State of Louisiana v. Charles Ray Davis

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-562

STATE OF LOUISIANA

VERSUS

CHARLES RAY DAVIS

**********

APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 2017-903
HONORABLE WARREN DANIEL WILLETT, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett,
and Shannon J. Gremillion, Judges.

CONVICTION AFFIRMED;
SENTENCE AFFIRMED AS AMENDED.

Chad M. Ikerd
Louisiana Appellate Project
P.O. Box 2125
Lafayette, LA 70502
(225) 806-2930
COUNSEL FOR DEFENDANT/APPELLANT:
Charles Ray Davis

James Patrick Lemoine
District Attorney, Thirty-Fifth Judicial District Court
Renee W. Nugent
Assistant District Attorney
P.O. Box 309
Colfax, LA 71417-0309
(318) 627-3205
COUNSEL FOR APPELLEE:
State of Louisiana

Jeffrey M. Landry
Attorney General
P.O. Box 94005
Baton Rouge, LA 70804
(225) 326-6200
COUNSEL FOR OTHER APPELLEE:
Attorney General
State of Louisiana

GREMILLION, Judge.

On November 22, 2017, Defendant, Charles Ray Davis, was charged by bill

of information with the sexual battery of T.M., 1 in violation of La.R.S. 14:43.1.

Following multiple pre-trial conference dates, the State filed an amended bill of

information on April 22, 2019, clarifying that the victim’s age was less than thirteen

and Defendant was over seventeen years of age. On April 25, 2019, Defendant was

found guilty as charged, with the jury specifically finding Defendant was over the

age of seventeen and the victim was under the age of thirteen. The conviction was

a 10-2 verdict.

On May 23, 2019, the trial court sentenced Defendant to thirty-five years at

hard labor with the first twenty-five years being served without benefit of probation,

parole, or suspension of sentence. Defense counsel objected and stated that he would

be filing a written Motion to Reconsider Sentence. On May 24, 2019, defense

counsel filed said motion, alleging Defendant’s “sentence is excessive in light of the

facts and circumstances in the instant matter.” The motion was denied on June 30,

2019, with the notation that “No facts [were] alleged to support granting a motion.”

Defendant now appeals his conviction and sentence, alleging insufficient

evidence to support his conviction, that the 10-2 jury verdict is unconstitutional, and

the bill of information is defective for failure to allege “all essential facts.” For the

following reasons, Defendant’s conviction is affirmed, and Defendant’s sentence is

affirmed as amended.

1
Initials are used in this opinion in accordance with La.R.S. 46:1844(W) to protect the
identity of the victim.

FACTS

The State’s first witness was Officer Michael Shaw, formerly of the

Montgomery Police Department. Officer Shaw testified he was sent to Defendant’s

home, in Grant Parish, on October 31, 2017. He noted the initial complaint was in

reference to “a man chasing another man around the yard with a hammer.” Officer

Shaw testified he made contact with J.M., who was holding a claw hammer, who

complied with all commands and was placed in the back of Officer Shaw’s vehicle.

Officer Shaw testified that while Defendant just wanted J.M. off his property, J.M.

indicated he had come to attack Defendant because Defendant had molested J.M.’s

child. Officer Shaw testified he believed J.M. had walked over five miles to confront

Defendant.

Officer Shaw testified that he, along with Montgomery Police Chief Kerral

Sapp and Deputy Amy LaBorde, spoke to J.M. at the police station. Officer Shaw

testified that Detective Ryan James of the Grant Parish Sheriff’s Office helped him

facilitate a child advocacy center interview for the victim due to the allegations

against Defendant. Officer Shaw testified he observed a change in the demeanor of

the victim during the interview once Defendant was mentioned. Officer Shaw stated

T.M. was living at Defendant’s home so that he could continue attending the school

he wanted to attend, as his parents lived in a different parish and school district.

Officer Shaw was unaware if T.M. had been to Defendant’s home since the incident.

The State then called former Montgomery Police Chief Sapp, who testified he

stepped down from his position due to disagreements with the mayor in January of

2019 and was currently operating his own trucking business. Chief Sapp testified

he was called to Defendant’s residence by Officer Shaw, who was the responding

officer. Chief Sapp identified Defendant’s written statement that he did not wish to

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pursue charges against J.M. Chief Sapp indicated his last involvement with the case

was witnessing Defendant give his voluntary statement that he did not wish to pursue

charges against J.M.

