State of Louisiana v. S.L. D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-549

STATE OF LOUISIANA

VERSUS

S.L.D.

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR 120-05
HONORABLE HERMAN I. STEWART JR., DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir and
Marc T. Amy, Judges.

AFFIRMED.

David W. Burton
District Attorney
Richard F. Blankenship
Assistant District Attorney
Post Office Box 99
DeRidder, LA 70634
(337) 463-5578
COUNSEL FOR APPELLEE:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
S.L.D.

S.L.D.
A.V.C. Cajun 1, A-1
1630 Prison Rd.
Cottonport, LA 71327

AMY, Judge.

A jury convicted the defendant of two of the six counts of felony carnal

knowledge of a juvenile charged by the State. After the trial court adjudicated the

defendant a fourth felony offender, it imposed concurrent sentences of twenty-five

years at hard labor for the convictions. The defendant appeals, questioning the

sufficiency of the evidence on one of the convictions and asserting that the trial court

erred in permitting the introduction of hearsay evidence. The defendant also

questions the habitual offender proceedings. For the following reasons, we affirm.

Factual and Procedural Background

The State alleged that the defendant, S.L.D.1, who was over the age of nineteen,

committed one count of felony carnal knowledge of a juvenile, against S.M.S., and

five counts of felony carnal knowledge of a juvenile, against A.M. The State further

charged the defendant with the aggravated incest of his stepdaughter, J.P.S., then

under the age of eighteen years of age. Finally, the State charged the defendant with

bail jumping.2

1
In accordance with La.R.S. 46:1844(W), initials have been used to protect the privacy of
the victims. The defendant’s initials are used as one of the charges was aggravated incest.
2
The amended bill of information provided the following charges:

COUNT 1: [In the Parish of Beauregard, State of Louisiana, on or about the 1st
day of July, 1998, through the 19th day of November, 1998, [S.L.D.]]
. . . [d]id willfully and unlawfully violate R.S. 14:80, Felony Carnal
Knowledge of a Juvenile, in that [S.L.D.] is over nineteen years of
age, having been born on February 4, 1972, and engaged in vaginal
sexual intercourse with S.M.S., a person under seventeen years of
age, having been born on November 20, 1982, and who is not the
spouse of [S.L.D.], a felony

COUNT 2: On or about August 1, 2004, through August 30, 2005, [S.L.D.], did
willfully and unlawfully violate R.S. 14:78.1, Aggravated Incest, in
that [S.L.D.] did engage in acts of vaginal and oral sexual intercourse
with J.P.S., a person under the age of eighteen years, having been
born on April 16, 1993, and who is known by [S.L.D.] to be his
stepdaughter, (a felony)

COUNT 3: On or about January 19, 2004, [S.L.D.], did willfully and unlawfully
violate R.S. 14:80, Felony Carnal Knowledge of a Juvenile, in that

As the defendant’s appeal focuses on the conviction for the count of felony

carnal knowledge of a juvenile involving A.M., we set forth the factual history

relevant to this appeal. The State alleged that the defendant, S.L.D., born in 1972,

perpetuated numerous acts of vaginal and oral sexual intercourse on A.M., born in

June 1989. One alleged offense was identified as occurring on or about January 19,

2004, while two each were identified as occurring on or about October 19, 2004, and

on or about October 22, 2004.

[S.L.D.] is over nineteen years of age, having been born on February
4, 1972 and had vaginal intercourse with A.M., a person under
seventeen years of age, having been born on June 11, 1989, and who
is not the spouse of [S.L.D.], (a felony)

COUNT 4: On or about October 19, 2004, [S.L.D.], did willfully and unlawfully
violate R.S. 14:80, Felony Carnal Knowledge of a Juvenile, in that
[S.L.D.] is over nineteen years of age, having been born on February
4, 1972 and had vaginal intercourse with A.M., a person under
seventeen years of age, having been born on June 11, 1989 and who
is not the spouse of [S.L.D.], (a felony)

COUNT 5: On or about October 19, 2004, [S.L.D.], did willfully and unlawfully
violate R.S. 14:80, Felony Carnal Knowledge of a Juvenile, in that
[S.L.D.] is over nineteen years of age, having been born on February
4, 1972 and had oral sexual intercourse with A.M., a person under
seventeen years of age, having been born on June 11, 1989 and who
is not the spouse of [S.L.D.], (a felony)

COUNT 6: On or about October 22, 2004 [S.L.D.], did willfully and unlawfully
violate R.S. 14:80, Felony Carnal Knowledge of a Juvenile, in that
[S.L.D.] is over nineteen years of age, having been born on June 11,
1989 and who is not the spouse of [S.L.D.], (a felony)

COUNT 7: On or about October 22, 2004, [S.L.D.], did willfully and unlawfully
violate R.S. 14:80, Felony Carnal Knowledge of a Juvenile, in that
[S.L.D.] is over nineteen years of age, having been born on February
4, 1972 and had oral sexual intercourse with A.M., a person under
seventeen years of age, having been born on June 11, 1989 and who
is not the spouse of [S.L.D.], (a felony).

