State of Louisiana v. Joshua Jerome Ball
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Opinion
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
16-653
STATE OF LOUISIANA
VERSUS
JOSHUA JEROME BALL
**********
APPEAL FROM THE THIRTY-FIFTH JUDICIAL DISTRICT COURT PARISH OF GRANT, NO. 14-931 HONORABLE WARREN DANIEL WILLETT, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Jimmie C. Peters, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
CONVICTIONS AFFIRMED;
SENTENCES FOR VIOLATIONS OF LA.R.S. 15:542.1 AND LA.R.S. 15:542.1.2 ARE AFFIRMED;
SENTENCE FOR VIOLATION OF LA.R.S. 15:542 IS VACATED; REMANDED FOR RESENTENCING. Annette Roach Louisiana Appellate Project P. O. Box 1747 Lake Charles, LA 70602-1747 (337) 436-2900 COUNSEL FOR DEFENDANT/APPELLANT: Joshua Jerome Ball
Honorable James P. Lemoine District Attorney, Thirty-Fifth Judicial District Court Rhea Renee Nugent Assistant District Attorney P. O. Box 309 Colfax, LA 71417-0309 (318) 627-3205 COUNSEL FOR APPELLEE: State of Louisiana GREMILLION, Judge.
Defendant, Joshua Jerome Ball, was convicted of carnal knowledge of a
juvenile in Pointe Coupee Parish in 2005, and, as a result, was required to comply
with the sex offender registration and notification requirements set forth in La.R.S.
15:540, et seq.
Defendant was charged by bill of information with failure to register as a sex
offender, a violation of La.R.S. 15:542; failure to notify law enforcement of a
change of address, a violation of La.R.S. 15:542.1.2; and failure to provide
notification as a sex offender, a violation of La.R.S. 15:542.1. Defendant entered a
plea of not guilty. Following a jury trial, Defendant was found guilty as charged.
Thereafter, Defendant filed a “Motion for a New Trial” and “Memorandum in
Support of Motion for a Post Verdict Judgment of Acquittal or (in the Alternative)
a New Trial,” which were denied by the trial court.
Defendant was sentenced on May 12, 2016, to serve three and one-half years
at hard labor, with the first two years to be served without benefit of probation,
parole, or suspension of sentence, on each count, to run concurrently. Defendant
was also ordered to pay a fine of five hundred dollars, court costs, and seven
hundred fifty dollars to the Public Defender‟s Office.
Defendant timely appealed and asserts the following three assignments of
error: 1) he received ineffective assistance of counsel when counsel failed to seek
quashal of the bill of information and failed to object to erroneous jury
instructions; 2) the trial court erred in questioning witnesses during the trial, in the
presence of the jury, without his consent; and 3) the evidence introduced at the trial
was insufficient to prove, beyond a reasonable doubt, all of the elements of the
charged offenses. For the following reasons, Defendant‟s convictions are affirmed.
His sentences for failure to notify law enforcement of a change of address and failure to provide notification as a sex offender are affirmed. However, his
sentence for failure to register as a sex offender is vacated, and the matter is
remanded for resentencing.
ASSIGNMENT OF ERROR NUMBER THREE
In his third 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 charged offenses. When the issues on
appeal relate to both sufficiency of the evidence and one or more trial errors, we
first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731
(La.1992). The rationale is that when the entirety of the evidence is insufficient to
support the defendant‟s conviction, the defendant must be discharged as to that
crime, and any issues regarding trial errors become moot. Id. Accordingly, we
will first address Defendant‟s third assignment of error.
In reviewing the sufficiency of the evidence to support a conviction, this Court has recognized that an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, [443 U.S. 307, 99 S.Ct. 2781 (1979)]. State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, 928 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)). Under this standard, an appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” Tate, 851 So.2d at 928.
....
This Court has held that the trier of fact may make reasonable inferences from the evidence presented. In State v. Spears, we stated:
When evaluating circumstantial evidence, the trier of fact must consider the circumstantial evidence in light of the direct evidence, and vice versa, [and] the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to 2 each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.
05-0964 (La.4/4/06), 929 So.2d 1219, 1222 (citing State v. Chism, 436 So.2d 464, 469 (La.1983)). In Chism, we further held that “[t]he gist of circumstantial evidence, and the key to it, is the inference, or process of reasoning by which the conclusion is reached. This must be based on the evidence given, together with a sufficient background of human experience to justify the conclusion.” 436 So.2d at 469.
State v. Bryant, 12-233, pp. 4-7 (La. 10/16/12), 101 So.3d 429, 432-33, writ
denied, 12-229 (La. 1/25/13), 105 So.3d 61.
The bill of information states that “on or about March 13, 2014,” Defendant
did commit the following offenses in Grant Parish:
COUNT I: committed the offense of FAILURE TO REGISTER AS A SEX OFFENDER in violation of R.S. 15:542 in that he was an adult living in this state who has pled guilty to, or been convicted of a sex offense and did fail to register with the sheriff of the parish of his residence, and with the chief of police as required by R.S. 15:542.
COUNT II: committed the offense of FAILURE TO NOTIFY LAW ENFORCEMENT OF CHANGE OF ADDRESS in violation of La. R. S. 15:542.1.2 in that he failed to appear at the Sheriff‟s Office to update his information as required by law.
COUNT III: committed the offense of FAILURE TO PROVIDE NOTIFICATION AS A SEX OFFENDER in violation of La. R. S. 15:542.1 in that he failed to give notice for the crime he was previously convicted.
On the date of the offenses, as set forth in the bill of information, La.R.S.
15:542.1.4 provided, in pertinent part:
A. (1) A person who fails to register, periodically renew and update registration, provide proof of residence or notification of change of address or other registration information, or provide community notification as required by the provisions of this Chapter, and a person who knowingly provides false information to a law enforcement agency as provided in R.S.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
16-653
STATE OF LOUISIANA
VERSUS
JOSHUA JEROME BALL
**********
APPEAL FROM THE THIRTY-FIFTH JUDICIAL DISTRICT COURT PARISH OF GRANT, NO. 14-931 HONORABLE WARREN DANIEL WILLETT, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Jimmie C. Peters, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
CONVICTIONS AFFIRMED;
SENTENCES FOR VIOLATIONS OF LA.R.S. 15:542.1 AND LA.R.S. 15:542.1.2 ARE AFFIRMED;
SENTENCE FOR VIOLATION OF LA.R.S. 15:542 IS VACATED; REMANDED FOR RESENTENCING. Annette Roach Louisiana Appellate Project P. O. Box 1747 Lake Charles, LA 70602-1747 (337) 436-2900 COUNSEL FOR DEFENDANT/APPELLANT: Joshua Jerome Ball
Honorable James P. Lemoine District Attorney, Thirty-Fifth Judicial District Court Rhea Renee Nugent Assistant District Attorney P. O. Box 309 Colfax, LA 71417-0309 (318) 627-3205 COUNSEL FOR APPELLEE: State of Louisiana GREMILLION, Judge.
Defendant, Joshua Jerome Ball, was convicted of carnal knowledge of a
juvenile in Pointe Coupee Parish in 2005, and, as a result, was required to comply
with the sex offender registration and notification requirements set forth in La.R.S.
15:540, et seq.
Defendant was charged by bill of information with failure to register as a sex
offender, a violation of La.R.S. 15:542; failure to notify law enforcement of a
change of address, a violation of La.R.S. 15:542.1.2; and failure to provide
notification as a sex offender, a violation of La.R.S. 15:542.1. Defendant entered a
plea of not guilty. Following a jury trial, Defendant was found guilty as charged.
Thereafter, Defendant filed a “Motion for a New Trial” and “Memorandum in
Support of Motion for a Post Verdict Judgment of Acquittal or (in the Alternative)
a New Trial,” which were denied by the trial court.
Defendant was sentenced on May 12, 2016, to serve three and one-half years
at hard labor, with the first two years to be served without benefit of probation,
parole, or suspension of sentence, on each count, to run concurrently. Defendant
was also ordered to pay a fine of five hundred dollars, court costs, and seven
hundred fifty dollars to the Public Defender‟s Office.
Defendant timely appealed and asserts the following three assignments of
error: 1) he received ineffective assistance of counsel when counsel failed to seek
quashal of the bill of information and failed to object to erroneous jury
instructions; 2) the trial court erred in questioning witnesses during the trial, in the
presence of the jury, without his consent; and 3) the evidence introduced at the trial
was insufficient to prove, beyond a reasonable doubt, all of the elements of the
charged offenses. For the following reasons, Defendant‟s convictions are affirmed.
His sentences for failure to notify law enforcement of a change of address and failure to provide notification as a sex offender are affirmed. However, his
sentence for failure to register as a sex offender is vacated, and the matter is
remanded for resentencing.
ASSIGNMENT OF ERROR NUMBER THREE
In his third 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 charged offenses. When the issues on
appeal relate to both sufficiency of the evidence and one or more trial errors, we
first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731
(La.1992). The rationale is that when the entirety of the evidence is insufficient to
support the defendant‟s conviction, the defendant must be discharged as to that
crime, and any issues regarding trial errors become moot. Id. Accordingly, we
will first address Defendant‟s third assignment of error.
