STATE OF LOUISIANA NO. 19-KA-237
VERSUS FIFTH CIRCUIT
DELCOME DAVID EVANS COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 15,144, DIVISION "C" HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING
June 03, 2020
JUDE G. GRAVOIS JUDGE
Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING AND SEX OFFENDER REGISTRATION NOTIFICATION JGG RAC HJL COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Bridget A. Dinvaut Justin B. LaCour
COUNSEL FOR DEFENDANT/APPELLANT, DELCOME DAVID EVANS Benny S. George, Jr. GRAVOIS, J.
Defendant, Delcome David Evans, appeals his conviction for forcible rape
of a juvenile. For the reasons that follow, we affirm defendant’s conviction, vacate
defendant’s sentence, and remand this matter for resentencing and sex offender
registration notification.
PROCEDURAL HISTORY
On May 28, 2015, the District Attorney for St. John the Baptist Parish filed a
bill of information charging defendant, Delcome David Evans, with forcible rape1
of a juvenile, M.C.,2 in violation of La. R.S. 14:42.1. Defendant was arraigned and
pled not guilty on June 17, 2015.
Trial commenced before a twelve-person jury on April 10, 2018, and
concluded on April 12, 2018, with a verdict of guilty as charged.
On May 9, 2018, defendant filed a motion for post-verdict judgment of
acquittal and motion for a new trial. On that same date, the State filed a habitual
offender bill of information alleging defendant to be a second-felony offender.3
The trial court denied defendant’s motion for a new trial on May 10, 2018. On
June 20, 2018, the trial court denied defendant’s motion for post-verdict judgment
of acquittal. Thereafter, a habitual offender hearing was held after which the trial
court found defendant to be a second-felony offender under La. R.S. 15:529.1 and
sentenced defendant to fifty-five years imprisonment4 with the Department of
1 Forcible rape is now known as second degree rape. See La. R.S. 14:42.1(C). 2 In the interest of protecting minor victims and victims of sexual offenses as set forth in La. R.S. 46:1844(W)(3), the judges of this Court have adopted a policy that this Court’s published work will use only initials to identify the victim and any defendant or witness whose name can lead to the victim’s identity (i.e., parent, sibling, or relative with the same last name as the victim). State v. Ross, 14-84 (La. App. 5 Cir. 10/15/14), 182 So.3d 983, 985, n. 3. 3 In the habitual offender bill, it was alleged that defendant was previously convicted of possession with intent to distribute cocaine, in violation of La. R.S. 40:967(A) on June 28, 2000, under docket number 399-398 in Criminal District Court for the Parish of Orleans, and was sentenced on August 11, 2000, to ten years imprisonment with the Department of Corrections. 4 The failure to impose an original sentence before a habitual offender adjudication is not error since the original sentence would be vacated upon the defendant’s sentencing as a habitual offender. State v. Brooks, 00-106 (La. App. 5 Cir. 9/26/00), 769 So.2d 1242.
19-KA-237 1 Corrections.5 After sentencing, defendant filed a motion to reconsider sentence
and a motion for an appeal. The trial court denied defendant’s motion to
reconsider sentence and granted his motion for an appeal on July 2, 2018.
Defendant’s appeal follows.
FACTS
Nineteen-year-old R.C., the victim’s sister, testified that in April of 2015,
her sister M.C. was thirteen years old.6 She explained that defendant, Delcome
Evans, was dating her mother at the time and would often come to their house in
LaPlace, Louisiana. R.C. recalled one particular morning, on April 2, 2015, she
was awakened by defendant who was at their front door. R.C. stated that
defendant told her that her mother, who was at work at the time, told him that he
could sleep at their house. R.C. let defendant in the house and then went to the
restroom. When she returned, M.C. was no longer in her bed, but rather was in her
mother’s bedroom lying down. She explained that defendant put on a movie and
convinced R.C. to leave the room to wash her hair extensions, explaining to R.C.
that if they did not look nice after they were washed, he was going to buy her new
ones. Thus, R.C. left. When she returned to her mother’s room, she observed
M.C. pulling up her underwear looking as if she was going to cry. M.C. later
followed R.C. into the bathroom, and R.C. said she needed to talk to her when they
got back from going to purchase the new hair extensions. When they returned
from the store, R.C. recalled that defendant left the house abruptly. Once alone
with her sister, R.C. asked M.C. whether defendant had ever done “anything” to
her, prompting M.C. to walk away. R.C. then grabbed her sister who stated “I’m
5 Although the trial court did not state that the sentence was to be served at hard labor, “a sentence committing a prisoner to the Department of Corrections is necessarily at hard labor.” State v. Lawson, 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618 (citing State v. Lisenby, 534 So.2d 996, 998 (La. App. 3rd Cir. 1988)). 6 M.C.’s date of birth was reported as March 30, 2002.
