State of Louisiana v. Christopher K. Mayeux

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-994

STATE OF LOUISIANA

VERSUS

CHRISTOPHER K. MAYEUX

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

APPEAL FROM THE
TWENTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF LASALLE, NO. 94802
HONORABLE J. CHRISTOPHER PETERS, JUDGE

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

J. DAVID PAINTER
JUDGE

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

Court composed of Elizabeth A. Pickett, J. David Painter, and Phyllis M. Keaty,
Judges.

AFFIRMED AND REMANDED FOR CLARIFICATION OF SENTENCE.

J. Reed Walters
District Attorney
P.O. Box 1940
Jena, LA 71342
COUNSEL FOR APPELLEE:
Christopher K. Mayeux

Annette Roach
Louisiana Appellate Project
P.O. Box 1747
Lake Charles, LA 70602
COUNSEL FOR DEFENDANT-APPELLANT:
State of Louisiana

PAINTER, Judge.

Defendant, Christopher K. Mayeaux, appeals his conviction for battery on a

police officer and the lack of clarity of his sentence as to credit for time served. For

the following reasons, we affirm the conviction and remand for clarification of the

amount of credit given for time served.

FACTS

Defendant was an inmate at the LaSalle Correctional Center (LCC) on July

18, 2011. He was involved in a fight with the victim in lockdown cell 103 where

Defendant was placed after fighting with deputies in the hallway upon returning

from court on that date.

Defendant was charged by bill of information with battery of a police officer

while in the custody of the Department of Corrections, a violation of La.R.S.

14:34.2(B)(2). Defendant was arraigned and entered a plea of not. Following trial

by jury, Defendant was found guilty and sentenced to serve eighteen months at

hard labor without benefit of probation, parole, or suspension of sentence, to run

consecutively with any sentence he was serving at the time of the incident. A

motion for appeal was filed and granted.

Defendant is now before this court asserting three assignments of error.

Defendant contends that the evidence is insufficient to support his conviction, that

the trial court erred in its charges to the jury, and that the record is unclear as to

what credit he is to receive for time served prior to the imposition of sentence.

1

DISCUSSION

Error Patent

In accord with La.Code Crim.P. art. 920, all appeals are reviewed for errors

patent on the face of the record. After reviewing the record, we find none.

Sufficiency of the Evidence

In his first assignment of error, Defendant contends that 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 beyond a

reasonable doubt all of the elements of the offense of battery of a police officer

while in the custody of the Department of Corrections.

When reviewing the sufficiency of the evidence on appeal, an
appellate court considers whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could
have determined that the State proved the essential elements of the
crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v.
King, 436 So.2d 559 (La.1983). An appellate court will not second
guess credibility determinations beyond this sufficiency evaluation
insofar as the trial court or jury fulfills the role of the fact finder in
weighing the credibility of witnesses. See id. Notwithstanding this
standard, the record must indicate that the State satisfied its burden of
proving the elements of the crime beyond a reasonable doubt. State v.
Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367.

State v. Bowie, 11-869, p. 8 (La.App. 3 Cir. 12/7/11), __ So.3d __, __.

In order for the State to obtain a conviction for battery of a
police officer, it must prove the elements of the crime beyond a
reasonable doubt. Battery of a police officer has three elements: the
intentional use of force upon a police officer, without the consent of
the officer, when the offender knows or should reasonably know that
the victim is a police officer acting within the performance of his
duty. LSA-R.S. 14:34.2.

State v. Ceaser, 02-3021, p. 3 (La. 10/21/03), 859 So.2d 639, 643. The State was

also required to prove that Defendant was “under the jurisdiction and legal custody

of the Department of Public Safety and Corrections, or [was] being detained in any

jail, prison, [or] correctional facility.” La.R.S. 14:34.2(B)(2).
2

Sergeant Calvin Deason testified that he was employed at LCC. On July 18,

2011, Defendant returned from court and created a disturbance. As a result of

Defendant‟s actions, he was restrained by several deputies and sprayed with mace.

Defendant then showered, was given clean clothes, seen by the nurse, and taken to

lockdown cell 103. Defendant was still upset, cursing, and belligerent.

Sergeant Deason testified that thirty or forty-five minutes after Defendant

was placed in lockdown, he reported to a disturbance in lockdown cell 103.

