State of Louisiana v. Edward R. Budd

STATE OF LOUISIANA * NO. 2023-KA-0594

VERSUS *
COURT OF APPEAL
EDWARD R. BUDD *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 553-085, SECTION “A”
Honorable Simone A. Levine1
******
Judge Dale N. Atkins
******
(Court composed of Chief Judge Terri F. Love, Judge Roland L. Belsome, Judge
Dale N. Atkins)

Edward R. Budd #776604
Dixon Correctional Center
P. O. Box 788
Jackson, LA 70748

APPELLANT

Mary Constance Hanes
LOUISIANA APPELLATE PROJECT
1538 Short Street
New Orleans, LA 70118

COUNSEL FOR APPELLANT, Edward R. Budd

Jason R. Williams, District Attorney
Brad Scott, Chief of Appeals
Zachary M. Phillips, Assistant District Attorney
ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE
619 S. White Street
New Orleans, LA 70119

COUNSEL FOR APPELLEE, State of Louisiana

1 We note that the presiding and sentencing judge was the Honorable Laurie

A. White.

SENTENCE VACATED; REMANDED FOR
RESENTENCING
JULY 26, 2024

DNA

TFL

RLB

This is a criminal matter. Appellant, Edward R. Budd (“Mr. Budd”), appeals

the sentence he received for his conviction of sexual battery, a violation of La R.S.

14:43.1(A)(1). On appeal, Mr. Budd argues that his sentence is unconstitutionally

excessive. Mr. Budd’s appeal also asks this court to resolve the discrepancy

between the trial transcript, in which the district court judge announced the verdict

as guilty of sexual battery, and the minute entry, which reflects that he was

convicted of third-degree rape. For the reasons that follow, we vacate Mr. Budd’s

sentence, and we remand for resentencing in accordance with La. R.S.

14:43.1(C)(1). We further remand for the purpose of correcting the minute and

docket master entries, as well as the sentencing commitment order, to reflect that

Mr. Budd was convicted of sexual battery, a violation of La. R.S. 14:43.1(A)(1).

In all other respects, Mr. Budd’s conviction is affirmed.

STATEMENT OF THE CASE

On January 10, 2022, the State of Louisiana (“State”) charged Mr. Budd, by

bill of information in Case Number 553-085 with the May 14, 2021 third-degree

rape of C.K.,2 a felony in violation of La. R.S. 14:43 (“C.K. Case”). At that time, a

2 Because of the nature of the crimes alleged herein, this Opinion will refer

to all of the alleged sex offense victims by their initials to protect their identities.
1

charge of first-degree rape of a different victim, H.W., a violation of La. R.S. 1442,

was pending against Mr. Budd and his co-defendant Echo Hurlburt (“Mr.

Hurlburt”) in a different case, Case Number 547-278, in section “A” of Orleans

Parish Criminal District Court (“H.W. Case”). Because of the pending H.W. Case,

the district court transferred the C.K. Case to Section “A.” On March 7, 2022, Mr.

Budd entered a plea of not guilty in the C.K. Case.

On April 1, 2022, in the C.K. Case, the State filed a “Notice to Introduce

Evidence of . . . Sexually Assaultive Behavior Pursuant to La. C.E. art. 412.2”

(“First Notice”).3 In this First Notice, the State sought to introduce evidence of Mr.

Budd’s alleged aggravated rape of H.W. in 2019. The district court “granted” the

State’s First Notice and announced that the C.K. Case and the H.W. Case would be

tried together.

On May 16, 2022, defense counsel filed a waiver of the constitutional right

to a jury trial. The State filed an opposition arguing that the waiver was untimely;

but the State subsequently withdrew its opposition on May 26, 2022. Then, on May

28, 2022, Mr. Budd waived his right to a trial by jury and signed a written waiver

of rights, after which the district court granted a judge trial.

See La. R.S. 46:1844(W)(1)(a) (providing that “[i]n order to protect the identity
and provide for the safety and welfare of . . . victims of sex offenses . . . all public
officials and officers and public agencies, including but not limited to . . . judicial
officers, . . . shall not publicly disclose the name, address, contact information, or
identity of . . . victims of sex offenses . . . .”). See also State v. McDonough, 2022-
0628, p. 1 (La. App. 4 Cir. 10/27/23), 376 So.3d 1003, 1009 n.1 (quoting La. R.S.
46:1844(W)(1)(a)).
3 Louisiana Code of Evidence Article 412.2 is titled “Evidence of similar

crimes, wrongs, or acts in sex offense cases.” It states that “[w]hen an accused is
charged with a crime involving sexually assaultive behavior,” then “evidence of
the accused’s commission of another crime, wrong, or act involving sexually
assaultive behavior . . . may be admissible and may be considered for its bearing
on any matter to which it is relevant subject to” a balancing test provided in La.
C.E. art. 403.
2

Thereafter, on September 29, 2022, the State filed another “Notice of Intent

to Introduce Evidence of Sexually Assaultive Behavior Pursuant to La. C.E. art.

412.2” (“Second Notice”). Therein, the State sought to introduce evidence of three

prior sexual offenses allegedly committed by Mr. Budd against L.W., A.M., and a

fellow student when he was in high school. The district court held a hearing on the

State’s Second Notice on October 5, 2022, and denied the State’s Second Notice.

The State filed a writ application with this Court concerning the district court’s

denial of its Second Notice, but this Court denied the State’s writ application.4 The

State did not seek review with the Louisiana Supreme Court.

On October 11, 2022, the State amended its Second Notice so that it

contained only the alleged prior sexual offense committed by Mr. Budd against

L.W. (“Amended Second Notice”).5 In response, Mr. Budd’s defense counsel

informed the district court that the State showed him the Amended Second Notice,

which had more specific details thereby enabling the defense to investigate for trial

preparation. Further, defense counsel stated that the Amended Second Notice

complied with the requirements of La. C.E. art. 412.2. Without any objection from

defense counsel, the district court “granted” the State’s Amended Second Notice.

On November 2, 2022, the case proceeded to a bench trial. The district court

found Mr. Budd not guilty of the first-degree rape of H.W. As to C.K., the district

court found Mr. Budd guilty of a lesser charge, sexual battery. However, the

4 State of Louisiana v. Edward Budd, 2022-K-0661 (La. App. 4 Cir.
10/7/22).
5 That is, the State no longer sought to introduce evidence of the prior sexual

offenses allegedly committed by Mr. Budd against A.M. and a fellow student when
he was in high school.
3

docket master and minute entry indicate the district court found Mr. Budd guilty of

third-degree rape of C.K.

