State Of Louisiana VS Jimmie Lewis
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT C NUMBER 2012 KA 1616 STATE OF LOUISIANA VERSUS JIMMIE LEWIS Judgment Rendered MAY 2 2013 Appealed from the 21 Judicial District Court In and for the Parish of Tangipahoa Louisiana Trial Court Number 1103048 Honorable Wayne Ray Chutz Judge Scott M Perrilloux Attorneys for Appellee District Attorney Plaintiff State of Louisiana Patricia Amos Asst District Attorney Amite LA Mary E Roper Louisiana Appellate Project Baton Rouge LA Attorney for Appellant Defendant Jimmie Lewis BEFORE PARRO WELCH AND KLINE JJ Hon William F Kline Jr retired is serving as judge ad hoc by special appointment of the Louisiana Supreme Court G WY l ayt WS C WELCH J The defendant Jimmie Lewis was charged by bill of information with simple burglary a violation of La R 14 count 1 and attempted aggravated S 62 rape a violation of La R 14 and 14 count 2 He pled not guilty and S 42 27 following a jury trial was found guilty as charged on both counts For the simple burglary conviction the defendant was sentenced to twelve years imprisonment at hard labor for the attempted aggravated rape conviction the defendant was sentenced to fifty years imprisonment at hard labor without benefit of parole probation or suspension of The sentence sentences were ordered to run consecutively The defendant filed a motion to reconsider sentence which was denied The defendant now appeals designating three assignments of error We affirm the convictions and sentences FACTS On the evening of July 31 2011 K was home alone in her trailer on B Pierre Lane in Ponchatoula At about 11 p K went to her bathroom to 00 m B roll her hair As K left the bathroom several minutes later she saw the B defendant in her living room holding her purse The defendant had climbed through the window of K son bedroom K did not know the defendant s B s B personally Shocked she ran for the front door but the defendant stopped her B K begged the defendant not to hurt her The defendant told her to shut up or he would cut her The defendant was holding a yellow box cutter with the blade extended The defendant brought K to her bedroom and pushed her on the bed B He climbed on top of her holding the box cutter in his right hand near her cheek and covering her mouth with his left hand As K struggled and kept pulling the B s defendant hand off ofher face the defendant repeatedly told her to shut up or he would cut her At some point during the struggle K knocked the box cutter B Z On March 7 2013 this court denied the defendant Motion to Supplement the record s 2 from the defendant shand She told the defendant to take her purse and that he could have whatever he wanted but to just take it and leave When she asked the defendant if he would leave he replied No I am going to fIn an attempt to k create space between herself and the defendant which might allow her to escape or to grab a knife she had inside a on the nightstand K asked the cubby B defendant if she could get a condom The defendant leaned back for a moment B K pushed him off of her and xan far the front door which was open The defendant caught up to her and tried to pull her back into the trailer K resisted B and as they struggled the defendant punched her in the face She fell down and the defendant ran from her trailer B K called 911 She went to the hospital where she was treated far injuries to her face and arm K told the police she recognized the defendant from a sex B offender notification card she had received in the mail The police learned that the defendant lived a few houses away less than one of a mile from K The tenth B defendant was brought to the police station for questioning After initially denying any involvement the defendant admitted entering K trailer through a window s B and being approached by K The defendant reported that upon seeing K he B B left The defendant did not admit to attacking K The defendant told the police B he never went into K bedroom and held her down and he was not armed with s B a box cutter The police found a yellow box cutter at the foot of K bed s B The defendant did not testify at trial ASSIGNMENTS OF ERROR NOS 1 and 2 In these related assignments of enor the defendant argues that the trial court abused its discretion in admitting evidence of other crimes and erred in denying his motion for a new trial Specifically the defendant contends in brief as he did in the motion for new trial that the sex offender notification card which indicated that the defendant had been convicted of forcible rape should have been redacted 3 to remove any reference to other crimes evidence before being introduced into evidence Prior to trial the State filed a notice of intent to use evidence of other crimes The State sought to introduce evidence of the defendant conviction far s forcible rape approximately twenty years prior to the instant offense K five B had received a sex offender notification card in the