State of Louisiana v. Joshua Master

Judgment rendered July 17, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 55,705-KA
No. 55,706-KA
(Consolidated Cases)

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

JOSHUA MASTERS Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 385,477

Honorable Donald Edgar Hathaway, Jr., Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Peggy J. Sullivan

JOSHUA MASTERS Pro Se

JAMES E. STEWART, SR. Counsel for Appellee
District Attorney

JASON W. WALTMAN
REBECCA A. EDWARDS
COURTNEY RAY
Assistant District Attorneys

*****

Before STONE, COX, and MARCOTTE, JJ.

COX, J.

This criminal appeal arises from the First Judicial District Court,

Caddo Parish, Louisiana. Defendant, Joshua Masters (“Masters”), was

convicted of indecent behavior with a juvenile under the age of 13, in

violation of La. R.S. 14:81(A)(1) and (H)(2). Masters, as a fourth felony

offender, was sentenced to 40 years at hard labor, without benefit of parole,

probation, or suspension of sentence. Masters now appeals and presents four

counseled assignments of error concerning sufficiency of the evidence, jury

instruction, introduction of evidence under La. C. E. art. 412.2, and

sentencing. For the reasons expressed, we affirm.

FACTS

On November 16, 2021, Masters was charged, by bill of information,

with indecent behavior with a juvenile, obstruction of justice, and unlawful

use of a social networking site. The amended bill of information, filed on

January 24, 2023, charged Masters with indecent behavior with a juvenile

under the age of 13, in violation of La. R.S. 14:81(A)(1) and (H)(2). Jury

trial began on February 7, 2023, wherein the following testimony was

presented:

First, M.A. testified that she was born on March 1, 2011, and was 11

years old. M.A. identified Masters in open court and stated that in 2021, she

lived in the home with her mother and Masters. M.A. testified that she had

her own room that was located on the opposite end of the home from the

bedroom her mother and Masters shared. M.A. stated that she took

Melatonin either every night or every other night to help her sleep and that

the medicine was stored in her mother’s room. M.A. recalled that on

September 28, 2021, she took Melatonin before she went to bed around 8:30

p.m. or 9:00 p.m., and that she wore an oversized t-shirt and shorts.

M.A. testified that she was woken up by her mother and Masters

arguing and that she was unsure why her shorts and underwear were pulled

down. M.A. stated that after she pulled her clothing up, her mother tried to

get Masters away from her. On cross-examination, M.A. testified that she

took the Melatonin in front of her mother and Masters before she went to her

room for the night. In clarifying her statements from her forensic interview,

M.A. stated that she was unsure why she told the interviewer Masters was

not in the room when she woke. Specifically, M.A. stated, “I don’t

remember exactly what I said, but I remember my mom was, like, trying to

get me away from him.” On redirect, M.A. testified again that when she

woke up, Masters was in her room and that her mother tried to get her away

from Masters by having her go across the street to her cousin’s home.

Patricia Allen (“Allen”), M.A.’s mother, testified next and identified

Masters in open court. She testified that she had been in a relationship with

Masters for four years and that Masters lived in the home with her and M.A.

Allen testified that most nights, M.A. took Melatonin to help her sleep and

that she kept the medicine in her room for M.A. to take in front of her.

Allen testified that on the night of September 28, 2021, M.A. came into her

room, as usual, and took her medicine around 7:30 p.m. or 8:00 p.m. Allen

stated that sometime after that, she fell asleep but woke up around 10:30

p.m. and noticed that Masters was not in bed.

Allen explained that it was not unusual for her to wake up and

discover that Masters was not in bed at night, but that usually she would call

for him, there would be a delayed response, and then he would return to bed.
2

Allen stated that she decided to get up and look for Masters. Allen stated

that when she did not find Masters in the kitchen or living room, she noticed

that M.A.’s door was open, which was unusual because M.A. normally slept

with the door closed. Allen explained that when she went to close M.A.’s

door, she saw that M.A.’s bottom was exposed, and that Masters was in the

room with his pants and underwear pulled down while he masturbated.

