State of Louisiana v. Henrietta Williams

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1247

STATE OF LOUISIANA

VERSUS

HENRIETTA WILLIAMS

************

APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT,
PARISH OF CONCORDIA, NO. 06-021MH,
HONORABLE SHARON MARCHMAN, DISTRICT JUDGE

************

MICHAEL G. SULLIVAN
JUDGE

************

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
Michael G. Sullivan, Judges.

CONVICTION AFFIRMED; SENTENCE VACATED;
AND REMANDED WITH INSTRUCTIONS.

John Frederick Johnson
District Attorney
4001 Carter Street, Suite 9
Vidalia, Louisiana 71373
(318) 336-5526
Counsel for:
State of Louisiana

Charles C. Foti, Jr.
Attorney General
Molly L. Balfour
Assistant Attorney General
Post Office Box 94005
Baton Rouge, Louisiana 70804
(225) 326-6200
Counsel for:
State of Louisiana

Raymond Lee Cannon
Attorney at Law
Post Office Box 1108
Tallulah, Louisiana 71282-1108
(318) 574-2500
Counsel for Defendant/Appellant:
Henrietta Williams

Butch Wilson
Assistant Attorney General
Post Office Box 2391
Baton Rouge, Louisiana 70821
(225) 326-6000
Counsel for:
State of Louisiana

SULLIVAN, Judge.

On March 3, 2006, the Attorney General’s Office filed a bill of information in

Concordia Parish charging Henrietta Williams (hereinafter “Defendant”) with filing

a false public record, i.e., a false absentee ballot affidavit, in violation of La.R.S.

14:133. Following a jury trial on March 9, 2006, Defendant was found guilty as

charged.

On May 19, 2006, the trial court heard and denied Defendant’s motions for

arrest of judgment, post verdict judgment of acquittal, and new trial. Defendant then

waived sentencing delays, and the trial court sentenced her to five years at hard labor,

with all but eighteen months suspended, and five years of supervised probation.

Defendant filed a motion to reconsider the sentence, which the trial court heard and

denied on July 7, 2006.

Defendant now seeks review by this court, assigning five errors. For the

following reasons, we affirm Defendant’s conviction, but we vacate Defendant’s

sentence and remand with instructions.

Facts

On April 1, 2004, while at the home of Maud Williams (hereinafter

“Ms. Williams”) in Ferriday, Louisiana, Defendant helped Ms. Williams fill out an

absentee voting ballot. Ms. Williams’ two adult granddaughters, Renasha Reed and

Felicia Williams, were also at the residence, and Defendant asked them to sign as

witnesses to Ms. Williams’ signature on the “affidavit flap” of the mail-in ballot’s

envelope. The granddaughters refused because they had heard Defendant telling

Ms. Williams for whom to vote.

Defendant became upset and left with the ballot envelope and ballot. She then

visited the homes of Shirley Mason and Eloise Polk, asking each of them to sign as

witnesses, which they did. The Registrar of Voters for Concordia Parish received the

absentee ballot in Ms. Williams’ name the next day, April 2, 2004.

Errors Patent

In accordance with La.Code Crim.P. art. 920, this court reviews all appeals for

errors patent on the face of the record. After reviewing the record, we find that the

court minutes of trial require correction.

First, the court minutes indicate that the alternate juror was excused prior to the

jury retiring for deliberation; however, the minutes then list the alternate juror’s vote

during polling. The trial transcript confirms that the alternate juror was released prior

to deliberations and was not polled with the other jurors. Second, there is a

discrepancy between the minutes and the transcript as to which trial court judge

presided over the reconsideration hearing.1 Accordingly, we will remand with

instructions that the trial court correct the court minutes to reflect that the alternate

juror was not polled and to identify which judge presided over the reconsideration

hearing.

Assignment of Error No. 2

Although Defendant’s brief combines her second assignment of error with her

fourth, we will address it separately, as it challenges the sufficiency of the evidence.

Such an argument must be addressed first on appellate review, since a holding that

the evidence was insufficient would necessitate an acquittal. State v. Hearold, 603

So.2d 731 (La.1992).

The analysis for sufficiency reviews is well-settled, as this court has explained:

1
The minutes reflect that Judge Sharon Marchman, who conducted the trial, also presided at
the reconsideration hearing, whereas the transcript suggests that Judge Kathy Johnson presided over
that hearing. Although the transcript normally controls in such conflicts, some of the discussion
during the hearing suggests that the judge at the hearing had presided over earlier proceedings.