mail identi ing the defendant by name showing his picture and listing the crime for which he had been convicted forcible rape In its notice of intent the State asserted that testimony regarding the defendant prior conviction and the notification card was s or admissible at trial because such evidence relates to conduct that constitutes an integral part of the act or transaction that is the subject of this prosecution The State further asserted the evidence had independent relevance to prove identity The State noted that the defendant had a twin brother and the evidence was needed to rebut the claim of misidentification At a pretrial hearing on the State motion the trial court ruled that evidence s of the defendant sprevious conviction was admissible stating in pertinent part that the State would be allowed to utilize evidence indicating that Mr Lewis was previously convicted and the notice that was mailed out is the manner in which the victim was able to identify who he was In response to this ruling the defendant filed on the day of trial a motion in limine seeking an order from the trial court to prohibit any mention of his forcible rape conviction as well as an order to redact the words of forcible rape from the sex offender identification card The defendant asserted in his motion that the trial court did not provide any explanation as to what exactly would be admissible in its ruling Further the defendant argued that his forcible rape conviction was completely irrelevant and its prejudicial impact would far outweigh its probative value The defendant asserted that the State would be able to prove the defendant was a registered sex offender with testimony 4 and the notification card that was mailed out the trial court however could limit the prejudicial impact with an order requiring the redaction from the card of any reference to the forcible rape conviction The trial court ruled on the defendant s motion in limine that the probative value of the unaltered notification card clearly outweighed the prejudicial effect The trial court further stated The notice is the notice Whatever it is And for that reason I don have any problem with t allowing the notice if it is offered by the State to be introduced into these proceedings At trial K testified that she recognized the defendant from the sex B offender notification card she had received in the mail She did not mention the forcible rape conviction She stated only that she remembered seeing his name face date of birth height and weight and address on the card R p 190 The unaltered card however was introduced into evidence by the State and published to the jury Louisiana Code of Evidence article 404 provides 1 B Except as provided in Article 412 evidence of other crimes wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith It may however be admissible for other purposes such as proof of motive opportunity intent preparation plan knowledge identity absence of mistake or accident provided that upon request by the accused the prosecution in a criminal case shall provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding Generally evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition 5 State v Lockett 99 La 0917 App l Cir 2754 So 1128 1130 writ denied 2000 La 3 00 18 2d 1261 O1 9 786 2d So evidence 115 The trial court ruling on the admissibility of other crimes s will not be overturned absent an abuse of discretion See State v Galliano 2002 La 1 839 So 932 934 per curiam 2849 03 10 2d Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence La Code Evid art 401 All relevant evidence is admissible except as otherwise provided by positive law Evidence which is not relevant is not admissible La Code Evid art 402 Although relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice confusion of the issues misleading the jury or by considerations of undue delay or waste of time La Code Evid art 403 We note initially that despite the State assertion in its notice of intent the s sprior conviction for forcible rape did not constitute an integral part of defendant the defendant sactions that were the subject of the instant proceeding Under La Code Evid art 404 evidence of other crimes wrongs or acts may be 1 B introduced when it relates to conduct formerly referred to as res gestae that consritutes an integral part of the act or transaction that is the subject of the present proceeding Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them A close proximity in time and location is required between the charged offense and the other crimes evidence to ensure that the purpose served by admission of other crimes evidence is not to depict defendant as a bad man but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place State v Colomb 98 La 10 747 So 1074 1076 2813 99 1 2d 6 per curiam The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission f the crime if a continuous chain of events is evident under the circumstances State v Taylor 