Allen explained that it was not normal for M.A.’s clothing to come down

while she slept.

Allen stated that when she saw this, she screamed and attacked

Masters to get him away from M.A. Allen testified that Masters repeatedly

stated that he was not doing anything and that if Allen called the police it

would “ruin [his] life,” that he would “go to jail forever,” and begged her not

to call the police and let him leave instead. Allen stated that during the

argument, M.A. woke and asked why her clothing was pulled down. Allen

stated that she told M.A. to pull her clothing up and to go across the street to

her nephew’s home so M.A. could get away from Masters, who was still in

the room.

Allen testified that although she called the police, Masters left before

the officers arrived. Allen stated that later that same night when she

returned to the home, Masters was already in the home, and when she called

the police, he fled. Allen stated that Masters returned for a third time, and

officers were finally able to apprehend him. On cross-examination, Allen

testified that Masters was in the room when M.A. woke up and that M.A.

was asleep when she discovered Masters in the room.

Finally, Detective Thomas Lites (“Det. Lites”) of the Caddo Parish

Sheriff’s Office testified that when he was assigned this case, he contacted
3

Allen and arranged for M.A. to give an interview at Gingerbread House.

Det. Lites stated that after that, Allen called and informed him that Masters

was in her home. Det. Lites stated that he immediately sent out patrol to

Allen’s home and apprehended Masters. Det. Lites then identified Masters

in open court. Thereafter, the State introduced Masters’ court record from

Bryan County, Oklahoma. Det. Lites confirmed that the exhibit was a copy

of Masters’ record and testified that Masters had been charged and found

guilty of felony rape by instrumentation.1 Defense counsel objected to the

introduction of the evidence as being more prejudicial than probative, but

the objection was subsequently overruled.

At the close of testimony and closing arguments, defense counsel

objected to the trial court’s denial to amend jury instructions to include an

instruction regarding the “in the presence of” element for this offense, citing

State v. Interiano, 03-1760 (La. 2/13/04), 868 So. 2d 9. The trial court

explained:

It was my understanding in chambers you presented me with a
copy of the caselaw and it stated that when the State was
relying solely on in the presence of. It stated that it didn’t apply
where there was touching. And in this instance, the evidence
suggests that Mr. Masters pulled the pants and undergarments
down of the victim, and that would result in a touching.
Therefore, the request is denied.

Thereafter, Masters was found guilty as charged.

On March 3, 2023, the State filed a fourth felony habitual offender bill

against Masters based upon the following predicate offenses:

• On March 29, 2007, Masters pled guilty to attempted failure
to register as a sex offender. Masters’ one year at hard labor
sentence was suspended, and he was placed on one year of

1
Masters was convicted of rape by instrumentation in 2003 in Byran County,
Oklahoma, in violation of 21 O.S.2001, § 1111.1.

4

supervised probation. Masters’ probation was revoked on
May 27, 2008, and his original sentence of one year at hard
labor was imposed.
• On November 16, 2011, Masters pled guilty to failure to
register as a sex offender. He was sentenced to three and
one-half years at hard labor.
• On April 6, 2016, Masters pled guilty to failure to register as
a sex offender. Masters was sentenced to two years at hard
labor without benefit of probation, parole, or suspension of
sentence.

On April 20, 2023, during the habitual offender hearing, John Rowe

(“Rowe”), a probations officer of the Department of Public Safety and

Corrections, testified that on March 29, 2007, Masters pled guilty to

attempted failure to register as a sex offender and was sentenced to one year

at hard labor, with credit for time served, and a one-year probation period.

Rowe further testified that on October 13, 2011, Masters was charged with

failure to register as a sex offender and pled guilty as charged. Rowe also

identified that on November 14, 2015, Masters was again charged with a

failure to register as a sex offender and that on April 6, 2016, Masters pled

guilty and was sentenced to two years at hard labor. Corporal John McCain

took Masters’ fingerprints, compared them to the prints on the charges read

by Rowe, and confirmed that they belonged to the same individual.