In reviewing the sufficiency of the evidence to support a conviction, this Court has recognized that an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, [443 U.S. 307, 99 S.Ct. 2781 (1979)]. State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, 928 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)). Under this standard, an appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” Tate, 851 So.2d at 928.
....
This Court has held that the trier of fact may make reasonable inferences from the evidence presented. In State v. Spears, we stated:
When evaluating circumstantial evidence, the trier of fact must consider the circumstantial evidence in light of the direct evidence, and vice versa, [and] the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to 2 each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.
05-0964 (La.4/4/06), 929 So.2d 1219, 1222 (citing State v. Chism, 436 So.2d 464, 469 (La.1983)). In Chism, we further held that “[t]he gist of circumstantial evidence, and the key to it, is the inference, or process of reasoning by which the conclusion is reached. This must be based on the evidence given, together with a sufficient background of human experience to justify the conclusion.” 436 So.2d at 469.
State v. Bryant, 12-233, pp. 4-7 (La. 10/16/12), 101 So.3d 429, 432-33, writ
denied, 12-229 (La. 1/25/13), 105 So.3d 61.
The bill of information states that “on or about March 13, 2014,” Defendant
did commit the following offenses in Grant Parish:
COUNT I: committed the offense of FAILURE TO REGISTER AS A SEX OFFENDER in violation of R.S. 15:542 in that he was an adult living in this state who has pled guilty to, or been convicted of a sex offense and did fail to register with the sheriff of the parish of his residence, and with the chief of police as required by R.S. 15:542.
COUNT II: committed the offense of FAILURE TO NOTIFY LAW ENFORCEMENT OF CHANGE OF ADDRESS in violation of La. R. S. 15:542.1.2 in that he failed to appear at the Sheriff‟s Office to update his information as required by law.
COUNT III: committed the offense of FAILURE TO PROVIDE NOTIFICATION AS A SEX OFFENDER in violation of La. R. S. 15:542.1 in that he failed to give notice for the crime he was previously convicted.
On the date of the offenses, as set forth in the bill of information, La.R.S.
15:542.1.4 provided, in pertinent part:
A. (1) A person who fails to register, periodically renew and update registration, provide proof of residence or notification of change of address or other registration information, or provide community notification as required by the provisions of this Chapter, and a person who knowingly provides false information to a law enforcement agency as provided in R.S. 15:542(C)(3), shall, upon first conviction, be fined not more than one thousand dollars and imprisoned with hard labor for not less than two years nor more than 3 ten years without benefit of parole, probation, or suspension of sentence. ....
(3) An offender who fails to pay the annual registration fee in accordance with the provisions of R.S. 15:542 shall be fined not more than five hundred dollars, imprisoned for not more than six months, or both. Upon a second or subsequent conviction for the failure to pay the annual registration fee, the offender shall be punished in accordance with the provisions of Paragraphs (1) and (2) of this Subsection.
Sex offender registration requirements are set forth, in pertinent part, in
La.R.S. 15:542, which provided as follows on March 13, 2014:
B. (1) The persons listed in Subsection A of this Section shall register in person with the sheriff of the parish of the person‟s residence, or residences, if there is more than one, and with the chief of police if the address of any of the person‟s residences is located in an incorporated area which has a police department. If the offender resides in a municipality with a population in excess of three hundred thousand persons, he shall register in person with the police department of his municipality of residence.
(2) The offender shall also register in person with the sheriff of the parish or parishes where the offender is an employee and with the sheriff of the parish or parishes where the offender attends school. If the offender is employed or attends school in a municipality with a population in excess of three hundred thousand persons, then he shall register only, pursuant to this Paragraph, with the police department of the municipality where he is employed or attends school. The offender shall also register in the parish of conviction for the initial registration only. No registration in the parish of conviction is necessary if the offender is incarcerated at the time of conviction or immediately taken into custody by law enforcement after the conviction.
C. (1) The offender shall register and provide all of the following information to the appropriate law enforcement agencies listed in Subsection B of this Section in accordance with the time periods provided for in this Subsection:
(a) Name and any aliases used by the offender.
(b) Physical address or addresses of residence.
(c) Name and physical address of place of employment. If the offender does not have a fixed place of employment, the offender shall provide information with as much specificity as possible 4 regarding the places where he works, including but not limited to travel routes used by the offender. ....
(e) Two forms of proof of residence for each residential address provided, including but not limited to a driver‟s license, bill for utility service, and bill for telephone service. If those forms of proof of residence are not available, the offender may provide an affidavit of an adult resident living at the same address. The affidavit shall certify that the affiant understands his obligation to provide written notice pursuant to R.S. 15:542.1.4 to the appropriate law enforcement agency with whom the offender last registered when the offender no longer resides at the residence provided in the affidavit.
(f) The crime for which he was convicted and the date and place of such conviction, and if known by the offender, the court in which the conviction was obtained, the docket number of the case, the specific statute under which he was convicted, and the sentence imposed.
(g) A current photograph.
(h) Fingerprints, palm prints, and a DNA sample.
(i) Telephone numbers, including fixed location phone and mobile phone numbers assigned to the offender or associated with any residence address of the offender.
(j) A description of every motorized vehicle registered to or operated by the offender, including license plate number and vehicle identification number, and a copy of the offender‟s driver‟s license and identification card. This information shall be provided prior to the offender‟s operation of the vehicle.
(k) Social security number and date of birth.
(l) A description of the physical characteristics of the offender, including but not limited to sex, race, hair color, eye color, height, age, weight, scars, tattoos, or other identifying marks on the body of the offender.
(m) Every e-mail address, online screen name, or other online identifiers used by the offender to communicate on the Internet. Required notice must be given before any online identifier is used to communicate on the Internet.
(n)(i) Temporary lodging information regarding any place where the offender plans to stay for seven or more days. This information shall be provided at least three days prior to the date of departure unless an emergency situation has prevented the timely disclosure of the information. 5 ....
(2) Unless an earlier time period is specified in the provisions of Paragraph (1) of this Subsection, every offender required to register in accordance with this Section shall appear in person and provide the information required by Paragraph (1) of this Subsection to the appropriate law enforcement agencies within three business days of establishing residence in Louisiana. If the offender is a current resident of Louisiana and is not immediately taken into custody or incarcerated after conviction or adjudication, he shall provide the information on the date of conviction to the sheriffs of the parish where the offender was convicted or adjudicated and shall, within three business days after conviction or adjudication, provide the information to the sheriff of the parishes of the offender‟s residence, employment, and school. If incarcerated immediately after conviction or placed in a secure facility immediately after adjudication, the information required by Paragraph (1) of this Subsection shall be provided to the secretary of the Department of Public Safety and Corrections, or his designee, or the deputy secretary for youth services, or his designee, whichever has custody of the offender, within ten days prior to release from confinement. Once released from confinement, every offender shall appear in person within three business days to register with the appropriate law enforcement agencies pursuant to the provision of this Section. The offender shall register with the sheriff of the parish in which the residence address he initially supplied to the Department of Public Safety and Corrections is located, unless his residence address has changed and he has registered with the sheriff of the parish in which his new residence address is located.
D. The offender shall pay to the appropriate law enforcement agencies with whom he is required to register, except for the campus law enforcement agency of an institution of postsecondary education, an annual registration fee of sixty dollars to defray the costs of maintaining the record of the offender. The payment of such a fee shall be made in accordance with any rule regarding indigency adopted by the judges of the judicial district court in the jurisdiction or as determined by criteria established by the Department of Public Safety and Corrections. The offender shall pay such fee upon the initial registration and on the anniversary thereof. Failure by the offender to pay the fee within thirty days of initial registration shall constitute a failure to register and shall subject the offender to prosecution under the provisions of R.S. 15:542.1.4(A)(3). The offender shall not be prevented from registering in accordance with this Section for failure to pay the annual registration fee.
Residence was defined in La.R.S. 15:541(22) as “a dwelling where an offender
regularly resides, regardless of the number of days or nights spent there.” 6 Louisiana Revised Statutes 15:542.1.2 sets forth the offender‟s duty to notify
law enforcement of a change of address, residence, or other registration
information, in pertinent part:
A. Unless an earlier time period is otherwise specified in the provisions of this Chapter, those persons required to register pursuant to the provisions of this Chapter shall appear in person at the sheriff‟s office in the parish of residence, or the police department in the case of a municipality with a population in excess of three hundred thousand, where the offender is currently registered to update information within three business days of establishing a new or additional physical residential address or of changes in information previously provided when any of the following occur:
(1) The offender changes his place of residence or establishes a new or additional residence.
(2) The offender has vacated his current address of registration with the intent not to return.
(3) The offender has been absent from his current address of registration for more than thirty consecutive days or an aggregate of thirty days or more per calendar year and is physically present at another address during that same time period.
(4) The offender has a change in name, place of employment, or any information previously provided pursuant to R.S. 15:542(C).
B. If the new or additional residence is located in a different parish than where the offender was previously registered, then he shall appear in person with the sheriff of the parish of the new or additional residence to register within the same time period established in Subsection A.