COUNT 8: On or about June 19, 2006, [S.L.D.], did willfully and unlawfully
violate R.S. 14:110.1, Jumping Bail, in that [S.L.D.] did fail to appear
at the Beauregard Parish Courthouse, in DeRidder, Louisiana, at 9:00
o’clock A.M., as designated by the judge, regarding felony charges,
to-wit: Felony Carnal Knowledge of a Juvenile, (a felony)

2

At trial, A.M. explained that the defendant and his wife were neighbors and

friends of her parents. She testified that she had a “crush” on the defendant and

admitted that she left home on the night of October 22, 2004 to follow him. She

denied having had a sexual encounter with the defendant up to that point. However,

she explained that she had told Detective Janet Beebe of the Beauregard Parish

Sheriff’s Department that she and the defendant had vaginal sexual intercourse that

night as well as a few nights before. She could not recall whether she informed

Detective Beebe of oral sexual intercourse with the defendant.

However, Detective Beebe testified that she interviewed A.M. on November

1, 2004 and that A.M. stated that she and the defendant had engaged in both oral and

vaginal sexual intercourse at various times in 2004. At trial, A.M. contested the

veracity of her statement to Detective Beebe, noting that she tried to later recant the

statement.

Yet, A.M. testified that, while on a camping trip during 2004, she attempted to

perform oral sexual intercourse on the defendant. She contended that he was asleep

and/or intoxicated at the time and that he pushed her away.

In a November 2004 statement to Detective Beebe, the defendant explained

that A.M. had pursued him and had asked her parents to “keep her away from [him].”

He denied having sexual intercourse with A.M., but when questioned by Detective

Beebe whether he had “engaged in oral sex with her,” the defendant responded:

[S.L.D.] Yes. One night while we was, uh, campin with her mom
and them and everybody had left and I was still asleep that
morning cause we got pretty drunk the night before and it
was real early. It was about daylight and she woke me up
havin oral sex with me and uh, from there, ev - - after that
(inaudible) I just never - she was like a puppy. Couldn’t
get away, couldn’t I couldn’t get away from her.

3

He subsequently stated that: “It happened, I think a total of three times.” He denied

that he had “given her oral sex and [he] did not force her to do anything.” The

transcript also reflects the following exchange:

Beebe: And you said the, the temptation was just there and she just
kept on and on and on and you just - -

Doyle: Right, I give in like, I know - - in the back of my mind, I
said you know, just, I knew it was wrong, but it just, when
you get drunk like that and then stuff, it happens. Which
is my part for drinkin too much.

He reported to Detective Beebe that A.M. had written him letters asking “when we

will ever have sex, you know.” The transcript indicates that Detective Beebe inquired

whether A.M. was “talking about the oral sex” or “about sexual intercourse?” The

defendant responded: “She was talkin about intercourse.” He responded “Yes” when

Detective Beebe asked whether the letters were written “after the oral sex then?” The

State presented an additional witness, a former friend of A.M., who testified that she

witnessed A.M. performing oral sexual intercourse on the defendant at the

defendant’s house.

Although the jury acquitted the defendant of four of the offenses involving

A.M., it convicted him of felony carnal knowledge of a juvenile on a single count

involving oral sexual intercourse with A.M. The jury also convicted the defendant

of one count felony carnal knowledge of a juvenile for an offense involving S.M.S

and one count of bail jumping. The trial court vacated the bail jumping conviction

upon the defendant’s motion for post-verdict judgment of acquittal. The trial court

subsequently adjudicated the defendant a fourth felony offender. It imposed

concurrent, twenty-five year sentences for the two convictions.

The defendant appeals, assigning the following as error:

4

1) The evidence introduced at the trial of this case when viewed
under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979)
standard, was insufficient to prove all of the elements of the
offense of felony carnal knowledge of juvenile AM, beyond a
reasonable doubt.