Prior to sentencing, Allen provided a victim impact statement on

M.A.’s behalf, and Masters’ mother, Kathy Masters, testified on behalf of

Masters. After reviewing Masters’ personal and criminal history, and the

factors listed under LA. C. Cr. P. art. 894.1(A) and (B), the trial court noted

that Masters failed to accept responsibility for his actions and sentenced

Masters to 40 years at hard labor without benefit of probation, parole, or

suspension of sentence, with credit for time served. This appeal followed.

5

DISCUSSION

Sufficiency of the Evidence

By his first counseled assignment of error, Masters argues there was

insufficient evidence to convict him of indecent behavior with a juvenile.

Masters argues that to be found guilty, there must have been a known

commission of a sexual act, such that the minor “sees or senses the act is

taking place.” Masters argues again that M.A. was asleep and could not see

or sense the act and that there was no testimony to show he touched M.A. in

a lewd or lascivious manner. He maintains that the mere fact that M.A.’s

clothing was “out of place” and her bottom exposed, does not mean that he

was “responsible for the state of her clothing,” and the State did not exclude

the possibility that M.A.’s clothing “became disarrayed as the child toss[ed]

and turned in the night.”

The standard of appellate review for a sufficiency of the evidence

claim is whether, after viewing the case in a 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. Hearold, 603 So.

2d 731 (La. 1992). 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.

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). The appellate court does not assess credibility or reweigh the
6

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

reviewing court affords great deference to a trial court’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, writ denied, 02-3090 (La.

11/14/03), 858 So. 2d 422.

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 sufficient to support a factual conclusion. State v. Johnson, 54,028

(La. App. 2 Cir. 9/22/21), 328 So. 3d 524, writ denied, 21-01850 (La.

2/22/22), 333 So. 3d 441; State v. Elkins, 48,972 (La. App. 2 Cir. 4/9/14),

138 So. 3d 769, writ denied, 14-0992 (La. 12/8/14), 153 So. 3d 438.

In viewing the evidence and testimony in the light most favorable to

the State, we find that the testimony produced at trial was sufficient to

convict Masters of the charged offense. Here, Masters was charged with

indecent behavior with a juvenile in violation of La. R.S. 14:81(A), which is

defined, in pertinent part, as:

A. Indecent behavior with juveniles is the commission of any of
the following acts with the intention of arousing or gratifying
the sexual desires of either person:

(1) 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. Lack of knowledge of the child’s age shall not be a
defense[.]

To convict, the State must prove and the jury must find (1) that the offender

committed a lewd or lascivious act upon the person of or in the presence of

the victim, (2) that the act described was a lewd or lascivious act, (3) that the

victim was under the age of 17 and more than two years younger than the

defendant at the time of the alleged offense, (4) that the defendant was at
7

least 17 years of age at the time of the alleged offense, and (5) that the

defendant acted with a specific intent to arouse or gratify his own sexual

desires or the sexual desires of the victim. State v. Collins 52,885 (La. App.

2 Cir. 9/25/19), 280 So. 3d 891.

Masters does not dispute that M.A. was under the age of 17 at the time

of the act, that there is an age difference of more than two years between

him and M.A., that his actions are considered lewd and lascivious, or that the

act was done with the specific intent to “arouse or gratify his own sexual

desires.” Instead, Masters argues that the evidence was insufficient to

provide beyond a reasonable doubt that the act was done in M.A.’s presence.

In support, Masters relies once more on the decision in Interiano, supra, for

the supposition that in the absence of physical touching, the victim must

have some sensory awareness of the act.

Here, it is undisputed that M.A. was asleep when Masters committed

the act in the minor’s room. However, we find that there was sufficient

testimony presented for a jury to reasonably conclude that Masters touched

M.A., i.e., that he pulled her clothing down after he entered the room. Allen

specifically testified that it was not normal for M.A.’s clothing to come

down so that her body would be exposed while she slept. Importantly, M.A.

testified that when she woke up, she had to ask her mother why her clothing

was pulled down, indicating that this was out of the ordinary for the minor.