C. (1) Any person required to register in accordance with the provisions of this Chapter shall also be required to send a written notice of change of address or other information to the law enforcement agency with whom he was previously registered within three business days of establishing a new or additional residence.
(2) Upon receipt of a notice of change of address or updated information, the sheriff shall forward such information immediately to each law enforcement agency with which the offender is required to register pursuant to R.S. 15:542(A) and to the bureau.
D. The notice of change of address required by this Section shall include proof of residence as required by R.S. 15:542(C).
7 E. (1) Any person who is required to appear in person to give notice of a new address in accordance with the provisions of Subsection A of this Section shall also be required to provide new notification based upon the new address as provided for in R.S. 15:542.1, as applicable.
(2) Any sex offender who fails to provide change of address or other information as provided in this Section shall be subject to criminal prosecution as provided in R.S. 15:542.1.4.
F. (1) The offender shall appear in person at the sheriff‟s office in the parish of residence at least three days prior to establishing temporary lodging to provide temporary lodging information regarding any place where the offender plans to stay for seven consecutive days or more.
(2) If the location of the temporary lodging is outside of the boundaries of the parish of registration, then the sheriff shall notify the sheriff of the parish of temporary lodging. If the location of the temporary lodging is out of state, then the sheriff shall notify the bureau.
Notification requirements for sex offenders are set out in La.R.S. 15:542.1:
A. Any adult residing in this state who has pled guilty to, has been convicted of, or where adjudication has been deferred or withheld for the perpetration or attempted perpetration of, or conspiracy to commit, a sex offense as defined in R.S. 15:541 or a criminal offense against a minor as defined in R.S. 15:541 shall be required to provide the following notifications:
(1) Give notice of the crime for which he was convicted, his name, residential address, a description of his physical characteristics as provided in R.S. 15:542(C)(1), and a photograph or copy thereof to all of the following:
(2)(a) Give notice of the crime for which he was convicted, his name, jurisdiction of conviction, a description of his physical characteristics as required by this Section, and his physical address by mail to all people residing within the designated area within twenty- one days of the date of conviction, if the offender is not taken into custody at the time of conviction, or within twenty-one days of the date of release from confinement or within twenty-one days of establishing residency in the locale where the offender plans to have his domicile, and the notice shall be published on two separate days within the applicable period provided for herein, without cost to the state, in the official journal of the governing authority of the parish where the defendant plans to reside and, if ordered by the sheriff or police department or required by local ordinance, in a newspaper 8 which meets the requirements of R.S. 43:140(3) for qualification as an official journal and which has a larger or smaller circulation in the parish than the official journal. The notice provided to the official journal or other designated newspaper pursuant to this Subparagraph shall also include a recent photograph of the offender or a clear photocopy of a recent photograph of the offender.
(b) Those persons required to provide community notification pursuant to the provisions of this Section shall provide such community notification every five years from the date of the previous notification.
In order to support a conviction under La. R.S. 15:542, “the State must prove
that defendant was convicted of a sex offense as defined in La. R.S. 15:541, that he
resided in Louisiana for the period during which he was required to register, and
that he failed to register within the requisite time allotted for registration.” State v.
Flores, 14-642, p. 6 (La.App. 5 Cir. 12/23/14), 167 So.3d 801, 806. One of the
requirements of La.R.S. 15:542.1.2 “is that whenever a sex offender changes his
place of residence or vacates his current address of registration with the intent not
to return, he must notify the local law enforcement agency of his new address
within three [business] days” of establishing a new or different physical residential
address. State v. Cavazos, 11-733, p. 10 (La.App. 4 Cir. 5/16/12), 94 So.3d 870,
879, writs denied, 12-1372, 12-1438 (La. 10/26/12), 99 So.3d 645. Louisiana
Revised Statutes 15:542.1 requires an offender to give notice by mail and
publication in the official journal of the governing body of various information
within twenty-one days of establishing residency in the locale where the offender
plans to have his domicile.
Testimony
The parties stipulated that Defendant was convicted of carnal knowledge of
a juvenile on January 24, 2005, in Pointe Coupee Parish.
9 Detective Lara Morman-Pointe Coupee Parish
Detective Lara Morman testified that she was employed by the Pointe
Coupee Parish Sheriff‟s Office. Part of her duties included handling sex offender
registration. She indicated that a conviction of carnal knowledge of a juvenile
required registration once a year for fifteen years, which began when Defendant
was released from incarceration. Detective Morman testified that Defendant had
three days upon entering the parish to “come in and once they establish residence
to sign their registration.”
At the time of trial, February 2016, Defendant was registered in Pointe
Coupee Parish and had last reported on August 1, 2014, to sign his sex offender
contract. The address he listed as his residence at that time was 461 Lamb Road,
Morganza, Louisiana, which is in Pointe Coupee Parish.
Detective Morman testified Defendant registered in Pointe Coupee Parish in
2010, 2011, and 2012. In 2012, Defendant left Pointe Coupee Parish to go to
Colfax, Louisiana, in Grant Parish. Detective Morman said that Defendant advised
Lieutenant Torres that he had obtained employment and was moving.1 Defendant
signed the 2012 contract on March 13, 2012. At that time, Defendant listed his
address as 7458 Williams Lane, Lot 4, Morganza. Defendant did not return to the
Pointe Coupee Parish agency on March 13, 2013. When asked why she thought
Defendant was living in Colfax, Detective Morman stated, “he had already been
imported from my files by Colfax.” Detective Morman described importing as
follows:
It is a computer program that only a sex offender registration has access to and the State and you have to import it - - you have to have a passcode to get into the program and you go in and once the offender moves to your area. You click on him and import his file to your site and it takes it out of the file of the parish that he was in.
1 Lieutenant Torres was not called to testify. 10 “[T]hat agency will import him based on him showing up for registration.”
Detective Morman further stated: “Until they have been imported by the agency,
they are still considered ours.” She indicated she did not import files until
offenders appeared at her office. She testified that Lieutenant Torres made notes
indicating Defendant had appeared and told Lieutenant Torres that he had obtained
employment in Colfax and was moving there. There was no request to import
Defendant back to Pointe Coupee Parish from Grant Parish until 2014.
Detective Morman testified that an offender had three business days to
process a change in vehicle, telephone number, residence, work, or any other
information. Not reporting such changes would be considered a failure to register.
Detective Morman explained that she advises offenders that if they will be
anywhere greater than thirty days, that location must be registered as a “residence.”
She said that a person could have multiple residences.
Detective Morman testified regarding initial reporting and the mailing of
notifications, stating:
You have to do community notifications that uh, send out postcards. Basically, within anywhere from 3/10ths of a mile to a mile radius, depending on if you are in a rural area or a suburban area. Um, and it is going to be based on a number of people in the area on how much it is going to cost to send them out. There is a program available called the uh, Watch System, that sends out the cards for them. And they usually pay that fee out that sends out the cards and make sure that they do not have to worry about that - - any of that it is done and it is covered and it is taken care of. If they fail to do the notifications, then it is a Failure To Register. Any failure to provide that information or to give their notifications, is a Failure To Register. The Sheriff‟s [sic] of the parish require that they post it in the newspaper notifications so they will have to also post in the newspapers along with the postcards. That all has to be done within twenty-one (21) days. If they fail to meet the twenty-one (21) day mark, it is a Failure To Register. The Sheriff‟s Office fee has to be paid within thirty (30) days and if they fail to do that, it is a Failure To Register. Everything that they fail to provide or update, all falls under the Failure To Register clause.
11 Detective Morman indicated that Grant Parish issued an arrest warrant for
Defendant in March 2014 for failure to register. Defendant was arrested in
Morganza on July 29, 2014. According to Detective Morman, Pointe Coupee
Parish Sheriff‟s Office was unaware that Defendant had been residing in Morganza
from 2012 to 2014.
On cross-examination, Detective Morman testified regarding the timeline of
events in this matter:
-3/13/12 Defendant was released from jail and reported to Pointe Coupee Parish to register.
-3/15/12 Defendant advised by phone that he would be visiting his girlfriend in Colfax who resided at 7198 Highway 71.
-3/31/12 Defendant was arrested in Grant Parish for driving while intoxicated and other driving offenses.
-4/1/12 Defendant bonded out of jail; Pointe Coupee Parish noted that a warrant would be issued for non-compliance.
-4/20/12 Defendant made contact advising he was employed with Ditto Apparel of Colfax and would be living there.
-4/23/12 Defendant contacted Pointe Coupee Parish by phone and stated he had been residing and working in Colfax, Grant Parish, for the last week and would report in person to Grant Parish by the close of business.
-4/25/12 Defendant reported in Grant Parish.
-1/31/13 Defendant was booked in Grant Parish for contempt on a Grant Parish warrant executed in Pointe Coupee Parish at a previously given Williams Lane address in Morganza. Defendant used the Morganza address as his home address at the Grant Parish Detention Center.
-3/8/13 Defendant was released from Grant Parish Detention Center and listed his address as 7198 Highway 71, Colfax.2
-2/14/14 Police were told Defendant had moved to Morganza on this date.
