State of Louisiana v. Jonathan Daniel Wagar

Judgment rendered March 1, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,941-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

JONATHAN DANIEL WAGAR Appellant

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 230984

Honorable Michael Owens Craig, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Douglas Lee Harville

JONATHAN DANIEL WAGAR Pro Se

JOHN SCHUYLER MARVIN Counsel for Appellee
District Attorney

ALEXANDRA AIELLO
RICHARD RUSSELL RAY
Assistant District Attorneys

*****

Before PITMAN, STONE, and MARCOTTE, JJ.

STONE, J.

This criminal appeal comes from the 26th Judicial District Court, the

Honorable Judge Michael O. Craig, presiding. A unanimous jury convicted

Jonathan Daniel Wagar (“the defendant”) of sexual battery, in violation of

La. R.S. 14:43.1(A)(2), and he was sentenced to 75 years at hard labor, with

the first 25 years to be served without the possibility of probation, parole, or

suspension of sentence. The defendant now appeals his conviction and

sentence, arguing that the State failed to sufficiently prove that the defendant

was guilty of sexual battery because of inconsistencies in the victim’s

recorded statements and her trial testimony was possibly coached; the trial

court erred in sentencing the defendant pursuant to La. R.S. 14:43.1(C)(2)

rather than La. R.S. 14:43.1(C)(1) because the amended bill of information,

jury instructions, and the verdict form did not require the jury to make the

necessary findings to support the enhanced sentence; and the trial court

imposed an excessive sentence. For the following reasons, we affirm the

defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

The victim, in this case, is H.D., born November 23, 2010, the

stepdaughter of the defendant, born November 5, 1977. H.D., her siblings,

her mother, and the defendant resided in hotels or with friends when the

abuse occurred. Eventually, H.D.’s mother lost custody of her children, and

they became wards of the State of Louisiana. Shortly thereafter, H.D. was

placed in her grandmother’s custody and at the end of 2018, began

counseling with Stephanie Mesloh (“Mesloh”). In January 2019, the

Bossier Parish Sheriff’s Office (“BPSO”) received a report from Mesloh that

a child disclosed that she had been sexually abused.

On January 23, 2019, eight-year-old H.D. was interviewed at the

Gingerbread House by forensic interviewer Lacie Hadley (“Hadley”). On

April 22, 2019, the defendant was charged by bill of information with the

sexual battery of H.D., in violation of La. R.S. 14:43.1(A)(2), with the

alleged events occurring between April 6, 2018 and September 9, 2018. A

year later, on October 23, 2019, H.D. was interviewed a second time at the

Gingerbread House.

The defendant entered a plea of not guilty and elected to have a jury

trial. The trial commenced on January 3, 2022. The State called a total of

four witnesses: Mesloh, Hadley, Debra McKay (“Det. McKay”) of the

BPSO, and H.D. Mesloh testified that she is a licensed professional

counselor and that she began counseling H.D. in either November or

December 2018 because there were behavioral issues with H.D. and her

brother while living with her grandparents. Mesloh further testified that she

counseled H.D. for over two years. After several months, H.D. revealed that

she had been touched on the genitalia by the defendant. She also recounted

how the defendant would make her stand in front of him in her underwear,

eventually leading to H.D. standing before him totally naked.

Additionally, Mesloh testified that H.D. stated that the defendant

would touch her on the breasts and genitalia while simultaneously making

H.D. touch his genitals. Mesloh further testified that it took several months

of counseling before H.D. revealed the abuse and that it is not uncommon

for children to disclose sexual abuse over multiple sessions.1 After the

initial disclosure, Mesloh stated that H.D. later disclosed that the defendant

1
Mesloh had ten monthly meetings with H.D. before she revealed the abuse.
2

would make her put lotion on his genitals and go up and down with her

hand. She testified that H.D. told her that the abuse occurred one time at her

mom’s house and all other times in hotels. Mesloh explained that the abuse

occurred at times with H.D.’s mom present and other times with her mom

absent, but at all times with her brother present.2 Mesloh testified that once

H.D. revealed that she was touched, she informed H.D.’s grandmother and

contacted the police.3

Hadley testified that in 2019, she was employed as a forensic

interviewer at the Gingerbread House and interviewed H.D. on January 23,

2019. The video recording of one of H.D.’s Gingerbread House interviews

was introduced as evidence and played for the jury. While viewing the

video in open court, Hadley identified herself, H.D., and confirmed that the

interview was, indeed, the one she conducted with the child. She further

confirmed that the video did not appear to be altered. She testified that in

her experience, delayed disclosure is common in children who are victims of

sexual abuse and that they often divulge additional details as time

progresses. She further testified that law enforcement always has to set up

additional interviews with the victim.