2) The trial court erred in allowing the State to introduce hearsay
evidence in the trial of this case.

3) The trial court erred in denying SLD’s Opposition,
Answer/Opposition and his Supplemental Answer/Opposition to
the habitual offender bill.

4) The trial court erred in granting the State a continuance of the
habitual offender hearing over objection.

5) The State failed to prove that the predicate offenses had not been
cleansed from SLD’s record for habitual offender purposes.

In a separate pro se brief, the defendant asserts that the sentences are excessive.

DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, we review appeals for errors

patent on the face of the record. Our review reveals no errors patent.

Sufficiency of the Evidence

The defendant first argues that the State’s evidence was insufficient to prove

the elements of the offense of felony carnal knowledge of a juvenile, A.M., under the

dictates of Jackson, 443 U.S. 307, 99 S.Ct. 2781. The particular offense for which

the jury convicted the defendant, Count 5, involved an act of oral sexual intercourse

on or about October 19, 2004. The defendant contends that the only evidence that he

engaged in oral sexual intercourse with A.M. during this time frame came from the

statement A.M. made to Detective Beebe, but that was later recanted. He contends

that, not only was this information inconsistent with her later testimony, but that he

was not a willing participant in the act as he was asleep at the time.

5

In review of a sufficiency of the evidence claim, an appellate court considers

whether, after viewing the evidence in the light most favorable to the State, a rational

trier of fact could have found, beyond a reasonable doubt, the essential elements of

the crime. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Determinations as to the

weight of the evidence presented are questions of fact and rest solely with the trier of

fact, who may accept or reject, in whole or in part, the testimony of witnesses. State

v. Macon, 06-481 (La. 6/1/07), 957 So.2d 1280. “A reviewing court may impinge on

the factfinding function of the jury only to the extent necessary to assure the Jackson

standard of review. It is not the function of an appellate court to assess credibility or

re-weigh the evidence.” Id. at 1285-86, citing State v. Bordenave, 95-2328 (La.

4/26/96), 678 So.2d 19.

At the time of alleged offense, La.R.S. 14:80 provided, in pertinent part:

A. Felony carnal knowledge of a juvenile is committed when:

(1) A person who is nineteen years of age or older has sexual
intercourse, with consent, with a person who is twelve years of age or
older but less than seventeen years of age, when the victim is not the
spouse of the offender; or

....

B. As used in this Section, “sexual intercourse” means anal,
oral, or vaginal sexual intercourse.

As explained in the factual and procedural background, A.M. testified that she

attempted to perform oral sexual intercourse on the defendant three times during a

2004 camping trip. She responded “Yes, I did” when the State inquired whether she

“voluntarily pulled his penis out and put it in [her] mouth?” She stated that “after the

third time he walked out” and threatened to tell her parents. The defendant related

a similar event in his statement to Detective Beebe. Furthermore, the State also

6

presented J.H., who testified that, on an undisclosed date in 2004, she saw A.M.

performing oral sex on the defendant at the defendant’s home. Moreover, the record

demonstrates that at the time of the defendant’s arrest, he was thirty-two, and A.M.

turned fifteen in 2004. Thus, there is sufficient evidence in the record to prove that

defendant, who was older than nineteen, participated in consensual oral sexual

intercourse with A.M., who was younger than seventeen.

The defendant also asserts that there was insufficient evidence to support his

conviction because the State failed to prove that oral sexual intercourse occurred on

the date alleged on Count 5 of the charging instrument. Under La.Code Crim.P. art.

4683, when the date of the crime is not an element of the offense, the charging

instrument is not insufficient if it does not state the proper date. Further, Louisiana

courts have held that the State is not required to present evidence proving the date of

the offense when it is not an essential element of the crime. See State v. Trotter,

37,325 (La.App. 2 Cir. 8/22/03), 852 So.2d 1247, writ denied, 03-2764 (La. 2/13/04),

867 So.2d 689; State v. Mickens, 31,737 (La.App. 2 Cir. 3/31/99), 731 So.2d 463,

writ denied, 99-1078 (La. 9/24/99), 747 So.2d 1118; State v. Marler, 560 So.2d 537

(La.App. 1 Cir.), rev’d in part on other grounds, 566 So.2d 969 (La.1990); State v.

Brown, 421 So.2d 854, 856 (La.1982) (stating, “[m]oreover, the standards of Jackson

3
Article 468 provides:

The date or time of the commission of the offense need not be alleged in the
indictment, unless the date or time is essential to the offense.

