State of Louisiana v. Sherman R. Bell, Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1033

STATE OF LOUISIANA

VERSUS

SHERMAN R. BELL, JR.

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 170, 413-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Jimmie C. Peters, Billy Howard Ezell, and James T. Genovese,
Judges.

CONVICTION AFFIRMED; SENTENCE VACATED; AND CASE
REMANDED WITH INSTRUCTIONS.

Charles A. Riddle, III
District Attorney
Twelfth Judicial District Court
Norris J. Greenhouse
Assistant District Attorney
P. O. Box 1200
Marksville, LA 71351
(318) 253-6587
COUNSEL FOR:
State of Louisiana

Myles J. Johnson
3211 115th Ave. NE #166
Bellevue, WA 98004
(206) 456-6957
COUNSEL FOR DEFENDANT/APPELLANT:
Sherman R. Bell, Jr.

EZELL, Judge.

On November 29, 2012, an Avoyelles Parish grand jury indicted Defendant,

Sherman R. Bell, Jr., for molestation of a juvenile, a violation of La.R.S. 14:81.2.

In open court on January 13, 2014, the State filed a motion in limine, and

Defendant filed an opposition to the State’s notice of intention to introduce

evidence of other crimes. The State’s motion in limine was related to the motion

to use other crimes evidence; the court heard testimony on the issue on the same

date.

Defendant was tried by a jury on January 14, which found him guilty as

charged. On July 7, 2014, the district court sentenced Defendant to five years, six

months of which were without benefit of probation, parole, or suspension of

sentence. As will be discussed in the “Errors Patent” section of this opinion, it is

not clearly stated that the five-year term is at hard labor.

Defendant now appeals, assigning errors. We affirm the conviction and

vacate the sentence due to an error patent.

FACTS

When the victim, F.W., was fourteen years old, Defendant pushed her onto a

bed and forced his penis inside her, even though she continuously told him to stop.

ERRORS PATENT

In accordance 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 there

are three errors patent, one of which requires that Defendant’s sentence be vacated.

First, the offense with which Defendant was charged requires imprisonment

with or without hard labor. Because the offense may be punishable at hard labor,

the case was required to be tried by a jury composed of six jurors, all of whom

must concur to render a verdict. La.Code Crim.P. art. 782. However, the twelve-

person jury rendered a unanimous verdict, resulting in the error being harmless.

See State v. Jones, 05-226 (La. 2/22/06), 922 So.2d 508.

Next, we find Defendant’s sentence is indeterminate and must be vacated.

Louisiana Revised Statutes 14:81.2 requires that Defendant’s sentence be served

either with or without hard labor. In imposing Defendant’s sentence, the court

stated, “I will order you to serve five years and six months without hard labor in

the Department of Corrections.” “[A] sentence committing a prisoner to the

Department of Corrections is necessarily at hard labor.” State v. Lisenby, 534

So.2d 996, 998 (La.App. 3 Cir. 1988); La.R.S. 15:824(C). Thus, it is not clear

whether Defendant’s sentence is to be served with or without hard labor.

Accordingly, we vacate Defendant’s sentence and remand this matter to the trial

court for resentencing with the trial court being instructed to specify whether the

sentence is to be served with or without hard labor. See State v. Newton, 12-541

(La.App. 3 Cir. 2/13/13), 129 So.3d 25.1

Finally, we find Defendant was given incorrect information regarding the

time limitation for filing an application for post-conviction relief. At sentencing,

Defendant was informed, “You do have your appeal delays and your post

conviction relief two years from the date of your reporting for incarceration.”

Louisiana Code of Criminal Procedure Article 930.8 provides the defendant has

two years after the conviction and sentence become final to seek post-conviction

relief. Accordingly, the district court is instructed to correctly inform Defendant of

the provisions of La.Code Crim.P. art. 930.8 at resentencing.

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The sentencing minutes and the commitment order do not accurately reflect the sentence
imposed by the trial court; however, correction is not required as resentencing has been ordered.

2

ASSIGNMENT OF ERROR NUMBER ONE

Defendant does not number his assignments of error, but his first two

arguments relate to the same issue. He claims the State did not file notice of its

intention to use other sex crime crimes evidence under La.Code Evid. art 412.2

until one week prior to trial. Further, he argues the trial court did not properly

consider the prejudice to him caused by the short notice. At one point, the court

told defense counsel that he should have anticipated the State’s action; Defendant

now argues the trial court’s statement “is simply without reason or precedence.”