2 On that date, Defendant also told his probation officer that his address was 781 Highway 71. 12 -5/7/14 Police attempted to locate Defendant in Pointe Coupee Parish.
-7/29/14 Defendant was arrested in Pointe Coupee Parish for failure to register in Grant Parish.3
-8/1/14 Defendant registered in Pointe Coupee Parish.
Detective Morman testified Defendant was not registered in Pointe Coupee
Parish, as he had been imported by Grant Parish, and the Pointe Coupee Parish file
had been closed. She said that Defendant was arrested because he never completed
his registration in Grant Parish.
Officer Eric Carter-Grant Parish
Officer Eric Carter testified that he was employed with the Grant Parish
Sheriff‟s Office. Officer Carter testified that when an offender appeared in person
and began the registration process, the offender‟s file was then imported. After a
file was imported, the offender had to comply with registration and notification
requirements. According to Officer Carter, importation occurred at the initial
registration appearance.
Defendant went to see Officer Carter on April 25, 2012, and stated he was
living and working in Grant Parish. Defendant was working at Jordache (Ditto)
and provided an address of 7198 Highway 71, Colfax, Louisiana. 4 Defendant
reported that he lived at that residence with Siliska Larry. At that time, Officer
Carter imported Defendant‟s file from Pointe Coupee Parish and told him what he
needed to do to complete the registration process. According to Officer Carter,
Defendant was considered registered in Grant Parish at that time (April 25, 2012),
although his registration had not been completed, and he was no longer registered
3 In brief to this court, the State asserts Defendant was arrested on March 31, 2014. However, two witnesses gave the July date as the date of arrest.
4 Jordache and Ditto refer to the same place. 13 in Pointe Coupee Parish. A sex offender registration form was given by Officer
Carter to Defendant on April 23, 2012, beginning the twenty-one days Defendant
had to complete his registration. The form was signed by Defendant. The form
stated, “I live here and I am registering here.” The home address listed by
Defendant was 7198 Highway 8, Colfax. Officer Carter was asked, “March of
2014, had he complied with the things he was supposed to comply with, being a
Registered Sex Offender in Grant Parish.” He responded, “No.”
When asked what Defendant needed to do to complete his registration,
Officer Carter testified:
He did not change his address on his identification card, that is required by law. He has to have that card on him at all times. It must have a valid address where he is registered at. He never changed it, it was always the Morganza address. He did not complete the mailers, he did not post his information in the newspaper.
On August 1, 2014, Pointe Coupee Parish Sheriff‟s Office imported the file back,
as Defendant moved back to Morganza and checked in with Pointe Coupee Parish
Sheriff‟s Office to register there.
Officer Carter testified that Defendant failed to register on March 13, 2014,
as twenty-one days had passed from his initial registration, which had not been
completed.5 Based on the information given by Defendant, Grant Parish was his
parish of residence at that time, listing 7198 Highway 71, Colfax as his address,
and a warrant was issued for Defendant‟s arrest because of his failure to comply.
Officer Carter testified regarding notes that Marie Campbell, a Louisiana
State Police employee, entered into the Offender Watch system shortly before the
arrest warrant was issued:
This particular defender [sic] was release [sic] from GPSO jail 3/8/2013 given the address of 7198 Highway 7 - - Highway 8 in
5 No action had been taken by state officials regarding Defendant‟s failure to complete registration between April 2012 and March 11, 2014. 14 Colfax. Verified offenders current whereabouts and make contact and begin registration notification process and issue a warrant for Failure To Register and that is standard operating procedure. Anytime a [sic] offender is released from custody they are required to check in with the jurisdictional agency, Sheriff‟s Office.
Officer Carter had not seen Defendant since 2012, and Defendant had not
completed his registration. As a result of the Louisiana State Police inquiring
about the matter, Grant Parish authorities attempted to contact Defendant at a
Colfax address on May 7, 2014. On that date, authorities were informed
Defendant had moved back to Morganza.
Officer Carter testified that there were no documents from any law
enforcement agency showing Defendant registered as a sex offender between the
time he met with Defendant in April 2012 and Defendant‟s registration in Pointe
Coupee Parish in August 2014.
Keith Delaney-Probation Officer, Grant Parish
Keith Delaney was a misdemeanor probation officer for the Grant Parish
District Attorney‟s Office. Defendant was placed on misdemeanor probation in
Grant Parish on March 8, 2013. Defendant‟s probation was revoked on July 27,
2015. The original probation form listed Defendant‟s address as 781 Highway 71,
Colfax, Louisiana. That information was provided by Defendant, and he signed
the probation form. Defendant never reported a change of address. However,
Delaney was notified around May 27, 2015, and given an address in Morganza for
service of revocation documents on Defendant. 6 The traffic citation for which
Defendant was on probation listed his address as 7198 Highway 71, Colfax, and
was issued on March 31, 2012.
At the time Defendant initially reported to Delaney, Defendant was
unemployed. On September 29, 2014, Defendant brought a letter verifying
6 In brief to this court, the State asserts the change of address occurred on May 27, 2014. 15 employment at Nan Ya Plastic Corporation in Batchelor, Louisiana, which was not
located in Grant Parish. Defendant‟s last act regarding his probation was the
mailing of a money order for payment on September 10, 2013.
Defendant’s Testimony
Defendant testified that on March 15, 2012, he told officials in Pointe
Coupee Parish that he was going to visit his girlfriend in Colfax at 7198 Highway
71. He testified that he visited his girlfriend for a day or so. Sometime later, he
contacted Pointe Coupee Parish Sheriff‟s Office about obtaining employment at
Ditto. He stated he worked there no more than two weeks and stayed with his
girlfriend during that time. Defendant further testified that he stayed with her
“[o]ff and on I might have come back, to say at the most, about a week or two or a
couple of days but I was going back and forth home to back up there, home, back
up there.” He testified he never stayed with his girlfriend for thirty continuous or
alternating days. Defendant said that he subsequently quit his job and returned
home to Pointe Coupee Parish because he and his girlfriend were having problems.
However, at “the end of the week, we decided to come back together.” Defendant
was terminated from Ditto on April 27, 2012.
Defendant stated he and his brother owned the residence at 461 Lamb Street
in Morganza, and he had lived there for five or six years. Defendant said that in
April 2012 he lived across the street from his mother at lot twelve on Williams
Lane, also in Morganza. Defendant stated he had two addresses, but he lived on
Lamb Street.
He acknowledged that he met with Officer Carter in Grant Parish.
Defendant stated that he “registered and I paid one fee and he told me to finish the
other fees but I ended up, like I was saying, ended the girlfriend thing and ended
up going back home. And I could not finish the registration up here and ended up 16 back in my parish.” He indicated he did not realize that because he had met with
Officer Carter, his case in Pointe Coupee Parish had been closed. When asked if
he thought he was still registered in Pointe Coupee Parish, Defendant stated: “I
had no thought of it.” When asked to explain to the jury what happened when he
registered in Grant Parish, Defendant testified he was on his way home with his
girlfriend and got into a car accident. As a result, he was in jail in Pointe Coupee
Parish for approximately six months. During that time, he lost contact with her.
Defendant said that when he was released from jail, he went to his Pointe Coupee
residence, and he did not return to Grant Parish. When he was released from jail,
he was contacted about registration and subsequently arrested at work in Pointe
Coupee Parish. Defendant claimed he last stayed in Grant Parish in 2012.
Defendant testified that he gave a Colfax address when he bonded out of jail
in Grant Parish because the bail bondsman would not bail him out unless he had a
Colfax address. He stated he was arrested in 2013 in Pointe Coupee Parish and
brought to Grant Parish. When he bonded out, he met with Officer Carter.
Defendant said that he lied about his address to the bail bondsman, on the
probation form he filled out for Delaney, and to the State Trooper who gave him a
traffic citation.
Siliska Larry’s Testimony
Siliska Larry testified that she had lived at 7198 Highway 71 in Colfax for
approximately thirty years. She met Defendant at a casino in Marksville in
November 2012.7 The two later began to date, and Defendant sometimes stayed
overnight at her Highway 71 residence in Grant Parish. She testified that
Defendant never resided at her residence full-time.
7 We note that the date alleged by Larry occurred approximately seven months after Defendant reported to authorities in Grant Parish. 17 Larry testified that on April 23, 2012, Defendant got a job at Ditto in Colfax.
During that time, Defendant stayed at her residence one to two weeks. Defendant
then lost his job and went back to Morganza. Larry said that she wrote her address
on documents for Defendant on several occasions. Specifically, on one occasion,
the bail bondsman in Colfax would not let Defendant bond out of jail unless he had
a Colfax address. Thus, Larry signed the paperwork and listed her address so
Defendant could be released. The bond paperwork listed Defendant‟s address as
7149 Highway 71 even though Larry‟s address was 7198 Highway 71. That
paperwork was dated April 2012, and was not the bond she signed.