If the date or time is not essential to the offense, an indictment shall not be
held insufficient if it does not state the proper date or time, or if it states the offense
to have been committed on a day subsequent to the finding of the indictment, or on
an impossible day.

All allegations of the indictment and bill of particulars shall be considered as
referring to the same date or time, unless otherwise stated.

7

v. Virginia are applicable only to essential elements of a crime, and the date and time

are not essential elements of the crime of burglary.”). Therefore, because the date of

the offense is not an element of the crime, the State was not required to prove the

offense occurred on the date alleged in the charging instrument.

This assignment of error is without merit.

Use of A.M.’s Statement

The defendant next questions Detective Beebe’s testimony regarding A.M.’s

statement to her. He asserts that the statements were hearsay, and that the trial court

failed to indicate whether there was any restriction on the use of the statement or

whether it performed the balancing test required by La.Code Evid. art. 607(D).4

Although the defendant contends that the portions of A.M.’s statement to

Detective Beebe were hearsay, La.Code Evid. art. 801 provides, in pertinent part:

D. Statements which are not hearsay. A statement is not
hearsay if:

(1) Prior statement by witness. The declarant testifies at the
trial or hearing and is subject to cross-examination concerning the
statement, and the statement is:

(a) In a criminal case, inconsistent with his testimony, provided
that the proponent has first fully directed the witness’ attention to the
statement and the witness has been given the opportunity to admit the
fact and where there exists any additional evidence to corroborate the
matter asserted by the prior inconsistent statement[.]

Here, A.M. testified at trial, was cross-examined by the defense, offered

testimony inconsistent with a prior statement, and then specifically refuted the

4
Article 607(D)(2) provides that:

Other extrinsic evidence, including prior inconsistent statements and evidence
contradicting the witness’ testimony, is admissible when offered solely to attack the
credibility of a witness unless the court determines that the probative value of the
evidence on the issue of credibility is substantially outweighed by the risks of undue
consumption of time, confusion of the issues, or unfair prejudice.

8

veracity of her prior statement. Accordingly, under Article 801(D), her inconsistent

statements to Detective Beebe were nonhearsay. The trial court was not required to

perform the balancing test of La.Code Evid 607(D)(2) as urged by the defendant for

these inconsistent statements.

To the extent that certain portions of A.M.’s statement to Detective Beebe were

not inconsistent with her testimony at trial, we note that contemporaneous objections

were not lodged at trial as is required by La.Code Civ.P. art. 841.5 First, when the

State questioned A.M. about her first interview with Detective Bebee, the defense

withdrew an initial objection when the State marked S-5 for identification:

MR. JONES:
Your Honor, may we approach?

THE COURT:
You may.

(CONFERENCE AT SIDEBAR:)

MR. JONES:
Your, Honor, this comes under the guise of prior inconsistent
statements; and a proper foundation is to call the witness’ attention to
the previous statement, ask them if they recall it. If they don’t recall it,
you can then read it to them. It doesn’t allow admissibility of the
statement.

MR. BLANKENSHIP:
I’m not trying to put the whole statement in. I’m going to do
exactly what you just told me to do.

MR. JONES:
I apologize. I thought he was going to offer it in evidence, Judge.
I’m sorry.

MR. BLANKENSHIP:
That’s okay.

5
Article 841 provides that “[a]n irregularity or error cannot be availed of after verdict unless
it was objected to at the time of occurrence.”

9

THE COURT:
All right.

Thus, defense counsel withdrew his objection after the prosecutor explained his

purpose in identifying the document.

The next statement contested by the defendant in brief occurred when the State

questioned A.M. about her second interview with Detective Bebee. The statement

was marked for identification as S-6, but was not introduced into evidence. The State

handed A.M. a copy of S-6 and inquired of her statements therein after establishing

A.M. did not remember where she was living at the time. We note, however, that

there was no objection recorded in the portion of the record cited by defense counsel.

Finally, the defendant references a portion of the trial transcript where defense

first objected to testimony by Detective Bebee concerning A.M.’s second police

statement:

Q And in the bill of information and in the arrest warrants, the State
has alleged certain dates that certain things happened. Do you recall
when [A.M.] told you when the first time she had sex with [S.L.D.] was?

A Yes. She said that it was, I believe, January 19, 2004. She would
have been 14 at that point in time.

Q She told you that date specifically?

A Yes, sir.

Q You hadn’t made that date up and put [it] in the report?