Sergeant Deason used the flap in the door to ask Defendant what was wrong.

Defendant had settled down and stated that he wanted to speak to someone with

rank, and Sergeant Deason told Defendant to back up against the wall. Sergeant

Deason then opened the door, with mace in hand, and took a step inside. Sergeant

Deason testified that at that time, Defendant came running at him swinging both

hands and hit him. Sergeant Deason testified that he then sprayed Defendant with

mace, Defendant was again taken to the shower, given clean clothes, and was seen

by the nurse. Sergeant Deason stated that the incident was witnessed by Deputies

Miller, Posey, and Malloy.

Sergeant Deason suffered a scratch to his shoulder, and his shirt was torn.

He testified that he no longer had the shirt, and no photographs were taken of him.

Sergeant Deason further testified that the nurse treated his scratch. He testified that

it was policy to check an inmate‟s fingernails but that he did not recall how long

Defendant‟s fingernails were.

Sergeant Deason testified that he did not think there were any surveillance

cameras in the area where his altercation with Defendant occurred. If there were

cameras, he did not request that the video be preserved.

Lieutenant Curtis Buckelew testified that Defendant was a DOC inmate, and

that he transported Defendant to court in Grant Parish on July 18, 2011. When
3

Defendant returned from court, he was upset. Lieutenant Buckelew also described

an altercation that occurred when Defendant was brought back to LCC.

Billie Norman, a nurse at LCC, testified that she treated Sergeant Deason on

July 18, 2011. She stated that Sergeant Deason was treated for bleeding from the

left forearm due to a tear or cut that was approximately an inch and a half in

length. Norman testified that she treated Sergeant Deason immediately after the

altercation that occurred in the hallway. Norman testified that she did not recall

treating an injury to Sergeant Deason‟s chest, and, if she had, it would have been in

her report.

Norman was further questioned as follows:

Q Ms. Norman, are you, are you aware that there was a second
altercation.

A There were, there was a second altercation and there was [sic]
several altercations with Mr. Mayeux over a period of time. But
refreshing my memory on this, I only, I‟m going by the records that I
wrote on one of the altercations before the two officers were brought
to the infirmary.

Norman testified that she did not witness what occurred at the lockdown cell.

Norman testified that she treated a guard involved in the first altercation with

Defendant for lacerations that looked like claw marks probably caused by

fingernails.

Detective Tracy Clark testified that he was asked to determine if there was

any video surveillance in the area where the incident involving Sergeant Deason

occurred. Detective Clark was first informed that the area was void of surveillance.

However, there was in fact a video camera inside lockdown cell 103. Detective

Clark asked for a copy of the video from the date in question. He was subsequently

informed that any video had been taped over, if one had existed. On cross-

examination, Detective Clark testified that he was informed that there was no video

4

of the events occurring when Defendant was removed from a van upon returning to

LCC. He was not told that there was no video in the segregation area. Detective

Clark testified that videos are taped over after one month.

Defendant testified that he had a prior conviction for simple burglary. On

July 18, 2011, Defendant was a DOC inmate and was incarcerated because his

parole had been revoked that day for charges that were later dismissed.

Defendant admitted that he was resisting the commands of Lieutenant

Buckelew and that he was cursing and screaming. Defendant testified that he was

sprayed with mace, put in the shower, sprayed with mace again, put in the shower

again, then escorted to a cell. Defendant testified that he still had wet clothes on

when he was brought to the cell. Defendant admitted that he was still cursing in the

lockdown cell.

Defendant testified that he was asking for clean clothes when Sergeant

Deason opened the door and started spraying him with mace. Defendant denied

running at Sergeant Deason and attacking him. Defendant then testified that he did

not scratch Sergeant Deason and that he bit his fingernails. Defendant testified that

he never hit Sergeant Deason.

In his brief to this court, Defendant contends that the pivotal question is

whether the State proved beyond a reasonable doubt that he intentionally used

force of violence against Sergeant Deason. Defendant notes that he and Sergeant

Deason presented inconsistent testimony, and that the case turned on the credibility

call made by the jury.