Given the testimony presented, we find that there was sufficient

evidence for a reasonable jury to find that Masters purposefully entered

M.A.’s room after she went to bed and pulled her clothing down before he

committed the act. Moreover, it is clear from the jury’s verdict that it found

both Allen and M.A.’s testimony was credible to support the conviction, and
8

the jury’s decision to accept the victim’s testimony as truthful is entitled to

great deference. Therefore, we find the foregoing testimony was sufficient

to support the jury’s verdict, and this assignment of error is also without

merit.

Jury Instructions

By his second counseled assignment of error, Masters argues that the

trial court erred in denying his oral request to provide additional jury

instructions “as to the portion of the statute referring to the offense being

committed in ‘the presence of’ the minor child.” In support, Masters cites

the Louisiana Supreme Court decision in Interiano, supra, in which the

defendant was charged with indecent behavior with a juvenile after he

admitted he occasionally watched pornography and masturbated while his

10-month-old played or slept nearby.

The defendant in Interiano, supra, argued that La. R.S. 14:81(A) was

“unconstitutionally vague, overbroad, and ambiguous,” because it failed to

define the terms “lewd and lascivious” and “in the presence of.” The trial

court granted the motion, and on direct appeal, the Court addressed, in

pertinent part, the statutory phrase “in the presence of” to determine whether

some form of sensory awareness must accompany the physical proximity to

the lewd and lascivious act. In part, the Court determined that:

[T]he complete definition of “presence” encompasses sensory
awareness as well as physical proximity. The legal usage of the
word “presence” denotes something more than being in the
immediate vicinity; it is the viewing or awareness of an act that
gives legal significance to the term.
...
. . . [I]n the absence of a physical touching upon the person
of the child, La. R.S. 14:81(A) requires the knowing
commission of a sexual act such that the child sees or senses
that a sexual act is taking place, even if the child is not able to

9

articulate or even comprehend what the offender is doing, for a
violation to occur. (Emphasis added).

From this, Masters argues that no testimony was presented that he

touched M.A. or pulled her clothing down; therefore, he maintains that the

jury should have been instructed that the minor should either “see or sense

the act taking place to satisfy the ‘in the presence of’ element of the

offense.” He argues that the failure to provide this instruction confused the

jury and left them “free to speculate, contrary to due process and the

guidance” in Interiano, supra. We disagree.

The trial court is required to charge the jury “as to the law applicable

to the case.” La. C. Cr. P. art. 802. The State and the defendant shall have

the right before argument to submit to the court special written charges for

the jury. A requested special charge shall be given by the court if it does not

require qualification, limitation, or explanation, and if it is wholly correct

and pertinent. La. C. Cr. P. art. 807. The charge, however, must be

supported by the evidence. State v. Perkins, 13-1917 (La. 9/3/14), 149 So.

3d 206; State v. Telford, 384 So. 2d 347 (La. 1980). Failure to give a

requested jury instruction constitutes reversible error only when there is a

miscarriage of justice, prejudice to substantial rights of the accused, or a

substantial violation of a constitutional or statutory right. La. C. Cr. P. art.

921; State v. Perkins, supra; State v. Marse, 365 So. 2d 1319 (La. 1978).

In Interiano, supra, the Supreme Court made clear that in the absence

of physical contact, the victim must be perceptually aware that the act

occurred. In the present case, the State presented the theory to the jury that

after M.A. fell asleep, Masters entered her room and pulled M.A.’s clothing

down before performing the lewd act. Although Masters argues that there

10

was no evidence to support this, M.A.’s testimony revealed her confusion

about the state of her clothing when she woke up, and Allen further testified

that it was not normal for M.A.’s clothing to come down while she slept.