Mr. Budd appeared for sentencing on December 1, 2022, and on the same

day filed a motion for new trial, which the district court denied. Mr. Budd waived

all delays, and the district court sentenced him to ten years’ imprisonment at hard

labor with two years suspended and to be served concurrently with any other

sentences. The district court also sentenced Mr. Budd to five years of active

probation following his release and ordered that he participate in psychiatric

counseling. Finally, the district court ordered Mr. Budd to register as a sex

offender for fifteen years.

On December 7, 2022, Mr. Budd filed a motion to reconsider sentence,

which the district court denied. Mr. Budd filed a motion for appeal on January 21,

2023, which the district court granted on the same day. His timely appeal to this

Court followed.

STATEMENT OF FACTS

Trial

As previously noted, the State charged Mr. Budd by bill of information with

the third-degree rape of C.K. and the first-degree rape of H.W. Mr. Budd waived

his right to a jury trial, and on November 2, 2022, the case proceeded to a three-

day bench trial.6

6 Because the H.W. Case is not at issue in this appeal, the majority of the

facts and testimony involving the charge related to H.W. will not be recounted
herein, except for information as it relates to the admission of evidence for other
sexually assaultive behavior per the State’s First Notice.
4

Heidi Martin’s Testimony

The State commenced the trial by presenting the testimony of its expert

witness, Heidi Martin (“Ms. Martin”). Ms. Martin testified that she was a Sexual

Assault Nurse Examiner (“SANE”) Coordinator at University Medical Center

where she oversaw the training of nurses. Ms. Martin also testified that she is a

registered nurse and has a Bachelor of Science degree in nursing. Additionally, Ms.

Martin reported that she started training as a forensic nurse in 2017 and is SANE

certified for the International Association of Forensic Nurses (“IAFN”). The State

offered her curriculum vitae and the district court admitted her as an expert in

sexual assault, sexual assault forensic examination, and trauma.

Ms. Martin testified that, based on her experience, not all victims of sexual

assault report their assault to the police immediately due to fear and shame, such

that some victims engage in delayed reporting. When asked whether she would

expect to find physical injuries even in those victims who do report their assault

and go to the hospital to receive a sexual assault exam, Ms. Martin responded that

in most cases of sexual assault there are no physical injuries. Rather, according to

Ms. Martin, “[v]aginal soreness and tenderness tends to be a very common

finding” because a lack of “proper lubrication . . . causes abrasion or micro tears to

the area and can be painful.” In addition to vaginal soreness, Ms. Martin testified

that sexual assault victims often experience pain during urination from the

abrasions and tears, as well as swelling, which usually lasts a few days.

Additionally, Ms. Martin testified that sexual assault victims exhibit

emotional symptoms in a variety of ways, including being visibly distraught or

having a flat affect and exhibiting “little expression of emotion.” Ms. Martin also

offered testimony concerning a phenomenon known as “tonic immobility” which
5

refers to victims freezing in traumatic situations as a survival mechanism, rather

than engaging in a “fight or flight” response. She also described that people have

fragmented or non-linear memories because the brain does not code memories

normally when someone has gone through a traumatic experience like sexual

assault. Further, Ms. Martin stated that “[m]ore often than not [a woman is

sexually assaulted by] someone that she knows, a friend, or an acquaintance.”

L.W.’s Testimony

L.W., the State’s second witness, testified pursuant to La. C.E. art. 412.2.

and began her testimony by explaining that she was the cousin of Mr. Budd’s wife,

Rebecca Gustafson (“Ms. Gustafson”), whom she referred to as “Becky.”7

According to L.W., Becky was three years older than she, and they were very

close. She stated that Becky married Mr. Budd in March 2011.

L.W. explained that in July 2011, she visited Becky and Mr. Budd for an

overnight stay at their home. On the evening of her stay, according to L.W., she

and Becky were drinking wine, which Mr. Budd served to them after pouring the

drinks from a bottle located in the kitchen. L.W. stated that after Becky drank a

second glass of wine, Becky suddenly fell asleep on the couch. L.W. testified that

she had been out drinking with Becky many times and had never witnessed Becky

“just fall out like that.” However, L.W. noted that before Mr. Budd carried Becky

to the bedroom, he told her that it was normal for Becky.

L.W. further testified she believed that the night was over at that point until

Mr. Budd offered her another glass of wine while they watched a documentary.

Thereafter, according to L.W., she finished the wine and suddenly “felt funny” and

7 This Opinion will refer to Ms. Gustafson as “Becky” in the summary of

L.W.’s testimony.
6

“pretty . . . woozy all of a sudden,” at which point she stood up while Mr. Budd

came close to her and whispered in her ear how much he liked the song that was

playing. L.W. stated that she subsequently sat down and her memory started fading

in and out in flashes.

L.W. then recalled that her next memory was laying on the sofa pushing Mr.

Budd off of her, but then the next moment she remembered was being upstairs in

the guest bedroom. She further recalled that the first sensation she registered in the

bedroom was “a heavy weight on top of [her],” at which point she realized that her

shorts were off and that Mr. Budd was penetrating her. L.W. testified that her

“brain was saying like to get out of this situation, but her body could [not] do what

her brain was telling her to do.” She stated that she was physically incapable of

removing herself from the situation but said “no” and tried to roll out from

underneath Mr. Budd, though she was unsuccessful in getting away from him.

L.W. also stated that she kept thinking about Becky and not wanting to hurt her,

and L.W. testified that she said “Becky,” to which Mr. Budd responded by telling

her that Becky was not going to wake up. L.W. further testified Mr. Budd became

increasingly rough and, ultimately, the bed broke. According to L.W., after the bed

broke, her next vivid memory was of being on the floor, nauseated and vomiting,

with Mr. Budd penetrating her anally.

L.W. testified that when she woke up the next morning, she found semen on

herself and discovered that she was bleeding vaginally and rectally. L.W.

explained that she showered because she had to go to work; but L.W. recalled

experiencing a stinging, painful sensation during her shower. Then L.W. testified

that when she began to dress for work, she noticed bruises on her thighs and neck

and realized her genitals were swollen and painful.
7

L.W. further testified that she did not report her sexual assault to anyone

until September 2011 when she told her friend Lindsay and eventually told Becky

after a therapist encouraged her to do so. Additionally, L.W. testified that she told

Becky that Mr. Budd had put something in her drink because they had not

consumed a lot of alcohol and she “had never felt that way after drinking.”

Ms. Gustafson’s Testimony

Ms. Gustafson, Mr. Budd’s ex-wife, testified that she was married to Mr.

Budd from 2011 to 2013. She recalled the night in July 2011 that her cousin, L.W.,

came over to stay. That night, according to Ms. Gustafson, she, L.W., and Mr.