2

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559
(La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody,
393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the
respective credibility of the witnesses, and therefore, the appellate court
should not second guess the credibility determinations of the triers of
fact beyond the sufficiency evaluations under the Jackson standard of
review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v.
Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to
affirm a conviction, however, the record must reflect that the state has
satisfied its burden of proving the elements of the crime beyond a
reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Defendant was convicted of filing a false public record, specifically, a false

absentee ballot affidavit. The relevant statute is La.R.S. 14:133, which states in part:

A. Filing false public records is the filing or depositing for record
in any public office or with any public official, or the maintaining as
required by law, regulation, or rule, with knowledge of its falsity, of any
of the following:

....

(3) Any document containing a false statement or false
representation of a material fact.

Defendant argues that the evidence is insufficient to support her conviction

because “[n]o signature on the ballot is forged or misrepresented” and “[t]he ballot

itself contains no clause that the witnesses to the voter’s signature on the ballot must

sign in the presence of witnesses or vice versa.” However, we note that the ballot

affidavit at issue includes a certification of truth that must be signed by the voter,

whose signature line is followed by the clause, “Sworn to and subscribed before me

on[,]” then a few lines for a notary or registrar to sign, and below those, each of the

3

two purported witnesses’ signatures appears on a line that bears the designation

“witness.” We find it clear that signing as a witness that a signed certification of truth

was sworn to and subscribed in the signer’s presence, when in fact it was not,

constitutes a false representation for purposes of the statute. By filing such a

document into the public record, Defendant violated the statute.

Defendant additionally cites La.Civ.Code art. 1834, which states that a failed

authentic act may still be valid as an act under private signature; La.Civ.Code art.

1836, which allows a party to acknowledge his signature before a court; and La.Code

Evid. art. 901, which allows a lay witness to identify handwriting in the context of

admissibility. We find that the Code of Evidence article does not apply to the current

analysis because admissibility is not the issue at hand. Regarding the two Civil Code

articles, Defendant cites no jurisprudence applying them to La.R.S. 14:133.

Additionally, we note that La.R.S. 18:1306(E)(2) requires an absentee voter to sign

in the presence of two witnesses, in lieu of a notary public, and states that criminal

penalties are applicable.2 We find that La.R.S. 18:1306, as part of the Louisiana

Election Code, is a more specific provision than the Civil Code articles that

Defendant cites and is, therefore, controlling.

Defendant also attacks the credibility of Ms. Williams and her granddaughters,

all three of whom testified that the two women who signed the ballot affidavit as

2
At the time of the offense, La.R.S. 18:1306(E)(2) stated:

(2) An absentee by mail or early voting ballot envelope flap shall also contain
lines for the handwritten signature of two witnesses. The voter may sign the
certificate in the presence of two witnesses, who must also sign the certificate, and
in such a case, the voter shall not be required to obtain the signature of a notary
public, but his certificate shall be made under penalty of perjury for providing false
or fraudulent information. Above the perforation and along the seal line the words
“DO NOT DETACH FLAP” shall be printed.

4

witnesses were not present when Ms. Williams signed the document. She also

suggests that the granddaughters “were biased and politically motivated.” As noted

above, it is not for an appellate court to second-guess the credibility determinations

of the fact finder. We also note that Defendant does not question the credibility of

the two purported witnesses to the ballot affidavit, Ms. Mason and Ms. Polk, who

both testified that they did not actually witness Ms. Williams sign the ballot.

Defendant next contends that the State attempted to show that she intimidated

Ms. Williams into voting for a particular candidate. However, we note that

intimidation is not one of the elements of the crime charged. As previously observed,

the purported “witnesses” themselves admitted that they did not actually see

Ms. Williams sign the ballot affidavit.

Defendant also suggests that the State used inadmissible evidence to secure her

conviction. However, a sufficiency review encompasses all of the evidence adduced

at trial, both admissible and inadmissible. Hearold, 603 So.2d 731.

For the reasons discussed, Defendant’s second assignment of error lacks merit.

Assignment of Error No. 1

In her first assignment of error, Defendant argues the trial court erred by

denying her motion for new trial and her supplemental motion for new trial.

Defendant contends that during voir dire, the State improperly referred to a

severed co-defendant, Justin Conner. However, Defendant fails to argue how any

reference to Mr. Conner during voir dire prejudiced her case.

Next, Defendant argues that her trial counsel, William Yarbrough, was

ineffective, pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052

(1984). The supreme court has explained the analysis as follows:

5

Under Strickland, for a defendant to show that he received ineffective
assistance of counsel, he must show (1) “counsel’s representation fell
below an objective standard of reasonableness” and (2) “there is a
reasonable probability that, but for counsel’s unprofessional error, the
result of the proceeding would have been different.” Strickland, 466
U.S. at 687-88, 694, 104 S.Ct. 2052.