Defendant contends that Sergeant Deason‟s testimony conflicts with that of

Defendant and Norman. Defendant notes that Norman testified that she treated

Sergeant Deason for a small tear on his forearm after a scuffle in the foyer, and

Sergeant Deason testified that he was treated following an incident in the
5

lockdown cell for a scratch to his chest/shoulder area. Defendant notes that

Sergeant Deason could not explain how the scratch occurred in light of LCC‟s

routine inspection of inmates‟ fingernails. Defendant argues that the testimony of

Norman and Sergeant Deason contain irreconcilable conflicts on a central issue in

the case. Defendant notes that, although injury is not necessary for battery,

Sergeant Deason testified that he was scratched on the chest when struck inside the

cell while Norman testified that he had a slight tear to his forearm from a scuffle in

the foyer.

Defendant additionally notes that, although he had been belligerent and

calmed down only long enough to ask to speak to someone with authority and

there was a flap in the door through which Sergeant Deason could have spoken to

him, Sergeant Deason opened the cell door with mace in hand and with three other

officers standing just outside the cell. Defendant then argues that what is left

unanswered is why a seasoned correctional officer would open the door of the cell

of an inmate who had been belligerent. Defendant asserts that the officer would not

have done so. Defendant contends that the State failed to prove he had the requisite

intent to commit a battery.

Defendant further notes that the physical evidence, including the

surveillance video and Sergeant Deason‟s shirt, was not preserved. Additionally,

no pictures were taken of Sergeant Deason‟s injuries. Furthermore, none of the

officers accompanying Sergeant Deason to lockdown cell 103 were called as

witnesses at trial. Defendant contends that these items were in the control of the

State, and that the State did not produce them. Accordingly, he argues that there is

a presumption that the evidence would not have aided the State‟s case. In support

of this argument, Defendant cites La.R.S. 15:432, which provides:

6

A legal presumption relieves him in whose favor it exists from
the necessity of any proof; but may none the less be destroyed by
rebutting evidence; such is the presumption attaching to the regularity
of judicial proceedings; that the grand jury was legally constituted;
that public officers have done their duty; that a relation or subject-
matter once established, continues, but not that it pre-existed; that the
defendant intended the natural and probable consequence of his act;
that the defendant is innocent; that the defendant is sane and
responsible for his actions; that the person in the unexplained
possession of property recently stolen is the thief; that evidence under
the control of a party and not produced by him was not produced
because it would not have aided him; that the witnesses have told the
truth.

The State notes that there was no video surveillance available to either it or

Defendant, that there was inconsistent testimony regarding the location of Sergeant

Deason‟s scratch, and that this issue was placed directly before the jury and

aggressively argued by both parties. The State points out that the jury had the

opportunity to examine the inconsistencies in the case, the unavailability of a

videotape, the testimony of Sergeant Deason as well as Defendant, and

Defendant‟s criminal history. After considering all of the evidence, the jury chose

to believe Sergeant Deason. The State asserts that the jury‟s determination was

rational and is entitled to great weight. Furthermore, viewing the evidence in the

light most favorable to the State, it was proven beyond a reasonable doubt that

Defendant committed the charged offense.

In State v. Farhood, 02-490, p. 9 (La.App. 5 Cir. 3/25/03), 844 So.2d 217,

224, the fifth circuit stated that:

The clear language of the statute indicates that the party against
whom the presumption is sought must be in control of the witness and
fail to call him, in order for the presumption to arise. See, State in the
Interest of J.G., 94-194 (La.App. 5 Cir. 7/26/94), 641 So.2d 633, 636.
If the witness is equally available to both sides, the presumption does
not arise. State v. Simms, 381 So.2d 472, 476 (La.1980). In such cases,
this Court has found that the defendant was not entitled to an
instruction on the State‟s failure to call a witness. State v. Jackson,
527 So.2d 1039, 1043 (La.App. 5 Cir.1988).

7

In State v. Humphries, 463 So.2d 804, 807 (La.App. 2 Cir. 1985) (footnote

omitted), the second circuit stated that:

Even if the state‟s failure to call these witnesses would have entitled
defendant to the presumption, she is not entitled to its recognition on
appeal because there is no indication in the record, as designated for
appeal, that she attempted to get the presumption before the jury. If
she could have established the state‟s control of the witnesses she
could have submitted the presumption to the jury by requesting a
special instruction. See LSA-C.Cr.P. art. 807; State v. Arnaud, 412
So.2d 1013 (La.1982); State v. Joseph, 407 So.2d 712 (La.1981).
Defendant apparently did not request such a charge. An omission in
the jury charges which the trial judge was not requested to supply
provides no grounds for complaint on appeal. State v. Brown, 242 La.
384, 136 So.2d 394 (1962).