Budd were all drinking wine, which Mr. Budd poured in the kitchen and brought to

her and L.W. in the den. She said she recalled going to sleep before everyone but

that she did not remember because “like [she] just went out.” Per Ms. Gustafson,

when she started to change the sheets on the guest bed the next morning, she

noticed that the front leg of the bed was newly broken. Ms. Gustafson also stated

that L.W. took a shower that morning, which she found “weird” because she and

L.W. grew up together and she knew L.W. always took a bath at night before bed.

Ms. Gustafson stated that she mentioned this to Mr. Budd, but he did not have a

response. Ms. Gustafson testified that in August 2019, she visited L.W.,

whereupon L.W. told her what had happened in July 2011 and was “[v]ery sad,

crying, very just disturbed and bothered.” On cross-examination, Ms. Gustafson

testified that L.W. never returned to the house after July 2011.

Lindsay Stoltz’s Testimony

Lindsay Stoltz (“Ms. Stoltz”) testified that she has been best friends with

L.W. since third grade. According to Ms. Stoltz, on September 10, 2011, she and

8

L.W. were sitting outside a café in New Orleans when L.W. told her she had been

raped by Mr. Budd and that Mr. Budd was still trying to contact her.

During trial, while Ms. Stoltz was testifying, Mr. Budd’s counsel objected to

her testimony on the basis of relevance and hearsay, whereupon the following

colloquy occurred:

[COUNSEL FOR MR. BUDD]:
Your Honor, [I am] going to object to the relevance and the
hearsay.

[COUNSEL FOR THE STATE]:
Your Honor, the State does have a burden. While it is not
beyond a reasonable doubt –

THE COURT:
For a 412?

[COUNSEL FOR THE] STATE:
Yes, we do have to put on evidence of what happened. We put
on the victim, and we have here the first person that she told.

THE COURT:
And how is hearsay of a 412 victim admissible when the 412
issue is not the trial?

[COUNSEL FOR THE STATE]:
Because I believe we still have a burden to show –

THE COURT:
I [do not] think this is admissible on this because . . . I think [it
is] hearsay.

[COUNSEL FOR MR. BUDD]:

[A]llowing . . . the testimony of a victim of another crime is an
exception, and I would argue that it does [not] extend to
everything that goes into hearsay exceptions as it pertains to
those additional uncharged crimes.

....

[COUNSEL FOR MR. BUDD]:

I think, your Honor, this is the only 412 first reporter.

9

....

THE COURT:
No. [I have] already heard the testimony from a gentleman
about a week ago that was [not] first report.

[COUNSEL FOR THE STATE]:
[That is] a different count.

....

THE COURT:
But I realize that we have multiple counts here so I know what
your case is going to be. Give me some case law on this. Finish
with this witness, but I [am] not going to hear hearsay over and
over.

Ms. Stoltz continued her testimony, and defense counsel did not move for a

mistrial at this time.

Sergeant Patrick Kennelly

The first day of trial ended with the testimony of Sergeant Patrick Kennelly

(“Sgt. Kennelly”). Sgt. Kennelly testified that he presently served as the

supervising sergeant for the New Orleans Police Department (“NOPD”) Sex

Crimes Unit. Sgt. Kennelly reported that his investigation of Mr. Budd began after

the Sex Crimes Unit received a call from the Sexual Trauma Advocate and

Response (“STAR”) advocate, who needed assistance taking a statement from a

sexual assault victim, C.K. According to Sgt. Kennelly, C.K.’s alleged assault had

occurred approximately two weeks prior, so the Sex Crimes Unit took C.K. to the

hospital where she was interviewed. During Sgt. Kennelly’s testimony, the State

showed a video, which Sgt. Kennelly identified as C.K.’s statement, and the State

offered and introduced it into evidence. Sgt. Kennelly testified that during C.K.’s

10

interview, at which he was present, C.K. was able to describe her assault and

provide the name of the assailant, “Eddie Ortego.”8

Sgt. Kennelly testified that the Sex Crimes Unit was ultimately able to

determine that “Eddie Ortego” and “Edward Budd” were the same person. To this

end, Sgt. Kennelly explained that he and Detective Laborde used police software to

review height, weight, and basic descriptive information, which yielded a result

based on C.K.’s description. He further explained that Detective Danielle Williams

conducted a photographic lineup with C.K., who made a positive identification of

Mr. Budd. The State offered and introduced the photographic lineup into evidence.

Sgt. Kennelly stated that after a positive identification by C.K., a former NOPD

detective drafted and authored an arrest warrant for Mr. Budd’s arrest. During Sgt.

Kennelly’s testimony, the State also offered and introduced the arrest warrant into

evidence.

On cross examination of Sgt. Kennelly, Mr. Budd’s counsel asked if the Sex

Crimes Unit tested C.K. for drugs; but Sgt. Kennelly testified that C.K. did not

allege that she had been drugged during the assault, so the NOPD “did not have

any reason to” test her for drugs. Sgt. Kennelly acknowledged that his involvement

was limited to taking C.K.’s statement, reviewing and presenting the arrest warrant

to the magistrate judge, and reviewing Detective Brandon McDonald’s

supplemental report.

8 The spelling “Ortega” also appears in the record.

11

Detective Brandon McDonald9

On the second day of trial, the State called as its first witness, Detective

Brandon McDonald (“Det. McDonald”) of the NOPD Sex Crimes Unit. Det.

McDonald testified that he was assigned as lead detective in C.K.’s third-degree

rape case after the original detective assigned to the case resigned from the NOPD.

Det. McDonald testified about his investigation and arrest of Mr. Budd; and he

stated that by the time he was assigned to the case, an arrest warrant had already

been issued for Mr. Budd.

Det. McDonald testified that he spoke to C.K., and she reported that she was

with other crew members where they were filming on location in Marrero. Det.

McDonald explained that C.K. told him that she and some other crew members,

including Mr. Budd, went to a local bar in Algiers, where they had several drinks.

He testified that C.K. reported that from there they went to another bar in Metairie,

where they continued to drink. Det. McDonald indicated that C.K. stated that she

realized she was too intoxicated to drive and she let Mr. Budd drive her vehicle

back to his residence because they were all going back to his house to work on the

video. Det. McDonald further explained that C.K. reported that while she was at

Mr. Budd’s house she realized she was very intoxicated, so her friend, “Cassie,”10

told her it was okay to rest in the bedroom until she felt like driving back to Baton

Rouge. Det. McDonald also testified that C.K. stated that Cassie followed her to

the bedroom, and made sure she was asleep. He stated that C.K. said she went to

sleep fully clothed and at some point everyone else went into the kitchen and then

9 Det. McDonald also testified regarding his investigation of the sexual
assault of H.W., which will not be recounted here.
10 The nickname “Cassie” refers to Cassandra Rumping.

