial court immediately set a sentencing date of March 16, 2017.

On March 16, 2017, Wing filed a motion for new trial, asserting that the state failed to meet its burden of proof because there was no evidence that he committed any burglary, the alleged confession was a total fabrication, and the defendant's confession alone was not sufficient to support the convictions. He also filed a motion for post-verdict judgment of acquittal, arguing that the state failed to prove that he made an unauthorized entry into the building with the intent to commit a felony, failed to produce direct evidence that he committed any simple burglary, or failed to show that there was any simple burglary committed by him. Prior to sentencing on March 16, 2017, the trial court denied both motions, finding that they were not supported by the record. Wing objected to the rulings and specifically waived the sentencing delays of La. C. Cr. P. art. 873.

The trial court then proceeded with sentencing. Wing was informed of the maximum sentence for simple burglary, the delays for filing a motion to reconsider the sentences and to appeal the sentences, and the time limits to apply for post conviction relief. The court stated that it was required to impose a sentence of imprisonment because there was an undue risk that, during the period of a suspended sentence or probation, the defendant would commit another crime, the defendant was in need of correctional treatment or a custodial environment that could be provided most effectively by commitment to an institution, and a lesser sentence would deprecate the seriousness of the defendant's crime.

The court made the following statements concerning sentencing:

In addition, the Court is supposed to consider the aggravating and mitigating factors found in Article 894.1B. Paragraph B provides the following grounds. While not controlling, the discretion of the Court shall be accorded weight in its determination of suspension of sentence or probation. One, the offender's conduct during the commission of the offense manifested deliberate cruelty to the victim. I find that to be applicable. I find no other additional aggravating circumstances applicable found from (2) to (21) of subparagraph B.
Subparagraphs (22) to (33) contain the mitigating circumstances the Court should consider in determining what the sentence will be. I find (22) applicable, the defendant's criminal conduct neither caused nor threatened serious harm. No one was at the place of business when the burglaries occurred. No one was hurt. And so I find all of that to be a mitigating circumstance.

The court then sentenced Wing to serve eight years at hard labor, with credit for time served, on each count, with the sentences to be served consecutively. At that point, the state dismissed some other unspecified charges. The court then made a recommendation that Wing "get some addiction treatment either at Steve Hoyle or whatever program the DOC has available for him for drug and/or alcohol addiction."

Wing filed a motion to reconsider the sentences, claiming they were excessive in light of the circumstances of the offense, the failure of the court to adequately consider mitigating factors presented by the defense, and for failing to state adequate grounds for the imposition of the sentences. The court issued a written ruling which denied the motion. According to the court, it announced for the record which aggravating and mitigating circumstances where applicable to the case. The court stated:

Specifically, the Court recited subparagraph B.(1) of Article 894.1 applicable as an aggravating circumstance, and the Court recited subparagraph B.(22) applicable as a mitigating circumstance.

The court noted that the maximum sentence for simple robbery is 12 years at hard labor, and that Wing was ordered to serve only eight years on each count. Wing appealed.

EXCESSIVE SENTENCES

On appeal, Wing argues that the sentences imposed were excessive, both as to their length and the fact that they were ordered to be served consecutively. Wing maintains that, in determining the length of sentence, the trial court was wrong in its recitation of the aggravating circumstance considered. The aggravating circumstance recited by the record, that the offender's conduct during the commission of the offense manifested deliberate cruelty to the victim, is not supported by the record. Wing asserts that the court repeated the error in its denial of the motion to reconsider sentence.

Wing also argues that the trial court erred in ordering the sentences to be served consecutively. He contends that the burglaries were based on the same act or transaction, or were parts of a common scheme or plan. Under such circumstances, the sentences are to be served concurrently, unless the trial court expressly orders that the sentences be served consecutively and articulates reasons why the defendant is a grave risk to public safety warranting such sentences. He notes that, in this case, no such reasons were given. These arguments have merit.

Legal Principles

A reviewing court imposes a two-prong test in determining whether a sentence is excessive. 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 court is not required to list every aggravating or mitigating circumstance so long as the record reflects adequate consideration of the guidelines of the article. State v. Smith , 433 So.2d 688 (La. 1983) ; State v. Boehm , 51,229 (La. App. 2 Cir. 4/5/17), 217 So.3d 596. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence. La. C. Cr. P. art. 894.1(C). The articulation of the factual basis for the sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions; and, where the record clearly shows an adequate factual basis for the sentence, resentencing is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Fontenot , 49,835 (La. App. 2 Cir. 5/27/15), 166 So.3d 1215.

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 the offense, and the likelihood of rehabilitation. State v. Jones , 398 So.2d 1049 (La. 1981) ; State v. Boehm , supra . There is no requirement that specific matters be given any particular weight at sentencing. State v. Boehm , supra .

Second, a sentence violates La. Const. art. I, § 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. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Boehm , supra . 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. 1/15/02), 805 So.2d 166 ; State v. Boehm , supra .

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Boehm , supra .

Regarding concurrent and consecutive sentences, La. C. Cr. P. art. 883 provides:

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. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

Concurrent sentences arising out of a single course of conduct are not mandatory, and consecutive sentences under those circumstances are not necessarily excessive. State v. Mitchell , 37,916 (La. App. 2 Cir. 3/3/04), 869 So.2d 276, writ denied , 2004-0797 (La. 9/24/04), 882 So.2d 1168 ; State v. Burns , 44,937 (La. App. 2 Cir. 2/2/10), 32 So.3d 261. It is within a trial court's discretion to order sentences to run consecutively rather than concurrently. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence of record. State v. Mitchell , supra .

Among the factors to be considered are the defendant's criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, whether the defendant constitutes an unusual risk of danger to the public, the potential for the defendant's rehabilitation, and whether the defendant has received a benefit from a plea bargain. State v. Nelson , 44,762 (La. App. 2 Cir. 10/28/09), 25 So.3d 905 ; State v. Austin , 49,061 (La. App. 2 Cir. 7/16/14), 146 So.3d 716, writ denied , 2014-2323 (La. 9/18/15), 178 So.3d 140. See also State v. Green , 2016-0107 (La. 6/29/17), 225 So.3d 1033, cert. denied , --- U.S. ----, 138 S.Ct. 459, 199 L.Ed.2d 338 (2017). The failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences. State v. Nelson , supra .