In State v. Barfield, 11-515 (La.App. 3 Cir. 11/23/11), 81 So.3d 760, writ

denied, 11-2818 (La. 4/13/12), 85 So.3d 1246, the defendant was under house

arrest and equipped with an ankle bracelet. On May 16, 2010, the defendant left

home. Subsequently, police located the ankle bracelet but did not retain the

monitoring device‟s rubber strap, which had been cut through. Additionally, police

viewed video from the store where the ankle bracelet had been left and identified

the defendant as one of the individuals depicted on the video recording. Police later

requested the video footage and were informed that the pertinent footage had been

recorded over. The defendant was convicted of simple escape.

On appeal, the defendant alleged that the trial court erred in refusing to

include his requested jury instruction that, as a legal presumption, any evidence

under the control of the State was not entered into evidence because it would not

have aided the State in the prosecution of the case. The defendant alleged that the

ankle strap to the monitoring device and video from the store were both within the

control of the State. In its ruling, this court stated the following:

In the instant case, the State had an opportunity, though brief, to
preserve the ankle strap and the surveillance video by taking them into
its custody; however, as in [State v.] Ballay[, 99-906 (La.App. 5 Cir.
2/29/00), 757 So.2d 115, writ denied, 00-908 (La. 4/20/01), 790 So.2d
8

13,] and [State v.] Arnaud[, 412 So.2d 1013 (La.1982)], the State
failed to do so. As the State did not have custody or control of the
evidence, the presumption set forth in La.R.S. 15:432 did not apply.
Thus, the trial court did not err in refusing to include the legal
presumption in its jury instructions.

Id. at 773.

Based on these cases, Defendant is not entitled to a presumption regarding

evidence or witnesses that Defendant asserts were under the control of the State.

The State never had control of any video or Sergeant Deason‟s shirt. Additionally,

there is no proof in the record that the witnesses at issue were not equally available

to both sides.

The only element of battery of a police officer while in the custody of the

Department of Corrections contested by Defendant is whether he intentionally used

force or violence against Sergeant Deason. Sergeant Deason testified that

Defendant hit him when he entered lockdown cell 103, and Defendant denied this

allegation. In State v. Helou, 02-2302, p. 9 (La. 10/23/03), 857 So.2d 1024, 1030,

the supreme court found that the defendant‟s act of striking the victim in the nose

with his fist constituted the use of force or violence upon the victim.

“The definitions of some crimes require a specific criminal intent, while in

others no intent is required. Some crimes consist merely of criminal negligence

that produces criminal consequences. However, in the absence of qualifying

provisions, the terms „intent‟ and „intentional‟ have reference to „general criminal

intent.‟” La.R.S. 14:11. Battery of a police officer is defined as “a battery

committed without the consent of the victim when the offender has reasonable

grounds to believe the victim is a police officer acting in the performance of his

duty.” La.R.S. 14:34.2(A)(1). Battery is defined, in pertinent part, as “the

intentional use of force or violence upon the person of another.” La.R.S. 14:33.

Battery of a police office is a general intent crime. La.R.S. 14:10(2). “In general
9

intent crimes, criminal intent necessary to sustain a conviction is shown by the

very doing of the acts which have been declared criminal. State v. Howard, 94-23

(La.6/3/94), 638 So.2d 216.” State v. Bourque, 09-1092, p. 7 (La. 4/7/10), 33 So.3d

1092, 1097, writ denied, 10-1062 (La. 12/10/10), 51 So.3d 722.

Regardless of discrepancies regarding the location and timing of any injury

to Sergeant Deason, the jury heard the testimony of Sergeant Deason, Norman, and

Defendant. Sergeant Deason‟s testimony was not rife with internal contradiction,

and the jury chose to believe his testimony. This court will not second-guess that

credibility determination. Furthermore, in State v. Bernard, 39,579, p. 6 (La.App. 2

Cir. 4/6/05), 899 So.2d 818, 822, the second circuit stated that the testimony of the

victim alone was sufficient to support the defendant‟s conviction of second degree

battery.