12

left. C.K. reported to Det. McDonald that she woke up to Mr. Budd engaging in

sexual intercourse with her, but then would black out and subsequently wake up

again in a different position. Det. McDonald testified that C.K. reported that at

some point she told Mr. Budd that she needed to go to her vehicle, and he stopped

and took her back to her vehicle. Det. McDonald stated he obtained statements

from C.K.’s two coworkers, Cassandra “Cassie” Rumping (“Ms. Rumping”) and

Jeremy Spring (“Mr. Spring”). Det. McDonald stated that he also obtained a

statement from C.K.’s father.11 He further testified that he obtained a statement

from John Bradley Rushing (“Mr. Rushing”), C.K.’s mentor, who provided Det.

McDonald with text message conversations between himself and C.K. when she

reached out to him for advice and told him what happened.

Det. McDonald testified that he noted similarities between H.W.’s and C.K’s

assaults, such as both were very intoxicated, blacking out, and the feeling where

they could not move and could not remember how everything happened.

Cassandra Rumping’s Testimony

Next, the State presented the testimony of Cassandra Rumping (“Ms.

Rumping”). Ms. Rumping testified that she was a freelance producer who was

hired to produce a music video. Ms. Rumping acknowledged that she hired Mr.

Budd, who used the name Eddie Ortega, on a photoshoot as the first assistant

director. She testified that when she hired Mr. Budd, he failed to disclose that there

was a pending sexual assault charge against him. She further acknowledged that

had he disclosed that information, she would not have hired him. Additionally, Ms.

Rumping stated that she hired C.K. as the “second assistant camera.” She described

11 We will not identify C.K.’s father by name in order to preserve C.K.’s

anonymity.
13

C.K. as “very quiet, reserved, super well-mannered, sweet, just to herself, very nice

person.”

Ms. Rumping testified that prior to the incident alleged by C.K., she, C.K.,

and “Eddie Ortega” were part of a team that filmed a music video from 8:00 a.m.

to 10:30 p.m. Thereafter, according to Ms. Rumping, she went to Crown & Anchor

with Mr. Budd, C.K., and Mr. Spring where they consumed several drinks. After

about an hour, as Ms. Rumping explained, the four left and went to the Swamp

Room, a bar in Metairie, where they stayed until it closed at 2:00 a.m. on May 14,

2021. Ms. Rumping testified that Mr. Budd then suggested that they all go to his

house, where the group consumed more drinks. There, according to Ms. Rumping,

C.K. realized she was too tired to safely drive home to Baton Rouge.

Ms. Rumping further testified that, at some point, C.K. asked Mr. Budd if

she could take a nap, and he suggested that she lay down in his room. Ms.

Rumping stated that she accompanied C.K. to Mr. Budd’s bedroom, helped her get

into bed and C.K. was fully clothed at that time. Ms. Rumping left Mr. Budd’s

house around 6:00 a.m., and Mr. Spring had already left by that time.

Ms. Rumping testified that C.K. called her a couple of days after and told

her that Mr. Budd had raped her and that she felt that there was nothing she could

have done to stop the rape. As Ms. Rumping recalled the conversation, C.K. told

her that she “wished she would have told [her] what had happened sooner,” but she

had been processing “what went on.” Ms. Rumping further recalled that C.K. told

her that while she was asleep, Mr. Budd entered the room and, as she was “coming

to,” she realized her clothes were being taken off. Ms. Rumping stated that C.K.

told her that she “realized that this was happening non-consensually,” but that she

“sort of like froze in shock and fear and sort of like confusion.” Additionally, as
14

Ms. Rumping recalled, C.K. told Ms. Rumping that Mr. Budd then proceeded to

“rape” her, and “she felt like there was nothing that she could do to stop it.” Ms.

Rumping testified that C.K. asked if she had been suggestive or flirtatious with the

defendant, and Ms. Rumping answered, “Absolutely not.” She testified that C.K.

was “super professional,” and that it was “really clear” that C.K. had gone out with

the group because she “wanted to be surrounded by people that were working in

the industry.”

On cross-examination, Ms. Rumping testified that after C.K. told her that

she was raped by Mr. Budd, he texted her, “about something that [was not] a work-

related thing.” Ms. Rumping testified that she did not want Mr. Budd to know that

she “knew what happened,” so she gave a “polite but not engaging” response.

C.K.’s Testimony

C.K. testified that on the morning of May 13, 2021, she drove from Baton

Rouge to Marrero to work on the photo shoot for a music video. She explained that

she arrived before the 8:00 a.m. call time and the crew finished around sundown.

C.K. testified that after filming was completed, the crew went for a drink at the

Crown & Anchor Pub in New Orleans. After approximately one hour, according to

C.K., she drove to another bar, the Swamp Room, to meet up with a few members

of the group, including Mr. Budd (known to C.K. as “Eddie Ortega”), Ms.

Rumping, and Mr. Spring. C.K. stated that while at the Swamp Room, she had two

drinks and ate some appetizers.

C.K. testified that at the Swamp Room, [Mr. Budd], “was mostly paying

attention to [her], but [she] was trying to be a part of . . . everybody’s

conversation.” C.K. stated the group stayed at the Swamp Room until closing and

then proceeded to Mr. Budd’s house “to finish some post-production work.” She
15

did not think she should be driving so she left her car at the bar and rode with Mr.

Budd. C.K. testified that at Mr. Budd’s house, the group worked on “post-

production” and drank. She further testified that she consumed “maybe a shot or

two of something.” C.K. testified that around sunrise, or 6:00 a.m., she felt very

tired and asked Mr. Budd if there was somewhere she could lay down and sleep for

a while, to which Mr. Budd responded she would be most comfortable in his

bedroom. C.K. further testified Ms. Rumping helped her into bed where she

quickly fell asleep fully clothed.

C.K. testified the next thing she remembered was that she woke up without

any clothes on her body. She explained, “I was being pulled on top of [Mr. Budd],

and I just, I [could not] move, and I wanted to yell and I [could not] yell . . . He

was having sex with me, but I [did not] want that.” She explained that Mr. Budd

was also naked and reemphasized that she “just [could not] move.” C.K. testified

that Mr. Budd “raped” her twice, explaining “I wanted to yell, but it was just like

my throat closed up, and I just [could not] feel anything.” C.K. stated that she

drifted in and out of consciousness and woke up around 3:00 p.m. because her

phone was ringing. She described that Mr. Budd “came up behind [her] and

started having sex with [her] again for the third time. [She] did [not] want it.”