Whoever commits the crime of simple burglary shall be fined not more than $2,000, imprisoned with or without hard labor for not more than 12 years, or both. La. R. S. 14:62(B).

Discussion

In this matter, Wing wrote out, in his own hand, a confession to the two burglaries. The physical evidence at the scene corroborated the confession. On appeal, Wing does not question the sufficiency of the evidence against him. He merely complains that the sentences are excessive and are not supported by the record or the trial court's reasons for the sentences imposed.

The record shows that, in imposing the sentences in this matter, the trial court simply failed to take cognizance of the criteria set forth in La. C. Cr. P. art. 894.1, recite factors for the sentences which were supported by the record, and show that consecutive sentences were warranted. While not specifically required to do so, the trial court did not order a presentence investigation ("PSI") report. Although a "rap sheet" is in the record as part of the state's discovery response, it was not admitted into evidence and was never referenced by the court. The trial court did not state for the record that Wing had a prior criminal history or whether it factored into the sentencing decision. The trial court did not consider the likelihood that Wing could be rehabilitated.

The trial court did not recite for the record any important elements of Wing's personal history that were considered in formulating the sentences. Wing was 19 years old when he committed the burglaries of the concession stand. His attempts to open the safe were unsuccessful. He took some drinks and candy and caused property damage. The police report made in connection with the first burglary estimated the total value of property taken or damaged at $105. There was no estimate in the record regarding the amount of damage done to the safe in the second burglary. Wing apparently has some type of an addiction issue, but this was not explained on the record. His confession contains spelling and grammatical errors, but his intelligence level was never discussed.

The trial court purported to specify aggravating and mitigating factors considered in sentencing, but its reasons were not supported by the record. The court stated that Wing's conduct manifested deliberate cruelty to the victim and then found, as a mitigating factor, that no one was present during the burglaries and that Wing's criminal conduct neither caused nor threatened serious harm. These factors are incongruous. It is obvious that the trial court misspoke in enumerating aggravating and mitigating circumstances in this case. In ruling on Wing's motion to reconsider sentence, the trial court did not recognize the error.

In ordering that the sentences were to be served consecutively, it is not clear from the record whether the trial court specifically considered whether the offenses were the same act or transaction or part of a common scheme or plan. While we make no judgment on this issue, if they were part of a common scheme or plan, the trial court is required to specify reasons for ordering the sentences to be served consecutively.

We also make no ruling on whether consecutive hard labor sentences of eight years for each offense were excessive when imposed upon a 19-year-old who burglarized a concession stand, taking drinks and candy and causing some property damage. The record before us is so thin that it precludes any such review. The sparse record made at sentencing does not supply a sufficient factual basis to support the sentences. Due to the paucity of reasons for the sentences imposed, we are constrained to vacate the sentences and remand for resentencing.

CONCLUSION

For the reasons stated above, the convictions of the defendant, Damon Allen Wing, for two counts of simple burglary are affirmed. The sentences are vacated and the matter is remanded for resentencing.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING .

      Wing did not testify at trial.

      Since Wing did not testify at his trial, any evidence pertaining to prior criminal convictions for impeachment purposes is not before us.

      See State v. Green , supra ; State v. Sherer , 437 So.2d 276 (La. 1983) ; State v. Nixon , 51,319 (La. App. 2 Cir. 5/19/17), 222 So.3d 123 ; State v. Simpson , 50,334 (La. App. 2 Cir. 1/13/16), 186 So.3d 195.


author: BROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Timothy Delee SCHEANETTE, Appellant
    No. 51,851-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018
    LOUISIANA APPELLATE PROJECT, By: Douglas L. Harville, Counsel for Appellant
    TIMOTHY DELEE SCHEANETTE, Pro Se
    ROBERT S. TEW, District Attorney, GEARY S. AYCOCK, Assistant District Attorney, Counsel for Appellee
    Before BROWN, PITMAN, and STEPHENS, JJ.
   BROWN, C.J.

Defendant, Timothy Delee Scheanette, was convicted of second degree battery and second degree kidnapping. For the battery, defendant was sentenced to four and one-half years at hard labor and ordered to pay a fine of $2,000 plus court costs, or serve 180 days in default thereof. For the kidnapping, defendant was sentenced to 15 years at hard labor, with all but four and one-half years suspended. The sentences were ordered to be served concurrently. Defendant has appealed. For the reasons set forth below, defendant's convictions and sentences are affirmed.

PROCEDURAL BACKGROUND

Defendant was charged by bill of information with second degree battery and second degree kidnapping that occurred on August 29, 2015, in Monroe, Louisiana. After an extensive on-record discussion, the trial court granted defendant's motion to represent himself. Defendant waived his right to a jury trial and filed notice of his intent to present an intoxication defense. Following a bench trial, on January 23, 2017, the trial judge found defendant guilty as charged on both counts.

Defendant filed numerous post-trial motions, which were either withdrawn or denied at a hearing on April 13, 2017. Thereafter, the trial judge reviewed the pre-sentence investigation report, and sentenced defendant to four and one-half years at hard labor for second degree battery. For second degree kidnapping, defendant was sentenced to 15 years at hard labor, with all but four and one-half years suspended, with the four and one-half years to be served without the benefit of parole. Defendant was thereafter to be placed on supervised probation for five years. The trial judge ordered the sentences to be served concurrently. Further, for second degree battery, the trial judge ordered Scheanette to pay a fine of $2,000 plus court costs, in default of which he was to serve 180 days in jail, with the fine and costs to be paid within two years once he is on probation. The trial court denied defendant's motion to reconsider sentence. This appeal followed, and appellate counsel was appointed.