Larry stated she took Defendant to register as a sex offender and met with
Officer Carter. Defendant gave her address as his place of residence. That
occurred while he was looking for a job. The two subsequently split up as the
result of a traffic accident. Larry testified the two of them went to visit
Defendant‟s mother in Morganza, and Defendant totaled the truck that belonged to
Larry‟s mother. As a result of the accident, Defendant was arrested. Defendant
spent about four months in jail. Larry said this occurred in December, and she did
not see Defendant or know he was out of jail until March or April. Larry stated
this was in 2013 or 2014. She picked Defendant up from jail and took him to meet
his mother. She testified Defendant was incarcerated three or four times in Grant
Parish. She was asked if Defendant was incarcerated in Grant Parish in March
2014 and stated: “I think that was the time I signed the bond for him for when he
could get out, in 14. I signed the bond paper for him again in March. Because
they went and got him in uh, from Morganza and they brought [sic] here. His
mom called me.” She stated that his Grant Parish registration did not work out
because two to three weeks after he “registered,” he got arrested in Morganza. He
18 was incarcerated there for three to four months and did not return to Grant Parish.
She said Defendant lived in Colfax for three weeks from November to December.
Patricia Johnson’s Testimony
Patricia Johnson, Defendant‟s mother, testified that in early 2012, Defendant
lived in his home on Lamb Street with his brother. However, she said he lived
with her prior to moving to that home. Johnson then stated Defendant moved to
Lamb Street in November 2012, and she did not think he ever moved out of that
house.
Johnson indicated Defendant did not live in Grant Parish for long, as his job
there lasted only two weeks. When asked if Defendant stayed with Larry, she
replied, “back and forth.”
DISCUSSION
Defendant first argues he did not actually register in Grant Parish. He then
asserts that Officer Carter testified that Defendant‟s identification card had a
Morganza address. Defendant contends that Officer Carter did not testify to any
violation of La.R.S. 15:542, as that statute does not state that the identification card
must show the address to which the sex offender is moving. It only requires the
identification card be produced.
Defendant contends that none of the State‟s witnesses placed him living or
working in Grant Parish on or around March 2014. He claims the testimony
indicated he did not work in Grant Parish after April 27, 2012. Defendant further
claims the probation paperwork he filled out for Delaney was done no later than
March 2013, not March 2014. Defendant contends the date is an essential element
of the offense, as the sex offender registration laws set specific periods within
which an offender must register depending on the crime that triggers registration.
Defendant notes that Detective Morman stated he registered on March 13, 2012, 19 and, other than a change of address, information, job, et cetera, he was not required
to register again until March 2013, and he was incarcerated at that time.
Defendant also contends there was no evidence he lived or worked in Grant Parish
in 2014. Defendant contends that La.R.S. 15:542.1 requires him to notify law
enforcement of a change of address, residence, or other registration information.
Defendant assumes in brief that this charge was based on his failure to advise
Officer Carter that he had returned to Morganza. As to failure to change his
address, Defendant claims he did not complete the registration process, and his
change of residence occurred before his registration in Grant Parish was complete.
DATE OF THE OFFENSES
In State v. Watts, 09-912, pp. 19-20 (La.App. 4 Cir. 6/16/10), 41 So.3d 625,
639, writ denied, 10-1685 (La. 1/28/11), 56 So.3d 966, the fourth circuit addressed
intent as it relates to sex offender registration as follows:
La. R.S. 14:8 plainly recognizes that certain conduct is criminal even in the absence of criminal intent. Additionally, La. R.S. 14:11 provides that in some crimes “no intent is required.” While offenses that dispose of a scienter requirement are not favored, the United States Supreme Court has noted that the legislatures‟ authority to define a criminal offense includes the power to “exclude elements of knowledge and diligence from its definition.” Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228 (1958). See also Powell v. Texas, 392 U.S. 514, 545, 88 S.Ct. 2145, 2160, 20 L.Ed.2d 1254 (1968) (Black, J. concurring) (“[L]egislatures have always been allowed wide freedom to determine the extent to which moral culpability should be a prerequisite to conviction of a crime.”). The Louisiana Legislature has determined that specific or general intent is not a necessary element of every crime. La. R.S. 14:8. Therefore, proof of whether the defendant‟s failure to register as a sex offender was intentional plays no part in determining the defendant‟s guilt of the instant offense.
In Flores, 167 So.3d at 801, the fifth circuit found that a defendant‟s
understanding of what was required of him in order to register under La.R.S.
15:542 was not an element of the charged offense. In this case, Defendant‟s
knowledge about the nuts and bolts of sex offender registration and notification is 20 not relevant to a determination of the sufficiency of the evidence to support his
convictions.
Date in the Bill of Information/Essential Element
Defendant focuses on the date of the offenses listed in the bill of
information, “on or about March 13, 2014.” Louisiana Code of Criminal
Procedure 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.
We can find no Louisiana jurisprudence that has specifically addressed
whether the date of the offense is an essential element of the offenses charged
herein, and none has been cited by the parties. Defendant was required to update
his registration yearly if no changes to residence, employment, et cetera occurred
before that time. Even if we assume the date was essential to the offense, the jury
could have determined that Defendant last lived in Grant Parish on February 14,
2014, approximately one month prior to the date charged in the bill of information,
or that Defendant had completed the offenses as of March 13, 2014.
We are more inclined to find that the date of the offenses is not an essential
element of the crimes charged herein. In State v. Goldberg, 819 So.2d 123
(Ala.Crim.App.2001), the Alabama court held that the defendant‟s failure to
register after changing his address constituted a continuing offense, and had the
effect of tolling the three-year limitations period for felony prosecutions. The
21 Alabama court looked to the legislative intent behind Alabama‟s sex offender
registration and notification requirements.
Failure to comply with the federal Sex Offender Registration and
Notification Act, 42 U.S.C. § 16901, et seq., and 18 U.S.C. § 2250, has also been
held to be a continuing offense, and the offense commences when the defendant
first fails to register and continues until the defendant is either arrested or registers.
See United States v. Pietrantonio, 637 F.3d 865 (8th Cir.2011).
In La.R.S. 15:540, the Louisiana Legislature set forth the purpose of the sex
offender notification and registration statutes as follows:
A. The legislature finds that sex offenders, sexually violent predators, and child predators often pose a high risk of engaging in sex offenses, and crimes against victims who are minors even after being released from incarceration or commitment and that protection of the public from sex offenders, sexually violent predators, and child predators is of paramount governmental interest. The legislature further finds that local law enforcement officers‟ efforts to protect their communities, conduct investigations, and quickly apprehend offenders who commit sex offenses and crimes against victims who are minors, are impaired by the lack of information available to law enforcement agencies about convicted sex offenders, sexually violent predators, and child predators who live within the agency‟s jurisdiction, and the penal and mental health components of our justice system are largely hidden from public view and that lack of information from either may result in failure of both systems to meet this paramount concern of public safety. Restrictive confidentiality and liability laws governing the release of information about sex offenders, sexually violent predators, and child predators have reduced willingness to release information that could be appropriately released under the public disclosure laws, and have increased risks to public safety. Persons found to have committed a sex offense or a crime against a victim who is a minor have a reduced expectation of privacy because of the public‟s interest in public safety and in the effective operation of government. Release of information about sex offenders, sexually violent predators, and child predators to public agencies, and under limited circumstances to the general public, will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals.
B. Therefore, this state‟s policy is to assist local law enforcement agencies‟ efforts to protect their communities by requiring sex offenders, sexually violent predators, and child predators 22 to register with state and local law enforcement agencies and to require the exchange of relevant information about sex offenders, sexually violent predators, and child predators among state, local, and federal public agencies and officials and to authorize the release of necessary and relevant information about sex offenders, sexually violent predators, and child predators to members of the general public as provided in this Chapter.
In State v. Stanley, 49,683 (La.App. 2 Cir. 1/14/15), 161 So.3d 1034, the
defendant was charged with failure to pay child support under La.R.S. 14:75.8 The
court discussed the term continuing offense as follows:
A “continuing offense” has been defined as a continuous, unlawful act or series of acts set in motion by a single impulse and operated by an unintermittent force. City of Baton Rouge v. Ross, 94- 0695 (La.4/28/95), 654 So.2d 1311; United States v. Brazell, 489 F.3d 666 (5th Cir.2007). A defendant‟s continual willful failure to satisfy his child support debt constitutes a continuing offense. United States v. Edelkind, 525 F.3d 388 (5th Cir.2008), cert denied, 555 U.S. 908, 129 S.Ct. 246, 172 L.Ed.2d 186 (2008); Brazell, supra. A continuing offense, by its very nature, does not terminate until the date of the indictment or the voluntary termination of the illegal activity. Edelkind, supra; United States v. Alvarado-Santilano, 434 F.3d 794 (5th Cir.2005).
Id. at 1038.
In this case, the duty to register as a sex offender is ongoing and fluid with
Defendant‟s changing circumstances, requiring current and updated registration
information to be provided to the appropriate agency for the entirety of the period
Defendant is obligated to register. The purpose behind Louisiana‟s sex offender
registration and notification scheme is very similar to that set forth by the Alabama
Legislature as noted in Goldberg. Thus, we agree with the decision in Goldberg
and find that the offenses charged herein are continuing offenses, and the exact
date they are alleged to have occurred is not an element of those offenses.