State v. Montalban, 00-2739, p. 5 (La. 2/26/02), 810 So.2d 1106, 1110, cert. denied,

537 U.S. 887, 123 S.Ct. 132 (2002).

Defendant contends that Mr. Yarbrough was impaired by illness during her

trial. Although Defendant cites some record pages in support of her argument, it is

difficult to tell the extent of trial counsel’s illness, and to what extent, if any, it

affected his performance. Therefore, we find that this argument should be relegated

to the post-conviction process, in which both parties will have the opportunity to

develop the record in regard to this issue. La.Code Crim.P. arts. 924, et seq.

Next, Defendant argues that Mr. Yarbrough was ineffective for failing to file

a motion to suppress the statements of Ms. Williams, Ms. Mason, and Ms. Polk.

Since there was no motion to suppress filed, however, the record was not developed

as to this issue, and the testimony at trial focused on the elements of the crime. Thus,

this argument should also be relegated to the post-conviction process. See, e.g., State

v. Watson, 00-1580 (La. 5/14/02), 817 So.2d 81, and State v. Lipscomb, 00-2836 (La.

1/25/02), 807 So.2d 218.

Next, Defendant argues that her trial counsel was ineffective for failing to

object to the admissibility of various State exhibits, including her taped statement to

an investigator and a transcript of that statement. She argues that the State should

have been required to lay a predicate outside the jury’s presence before such exhibits

were admitted. Defendant cites La.R.S. 15:451, which states: “Before what purposes

[purports] to be a confession can be introduced in evidence, it must be affirmatively

6

shown that it was free and voluntary, and not made under the influence of fear,

duress, intimidation, menaces, threats, inducements or promises.” (Footnote omitted.)

Thus, this argument raises potential issues similar to those in the previous argument,

and it should be relegated to the post-conviction process for further development of

the record on this issue.

Next, Defendant argues that Mr. Yarbrough was ineffective for failing to object

to hearsay testimony given by a State investigator, Steven Watts, that he had

determined from interviews that Defendant intimidated Ms. Williams into casting her

vote for a certain candidate. We note that defense counsel did object to this

testimony, albeit on a different basis than hearsay. However, even if counsel’s

performance was deficient in regard to this testimony, we fail to see how Defendant’s

case was prejudiced, given that Ms. Williams’ two granddaughters later gave direct

testimony to the same effect as Mr. Watts.

Defendant also argues that Mr. Yarbrough should have objected to Mr. Watts’s

identification of the two purported ballot witnesses’ signatures. Again, Defendant

does not satisfy the second prong of Strickland, as Ms. Mason and Ms. Polk each

admitted signing the affidavit in their direct testimony.

Next, Defendant argues that Mr. Yarbrough was ineffective for failing to object

to Ms. Mason’s testimony that her part-time employer urged her to “tell the truth.”

Again, we find that this testimony was not such that it prejudiced Defendant’s case

for purposes of Strickland’s second prong. Even if trial counsel erred by not

objecting, there is no reasonable probability that, absent the error, the result of the

trial would have been different.

7

Defendant next argues that Mr. Yarbrough was ineffective for failing to

vigorously cross-examine Mr. Watts and Golda Ensminger, the registrar of voters,

regarding their knowledge of voting procedures and by failing to object to the State’s

leading questions, which she contends occurred throughout the trial. Due to the

amorphous nature of these arguments, we find that they should be relegated to the

post-conviction process, in which Defendant will be able to clarify her arguments and

both parties will have the opportunity to develop the record in regard to these matters.

Defendant next argues the that trial judge’s illness prevented her from

receiving a fair trial. For the reasons discussed earlier regarding trial counsel’s

alleged impairment, this argument should be relegated to the post-conviction process.

Defendant also argues that the trial court erred by denying her request to have

the State’s handwriting expert, Robert Foley, compare a contemporaneous signature

by Ms. Williams to her purported signature on the ballot. At trial, defense counsel

argued:

MR. YARBROUGH:

Well, the relevance is that we had Maud Williams said, “This is not my
signature.” We had her two granddaughters say that this was not her
signature. And the Jury can make inferences that if it’s not her
signature, then whose signature is it? It must be false. Therefore, it
must fall under that it contains a false statement or a false representation
of material fact.

Later, the following colloquy occurred:

MR. WILSON:

Judge, if it would—I wouldn’t have an objection to you giving the Jury
a limiting instruction that this lady is not charged with forgery. If that
will help Mr. Yarbrough out. I mean, just so they’re not—I mean, it
seems to be his concern that they may be thinking that this could be a
forged signature. We’re not going to argue that. We haven’t charged
this lady with that. If you want to make it easier for them you can tell

8

them that in a special instruction that this lady is not charged with
forgery.

MR. YARBROUGH:

I think it’s important to my client that if that is Maud Williams’s
signature that the Jury know it.

THE COURT:

I don’t see the relevance, Mr. Yarbrough. You’re still not getting to the
relevant—you say it’s important to your client but that is not the test for
relevance. I don’t see the relevance to the charge in this particular case.