DISCUSSION

Sufficiency of the Evidence

Defense counsel contends that the evidence was insufficient to prove that defendant was guilty of either second degree battery or second degree kidnapping. As to the battery, defense counsel argues that there was no evidence that defendant intentionally inflicted serious bodily injury on the victim. Noting that defendant struck the victim only once, not repeatedly, defense counsel asserts that there was only evidence of an alleged intent to commit a simple battery. As to the kidnapping, defense counsel claims that there was no evidence that defendant caused physical injury to the victim while he was allegedly kidnapping her. Rather, defense counsel argues that at best, the evidence established that defendant battered the victim, and then kidnapped her after the battery was completed.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 01-1658 (La. 05/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 02/22/06), 922 So.2d 517.

A reviewing court accords great deference to the jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Casaday , 49,679 (La. App. 2 Cir. 02/27/15), 162 So.3d 578, writ denied , 15-0607 (La. 02/05/16), 186 So.3d 1162. The testimony of a victim alone is sufficient to convict a defendant. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. McGill , 50,994 (La. App. 2 Cir. 01/11/17), 213 So.3d 1181.

At trial, the court was presented with the following testimony and evidence. The victim, Courtni McDonald, testified that on August 29, 2015, she was living with defendant at her house, along with their eight-month-old daughter. On that date, there were some men doing work on their house. Ms. McDonald, defendant, and their daughter left the house and went to Fred's Pharmacy Store. When they left the store, defendant was driving and Ms. McDonald and the baby were in the backseat. Defendant had been drinking that day. He had the music on loud, and Ms. McDonald asked him to turn it down. She eventually reached up and turned it off. Ms. McDonald testified that defendant then said that another guy had been flirting with her and "whispering in her ear." Defendant got angry and began driving recklessly. On their way home, defendant stopped at a gas station to buy beer. Ms. McDonald got out of the car with the baby, and asked the store clerk to call the police because defendant was driving erratically. The store clerk would not do so. Defendant got angry when Ms. McDonald refused to ride with him, and he left Ms. McDonald and the baby at the gas station. About 30 minutes later, defendant returned and Ms. McDonald agreed to drive them home.

As Ms. McDonald was driving, defendant was sitting in the passenger seat. Defendant got mad that Ms. McDonald had wanted the store clerk to call the police. Ms. McDonald testified that defendant then punched her in the face, under her right eye, hard enough to split her skin open. Ms. McDonald was bleeding profusely and had to stop the car. She got in the passenger seat and asked defendant to take her to the hospital at least two or three times. Defendant refused to take her to the hospital, stating that he did not want to go to jail, and began driving toward their house. However, when they got close to their house, Ms. McDonald was covered in blood and there were people outside, so defendant kept driving. Ms. McDonald told defendant to take her home, but he refused. He drove around the neighborhood for a little while and then said that they were going to his mother's house, which was close by. As defendant drove past his mother's house, Ms. McDonald asked him where they were going. Defendant said that he was going to take her to the woods and kill her.

Ms. McDonald testified that defendant did not let her out of the car. As they approached a stop sign, Ms. McDonald unbuckled her seat belt and attempted to get out, but defendant turned the corner too fast. When they approached a second stop sign, defendant had to stop for traffic, and Ms. McDonald was able to jump out of the car. She started walking to defendant's mother's house, but defendant passed her and made it to his mother's house before she did. As Ms. McDonald walked up, defendant's mother saw Ms. McDonald's face and said that she was going to call the police. Defendant's mother got the baby out of the car, and everyone went inside the house. Ms. McDonald took the baby to the back of the house, and defendant wrestled his mother to the floor and grabbed the phone from her hand, apparently after she had connected with 911. The altercation continued into the bedroom, where defendant pushed Ms. McDonald onto the bed. When the police arrived, about 30 minutes later, defendant forced Ms. McDonald into the bathroom and demanded that she clean her face and change shirts, in an attempt to hide her injury from them.

Ms. McDonald stated that after she talked to the police, and they took pictures of her injuries, they called an ambulance and she went to the hospital. Ms. McDonald had to get four or five stitches and still has a scar on her face. Ms. McDonald identified the photos of her injury taken right after the incident, showing the blood dripping down her face, and several photos she took the next day, showing the stitches and a large area under her right eye that was bruised and swollen.

Defendant's mother, Connie Scheanette, testified that when defendant and Ms. McDonald arrived at her house, and she saw the blood on Ms. McDonald's face, she grabbed the phone to call the police. Defendant was angry and took the phone away from her, knocked her down, and a struggle ensued. Mrs. Scheanette did not see defendant push Ms. McDonald, but stated that they went into the bedroom. Mrs. Scheanette stated that she could smell alcohol on defendant's breath and noted that he has a drinking problem. A couple of days after defendant's arrest, Ms. McDonald told her that there had been no kidnapping, that she and defendant had been out shopping.

Deputy Steven Daniel May of the Ouachita Parish Sheriff's Office testified that he was dispatched to Connie Scheanette's house on August 29, 2015, at 1:47 p.m. in response to a 911 call hang-up. The homeowner was at the front door. When he went inside the house, defendant and Ms. McDonald were coming out of a back bedroom. Deputy May observed Ms. McDonald's injury and learned that defendant had struck her in the face. Defendant was arrested, and Ms. McDonald was transported to the hospital by ambulance. Deputy May stated that although he could tell that defendant had been drinking, he was not significantly intoxicated; defendant could hold a conversation and did not have any trouble walking. Deputy May took photos of the following: the victim's injury; the car, which showed blood on the console, steering wheel and driver's seat; the beer that was found inside the car; and the inside of the house, which was in disarray.

Second Degree Battery

A battery is the intentional use of force or violence upon the person of another. La. R.S. 14:33. Second degree battery is defined as "a battery when the offender intentionally inflicts serious bodily injury." La. R.S. 14:34.1(A). "Serious bodily injury" is defined as "bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death." La. R.S. 14:34.1(B)(3).