The State’s next witness was Detective Ryan James of the Grant Parish

Sheriff’s Office with twenty-five years of law enforcement experience. He testified

that he has worked over forty cases involving sexual abuse against children and

stated that once an allegation is made, he contacts the Child Advocacy Center and

sets up an interview for the child while refraining from speaking to the child.

Detective James described the set-up of the Advocacy Center, noting that the child

is interviewed out of law enforcement’s presence, although law enforcement can

monitor the interview from another room. Detective James testified that he and

Officer Shaw were present and observed the interview of the victim. When asked if

he had ever been involved in a case where the child had lied about inappropriate

contact, Detective James testified “Oh, I’ve had some that uh, yeah. It’s uh, in my

best words, it’s obvious.”

R.S., T.M.’s mother, testified she had previously lived in a bungalow behind

Defendant’s home on his property. She stated she had five children, ranging in age

from ten (T.M.) to twenty (T.M.’s sister, Brandy) years. R.S. testified that she, T.M.,

and T.M.’s sister, Mary, lived together in the bungalow while T.M.’s brother, Dylan,

lived with Defendant in Defendant’s home. She stated she lived in the bungalow for

eight or nine months before moving in with her mother, R.N. She testified her

mother was friends with Defendant.

R.S. testified that she moved in with her mother near the end of the school

year with T.M. and Mary, but that Defendant suggested T.M. could live with him to

finish the school year without transferring. She noted T.M. stayed with Defendant

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into the following school year, leaving only after telling her about the incident in

question. R.S. said T.M. would have been zoned for school in Atlanta, Louisiana,

but that he disliked the school because kids bullied him for living in Carterville. R.S.

testified that T.M. would spend the school week at Defendant’s home and would

come home with her every weekend.

R.S. stated that T.M. reported the incident to her on Halloween night, while

they were trick-or-treating. She testified that after they finished trick-or-treating,

T.M. told her he did not want to go back to Defendant’s and at that time told her

about the incident with Defendant. R.S. stated she did not know of T.M. telling

anyone about the incident prior to telling her. She testified T.M. told her “he was

sleeping on the couch in the living room at Mr. Charles’ house, and he woke up, and

Mr. Charles had his hand in [T.M.’s] pants playing with his - - his private.” She

acknowledged that T.M. typically slept either on the couch or in his older brother’s

room. She clarified that she had told T.M. that his penis was “his private.” T.M.

indicated to her that he woke up and rolled over and Defendant just got up and

walked away.

After getting her mother to drive them home, R.S. informed her boyfriend,

T.M.’s father, J.M. She stated that J.M. became angry and walked to Montgomery

to confront Defendant. R.S. testified T.M. once told her he wished he had never said

anything because he wanted his dogs, which were at Defendant’s home, back. She

testified she gave a statement to Chief Sapp two days later, relating what T.M. had

told her happened. Her written statement, admitted as State’s Exhibit 4, was dated

November 1, 2017. R.S. testified that T.M. has not been allowed to stay at

Defendant’s home overnight since the incident but acknowledged that T.M. had been

to the home with her.

4

R.S. testified the first time she learned Defendant was a registered sex

offender was after the incident with T.M., stating she was told by people from the

Office of Child Services. She stated Dylan had lived with Defendant for three or

four years during high school, but that she was not sure if he was still there. She

also testified that she, T.M., and J.M. learned Defendant was a sex offender after the

incident and she would not have left T.M. with Defendant if she had known.

The State then called Megan Blackburn Hanna, the forensic interviewer who

conducted the November 2, 2017 interview with T.M. Hanna described her training

and the interview process used with minors during a forensic interview. Hanna

identified the anatomical drawing T.M. made during his interview, in which he

circled the penis as the area where Defendant touched him. The court then played

the video of T.M.’s interview with Hanna for the jury.