In denying Masters’ oral request for additional jury instruction, the

trial court explained:

It was my understanding in chambers you presented me with a
copy of the case law and it stated that when the state was
relying solely on in the presence of. It stated that it didn’t apply
where there was touching. And in this instance, the evidence
suggests that Mr. Masters pulled the pants and undergarments
down of the victim, and that would result in a touching.
Therefore, the request is denied.

Given the State’s opening statement, and the subsequent testimony from

M.A. and Allen that it was not normal for M.A.’s clothing to come down

while she slept, we cannot say that the trial court erred in denying Masters’

oral request for special jury instructions.

Moreover, we do not find that the trial court’s decision not to include

the requested language was prejudicial to Masters’ constitutional or statutory

rights, nor did the decision result in a miscarriage of justice. Accordingly,

we find that this assignment of error lacks merit.

Other Crimes Evidence

By Masters’ third counseled assignment of error, he argues that the

evidence of his prior conviction in 2003 should not have been entered into

evidence because no pretrial hearing was held regarding the use of the

conviction as evidence. Masters further argues that the prior offense was

inadmissible under La. C. E. art. 412.2 because the incident involved an

adult victim and did not show whether he had a lustful disposition toward

children.

11

La. C.E. art. 412.2, which governs the admission of evidence of

similar crimes, wrongs, or acts in sex offense cases, 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.

La. C.E. art. 412.2 creates an exception to the rule set forth in La. C.E. art.

404(B)(1), which generally prohibits the introduction of evidence of “other

crimes, wrongs or acts” for the purpose of proving a person’s character or

propensity to criminal activity. State v. Layton, 14-1910 (La. 3/17/15), 168

So. 3d 358.

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. La. C.E. art. 403. Questions of relevancy and admissibility are

discretion calls for the trial judge, and determinations regarding relevancy

and admissibility should not be overturned absent a clear abuse of discretion.

State v. Braden, 55,275 (La. App. 2 Cir. 9/27/23), 372 So. 3d 900, writ

denied, 23-01428 (La. 4/9/240 382 So. 3d 830.

12

This same standard is applied to rulings on the admission of other

crimes evidence and evidence under La. C.E. art. 412.2. State v. Allen,

54,153 (La. App. 2 Cir. 12/15/21), 331 So. 3d 1101. The introduction of

inadmissible other crimes evidence results in a trial error subject to harmless

error analysis on appeal. Id. In this context, the proper analysis for harmless

error review is “to determine whether the guilty verdict actually rendered at

trial was surely unattributable to the erroneous admission of La. C.E. art.

412.2 evidence.” Id.

In this case, the State filed a notice of intent to introduce evidence

under La. C.E. art. 412.2 of Masters’ prior conviction in 2003 of rape by

instrumentation in Bryan County, Oklahoma. The notice indicated that the

evidence would be used to show the “defendant’s prior sexually assaultive

behavior and/or the defendant’s lustful disposition toward children.” During

trial, the State, without objection, provided in its opening statement that it

would introduce testimony regarding Masters’ previous conviction of a

sexual offense. When Det. Lites testified about the conviction, defense

counsel objected solely on the basis that the evidence was more prejudicial

than probative, which was subsequently overruled.

Now, on appeal, Masters contends that the other crimes evidence was

inadmissible under La. C.E. art. 412.2. However, as the record reflects, no

contemporaneous objection was made to prohibit the introduction of the

evidence under this article. Our law is well-established: to preserve an issue

for appellate review, a defendant must contemporaneously state an objection

with the occurrence of the alleged error and is limited to the grounds for

objection articulated at trial and a new basis for an objection may not be

raised for the first time on appeal. State v. Copeland, 52,742 (La. App. 2
13

Cir. 9/25/19), 280 So. 3d 848, writ denied, 19-01646 (La. 9/27/21), 324 So.

3d 89.