Second degree battery is a specific intent crime and therefore, the evidence must show that the defendant intended to inflict serious bodily injury. State v. Fuller , 414 So.2d 306 (La. 1982) ; State v. Linnear , 44,830 (La. App. 2 Cir. 12/09/09), 26 So.3d 303. Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and a review of this determination is to be guided by the standards of Jackson v. Virginia , supra ; State v. Linnear , supra ; State v. Jackson , 51,575 (La. App. 2 Cir. 09/27/17), 244 So.3d 764, 2017 WL 4273705.

There is no requirement that a victim be hit multiple times to satisfy the elements of second degree battery. State v. Dickerson , 16-1336 (La. App. 1 Cir. 04/12/17), 218 So.3d 633. The Louisiana Supreme Court has firmly rejected the notion that the second degree battery statute envisions an offender who mercilessly beats a fallen victim. State v. Fuller , supra ; State v. Diaz , 612 So.2d 1019 (La. App. 2 Cir. 1993).

As to second degree battery, Ms. McDonald testified that while she was driving, defendant punched her in the face under her right eye. Defendant struck Ms. McDonald hard enough to split her skin open, causing her to bleed profusely. Ms. McDonald had to get four or five stitches, and the area under her eye was bruised and swollen the next day. The injury caused "extreme physical pain" and resulted in a permanent scar on Ms. McDonald's face. The manner in which defendant hit Ms. McDonald, the severity of her injury, and defendant's actions in refusing to take Ms. McDonald to the hospital, together with his statement that he was going to take her to the woods to kill her, all support a finding that defendant intended to inflict serious bodily injury. Although defense counsel asserts that defendant only struck McDonald once, there is no requirement that a victim be hit multiple times to satisfy the elements of second degree battery. See State v. Dickerson , supra. The trial judge reasonably found that defendant intentionally inflicted serious bodily injury on Ms. McDonald.

Second Degree Kidnapping

La. R.S. 14:44.1 defines second degree kidnapping as follows:

(A). Second degree kidnapping is the doing of any of the acts listed in Subsection (B) wherein the victim is:
...
(3) Physically injured or sexually abused;
...
(B). For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

The provisions of this statute apply when any one occurrence mentioned in Subsection (B) combines with any occurrence enumerated in Subsection (A). State v. Pamilton , 43,112 (La. App. 2 Cir. 03/19/08), 979 So.2d 648, writ denied , 08-1381 (La. 02/13/09), 999 So.2d 1145, rehearing denied and opinion modified , 10-0273 (La. 02/04/11), 56 So.3d 986.

Further, as to second degree kidnapping, the evidence was sufficient to prove that defendant forcibly seized and carried Ms. McDonald from one place to another, or imprisoned her, while she was physically injured. After he hit Ms. McDonald in the face and she could no longer drive, defendant refused Ms. McDonald's requests for him to take her to the hospital or home. Defendant continued driving around, passing their house and his mother's home, and told Ms. McDonald that he was going to take her to the woods to kill her. Ms. McDonald had to jump from the moving car to escape from defendant. Thereafter, defendant forced Ms. McDonald into the bathroom at his mother's house and prevented her from exiting until she cleaned her face and changed shirts before speaking to responding officers. Although the injury occurred before the acts constituting the kidnapping, the injury facilitated the forcible seizing and carrying and the imprisonment, and was an integral part of the incident.

Considering the evidence in a light most favorable to the prosecution, the evidence was sufficient for the trial judge to conclude beyond a reasonable doubt that defendant was guilty of second degree battery and second degree kidnapping. This assignment of error is without merit.

Denial of Pro Se Motion in Arrest of Judgment .

Following his bench trial, defendant filed an amended motion in arrest of judgment, arguing that the bill of information was fatally defective as to the charge of second degree kidnapping, as it failed to state which portion of La. R.S. 14:44.1(A) (i.e. that the victim was physically injured) he allegedly violated. The trial court denied the motion, stating that defendant had sufficient notice of the allegations regarding the injury to the victim as the bill also charged him with second degree battery, and he was provided with open-file discovery.

Regarding the charge of second degree kidnapping, the bill of information states that on August 29, 2015, defendant:

DID WILLFULLY, UNLAWFULLY AND INTENTIONALLY FORCIBLY SEIZE AND CARRY COURTNI MCDONALD FROM ONE PLACE TO ANOTHER, OR ENTICE OR PERSUADE COURTNI MCDONALD TO GO FROM ONE PLACE TO ANOTHER OR IMPRISON THIS PERSON OR FORCIBLY SECRET THIS PERSON IN VIOLATION OF R.S. 14:44.1

La. C. Cr. P. art. 859 provides that the court shall arrest the judgment only when the indictment is substantially defective because an essential averment is omitted.

La. Const. art. I, § 13 provides that an accused shall be informed of the nature and cause of the accusation against him. La. C. Cr. P. art. 464 provides that the indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. The bill of information must contain all the elements of the crime intended to be charged in sufficient particularity to allow the defendant to prepare for trial, to enable the court to determine the propriety of the evidence that is submitted upon the trial, to impose the appropriate penalty on a guilty verdict, and to protect the defendant from double jeopardy. State v. Washington , 41,182 (La. App. 2 Cir. 09/01/06), 939 So.2d 557, writs denied , 06-2320, 062468 (La. 05/18/07), 957 So.2d 148, 149.

The time for testing the sufficiency of an indictment or bill of information is before trial by way of a motion to quash or an application for a bill of particulars. State v. Draughn , 05-1825 (La. 01/17/07), 950 So.2d 583, cert. denied , 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). A post-verdict attack on the sufficiency of an indictment should be rejected unless the indictment failed to give fair notice of the offense charged or failed to set forth any identifiable offense. Id. ; State v. Jones , 49,948 (La. App. 2 Cir. 09/30/15), 178 So.3d 1075.

Although defendant filed a motion to quash prior to trial, that motion did not allege that the bill of information failed to state which portion of La. R.S. 14:44.1(A) that he allegedly violated. As such, defendant has arguably waived any claim based on the allegedly defective bill of information. Nevertheless, the record establishes that defendant had full knowledge of the nature of the charges against him. As noted above, the crime of second degree kidnapping required the state to prove one of the acts in Subsection (A) and one of the acts in Subsection (B) of La. R.S. 14:44.1. The bill of information did not specify the particular act under Subsection (A) under which defendant would be tried.