2001 1638 La 1 838 So 729 741 cert denied 540 U 1103 124 S 1036 03 14 2d S Ct 157 L886 2004 2d Ed The defendant other crime of forcible rape occurred twenty years s five prior to the instant charge of attempted aggravated rape There is no proximity in time continuous chain of events or immediate context of happenings near in time and place regarding the two sex offenses Accordingly the forcible rape does not constitute integral part ofthe act evidence Regarding the admissibility of the identification card we find the trial court abused its discretion in allowing the unaltered card into evidence under La Code Evid art 404 The defendant past and present sex offenses were twenty 1 B s five years apart While the mere passage of time between offenses will not necessarily defeat admissibility there must be some connexity between the crime charged and the prior crime See State v Jackson 625 So 146 151 La 1993 2d There was no connexity established at trial or pretrial between the forcible rape and the charged attempted aggravated rape There were no details provided regarding the defendant forcible rape conviction Thus there were no particulars s of the forcible rape conviction presented by the State to compare it to the attempted aggravated rape charge to establish motive opportunity intent preparation plan or knowledge See La Code Evid art 404 Cf Jaclzson 625 So at 150 1 B 2d 52 where evidence of the defendant sprior offenses of fondling the breasts of his daughters fifteen to twenty years ago was found to be admissible other crimes four evidence because the victims who were family members of the defendant testified 7 in sufficient detail and particularit to the ther crimes however testimony of yas the daughters that the defendant raped one of them and fondled their vaginas was found to be inadmissible as irrelevant and overly prejudicial because the defendant was charged only with kissing his granddau and fondl their breasts in the hters ing instant case Cf 8tate v Driggers 554 So La App 2d Cir 1989 where 0 7 2d evidence of the defendant several prior sexual offenses that occurred seven to s six twenry years before the instant charges of indecent behaviar with a juvenile and aggravated aral sexual battery was held admissible because each ofthe victims testified in significant detail and clarity about the prior offenses the past victims and the victim in the instant matter were all juveniles all the victims were relatives and neighbors of the defendant and the incidents were all within the same time period of the victims lives most being pre pubescent In the instant matter it was established that K was thirty years old B four and did not Irnow the defendant at the time of the instant offense There was no evidence or testimony regarding the details of the frape convicYion such as rcible where and how it occuned or if the defendant used a weapon and what kind and no evidence or testimony of the defendant victim such as how old she was or if s she was related to the defendant As such the complete lack of evidence regarding the defendant sprior conviction could not be used to show independent relevance such as motive or intent Cf State v Miller 98 La 9 718 So 0301 98 2d 960 The State argument that it was necessary to admit into evidence the s 3 While we recognize hat La Code Evld art 412 allows for broader admissibility of other 2 crimes evidence in sex offense cases the State sought to admit the evidence at issue only under La Code Evid art 404 R pp 97 Moreover just as with Article 404 Article 412 B 98 B 2 requires similazity between the offenses to be sufficiently probative to support the admission of evidence See State v Wright 2011 La 12 79 So3d 309 317 Accordingly 0141 11 6 18 as discussed herein since there were insufficient details established of the forcible rape conviction a definitive determination of the applicability of Article 412 2which is subject to the balancing test of Article 403 is not possible 8 unaltered notification card to prove identity is unpersuasive Detective Bryan Mannino with the Ponchatoula Police Department and Detective Edwin Bergeron with the Hammond Police Department both testified at trial that the defendant gave a statement admitting to the burglary on the night K reported she was B attacked The defendant confessed that he c through the wandow and was imbed approached by B K The State possessed a copy of the defendant video s confession to the police and the video was introduced into evidence and played for the jury Thus the State was aware at all times that the defendant had placed himself at the scene The videotaped statement was not made part of the appellate record Accordingly the words Forcible Rape on the identification card should have been redacted before being admitted into evidence and published to the jury Without these words the jury would still have been and in fact was made aware through both testimony and its own viewing of the published card