T.M.’S NOVEMBER 2, 2017 INTERVIEW

The interview begins with Hanna building a rapport with T.M., who stated he

was nine years old. T.M. stated he was in fourth grade. Eventually, T.M. stated that

Defendant touched his “wrong spot” while T.M. was sleeping. He stated this

happened “[a] couple days ago.” T.M. stated: “I was asleep and I felt something

touching my wrong spot and I woke up and he yanked his hand from it and he went

walk back to his room.” T.M. also stated Defendant’s hand was touching him

underneath his clothes. T.M. testified that was the only time Defendant had touched

him inappropriately that he was aware of. T.M. testified that he learned on the day

of the interview that Defendant had done something similar. T.M. used an

anatomical drawing to verify that his “wrong spot” was his penis. T.M. indicated no

one had told him what to say during his interview.

5

The State then called T.M. T.M. testified that he was ten years old and in fifth

grade. He stated he understood the difference between the truth and a lie. He

testified that he wanted to live with Defendant until Defendant touched him on his

“wrong spot” while he was sleeping on the couch. He testified Defendant touched

him underneath his boxers. He testified that he felt Defendant’s hand while he was

asleep, woke up, and Defendant went back to Defendant’s room without saying

anything.

T.M. testified he told his mother, after trick-or-treating, that Defendant had

touched him, and he wanted to go home with his mother because he did not want to

be touched again. He testified he went home with his mother, who told his father

what happened, and his father walked to Defendant’s home. Although T.M. testified

that no one had told him what to say during his interview or his testimony, he stated

his grandmother, R.N., told him to lie at trial.

On cross-examination, T.M. testified that he never told R.N. that he was lying

about Defendant touching him. He also testified that he never told his brother,

Dylan, that he was lying but stated Dylan “would say it was a lie, because I’ve known

my brother, and he lies a lot.” T.M. also denied ever telling Dylan’s friend, D.M.,

that T.M. was lying about Defendant. At that time, the State rested.

The defense’s first witness was R.N., T.M.’s maternal grandmother. She

testified she met Defendant as a result of Dylan living with him. R.N. testified that

she was in her truck with T.M. playing a game about keeping secrets, and T.M. told

her he was lying about Defendant touching him but would not tell the truth because

he was afraid his father would be mad at him for lying. She also testified that after

the incident with Defendant, T.M. threatened to call the police on her and say she

was playing “with his peepee worm.” She testified that she raised Dylan until he

6

was sixteen, that he is currently eighteen, but somehow, he lived with Defendant for

about six years.

R.N. testified that she was informed Defendant was a convicted sex offender

the day she met him, before Dylan went to live with him. She also claimed R.S.

knew Defendant was a sex offender, although she did not know when R.S. found

out. After stating she was a “protective grandmother,” R.N. stated she felt

Defendant, who she knew was a sex offender, would be a good person to teach Dylan

the “things that a man needs to teach a child.” She also stated she did not think

Defendant was a bad person, despite being a registered sex offender, because he told

her he did not do it.

The defense then called Dylan, T.M.’s older brother. He testified that T.M.

told him multiple times that Defendant did touch him, but that T.M. also told him

multiple times that he made up the whole story so he would not have to go to school

the next day. Dylan testified he considered himself a protective older brother. He

testified he moved in with Defendant when he was thirteen or fourteen years old.

Dylan stated his uncle sexually abused him when he was younger.

Dylan stated Defendant “is like a father to [him]” and was the only person

who tried to help him. He admitted he did not want to see Defendant in trouble.

Dylan testified the whole family knew Defendant was a convicted sex offender when

Dylan started living with him and that T.M. has since threatened to accuse Dylan of

touching him. Dylan testified he believed T.M.’s father, J.M., was telling T.M. to

lie so Defendant would go to jail.

The defense then called E.S., who described herself as T.M.’s step-

grandmother. She testified that T.M. told her, both before and after he accused

Defendant of touching him, that he accused Defendant because he wanted to go to

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school in Atlanta and his parents wanted him to stay with Defendant. She stated she

did not want to see anything bad happen to Defendant, testifying “He’s a very loyal,

giving person. He’s bought us food when we needed it, he’d give his shirt off his

back, man.”

The defense then called Dylan’s friend, D.M. D.M. testified that a couple

days after T.M. accused Defendant of touching him, D.M. saw T.M. at the library.

He testified that T.M. said he lied about Defendant touching him so he could go

home with his mom. The defense then rested its case. The State offered no rebuttal

witnesses.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by for

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

an error patent regarding the trial court’s statement that Defendant’s sentence is not

subject to diminution of sentence.

