State of Louisiana v. W.D.F., Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-1310

STATE OF LOUISIANA

VERSUS

W.D.F., JR.

**********
APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 276,855
HONORABLE DONALD T. JOHNSON, DISTRICT JUDGE
**********

GLENN B. GREMILLION
JUDGE

**********

Court composed of John D. Saunders, Glenn B. Gremillion, and J. David Painter,
Judges.

AFFIRMED AS AMENDED
WITH INSTRUCTIONS.

James C. Downs, District Attorney
Sheryl L. Laing, Asst. District Attorney
Ninth Judicial District
P. O. Drawer 1472
Alexandria, LA 71309
(318) 473-6650
Counsel for Plaintiff/Appellee:
State of Louisiana

Sherry Watters
Louisiana Appellate Project
P. O. Box 58769
New Orleans, LA 70158-8769
(504) 723-0284
Counsel for Defendant/Appellant:
W.D.F., JR.

GREMILLION, Judge.

In this case, the defendant, W.D.F., Jr., was convicted of indecent

behavior with a juvenile, a violation of La.R.S. 14:81, and was sentenced to serve

three years at hard labor without benefit of probation, parole, or suspension of

sentence.1 On appeal, he argues that the trial court erred in admitting evidence of

other unproven allegations of sexual misconduct, in allowing hearsay testimony, and

in finding that the State proved the elements of indecent behavior beyond a

reasonable doubt. For the following reasons, we find that these assignments of error

lack merit and affirm Defendant’s conviction.

FACTS

W.F., Defendant’s daughter, visited him the weekend of April 17 and 18,

2004. During that same visit, her friend Kayla spent the night with her.2 That night,

Defendant went to bed before W.F. and Kayla. W.F. testified that when she and

Kayla went to bed Defendant was asleep and she slept in the middle of the bed

between Defendant and Kayla. According to W.F., she and Defendant later changed

places, with Defendant sleeping in the middle. She said that about thirty minutes to

an hour after she went to bed, Defendant put his hand up her shirt and rubbed her

breasts. Later on cross-examination, W.F. testified that Defendant put his hand up

her shirt for the first time while she was sleeping in the middle. On re-direct, she

testified that Defendant first touched her when she was in the middle of the bed. She

also said that Defendant put his arm around Kayla and pulled her closer to him.

1
The initials of Defendant and the victim will be used in accordance with La.R.S.
46:1844(W).
2
The Defendant and W.F.’s mother were divorced.

1

W.F. testified that both she and Kayla subsequently got up and went to

the bathroom where they talked for a while and then went back into the bedroom.

W.F. testified that when she and Kayla went back into the bedroom, Defendant asked

if they had taken their bras off. W.F. said that the two girls then got back into bed

with Defendant. She claimed that Defendant again put his hand up her shirt and kept

pulling Kayla closer to him. She then testified that she and Kayla went to the

bathroom again and after they returned to bed, nothing else occurred.

On Saturday, W.F. said she spent the night at the home of a friend and

that she returned to her mother’s home on Sunday, and at that time, she did not tell

anyone what had occurred on Friday night.

Kayla Monroe testified that she spent the night with W.F. during the

weekend of April 17 and 18, 2004. She said the night she stayed, she and W.F. slept

in bed with Defendant. Kayla testified that Defendant went to bed before she and

W.F. According to Kayla, she and W.F. took baths in the hall bathroom while

Defendant read a book. She said that when the girls went to bed, they thought the

Defendant was asleep. At that time, W.F. was in the middle of the bed. Kayla

testified that she and W.F. kept getting up because they were scared because

Defendant was hugging them and had his hand on W.F.’s chest. Kayla further

testified that these things occurred when W.F. was in the middle of the bed. Kayla

said that Defendant had his right arm around her and his hand on her stomach. Kayla

said that the two girls first got out of bed when W.F. looked at her. Kayla also

testified that she looked at W.F. and said she was scared, so the two went into the

bathroom. Once in the bathroom, the two talked about what was happening. Kayla

2

testified that she saw Defendant grab W.F.’s breasts, as the light in the hall bathroom

was on at that time. Kayla also testified that once the two returned to bed, she sat up

and saw Defendant’s hand “up to the top” of W.F. The two girls then returned to the

bathroom.