C.K. testified that Mr. Budd asked her if she was on birth control to which she

replied yes. She stated that at some point Mr. Budd “simply stopped,” and she told

him she needed to go home. Thereafter, according to C.K., they got dressed, Mr.

Budd drove her back to her car, and C.K. had no contact with him since the

morning of May 14, 2021.

C.K. further testified that she never consented to having sex with Mr. Budd.

C.K. stated that she delayed in reporting the rape to the police because she did not
16

“fully understand what exactly happened.” In this regard, she explained that she

was unsure initially if she had sent mixed signals to Mr. Budd. C.K. stated that

ultimately she determined that she was raped because she did not consent to having

sex with Mr. Budd. She testified that about one week after the rape, she reported it

to the police and told the detective that “Eddie Ortega” raped her. C.K. identified

Mr. Budd through a photographic lineup.

At the conclusion of the trial on November 4, 2022, the district court found

Mr. Budd guilty of a lesser verdict, sexual battery, in the C.W. Case according to

the transcript of the proceedings. The district court set sentencing for December 1,

2022.

Sentencing and Motion for New Trial

On November 14, 2022, Mr. Budd filed a motion for a new trial. Mr. Budd

appeared for his sentencing hearing on December 1, 2022. During the sentencing

hearing, the district court also addressed Mr. Budd’s motion for new trial, which

the district court denied. At that time, defense counsel waived sentencing delays

and requested that the sentencing hearing be held immediately. Prior to sentencing,

the district court reminded the parties that Mr. Budd was found guilty of sexual

battery, under La. R.S. 14:43.1. The district court then imposed the following

sentence upon Mr. Budd: ten years at hard labor with the Department of

Corrections, two years suspended, and five years of active probation, with the

sentence to run concurrently with any and all other counts. The district court also

ordered Mr. Budd to participate in psychiatric counseling for the five years of

probation, and to register as a sex offender for a term of fifteen years. The district

court determined that Mr. Budd acted without the consent of the victim.

17

After sentencing, on December 7, 2022, Mr. Budd filed a motion to

reconsider sentence pursuant to La. C.Cr.P. art. 881.1, which the district court

denied. Defense counsel filed a notice of appeal on January 31, 2023, which the

district court granted.

ASSIGNMENTS OF ERROR

Mr. Budd assigns two counseled errors on appeal:

1. There is a discrepancy between the minute entry for the
verdict (which shows that [Mr. Budd] was found guilty of
the third degree rape) and the transcript where the trial
judge announced the verdict (which shows Mr. Budd was
found guilty of the lesser offense of sexual battery); and

2. Mr. Budd’s ten-year sentence for sexual battery is excessive
under the circumstances.

Mr. Budd also assigns two pro se errors on appeal:

1. [Mr. Budd] was not present for a critical stage of the
proceeding and did not waive his appearance concerning
inadmissible evidence; and

2. A mistrial should have been granted due to prosecutorial
misconduct by introducing inadmissible evidence.

ERRORS PATENT REVIEW

Before we address the assignments of error, we must conduct a review of

Mr. Budd’s appeal for errors patent. In accordance with La. C.Cr.P. art. 920, this

court reviews all appeals for errors patent. State v. McDonough, 2022-0628, p. 19

(La. App. 4 Cir. 10/27/23), 376 So.3d 1003, 1018. “An error patent is one ‘that is

discoverable by a mere inspection of the pleadings and proceedings without

inspection of the evidence.’” Id. (quoting La. C.Cr.P. art 920(2)). Our review of the

record has revealed two errors patent.

18

Error Patent Number One / Counseled Assignment of Error Number One

First, there is a discrepancy between the minute entry and the transcripts,

with the minute entry listing a conviction of third-degree rape, while the transcripts

indicate a conviction of sexual battery. This error patent is also raised in counseled

assignment of error number one, wherein counsel for Mr. Budd contends there is a

discrepancy between the November 4, 2022 minute entry, which reflects that he

was convicted of third degree rape, and the trial transcript for the same date, which

reflects that the judge announced the verdict as guilty of sexual battery. In

counseled assignment of error number one, counsel for Mr. Budd also notes that

the sentencing commitment order reflects that he was convicted of third-degree

rape. Further, the State concedes in its brief to this Court that Mr. Budd was

convicted of sexual battery and that the minute entries and docket master reflect

the wrong conviction and should be corrected.

As this Court has previously held, when “there is a discrepancy between a

minute entry and the transcript, the transcript prevails.” State v. Lawrence, 2012-

1026, p. 5 (La. App. 4 Cir. 7/3/13), 120 So.3d 812, 816 (citing State v. Randall,

2010-1027, p. 3 (La. App. 4 Cir. 6/22/11), 69 So.3d 683, 685). In his counseled

brief to this Court, Mr. Budd cites to this Court’s opinion in State v. Bailey. In

Bailey, the defendant asserted there was “a discrepancy between the sentencing

transcript and the minute entry as to the amount of the fine imposed.” 2012-1662,

p. 6 (La. App. 4 Cir. 10/23/13), 126 So.3d 702, 706. This Court agreed with the

defendant that there was a discrepancy; and, accordingly, this Court ordered the

district court “to amend the pertinent minute entry to reflect the fine imposed by

the sentencing transcript and instruct the Clerk of Court to transmit the corrected

document to the officer in charge of the institution to which defendant has been
19

sentenced.” Id. (first citing La. C.Cr.P. art. 892(B)(2); and then citing State ex rel.

Roland v. State, 2006-0244 (La. 9/15/06), 937 So.2d 846).

A review of the record supports Mr. Budd’s contention: Mr. Budd is correct

that the minute entry from November 4, 2022 reflects that he was convicted of

third-degree rape, but the November 4, 2022 transcript reveals that the district

court found Mr. Budd guilty of sexual battery, a lesser charge than third-degree

rape. Additionally, the minute entry from the December 1, 2022 sentencing hearing

also reflects a conviction of third-degree rape under La. R.S. 14:43. However, as

previously explained, during the sentencing hearing on December 1, 2022, the

district court reiterated that Mr. Budd was convicted of sexual battery as evidenced

by the transcript. These discrepancies constitute an error patent. Because a

discrepancy between the transcript and minute entry must be resolved in favor of

the transcript, the November 4, 2022 and December 1, 2022 transcripts, in which

the district court found Mr. Budd guilty of the lesser charge, sexual battery, prevail

over the minute entries for those two dates. Accordingly, we remand this matter to

the district court and order the district court to amend the minute entries for

November 4, 2022, and December 1, 2022, to conform to the transcripts for the

same dates. Further, we order the district court to instruct the Clerk of Criminal

District Court to transmit the corrected documents to the officer in charge of the

institution to which Mr. Budd has been sentenced.