19-KA-237 2 surprised it took you this long to figure it out.” R.C. testified that she and her sister
cried and called their mother who took M.C. to the hospital.7
The victim, M.C., testified that she was thirteen years old on April 2, 2015,
when defendant came over to her house, picked her up out of bed, and brought her
into her mother’s bedroom. She recalled that her sister R.C. came into the room,
and defendant told R.C. to wash her hair extensions to see if she might need new
ones. When R.C. left, defendant told M.C. to turn over. She said he then took off
her clothes and stuck his “thing” in her. She stated that she tried to get away, but
that she could not because defendant pushed her into the pillow. When he was
done, defendant told M.C. to “put it” in her mouth. When she did, she recalled the
taste of blood. At that time, her sister walked back into the room and she jumped,
testifying that she was worried and was secretly trying to pull up her underwear
from under the covers. M.C. testified that once she had her clothes back on, she
went to the store with defendant and R.C. When they returned, defendant was
trying to “do it” to her again, but she told him “no,” so he left. M.C. stated that
when she was in the bedroom with defendant, she felt like she could not leave
because she believed defendant might hurt her or her family. 8
Dr. Jerussa Aita-Levy, a pediatric emergency room physician at Children’s
Hospital in New Orleans, Louisiana, performed a rape kit on M.C. based upon the
history given by M.C. upon her arrival at the hospital on April 2, 2015. Dr. Levy’s
description of M.C. was that she appeared anxious, nervous, and uncomfortable.
Her general examination was within normal limits, which was common in Dr.
Levy’s experience. Dr. Levy recalled that M.C. reported that while sleeping in her
7 A.L., M.C.’s mother, testified that she did not give defendant permission to go into her house that morning after she had left for work. She recalled that while at work, R.C. called her and told her to come home because defendant had “touched” M.C. When she got home, M.C. told her mother what had happened. 8 M.C. also recalled a time before the rape when defendant digitally penetrated her, licked her breasts, and licked her “thing.”
19-KA-237 3 mother’s bed, defendant made her get undressed and put “his thing” in “her private
area” and “her mouth.” She also reported to Dr. Levy that when her sister entered
the room and found them together, she got dressed.
According to Paul Berry, an expert in the field of DNA analysis, the results
of the DNA profile obtained from the anal swab taken from M.C. was consistent
with being a mixture of DNA from at least two individuals. One of the
individual’s DNA was found to be M.C.’s, and Mr. Berry could not statistically
determine who the other one belonged to. Swabs taken from M.C.’s neck, ear,
navel, and inner thigh provided the same results as the anal swab. Further, the
DNA profile obtained from the breast swab was consistent with being a mixture of
two individuals’ DNA: M.C. and defendant.
Detective Michael Pugh of the St. John the Baptist Parish Sheriff’s Office
testified that he took photographs at the scene of the crime and collected bedding
from the room where the reported rape had occurred, which contained a stain of
suspected blood or some other type of fluid. However, Detective Pugh testified
that because the bedding was not sent for DNA analysis, he could not state with
certainty whether the stain on the bedding was in fact blood.
Sergeant Sidney Triche, also of the St. John the Baptist Parish Sheriff’s
Office, testified that he spoke to M.C. at the hospital and she reported to him that
defendant had placed his “thing” inside of her several times and also put it in her
mouth. M.C.’s sister, R.C., also told Sergeant Triche that defendant carried M.C.
to their mother’s bedroom and that she was instructed by defendant to leave the
room to fix her hair extensions so that he could take her to buy new ones. When
she returned, defendant and M.C. jumped up and looked at her.
19-KA-237 4 Lieutenant Thomas Ricks of the St. John the Baptist Parish Sheriff’s Office
was working as the lead detective on the case when he arrested defendant9 on the
charge of forcible rape of thirteen-year-old M.C. on April 3, 2015. Lieutenant
Ricks testified that after M.C. was examined at Children’s Hospital, M.C. and R.C.
met him at the Criminal Investigations Division where they were interviewed about
the incident. The information R.C. and M.C. provided during their interviews was
consistent with their trial testimony. Lieutenant Ricks further testified that M.C.
reported to him that a few weeks prior to the incident, she was alone with
defendant in her house watching a movie, and defendant asked M.C. to lay on top
of him. When M.C. laid on top of defendant’s chest, defendant took his right hand
and reached in her underwear and inserted his finger inside of her vagina.