A No, sir. It’s a pretty general question that we ask, do you recall --
of anyone. “Do you recall the first time something happened, do you
recall the last time?” And she chose that --

MR. JONES:
Your Honor, may we approach, please? Excuse me Deputy
Bebee.

(CONFERENCE AT SIDEBAR:)

10

MR. JONES:
I think ultimately he’s entitled to play the defendant’s statement,
but I would object to her testifying as to what’s in it. If he is --

MR. BLANKENSHIP:
That’s not his statement. [A.M.]’s statement.

MR. JONES:
Well, then, any other statement, I would object to the hearsay
basis, then.

THE COURT:
How do you overcome the hearsay objection to [A.M.]’s
statement?

MR. BLANKENSHIP:
Okay. She’s made comments that her mother forced her to come
up there on the second time to make that statement. And her mother
made her. First of all, her aunt comes up.

THE COURT:
You’re not offering this as to the truth of the statement?

MR. BLANKENSHIP:
Well, I certainly would hope that the jury would believe it’s
January 19; but I want them to know that that was what was told to Janet
Bebee. Yes. Remember, I can offer prior consistent statements --
inconsistent statements as well as consistent statements for --

THE COURT:
Right now, right.

MR. BLANKENSHIP:
And I think she --

THE COURT:
That’s why you’re offering this?

MR. BLANKENSHIP:
That’s why I’m offering it.

MR. JONES:
I think she would have -- he would have had to ask [A.M.] while
she was on the stand: Isn’t it correct that you made a statement to Janet
Bebee on this date saying this? I think a foundation has to be laid --

11

MR. BLANKENSHIP:
I asked her about all those things; and she said all those were lies,
she just made those dates up. Now, what I’m trying -- I mean, none of
that was true. And I find it -- I think the jury needs to understand that
[A.M.] is the one that said, okay, January 19, 2004. That’s the end of it.
I’m not going into any more of the statements. I’m through with it. But
that’s important, that she said that date.

THE COURT:
As long as you’re limiting these questions to that.

MR. BLANKENSHIP:
Yeah, I’m not going --

THE COURT:
Okay. All right.

Thus, while the defense lodged a hearsay objection and one related to its foundation,

the record contains no La.Code Evid. art. 607 objection as now urged. The State did

not repeat its question. Instead, it questioned Detective Bebee about A.M.’s return

to make a third statement. While the hearsay objection was preserved for review,

there is no need for correction on appeal. Even if this court were to find that the

statement was hearsay, its introduction was harmless as the substance of the statement

related to the January 19, 2004 date alleged to have been the first occurrence of

sexual intercourse between A.M. and the defendant. The defendant was acquitted on

this charge, and, accordingly, the information was necessarily unattributable to the

jury’s verdict.

The final record references cited concern the jury instructions. Again, the

supplemental record containing the instructions reveals no recorded objection.

Further, the record shows that prior to closing arguments, the trial court considered

objections to the previously provided draft jury charges. The defendant did not object

to the jury instruction on the basis asserted in his appeal.

Accordingly, this assignment of error is without merit.

12

Opposition to the Habitual Offender Bill

The defendant also claims that the habitual offender proceedings were

vindictive prosecution because he exercised his right to trial, and that La.R.S.

15:529.1 is unconstitutional in the manner it was applied by the Beauregard Parish

District Attorney’s Office.

At the habitual offender hearing, the defendant entered evidence as to prior

prosecutions produced by the Beauregard District Attorney’s Office. The evidence

indicated there had been six habitual offender proceedings over the previous ten

years. Two of the defendants, Ricky Carthan and Michael Colton, proceeded to trial

after being offered plea agreements with waivers of their multiple offender

adjudications. After their convictions, the two defendants were adjudicated multiple

offenders. One defendant, Timothy Burchett, pled guilty and stipulated to third

offender status. The defendant Jeromie McCann was convicted after exercising his

right to trial and was adjudicated a multiple offender. There was no plea offer in his

case. Another defendant, Timothy Bradford, was offered a plea agreement that did

not include a waiver of the multiple offender bill. Mr. Bradford went to trial on the

charges and was later adjudicated to be a multiple offender. The final defendant,

Charles Cole, pled guilty without the State agreeing to waive multiple offender

adjudication. The prosecution subsequently declined to seek habitual offender

adjudication.6 He contends these prosecutions evidence vindictive application of the

habitual offender sentencing enhancement on the part of the district attorney.

The trial court found the defendant’s argument to be without merit:

6
The summary of the prosecutions provided by the State shows that the prosecution did not
waive the multiple offender adjudication. However, the written plea offer states that the prosecution
was willing to waive habitual offender proceedings.