MR. YARBROUGH:

Well, again, Your Honor, I repeat one more time. They are going under
paragraph 63. “Any document containing a false statement or a false
representation of material fact.” And if the signature on the card is not
Maud Williams’s signature, then I think automatically it’s—

MR. WILSON:

We’re not going to argue that, Judge.

THE COURT:

I disagree. It won’t be argued. So that is my ruling. The evidence is
excluded. If that is the sole purpose that you seek to recall these two
witnesses, then I’m not going to allow that testimony. I will allow you
to proffer that testimony outside the presence of the Jury. But if that’s
the only reason why you are recalling those witnesses, then I’m not
going to allow that testimony on the basis of relevance.

MR. YARBROUGH:

Then I would object and ask that my objection be noted. And I would
request a proffer outside the presence of the Jury.

THE COURT:

So noted. We’ll do the proffer once the Jury begins their deliberations
so that we don’t waste any court time.

9

Later, the parties orally stipulated as a proffer that Ms. Williams told Mr. Watts

that the signature on S-4 was hers. We find that the trial court’s ruling was correct,

as the authenticity of Ms. Williams’ signature was not at issue in this case.

Although the matter could be viewed as having some bearing upon the

witnesses’ overall credibility, if any error occurred it would be harmless. On the issue

before the jury, which was whether Ms. Mason and Ms. Polk actually witnessed

Ms. Williams signing the ballot affidavit, the State adduced the testimony of those

three individuals as well as that of Ms. Williams’ two granddaughters. In view of the

strong evidence supporting the verdict, there is little likelihood that the testimony

regarding Ms. Williams’ signature affected the verdict.

Defendant next argues that one of the jurors, Neal, was hard of hearing and

thus “appeared disabled to serve as a competent juror.” She also complains that

another juror, Pratt, was apparently hard of hearing and slept at some point in the

trial. She also contends that a third juror, Ferguson, was biased due to familiarity

with the losing candidate in the Ferriday mayoral election and with one of

Ms. Williams’ granddaughters.

We note that Juror Ferguson revealed that she knew one of the candidates

because their daughters had gone to school together. However, she stated she had not

had any personal contact with the candidate in “a couple of years” and affirmed that

she could be impartial in deciding the case. The other matter upon which Defendant

alleges bias is apparently not in the record, as Defendant complains she was not

allowed to make a proffer on the matter. Thus, the other allegations that Ferguson

was biased should be relegated to the post-conviction process.

10

Defendant’s arguments regarding Jurors Neal and Pratt should also be deferred,

as those issues were not raised contemporaneously as required by La.Code Crim.P.

art. 841. Defendant raised the issue in her “Alternative Motion for a New Trial,” in

which she asserted that she had witnesses to support her arguments. At the hearing

on the motions, the trial court declined to hear any witnesses. As a practical matter,

the record does not present enough information to assess the merits of the claim.

Therefore, Defendant’s arguments regarding Jurors Neal and Pratt should be deferred

to the post-conviction process.

Defendant’s final argument under this assignment is that the trial court erred

by overruling her objections that the State’s peremptory challenges were exercised

in a racially discriminatory manner, as prohibited by Batson v. Kentucky, 476 U.S. 79,

106 S.Ct. 1712 (1986).

The supreme court has recently discussed the structure of the Batson analysis:

Under Batson, a defendant objecting to a peremptory challenge
must first establish a prima facie case of discrimination by showing facts
and relevant circumstances which raise an inference that the prosecutor
used the challenges to exclude potential jurors on account of race. The
burden of production then shifts to the prosecutor to come forward with
a race-neutral explanation for the challenges. The explanation need not
be persuasive, or even plausible, and unless a discriminatory intent is
inherent in the prosecutor’s explanation, the reason offered may be
deemed race-neutral. The trial court then must decide whether the
defendant has proved purposeful racial discrimination. The ultimate
burden of persuasion remains on the defendant to prove purposeful
discrimination.

State v. Jacobs, 99-991, p. 3 (La. 5/15/01), 803 So.2d 933, 938, cert. denied, 534 U.S.

1087, 122 S.Ct. 826 (2002) (citations omitted).

During voir dire, the following colloquy occurred:

11

MR. YARBROUGH:

[B]ut I was just mentioning that all blacks have been challenged for
cause or for peremptories. And there is only one black left on the
potential jury at the time the preempt was exercised on Mr. Lyles.

THE COURT:

All right. Well, challenges for cause are not considered under a Batson
challenge. To grant a challenge for cause then that is not later to be
considered in Batson.

MR. YARBROUGH:

At the time the final peremptory challenge was made there was only one
black on the—

THE COURT:

All right. So your argument is that they had peremptory
challenged—used a peremptory challenge on one of the two blacks who
were on they jury? Is that correct?