Lieutenant Ricks testified that at the time of defendant’s arrest, his children’s
mother answered the door to their residence and at first denied his presence in the
home. However, she eventually retrieved defendant at which time he was arrested
and advised of his Miranda10 rights. While en route to the police station,
Lieutenant Ricks received a call from M.C.’s mother asking if he had arrested
defendant because she had just received a call from him during which he pleaded
with her “not to do this.”11 At that time, Lieutenant Ricks seized defendant’s cell
phone and applied for a search warrant.
Dr. Ellie Wetsman, an expert in the field of pediatrics and child abuse
pediatrics, testified that she worked at Children’s Hospital of New Orleans in the
Audrey Hepburn Care Center where she examined thirteen-year-old M.C. on April
15, 2015. M.C. reported to Dr. Wetsman that defendant “put his thing inside me
9 Lieutenant Ricks testified that defendant’s date of birth is February 2, 1978; however, the record reflects that defendant’s date of birth is October 2, 1978. 10 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 11 A.L. testified that defendant called her from the police unit after he had been arrested when the police were outside speaking to the mother of defendant’s children. During the phone call, defendant begged A.L. “not to do it.”
19-KA-237 5 down there,” pointing to her private part, and stated that he made her put her mouth
“on his thing.” She stated that defendant told her he would be gentle. Dr.
Wetsman also performed a physical examination on M.C. which was normal, but
not unexpected. According to Dr. Wetsman, the absence of physical findings is
common in those types of cases, despite M.C.’s report of sexual abuse.
Sergeant Bradley Glaudi of the New Orleans Police Department testified
that in 1999, he led an investigation into an aggravated rape involving defendant
and his fifteen-year-old cousin for which he was ultimately arrested; however, the
case was eventually nolle prossed. According to Sergeant Glaudi, the fifteen-year-
old was asleep in her bedroom when defendant, who was approximately twenty-
one years old at the time, came into the room, put his hand over her mouth, bent
her over the footboard of the bed, and had intercourse with her against her will.
M.K., the victim of the 1999 reported rape, testified that in 1999, when she
was fifteen years old, defendant came into the bedroom where she was sleeping
and told her that her brothers needed to see her. When she got out of bed,
defendant grabbed her, turned her around, and bent her over the bed. She recalled
that defendant told her to “shut up” when she stated “please, no” and proceeded to
hold her down and penetrate her. After defendant was arrested, she had no further
contact with him. M.K. testified that she wanted to pursue charges and was never
informed by the State that charges against defendant had been nolle prossed.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, defendant argues that the trial court erred
when it permitted evidence of his prior arrest for forcible rape of a juvenile, which
occurred fifteen years prior to the instant offense and never resulted in a
conviction, to be introduced at trial. He further contends he was denied the
opportunity to show how he would have been prejudiced by the admission of the
evidence when the trial court denied his request for a contradictory hearing on the
19-KA-237 6 matter. He concludes that the probative value of the evidence did not outweigh its
prejudicial effect and was merely used to show he was a man of bad character.
In response, the State avers defendant’s prior arrest for forcible rape of a
juvenile was relevant and admissible in the prosecution for the instant offense of
forcible rape of a thirteen-year-old child. The State maintains that under La. C.E.
art. 412.2, evidence of defendant’s prior arrest was admissible, and the fact that his
prior arrest occurred some time before the instant offense was only one factor to
consider when determining whether the probative value of the evidence was
outweighed by the prejudicial effect of the evidence. It further asserts that a
contradictory hearing was not required to be conducted prior to the admissibility of
the evidence of defendant’s lustful disposition under La. C.E. art. 412.2.
Nevertheless, the State concludes that under a harmless error analysis, the evidence
in this case was sufficient to support defendant’s conviction even absent the
evidence regarding defendant’s prior arrest.
On January 23, 2018, the State filed a Notice of Intent Pursuant to La. C.E.
art. 412.2, seeking to introduce defendant’s 1999 arrest for forcible rape of a
juvenile in Orleans Parish. According to the State, charges against defendant were
accepted by the Orleans Parish District Attorney but were later nolle prossed. The
State submitted that evidence of defendant’s prior arrest was admissible and
relevant under La. C.E. art. 412.2(A) given the similarities between the 1999
offense and the instant forcible rape offense. The State attached to its notice the
New Orleans Police Department reports concerning the 1999 incident and argued
in its notice that a pre-trial hearing on the matter was not required under La. C.E.
art. 412.2.
At the rule to show cause on the matter on April 9, 2018, the State submitted
a copy of defendant’s prior sexual assault record from Orleans Parish under seal.