Defendant’s father who was also sleeping at the house testified that on

the night in question he woke up because W.F. and Kayla were laughing, giggling,

and making a lot of noise. He claimed that they were in the hall bathroom and the

light in “their” bedroom was on and no one was in the room. He said that he told the

girls to be quiet and went in the living room to get Defendant, told Defendant to quiet

the girls, and then went back to bed.

Defendant’s brother, Douglas, testified that he was home on the night in

question. We note that both W.F. and Kayla testified that Douglas was not at the

house that night, but his father said that he was. Douglas testified that he had to scold

W.F. and Kayla several times for being loud and cutting up. He knocked on the door

of the hall bathroom once and told the girls they needed to be quiet or they would

wake Douglas’ father. He also told them to be quiet once when they were in the

bedroom. Douglas testified that when he went to the bedroom, Defendant was

sleeping in the living room. He said that he also heard his father chide the girls.

Defendant testified that his daughter, W.F., spent the night at his

residence on April 17, 2004, and that her friend, Kayla, also spent the night. Once the

group got in from Skateville, he told the girls to get ready for bed and he went to the

living room and laid down on the couch, where he intended to sleep. He said that his

father later woke him and told him the girls were making too much noise. He said he

3

then went to fuss at the girls and returned to the couch. He further testified that he

went a second time to the bedroom to fuss at the girls and got into bed with them.

Defendant claimed that when he first got into bed with the girls, W.F. was

in the middle, but she later wanted to sleep on the outside of the bed so he slept in the

middle of the bed. Defendant denied touching W.F.’s breasts and pulling Kayla to

him.

When questioned on redirect examination, W.F. said that no one told her

and Kayla to be quiet. Additionally, she said that once the group arrived home, she

did not see anyone besides Defendant and Kayla. Kayla testified on re-direct

examination that no one corrected her and W.F. for being loud and she saw no one that

night but W.F. and Defendant.

W.F. said that she next saw Defendant the weekend of May 7 and 8, 2004.

On Friday, the two drove to New Orleans for a trip to Six Flags. W.F. testified that

on the trip to New Orleans she was attempting to sleep on the back seat when she felt

his hand in her pants. At that time, she claimed that Defendant rubbed her buttocks

and then felt her “private.” W.F. further testified that while sleeping at the hotel in

New Orleans, Defendant placed his hand under her shirt, touched her breasts, and kept

putting his hand down her pants. At one point, she said that he pulled her pants down

to her knees. W.F. asserted that she later woke up and Defendant was on his hands

and knees, “like backwards,” and his “private” was hanging in her face. Additionally,

she said Defendant tried to put her hand down his pants and said, “I just want you to

feel me.”

4

W.F. also testified that the following Saturday night, on the trip home

from New Orleans, Defendant told her that he would massage her feet. She testified

that he did not use his hands, but massaged her feet with his genitals. However, W.F.

said that she never saw Defendant’s private. She also said that Defendant wanted her

to sit on his lap, which she did while he drove. W.F. further testified that Defendant

“kept putting his hand under there and messing with himself. And then he had taken

his thing out of his pants, and he was rubbing it on me.” However, she claims that she

did not see his private. She was, however, convinced that he exposed himself because

his hands were on the steering wheel and she felt something on her back while she sat

in his lap, and when he massaged her feet, his hands were on the steering wheel and

she felt something touching her feet.

On Sunday after her return from her visit with Defendant, W.F. told her

mother what her father had done to her and her mother called the police. W.F. then

wrote a statement that she brought to the sheriff’s department.3

W.F.’s mother, L.D., testified that on Mother’s day of 2004 W.F. went to

bed and subsequently came to her crying.4 L.D. said that W.F. then told her that “her

daddy had fooled with her.” She claimed that she did not go over any of the details

with W.F. until the police arrived at her home.

The record reflects that Defendant also denied inappropriately touching

W.F. during their trip to New Orleans

3
The statement corroborates W.F.’s testimony as to what occurred at her father’s home and
was introduced as State Exhibit 1.
4
Mother’s Day was on May 9th in 2004.

5

SUFFICIENCY OF EVIDENCE

In his last assignment of error, Defendant contends that the State failed

to prove the elements of indecent behavior with a juvenile beyond a reasonable doubt.