Error Patent Number Two

Second, our errors patent review reveals that Mr. Budd’s sentence is illegally

lenient because he should not have received the benefit of parole, probation, or

suspension of sentence. That is, the district court found Mr. Budd guilty of

committing sexual battery against C.K. and sentenced him under La. R.S.
20

14:43.1(C)(1), which provides that “[w]hoever commits the crime of sexual battery

shall be punished by imprisonment, with or without hard labor, without benefit of

parole, probation, or suspension of sentence, for not more than ten years.”

(Emphasis added). The district court sentenced Mr. Budd to ten years of hard labor

with the Department of Corrections, with two years suspended, with five years of

active probation, and with the sentence to run concurrently with any and all other

counts. When a district court fails to restrict the defendant’s benefits in accordance

with the statute or code article serving as the basis for the defendant’s conviction,

then this constitutes an illegally lenient sentence. See State v. Hawkins, 2011-0193,

p. 4 (La. App. 4 Cir. 11/16/11), 78 So.3d 293, 296. Because the sentencing hearing

transcript and the sentencing minute entry reflect that the district court imposed

Mr. Budd’s sentence without the restriction of benefits required by La. R.S.

14.43.1(C)(1), Mr. Budd’s sentence was illegally lenient.

Regarding situations in which a criminal statute requires imposition of a

sentence without benefits, La. R.S. 15:301.1(A) provides:

When a criminal statute requires that all or a portion of a sentence
imposed for a violation of that statute be served without benefit of
probation, parole, or suspension of sentence, each sentence which is
imposed under the provisions of that statute shall be deemed to
contain the provisions relating to the service of that sentence without
benefit of probation, parole, or suspension of sentence. The failure of
a sentencing court to specifically state that all or a portion of the
sentence is to be served without benefit of probation, parole, or
suspension of sentence shall not in any way affect the statutory
requirement that all or a portion of the sentence be served without
benefit of probation, parole, or suspension of sentence.

As the Louisiana Supreme Court explained in State v. Williams in interpreting La.

R.S. 15:301.1:

In instances where the restrictions are not recited at sentencing, [La.
R.S. art.] 15:301.1(A) deems that those required statutory restrictions
are contained in the sentence, whether or not imposed by the
21

sentencing court. Additionally, this paragraph self-activates the
correction and eliminates the need to remand for a ministerial
correction of an illegally lenient sentence which may result from the
failure of the sentencing court to impose punishment in conformity
with that provided in the statute.

2000-1725, p. 10 (La. 11/28/01), 800 So.2d 790, 799. Thus, under La. R.S.

15:301.1(A) and according to Williams, “a statute’s requirement that a defendant

be sentenced without the benefit of parole, probation, or suspension of sentence is

self-activating” even when the district court fails to specify this. State v. Kelson,

2023-274, p. 13 (La. App. 5 Cir. 12/27/23), 379 So.3d 779, 787 (citing Williams

2000-1725, p. 10 (La. 11/28/01), 800 So.2d 790, 799).

For example in State v. Patterson, the district court sentenced the defendant

as a fourth-felony habitual offender, and his subject felony—felon in possession of

a firearm (La. R.S. 14:95.1)—required his sentence be served at hard labor without

the benefit of parole, probation, or suspension of sentence. 2016-1104, pp. 7-8 (La.

App. 4 Cir. 3/7/18), 241 So.3d 433, 440. On appeal, this Court held that the district

court erred in failing to stipulate that the defendant’s sentence be served without

the benefits of probation, parole, or suspension of sentence; but this Court

concluded that under La. R.S. 15:301.1(A) and Williams, the defendant’s sentence

was deemed to have been imposed with the restrictions of benefits even in the

absence of the district court delineating them, such that the Court did not need to

take any action to correct the sentence. Id. at p. 8, 241 So.3d at 440-41.

An illegally lenient sentence can also occur in a case like the matter sub

judice. Here, the district court did not fail to cite the statutorily-required restriction

of benefits at sentencing. Instead, the district court granted benefits to Mr. Budd to

which he was not statutorily entitled. Nonetheless, as in Patterson and under the

self-activating principles found in La. R.S. 15:201.1(A) and Williams, we deem
22

that Mr. Budd’s sentence was imposed with the restriction of benefits. This is

because La. R.S. 15:301.1(A) deems that the statutory restrictions found in La.

R.S. 14.43.1 are contained in the sentence no matter what. That is, the requirement

that Mr. Budd’s sentence be served without the benefit of parole, probation, or

suspension of sentence is self-activating because that requirement is contained in

the statute under which he was convicted, La. R.S. 14:43.1.

Although the restriction of benefits part of Mr. Budd’s sentence is self-

activating as we just concluded, under the discretion afforded to this Court by La.

C.Cr.P. art. 882(A), we nonetheless remand this matter to the district court to

resentence Mr. Budd for the following reasons.12 In Gregrich, the Louisiana Third

Circuit Court of Appeal explained that “if correction involves the exercise of

sentencing discretion . . . the case must be remanded for the trial court to perform

that function.” 1999-178, p. 3, 745 So.2d at 696 (quoting State v. Fraser, 484

So.2d 122, 124 n.5 (La. 1986)). For example, in State v. McKinney, the Louisiana

First Circuit Court of Appeal (“First Circuit”) reviewed the defendant’s conviction

for molestation of a juvenile and his sentence of thirty-five years at hard labor (the

district court had statutory discretion to sentence the defendant to between twenty-

five and ninety-nine years). 2015-1503, p. 13 (La. App. 1 Cir. 4/25/16), 194 So.3d

699, 708. As the First Circuit explained though, the defendant’s sentence was

illegally lenient because the district court failed to restrict his sentence to at least

twenty-five years without the benefit of probation, parole, or suspension of

12 Louisiana Code of Criminal Procedure Article 882(A) provides that “[a]n

illegal sentence may be corrected at any time . . . by an appellate court on review.”
As the Louisiana Third Circuit Court of Appeal explained in State v. Gregrich, La.
C.Cr.P. art. 882(A) “does not require that an appellate court correct an illegal
sentence but provides that the appellate court ‘may’ correct an illegal sentence on
review.” 1999-178, p. 4 (La. App. 3 Cir. 10/13/99), 745 So.2d 694, 696.
23

sentence in accordance with La. R.S. 14:81.2(E)(1) (prior to amendment by 2011

La. Acts No. 67, § 1). Id. The First Circuit recognized that the restriction of

benefits in the defendant’s sentence was self-activating pursuant to La. R.S.