Defendant requested a contradictory hearing and the trial court took the matter
19-KA-237 7 under advisement. On April 10, 2018, the trial court ruled that La. C.E. art. 412.2
did not require a full pre-trial hearing and found defendant’s prior sexual assault
arrest would be admissible at trial.
At trial, Sergeant Glaudi of the New Orleans Police Department testified
regarding the 1999 arrest of defendant surrounding the rape of defendant’s fifteen-
year-old cousin, M.K. Defendant’s cousin, M.K., also detailed the events of the
rape, testifying that while at her house, defendant grabbed her, held her down, and
raped her in her bedroom when she was fifteen years old. Both Sergeant Glaudi
and M.K. recalled that defendant was arrested and charged with rape; Sergeant
Glaudi noted, however, that the case was eventually nolle prossed for reasons
unknown.12
The fundamental rule in Louisiana governing the use of evidence of other
crimes, wrongs, or acts is that such evidence is not admissible to prove that the
accused committed the charged crime because he has committed other such crimes
in the past. State v. Williams, 09-48 (La. App. 5 Cir. 10/27/09), 28 So.3d 357, 363,
writ denied, 09-2565 (La. 5/7/10), 34 So.3d 860. However, such evidence may be
admitted by certain statutory and jurisprudential exceptions to the exclusionary
rule when it tends to prove a material issue and has independent relevance other
than showing that the defendant is of bad character. State v. Greenup, 12-881 (La.
App. 5 Cir. 8/27/13), 123 So.3d 768, 772, writ denied, 13-2300 (La. 3/21/14), 135
So.3d 617.
Specifically, in sex abuse cases, the “lustful disposition” exception applies
as set forth in La. C.E. art. 412.2, which provides, in pertinent part:
When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense
12 At the conclusion of the trial testimony, the trial court instructed the jury that evidence that defendant was involved in the commission of a prior offense, other than the offense for which he was on trial, was to be considered for its bearing on any matter that may be relevant. It admonished the jury to remember that defendant was on trial only for the offense charged and that they were not to find him guilty of the charged offense merely because he may have committed another offense.
19-KA-237 8 involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
La. C.E. art. 403 provides that, “[a]lthough relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, or waste of time.” A trial court’s ruling on the admissibility of evidence is
reviewed for an abuse of discretion. This same standard is applied to rulings on
the admission of other crimes evidence and evidence under La. C.E. art. 412.2.
State v. Wright, 11-0141 (La. 12/6/11), 79 So.3d 309, 316. In enacting Article
412.2, “the Legislature did not see fit to impose a restriction requiring such
evidence to meet a stringent similarity requirement for admissibility.” Article
412.2 was enacted to loosen restrictions on “other crimes” evidence, and to allow
evidence of “lustful disposition” in cases that involve sexual offenses. Id. at 317.
Thus, pursuant to La. C.E. art. 412.2, evidence of a prior sexual offense indicating
that the defendant has a lustful disposition toward children is admissible if relevant
and if the probative value outweighs the prejudicial effect. State v. Olivieri, 03-
563 (La. App. 5 Cir. 10/28/03), 860 So.2d 207, 218.
Here, defendant was charged and convicted of the forcible rape of M.C., a
violation of La. R.S. 14:42.1. Forcible rape13 is defined in La. R.S. 14:42.1(A)(1)
as:
[R]ape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed … [w]hen the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
13 Forcible rape is a general intent crime. State v. Smith, 35,699 (La. App. 2 Cir. 4/5/02), 815 So.2d 412, 421, writ denied, 02-1502 (La. 4/4/03), 840 So.2d 1200. Any sexual penetration, however slight, is sufficient to complete the crime, and emission is not necessary. See La. R.S. 14:41(B).
19-KA-237 9 On appeal, defendant’s argument is centered upon the prejudicial value of
the evidence as it relates to his 1999 arrest on the basis that it occurred over fifteen
years prior to the instant offense and never went to trial.
First, for purposes of La. C.E. art. 412.2 testimony, it is not necessary for the
defendant to have been charged, prosecuted, or convicted of the described “other
acts.” See State v. Layton, 14-1910 (La. 3/17/15), 168 So.3d 358, 362; State v.
Cole, 19-0033 (La. App. 1 Cir. 9/27/19), 288 So.3d 146, 154. In State v. Harris,
11-253 (La. App. 5 Cir. 12/28/11), 83 So.3d 269, 280, writ denied, 12-401 (La.
8/22/12), 97 So.3d 376, this Court held that evidence of a defendant’s prior rape of
a juvenile, of which he was acquitted, was admissible in a later prosecution for
aggravated rape of a juvenile. This Court found that the evidence of the prior rape
of the juvenile was not so prejudicial as to warrant exclusion from trial and that the
evidence was probative in its ability to show that the defendant had a propensity to
remove sleeping children from where they lay and commit forced sexual offenses
by using threats, thus establishing a lustful disposition towards children. Id.