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

State proved beyond a reasonable doubt that Defendant hit Sergeant Deason.

Accordingly, Defendant‟s conviction for battery of a police officer while in the

custody of the Department of Corrections should be affirmed.

Jury Charges

In his second assignment of error, Defendant contends that the trial court

erred in its charges to the jury, arguing that the charges were insufficient to instruct

the jury of its duty in this case and permitted it to consider arbitrary factors in its

determination of both guilt and credibility of the witnesses, resulting in a violation

of his right to due process and to a jury trial.

Defendant alleges that the trial court failed to define the term reasonable

doubt, which allowed the jurors to convict him despite possessing a higher degree

of doubt than was constitutionally required for acquittal. The following instruction

was given to the jury regarding reasonable doubt:
10

A person accused of a crime is presumed by law to be innocent until
each and every element of the crime necessary to constitute guilt is
proven beyond a reasonable doubt. The defendant is not required to
prove his innocence and therefore, he begins the trial with a clean
slate. The burden of proof is upon the State. In considering the
evidence you must given [sic] the defendant the benefit of every
reasonable doubt arising out of the evidence or of the lack of
evidence.

Defendant asserts that the jury was not given sufficient information to properly

render a verdict in this case, depriving him of his right to due process and a jury

trial. Defendant asserts that this court should not speculate as to whether the jury

understood what was meant by reasonable doubt, which would be improper

according to Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078 (1993).1

Defendant also alleges that the jury was given incorrect and insufficient

instructions on how it should weigh the testimony of witnesses. The following

instruction was given to the jury:

As the sole judges of the credibility of the witnesses, and the weight
their testimony deserves, you should carefully consider the testimony
given and the circumstances under which the witnesses testify. In
evaluating the testimony of a witness, you may consider the ability
and opportunity to observe and to remember the matter about which
the witness testified, the manner while testifying, any reasons the
witness may have for testifying in favor or against the State, or the
defendant, and the extent to which the evidence is supported or
contradicted by other evidence. The testimony of a witness may be
discredited by showing that the witness may benefit in some way by
the defendant‟s conviction or acquittal, that the witness is biased or
prejudiced, or that the witness has some other reasons or motive for
not telling the truth. These are circumstances you may consider along
with all other evidence in deciding whether or not you believe any or
all of the testimony of a witness. Inconsistencies or discrepancies in
the testimony of a witness or between different witnesses[] may or
may not cause you to discredit such testimony. Two or more
persons witnessing an incident may see or hear it differently.
Innocent miscollection, like the failure of recollection, is not an

1
In Sullivan, the Supreme Court held that an erroneous jury instruction on the nature of
reasonable doubt essentially identical to the one given in Cage v. Louisiana, 498 U.S. 39, 111
S.Ct. 328 (1990), was not subject to harmless error analysis. In Cage, the Supreme Court found
that an instruction equating reasonable doubt with a “grave uncertainty” and an “actual
substantial doubt” and stating that what was required was a “moral certainty” that the defendant
was guilty, was constitutionally defective.

11

uncommon experience. In weighing the effect of any discrepancy,
always consider whether it pertains to a matter of importance or
to an unimportant detail and whether it results from innocent
error or intention [sic] falsehood.

(Emphasis added.)

Defendant further alleges that the trial court failed to instruct the jury as to

the legal presumption set forth in La.R.S. 15:432, that “evidence under the control

of a party and not produced by him was not produced because it would not have

aided him.” Defendant asserts that most of the cases reported under La.R.S. 15:432

involve jury instructions concerning situations where witnesses were equally

available to both parties. Defendant then asserts that the record does not support a

conclusion that the defense was made aware of the presence of the other three

deputies outside lockdown cell 103 until Sergeant Deason‟s trial testimony

The State addresses Defendant‟s claims and also asserts that Defendant

failed to raise these issues at trial or make contemporaneous objections.