After stating the number of years imposed for Defendant’s sentence, the trial

court informed Defendant that upon his release, he would be required to register as

a sex offender for the remainder of his life and that he would be required to be

electronically monitored in accordance with La.R.S. 14:43.1(C)(4). The trial court

then stated:

Mr. Davis, your sentence has not been enhanced pursuant to the
provisions of the Habitual Offender Act, nor has it been enhanced
because there was no evidence of any use of firearm. You are not
entitled to diminution for good behavior.

The minutes of sentencing also state that Defendant is not entitled to

diminution for good behavior.

8

Although La.Code Crim.P. art. 894.1(D) previously required the trial court to

advise a defendant of whether his sentence was subject to diminution for good

behavior, the article was amended in 2010 to delete such requirement. 2010 La. Acts

No. 350, § 1; see also State v. D.G.H., 07-524 (La.App. 3 Cir. 10/31/07), 969 So.2d

1254. Thus, at the time the trial court imposed the present sentence, La.Code

Crim.P. art. 894.1(D) no longer required such an advisement. When La.Code

Crim.P. art. 894.1(D) did require such an advisement, this court distinguished

between an advisement and an actual denial of diminution of sentence, finding no

corrective action was needed if the trial court merely advised a defendant that his

sentence was not subject to diminution. State v. James, 09-606 (La.App. 3 Cir.

12/9/09), 26 So.3d 915.

Although we could find that the trial court’s statement was merely an

advisement, we will proceed as if it was an actual denial of diminution of sentence.

The trial court was no longer required by La.Code Crim.P. art. 894.1(D) to advise

Defendant of whether his sentence was subject to diminution of sentence. Thus, the

trial court’s statement regarding diminution of sentence could be regarded as an

actual denial of diminution of sentence. See State v. Burton, 18-935 (La.App. 3 Cir.

6/5/19), 274 So.3d 122, where this court found a similar statement by the trial court

was an actual denial of diminution of sentence rather than a mere advisement.

Accordingly, Defendant’s sentence should be amended to delete such

statement, as the trial court was not authorized to deny diminution of sentence. The

supreme court has held that the provisions of La.R.S. 15:537(A), which prohibits

diminution of sentence for certain sex offenders, and the provisions of La.R.S.

15:571.3, which sets forth the guidelines for diminution of sentence for all prisoners,

do not form part of the sentence but are directives to the Department of Corrections

9

in computing an inmate’s sentence. State v. Prejean, 08-1192 (La. 2/6/09), 999

So.2d 1135 (per curiam). See also State v. Fallon, 15-1116 (La.App. 3 Cir. 4/6/16),

189 So.3d 605. “This court and the supreme court have repeatedly stated that trial

judges lack authority to deny good time eligibility.” State v. Toups, 17-792, p. 1

(La.App. 3 Cir. 11/22/17) (unpublished opinion.) 2 Accordingly, Defendant’s

sentence is amended to delete the trial court’s statement regarding diminution

eligibility, and the trial court is instructed to make an entry in the minutes reflecting

the amendment. See State v. Drummer, 17-790 (La.App. 3 Cir. 6/6/18), 245 So.3d

93, writ denied, 18-1139 (La. 2/11/19), 263 So.3d 413.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, Defendant contends “[t]he State failed to

sufficiently prove that [Defendant] was guilty of sexual battery.” Defendant’s

argument is based not upon the State’s failure to prove elements of the crime, but

solely on the credibility of the victim. Defendant’s entire argument can be summed

up by a single sentence:

Although the alleged victim, T.M. testified that Charles touched his
penis with Charles’ hand, (R. at 308-10), members of T.M.’s own
family—whom are not related to Charles—testified that T.M. is not
only a known liar, but he often threatens to lie about this specific
allegation with other people.

The analysis for insufficient-evidence claims is well settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King, 436 So.2d
559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v.

2
This case is cited at 2017 WL 5627774.

10

Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to
weigh the respective credibility of the witnesses, and therefore, the
appellate court should not second guess the credibility determinations
of the triers of fact beyond the sufficiency evaluations under the
Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d
559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order
for this Court to affirm a conviction, however, the record must reflect
that the state has satisfied its burden of proving the elements of the
crime beyond a reasonable doubt.