13

The Court understands that the District Attorney’s office had the
right to use as a tool for obtaining guilty pleas a waiver of the habitual
offender law. Quite frankly, it would surprise me if there are many
cases of imposition of the habitual offender law where there is no trial.
I would expect that very few defendants are going to find it beneficial
to themselves to be adjudicated as a habitual offender; so, therefore, I
find it to be no surprise that you will find the habitual offender law used
or imposed in cases where the defendant has gone to trial. Defendants
are interested in serving as little time as possible. They’re not going to
enter in many guilty pleas with the understanding that they will also be
subject to habitual offender status. So the Court denies -- overrules the
argument against the use of the habitual offender statute as a tool in
cases to obtain a guilty plea, and particularly in this case.

As provided by La.Code Crim.P. art. 61, “the district attorney has entire charge

and control of every criminal prosecution instituted or pending in his district, and

determines whom, when, and how he shall prosecute.” Further, the district attorney

“has great discretionary power to file a habitual offender bill[.]” State v. Brisco, 04-

3039, p. 13 (La. 7/6/06), 933 So.2d 754, 762, citing State v. Dorthey, 92-3120

(La.1993), So.2d 1276. Additionally,

[a] defendant has the burden of proving, by a preponderance of the
evidence, the affirmative defense of prosecutorial vindictiveness. In that
regard, the court will examine the state’s actions in the context of the
entire proceedings. The events in the case will create a presumption of
vindictiveness if, to a reasonable mind, the filing of the habitual
offender bill can be explained only by a desire to deter or punish the
exercise of legal rights. But where the government’s conduct is equally
attributable to legitimate reasons, a defendant must prove actual
vindictiveness for a presumption will not apply. A mere opportunity for
vindictiveness does not suffice.

State v. Stewart, 27,049, p. 4 (La.App. 2 Cir. 5/10/95), 656 So.2d 677, 680, writ

denied, 95-1764 (La. 12/8/95), 664 So.2d 420, writ denied, 95-1768 (La. 12/8/95),

664 So.2d 420 (citations omitted).

The record supports the trial court’s determination that the State’s offer to

waive the habitual offender bill was an incentive given to entice the defendant to

14

enter a guilty plea. There is no indication that the filing of the multiple offender bill

was punishment for the defendant’s decision to proceed to trial.

This assignment is without merit.

Continuance of the Habitual Offender Hearing

The defendant next questions the trial court’s granting of a continuance of the

habitual offender hearing. He alleges that although both parties acknowledged they

were ready to proceed at the beginning of the February 7, 2008 hearing, the State

moved for a continuance after he objected to the lack of proper certification for

certain court records from Avoyelles Parish. He argues that the continuance provided

the State with an opportunity to obtain the certification which the State failed to

acquire beforehand, eviscerating “good cause” for a continuance, and that he was

prejudiced by the ultimate introduction of the certified letters.

“A motion for continuance, if timely filed, may be granted, in the discretion of

the court, in any case, if there is good ground therefore.” La.Code Crim.P. art. 712.

In State v. Gremillion, 428 So.2d 940 (La.App. 1 Cir. 1983), the first circuit

considered a case wherein the defendant contended the trial court erred when it

granted a continuance of the habitual offender hearing. The defense had objected to

the introduction of the defendant’s previous guilty pleas on the basis the State had not

demonstrated the defendant was properly Boykinized. Id. The trial court granted the

prosecution’s motion to continue based on the State’s assertion it needed to obtain

adequate information to prove the propriety of the defendant’s prior guilty pleas. Id.

Noting that the granting of a motion to continue rests within a trial court’s discretion,

the first circuit found no abuse of discretion. Id. Rather, it observed that at the time

of the continuance, the defendant had been convicted of the crimes. Thus, the

15

defendant’s guilt or innocence was not at issue, only whether he should receive an

enhanced sentence. Id.

As in Gremillion, the appropriateness of the habitual offender adjudication was

at issue rather than the defendant’s guilt or innocence of the prior offenses. Also, a

habitual offender proceeding “is not a trial, legal principles such as res judicata,

double jeopardy, the right to a jury trial and the like do not apply.” Dorthey, 623

So.2d at 1279. Thus, we find no abuse of the trial court’s discretion in its granting of

the continuance as requested by the State.

This assignment of error is without merit.