However, the only subsection that could apply in this case was La. R.S. 14:44.1(A)(3), wherein the victim was "physically injured or sexually abused," and defendant was well aware that the state was proceeding under that portion of Subsection (A). Defendant was provided with open-file discovery, and at the preliminary examination, at which defendant was present, the trial judge found that there was probable cause for the second degree kidnapping charge, specifically noting La. R.S. 14:44.1(A)(3), the "physical injury" provision. Further, defendant has not claimed that the omission in the bill of information prejudiced his defense in any way. Therefore, although the bill of information did not allege that the victim was "physically injured," defendant was sufficiently informed of the second degree kidnapping charge against him and was not prejudiced by any defect in the bill of information at trial. This assignment of error is without merit.

Error Patent Review

The trial court imposed an illegally lenient sentence for defendant's second degree kidnapping conviction. La. C. Cr. P. art. 893(A) provides that the court shall not suspend the sentence for certain crimes of violence, including second degree kidnapping.

La. C. Cr. P. art. 882(A) states that an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. This Court's authority to correct an illegally lenient sentence is permissive, not mandatory. In this case, neither the state nor the defense has objected to the sentence imposed by the trial court. Since this Court is not required to take action, the state has not objected to the error, and defendant is not prejudiced by the sentence, this Court declines to correct the illegally lenient sentence. See State v. Weldon , 13-285 (La. App. 3 Cir. 10/23/13), 161 So.3d 18

CONCLUSION

For the foregoing reasons, defendant's convictions and sentences are affirmed.

      The baby was not injured during this incident.

      Deputy Zach Johnson of the Ouachita Parish Sheriff's Office testified as to his limited involvement as the backup officer in this case.


author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Steven D. ROBINSON, Appellant
    No. 51,830-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018
    LOUISIANA APPELLATE PROJECT, By: Sherry Watters, New Orleans, Counsel for Appellant
    STEVEN D. ROBINSON, Pro Se
    JAMES E. STEWART, SR., District Attorney, JASON W. WALTMAN, TRENEISHA J. HILL, REBECCA A. EDWARDS, Assistant District Attorneys, Counsel for Appellee
    Before PITMAN, STONE, and GASKINS (Ad Hoc ), JJ.
   PITMAN, J.

A unanimous jury convicted Defendant Steven D. Robinson of one count of molestation of a juvenile under age 17 and one count of molestation of a juvenile under age 13. The trial court sentenced him to serve 7 years at hard labor for Count One and to serve 50 years at hard labor for Count Two, with the first 25 years imposed without benefit of probation, parole or suspension of sentence. The trial court ordered these sentences to run consecutively. The trial court also ordered that for both counts, Defendant pay court costs and a $250 fine to the Indigent Defender's Office and that these costs and fines run concurrently. Defendant appeals. For the following reasons, we affirm Defendant's convictions and sentences.

FACTS

The state charged Defendant by bill of information with one count of molestation of a juvenile under the age of 17 and one count of molestation of a juvenile under the age of 13, in violation of La. R.S. 14:81.2. As to Count One, the state alleged that on or about October 9, 2015, Defendant molested Y.S., who was under the age of 17. As to Count Two, the state alleged that on or about January 25, 2011, Defendant molested L.A., who was under the age of 13.

On November 16, 2015, Defendant filed a motion requesting a pretrial hearing to determine the admissibility of any La. C.E. art. 404(B) evidence the state intended to introduce at trial.

On June 7 and September 8, 2016, and January 4, 2017, the state provided notice pursuant to La. C.E. art. 412.2 that it intended to use evidence at trial of Defendant's other crimes, wrongs or acts involving sexually assaultive behavior or acts which indicate a lustful disposition toward children. Specifically, the state intended to introduce evidence of molestation of a juvenile, A.F., between June 12, 1982, and June 12, 1984; molestation of a juvenile, T.F., between May 23, 1982, and May 23, 1984; molestation of a juvenile, Y.S., between September 15 and October 10, 2015; and molestation of a juvenile, J.W., between May and August 2001.

The jury trial began on February 6, 2017. Y.S., born July 23, 1999, lives with her grandmother in Shreveport. She testified that when she was 15 years old, she met Defendant at a party thrown by her mother's friend. She stated that she saw Defendant again a few days after the party when he drove his truck on the street near her house. When she rebuffed his efforts to talk to her, he told her that he knew her dad. He also gave her his phone number to call if she ever needed a ride. She testified that a few days later, she missed the bus to school, so she called Defendant and he took her to school. At the end of the school day, Defendant was waiting at the school, with his four-year-old daughter, and offered her a ride home. She stated that instead of taking her home to her grandmother's house, Defendant took her to his apartment, and she reluctantly went inside. After Defendant prepared food for his daughter, he offered to show Y.S. around the apartment. They went upstairs to his bedroom, and he shut the door to the room, placed her cellphone on the dresser and asked her to sit on his bed. He sat by her on the bed and touched her leg and breasts. She stated that she pushed his hand and told him to stop. He then began undoing his clothing and then held her arm so he could remove her pants and underwear. She stated that he got on top of her and she tried to push him off, but could not do so because he was stronger than her. She testified that he then had sex with her. She noted that she was scared and told him to stop. He then went into the bathroom and she went outside. He told her not to make a scene and get him into trouble. She then got in his truck with him and his daughter, and he drove her home. She did not tell her grandmother what happened.