MR. YARBROUGH:

I think there was only—I may be mistaken but I think there was only
one remaining at that time.

THE COURT:

Mr. Washington and Mr. Lyles—

MR. WILSON:

No, it was Mr. Washington and Mr. Lyles—

THE COURT:

—were remaining and they exercised their peremptory challenges.

MR. YARBROUGH:

That’s right. Mr. Washington was a perempt.

THE COURT:

All right. Can you tell me how that establishes a pattern?

12

MR. YARBROUGH:

There were only two left, Your Honor.

....

MR. WILSON:

Judge, our race neutral reasons for exercising peremptory challenges as
to Mr. Washington, he is a friend of the defendant. He stated that he has
known Ms. [Henrietta] Williams for 20 to 25 years and it has nothing to
do with his race. It’s a friendly and long term relationship with the
defendant that is our basis for removing him from the jury.

....

THE COURT:

All right. The Court finds first and foremost that there has been no
pattern established and I think that is the first requirement. I don’t think
one strike really equates, rises to the level needed to establish a Batson
challenge. Secondarily, I agree with Mr. Wilson. Mr. Lyles did
indicate—

MR. WILSON:

That’s Mr. Washington, Judge.

THE COURT:

I’m sorry. Mr. Washington indicated that he had a personal relationship
with the defendant of a long standing nature and so I think he has
articulated a race neutral reason for striking her [sic]—using one of the
peremptory challenges. So that Batson challenge is denied.

Defendant appears to argue that even though the State had exercised only one

peremptory challenge at that point, the trial court should have found that some sort

of discriminatory pattern, or equivalent discrimination, had been established.

However, Defendant fails to make any challenge to the non-discriminatory reasons

offered by the State. Further, the reasons given by the State were at least plausible

and thus satisfy the criteria discussed in Jacobs. Therefore, this argument lacks merit.

13

Later, the Defense raised Batson in regard to two other State peremptory

challenges, and the following colloquy occurred:

MR. WILSON:

Judge, as to Ms. Dishta, our race neutral reason for exercising a
peremptory challenge was based on the fact that Ms. Dishta not only
knows Justin Conner but her [sic] and her husband were married by him.
So it’s her familiarity with Mr. Conner, she said he has refereed
basketball games at that school in which she is the principal. She knows
Shirley Mason, another witness. She is also familiar with the defendant.
Those are three race neutral basis [sic] for why we exercised a strike as
to her. Additionally, she was struck because she is a principal. And I
just, in the past, I have had bad experiences with principals before,
simply because I think that they tend to be an aggressive presence in the
jury room during deliberations. So those are our race neutral reasons for
exercising that strike.

....

MR. YARBROUGH:

Our objection was that on Ms. Dishta that Justin Conner is not a
defendant or a witness on the case, Your Honor. My understanding is
that Ms. Dishta had basically indicated that Mr. Conner [knew] she and
her husband, but were not friends, had no other contact other than that.

....

MR. YARBROUGH:

And on Ms. Parker, Ms. Parker indicated that she knew a number of the
persons and as I recall there was nothing that would indicate that—she
said she was not friends with Justin Conner. She did know
Ms. [Henrietta] Williams, but they were in different classes. A year
separated them in school. She did know one of the state’s witnesses,
Ms. Mason, who had been a caretaker for her daughter. But I didn’t
recall anything being taken that indicated any close relationship or any
reason to indicate a perempt.

THE COURT:

All right. The Court denies the Batson challenge. I find that the state
has set forth racially neutral grounds for exercising the peremptory
challenge[s].

14

Given the low threshold of plausibility set forth in the jurisprudence, we find that the

State’s race-neutral reasons were sufficient. Therefore, this portion of the assignment

lacks merit.

Assignment of Error No. 3

In this assignment of error, Defendant argues the trial court erred by denying

her motion in arrest of judgment, in which she argued that La.R.S. 14:133 is

unconstitutionally vague and overbroad. In a supplemental brief, the State argues the

assignment should not be addressed because the issue was not raised below.

The relevant statute is La.Code Crim.P. art. 859, which states in part: “The

court shall arrest the judgment only on one or more of the following grounds: . . . (2)

The offense charged is not punishable under a valid statute. . . .” Contrary to the

State’s argument, it appears Defendant raised this issue below in her “Alternative

Motion in Arrest of Judgment.” Further, Defendant argued the issue in open court.

The trial court denied Defendant relief, ruling that the issue should have been brought

up on a motion to quash rather than in a motion in arrest of judgment.