15:301.1(A) and La. R.S. 14:81.2(E)(1). Id. However, rather than simply affirming

the thirty-five years’ imprisonment and explaining that twenty-five years of the

imprisonment would be without benefits as required by La. R.S. 14:81.2(E)(1), the

First Circuit vacated the defendant’s sentence and remanded for resentencing. Id. at

p. 14, 194 So.3d at 709. As the First Circuit observed, “[i]f the trial court had

recognized that this sentence should have contained at least a twenty-five-year

restriction on the benefit of parole, it might have imposed a different sentence,”

such that to “[a]llow[] [La. R.S.] 15:301.1[(A)] to act by operation of law on the

illegal sentence in this case would impinge upon the trial court’s sentencing

discretion.” Id.

We similarly find that the district court’s sentencing discretion is involved

here as to the length of Mr. Budd’s sentence. That is, the district court found Mr.

Budd guilty of sexual battery, and La. R.S. 14:43.1(C) provides that “[w]hoever

commits the crime of sexual battery shall be punished by imprisonment, with or

without hard labor, without benefit of parole, probation, or suspension of sentence,

for not more than ten years.” Thus, the district court could sentence Mr. Budd to

any number of years of imprisonment no greater than ten years as long as Mr.

Budd does not receive the benefit of the restrictions per La. R.S. 14.43.1(C). As in

McKinney, for this Court to find that the restriction of benefits part of Mr. Budd’s

sentence was self-activating and allow La. R.S.15:301.1(A) to act by operation of

law but not give the district court a chance to resentence Mr. Budd would be to

impinge on the district court’s sentencing discretion. Accordingly, we vacate Mr.
24

Budd’s sentence and remand this matter to the district court for resentencing in

accordance with La. R.S. 14:43.1(C).

DISCUSSION

Counseled Assignment of Error Number Two: Excessive Sentence

Having already discussed the first counseled assignment of error in our

errors patent section of this Opinion, we next turn to the second counseled

assignment of error. Therein, counsel for Mr. Budd contends that his ten-year

sentence for sexual battery is excessive. Because we have already decided in our

errors patent review to vacate Mr. Budd’s sentence and remand this matter to the

district court for resentencing in accordance with La. R.S. 14:43.1(C), we pretermit

discussion of this assignment of error as premature.

Pro Se Assignment of Error Number One: Mr. Budd’s Absence for a Critical
Stage of the Proceeding

In Mr. Budd’s first pro se assignment of error, he asserts that the district

court erred in ruling on the State’s Amended Second Notice to introduce sexually

assaultive behavior because he was not present for the hearing. In support of his

contention, Mr. Budd cites to La. C.Cr.P. art. 831(4), which states that “a

defendant charged with a felony shall be present at all times during the trial when

the court is determining and ruling on the admissibility of evidence.”

In discussing La. C.Cr.P. art. 831, the Louisiana Second Circuit Court of

Appeal has held that a district “court’s decision to proceed with trial without the

presence of the defendant is subject to abuse of discretion review.” State v. Mayo,

54,059, p. 5 (La. App. 2 Cir. 11/17/21), 332 So.3d 757, 761 (citing State v. Lewis,

51,672 (La. App. 2 Cir. 11/15/17), 245 So. 3d 233). However, we note that in the

25

matter sub judice, the district court’s ruling was not made during trial; therefore,

contrary to Mr. Budd’s assertion, La. C.Cr.P. art 831(4) is inapplicable.

Instead, we look to La. C.Cr.P. art 834, which is titled “When presence of

defendant not necessary.” It provides in pertinent part: “[t]he defendant has a right

to be present, but his presence is not essential to the validity of . . . [t]he making,

hearing of, or ruling on a preliminary motion or application addressed to the

court[.]” La. C.Cr.P. art. 834(1). The State’s Amended Second Notice, in this

matter, was a preliminary notice, and Mr. Budd’s presence was not required under

La. C.Cr.P. art. 834(1). See also State v. Serrato, 424 So.2d 214, 224-25 (La. 1982)

(holding that there was no error in the district court’s “ruling on a preliminary

motion outside of the presence of defendant and his attorneys” under La. C.Cr.P.

art. 834(1)). Accordingly, we find no error in the district court ruling on the

preliminary Amended Second Notice outside the presence of Mr. Budd. This

assignment of error has no merit.

Pro Se Assignment of Error Number Two: District Court’s Failure to Grant
Mistrial

In Mr. Budd’s second pro se assignment of error, he asserts that the district

court should have granted a mistrial on the grounds of prosecutorial misconduct

when the State used evidence of other sexually assaultive behavior through the

testimony of his ex-wife, Ms. Gustafson. Mr. Budd’s main contention is that

because this Court denied the writ regarding the sexual assault of L.W., then the

district court erred when it subsequently admitted the testimony of his ex-wife, Ms.

Gustafson, and L.W’s friend, Ms. Stoltz. Mr. Budd seems to assert that, because

this Court denied the State’s writ application in State v. Budd, 2022-0661 (La. App.

4 Cir. 10/7/22), evidence of the sexual assault of L.W. was not admissible.

26

Additionally, Mr. Budd contends that Ms. Gustafson and Ms. Stoltz should not

have been permitted to testify as to L.W.’s sexual assault after this Court had

earlier denied the State’s writ application. Thus, in his second pro se assignment of

error, Mr. Budd raises two issues: (1) that the district court erred in not granting a

mistrial; and (2) the testimony of Ms. Gustafson and Ms. Stoltz was inadmissible

evidence as hearsay. As this Court has previously held, “[a] trial court’s ruling on

the admissibility of other crimes evidence will not be overturned absent an abuse

of discretion.” State v. Scoggins, 2010-0869, pp. 10-11 (La. App. 4 Cir. 6/17/11),

70 So.3d 145, 152 (citing State v. Scales, 1993-2003 (La. 5/22/95), 655 So.2d

1326).

Addressing the first issue raised by Mr. Budd’s assignment of error, we note

that defense counsel did not move for a mistrial during trial. Louisiana Code of

Criminal Procedure Article 841(A) states:

An irregularity or error cannot be availed of after verdict unless it was
objected to at the time of occurrence. A bill of exceptions to rulings or
orders is unnecessary. It is sufficient that a party, at the time the ruling
or order of the court is made or sought, makes known to the court the
action which he desires the court to take, or of his objections to the
action of the court, and the grounds therefor.