8 The statute provides that it is unlawful for “any obligor to intentionally fail to pay a support obligation for any child who resides in the state of Louisiana, if such obligation has remained unpaid for a period longer than six months or is greater than two thousand five hundred dollars.” 23 CONVICTIONS
We will now address whether the State proved, beyond a reasonable doubt,
that Defendant failed to register in Grant Parish, failed to notify law enforcement
of a change of address, and failed to provide notification as a sex offender.
FAILURE TO REGISTER
Both Detective Morman and Officer Carter testified that Defendant failed to
complete his sex offender registration in Grant Parish in April 2012. Officer
Carter indicated that he gave Defendant a list of things he had to do in order to
complete the registration, and Defendant failed to do them. Officer Carter did not
testify as to the specific contents of that list, and the list, if written, was not
admitted into evidence at trial.
In Flores, 167 So.3d 801, the defendant never completed his sex offender
registration requirements beyond signing the sex offender contract in May 2009.
The fifth circuit concluded, therefore, at no time was the defendant compliant with
La.R.S. 15:542. Flores is distinguishable from the case at bar, as Flores was
merely charged with a single count for his failure to complete his sex offender
registration, and Defendant is charged with several violations of the sex offender
registration and notification requirements. Accordingly, the State would need to
present evidence regarding exactly what Defendant failed to do in order to prove a
violation of La.R.S. 15:542 for failure to complete his sex offender registration.
The following was part of an answer to a question posed to Detective
Morman:
As of this date, [Defendant] as [sic] yet to send out mailers and post publication in local newspaper. [Defendant] is non-compliant and has failed to complete registration with this agency. [Defendant‟s] ID card still list [sic] address in Morganza. Warrant applied for [Defendant] til this day has yet to pay registration fee since his arrival here.
24 Additionally, Officer Carter testified that, to complete his registration, Defendant
needed to change his address on his identification card, send out mailers, and post
his information in the newspaper.
The failure to send out mailers and post notice in the local newspaper
cannot support a conviction for failure to register in this case, as Defendant was
charged in count three with failure to provide notification as a sex offender, a
crime separate from failing to register. Additionally, there is no requirement in
La.R.S. 15:542 or La.R.S. 15:542.1.2 that Defendant update the information on his
identification card upon changing his residence. According to La.R.S. 15:542(j),
Defendant need only produce an identification card. Louisiana Revised Statutes
40:1321 governs identification cards for sex offenders and provides in pertinent
part:
J. (1) Any person required to register as a sex offender with the Louisiana Bureau of Criminal Identification and Information, as required by R.S. 15:542 et seq., shall obtain a special identification card issued by the Department of Public Safety and Corrections which shall contain a restriction code declaring that the holder is a sex offender. This special identification card shall include the words “sex offender” in all capital letters which are orange in color and shall be valid for a period of one year from the date of issuance. This special identification card shall be carried on the person at all times by the individual required to register as a sex offender.
(2) Each person required to carry a special identification card pursuant to this Subsection shall personally appear, annually, at a field office of the office of motor vehicles to renew his or her special identification card but only after he or she has registered as an offender pursuant to R.S. 15:542 et seq. Reregistration shall include the submission of current information to the department and the verification of this information, which shall include the street address and telephone number of the registrant; the name, street address and telephone number of the registrant‟s employer, and any registration information that may need to be verified by the bureau. No special identification card shall be issued or renewed until the office of motor vehicles receives confirmation from the bureau, electronically or by other means, that the reregistration of the sex offender has been completed.
25 (3) The provisions of this Subsection shall apply to all sex offenders required to register pursuant to R.S. 15:542 et seq., regardless of the date of conviction.
(4) Whoever violates this Subsection shall be fined not less than one hundred dollars and not more than five hundred dollars, or imprisoned for not more than six months, or both.
Louisiana Revised Statutes 15:542(D) requires a sex offender to pay a
registration fee of sixty dollars to the appropriate law enforcement agencies with
whom he is required to register upon the initial registration and on the anniversary
thereof.
We conclude that Defendant‟s failure to pay the fee within thirty days of
initial registration constitutes a failure to register and subjects Defendant to
prosecution under the provisions of La.R.S. 15:542.1.4(A)(3). The testimony
presented proves beyond a reasonable doubt that Defendant failed to pay the
registration fee to the appropriate law enforcement agency. Thus, his conviction
for failure to register should be affirmed. However, Defendant was sentenced to
three years at hard labor for this offense. Louisiana Revised Statutes
15:542.1.4(A)(3) calls for a fine of not less than one hundred dollars and not more
than five hundred dollars, or imprisonment for not more than six months, or both.
Thus, Defendant‟s sentence is clearly illegal, as it exceeds the maximum sentence
allowed under the applicable sentencing provision. Accordingly, Defendant‟s
sentence for failure to register as a sex offender pursuant to La.R.S. 15:542 is
vacated, and the matter is remanded to the trial court for resentencing for this
offense.
FAILURE TO NOTIFY LAW ENFORCEMENT OF A CHANGE OF ADDRESS
The State asserts that Defendant failed to notify of a change of address by 1)
not appearing in Grant Parish in 2013 to update his registration information; 2) not
26 notifying Grant Parish that he had returned to Pointe Coupee Parish; and 3) not
changing the address on his identification card to reflect his Grant Parish address.
In brief, Defendant assumes that this charge was based on his failure to
advise Officer Carter that he had returned to Morganza. Defendant claims he did
not complete the registration process, and his change of residence occurred before
his registration in Grant Parish was complete.
Based on the evidence presented, the jury could have found the State proved
beyond a reasonable doubt that Defendant resided in Grant Parish and failed to
provide Grant Parish authorities with notice of his change of address when he
returned to Pointe Coupee Parish.
Failure to periodically renew sex offender registration is governed by
La.R.S. 15:542.1.1, and subsection (A)(3) requires Defendant to renew his
registration annually. Defendant was not charged with a violation of La.R.S.
15:542.1.1. Thus, his failure to periodically renew could not be a basis for the
charged offense.
As for the State‟s assertion that Defendant failed to change the address on
his identification card, there is no requirement in La.R.S. 15:542 or La.R.S.
15:542.1.2 that Defendant update the information on his identification card upon
changing residence. As previously noted, Defendant need only produce an
identification card, and Defendant was not charged with failing to update that card.
FAILED TO PROVIDE NOTIFICATION AS A SEX OFFENDER
Because the uncontradicted evidence shows that Defendant never sent out
the notifications required by La.R.S. 15:542.1, we conclude that the State proved
beyond a reasonable doubt that Defendant violated the requirements of that statute.
Defendant‟s convictions as well as his sentences for failure to notify law
enforcement of a change of address pursuant to La.R.S. 15:542.1.2 and failure to 27 provide notification as a sex offender pursuant to La.R.S. 15:542.1 are affirmed.
However, although Defendant‟s conviction for failure to register pursuant to
La.R.S. 15:542 is affirmed, Defendant‟s sentence for failure to register as a sex
offender is vacated and the matter remanded for resentencing.
ASSIGNMENT OF ERROR NUMBER ONE
Ineffective Assistance of Counsel
In his first assignment of error, Defendant contends that he received
assistance of counsel below that guaranteed by the Sixth Amendment to the United
States Constitution because counsel failed to seek quashal of the bill of information
and failed to object to erroneous jury instructions.
A criminal defendant is guaranteed the effective assistance of counsel. United States Sixth Amendment; La. Const. art. I, § 13; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Washington, 491 So.2d 1337 (La.1986). To establish a claim of ineffective assistance, a defendant must show that counsel‟s performance fell below an objective standard of reasonableness under prevailing professional norms; and, that counsel‟s professional errors resulted in prejudice to the extent that it undermined the functioning of the adversarial process and rendered the verdict suspect. Strickland v. Washington, supra; Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). This does not mean “errorless counsel [or] counsel judged ineffective by hindsight, but counsel reasonably likely to render effective assistance.” State v. Ratcliff, 416 So.2d 528, 531 (La.1982).
A claim of ineffectiveness is generally relegated to post- conviction, unless the record permits definitive resolution on appeal. E.g., State v. Prudholm, 446 So.2d 729 (La.1984). However, when the record is sufficient for review, this Court will reach the merits of complaints about counsel‟s performance and grant relief when appropriate. E.g., State v. Hamilton, 92-2639 (La.7/1/97), 699 So.2d 29, 32-35.
State v. Bright, 98-398, pp. 40-41 (La. 4/11/00), 776 So.2d 1134, 1157, rev’d on
other grounds, 02-2793, 03-2796 (La. 5/25/04), 875 So.2d 37.
The record is sufficient to review Defendant‟s claims.
28 VENUE
After the jury was sworn but before opening statements, the State asserted
there may be an issue as to venue. Defense counsel stated he would be asserting a
challenge as to whether failure to register occurred in Grant Parish or whether it
occurred in Pointe Coupee Parish. The State responded it was not sure that there
was an issue as to venue, and, if there was, improper venue was to be brought via
motion to quash. The trial court stated there was going to be a factual issue as to
whether Grant Parish became Defendant‟s “residence or changed employment.”