Det. McKay testified about how the investigation began and that H.D.

was eight years old at the time. She explained that a second Gingerbread

House interview was needed because of additional disclosures made by H.D.

The second video recording of H.D.’s Gingerbread House interview was

introduced as evidence and played for the jury. Det. McKay further

2
The defendant would instruct H.D.’s brother to turn to face the wall.
3
Mesloh contacted the police twice.
3

testified that H.D. made additional statements about the defendant touching

her inappropriately and attempted penetration. She identified the defendant

as the offender.

H.D. was the last to testify at trial and identified the defendant as the

perpetrator. She testified that she is currently 11 years old and is in the fifth

grade. She recalled that she, her mom, siblings, and the defendant would

mostly live in hotels. H.D. testified that the hotel room had two beds and a

kitchen. During her testimony, H.D. confirmed that the contents of her

Gingerbread House interviews were true. She answered “yes” when the

defense asked if it was accurate that there was an incident involving the

defendant having her pull down her underwear, then his pants, and exposing

his genitals. She further testified that what came from the defendant’s

genitals was purple, and the lotion was white.

At the conclusion of the trial, the jury returned a unanimous guilty

verdict on the sexual battery charge. On March 3, 2022, the defendant filed

a motion for post-judgment verdict of acquittal, which was denied.4 The

defendant was sentenced to 75 years at hard labor, with the first 25 years to

be served without the possibility of probation, parole, or suspension of

sentence. On March 11, 2022, the defendant filed a motion to reconsider

sentence, and the trial court denied that motion without a hearing. The

defendant appeals his conviction and sentence, urging the following

assignments of error: (1) the State failed to sufficiently prove that the

defendant was guilty of sexual battery because of inconsistencies in the

victim’s recorded statements and her trial testimony was possibly coached;

4
The defendant’s pro se motion for new trial was also denied because the
defendant was represented by counsel, and counsel could have objected during the trial.
4

(2) the trial court erred in sentencing the defendant pursuant to La. R.S.

14:43.1(C)(2) rather than La. R.S. 14:43.1(C)(1) because the amended bill of

information, jury instructions, and the verdict form did not require the jury

to make the necessary findings to support the enhanced sentence; and (3) the

trial court imposed an excessive sentence.

DISCUSSION

Sufficiency of evidence

In his first assignment of error, the defendant argues that the State

presented insufficient evidence at trial to sustain a guilty verdict. The

defendant alleges that the victim’s two Gingerbread House interviews were

inconsistent and contradictory. Specifically, in H.D.’s second interview, she

did not state that the defendant made her touch him and that H.D. spoke of a

“purple” substance coming out of his genitals. Furthermore, the defendant

asserts that H.D. was “coached” because she often stated, “I cannot recall,”

and when she described the hotel room setup as “it would be your normal

two-bed with a single, with the kitchen right beside it.”

The State argues that it presented sufficient evidence at trial to support

the defendant’s conviction for sexual battery. It contends that H.D.’s

testimony was consistent in both Gingerbread House interviews and that the

defendant did not provide the court with the alleged inconsistent testimony.

Furthermore, in both interviews, H.D. was consistent that defendant made

physical contact with her genitalia and used his own. She was also

consistent with her description of the purple substance coming from the

defendant’s penis. The State also argues that the jury found the State’s

witnesses more credible than the defendant. Regarding the coaching claim,

5

the State points out that at trial, H.D. testified that she understood the

difference between the truth and a lie.

The standard of appellate review for the sufficiency of the evidence to

uphold a conviction is whether 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, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v.

Tate, 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905, 124

S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Ward, 50,872 (La. App. 2

Cir. 11/16/16), 209 So. 3d 228, writ denied, 17-0164 (La. 9/22/17), 227 So.