As a procedural matter, we find the trial court’s ruling to be incorrect, as the

constitutionality of the statute apparently can be raised pursuant to a motion in arrest

of judgment. See the brief discussion in State v. Hookfin, 601 So.2d 320 (La.App. 4

Cir. 1991), appeal after remand, 602 So.2d 757 (La.App. 4 Cir. 1992), writ denied,

604 So.2d 1316 (La.1992), which indicates that a motion in arrest of judgment under

La.Code Crim.P. art. 859 is an appropriate vehicle for such an argument.

Additionally, the official comments to Article 859 indicate that the constitutionality

of a statute may be raised in this manner. See also State v. Butler, 331 So.2d 425

(La.1976). We will, therefore, address the merits of the claim.

15

The supreme court has explained:

As a general matter, a statute is presumed to be constitutional, and
the burden of showing otherwise falls to the challenger. State v.
Muschkat, 96-2922, pp. 4-5 (La.3/4/98), 706 So.2d 429, 432. Further,
criminal statutes are given a genuine construction according to the fair
import of their words, taken in their usual sense, in context, and with
reference to the purpose for the provision. La. R.S. 14:3; Muschkat,
96-2922 at 4-5, 706 So.2d at 432; State v. Griffin, 495 So.2d 1306, 1308
(La.1986). Additionally, when the constitutionality of a statute is at
issue, and under one construction it can be upheld, while under the other
it cannot, a court must adopt the constitutional construction. State v.
LeCompte, 406 So.2d 1300, 1311 (La.1981). Therefore, a court may
avoid constitutional problems by adopting a narrowing construction of
the statute as long as that interpretation remains consistent with the
overall purpose behind the legislation. Muschkat, 97-2765 at 10, 706
So.2d at 434 (stating “[w]hile we recognize our duty to interpret statutes
in a manner consistent with our state and federal constitutions, we may
only preserve a statute by a constitutional construction provided that the
saving construction is a plausible one.”) (citations omitted). In addition
to criminal statutes being strictly and narrowly construed, any ambiguity
must be resolved in favor of the accused. State v. Williams, 00-1725
(La.11/28/01), 800 So.2d 790; State v. Carr, 99-2209 (La.5/26/00), 761
So.2d 1271.

....

A statute is vague if its meaning is not clear to the average citizen
or if an ordinary person of reasonable intelligence is incapable of
discerning its meaning and conforming his conduct to it. State v.
Barthelemy, 545 So.2d 531, 532-533 (La.1989); State v. David, 468
So.2d 1126, 1128-1129 (La.1984) [, cert. denied, 476 U.S. 1130, 106
S.Ct. 1998 (1986)]; State v. Broom, 439 So.2d 357, 359 (La.1983).
Further, a statute must provide adequate standards by which guilt or
innocence may be determined so that an individual’s fate is not left to
the unfettered discretion of law enforcement. Muschkat, 97-2765 at p.
6, 706 So.2d at 432 (citing Kolender v. Lawson, 461 U.S. 352, 358, 103
S.Ct. 1855, 1859, 75 L.Ed.2d 903 (1983)). Longstanding Louisiana law
holds that “vagueness challenges to statues [sic] which do not invoke
First Amendment freedoms must be examined in the light of the facts of
the case . . . [a] defendant engaged in conduct clearly described in a
statute cannot complain of the vagueness of the statute as applied to
others . . . [a] defendant [therefore] may not establish that a statute is
unconstitutionally vague by speculating about hypothetical conduct
which could also be prosecuted under the same statute.” State v. Hair,
00-2694, p. 5 (La.5/15/01), 784 So.2d 1269, 1273) (citing State v. Boyd,
97-0579, p. 2 (La.4/14/98), 710 So.2d 1074, 1076) (“[A] vagueness
challenge to a statute must be examined in the light of the facts of the

16

case . . . and as applied to the particular defendant . . . [who] must show
at trial that the statute lacks specificity as to his behavior.”)).

State v. Interiano, 03-1760, pp. 4-6 (La. 2/13/04), 868 So.2d 9, 13-14. As the present

case illustrates, La.R.S. 14:133 can have First Amendment implications; therefore,

we have not applied the more case-specific standard mentioned in Interiano.

As noted in the sufficiency review, La.R.S. 14:133 states in part:

A. Filing false public records is the filing or depositing for record in
any public office or with any public official, or the maintaining as
required by law, regulation, or rule, with knowledge of its falsity, of any
of the following: . . . (3) Any document containing a false statement or
false representation of a material fact.

Defendant complains the statute does not define “witness,” “material false

representation,” or “voter fraud.” However, we find that whether or not the statute

defines “voter fraud” is immaterial, as La.R.S. 14:133 is not a statute aimed

specifically at voter fraud, but one aimed at the filing of false public documents.3 We

also find that the terms “witness” and “false representation” are of such common use

that any competent adult should understand them.