The trial court further indicated there was no question that Defendant was not
being tried for anything that occurred in Pointe Coupee Parish, and the State had
filed a bill of information that was properly triable in Grant Parish. The trial court
concluded, “[n]ow whether the State can prove a change of residence or
employment that triggers the offense, I do not know.” The trial court decided the
issue was one for the jury.
In State v. Thompson, 12-1097 (La.App. 3 Cir. 4/10/13), 111 So.3d 580, writ
denied, 13-1067 (La. 11/15/13), 125 So.3d 1102, cert. denied, __ U.S. __, 134
S.Ct. 1942 (2014), this court stated that because the defendant did not file a motion
to quash, he did not preserve the issue of jurisdiction and venue for review on
appeal. Defendant contends defense counsel erred in failing to file a pre-trial
motion to quash the bill of information on the basis of lack of venue in Grant
Parish. Defendant points out the issue was not brought up by defense counsel but
by the State after the jury was selected, and appellate courts have held that venue
issues not raised pre-trial are not reviewable. However, Defendant alleges
ineffective assistance of counsel. Therefore, we will review his claim.
A defendant is guaranteed the right to “a speedy, public, and impartial trial
in the parish where the offense or an element of the offense occurred, unless venue 29 is changed in accordance with law.” La.Const. art. 1, § 16. Louisiana Code of
Criminal Procedure Article 611(A) provides for venue as follows:
All trials shall take place in the parish where the offense has been committed, unless the venue is changed. If acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to have been committed in any parish in this state in which any such act or element occurred.
Louisiana Code of Criminal Procedure Article 615 discusses improper venue:
Improper venue shall be raised in advance of trial by motion to quash, and shall be tried by the judge alone. Venue shall not be considered an essential element to be proven by the state at trial, rather it shall be a jurisdictional matter to be proven by the state by a preponderance of the evidence and decided by the court in advance of trial.
Defendant alleges that since he did not complete his registration in Grant
Parish, he did not know he was obligated to notify Grant Parish of his return to
Pointe Coupee Parish. Further, Defendant states that as of March 13, 2014, he had
been living for almost two years in Morganza in the home he shared with his
brother. He contends that there was no evidence to refute testimony by himself,
Larry, and Johnson that he returned to Pointe Coupee Parish shortly after he
reported in Grant Parish.9 Therefore, Defendant argues that defense counsel erred
in failing to file a motion to quash the bill of information.
The State asserts that improper venue may not be raised for the first time on
appeal as per State v. Fontenot, 95-459, (La.App. 3 Cir. 11/2/95), 664 So.2d 523,
rev’d in part on other grounds, 95-2920 (La. 5/31/96), 675 So.2d 271. The State
further notes that in State v. Mueller, 10-710 (La.App. 4 Cir. 12/8/10), 53 So.3d
677, the defendant argued that the State failed to prove that the offense occurred in
Orleans Parish because he was residing in Jefferson Parish at the time that registry
checks were conducted. The defendant in Mueller alleged that the trial court did
9 We note that Johnson is referred to as Jones in Defendant‟s brief. 30 not have jurisdiction over the case. The fourth circuit found that because the
defendant had not filed a pre-trial motion to quash, his claim of improper venue
was not reviewable.
The State asserts venue was proper in Grant Parish because Defendant was
required to register in Grant Parish when he moved and began working there. We
conclude that the jury could reasonably have determined that Defendant resided in
Grant Parish until some time in February 2014. Thus, defense counsel was not
ineffective for failing to file a motion to quash based on improper venue.
INCORRECT CITATION IN THE BILL OF INFORMATION & DOUBLE
JEOPARDY
Bill of Information
Defendant was charged with three offenses, which were listed in the bill of
information as violations of La.R.S. 15:542, La.R.S. 15:542.1.2, and La.R.S.
15:542.1. Defendant alleges the bill of information did not provide specific details
as to any of those offenses and was flawed. He cites State v. Young, 46,575
(La.App. 2 Cir. 9/21/11), 73 So.3d 473, writ denied, 11-2304 (La. 3/9/12), 84
So.3d 550, in support of his arguments. In Young, the second circuit noted that
even though the defendant was charged and pled guilty to a violation of La.R.S.
15:542, La.R.S. 15:542.1.4 was actually the statute that contained the language
making it a crime to fail to register as a sex offender and contained the applicable
penalty provision. The defendant did not complain of surprise or prejudice. The
second circuit stated: “However, even when the bill of information supplies the
completely wrong section number or statute, the conviction is upheld if the
defendant was given fair notice and identity of the offense and does not claim
surprise or prejudice.” Id. at 475-76 n.2.
31 Defendant avers he should have been charged, at most, with one offense
under La.R.S. 15:542.1.4. Defendant claims he was prejudiced by the State‟s use
of the wrong statutes in the bill of information.
Defendant also claims that multiple charges for failure to register and
provide notification for the same timeframe constitutes double jeopardy, and the
issue should have been asserted prior to trial in a motion to quash. He contends
counsel‟s failure to file a motion to quash resulted in him being convicted of three
felony offenses.
Louisiana Code of Criminal Procedure Article 464 provides:
The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.
In State v. Olivia, 13-496 (La.App. 4 Cir. 3/26/14), 137 So.3d 752, writ
denied, 14-884 (La. 11/14/14), 152 So.3d 879, the defendant was charged with first
degree vehicular negligent injuring, but the bill of information did not contain the
statute number for that offense. The fourth circuit addressed the defect in the bill
of information as follows:
Pursuant to La.C.Cr.P. art. 464, the omission of the citation will not be ground for dismissal if the omission did not mislead Ms. Olivia to her prejudice. The bill of information plainly demonstrates the State charged Ms. Olivia with “First Degree Vehicular Negligent Injuring,” and Ms. Olivia could have easily determined which statute she was charged with violating by referencing the Louisiana Criminal Code. Therefore, the bill of information charged Ms. Olivia with an offense punishable under La. R.S. 14:39.2, a valid statute.
Id. at 755.
The bill of information in the case at bar provided more information than
that in Olivia. Herein, the State listed the statutes setting forth the sex offender
32 registration and notification requirements Defendant allegedly failed to comply
with. Thus, we conclude that the bill of information informed Defendant of the
charges against him.
Defendant makes no claim that he did not understand the charges against
him or of surprise based on the failure of the State to list La.R.S. 15:542.1.4 in the
bill of information. Based on La.Code Crim.P. art. 464 and the ruling in Olivia,
that failure to list La.R.S. 15:542.1.4 in the bill was harmless despite Defendant‟s
claim of prejudice.
The prejudice alleged by Defendant is connected to his claim that
prosecution for the three offenses charged herein constituted double jeopardy.
Thus, we will now address that double jeopardy claim.
Double Jeopardy
In State v. Lodge, 15-538 (La.App. 4 Cir. 5/25/16), 195 So.3d 567, the
defendant was charged with failure to register as a sex offender, a violation of
La.R.S. 15:542, and failure to periodically renew said registration, a violation of
La.R.S. 15:542.1.1. The defendant filed a motion to quash, alleging double
jeopardy. The fourth circuit addressed the issue, stating:
The Fifth Amendment to the U.S. Constitution and La. Const. Art. I, § 15 guarantees that no person shall be placed twice in jeopardy for the same offense. “This guarantee protects against a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.” State v. Childs, 13-0948, p. 2 (La.App. 4 Cir. 1/15/14), 133 So.3d 104, 105, (citing State v. Smith, 95-0061, p. 3 (La.7/2/96), 676 So.2d 1068, 1069.
Louisiana Courts use two tests to determine whether double jeopardy exists: 1) the Blockburger test established by Blockburger v[.] U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and 2) the “same evidence test”, established by State v. Steele, 387 So.2d 1175 (La.1980). Childs, 13-0948, p. 2, 133 So.3d at 106. Under the Blockburger test: 33 where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.
Blockburger, 284 U.S. at 304, 52 S.Ct. at 180.
Under the “same evidence test:”
If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial.
Steele, 387 So.2d at 1177.
The same evidence test “considers the actual physical and testimonial evidence necessary to secure a conviction, and concerns itself with the „evidential focus‟ of the facts adduced at trial in light of the verdict rendered, i.e., how the evidence satisfies the prosecution‟s burden of proof.” State v. Williams, 07-0931, p. 5 (La.2/26/08), 978 So.2d 895, 897 (citing State v. Coody, 448 So.2d 100, 102-03 (La.1984).
Id. at 569-570.
The fourth circuit held:
Thus, the defendant committed two separate offenses that are based on different facts that are criminalized by two different statutes. These separate offenses occurred at two different times that were over a year apart. The offenses the defendant pled guilty to were based upon separate and distinct facts and circumstances, and prosecuting him for these offenses does not violate double jeopardy under either the Blockburger test or the “same evidence” test.
Id. at 570.
Defendant was charged with failure to register, which, according to the
evidence presented, occurred when Defendant did not pay the initial registration
fee that was due within thirty days of his registration in Grant Parish. See La.R.S.