3d 827. 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. Ward, supra;

State v. Dotie, 43,819 (La. App. 2 Cir. 1/14/09), 1 So. 3d 833, writ denied,

09-0310 (La. 11/6/09), 21 So. 3d 297. On appeal, a reviewing court must

view the evidence in the light most favorable to the prosecution and must

presume in support of the judgment the existence of every fact the trier of

fact could reasonably deduce from the evidence. Jackson, supra.

The appellate court does not assess the credibility of witnesses or

reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442;

State v. Ward, supra. 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. Ward, supra; State v. Eason, 43,788 (La. App. 2 Cir. 2/25/09), 3 So.

3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So. 3d 913. In the absence

of internal contradiction or irreconcilable conflict with the physical

evidence, the testimony of one witness, if believed by the trier of fact, is
6

sufficient support for a requisite factual conclusion. State v. Burd, 40,480

(La. App. 2 Cir. 1/27/06), 921 So. 2d 219, writ denied, 06-1083 (La.

11/9/06), 941 So. 2d 35.

The Jackson, supra, standard is applicable in cases involving both

direct and circumstantial evidence. An appellate court reviewing the

sufficiency of evidence in such cases must resolve any conflict in the direct

evidence by viewing that evidence in the light most favorable to the

prosecution. When the direct evidence is thus viewed, the facts established

by the direct evidence and inferred from the circumstances established by

that evidence must be sufficient for a rational trier of fact to conclude

beyond a reasonable doubt that defendant was guilty of every essential

element of the crime. State v. Sutton, 436 So. 2d 471 (La. 1983); State v.

Ward, supra; State v. Speed, 43,786 (La. App. 2 Cir. 1/14/09), 2 So. 3d 582,

writ denied, 09-0372 (La. 11/06/09), 21 So. 3d 299. To convict a defendant

based upon circumstantial evidence, every reasonable hypothesis of

innocence must be excluded. La. R.S. 15:438; State v. Barakat, 38,419 (La.

App. 2 Cir. 6/23/04), 877 So. 2d 223.

At the time of the commission of the alleged sexual battery, La. R.S.

14:43.1(A)(2) stated, in pertinent part:

A. Sexual battery is the intentional touching of the …or
genitals of the victim by the offender using any… or any
part of the body of the offender, directly or through
clothing, or the touching of the … or genitals of the
offender by the victim using any… or any part of the body
of the victim, directly or through clothing, when any of the
following occur:

2. The victim has not yet attained 15 years of age and is at
least three years younger than the offender.

C(1) Whoever commits the crime of sexual battery shall
be punished by imprisonment, with or without hard labor,
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without benefit of parole, probation, or suspension of
sentence, for not more than ten years.

C(2) Whoever commits the crime of sexual battery on a
victim under the age of thirteen years when the offender is
seventeen years of age or older shall be punished by
imprisonment at hard labor for not less than twenty-five
years nor more than ninety-nine years. At least twenty-five
years of the sentence imposed shall be served without
benefit of parole, probation, or suspension of sentence.

Viewing the evidence in the light most favorable to the prosecution,

the State presented sufficient evidence at trial for a reasonable jury to

convict the defendant of sexual battery of a victim under the age of 15. The

State established that H.D. was eight years old (born November 23, 2010),

and the defendant (born (November 5, 1977) was 40 years old when he

committed sexual battery upon H.D. At trial, the jury heard H.D.’s

testimony and viewed the videos of her interviews at the Gingerbread

House. A rational trier of fact could conclude that the evidence established

the defendant’s guilt beyond a reasonable doubt. The sole testimony of H.D.

alone was sufficient to convict the defendant. H.D.’s testimony was

consistent throughout her ordeal, including her initial reporting of the

incident to Mesloh, and her participation in both Gingerbread House

interviews. She was further consistent that the substance coming from the

defendant’s penis was purple. We reject the defendant’s arguments about

possible coaching concerning H.D. stating, “I cannot recall,” and when she

described the hotel room setup as “it would be your normal two-bed with a

single, with the kitchen right beside it.” While H.D. may have overheard

terminology used to described the hotel rooms, it is not indicative that she

has been coached. H.D.’s testimony remained consistent. The jury clearly

chose to accept H.D.’s, Mesloh’s, Hadley’s, and Det. McKay’s testimony as

8

more credible than that of the defendant. It was within the discretion of the

trier of fact to make such a credibility determination, and this court will not

disturb this determination on appeal. This assignment of error lacks merit

and is rejected.