In Interiano, the defendant had prevailed at the district level in a motion to

quash, successfully arguing that the term “in the presence of” was unconstitutionally

vague and overbroad. In reviewing that ruling, the supreme court stated:

However, the question remains whether mere physical presence
or proximity alone satisfies the requirement that the sexual display take
place “in the presence of” a child or whether a sensory awareness must
accompany the physical proximity. Keeping in mind that any narrowing
construction given to the statute must remain consistent with the overall
purpose behind the legislation, a review of the legislative history of the
statute is helpful. Muschkat, 97-2765 at 10, 706 So.2d at 434. Such a
review shows that La. R.S. 14:81(A) is intended “to apply to behavior
which falls short of intercourse [when] carried on with young children.”
1942 La. Acts 43 § 81 (Official Comment). Thus, the legislative history

3
By the same reasoning, Adkins v. Huckaby, 99-3605 (La. 2/25/00), 755 So.2d 206, cited by
Defendant, is inapplicable to the present case.

17

shows a compelling state interest in protecting children from the
physical and psychological harm that can result from sexual acts
committed “upon the person” of the child and the psychological impact
that having such acts committed in their presence may cause.

....

Accordingly, we find that the 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. Such a construction is appropriate,
as, in the past, Louisiana courts have interpreted “presence” in other
legal contexts as encompassing more than mere physical proximity. See,
e.g., In re Succession of Smith, 01-930 (La. 5 Cir. 1/15/02), 806 So.2d
909 [, writ denied, 02-633 (La. 5/3/02), 815 So.2d 105] (statutory
requirement that testator must sign will in presence of two attesting
witnesses and notary interpreted to mean that each witness and notary
must see the testator sign). Further, such a construction serves the
legislative intent of preventing the psychological harm that witnessing
such sexual displays can cause.

Therefore, in this case, in furtherance of the legislative purpose
of the statute, and taking the language at issue in the context of the
statute as a whole, this court holds that in 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 articulate
or even comprehend what the offender is doing, for a violation to occur.

Accordingly, the trial court erred in ruling La. R.S. 14:81(A)
unconstitutionally vague by essentially preempting the trier of fact’s role
in determining whether the child saw or sensed that a sexual act was
taking place. Under a proper limiting construction, a child is “present”
for purposes of La. R.S. 14:81(A) if the state can demonstrate not only
the physical proximity of the child but also that the child saw or sensed
the offender’s actions. In the instant case, although the state has not yet
provided any evidence of such sensory awareness, it remains a question
of fact for a jury.

Id. at 15-16. Thus, the supreme court reversed the trial court and remanded the case

for further proceedings.

18

In light of the supreme court’s vagueness and overbreadth analysis in Interiano,

we find that La.R.S. 14:133, which contains unambiguous terminology, passes

constitutional muster. For the reasons discussed, this assignment lacks merit.

Assignment of Error No. 4

In this assignment, Defendant argues the trial court improperly denied her the

right to make various proffers to support her claims relating to her trial counsel’s

alleged ineffectiveness. Defendant has chosen to intersperse the arguments on her

other assignments with arguments relating to this one. We have chosen to address

this assignment separately in the interest of clarity.

At the May 19, 2006 hearing on Defendant’s motions in arrest of judgment, for

post-verdict judgment of acquittal, and for new trial, the trial court barred

Defendant’s new counsel, Raymond Cannon, from calling witnesses to testify

regarding her trial counsel’s alleged ineffectiveness. The trial court reasoned that

such a claim was not the proper subject of a motion for new trial. For the same

reason, Defendant was barred from making any proffer. The trial court ultimately

denied the motion partly based on such reasoning.

Some jurisprudence holds that a motion for new trial is a proper vehicle for

raising the issue ineffective assistance of counsel. See State v. King, 41,083 (La.App.

2 Cir. 6/28/06), 935 So.2d 354. However, in addressing the denial of a motion for

new trial that included claims that trial counsel was ineffective, the supreme court

chose, after affirming the denial regarding some claims, to defer the remainder of the

ineffective assistance of counsel claims to the post-conviction process. State v.

Brisban, 00-3437 (La. 2/26/02), 809 So.2d 923. In light of Brisban, we find that

Defendant’s ineffective assistance of counsel claims, as well as the taking or

19

proffering of any evidence thereon, should be relegated to the post-conviction

process.

Assignment of Error No. 5

In her final assignment of error, Defendant argues that her five-year sentence,

with all but eighteen months suspended, and five years of supervised probation, is

excessive. Specifically, she contends that she should not have received the maximum

term of imprisonment due to her advanced age and ill health.4

In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779

So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (citations

omitted), this court explained:

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. The trial court has wide discretion in
the imposition of sentence within the statutory limits and such sentence
shall not be set aside as excessive absent a manifest abuse of discretion.
The relevant question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might have been
more appropriate.