Because a finding that the evidence is insufficient would require an acquittal, we will

address this assignment of error first. State v. Hearold, 603 So.2d 731 (La.1992).

Defendant was convicted of indecent behavior with a juvenile, which is

the commission of any lewd or lascivious act upon the person or in the presence of any

child under the age of seventeen, where there is an age difference of greater than two

years between the two persons, with the intention of arousing or gratifying the sexual

desires of either person. La.R.S. 14:81. Thus, in order to find that Defendant

committed the offense of indecent behavior with a juvenile, the State was required to

prove that: (1) there was an age difference of greater than two years between

Defendant and W.F.; (2) W.F. was not yet seventeen years of age; (3) Defendant

committed a lewd or lascivious act upon the person or in the presence of W.F.; and (4)

that he intended to arouse or gratify either his own or W.F.’s sexual desires.

In evaluating the sufficiency of the evidence to support a
conviction, a reviewing court must determine whether, viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found proof beyond a reasonable doubt of each of the
essential elements of the crime charged. Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d
676, 678 (La.1984).

State v. Leger, 05-0011, p. 91 (La. 7/10/06), 936 So.2d 108, 170, cert denied, U.S.

, S.Ct. (2007).

6

Proof of (1) and (2) above is obvious. Defendant is W.F.’s father,

therefore, there is clearly an age difference of greater than two years between

Defendant and W.F. W.F. testified that at the time of trial she was fourteen years old.

Regarding (3) above, in State v. Interiano, 03-1760, p. 7 (La. 2/13/04),

868 So.2d 9, 15, the supreme court discussed the meaning of lewd and lascivious as

follows:

In [State v.] Holstead, [354 So.2d 493, 497-98 (La.1977),] this court
reaffirmed its prior jurisprudence that the statute provides fair notice that
the defendant “is charged with having done an act upon the person of a
juvenile which is lustful, obscene, indecent, tending to deprave the
morals in respect to sexual relations, and relating to sexual impurity or
incontinence carried on in a wanton manner.” 354 So.2d at 498 (internal
quotation marks and citation omitted). Further, as the Reporter’s
Comment to La.R.S. 14:81(A) observes, the state [sic] encompasses not
only the physical touching of the victim in an indecent manner, but also
“indecent sexual displays in the presence of children under the age of
seventeen.”

W.F. testified that on the night of April 17, 2004, Defendant reached

under her shirt and rubbed her breasts two separate times. Based on the supreme

court’s comments in Interiano, we find that Defendant’s actions were sufficient to

constitute lewd and lascivious behavior.

The State also had to prove (4) above, that is, that Defendant had the

specific intent to arouse or gratify his sexual desires or those of W.F.

Specific intent is defined as “that state of mind which exists when
the circumstances indicate that the offender actively desired the
prescribed criminal consequences to follow his act or failure to act.”
La.R.S. 14:10. Specific criminal intent may be inferred from the
circumstances present in the case and the actions of Defendant. State v.
Broussard, 560 So.2d 694 (La.App. 3 Cir.), writ denied, 566 So.2d 981
(La.1990).

7

State v. Reed, 00-1537, p. 7 (La.App. 3 Cir. 3/6/02), 809 So.2d 1261, 1266, writ

denied, 02-1313 (La. 4/25/03), 842 So.2d 391. Defendant’s acts of intrusion under

W.F.’s shirt on two occasions and rubbing her breasts were sufficient to prove the

essential element of specific intent to arouse or gratify sexual desire.

Defendant asserts that the State proved he touched W.F. under her shirt

but over her bra. He argues that while the evidence may have shown an attempted

indecent behavior, there was no evidence that the lewd or lascivious act was complete

or that its intent was to arouse or gratify sexual desire was completed. We disagree.

W.F. testified that, upon reentering the bedroom after she and Kayla

returned from the bathroom the first time, Defendant asked if the girls had taken their

bras off. That is the only testimony regarding a bra. However, it does not matter

whether Defendant touched W.F. over her bra or on her bare skin because it is the

touching that is the lewd and lascivious act that gratifies sexual desire and is the

essence of the crime.