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

Under La.R.S. 14:43.1:

A. Sexual battery is the intentional touching of the anus or
genitals of the victim by the offender using any instrumentality or any
part of the body of the offender, directly or through clothing, or the
touching of the anus or genitals of the offender by the victim using any
instrumentality or any part of the body of the victim, directly or through
clothing, when any of the following occur:

....

(2) The victim has not yet attained fifteen years of
age and is at least three years younger than the offender.

As noted by Defendant, T.M. testified Defendant touched T.M.’s penis with

Defendant’s hand while T.M. was asleep. Additionally, T.M. was still under the age

of thirteen during trial. Accordingly, the State presented evidence to satisfy all

elements of the crime. The only question, then, is whether T.M. was credible. As

noted in Kennerson, this court should not undermine the jury’s credibility

determinations during a sufficiency review. Beyond this court not undermining the

credibility determinations of the jury, T.M.’s testimony at trial was virtually the

same as the information relayed during his interview with Hanna. Finally, the jury

was presented with T.M.’s testimony, they viewed his interview, and they were

present for the testimony of the defense witnesses who all claimed T.M. was lying.

The jury is free to believe some, all, or none of a witness’s testimony, and, despite

having the claims before them that T.M. was lying, the jury still returned a guilty

11

verdict. When viewing the evidence in the light most favorable to the prosecution,

T.M.’s testimony was sufficient to prove the elements of the offense beyond a

reasonable doubt. This assignment of error lacks merit.

Furthermore, to the extent the jury was also required to find T.M. was under

the age of thirteen to support Defendant’s sentence, there was sufficient testimony

from T.M., his mother, and his other relatives to verify that T.M. was, in fact, still

under the age of thirteen at trial.

NON-UNANIMOUS JURY

Defendant’s second assignment of error contends that his conviction is

unconstitutional because he was found guilty by a non-unanimous jury. Defendant

is aware that the Louisiana Supreme Court declared the non-unanimous jury verdict

system constitutional in State v. Bertrand, 08-2215, 08-2311 (La. 3/17/09), 6 So.3d

738, and that this court is bound by that ruling. However, the Louisiana Supreme

Court is not the final arbiter of this issue. Defendant asserts that in recent years, the

United States Supreme Court’s decision in Apodaca v. Oregon, 406 U.S. 404, 92

S.Ct. 1628 (1972), a plurality decision in which the Court determined that the United

States Constitution did not mandate unanimous jury verdicts in state court felony

criminal trials, has come into question. Defendant points out the Supreme Court’s

unanimous ruling in Timbs v. Indiana, ___ U.S. ___, 139 S.Ct. 682 (2019), finding

the excessive fines clause of the Eighth Amendment was incorporated to the States.

Therein, the Supreme Court pointed out the sole exception to the incorporation of

the Federal Bill of Rights remained the unanimous jury verdict right of the Sixth

Amendment. Less than one month later, the Supreme Court granted certiorari in

Ramos v. Louisiana, ___ U.S. ___, 139 S.Ct. 1318 (2019). In that case, the Court

12

will determine whether the Sixth Amendment’s guarantee of a unanimous jury

verdict is incorporated to the States through the Fourteenth Amendment.

Defendant additionally points out that Judge Stephen Beasley of the Eleventh

Judicial District Court declared Louisiana’s non-unanimous jury verdict system

unconstitutional in “State v. Maxie, 13-7252 (11th JDC 10/11/18).” Defendant

asserts Maxie is pending before the Louisiana Supreme Court. Defendant states that

the law regarding unanimous jury verdicts was changed in November 2018, and the

new law applies to crimes committed on or after January 1, 2019.3

Defendant contends his due process rights were violated in this case “because

the State was not held to its burden of proof to convince all 12 ‘reasonable’ jurors of

its case.”