However, even if the admission of the evidence was erroneous, we

find that it was nevertheless harmless. Although Masters argues that the

error created confusion for the jury, we cannot say that the verdict was

influenced by the sparse testimony regarding the previous offense, especially

when Det. Lites testified that Masters’ previous conviction did not mean he

was guilty of the present offense. We give deference to the jury in weighing

the testimony presented and find that M.A.’s and Allen’s testimonies during

trial was sufficient for the jury to conclude, absent the introduction of the

other crimes evidence, that Masters was guilty of the present offense.

Therefore, we find that this assignment of error lacks merit.

Excessive Sentence

By his final counseled assignment of error, Masters argues that his 40-

year sentence was unconstitutionally harsh and excessive. He asserts that

this is a near-maximum sentence in a case in which he is not the worst of

offenders, and this is not the worst of offenses. Masters further argues that

the trial court failed to provide whether his entire sentence was imposed

without benefit of parole pursuant to La. R.S. 14:81, which he claims only

requires two years to be imposed without benefit of parole, probation, or

suspension of sentence.

Appellate review to determine whether a sentence is constitutionally

excessive is a two-pronged inquiry whereby the court first considers whether

the trial court took cognizance of the guidelines set forth in La. C. Cr. P. art.

894.1, and the second considers constitutional excessiveness. State v. Wing,

51,857 (La. App. 2 Cir. 2/28/18), 246 So. 3d 711. However, in this case, no
14

motion to reconsider sentence was filed; therefore, this Court’s review is

limited to the constitutional excessiveness of the sentence alone. La. C. Cr.

P. art. 881.1; State v. Williams, 51,667 (La. App. 2 Cir. 9/27/17), 245 So. 3d

131, writ not cons., 18-0017 (La. 8/3/18), 248 So. 3d 322; State v. Turner,

50,221 (La. App. 2 Cir. 1/20/16), 186 So. 3d 720, writ denied, 16-0283 (La.

2/10/17), 215 So. 3d 700.

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. Smith, 01-

2574 (La. 1/14/03), 839 So. 2d 1; State v. Mandigo, 48,801 (La. App. 2 Cir.

2/26/14), 136 So. 3d 292, writ denied, 14-0630 (La. 10/24/14), 151 So. 3d

600. 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. Wing, supra. The trial court maintains wide discretion in the

imposition of sentences within statutory limits, and absent a showing of

manifest abuse, an imposed sentence will not be set aside as excessive. State

v. West, 53,526 (La. App. 2 Cir. 6/24/20), 297 So. 3d 1081.

Therefore, appellate review does not consider whether another

sentence may have been more appropriate, but whether the trial court abused

its discretion. State v. Dale, 53,736 (La. App. 2 Cir. 1/13/21), 309 So. 3d

1031; State v. Davis, 50,149 (La. App. 2 Cir. 11/18/15), 181 So. 3d 200.

Regarding Masters’ conviction, La. R.S. 14:81(H)(2) provides:

Whoever commits the crime of indecent behavior with juveniles
on a victim under the age of thirteen when the offender is
seventeen years of age or older, shall be punished by
imprisonment at hard labor for not less than two nor more than
twenty-five years. At least two years of the sentence imposed
15

shall be served without benefit of parole, probation, or
suspension of sentence. (Emphasis added).

Masters was also adjudicated as a fourth felony offender under La. R.S.

15:529.1(A)(4)(b) which provides, in pertinent part:

If the fourth felony and no prior felony is defined as a crime of
violence under R.S. 14:2(B) or as a sex offense under R.S.
15:541, the person shall be imprisoned for not less than twenty
years nor more than twice the longest possible sentence
prescribed for a first conviction. If twice the possible sentence
prescribed for a first conviction is less than twenty years, the
person shall be imprisoned for twenty years.

Any sentence by the trial court for a habitual offender must fall within the

sentencing requirements of the habitual offender statute. In this case, the

sentencing range for this offense was not less than 20 years but no more than

50 years at hard labor, with at least two years to be served without benefit of

parole, probation, or suspension of sentence. After a review of the record,

and consideration of the particular facts of this case, we cannot say the trial

court abused its discretion in sentencing.