To aid in such an analysis, the courts have employed the following three-step

analysis: “The court should consider three factors in reviewing a judge’s sentencing

discretion: 1. the nature of the crime, 2. the nature and background of the offender,

and 3. the sentence imposed for similar crimes by the same court and other courts.”

State v. Lisotta, 98-648, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58, writ denied,

99-433 (La. 6/25/99), 745 So.2d 1183.

4
La.R.S. 14:133(C) provides: “Whoever commits the crime of filing false public records
shall be imprisoned for not more than five years with or without hard labor or shall be fined not more
than five thousand dollars, or both.”

20

In the present case, we note that the crime is non-violent and that Defendant

is a first-time offender. At the time of sentencing, Defendant was fifty-four years old

and suffered from several health problems for which she was receiving disability

benefits. The trial court considered Defendant’s lack of a criminal record and her

current health status as mitigating factors, but also expressed concern that Defendant

would commit another crime of this nature during a period of a suspended sentence

or probation. The trial court then sentenced Defendant to five years at hard labor with

credit for time served, with all but eighteen months suspended, and five years

probation upon release from incarceration, plus thirty-two hours of community

service and certain costs. The trial court declined to impose a fine that would also

have been authorized under La.R.S. 14:133(C).

We note that Defendant did not receive the maximum sentence under La.R.S.

14:133(C), in that the trial court did not impose a fine and suspended a substantial

portion of the period of incarceration that was imposed. However, we also find that

the trial court did not give adequate consideration to Defendant’s age, health, and

personal history by not imposing a longer period of suspension. The trial court’s

main concern was its fear that Defendant would commit a similar crime during a

suspended sentence or probation. However, we find that this concern is adequately

addressed by the five-year period of probation imposed, during which time Defendant

would risk serving the entire incarceration portion of her sentence should she engage

in further criminal activity. With this concern addressed, we find that, by not

suspending more than eighteen months of incarceration, the trial court failed to

adequately consider the mitigating factors set forth above, in particular Defendant’s

age and health problems. See State v. Padgett, 558 So.2d 593 (La.1990) (in which

21

the supreme court found that the trial court failed to consider factors mitigating

against incarceration, such as the defendant’s age, health, personal history, and efforts

at restitution, when it sentenced a seventy-five year old offender to five years at hard

labor). Finding that these factors warrant a sentence in the range of all but six months

being suspended, we vacate Defendant’s sentence and remand for resentencing in

accordance with the views expressed herein.

Defendant also contends in this assignment that the trial court erred in

imposing costs upon her. She claims that she is indigent (as her trial counsel was

appointed) and that she was only able to retain counsel after trial and to post an

appeal bond with help of relatives.

[A]n indigent defendant may not be subjected to imprisonment because
she is unable to pay a fine which is part of her sentence. Bearden v.
Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v.
Monson, 576 So.2d 517 (La.1991). The Monson court, dealing with a
sentence providing for a jail term in the event the defendant failed to
make “restitution,” transferred the application for supervisory writs to
the trial court for a determination of indigency, stating that “if relator is
found to be indigent, the trial court is ordered to delete only that portion
of his sentence which provides for a jail term in the event of default of
payment.” State v. Monson, supra at 518. Accord, State v. Collins,
32,409 (La.App.2d Cir.9/22/99), 763 So.2d 618.

Therefore, we remand for a hearing to determine whether
defendant is actually unable to pay the fine and costs imposed. Should
the trial court find that defendant is unable to pay, that portion of the
sentence which imposes default time in lieu of payment shall be deleted.
We note, however, that La.C.Cr.P. art. 886 permits the state to enforce
collection of the amount owed in the same manner as a money judgment
in a civil case. See State v. Monson, supra; State v. Collins, supra.

State v. Ebarb, 34,010, p. 3 (La.App. 2 Cir. 11/1/00), 772 So.2d 299, 301-02.

We find Ebarb to be persuasive, given that Defendant’s indigent status is

unclear from the record. Accordingly, on remand we also instruct the trial court to

conduct a hearing to determine whether or not Defendant is indigent. If she is, then

22

the portion of her sentence mandating default time for failure to pay should be

deleted. If she is indigent, the State’s remedy would be to seek a civil judgment.

Decree

For the above reasons, Defendant’s conviction is affirmed, but her sentence is

vacated, and the case is remanded for resentencing in accordance with the views

expressed herein and for a hearing to determine whether or not Defendant is indigent.

The case is also remanded for correction of the trial court minutes to reflect that the

alternate juror was not polled and to identify which trial court judge presided over the

reconsideration hearing.

CONVICTION AFFIRMED; SENTENCE VACATED; AND
REMANDED WITH INSTRUCTIONS.

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