Defendant claims this issue is being raised because trial counsel objected to

the non-unanimous verdict during sentencing. We note that at no point prior to

sentencing was the issue raised. There was no motion to declare the non-unanimous

verdict unconstitutional, there was no objection to the inclusion of a jury instruction

that only ten jurors had to agree to reach a verdict, and there was no objection made

when the verdict was announced and the jury was polled. Defendant, however,

contends the issue was properly preserved for appellate review. We disagree, noting

the fifth circuit recently held that a defendant who failed to object to a non-

unanimous jury instruction at the time it was rendered and who failed to challenge

the constitutionality of either La.Const. art. I, § 17 or La.Code Crim.P. art. 782 could

not raise the issue on appeal for failure to raise a contemporaneous objection under

3
Defendant’s trial was held in April 2019, and the unanimous jury issue was approved by
voters on November 6, 2018. See La.Const. art. I, § 17. However, the crime was committed in
October 2017.

13

La.Code Crim.P. art. 841. See State v. Brown, 15-96 (La.App. 5 Cir. 9/15/15), 173

So.3d 1262, writ denied, 15-1872 (La. 10/10/16), 207 So.3d 403. The Brown court

nonetheless addressed the validity of the non-unanimous jury verdict, and we will

do the same.

Defendant further contends the violation at issue is so fundamental to his due

process rights that it is an error patent. Defendant states, “No argument or further

factual development was necessary at the trial level for this Court to see the

constitutional violation and rule on it. The issue is properly before the Court and

can be ruled upon. The conviction should be vacated and remanded for a new trial.”

The State correctly notes that Defendant’s reliance on Maxie is in error for

two reasons: a district court ruling is neither binding on this court nor technically

precedent, and the Maxie ruling was never actually reviewed by a higher court

because the defendant pled guilty before a review was ever completed. In State v.

Hodge, 19-568, 19-569, p.4 (La. 11/19/19), ___ So.3d ___, the supreme court

recently found the same trial court which issued the Maxie ruling could not rely on

said ruling as a basis for declaring La.Const. art. I, § 17 and La.Code Crim.P. art.

782 unconstitutional because Maxie was “an earlier, nonbinding district court

ruling.”

At the time the offense was committed, La.Const. art. I, § 17(A) provided, in

part, “A case in which the punishment is necessarily confinement at hard labor shall

be tried before a jury of twelve persons, ten of whom must concur to render a

verdict.” See also La.Code Crim.P. art. 782. Defendant was charged with sexual

battery, which his punishable by imprisonment at hard labor. La.R.S. 14:43.1. Thus,

Defendant was required to be tried by a jury of twelve, ten of whom had to concur

to render a verdict. Defendant was tried by a jury of twelve, and ten of those jurors

14

concurred in the verdict. Thus, there is no error patent regarding the jury’s verdict,

and this assignment of error lacks merit.

BILL OF INFORMATION

In his final assignment of error, Defendant contends the bill of information

was defective “because it fails to allege ‘all essential facts.’” Defendant’s entire

argument is that because he was sentenced under La.R.S. 14:43.1(C)(2), the bill of

information was insufficient because it did not specify that the jury had to find T.M.

was under the age of thirteen. Louisiana Revised Statutes 14:43.1(C)(2) increases

the sentencing range for sexual battery from not more than ten years without benefits

to “imprisonment at hard labor for not less than twenty-five years nor more than

ninety-nine years. At least twenty-five years of the sentence imposed shall be served

without benefit of parole, probation, or suspension of sentence.” This enhancement

is based upon the victim being under the age of thirteen and the defendant being over

the age of seventeen. Defendant contends the bill of information failed to include

language which would alert him that he would be sentenced under the enhanced

sentencing statute.

Defendant’s argument is based upon the factually incorrect claim that “[t]here

was no amendment to the bill of information before or during trial to correct this

error.” On April 22, 2019, prior to trial, the State filed an amended bill of

information, in open court and without objection, which indicated the victim was

under the age of thirteen and Defendant was seventeen years of age or older.

Furthermore, the jury was presented with a special verdict form wherein the jury

indicated it found the victim was under the age of thirteen and Defendant was

seventeen years of age or older. There was no error patent regarding the bill of

information, and this assignment of error lacks merit.

15

DECREE

Defendant’s conviction for sexual battery in violation of La.R.S. 14:43.1 is

affirmed. Defendant’s sentence is amended to delete the trial court’s denial of

diminution of sentence, and the trial court is instructed to make an entry in the

minutes reflecting this amendment. Defendant’s sentence is affirmed as amended.

CONVICTION AFFIRMED;
SENTENCE AFFIRMED AS AMENDED.

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