Predicate Offenses

In his final assignment of error, the defendant maintains that the State failed to

prove that the predicate offenses were not cleansed from his record for habitual

offender purposes. He argues that the trial court erred in overruling his objection to

the introduction of Exhibit S-E and urges that without these exhibits, the State failed

to prove that the prior convictions fell within the ten-year period set forth in La.R.S.

15:529.1(C). He argues that S-E was introduced during the testimony of a

classification manager for the Department of Corrections, who, he contends, does not

qualify under La.R.S. 15:529.1(F) as someone who can certify a prison record.

Under La.Code Evid. art. 803(6), records of regularly conducted business

activity are admissible as a hearsay exception:

Records of regularly conducted business activity. A
memorandum, report, record, or data compilation, in any form, including
but not limited to that which is stored by the use of an optical disk
imaging system, of acts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information transmitted by, a person
with knowledge, if made and kept in the course of a regularly conducted
business activity, and if it was the regular practice of that business
activity to make and to keep the memorandum, report, record, or data

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compilation, all as shown by the testimony of the custodian or other
qualified witness, unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness. This
exception is inapplicable unless the recorded information was furnished
to the business either by a person who was routinely acting for the
business in reporting the information or in circumstances under which
the statement would not be excluded by the hearsay rule. The term
“business” as used in this Paragraph includes business, institution,
association, profession, occupation, and calling of every kind, whether
or not conducted for profit. Public records and reports which are
specifically excluded from the public records exception by Article
803(8)(b) shall not qualify as an exception to the hearsay rule under this
Paragraph.

(Emphasis added).

Henry Goins testified that he worked as a classification manager for the

Correction Services Division of the Department of Corrections. He explained that his

primary function at the department was to ensure that the inmates were released in

accordance with their legal release dates and Louisiana law. He verified that S-E was

a seventeen-page document generated from the department’s inmate computer

database. He explained that, on November 26, 2007, he personally accessed the

department’s computer system, retrieved the information, and printed the documents.

Mr. Goins explained that these records assist the department in classifying

inmates, calculating the inmates’ release dates, and for general data on the inmates.

He verified that the document at issue was information about the defendant. It listed

several identification numbers, such as the defendant’s Department of Corrections

number, which will remain constant throughout the defendant’s life for all

convictions and all sentences, and the defendant’s state identification number, which

was assigned by the State Police and is specific to the defendant.

Mr. Goins explained that the “CAJUN-2” notation at the top of each page is the

name of the department’s database containing the documents. He stated that each

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time a person was convicted and sentenced, the information, including the court’s

docket number, the judicial district, as well as the date of the offense, the conviction,

and the sentence, is entered into the database. It also includes the inmate’s social

security number when available and the inmate’s date of birth.

On traversal by the defendant, Mr. Goins explained that he supervised the

section responsible for archiving certain records. However, he was not the official

custodian of the S-E documents. Nor did he input the date into the database. Mr.

Goins explained that he had personal knowledge of the accuracy of the

documentation involving the defendant’s conviction for possession of stolen things

under “Beauregard docket number 66-94,” the rap sheet generated by the State Police,

a fingerprint card, and a release certificate.

The trial court overruled the defense’s objection to Mr. Goins’ personal

knowledge of the documents, stating:

I believe that a person who has knowledge of the business records
and how the records are kept and who generates the records himself
provides sufficient identification to come within the exception to the
hearsay rule which is known as the “business records exception,” and
I’m going to overrule the exception -- the objection.

In State v. Smith, 04-800 (La.App. 1 Cir. 12/17/04), 897 So.2d 710, the first

circuit concluded that La.R.S. 15:529.1(F) does not provide the exclusive means for

proving a defendant’s multiple offender status. It determined that multiple offender

status could also be proven through introducing records of regularly conducted

business activity. Id. “To be admitted under a business records exception, the person

who actually prepared the documents need not have testified, so long as other

circumstantial evidence and testimony suggests [sic] their trustworthiness.” Id. at

715-16. However, the Smith court found the person who testified about the exhibit

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at the hearing under consideration was unqualified because he did not testify that he

had personal knowledge as to how the document was generated, or whether it was

identical to the record in the database. Id. The first circuit explained that testimony

by a witness that he or she either pulled up or witnessed someone pulling up the

record would satisfy the personal knowledge requirement. Id.

In this case, Mr. Goins testified that S-E was a compilation of data kept in the

course of the department’s regularly conducted business, that the information was

always entered upon the inmate’s conviction and sentence, that he regularly accessed

and relied upon the material to calculate and verify inmates’ release dates, that the

documents were generated directly from the department’s database, and that he

personally accessed the records, printed, and provided them to the prosecution.