Enhancement invalid

In his second assignment of error, the defendant argues that the bill of

information, as amended when the trial commenced, was substantially

defective, as well as the jury instructions and the verdict form. Specifically,

he urges that the jury instructions did not require the jury to find that H.D.

was under the age of 13 and that the defendant was over the age of 17 to

support the enhanced sentence; it only required that the jury find that H.D.

was under 15. Because of the age factor, the defendant contends that the

amended bill of information and jury instructions failed to comply with

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435

(2000). The defendant urges that he should have been sentenced pursuant to

La. R.S. 14:43.1(C)(1) rather than La. R.S. 14:43.1(C)(2), and his sentenced

should be vacated.

The State argues that the amended bill of information that the clerk

read stated the defendant’s age, H.D.’s age, and that H.D. was under the age

of 15 and at least three years younger than the defendant. The State urges

that the statute, the amended bill of information, and the jury charge required

the necessary findings of the age of H.D. and that the defendant was more

than three years older than H.D. based on the testimony and evidence

presented at trial. The State asserts that all the elements of sexual battery

were proven, and the fact that the defendant was over the age of 17 at the

9

time of the sexual battery required the sentencing be pursuant to La. R.S.

14:43.1(C)(2).

In Apprendi, supra, the United States Supreme Court held that,

“[o]ther than the fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be submitted to a

jury and proved beyond a reasonable doubt.” The defendant in Apprendi,

supra, pled guilty to an offense which carried a sentencing range of 5 to 10

years. After the plea, but before sentencing, the prosecution moved under

the New Jersey hate crime law to increase the penalty range to 10 to 20

years. The New Jersey procedure for sentencing enhancement under the

hate crime statute allowed the matter to be tried by a judge and prescribed a

preponderance of the evidence burden of proof. In reversing the ruling, the

United States Supreme Court held that, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury and proved

beyond a reasonable doubt.”

In State v. Gibson, 09-486 (La. App. 5 Cir. 3/9/10), 38 So. 3d 373,

writ denied, 10-0802 (La. 11/05/10), 50 So. 3d 814, the defendant was

convicted of sexual battery. The defendant argued that the trial court erred

in sentencing him in accordance with the penalty provision of La. R.S.

14:43.1(C)(2), an enhanced penalty imposed when the offense involves a

victim under 13 years old and the offender is 17 years or older. The

defendant asserted that neither the jury’s verdict nor the jury instructions

referenced the additional age requirements of La. R.S. 14:43.1(C)(2). The

defendant was initially charged with aggravated rape but was found guilty of

the responsive verdict of sexual battery. The jury, however, did not indicate
10

on the verdict form that the defendant was older than 17 years of age or that

the victim was under the age of 13. The Gibson court held that the failure to

submit a sentencing factor to the jury is not a structural error and is subject

to harmless error analysis. State v. Robinson, 49,821 (La. App. 2 Cir.

5/20/15), 166 So.3d 395, writ denied, 15-1400 (La. 9/16/16), 206 So. 3d

201. It further held that the State must explicitly note in the bill of

information that the enhanced sentence provision is applicable to a

defendant, and the trial court must include a jury instruction reflecting the

ages of the victim and defendant. State v. Gibson, supra; State v. Robinson,

supra. However, a harmless error analysis is applicable in instances where

these requirements are not met. Neder v. United States, 527 U.S. 1, 119 S.

Ct. 1827, 144 L. Ed. 2d 35 (1999); State v. Gibson, supra; State v. Robinson,

supra.

Here, the alleged error is clearly an Apprendi violation. The State

should have explicitly noted in the amended bill of information and jury

instructions that the enhanced sentence provision in La. R.S. 14:43.1(C)(2)

was applicable to the defendant and H.D. was under the age of 13, not 15.