We are supported in that conclusion by the cases of State v. Sturdivant,

27,680 (La.App. 2 Cir. 2/28/96), 669 So.2d 654, and State v. Teague, 04-1132

(La.App. 3 Cir. 2/2/05), 893 So.2d 198. In Sturdivant, the defendant asked a young

female victim inappropriate and sexually suggestive questions during a tour of a

school building. Subsequently, when the victim’s back was turned, the defendant

attempted to grab her breasts and then he touched, lifted up, and rubbed her buttocks.

Our colleagues on the Second Circuit Court of Appeal found the defendant’s conduct

was sufficient to constitute a lewd and lascivious act, despite the fact that the victim

was fully clothed. In Teague, we found that the evidence was sufficient to support a

8

conviction for indecent behavior with a juvenile when the defendant touched the

minor victim’s penis through the victim’s clothing.

Defendant next asserts that there are several “disturbing and inconsistent

factors” in W.F.’s testimony that “render it unreasonable and so unreliable that it will

not support a conviction.” Again, we disagree. Defendant claims that W.F. testified

that she and Kayla got out of bed twice, but never turned a light on or made any noise.

Defendant argues that she said that Douglas was not home that night, yet she did not

sleep in his room or the living room as she had done in the past. Instead, she and

Kayla returned to their places on each side of him. Defendant further claims that W.F.

did not tell anyone about her allegations despite numerous opportunities to do so.

Finally, Defendant argues that the accounts given by W.F. and Kayla were materially

different. He asserts that W.F. said she and Kayla watched television while he went

straight to bed and Kayla testified that she and W.F. took baths. Further, he observes

that W.F. said that he was asleep when the two girls got into bed while Kayla testified

that he was reading a book. Defendant also brings up the discrepancies in the girls’

testimony. He shows that W.F. said there were no lights on anywhere and Kayla

testified that the bathroom light was on; that W.F. testified that she was in the middle

of the bed at first and Kayla testified that he was in the middle of the bed when the

girls went to bed; and that W.F. testified that she and Kayla went to the bathroom

twice and Kayla testified that they went ten or fifteen times.

We note that Defendant does not set forth any inconsistencies in the

testimony of W.F., but points out differences between the testimony of W.F. and

Kayla. These differences do not pertain to the actual acts of inappropriate touching

9

by Defendant. We are also cognizant that the trial court stated in its ruling that it

believed the testimony of W.F. and Kayla. As we said in State v. Willis, 05-218, p. 15

(La.App. 3 Cir. 11/2/05), 915 So.2d 365, 378-79, writ denied, 06-0186 (La. 6/23/06),

930 So.2d 973, cert. denied, __ U.S. __, 127 S.Ct. 668 (2006) (alteration in part in

original):

“[t]he credibility of a witness, including the victim, is within the
discretion of the trier of fact, who may accept or reject, in whole or in
part, the testimony of any witness. ‘[T]he Jackson standard does not
serve as a vehicle for a reviewing court to second guess the rational
credibility determinations of the fact finder at trial.’” [State v.]
Schexnaider, [03-144 (La.App. 3 Cir. 6/4/03),] 852 So.2d [450,] 457
(citations omitted), quoting State v. Williams, 00-981, p. 7 (La.App. 5
Cir. 4/11/01), 786 So.2d 805, 810, writ denied, 01-1377 (La.3/20/02),
812 So.2d 646. Furthermore, the testimony of the victim alone is
sufficient to establish the elements of a sexual offense. Id.

Therefore, the arguments and assertions set forth by Defendant in this

assignment of error lack merit and the evidence, when viewed in the light most

favorable to the prosecution, is sufficient to support his conviction of indecent

behavior with a juvenile.

EVIDENCE OF OTHER ACTS OF SEXUAL MISCONDUCT

In this assignment of error, Defendant contends that the trial court erred

in admitting evidence of other unproven allegations of sexual misconduct in that the

prejudicial effect outweighed the probative value. He claims that evidence of the acts

committed in Orleans Parish had no relevance as they were not similar to those that

occurred in Rapides Parish. He further argues that the State did not prove the acts

committed in Orleans Parish by clear and convincing evidence. Finally, he asserts that

the evidence of the acts committed in Orleans Parish were of such little probative

value that the prejudicial effect far outweighed the probative value. Furthermore, he

10

argues that the trial court should have instructed itself on the limited use of Prieur

evidence or evidence of other alleged sexual acts pointing out that pursuant to State

v. Miller, 98-0301 (La. 9/9/98), 718 So.2d 960, the trial court must, at a defendant’s

request, offer a limiting instruction to the jury.