Reasonable Doubt

Louisiana Code of Criminal Procedure Article 804 provides, in part:

A. In all cases the court shall charge the jury that:

(1) A person accused of crime is presumed by law to be
innocent until each element of the crime, necessary to constitute his
guilt, is proven beyond a reasonable doubt;

(2) It is the duty of the jury, in considering the evidence and in
applying to that evidence the law as given by the court, to give the
defendant the benefit of every reasonable doubt arising out of the
evidence or out of the lack of evidence in the case; and

(3) It is the duty of the jury if not convinced of the guilt of a
defendant beyond a reasonable doubt, to find him not guilty.

The court may, but is not required to, define “the presumption
of innocence” or “reasonable doubt” or give any other or further
charge upon the same than that contained in this article.

12

In State v. Hart, 96-697 (La. 3/7/97), 691 So.2d 651, the defendant

complained about three of the trial court‟s charges to the jury at the conclusion of

the guilty phase of his trial, including the instruction regarding reasonable doubt.

The supreme court noted that defense counsel failed to lodge a contemporaneous

objection to any of the trial court‟s jury instructions and that it would not address

the defendant‟s claim. Id. at 660. See also State v. Guidry, 94-678 (La.App. 3 Cir.

12/7/94), 647 So.2d 502; State v. Stewart, 92-2536 (La.App. 4 Cir. 12/15/94), 648

So.2d 15, writ denied, 95-2423 (La. 3/21/97), 691 So.2d 75; State v. Isaacs, 95-173

(La.App. 5 Cir. 6/28/95), 658 So.2d 29, writ denied, 95-1948 (La. 1/5/96), 666

So.2d 299; State v. Davis, 97-1827 (La.App. 4 Cir. 3/10/99), 732 So.2d 79.

In State v. Smith, 46,343 (La.App. 2 Cir. 6/22/11), 71 So.3d 485, writ

denied, 11-1646 (La. 1/13/12), 77 So.3d 950, the defendant argued that the trial

court gave an improper jury instruction on the reasonable doubt standard, thereby

denying him his right to a fair trial. In its opinion, the second circuit stated that:

Unless objected to contemporaneously, an irregularity or error
in the charge to the jury may not be asserted on appeal. LSA-C.Cr.P.
art. 801(C). Although the procedural law set forth in LSA-C.Cr.P. art.
801 states that the failure to assert a timely objection waives the issue
on appeal, the jurisprudence has carved out an exception to this rule
where such alleged trial errors raise overriding due process
considerations. State v. Williamson, 389 So.2d 1328 (La.1980); State
v. Lowery, 33,905 (La.App.2d Cir.2/28/01), 781 So.2d 713, writ
denied, 2001-1041 (La.2/22/02), 809 So.2d 978. To determine
whether such an overriding consideration is implicated, it is necessary
to examine the instruction in light of the requirements of the Due
Process Clause. In Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239,
1243, 127 L.Ed.2d 583 (1994), the United States Supreme Court
explained:

The beyond a reasonable doubt standard is a requirement
of due process, but the Constitution neither prohibits trial
courts from defining reasonable doubt nor requires them
to do so as a matter of course. Indeed, so long as the
court instructs the jury on the necessity that the
defendant‟s guilt be proved beyond a reasonable doubt,
the Constitution does not require that any particular form
of words be used in advising the jury of the government‟s
13

burden of proof. Rather, taken as a whole, the
instructions [must] correctly conve[y] the concept of
reasonable doubt to the jury.

Id. at 487-88.2

The trial court is not required to define reasonable doubt. La.Code Crim.P.

art. 804; Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239 (1994). Additionally,

defense counsel failed to object to the instructions given or the lack thereof.

Accordingly, this portion of Defendant‟s assignment of error was not preserved for

appeal.

Weight of Witnesses Testimony

Defense counsel failed to object to the jury instructions. Thus, any claim

concerning the instruction about the weight to be given the testimony of witnesses

was not preserved for appeal.

Presumption

Based on the ruling in Humphries, 463 So.2d 804, that an omission in the

jury charges which the trial judge was not requested to supply provides no grounds

for complaint on appeal, the trial court‟s failure to instruct the jury regarding the

presumption set forth in La.R.S. 15:432 provides no grounds for complaint,

because Defendant did not request such an instruction.

For the reasons asserted herein, this assignment of error presents nothing for

review.