Y.S. testified that a few weeks later, she called Defendant and asked for a ride home. She noted that she asked other people for a ride first, but they were unable to help her, and she needed to be home before her curfew. Defendant picked her up in his truck, but instead of taking her to her home, he parked the truck in front of an abandoned house. He got out of the truck, unzipped his pants, reentered the truck and locked the doors. She tried to exit the truck so she could walk home, but she could not open the door. He scooted over near her, started rubbing and touching her and tried to kiss her. She told him to stop, and he told her to be quiet. He pressed up against her so she could not move, pulled down her pants and underwear, got on top of her and had sex with her. She stated that after he drove her home, she did not tell her grandmother what happened because she was scared. She explained that she saw guns in Defendant's truck and apartment, and Defendant told her he would kill her if she said anything.

Y.S. further testified that she last saw Defendant when she called him and asked for a ride home from a party the night before she was to leave to attend the Youth Challenge Program ("YCP") in South Louisiana. Her grandmother told her the police would come get her if she was not home by her curfew. She asked several people for a ride home, but no one would help her, so she called Defendant. He picked her up; but instead of driving her home, he drove her to the parking lot of an apartment complex and told her that he was waiting on a friend. He started touching her and rubbing her leg and chest and tried to kiss her. He got out of the truck and undid his clothing and then got back in the truck. She told him, "I know you're not fixing to do that again," and he responded that he was not going to do anything to her. She tried to exit the truck, but the door would not open. Defendant held her down, removed her pants and underwear and had sex with her. He then drove her to her grandmother's house. She explained that she was crying and upset when she got home, and her grandmother asked her what was wrong. She admitted that she lied and told her grandmother she did not want to go to YCP the next day.

Y.S. also testified that she saw Defendant additional times between these three instances, but nothing happened those times. She noted that Defendant would see her walking to the park or to her grandmother's house and would follow her. One time he came to her grandmother's house, and her grandmother told him not to pick up Y.S. or take her anywhere. Y.S. noted that she turned 16 between the first and last times Defendant raped her.

Y.S. further testified that she told someone what happened with Defendant when she attended YCP. She believed she could tell someone there because the program was "far away" from Shreveport. She stated that she told one of the instructors at the program, and then she went to the hospital and talked to law enforcement. She remained at the program for three weeks, and then she spoke with a detective in Shreveport when she returned.

Corporal Randy Clouatre of the Gonzales Police Department testified that he was dispatched to St. Elizabeth Hospital in Gonzales on October 12, 2015, to speak with Y.S. Y.S. told him that the Friday before attending YCP, she was raped by Defendant. Y.S. told her that since June 2015, Defendant had raped her ten or more times. Cpl. Clouatre noted that they were not able to collect any physical evidence from Y.S., including a sexual assault kit, because she had used the bathroom and showered multiple times since the most recent incident. Cpl. Clouatre explained that once he determined that these incidents occurred in Shreveport, he called the Shreveport Police Department.

B.S., Y.S.'s grandmother, testified that she saw Defendant once when he brought Y.S. home from school. B.S. told him not to take Y.S. anywhere without her permission. She stated that the night before Y.S. left for YCP, she came home crying and said she did not want to attend YCP. While she was attending YCP, Y.S. called B.S. and told her what Defendant had done.

Detective De'Andre Belle testified that he received a report from the Gonzales Police Department that a 16-year-old female had been sexually assaulted multiple times by Defendant. Det. Belle researched Defendant's name and discovered several reports from women accusing him of sexual assault. He interviewed Y.S. on November 2, 2015, at her grandmother's house; and during this interview, Y.S. called Defendant and he arrived at the interview ten minutes later. Det. Belle explained that he did not arrest Defendant for sexual assault, but took him into custody because he did not have a driver's license. After interviewing Y.S., he contacted other women who had previously accused Defendant of assaults, including L.A. and A.F. A.F. provided him with the name of her older sister, T.F., who had also been molested by Defendant. He stated that after Defendant's arrest was reported on the news, he was contacted by J.W., who also reported being assaulted by Defendant.

L.A., born on April 19, 1998, testified that in 2010, when she was 12 years old, she and her younger sisters visited her grandmother's house every day after school. Her grandmother lived across the street from Defendant's father, who is L.A.'s uncle. She stated that sometimes when she and her sisters visited their uncle, Defendant would be at his house. During one visit, Defendant told L.A. that he wanted to show her something in a bedroom. He came up behind her, kissed her neck and touched her genitals through the outside of her clothing. He stopped touching her when they heard someone in the hallway. L.A. and her sisters then left their uncle's home. Twenty minutes later, Defendant appeared at L.A.'s grandmother's house with candy and chips for L.A. and her sisters and told L.A. to let him know if she needed anything. L.A. reported the incident to her school counselor, who called L.A.'s mother. L.A. stated that the police came and made a report.

S.G., L.A.'s mother and Defendant's cousin, testified that Defendant called her, mentioned the police looking for him and asked if it had to do with him hugging and kissing L.A.

Detective Jeff Allday of the Shreveport Police Department testified that in January 2011, he was assigned to the case involving L.A. He stated that he interviewed L.A., and she advised him that she was sexually assaulted by Defendant. He spoke with Defendant in March 2011, but did not arrest him because there was not enough probable cause, stating that other than L.A.'s statement, there was no evidence to corroborate that the incident occurred.

A.F., who was born in 1972, testified that she grew up living with her mother and eight of her half-siblings. Her mother was not home often, so the oldest sisters took care of the younger siblings. She and her sisters slept in one room, and her brothers slept in another room. She testified that Defendant came into the girls' room and touched A.F.'s genitals over the top of her clothing and then touched her sister. If they locked the door to their room, Defendant would pick the lock. After her mother passed away in 2013, A.F. reported Defendant's actions to law enforcement.

T.F. testified that she first met Defendant in 1983 when she was 15 years old. She explained that Defendant is her older half-brother and they came into contact when she moved in with their mother and other siblings after living with her grandmother. Some nights she was awoken by Defendant touching her genitals, and this continued for a year and a half. She reported his actions to her mother, but never contacted law enforcement. She testified that in November 2015, she was contacted by law enforcement and asked if she knew Defendant.

J.W., born February 13, 1987, testified that she met Defendant in the summer of 2001 when she was 14 years old and he was 35 years old. They lived across the street from each other and she visited his house several times a week during that summer. They would talk, watch television and have sex. She did not tell anyone about the relationship until 2016 when she saw Defendant's arrest on the news. J.W. noted that she sought counseling and then reported Defendant's actions to Det. Belle.