In light of this testimony, and under the guidance of La.Code Evid. art. 803(6)

and White, we find no merit in the defendant’s claim that Mr. Goins was not a

qualified witness with the personal knowledge to verify the accuracy of the

documents. Because the defendant’s remaining contentions under this assignment of

error were not included in defendant’s objection to the trial court, they are not

preserved for review on appeal.

This assignment of error is without merit.

Sentences

In a separate, pro se brief, the defendant argues that the twenty-five year, hard-

labor, sentences are excessive. He contends that the trial court had misgivings about

imposing the twenty-five year sentences and asserts that the sentencing court

considered an aggravated incest charge in Vernon Parish when deciding the

defendant’s penalty and that the charge was subsequently dismissed. As far as these

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latter, particular grounds for his claim of excessiveness, however, we note that they

were not raised in a motion to reconsider sentence. Therefore, we review the bare

claim of constitutional excessiveness. See La.Code Crim.P. art. 881.1; State v. Mims,

619 So.2d 1059 (La.1993).

An appellate court reviews excessive sentence claims under the abuse of

discretion standard of review:

Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent
part, that “[n]o law shall subject any person to . . . excessive . . .
punishment.” (Emphasis added.) Although a sentence is within
statutory limits, it can be reviewed for constitutional excessiveness. A
sentence is unconstitutionally excessive when it imposes punishment
grossly disproportionate to the severity of the offense or constitutes
nothing more than needless infliction of pain and suffering. A trial
judge has broad discretion when imposing a sentence and a reviewing
court may not set a sentence aside absent a manifest abuse of discretion.
On appellate review of a sentence, the relevant question is not whether
another sentence might have been more appropriate but whether the trial
court abused its broad sentencing discretion.

State v. Smith, 01-2574, pp. 6-7 (La. 1/14/03), 839 So.2d 1, 4 (citations omitted).

The defendant was adjudicated a fourth felony offender under the following

circumstances: (1) his current convictions were punishable by less than life

imprisonment and (2) no more than one of the predicate offenses were crimes of

violence, sex offenses, or drug offenses. Thus, the applicable sentencing provision

is La.R.S. 15:529.1(A)(1)(c)(i), which provides for a minimum sentence of twenty

years and a maximum of life imprisonment. Accordingly, the defendant’s sentences

are in the low-range of those possible.

The trial court set forth the following reasons for the sentences:

After your trial, the Beauregard Parish District Attorney’s Office
filed habitual offender charges against you; and on February 14, 2007,
you were adjudicated to be a habitual offender. At that hearing, the
State established for purposes of habitual offender status that you were
convicted in 1990 in this Court of felony unauthorized use of a movable,

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that you had a valid conviction in Avoyelles Parish in 1992 for
attempted crime against nature and an additional conviction in this Court
in 1994 for felony mid-grade possession of stolen things.

This Court ordered and received a presentence investigation
report from the Department of Probation and Parole. The PSI gives a
full and vivid account of a life of criminal activity.

As a juvenile, you were arrested at least seven times, your first
arrest being at age 13. You were adjudicated a juvenile delinquent on
three separate occasions, twice in Vernon Parish and once in Beauregard
Parish.

Your adult record reflects an additional 23 arrests resulting in five
felony convictions, leading up to this case, and four misdemeanor
convictions. This is your sixth felony conviction. There are pending
charges in Vernon Parish at this time for aggravated incest.

You are now 36 years of age. There has been no substantial time
during the last 23 years that you have not been involved in criminal
activity.

I have received many letters from your family stating that you
have now changed and that you have many good qualities. No doubt,
your family members love you and have reason to request leniency for
you. However, this Court would have to be both blind and naive not to
believe that you, if left free, would constitute a serious threat to law
abiding members of society. The Court, however, is not blind in that I
can read the PSI, which reflects your record of criminal violations; nor
am I naïve enough to believe that you have changed. This Court is
convinced that absent incarceration you would continue with a life of
burglary, theft, and sexual crimes against young girls.

....

The Court concludes that in view of your life of crime, justice is
best served by sentencing you to a lengthy period of incarceration.

Considering these reasons in light of the record, the nature of the offenses

underlying these convictions, and the fact that the sentences imposed are in the lower

range possible, we do not find that the sentences imposed are excessive.

Accordingly, this assignment of error is without merit.

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DECREE

For these reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.

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