Masters argues his sentence was improper, in part, because the trial

court failed to specify whether the entire sentence was imposed without

benefit of parole or whether only two years without parole, as required by

La. R.S. 14:81, was imposed. In sentencing Masters, the trial court

provided:

Whoever commits the crime of indecent behavior with juveniles
under the age of 13 when the offender is 17 years of age or
older shall be sentenced to imprisonment at hard labor for not
less than two nor more than 25 years. At least two years of the
sentence imposed shall be without benefit of probation, parole,
or suspension of sentence.

Having this day considered the evidence of the prior felony
convictions within the requirements of Louisiana Revised
Statute 15:529.1, and finding that it is in proper form
thereunder, the Court finds the accused, as to the charge of
indecent behavior with juveniles under the age of 13, to be a
16

fourth felony habitual offender. If the fourth felony and the no
prior felony is defined as a crime of violence or a sex offense,
the person shall be imprisoned for not less than 20 years nor
more than twice the longest possible sentence prescribed for a
first conviction or 20 to 50 years at hard labor with at least two
years to be served without the benefit of probation, parole or
suspension of sentence. If twice the possible sentence
prescribed for a first conviction is less than 20, the person shall
be imprisoned for 20 years.
...
It is ordered, adjudged and decreed that Mr. Masters, as a fourth
felony offender, be sentenced in accordance with Louisiana
Revised Statute 15:529.1 and is hereby sentenced to 40 years at
hard labor without benefit of probation, parole or suspension of
sentence.

As provided, La. R.S. 14:81 requires that at least two years of the sentence

shall be served without benefits, not that only two years can be imposed.

Masters further argues that the trial court did not provide whether a portion

or the entirety of his sentence should be served without parole, but this Court

finds no confusion in the trial court’s instruction. Specifically, in response

to clarification from the clerk regarding the sentence, the trial court stated,

“Forty years without benefit.”

On this Court’s review, it is clear the trial court intended to impose the

40-year sentence without benefits for the entirety of the sentence.

We further find that the 40-year sentence is not constitutionally

excessive given the particular facts of this case and that Masters was

adjudicated a fourth felony offender. Prior to sentencing, the trial court

heard a victim impact statement from Allen, who stated, in part, that

Masters’ actions may have been “permanently detrimental against [M.A.’s]

emotional wellbeing,” that Masters violated M.A.’s personal boundaries, and

that he broke their trust after she allowed him to live with them. The trial

court then heard a statement from Masters’ mother, who provided that

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Masters was “still proclaiming his innocence in this matter” and that Masters

had a difficult time registering as a sex offender.

At the close of this testimony, the trial court, in sentencing Masters,

complied with the La. C. Cr. P. art. 894.1 factors, finding no mitigating

factors but detailed several aggravating factors, including that Masters used

his position in the household to facilitate the offense, that the offense

resulted in significant permanent injury to the minor victim, and that Masters

had not accepted responsibility for his action. The trial court then reviewed

that Masters had a significant criminal history that primarily consisted of

convictions for failure to register as a sex offender, which indicated that he

would not “comply with any type of supervision.” The trial court further

spoke with Masters and considered his age, education, employment, as well

as his family and social history.

In reviewing the totality of the particular facts of this case, namely

that Masters intentionally went into M.A.’s room on the other end of the

home when he knew M.A. was asleep after taking her medicine and then

proceeded to commit the offense, that Masters failed on multiple occasions

to register as a sex offender, and that his sentence falls within the statutory

range for the offense, we find that Masters’ sentence is neither grossly out of

proportion to the severity of the offense nor does it shock the sense of

justice.

Accordingly, we find that the trial court did not err in imposing this

sentence, and this assignment of error lacks merit.

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Pro Se Assignments of Error

Masters also advances his own pro se assignment of error on appeal.