After the state rested, Defendant testified on his own behalf. He stated that his date of birth is November 3, 1964. He completed the 12th grade and had three prior felony convictions for theft, simple burglary and second degree battery. He also stated that he has cancer on his vocal cords. He corroborated Y.S.'s testimony about how they met, that he gave her his phone number and that he gave her a ride to her grandmother's house about three times. He also corroborated B.S.'s testimony that she told him not to give Y.S. rides without her permission. He denied having any type of sexual contact with Y.S. or that Y.S. ever went to his apartment. He corroborated L.A.'s testimony that he was present at his father's house at times L.A. was visiting, but denied assaulting or inappropriately touching her He corroborated testimony by A.F. and T.F. that they lived in the same house and that he went into their bedroom, but denied inappropriately touching them. He corroborated J.W.'s testimony about how they met and that she spent time at his house, but denied having any interactions with her or doing anything improper with her. He stated that he does not carry a gun and does not have a gun in his house or vehicle.

On February 7, 2017, a unanimous jury found Defendant guilty as charged of both counts.

On February 10, 2017, Defendant filed a motion for post-verdict judgment of acquittal. He argued that the state failed to prove beyond a reasonable doubt that he was guilty of the crimes for which he was convicted, failed to exclude every reasonable hypothesis of innocence and failed to prove every element of each offense.

A hearing was held on March 3, 2017. The trial court denied Defendant's motion and determined that the state proved beyond a reasonable doubt that Defendant committed two acts of molestation and that the evidence was sufficient to convict him. Defendant waived the 24-hour sentencing delay, and the trial court proceeded with sentencing. As to Count One, molestation of Y.S., a juvenile under the age of 17, it sentenced Defendant to serve 7 years at hard labor. As to Count Two, molestation of L.A., a juvenile under the age of 13, it sentenced Defendant to serve 50 years at hard labor, with the first 25 years imposed without benefit of probation, parole or suspension of sentence. It ordered that these sentences run consecutively to one another. It also ordered that for both counts, Defendant shall pay court costs and a $250 fine to the Indigent Defender's Office and that these costs and fines run concurrently.

On March 9, 2017, Defendant filed a motion to reconsider and vacate unconstitutionally excessive sentence. On March 15, 2017, the trial court denied Defendant's motion.

Defendant appeals.

DISCUSSION

Sufficiency of the Evidence

Defendant argues that the state failed to prove both counts of molestation of a juvenile beyond a reasonable doubt. Specifically, he contends that the state failed to prove that the juveniles were under his control or supervision or that he used force, threats, violence or intimidation. He also argues that the actions alleged by L.A. do not constitute lewd and lascivious acts.

The state argues that the evidence was sufficient to support both convictions. Regarding Count One, Y.S.'s testimony showed that Defendant committed lewd and lascivious acts with the use of force and/or influence by a position of control in that he forced sexual intercourse on her three times. Regarding Count Two, L.A.'s testimony showed that Defendant committed lewd and lascivious acts with the use of force and/or influence by a position of control in that he, at age 46, held her, at age 12, from behind, kissed her neck and touched her genitals through her clothing.

It emphasizes that these actions were lewd and lascivious and notes that the victim's testimony alone can suffice to convict a defendant in a sexual assault case. It further argues that the testimonial evidence from Y.S. and L.A., as well as from A.F., T.F. and J.W., was sufficient that a rational trier of fact could find Defendant guilty on both counts.

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. State v. Hearold , 603 So.2d 731 (La. 1992). 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 accordance with Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. State v. Hearold , supra. When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta because those issues are moot. Id. On the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. Id.

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 beyond a reasonable doubt. Jackson v. Virginia , supra ; State v. Hearold , supra. See also La. C. Cr. P. art. 821. This standard does not provide an appellate court with a vehicle for substituting its appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Robertson , 96-1048 (La. 10/4/96), 680 So.2d 1165.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen , 36,180 (La. App. 2 Cir. 9/18/02), 828 So.2d 622, writ denied , 02-2595 (La. 3/28/03), 840 So.2d 566, and writ denied , 02-2997 (La. 6/27/03), 847 So.2d 1255, and cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness-if believed by the trier of fact-is sufficient to support for a requisite factual conclusion. State v. Watson , 32,203 (La. App. 2 Cir. 8/18/99), 743 So.2d 239, writ denied , 99-3014 (La. 3/31/00), 759 So.2d 69. Such testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by the defendant. Id. This is equally applicable to the testimony of a sexual assault victim. Id.

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

The appellate court does not assess credibility or reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam , 36,118 (La. App. 2 Cir. 8/30/02), 827 So.2d 508.

Defendant was convicted of violating La. R.S. 14:81.2, which defines molestation of a juvenile as follows:

Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age shall not be a defense.

The meaning of the phrase "influence by virtue of a position of control or supervision" is not restricted in its application to persons to whom the parent entrusts the child for care, usually for a fee, such as babysitters, child care workers or teachers. State v. Dale , 50,195 (La. App. 2 Cir. 11/18/15), 180 So.3d 528, writ denied , 15-2291 (La. 4/4/16), 190 So.3d 1203. Rather, the statute permits finding evidence of supervision or control by noncustodial parents, relatives, friends and neighbors of young victims. Id.

Viewing the evidence in the light most favorable to the prosecution, the state presented sufficient evidence at trial for a reasonable jury to convict Defendant of the molestation of Y.S. and the molestation of L.A. The testimonies of Y.S. and L.A. alone are sufficient to support these convictions. The jury rendered a unanimous verdict as to each count, thus indicating that the jurors found the victims' testimonies more credible than Defendant's testimony.