Evidence of other sex crimes may be admissible pursuant to La.Code Evid.

art. 412.2, which states:

A. When an accused is charged with a crime involving sexually
assaultive behavior, or with acts that constitute a sex offense
involving a victim who was under the age of seventeen at the time of
the offense, evidence of the accused’s commission of another crime,
wrong, or act involving sexually assaultive behavior or acts which
indicate a lustful disposition toward children may be admissible and
may be considered for its bearing on any matter to which it is relevant
subject to the balancing test provided in Article 403.

B. In a case in which the state intends to offer evidence under
the provisions of this Article, the prosecution shall, upon request of
the accused, provide reasonable notice in advance of trial of the nature
of any such evidence it intends to introduce at trial for such purposes.

C. This Article shall not be construed to limit the admission or
consideration of evidence under any other rule.

Defendant states that during discussions that occurred over the course of

thirteen months, the State indicated that evidence regarding a different alleged

victim, R.I., was not strong; therefore, the State would proceed regarding victim

F.W. On January 6, 2014, one week before the date set for trial, the State filed its

motion to introduce other crimes evidence regarding R.I. Defendant argues the

short notice amounted to an ambush.

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As a primary matter, Defendant’s pre-trial discussions with the State can

have no bearing on this appeal, as by their very nature, such discussions are not

part of the record before this court. The next question is whether Defendant raised

a timely objection that preserved the issue for appellate review. Defendant argued

that the fifteen-day notice requirement of Federal Rule 413 should be applied, thus

prohibiting R.I. from testifying or alternatively resulting in a continuance.

Defendant states that the trial judge disagreed but does not cite to a portion of the

record containing any such discussion.

The State’s notice does not appear in the record, but as Defendant states, he

filed a written opposition to the notice on January 13, 2014. The opposition also

made the allegation that the State did not inform him of its intent to use other

crimes evidence until January 6. The trial court conducted a hearing on the State’s

notice of intent on January 13. Near the close of the hearing, the following

colloquy occurred:

BY THE COURT:

Every lawyer can challenge the legal ness [sic]. I know some
other cases where the lawyers were given notice just a few days
before in this jurisdiction and it, it just really didn’t change. He still
had to come up here blind and cross examine somebody. You got a
little bit more of an advantage because you had the you’ve got the
other case [sic]. You know something about this girl. I don’t even
know her name but you know sometimes the, the defense lawyer
doesn’t even know this witness’ name until two days before trial and
then they have to go forward. Because the parents wasn’t going to let
him depose her anyway.

BY MR. JOHNSON:

I understand but there is a (UNINTELLIGIBLE) and as you
stated Judge and I mean before 412.2 the case law and challenges on
that are extensive and unfortunately for me as I stand here today there
is no case on point that states you know what a definition for what a
reasonable time limit it.

4

BY THE COURT:

Well it probably reverts back to the (UNINTELLIGIBLE) you
know.

BY MR. JOHNSON:

It does say that and if there are cases out there that specifically
use the terminology to prevent ambush.

BY THE COURT:

You see I like the fifteen days. I would like to handle it in
fifteen days but in this case you got the file in [sic] that girl.
(UNINTELLIGIBLE) You knew about her.

ALL TALKING AT THE SAME TIME.

BY MR. JOHNSON:

I, I understand that and I operated up until last week under the
belief that F.D., [F.] was going to be I mean F.W. was going to be the
one that they proceeded on. That was the conversation up until a
week ago.

BY THE COURT:

Well, not under 412.2 and you know I know you are familiar
with Baton Rouge section cases to go around (UNINTELLIGIBLE)
that experience with it. But I’ve seen so many (UNINTELLIGIBLE) .

ALL TALKING AT THE SAME TIME.

BY MR. JOHNSON:

But you see Judge again what your [sic] saying I am in such a
precarious position none of those cases say you know what don’t
worry about the fifteen days. There is another standard that said
predictable ness [sic] or you know how predictable is it that the
prosecution will do this which is why you know and I understand that
this is all strategy. I understand what is going on here.

BY THE COURT:

Right.

BY MR. JOHNSON:

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But there’s nothing out there that protects me and says you
know what you should have been able to predict it so that’s the
problem I have.

BY THE COURT:

That’s it I ruled on that particular issue.

We find this discussion and Defendant’s written motion preserved the issue

for review. The issue was clearly raised in the district court.

Turning to the substance of the issue, the jurisprudence indicates that the

one-week notice of the State’s intent to use other crimes evidence was not error,

given that Defendant was familiar with the events regarding R.I.