In light of La. C.Cr.P. art. 841(A), the Louisiana Supreme Court has held “[i]t is

settled that a new basis for an objection may not be urged for the first time on

appeal.” State v. Butler, 2012-2359, p. 4 (La. 5/17/13), 117 So.3d 87, 89 (citing

State v. Stoltz, 358 So.2d 1249, 1250 (La. 1978)). Likewise, in State v. Magrini,

this Court held that “[i]t is well-settled that an irregularity or error, relating to ‘the

ruling or order of the court,’ cannot be availed of after verdict unless it was

objected to at the time of occurrence.” 2019-0951, p. 25 (La. App. 4. Cir. 5/27/20),

301 So.3d 525, 540 (quoting State v. Griffin, 2015-0125, p. 23 (La. App. 4 Cir.

27

9/16/15), 176 So.3d 561, 574). Further, “[a] new basis for objection cannot be

raised for the first time on appeal.” Id. (quoting Griffin, 2015-0125, p. 23, 176

So.3d at 575). In State in the Interest of C.H., this Court provided that “[t]he

rationale behind the requirement of a simultaneous objection as found in [La.

C.Cr.P.] art. 841(A) is that the contemporaneous objection provides the trial court

with an opportunity to rule on the issue and to cure or prevent a potential error.”

2021-0516, p. 18 (La. App. 4 Cir. 1/26/22), 335 So.3d 451, 462 (citing State v.

Hampton, 2019-0682, p. 13 (La. App. 4 Cir. 7/1/20), 302 So.3d 544, 551).

Additionally, “[a] failure to move for mistrial is a waiver of the error” because “a

motion by defendant” is required. State v. Grant, 531 So.2d 1121, 1123 (La.App.

4th Cir. 1988).

In the matter sub judice, Mr. Budd did not move for a mistrial during trial.

Rather, when L.W.’s friend, Ms. Stoltz, testified at the trial, defense counsel

lodged a hearsay objection, but defense counsel did not move for a mistrial when

the district court allowed Ms. Stoltz’s testimony. The district court was not given

the opportunity to consider a motion for a mistrial. Considering that Mr. Budd is

raising the issue of a mistrial for the first time on appeal, this Court cannot

consider his claim regarding a mistrial because this assignment of error was not

preserved for appeal.

Next, we address the second issued raised by Mr. Budd’s second pro se

assignment of error. Mr. Budd alleges that the district court erred in admitting

evidence which he considers to be inadmissible under La. C.E. art. 412.2, which

pertains to “Evidence of similar crimes, wrongs, or acts in sex offense cases.” We

also note that Mr. Budd asserts the same testimony is inadmissible because it is

hearsay. As noted previously, Mr. Budd contends that district court erred when it
28

subsequently admitted the testimony of his ex-wife, Ms. Gustafson, and L.W’s

friend, Ms. Stoltz, after this Court denied the writ application regarding the sexual

assault of L.W.

A review of the record reveals the district court allowed the State to proceed

with the Amended Second Notice after this Court’s writ denial. At the time of the

evidentiary hearing, Mr. Budd’s counsel did not object to the admission of Ms.

Gustafson’s and Ms. Stoltz’s testimony under La. C.E. art. 412.2 because the State

provided defense counsel with the Amended Second Notice, which defense

counsel stated, “complie[d] with the requirement of 412.2.” Thereafter, the district

court found that the evidence of the sexual assault of L.W. was admissible. On

appeal, Mr. Budd cannot assert an objection on a different basis when he did not

make this objection at the district court. He did not object to the testimony

regarding L.W.’s assault under La. C.E. art. 412.2; instead the basis of his

objection was hearsay. The district court must have an opportunity to consider the

motion and rule on the motion to cure a potential error. Mr. Budd needed to make

his objection as to La. C.E. art. 412.2 known to the district court in order to

preserve the objection for appeal. As previously stated, this Court has held that

under La. C.Cr.P. art. 841, “[a] new basis for objection cannot be raised for the

first time on appeal.” State in the Interest of K.B., 2023-0409, p. 36 (La. App. 4

Cir. 9/26/23), 372 So.3d 864, 878 (alteration in original) (quoting State in the

Interest of C.H., 2021-0516, p. 18, 335 So.3d at 462).

At the trial, during the testimony of both Ms. Gustafson and Ms. Stoltz, Mr.

Budd’s counsel objected on the basis of hearsay. In response to defense counsel’s

hearsay objection, the district court instructed the State to finish with the witness,

29

recognized that it already heard hearsay testimony from another witness, “but it

was not going to hear this hearsay over and over.”

When an “objection was sustained, defendant has no complaint on appeal

unless he requested and was denied an admonition to disregard or mistrial.” State

v. Robinson, 506 So.2d 797, 798 (La. App. 1st. 1987) (citations omitted). This

Court has explained that “[w]hen a defendant’s objection is sustained, however,

and the court is presumably willing to give him whatever relief to which he is

entitled,” and thus, the defendant cannot appeal unless he was denied a requested

mistrial. State v. Grant, 5313 So.2d 1121, 1123 (La. App. 4th Cir. 1988). The

Louisiana Fifth Circuit Court of Appeal has reiterated in a case considering alleged

inadmissible hearsay, “[i]f an objection is sustained, the defendant cannot on

appeal complain of the alleged error unless at the trial level.” State v. Sly, 2023-60,

p. 57 (La. App. 5 Cir. 11/2/23), 376 So.3d 1047, 1090 (citing State v. Rodriguez,

2002-334 (La. App. 5 Cir. 1/14/03), 839 So.2d 106, 136, writ denied, 1993-0482

(La. 5/30/03), 845 So.2d 1061, cert. denied, 540 U.S. 972, 124 S.Ct. 444, 157

L.Ed.2d 321 (2003)).

Here, both objections were sustained, the witnesses continued their

testimony after objections, and no subsequent mistrial objection was made by

defense counsel. Considering that the district court sustained defense counsel’s

hearsay objections, and defense counsel failed to move for a mistrial, Mr. Budd

cannot raise this issue on appeal. However, even with the testimony continuing

after the district court sustained the objections, we find this was harmless error.

CONCLUSION

For the foregoing reasons, we vacate Mr. Budd’s sentence and remand this

matter for resentencing in accordance with La. R.S. 14:43.1(C)(1). We further
30

remand for the purpose of correcting the minute and docket master entries, as well

as the sentencing commitment order, to reflect that the defendant was convicted of

sexual battery, a violation of La. R.S. 14:43.1(A)(1). We order that the district

court instruct the Clerk of Criminal District Court to transmit the corrected

documents to the officer in charge of the institution to which Mr. Budd has been

sentenced.

SENTENCE VACATED; REMANDED FOR RESENTENCING

31