Regarding Count One, when the molestation occurred on or about October 9, 2015, Y.S., born July 23, 1999, was 16 years old, and Defendant, born November 3, 1964, was 50 years old, i.e., more than two years older than the victim at the time the offense occurred. Y.S. testified that when she was 15 and 16 years old, Defendant raped her on three separate occasions. Each time, she had called Defendant and asked for a ride home out of necessity when no one else was available or willing to help her. Instead of driving Y.S. home, Defendant took her to another location, including his apartment and a parking lot. Each time, he touched and rubbed her legs and breasts, held her so that she could not move, removed her pants and underwear and forced sexual intercourse on her. Y.S. did not report Defendant's actions until she was "far away" from Shreveport attending YCP in South Louisiana. She explained that she was afraid to tell anyone because Defendant had told her he would kill her if she said anything, and she had seen guns in his truck and apartment. She also noted that after the first time he raped her, he told her not to get him in trouble.

A rational trier of fact could find that Defendant touching and rubbing Y.S.'s legs and breasts and forcing sexual intercourse on Y.S. were lewd and lascivious acts. The evidence presented at trial also demonstrates that Defendant committed the molestation of Y.S. by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm or by the use of influence by virtue of a position of control or supervision over Y.S. By holding her down, removing her clothing and having sexual intercourse with her despite her pleas that he stop, Defendant clearly committed this molestation by the use of force. By offering his phone number and availability to give her a ride, Defendant held himself out as someone she could turn to for help. He then exerted control over Y.S., a teenager in need of a ride home, in order to molest her.

Regarding Count Two, when the molestation occurred on or about January 25, 2011, L.A., born April 19, 1998, was 12 years old, and Defendant was 46 years old, i.e., more than two years older than the victim at the time the offense occurred. L.A. testified that Defendant lured her into a bedroom at his father's house, came up behind her, kissed her neck and touched her body, including her genitals, through the outside of her clothing.

A rational trier of fact could find that Defendant kissing L.A. and touching her genitals were lewd and lascivious acts. The evidence presented at trial also demonstrates that Defendant committed the molestation of L.A. by the use of influence by virtue of a position of control or supervision over L.A. Defendant, an older family member in a position of trust, exerted control over a young family member visiting her uncle when he lured her into a bedroom in order to molest her.

Accordingly, this assignment of error lacks merit.

Other Crimes Evidence

Defendant argues that the trial court erred in allowing evidence of other bad acts and other crimes that was not similar to the charged offenses and had no legitimate purpose. He contends that the prejudicial effect of the evidence outweighed what little probative value it may have had. He argues that the testimonies of A.F., T.F. and J.W. were not relevant because the alleged experiences of these women occurred in different settings and circumstances than those alleged by L.A. and Y.S. He contends that the acts A.F. and T.F. alleged occurred at the family home and do not prove that he had the opportunity, preparation or plan to commit molestation of teenage girls outside of the home 30 years later. He notes that the alleged relationship with J.W. occurred 14 years before the alleged molestations of Y.S. and L.A. He argues that the trial court erred in denying his motion in limine to exclude this evidence.

The state argues that it presented notice that this evidence would be introduced at trial. It notes that neither the minutes nor the record shows that Defendant filed a motion in limine to exclude the La. C.E. art. 412.2 evidence or made any contemporaneous objection to its admissibility at trial. Therefore, it contends that this assignment of error is not properly before this court for review and should be denied. Alternatively, it argues that the argument is without merit because these prior sexual acts by Defendant were relevant to showing his lustful disposition toward children.

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841.

La. C.E. art. 404(B)(1) provides that evidence of other crimes, wrongs or acts is generally not admissible. La. C.E. art. 412.2 creates an exception to this rule and governs the admission of evidence of similar crimes, wrongs or acts in sex offense cases. State v. Johnson , 50,005 (La. App. 2 Cir. 8/12/15), 175 So.3d 442, writ denied , 15-1687 (La. 9/16/16), 206 So.3d 203. La. C.E. art. 412.2 states:

A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children 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.
B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.
C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule.

The balancing test set forth in La. C.E. art. 403 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.

Thus, other crimes, wrongs or acts involving sexually assaultive behavior or which indicate a lustful disposition toward children may be admissible under La. C.E. art. 412.2 if their probative value substantially outweighs the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay or waste of time. State v. Johnson , supra. A trial court's ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. Id.

As noted by the state, Defendant did not preserve this matter for review on appeal. He did not make any pretrial objections, file any motions to exclude this evidence or raise any contemporaneous objections at trial. Although Defendant argues that he filed a motion in limine to exclude this evidence, his assertion is mistaken. The motion in limine filed by Defendant on November 16, 2015, sought to prohibit improper opening statements.

Nevertheless, this claim is without merit. Pursuant to La. C.E. art. 412.2, the testimonies of A.F., T.F. and J.W. were properly introduced into evidence in order to indicate Defendant's lustful disposition toward children. Defendant's half-sisters A.F. and T.F. testified that when they were 11 and 15 years old, respectively, Defendant, who was approximately 19 years old, touched their genitals as they slept in their bedroom. These actions are similar to his molestation of L.A., a 12-year-old cousin whose genitals he touched while in a bedroom of a family home. J.W. testified that when she was 14 years old, she and Defendant, who was 35 years old, spent time together at his house watching television and having sexual intercourse. Defendant's interactions with J.W. are similar to those with Y.S. In both cases, he sought out teenage girls, more than 20 years his junior, to engage in sexual intercourse.

This evidence did not unfairly prejudice Defendant, confuse the issues or mislead the jury. The trial court clearly instructed the jury of the limited purpose for which these other acts could be considered. It did not abuse its discretion in allowing this evidence to be admitted at trial.

Accordingly, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the convictions and sentences of Defendant Steven D. Robinson.

AFFIRMED.

      To protect the privacy of the victims, the victims and their family members will be referred to by their initials, pursuant to La. R.S. 46:1844(W).

      La. R.S. 14:81.2 was amended by 2011 La. Acts 67, § 1, effective August 15, 2011. Accordingly, as to Count Two, which was alleged to have occurred in January 2011, Defendant was charged with the version of the statute in effect at the time the crime was committed. The definition of molestation of a juvenile was not amended.