that K had B received a sex offender notification card in the mail with the defendant picture s and address on it and the date he had committed a sex crime The other crimes evidence of the defendant forcible rape conviction was irrelevant and even if s relevant should have been excluded because its probative value was substantially outweighed by the danger of unfair prejudice or misleading the jury and served only to prove bad character See La Code Evid arts 402 403 and 404 1 B See also State v Mosby 595 So 1135 La 1992 State v Lee 569 So 2d 2d 1038 1040 La App 3 Cir 1990 The term unfair prejudice as to a 43 criminal defendant speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged State v Rose 2006 La 2 949 So 1236 0402 07 22 2d 1244 Despite the trial court improper evidentiary ruling we find the admission s 9 of the unaltered notification card into evidence to be harmless error See La Code Crim P art 921 The erroneous admission of other crimes evidence is a trial error subject to harmless error analysis on appeaL State v Johnson 94 La 1379 95 27 ll 664 2d So 94 02 The test for determ inin g w hether an error is harmless is whether the verdi actually rendered in this case was surely ct unattributable to the error Sullivan v Louis 508 U 275 279 113 S ana S Ct 2078 2081 124 L 182 1993 Johnson 664 So at 100 2d Ed 2d The evidence of the defendant guilt was overwhelming s admitted to the police that he burglarized s B K trailer The defendant B K testified she confronted the defendant in her living room while he was holding her purse She identified the defendant as the same person she had seen on a sex offender notification card recently mailed to her residence The notification card had the s defendant picture on it B K further testified that when she tried to leave her trailer the defendant stopped her and pushed her onto her bed As he climbed on top of K the defendant held a box cutter with the blade extended in his hand B and threatened to have sex with K Following a brief struggle K knocked the B B box cutter from the defendant shand broke free from him and ran to the open front door The defendant caught up with her and as she fought him the defendant punched her in the mouth knocking her down The defendant then fled the trailer The police found the defendant sbox cutter in K bedroom and s B B K identified the defendant in a photographic lineup In her photographic lineup statement K wrote I recognized him as the person who was in my house on B July 31 2011 and attacked me The State evidence clearly established the defendant guilt As such the s s guilty verdict rendered was surely unattributable to any evidence of the defendant s priar conviction of farcible rape Any error in allowing such other crimes evidence to be presented to the jury was harmless beyond a reasonable doubt See La Code 10 Crim P art 921 Sullivan 508 U at 279 1 i3 S at 2081 Accordingly the S Ct trial court did not err in denying the motion for new trial ASSIGNMENT OF ERROR NO 3 In his third assignment of enor the defendant argues that his sentences are excessive Specifically the defendant contencis that the trial court abused its discretion in imposing maximum sentences and ordering the sentences to run consecutively The Eighth Amendment to the United States Constitution and Article I 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment Although a sentence falls within statutory limits it may be excessive State v Sepulvado 367 So 762 767 La I979 A sentence is considered 2d constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering A sentence is considered grossly disproportionate if when the crime and punishment are considered in light of the harm done to society it shocks the sense ofjustice State v Andrews 94 La App l Cir 5 655 So 0842 95 2d 448 454 The trial court has great discretion in imposing a sentence within the statutory limits and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion See State v Holts 525 So 1241 2d 1245 La App l Cir 1988 Louisiana Code of Criminal Precedure article 894 1 sets forth the factors for the trial court to consider when imposing sentence While the entire checklist of La Code Crim P art 894 need not be recited the recard 1 must reflect the trial court adequately considered the criteria State v Brown 2231 2002 La App 1 Cir 5849 So 566 569 03 9 2d The articulation of the factual basis for a sentence is the goal of La Code Crim P art 894 not rigid or mechanical compliance with its provisions Where 1 the record clearly shows an adequate factual basis for the sentence imposed 11 remand is unnecessary even where there has not been full compliance with La Code Crim P art 894 State v L 419 So 475 478 La 1982 The 1 anclos d trial judge should review the defendant personal history his prior criminal s record the seriousness of the offense the lzkeiihood that he will commit another crime and his potential for rehabilitation through correctional services other than confinement