However, we find that a harmless error analysis is appropriate in this case to

determine whether the trial court’s error in failing to instruct the jury as to

the enhanced penalty provision of La. R.S. 14:43.1(C)(2) was harmless. At

all times, the bill of information contained the victim’s initials, the victim’s

and the defendant’s birthdays, the defendant’s name, the time frame of the

sexual battery, and La. R.S. 14:43.1(A)(2). Here, H.D. testified that she

was born on November 23, 2010, and the bill of information indicated the

same. She further testified that the abuse occurred once when she lived with

her mother, the defendant, and her siblings in a home, but other times in
11

hotels or when the family lived with friends prior to September 11, 2018.

Det. McKay testified that H.D. was eight years old when the investigation

began in January 2019. The defendant’s physical appearance was open to

view, and the jury used their logic and reasoning to determine the

defendant’s age. The State proved beyond a reasonable doubt that H.D. was

under the age of 13 and that the defendant was over the age of 17 to utilize

the enhancement. Although the trial court clearly committed an Apprendi

violation, we find the error was harmless. Accordingly, this assignment of

error lacks merit and is rejected.

Excessive Sentence

In his third assignment of error, the defendant argues that the trial

court imposed an excessive sentence. The defendant contends that he is 44

years old and had no prior conviction for a crime of violence or a sex

offense. He asserts that this life sentence will lead to him “dying in jail.”

The State counters that the trial court (1) had the benefit of a detailed pre-

sentence investigation report (“PSI”); (2) the trial court considered the

guidelines of La. C. Cr. P. art. 894.1; (3) it gave reasons for the sentence;

and (4) the sentence was within the sentencing range for the offense. It

urges that the defendant benefited from receiving 75 years rather than the

maximum of 99 years.

An appellate court utilizes a two-pronged test in reviewing a sentence

for excessiveness. First, the record must show that the trial court took

cognizance of the criteria set forth in La. C. Cr .P. art. 894.1. The trial judge

is not required to list every aggravating or mitigating circumstance so long

as the record reflects that he adequately considered the guidelines of the

article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. West, 53,526 (La.
12

App. 2 Cir. 6/24/20), 297 So. 3d 1081; State v. Sandifer, 53,276 (La. App. 2

Cir. 1/15/20), 289 So. 3d 212; State v. DeBerry, 50,501 (La. App. 2 Cir.

4/13/16), 194 So. 3d 657, writ denied, 16-0959 (La. 5/1/17), 219 So. 3d 332.

The articulation of the factual basis for a sentence is the goal of La. C. Cr .P.

art. 894.1, not rigid or mechanical compliance with its provisions. Where

the record clearly shows an adequate factual basis for the sentence imposed,

remand is unnecessary even where there has not been full compliance with

La. C.Cr.P. art. 894.1. State v. Lanclos, 419 So. 2d 475 (La. 1982); State v.

Lee, 53,461 (La. App. 2 Cir. 4/22/20), 293 So. 3d 1270, writ denied, 20-

00582 (La. 10/14/20), 302 So. 3d 1113; State v. Payne, 52,310 (La. App. 2

Cir. 1/16/19), 262 So. 3d 498; State v. DeBerry, supra. The trial court is in

the best position to consider the aggravating and mitigating circumstances of

a particular case, and, therefore, is given broad discretion in sentencing.

State v. Cook, 95-2784 (La. 5/31/96), 674 So. 2d 957, cert. denied, 519 U.S.

1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996); State v. West, supra; State v.

Valadez, 52,162 (La. App. 2 Cir. 8/15/18), 251 So. 3d 1273; State v.

Jackson, 51,575 (La. App. 2 Cir. 9/27/17), 244 So. 3d 764; State v. Allen,

49,642 (La. App. 2 Cir. 2/26/15), 162 So. 3d 519, writ denied, 15-0608 (La.

1/25/16), 184 So. 3d 1289. 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. DeBerry, supra. The trial court is not required to assign

any particular weight to any specific matters at sentencing. State v. Parfait,

52,857 (La. App. 2 Cir. 8/14/19), 278 So. 3d 455, writ denied, 19-01659 (La.