Credit for Time Served

2
In Williamson, 389 So.2d 1328, the jury was given the wrong definition of the charged
crime, and the supreme court stated it would address the issue despite the lack of an objection.
However, in State v. Belgard, 410 So.2d 720, 727 (La.1982), the supreme court found the
defendant must have objected to the jury charge at trial to preserve a claim of erroneous
instruction on the elements of attempted second degree murder. See also State v. Thomas, 427
So.2d 428 (La.1982); State v. Hongo, 96-2060 (La. 12/02/97), 706 So.2d 419; State v. Bishop,
01-2548 (La. 1/14/03), 835 So.2d 434; State v. Brown, 07-388 (La.App. 3 Cir. 10/3/07), 966
So.2d 1138, writ denied, 07-2159 (La. 3/28/08), 978 So.2d 304, and writ denied, 08-326 (La.
3/28/08), 978 So.2d 312.
14

In his third assignment of error, Defendant contends that the record is

unclear and that the minutes of court are incorrect as to what credit he is to receive

for time served prior to the imposition of sentence.

The trial court sentenced Defendant to serve eighteen months at hard labor

without benefit of probation, parole, or suspension of sentence and stated the

following:

They commence from the date that you were taken into custody or the
date of trial. You had given no credit for no time served priori [sic] to
the date of, the date you were taken into custody after the, after the
hearing in this matter. . . . The sentence imposed upon you today shall
run consecutively to any sentence Mr. Mayeux was serving at the time
of the incident. So, that‟s [sic] basically means, shows that it‟s going
to be, run from the date you bond [sic] out. You bonded out upon the
expiration of the revoked sentence and the sentence imposed shall
commence upon being taken in custody as I indicated earlier.

The minutes of sentencing state that:

The defendant was ordered to serve eighteen (18) months at hard
labor with the Department of Corrections without the benefit of
probation, parole or suspension of sentence. The defendant will not
receive credit for time served from date of conviction through
sentencing. . . . The sentence is to run consecutive with any other
sentence he is currently serving.

Louisiana Code of Criminal Procedure Article 880 provides that:

A. A defendant shall receive credit toward service of his
sentence for time spent in actual custody prior to the imposition of
sentence.

B. A defendant shall receive credit only for time in actual
custody and only once during any calendar month when consecutive
sentences are imposed.

C. No defendant shall receive credit for any time served prior to
the commission of the crime.

D. A defendant shall not receive credit for time served under
home incarceration.

E. A defendant shall not receive overlapping jail credit, except
in the instance of concurrent sentences and then only for time spent in
jail on the instant felony.

15

Defendant asserts that both the statement as to credit for time served and as

to which sentence his eighteen-month sentence was to run consecutively to are

incorrect. Defendant contends that the record does not show that, at the time of

sentence, he was serving any sentence. Further, the trial court ordered the sentence

to run consecutively to any sentence Defendant was serving at the time of the

incident not at the time of sentence. Defendant also asserts that the trial court‟s

explanation limited him from receiving credit for time served on his sentence

which was also credited to his sentence served on the parole revocation. Defendant

asserts that the minutes of court should be amended to correctly reflect the

sentence ordered by the trial court.

The State contends that the calculation of time is not before this court, as

there was no objection made in the trial court. Additionally, sentencing

calculations may be addressed administratively with the Department of

Corrections. The State admits that there is some ambiguity in the sentencing

transcript when read with the minutes and agrees that Defendant should be “given

credit for all time served spent in actual custody prior to the imposition of

sentence, but should only be given credit once for time spent for both the instant

case and the prior felony offense.”

The minutes of sentencing do not accurately reflect what occurred at the

sentencing hearing. We would normally order the trial court to amend the minutes

of sentencing to accurately reflect the sentencing transcript; however, the

sentencing transcript is unclear as to the trial court‟s intent regarding credit for

time served. Thus, this matter is be remanded to the trial court for clarification of

whether Defendant was to be given credit for time served and whether the sentence

of eighteen months was to run consecutively with any sentence Defendant was

serving at the time of sentence or at the time of the incident.
16

CONCLUSION

Defendant‟s conviction and sentence are affirmed. However, the matter is

remanded for clarification of the sentence imposed.

AFFIRMED AND REMANDED FOR CLARIFICATION OF SENTENCE.

17