In State v. Taylor, 96-1043, pp. 10-11 (La.App. 3 Cir. 2/5/97), 688 So.2d

1262, this court addressed a situation in which the State provided the defendant

with photographs depicting the victim’s injuries the day before trial. The

defendant alleged surprise and untimeliness on appeal, but this court stated that

surprise was not demonstrated since photocopies of many pictures showing the

injuries had been provided earlier. Further, this court held the defendant had failed

to demonstrate prejudice.

In State v. Burns, 45,539 (La.App. 2 Cir. 9/22/10), 48 So.3d 344, writ

denied, 10-2449 (La. 3/4/11), 58 So.3d 473, the State did not give notice of its

intent to introduce other crimes evidence until the day jury selection began, but the

record indicated the defendant had prior knowledge of the evidence at issue. Also,

he failed to argue how the “rather untimely” notice affected his trial strategy. Id. at

355. Therefore, the second circuit held that he failed to demonstrate prejudice.

Defendant’s familiarity with R.I.’s case is implicit in the arguments he

makes regarding his pretrial conversations with the State. Further, it must be noted

that defense counsel conducted an able cross-examination in which he highlighted
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apparent inconsistencies between R.I.’s testimony and prior statements she had

made.

Defendant argues that he should have received at least fifteen days’ notice as

required by Federal Rule 413, the counterpart of La.Code Evid. art. 412.2.

However, he cites absolutely no jurisprudence to support this argument, and our

research has found none. Defendant acknowledged the legal weakness of his

position on this issue when he stated he could find no case on point. In light of the

prevailing jurisprudence regarding notice and the lack of legal support for his

argument for fifteen-day notice, Defendant’s argument on this point must fail. For

the reasons discussed, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues the trial court

improperly applied the balancing test of La.Code Evid. art. 403, which states,

“Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, or waste of time.”2

A trial court’s ruling on this issue will not be overturned absent an abuse of

discretion. State v. Wright, 11-141 (La. 12/6/11), 79 So.3d 309. Defendant cites

no jurisprudence and does not cite any portion of the record to support his

argument. He argues, as he did below, that R.I.’s testimony was so incredible that

it was unduly prejudicial to let the jury hear it. We find Defendant’s argument

2
Pursuant to La.Code Evid. art. 412.2(A), the evidence of other sex crimes at issue in the
present case was subject to the balancing test of La.Code Evid. art. 403.

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does not demonstrate any legal or factual aspect of the ruling that indicates the trial

court abused its discretion in admitting R.I.’s testimony.

ASSIGNMENT OF ERROR NUMBER THREE

In his next argument, Defendant complains that he did not learn of R.I.’s

juvenile record until three days before trial and did not receive a copy of R.I.’s

juvenile record until the day of trial.

However, Defendant fails to allege the specific prejudice that arose from the

short notice. Specifically, Defendant does not state what there was in R.I.’s record

that he would have used to his advantage at trial or how his trial strategy would

have been different if he had received notice earlier. Defendant implicitly

acknowledges he failed to secure a ruling on the timeliness of the notice.

Defendant further alleges that the record he did receive was incomplete, but

he does not explain what was missing or how a more detailed or lengthy edition of

R.I.’s juvenile record would have affected his trial strategy. The jurisprudence

cited in the first assignment shows the absence of such a showing is fatal to his

argument. He has not demonstrated prejudice. For the reasons discussed, this

assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant also argues the trial court erred by not granting him a continuance

and not granting a stay to apply for an emergency writ after the adverse ruling

already discussed. He does not raise these issues as a separate assignment, but we

acknowledge this argument for the sake of clarity.

It is well-established that district courts have broad discretion regarding

whether to grant continuances. La.Code Crim.P. art. 712; see, e.g., State v. Mark,

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13-556 (La. 3/13/13), 109 So.3d 368.3 The decision whether to grant a stay is also

a matter of a court’s discretion. State v. Bennett, 610 So.2d 120 (La.1992). For the

reasons discussed in the earlier assignments of error, the trial court did not abuse

its discretion by declining to grant the requested continuance. Therefore, this

assignment of error lacks merit.

DISPOSITION

Defendant’s conviction is affirmed. Defendant’s sentence is vacated, and

we remand the case for resentencing with the district court. The trial court is

instructed to specify whether the sentence is to be served with or without hard

labor. The trial court is also instructed to correctly advise Defendant of the

provisions of La.Code Crim.P. art. 930.8 at resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; AND CASE

REMANDED WITH INSTRUCTIONS.

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

3
Although continuances are normally required to be written and made in advance of trial,
oral motions may be considered. See, e.g., State v. Fanguy. 94-143 (La.App. 3 Cir. 10/5/94), 643
So.2d 860, writ denied, 94-2726 (La. 4/21/95), 653 So.2d 563.

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