12/10/19), 285 So. 3d 489.
13

Second, an appellate court must determine if the sentence is

constitutionally excessive. State v. Smith, 01-2574 (La. 1/14/03), 839 So. 2d

1. A sentence is unconstitutionally excessive when it imposes punishment

grossly disproportionate to the severity of the offense or constitutes nothing

more than needless infliction of pain and suffering. State v. Bonanno, 384

So. 2d 355 (La. 1980); State v. Smith, supra. The relevant question is

whether the trial court abused its broad sentencing discretion, not whether

another sentence might have been more appropriate. State v. Cook, 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, 01-0467 (La. 1/15/02), 805 So. 2d 166;

State v. West, supra; State v. Meadows, 51,843 (La. App. 2 Cir. 1/10/18),

246 So. 3d 639, writ denied, 18-0259 (La. 10/29/18), 254 So. 3d 1208. The

sentencing court has wide discretion to impose a sentence within the

statutory limits, and the sentence imposed will not be set aside as excessive

absent a manifest abuse of that discretion. State v. Williams, 03-3514 (La.

12/13/04), 893 So. 2d 7; State v. Allen, supra. 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.

Williams, supra; State v. Tubbs, 52,417 (La. App. 2 Cir. 11/20/19), 285 So.

3d 536, writ denied, 20-00307 (La. 7/31/20), 300 So. 3d 404, on recons., 20-

00307 (La. 9/8/20), 301 So. 3d 30, and writ denied, 20-00307 (La. 9/8/20),

301 So. 3d 30.

At the sentencing hearing, the trial court complied with La. C. Cr. P.

art. 894.1. It reviewed the PSI, the facts of the case, and the victim’s impact

statement from her guardian/ grandmother. While the trial court did not
14

provide a detailed analysis of the statutory sentencing guidelines, it clearly

articulated a factual basis for the sentence imposed. The trial court found

that there is an undue risk that during the period of a suspended sentence or

probation that the defendant will commit another crime; the defendant is in

need of correctional treatment or a custodial environment that can be

provided most effectively by his commitment to an institution; the

defendant’s conduct during the commission of the offense manifested

deliberate cruelty to the victim; the defendant used his position or status to

facilitate the commission of the offense because H.D. was under his direct

control and supervision as the defendant was her stepfather; and the

defendant knew or should have known that the victim of the offense was

particularly vulnerable or incapable of resistance due to extreme youth.

As to the second prong of the excessive-sentence test, the sentence of

75 years at hard labor, with the first 25 years to be served without the

possibility of probation, parole, or suspension of sentence for sexual battery

is not constitutionally excessive. The sentence is not out of proportion to

the seriousness of the offenses and does not purposely and needlessly inflict

pain and suffering. Considering the defendant’s sexual battery of H.D., the

sentence imposed by the trial court does not shock the sense of justice, nor is

it grossly disproportionate to the severity of the offense. This assignment of

error lacks merit and is rejected.

ERROR PATENT REVIEW

A review of the record reveals that the trial court did not properly

inform the defendant of the sex offender notification requirements outlined

in La. R.S. 15:543. At all relevant times, sexual battery of a victim under the

age of 15 has been defined as a sex offense by La. R.S. 15:541. La. R.S.
15

15:542 provides registration requirements for sex offenders. Additionally,

La. R.S. 15:543 requires that the trial court notify a defendant charged with a

sex offense in writing of the registration requirements. There being no

indication in the record as to whether the defendant is aware of the sex

offender registration requirements, we remand this case to the trial court for

the purpose of providing him the appropriate written notice of the sex

offender registration requirement. State v. Dale, 50,195 (La. App. 2 Cir.

11/18/15), 180 So. 3d 528; State v. Williams, 49,249 (La. App. 2 Cir.

10/1/14), 149 So. 3d 462, writ denied, 14-2130 (La. 5/22/15), 173 So. 3d

1167; State v. Scott, 42,997 (La. App. 2 Cir. 2/13/08), 975 So. 2d 782.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and

sentence. This matter is remanded to the trial court with instructions to

correct the minutes and to provide defendant with written notice of the

requirement that he register as a sex offender.

CONVICTION AND SENTENCE AFFIRMED; REMANDED

WITH INSTRUCTIONS.

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