Further, we find that defendant’s contention that his 1999 arrest for the rape
of a juvenile was so remote in time as to have no probative value, requiring its
exclusion, lacks merit. The fact that the other acts or crimes happened some time
before the offense for which the defendant is on trial is not sufficient, in and of
itself, to require the exclusion of the evidence. Remoteness in time, in most cases,
is only one factor to be considered when determining whether the probative value
of the evidence outweighs its prejudicial effect. Generally, a lapse in time will go
to the weight of the evidence, rather than to its admissibility. State v. Jackson, 625
So.2d 146 (La. 1993); State v. Bolden, 241 So.2d 490 (La. 1970). Further, as it
pertains to sex crimes evidence under La. C.E. art. 412.2, the legislature has not
addressed a temporal limitation for sex crimes in La. C.E. art. 412.2. It is only one
factor to be considered and prior sex crimes that occurred several years earlier have
19-KA-237 10 not been excluded because of the length of time. Bobby Harges & Russell Jones,
LA. PRAC. EVIDENCE, Art. 412.2 (2019 ed.) (citing State v. Henry, 11-1137 (La.
App. 4 Cir. 10/24/12), 102 So.3d 1016, writ denied, 12-2520 (La. 4/26/13), 112
So.3d 838; State v. Friday, 10-2309 (La. App. 1 Cir. 6/17/11), 73 So.3d 913, writ
denied, 11-1456 (La. 4/20/12), 85 So.3d 1258; State v. Scoggins, 10-0869 (La.
App. 4 Cir. 6/17/11), 70 So.3d 145, writ denied, 11-1608 (La. 2/10/12), 79 So.3d
1033; State v. Buckenberger, 07-1422 (La. App. 1 Cir. 2/8/08), 984 So.2d 751, writ
denied, 08-0877 (La. 11/21/08), 996 So.2d 1104; State v. Willis, 05-218 (La. App.
3 Cir. 11/2/05), 915 So.2d 365, writ denied, 06-0186 (La. 6/23/06), 930 So.2d 973,
cert. denied, 549 U.S. 1052, 127 S.Ct. 668, 166 L.Ed.2d 514 (2006)).
In the instant case, despite the significant lapse in time (over fifteen years)
between the two offenses, we find that the trial court did not abuse its discretion in
admitting the other crimes evidence under La. C.E. art. 412.2, since the probative
value of the prior offense was not substantially outweighed by its prejudicial effect
given the similarities between the two instances of rape of minors with whom
defendant was familiar.14
Lastly, defendant contends he was denied the opportunity to show how he
would have been prejudiced by the admission of the evidence when the trial court
denied his request for a contradictory hearing on the matter. When the State
intends on offering evidence under La. C.E. art. 412.2(B), the State shall “upon
request of the accused, provide reasonable notice in advance of trial of the nature
of any such evidence it intends to introduce at trial for such purposes.” La. C.E.
art. 412.2 does not contain any language requiring a hearing. Further, in State v.
14 Regardless, the erroneous admission of other crimes evidence is subject to a harmless error analysis. Scoggins, 70 So.3d at 154. Harmless error exists where the guilty verdict actually rendered was “surely unattributable” to the error. State v. Higginbotham, 11-0564 (La. 5/6/11), 60 So.3d 621, 623. In the instant case, the victim gave a consistent account of the events surrounding the forcible rape, which was uncontroverted at trial. The testimony of the victim can be sufficient to establish sexual penetration, even though there is an absence of scientific evidence of sexual intercourse. State v. Hawkins, 06-739 (La. App. 5 Cir. 9/25/07), 968 So.2d 1082, 1088, writ denied, 07-2272 (La. 4/18/08), 978 So.2d 347.
19-KA-237 11 Williams, 02-1030 (La. 10/15/02), 830 So.2d 984, 987, the Louisiana Supreme
Court held that La. C.E. art. 412.2 does not require the trial court to hold a pre-trial
hearing prior to ruling on the admissibility of the evidence.
Here, the State provided defendant with “reasonable notice in advance of
trial of the nature of any such evidence it intended to introduce at trial for such
purposes,” as required by La. C.E. art. 412.2(B), and thus, we find the trial court
did not err in denying defendant’s request for a contradictory hearing on the
matter.