See State v Jones 398 S 1049 1051 iLa 1981 2d 52 The defendant complains that the trial couz failed to order a presentence investigation report PSI The defendant contends that absent a PSI or any identifiable basis for the trial court observations the court lacks the appropriate s criteria by which to measure whether the sentences imposed were excessive The defendant made no assertion in his written motion to reconsider sentence regarding the trial court decision not to order a PSI The defendant failure to include this s s specific ground in his motion to reconsider sentence precludes his urging it for the first time on appeal See La Code Crim P art 881 The ordering of a PSI E 1 lies within the discretion of the trial court See La Code Crim P art 875 1 A State v Johnson 604 So 6 698 La App 1 Cir 1992 writ denied 610 2d 5 2d So 795 La 1993 Moreover it is clear in its reasons for the sentence that the trial court considered La Code Crim P art 894 in arriving at appropriate 1 sentences After having considered the sentencing guidelines Code of Criminal Procedure Article 894 based on the evidence heard during 1 the trial and the fact that you are a prior convicted felon I fmd that there is an undue risk that if I gave you a suspended sentence or probation that there a very good chance that you would commit s another crime I further find that you are in need of correctional treatment or a custodial environment that can be provided most effectively by you being committed to an institution Furthermore any sentence less than the maximum sentence under 14 which is 12 years at hard 62 labor any lesser would deprecate the seriousness ofthis offense Again the Court has considered the sentencing guidelines 12 I pursuant to Code of Criminal Procedure Article 894 and feels that 1 any lesser sentence would depreGate the seriousness ofhis crime Following sentencing a revocation hearing was held The probation officer testified that the basis of the revocati vas the instant convictions of the on defendant The original sentence imposed for an uncpecified crime was five years with all suspended but one year The trial court revoked the defendant sprobation and made any unserved portion of the sentence executory The defendant suggests that his two sentences should have run concurrently since the statutory presumption for sentencing a person for acts constituting parts of a common scheme or plan is to have the sentences run concurrently Concurrent rather than consecutive sentences are the general rule for multiple convictions arising out of a single course of criminal conduct at least for a defendant without a prior criminal record See La Code Crim P art 883 However even if convictions arise out of a single course of conduct consecutive sentences are not necessarily excessive other factors must be taken into consideration in making this determination For instance consecutive sentences are justified where an offender poses an unusual risk to public safety State v Breland 97 La App 1 St 2880 Cir ll 722 So 51 53 98 6 2d In the instant matter the defendant criminal conduct of illegally entering a s s woman home and attempting to rape her makes him a clear threat to the safety of the community Under these circumstances the imposition of consecutive sentences did not render these sentences excessive See State v Crocker 551 2d So 707 715 La App 1 St Cir 1989 The sentences imposed for these offenses were within the statutory limits and did not constitute an abuse of discretion by the trial court See State v Palmer 97 La App l Cir 12 706 So 0174 97 29 2d 156 160 Regarding the imposition of maximum sentences for each conviction this 13 I court has stated that maximum sentences permitted under statute may be imposed only for the most serious offenses and the worst offenders or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality State v Hilton 99 La App l 3 764 So 1027 1239 Cir st 31i00 2d 1037 writ denied 2000 La 3 786 So 113 The defendant has a 0958 O1 9 2d prior conviction for forcible rape and the instant conviction for attempted aggravated rape The defendant had also recently committed an unspecified crime for which he received a five sentence As noted he poses an unusual risk to year the public safety The trial court adequately considered the factors set forth in Article 894 1 Considering the trial court careful review of the circumstances and the nature of s the crimes we find no abuse of discretion by the trial court The trial court provided sufficient justification for imposing the maximtun sentences See State v Mickey 604 So 675 679 La App 1 Cir 1992 writ denied 610 So 2d sY 2d 795 La 1993 disproportionate to Accordingly the severity the sentences imposed of the offenses and are not therefore grossly are not unconstitutionally excessive For the foregoing reasons the defendant convictions and sentences are s affirmed CONVICTIONS AND SENTENCES AFFIRMED 14
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