Specifically, Masters argues that trial counsel was ineffective regarding a

host of issues, including:

(1) Failure to properly interview him;
(2) Failure to “file motion on numerous claims in his defense”;
(3) Failure to submit written charges to the jury and only
provided an oral request to the judge in chambers;
(4) Failure to file a motion to quash that he specifically
requested in reference to the “in the presence of” element of the
offense;
(5) Failure to object to the introduction of evidence of his other
crimes, specifically his 2003 conviction in Oklahoma;
(6) Failure to argue that he “could not have caused significant
permanent damage to the victim [if] she never saw it”;
(7) Failure to request a pre-trial hearing to address the other
crimes evidence;
(8) Failure to file a motion to reconsider sentence or post-
verdict judgment of acquittal;
(9) Failure to argue that attempted failure to register as a sex
offender is not a crime;
(10) Failure to argue that the “judge falsely stated that [Masters]
refused to accept responsibility for his actions by remaining
silent, exercising his. . . Fifth Amendment Right”;
(11) Failure to argue that Masters was homeless, and the
circumstances surrounding it, which caused his failure to
register as a sex offender; and
(12) Failure to argue that at the time Masters failed to register,
homeless persons “could not register on probation or parole. . .
as [t]he statute has since changed to allow registration of
homeless persons of probation or parole.”

The Supreme Court set out the two-prong test for a defendant

claiming ineffective assistance of counsel in Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984): that counsel’s

performance was deficient; and the deficiency prejudiced his defense. State

v. Hilliard, 52,652 (La. App. 2 Cir. 8/14/19), 278 So. 3d 1065, writ denied,

19-01701 (La. 7/24/20), 299 So. 3d 68. Both the Louisiana and federal

constitutions guarantee a criminal defendant’s right to the effective

assistance of counsel. U.S. Const. amend. VI; La. Const. art. 1, § 13;
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Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L.Ed. 2d 799 (1963);

State v. Brooks, 94-2438 (La. 10/16/95), 661 So. 2d 1333; State v. Bayles,

53,696 (La. App. 2 Cir. 11/17/21), 329 So. 3d 1149.

Under the standard for ineffective assistance of counsel set out in

Strickland, supra, adopted by Louisiana’s Supreme Court in State v.

Washington, 491 So. 2d 1337 (La. 1986), a reviewing court must reverse a

conviction if the defendant establishes that counsel’s performance fell below

an objective standard of reasonableness under prevailing professional norms,

and counsel’s inadequate performance prejudiced the defendant to the extent

that the trial was rendered unfair and the verdict suspect. State v. Bayles,

supra. Claims of ineffective assistance of counsel are more properly raised

in an application for post-conviction relief in the trial court because this

provides the opportunity for a full evidentiary hearing under La. C. Cr. P.

art. 930. State v. McGee, 18-1052 (La. 2/25/19), 264 So. 3d 445. When the

record is sufficient, however, allegations of ineffective assistance of trial

counsel may be resolved on direct appeal in the interest of judicial economy.

Id.

A reviewing court must give great deference to trial counsel’s

judgment, tactical decisions, and trial strategy, strongly presuming he has

exercised reasonable professional judgment. State v. Miller, 54,897 (La.

App. 2 Cir. 1/11/23), 355 So. 3d 1165, writ denied, 23-00200 (La. 12/5/23),

373 So. 3d 713. A defendant making a claim of ineffective assistance of

counsel must identify certain acts or omissions by counsel which led to the

claim; general statements and conclusory charges will not suffice. Id.

After a review, we conclude that the defendant’s claims regarding his

claims for ineffective assistance of counsel do not meet the burden as set
20

forth in Strickland, supra, and are better suited for an evidentiary hearing

before a trial court in a post-conviction relief hearing. Accordingly, we do

not consider the defendant’s assignments of error and relegate the argument

regarding effective assistance of counsel to post-conviction relief.

CONCLUSION

For the reasons stated herein, Masters’ conviction and sentence

are affirmed.

AFFIRMED.

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