For these reasons, we find that the trial court did not abuse its discretion in
admitting evidence of defendant’s 1999 arrest for rape under La. C.E. art. 412.2.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
In his second assignment of error, defendant argues the trial court erred
when it denied his motion for a mistrial after Juror Tara Reno was removed from
the jury and replaced with one of the alternate jurors because she knew the victim
and her sister. Defendant further notes that after the State’s second witness
testified, Juror Marie Mabile advised the court that she recognized the victim’s
sister; however, Juror Mabile was permitted to remain on the jury after she stated
she could be fair and impartial. Defendant contends that while a mistrial is a
drastic remedy, it was warranted in this case when two of the jurors waited until
after the commencement of trial to call to the court’s attention their familiarity with
certain witnesses, and that one of the jurors was allowed to remain while the other
was replaced. Accordingly, defendant concludes that a mistrial should have been
granted.
The State responds that there is no indication the trial court’s rulings resulted
in substantial prejudice to defendant, depriving him of a reasonable expectation of
a fair trial. It argues that the trial court removed Juror Reno and replaced her with
19-KA-237 12 an alternate, thereby correcting any perceived prejudice. Further, it argues that
Juror Mabile stated she could be fair and impartial and thus was properly allowed
to remain on the jury without objection by defendant. Therefore, the State asserts
the trial court did not abuse its discretion when it denied defendant’s motion for a
mistrial as it pertained to Juror Reno.
On the second day of trial, the court received a handwritten note from Juror
Mabile stating “I recognized the older sister that took the stand. I did not know her
by name but by face I did. She was a friend of my cousin’s daughter. I just
wanted to bring that to your attention.” Accordingly, the trial court called Juror
Mabile into the courtroom for questioning. During questioning by the court, Juror
Mabile stated that during jury selection, she did not recognize the names of the
witnesses that would be testifying; however, she explained that when the victim’s
sister took the stand, she recognized her as a friend of her cousin’s daughter, noting
that she did not personally know the child witness or her name prior to trial. Juror
Mabile confirmed that her acquaintance with the victim’s sister would not affect
her ability to be fair and impartial. The defense then asked one question of Juror
Mabile as to whether she had any knowledge of the case prior to trial, to which she
replied that she did not. The trial court permitted Juror Mabile to remain on the
jury. No objection was lodged by the defense, and the trial of this matter
continued.
To the extent defendant argues that Juror Mabile was improperly permitted
to remain on the jury, defendant has waived this argument on appeal. La. C.Cr.P.
art. 841 provides that an irregularity or error cannot be availed of after verdict
unless it was objected to at the time of the occurrence. In order to seek appellate
review of an alleged trial court error, a party must make a contemporaneous
objection at trial and he must state the grounds for the objection. La. C.Cr.P. art.
841; State v. Gaal, 01-376 (La. App. 5 Cir. 10/17/01), 800 So.2d 938, 949, writ
19-KA-237 13 denied, 02-2335 (La. 10/3/03), 855 So.2d 294. Thus, we find that because
defendant failed to object to any alleged error that Juror Mabile was permitted to
remain on the jury, defendant is not entitled to have this issue reviewed and
considered on appeal by this Court.
On the next day (the third day of trial), Juror Reno sent a handwritten note
informing the trial court “I know M[.C.] and her sister. Can I please talk to you.”
After the note was received, the trial court called Juror Reno into the courtroom for
questioning. Juror Reno confirmed that she knew the victim because she “rode
[her] bus” for five years and “watched them grow up,” admitting that she did not
think she could be fair and impartial. Thus, Juror Reno was removed from the jury
and replaced with alternate Juror Michelle Cazenave. It was at that time that
defendant moved for a mistrial, arguing that “the jurors were not being forthright
with the information during the jury selection.” The trial court denied the motion,
finding that the jurors could be fair and impartial, to which defendant objected.
A mistrial is a drastic remedy and is warranted only when trial error results
in substantial prejudice to the defendant that deprives him of a reasonable
expectation of a fair trial. Whether a mistrial should be granted is within the sound
discretion of the trial court, and the denial of a motion for mistrial will not be
disturbed absent an abuse of that discretion. State v. Williams, 14-40 (La. App. 5
Cir. 9/24/14), 151 So.3d 79, 83, writ denied, 14-2250 (La. 6/19/15), 172 So.3d 649.
La. C.Cr.P. art. 775 provides, in pertinent part, that “upon motion of a
defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when
prejudicial conduct in or outside the courtroom makes it impossible for the
defendant to obtain a fair trial, or when authorized by Article 770 or 771.” The
trial court has discretion to use the services of an alternate juror, rather than to
grant a mistrial, upon a proper finding that this is the best course of action. State v.
Tatum, 09-1004 (La. App. 5 Cir. 5/25/10), 40 So.3d 1082, 1093.