15:542(D). Defendant was charged with failure to provide notification to the
public, which could not have occurred until the twenty-second day after Defendant 34 reported in Grant Parish. See La.R.S. 15:542.1(A)(2). Defendant was also charged
with failure to notify Grant Parish of his change of address, which could not have
occurred until the fourth business day after Defendant reestablished a residence in
Pointe Coupee Parish. See La.R.S. 15:542.1.2(C)(1). Each of the acts Defendant
failed to perform is governed by a different statute, each failure to act occurred on
different dates, each offense requires proof of a fact that the others do not, and the
offenses are not supported by the same evidence. Accordingly, as in Lodge,
prosecuting Defendant for multiple violations of the sex offender registration and
notification requirements did not constitute double jeopardy. Further, defense
counsel was not ineffective for failing to file a motion to quash the bill of
information.
INCORRECT JURY INSTRUCTIONS
Pursuant to La.Code Crim.P. art. 802(1), the court shall charge the jury “[a]s
to the law applicable to the case.”
A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury.
La.Code Crim.P. art. 801(C).
In the case at bar, the trial court advised the jury that attempted failure to
register as a sex offender, attempted failure to notify law enforcement of a change
of address, and attempted failure to provide notification as a sex offender were
responsive verdicts to the charged offenses. There were no objections by defense
counsel to these instructions.
As noted by Defendant, in State v. Williams, 47,242 (La.App. 2 Cir.
7/18/12), 103 So.3d 412, the second circuit concluded that failure to register is an 35 act of omission. “Thus, an attempt was a legal impossibility.” Id. at 413. The
court further stated: “There is no such crime as an attempt to not register as a sex
offender. The crime of failure to register is not a specific intent crime. One either
fails to register or not. One cannot attempt to not register.” Id. at 414. Defendant
herein contends the same would be true for failure to notify law enforcement of a
change of address and failure to provide notification as a sex offender. Defendant
contends that because counsel did not object to the inclusion of the improper
responsive verdicts in the jury instructions, counsel‟s representation fell below that
guaranteed by the Sixth Amendment to the United States Constitution. Defendant
argues he was prejudiced because, as a result of counsel‟s inaction, he stands
convicted of three felonies.
However, as noted by the State, Williams is distinguishable in that the
defendant therein entered a plea of guilty to attempted failure to register as a sex
offender. In this case, Defendant was found guilty as charged. Accordingly, the
inclusion of improper responsive verdicts is moot.
Defendant‟s counsel was deficient in his failure to object to the erroneous
jury instructions. Such failure did not, however, prejudice Defendant. In State v.
Wright, 598 So.2d 493 (La.App. 2 Cir. 1992), the second circuit addressed the trial
court‟s inclusion of attempted possession of stolen things having a value of $500 or
more when there was no such responsive verdict. The proper responsive verdict
was attempted possession of stolen things having a value of $100 or more. The
second circuit noted that counsel was deficient in failing to object to the erroneous
instruction providing the improper responsive verdict. The court then addressed
prejudice, stating: “In assessing prejudice in such a case, the basic question is
whether there is a reasonable probability that, absent the error, the result of the
proceeding would have been different. A reasonable probability is a probability 36 sufficient to undermine confidence in the outcome of the trial.” Id. at 498. As to
the improper inclusion of attempted illegal possession of stolen things in excess of
$500 as a responsive verdict, the second circuit concluded the jury was presented
with ample evidence of the value of the stolen item, and the verdict of guilty of
illegal possession of stolen things was statutorily proper. The court did not deem
the jury‟s verdict “subverted by unreliability due to counsel error.” Id. at 499.
In State v. Reese, 472 So.2d 76 (La.App. 5 Cir. 1985), the defendant was
charged with aggravated rape. The trial court improperly included simple rape as a
responsive verdict to the charged offense. The fifth circuit stated: “Failure to give
the statutorily accurate responsive verdicts, however, is not a spontaneous
reversible error. An appellant must show that the inclusion or exclusion of an
inappropriate lesser verdict was prejudicial and that fundamental due process had
been violated.” Id. at 77-78. The court noted the defendant was found guilty as
charged and found no prejudice or denial of due process.
The evidence in this case was sufficient to support the jury‟s verdicts, and
those verdicts were statutorily proper. Accordingly, although defense counsel may
have been deficient in failing to object to the inclusion of the improper responsive
verdict, Defendant has failed to prove he was prejudiced by that inclusion.
Defendant also asserts it was improper for the trial court to advise the jury to
return three separate verdicts. For the reasons set forth in the double jeopardy
analysis, we conclude that this issue has no merit.
ASSIGNMENT OF ERROR NUMBER TWO
In this assignment of error, Defendant alleges the trial court improperly
commented on evidence by questioning a witness, Officer Carter, in the jury‟s
presence and without the consent of the accused. Following defense counsel‟s
cross-examination of Officer Carter, the trial court questioned the officer about 37 how Defendant was supposed to accomplish the requirements necessary to
complete his registration. Defendant argues the trial court‟s questioning of Officer
Carter was an improper comment on the evidence, which is prohibited by La.Code
Crim.P. art. 772. That article provides:
The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.
As Defendant also notes, the trial court was required to obtain the consent of
all parties prior to questioning the witness as set forth in La.Code Evid. art. 614:
A. Calling by court. The court, at the request of a party or if otherwise authorized by legislation, may call witnesses, and all parties are entitled to examine witnesses thus called.
B. Questioning by court. The court may question witnesses, whether called by itself or by a party.
C. Objections. Objections to the calling of witnesses by the court or to questioning of witnesses by it may be made at the time or at the next available opportunity when the jury is not present.
D. Exception. In a jury trial, the court may not call or examine a witness, except upon the express consent of all parties, which consent shall not be requested within the hearing of the jury.
No consent was obtained by the trial court prior to questioning Officer Carter.
Lack of Objection
Defendant did not lodge an objection to the questioning of Officer Carter
either at the time of the trial court‟s questioning or at any time thereafter, as
required by La.Code Evid. art. 614(C). See also La.Code Crim.P. art. 841(A). In
State v. Camper, 08-314, (La.App. 4 Cir. 10/1/08), 996 So.2d 571, the fourth
circuit found the lack of a contemporaneous objection prohibited its review of the
defendant‟s complaint that the trial court violated the no-comment rule. The court
stated that “the defense failed to object to the trial judge‟s remark and, thus, this
issue ha[d] not been preserved for appellate review.” Id. at 579. Louisiana Code 38 of Criminal Procedure Article 841(A), in pertinent part, provides: “An irregularity
or error cannot be availed of after verdict unless it was objected to at the time of
occurrence.”
Defendant argues that a contemporaneous objection was not necessary to
preserve the issue in the present case. According to Defendant, in State v. Thomas,
12-1458 (La.App. 3 Cir. 6/5/13), 114 So.3d 684, this court found the lack of a
contemporaneous objection did not preclude review of the trial court‟s erroneous
questioning of a witness since La.Code Evid. art. 614(C) is permissive rather than
mandatory and since the questioning of the witness was fundamentally unfair and
prejudicial to Thomas. We find that Thomas is distinguishable from the present
case and does not preclude the application of the contemporaneous objection rule
in this case. In Thomas, the trial court questioned three different witnesses.
Failing to object to the trial court‟s questioning of the first two witnesses, defense
counsel finally objected when the trial court questioned the third witness. The
court in Thomas stated the following regarding the preservation of the issue for
review:
[W]hile Thomas did not object the first two times the judge interjected himself to question the prosecution‟s witnesses, he did object the third time it occurred. “Objections to the calling of witnesses by the court or to questioning of witnesses by it may be made at the time or at the next available opportunity when the jury is not present.” La.Code Crim.P. art. 614(C). In this case, there was no recess between the testimonies at issue. The State does not address the timeliness of the defendant‟s objection. We find that the objection was preserved for this appeal. Moreover, Article 614(C) uses the permissive “may” instead of the mandatory “shall.” In a case such as this which mandates a life sentence, and where the error was so fundamentally unfair and prejudicial to the defendant, no contemporaneous objection was necessary. See State v. Colligan, 95-880 (La.App. 3 Cir. 8/7/96), 679 So.2d 184.
Id. at 691. Unlike in Thomas, no objection was lodged in the present case even
though there was opportunity to do so. Additionally, the present case is not a life
39 sentence case, and the trial court‟s questioning in the present case was neither
fundamentally unfair nor prejudicial to Defendant. Thus, Defendant‟s failure to
object to the trial court‟s questioning of Officer Carter precludes appellate review
of this error. La.Code Evid. art. 614(C) and La.Code Crim.P. art. 841(A).
DECREE
Defendant‟s convictions are affirmed. His sentences for failure to notify law
enforcement of a change of address and failure to provide notification as a sex
offender are also affirmed. However, his sentence for failure to register is vacated,
and the matter is remanded for resentencing.
SENTENCES FOR VIOLATIONS OF LA.R.S. 15:542.1 AND LA.R.S. 15:542.1.2 ARE AFFIRMED;
SENTENCE FOR VIOLATION OF LA.R.S. 15:542 IS VACATED; REMANDED FOR RESENTENCING.
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