To support his position, Defendant cites La.Code Evid. art. 412.2 and

cites State v. Jackson, 625 So.2d 146 (La.1993), for the proposition that one of the

factors listed in Article 412.2 must be at issue before such evidence can be admitted.

In Jackson, the supreme court stated that not only one of the factors set forth in

La.Code Evid. art. 404(B)(1) must be at issue, but it must have some independent

relevance, or be an element of the crime charged in order for evidence of other acts to

be admissible.5 Defendant also cites State v. Davis, 449 So.2d 466 (La.1984), for the

proposition that the commission of another crime must be proven by clear and

convincing evidence. Defendant also cites La.Code Evid. art. 403 and asserts that

even if independently relevant, evidence of other bad acts may be excluded if its

probative value is substantially outweighed by the dangers of unfair prejudice,

confusion of the issues, misleading the jury, or by considerations of undue delay or

waste of time.

5
Article 404(B)(1) provides with regard to other crimes, wrongs, and acts:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake or accident, provided that upon request by the accused, the prosecution in
a criminal case shall provide reasonable notice in advance of trial, of the nature of
any such evidence it intends to introduce at trial for such purposes, or when it relates
to conduct that constitutes an integral part of the act or transaction that is the subject
of the present proceeding.

11

Article 412.2(A) provides:

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.

Initially, we find that the acts committed in Orleans Parish constitute a

sex offense. Additionally, W.F. is the type of victim the legislature sought to protect

when it lowered the standard set by Article 404(B) by enacting the separate and

distinct Article 412.2. However, even the lower standard set by Article 412.2 subjects

the evidence sought to be admitted to the balancing test set forth in La.Code Evid. art.

403.

The cases and requirements cited by Defendant in his argument pertain

to Article 404. It is our opinion that had the legislature intended Article 412.2 to

require that motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake or accident be at issue before evidence could be admitted under

Article 412.2, it would have amended Article 404(B) to include the language of

Article 412.2 rather than creating a separate provision. See State v. Williams, 02-0898,

02-1030 (La. 10/15/02), 830 So.2d 984. Thus, evidence of the acts committed in

Orleans Parish are admissible if the balancing test set forth in Article 403 is satisfied.

The Article 403 balancing test pits the probative value against the

prejudicial effect. There can be no question that the testimony regarding the alleged

sexual acts that occurred in Orleans Parish was prejudicial. In Willis, 915 So.2d 365,

the defendant was charged with one count of aggravated rape and four counts of

12

forcible rape. During the trial, the trial court allowed evidence regarding the

defendant’s prior sexual offenses against children. Two witnesses testified regarding

sexual acts committed against them and the other members of their family. We found

that the evidence of prior sexual offenses was admissible under Article 412.2 in order

to prove propensity and was not unfairly prejudicial as the trial court gave a limiting

instruction to the jury.

As we have said, in this case, a bench trial was conducted. The comments

to Article 403(d) provides as follows:

(d) The risk of undue prejudice spoken of in this Article may be
less substantial when the trier of fact is a judge rather than a jury, and
thus sometimes evidence may properly be admitted in a non-jury trial that
would be inadmissible in a jury trial. See Pugh & McClelland, “The
Work of the Louisiana Appellate Courts for the 1975-1976 Term,
Evidence,” 37 La.L.Rev. 575 (1977), reprinted in G. Pugh, Louisiana
Evidence Law, 1978 Supp. at 1.

See also State v. Jones, 95-1457 (La.App. 3 Cir. 5/8/96), 677 So.2d 493.

Based on Willis and the comments to Article 403, we find that the

admission of evidence regarding the acts that occurred in Orleans Parish were not so

prejudicial as to outweigh its probative value. Further, while Defendant did make a

contemporaneous objection to the admission of this evidence, there was no request for

the trial court to instruct itself regarding the admission and limited use of the evidence.

Additionally, as this was a bench trial, it was not necessary for the trial court to

explain in detail all of the legal considerations it used in reaching its verdict, and

particularly instructions regarding the limited use of other crimes evidence. For these

reasons, this assignment of error lacks merit.