19-KA-237 14 In State v. Dorsey, 11-745 (La. App. 5 Cir. 4/24/12), 94 So.3d 49, 55-56,
writ denied, 12-0998 (La. 10/12/12), 99 So.3d 39, this Court found that the trial
court was not required to grant a mistrial after one of the jurors discovered mid-
trial that he was acquainted with the robbery victim and communicated this fact to
fellow jurors. This Court reasoned that the juror and the victim did not have a
close relationship, there was no evidence that the acquaintance between the juror
and the victim tainted the jury or the defense, and that the trial court dismissed the
juror and replaced him with an alternate. Id. at 56.
In State v. Adams, 30,815 (La. App. 2 Cir. 6/24/98), 715 So.2d 118, writ
denied, 98-2031 (La. 3/19/99), 739 So.2d 774, the defendant moved for a mistrial
on the grounds that the victim’s mother talked to a juror during the trial. After a
hearing, the trial court stated that it could discern no prejudice, but out of an
abundance of caution removed the juror from the jury. The defense moved for a
mistrial, which the trial court denied, giving the defense instead several options for
filling the juror’s place. The defense agreed to let one alternate juror take her
place. On appeal, the defendant contended that he suffered from general prejudice
and that the contact between the victim’s mother and the juror possibly tainted the
entire jury. The Second Circuit stated that the trial court did not abuse its
discretion in denying the motion for mistrial. It noted that the juror was dismissed
from the jury and replaced with an alternate juror to correct the perceived
prejudice. It further found that there was no showing to substantiate that the
communication possibly tainted the jury. Id. at 121-22.
In the instant case, we find that the trial judge did not abuse his discretion by
denying defendant’s motion for mistrial. Initially, it is noted that no mandatory
grounds for mistrial under Article 770 have been presented here. Additionally,
there is no evidence to show that Juror Reno’s acquaintance with the victim and
her sister gave the victim credibility or otherwise tainted the jury or prejudiced
19-KA-237 15 defendant. Moreover, we find that the trial judge corrected any perceived
prejudice by dismissing Juror Reno from the jury and replacing her with an
alternate. Adams, supra.
In light of the foregoing, we find that the trial judge did not err by denying
the motion for mistrial. This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER THREE
In his final assignment of error, defendant argues he should be resentenced
as a habitual offender due to the “substantial changes in the sentencing provisions
of La. R.S. 15:529.1, effective November 1, 2017.”
In response, the State maintains that whether or not the 2017 ameliorative
changes to the habitual offender law apply to defendant is irrelevant as defendant’s
fifty-five-year sentence is permitted under both the 2015 version and the 2017
version of La. R.S. 15:529.1. The State further submits that it proved that less than
five years had elapsed between the instant offense and the expiration of
correctional supervision for the predicate offense charged in the bill of
information, and thus, any change to the cleansing period under the new 2017
version of La. R.S. 15:529.1 would have no effect on defendant.
Here, the forcible rape of M.C. occurred on April 2, 2015. Defendant was
convicted on April 12, 2018. On May 9, 2018, the State filed a habitual offender
bill of information alleging defendant to be a second-felony offender based upon a
predicate June 28, 2000 conviction for possession with intent to distribute cocaine.
At the habitual offender hearing, the State proved that defendant was sentenced,
pursuant to his June 2000 drug conviction on August 11, 2000, to ten years at hard
labor. It further proved that defendant was released on parole on August 15, 2010,
and that his parole supervision expired on August 26, 2013. As previously noted,
the instant offense occurred less than two years later on April 2, 2015. Thus, under
either the 2015 version of the habitual offender law (which provided for a ten-year
19-KA-237 16 cleansing period) or the 2017 amended version of the habitual offender law (which
currently provides for a five-year cleansing period), defendant’s 2000 predicate
possession with intent to distribute cocaine conviction falls within either cleansing
period version of the law. See La. R.S. 15:529.1(C) (2015); La. R.S.
15:529.1(C)(1) (2017).
Additionally, the trial court’s imposition of a fifty-five-year enhanced
sentence as a second-felony offender is permitted under both the 2015 version and
the 2017 version of the habitual offender law. The 2015 version of La. R.S.
15:529.1 subjected defendant to a sentencing range of twenty to eighty years
imprisonment, while the 2017 amended version subjects defendant to a sentencing
range of 13.3 to eighty years imprisonment. See La. R.S. 14:42.1(B); La. R.S.
15:529.1(A)(1) (2015 and 2017). Defendant’s sentence falls within the range
provided under either version. Thus, we find defendant is not entitled to
resentencing based upon the 2017 changes to La. R.S. 15:529.1. This assignment
of error is without merit.
ERRORS PATENT REVIEW
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175
(La. App. 5th Cir. 1990).
The transcript of the trial court proceedings does not indicate that the trial
judge informed defendant of the time period for seeking post-conviction relief as
required by La. C.Cr.P. art. 930.8. While the sentencing minute entry reflects that
the trial judge advised defendant of these provisions, in the event of a conflict
between the transcript and the minute entry, the transcript prevails. State v. Lynch,
441 So.2d 732, 734 (La. 1983). Therefore, defendant is hereby advised, by way of
this opinion, that no application for post-conviction relief, including applications
which seek an out-of-time appeal, shall be considered if it is filed more than two
19-KA-237 17 years after the judgment of conviction and sentence has become final under the
provisions of La. C.Cr.P. arts. 914 or 922. See State v. Montero, 18-397 (La. App.
5 Cir. 12/19/18), 263 So.3d 899, 909.
Next, the record does not reflect that defendant was notified of Louisiana’s
sex offender registration requirements pursuant to La. R.S. 15:540, et seq.
Defendant’s conviction for forcible rape of a juvenile (La. R.S. 14:42.1) is defined
as a sex offense by La. R.S. 15:541(24)(a).
La. R.S. 15:543(A) states that the trial court “shall provide written
notification to any person convicted of a sex offense and a criminal offense against
a victim who is a minor of the registration requirements and the notification
requirements” of La. R.S. 15:542 and La. R.S. 15:542.1. In addition, La. R.S.
15:543(A) states that the trial court shall use the form contained in La. R.S.
15:543.1 to inform the defendant of the registration and notification requirements.
La. R.S. 15:543(A) further requires that such notice be included on any guilty plea
forms and judgment and sentence forms provided to the defendant and that an
entry be made in the court minutes stating that written notification was provided.
Here, the record indicates that the trial court did not comply with La. R.S.
15:543(A). A trial court’s failure to provide this notification constitutes an error
patent and warrants a remand for written notification. See State v. Lampkin, 12-
391 (La. App. 5 Cir. 5/16/13), 119 So.3d 158, 168, writ denied, 13-2303 (La.
5/23/14), 140 So.3d 717.
Accordingly, we remand this matter to the trial court for the purpose of
providing defendant with the appropriate written notice of his sex offender
notification and registration requirements, using the form contained in La. R.S.
15:543.1.
Finally, the transcript reflects that when the trial court sentenced defendant
under the habitual offender statute, it imposed a fifty-five-year sentence, but did
19-KA-237 18 not restrict any benefits. The habitual offender statute, La. R.S. 15:529.1(G),
provides that any sentence imposed under its provisions “shall be at hard labor
without benefit of probation or suspension of sentence.” Further, the underlying
offense in the referenced statute, La. R.S. 14:42.1, imposes a parole restriction. It
requires that “[a]t least two years of the sentence imposed shall be without the
benefit of probation, parole, or suspension of sentence.” See La. R.S. 14:42.1(B).
The restrictions on parole eligibility imposed on habitual offender sentences under
La. R.S. 15:529.1 “are those called for in the reference statute.” State v. Esteen, 01-
879 (La. App. 5 Cir. 5/15/02), 821 So.2d 60, 79, n. 24, writ denied, 02-1540 (La.
12/13/02), 831 So.2d 983. Accordingly, since the trial court failed to impose these
restrictions, we vacate defendant’s enhanced sentence and remand this case for
resentencing in accordance with La. R.S. 15:529.1(G) and La. R.S. 14:42.1(B).
See State v. Smith, 09-100 (La. App. 5 Cir. 8/25/09), 20 So.3d 501, 508-09, writ
denied, 09-2102 (La. 4/5/10), 31 So.3d 357.15
CONCLUSION
For the foregoing reasons, defendant’s conviction is affirmed. Defendant’s
sentence is vacated, and the matter remanded for resentencing and sex offender
registration notification, in accordance with this opinion.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING AND SEX OFFENDER REGISTRATION NOTIFICATION
15 As part of our errors patent review, we also discovered discrepancies in the Louisiana Uniform Commitment Order (“UCO”). Specifically, section “B” of the UCO does not provide that the sentence imposed was a habitual offender sentence. Rather, it indicates that it was an original sentence. Also, under section “C” of the UCO, the date of the original sentence is noted as June 20, 2018, when in fact there was no original sentence imposed. Nevertheless, because this Court has vacated defendant’s sentence and the trial court will have to prepare and issue a new UCO upon resentencing, there is no need to order correction of the discrepancies discovered in the UCO.
19-KA-237 19 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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