13

HEARSAY TESTIMONY

In this assignment of error, Defendant contends that the trial court erred

in allowing the admission of hearsay testimony, W.F.’s statements to others and her

written statement, to impermissibly bolster her testimony. This assignment of error

is without merit.

In support of his argument that W.F.’s written statement should not have

been admitted into evidence, Defendant relies on La.Code Crim.P. art. 793 and cases

that interpret that article. Again, we call to mind that this was a bench trial. Article

793 is situated under Section 1 of “General Provisions” of Chapter 3, “Trial by Jury”

of Title XXVI, “Trial Procedure” of the Code of Criminal Procedure. It defines the

use of evidence in the jury room by a jury. It has no place in a bench trial. The written

statement was nothing more than a reiteration of what she testified to at trial. There

was no indication that the statement was reviewed by the trial court during its

deliberation. Even if the trial court reviewed the document, there is nothing in the

record indicating that it gave the statement any undue weight or that the statement in

any way unduly attributed to the verdict in this case.

Defendant asserts that allegations made by W.F. to her mother and Kayla

were hearsay and their testimony regarding W.F.’s allegations were hearsay.

Defendant claims that Kayla admitted that she had not really seen anything, but was

testifying based on what W.F. allegedly told her in the bathroom. He argues that when

asked to say what happened or what she saw, Kayla said that she “thought” Defendant

touched W.F. one time outside her shirt, that he touched W.F.’s chest, and was

grabbing her “boobs.” Defendant also complains because W.F.’s mother was allowed

14

to testify that W.F. told her he had “fooled with her.” Defendant contends that the

testimony of Kayla and W.F.’s mother regarding the allegations made by W.F. clearly

contributed to the verdict. He argues that the testimony was hearsay and that there

were no exceptions to the hearsay rule that would allow its admission into evidence.

However, we cannot find that Defendant objected to this evidence when it was

admitted. Without a contemporaneous objection, Defendant cannot now be heard to

make such an objection. It is too late for the trial court to rule and correct an error if,

in fact, one exists. Therefore, any error regarding said testimony was waived. La.

Code Crim.P. art. 841. Accordingly, as we have said, this assignment of error has no

merit.

ERRORS PATENT

We review all appeals for error patent in accordance with La.Code

Crim.P. art. 920. In this case, we have found two errors patent. First, the trial court

imposed an illegal sentence in that it ordered Defendant’s sentence be served without

benefit of parole, probation, or suspension of sentence. The trial court has discretion

to refuse to suspend a sentence, but La.R.S. 14:81 does not authorize it to impose the

sentence without benefit of parole.

In State v. Sanders, 04-0017, p. 1 (La. 5/14/04), 876 So.2d 42, 42, the supreme

court stated:

In cases in which the sentencing error made by the trial court does not
involve the omission of a restrictive term specified by the legislature as
part of the sentence but the imposition of limits beyond what the
legislature has authorized in the sentencing statute(s), an appellate court
should not rely on La.R.S. 15:301.1(A) to correct the error as a matter of
law but should correct the sentence on its own authority under
La.C.Cr.P. art. 882 to correct an illegal sentence “at any time”.

15

Accordingly, we amend Defendant’s sentence by deleting the prohibition

on parole eligibility and instruct the trial court to make an entry in its court minutes

reflecting this change. See State v. Poirrier, 04-825 (La.App. 3 Cir. 12/1/04), 888

So.2d 1123.

Second, the record does not indicate that the trial court advised Defendant

of the prescriptive period for filing post-conviction relief as required by La.Code

Crim.P. art. 930.8. Thus, the trial court is directed to inform Defendant of the

provisions of Article 930.8 by sending appropriate written notice to him within ten

days of the rendition of this opinion and to file written proof that he received the

notice in the record of the proceedings. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05),

903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

CONCLUSION

Defendant’s conviction for indecent behavior with a juvenile is affirmed.

However, we amend his sentence by deleting the prohibition on parole eligibility and

instruct the trial court to make an entry in the minutes reflecting this change.

Additionally, the trial court is directed to inform Defendant of the provisions of Article

930.8 by sending appropriate written notice to him within ten days of the rendition of

this opinion and to file written proof that he received the notice in the record of the

proceedings.

AFFIRMED AS AMENDED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION, Uniform
Rules—Courts of Appeal, Rule 2-16.3.

16