State Of Louisiana VS Dino Jay Schwertz
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 KA 2183 STATE OF LOUISIANA VERSUS DINO JAY SCHWERTZ Judgment Rendered MAY 72010 On Appeal from the Twenty Second Judicial District Court In and for the Parish of St Tammany State of Louisiana Docket No 449563 Honorable William J Crain Judge Presiding Walter P Reed Counsel for Appellee District Attorney Covington Louisiana By State of Louisiana Kathryn W Landry Baton Rouge Louisiana Jane L Beebe Counsel for Defendant Appellant New Orleans Louisiana Dino Jay Schwertz B RE DOWNING GA DRY AND McCLENDON JJ 1 MCCLENDON J Defendant Dino Jay Schwertz was charged by grand jury indictment with three counts of aggravated rape counts 1 3 in violation of LSAR 14 and S 42 one count of molestation of a juvenile count 4 in violation of LSAR 14 S 81 2 He pleaded not guilty Prior to trial counts 1 and 4 of the indictment were severed from the remaining charges Defendant was tried by a jury on counts 1 and 4 and was convicted as charged imprisonment at hard labor without the Defendant was sentenced to life benefit of probation parole or suspension of sentence on count 1 and twenty years on count 4 The trial court ordered that the sentences be served consecutively The state filed a multiple offender bill of information seeking to have defendant adjudicated and sentenced as a habitual offender The trial court found defendant to be a second felony habitual offender and resentenced him to twenty years imprisonment at hard labor on count 4 The court again ordered that the sentence be served consecutive to the life sentence imposed on count 1 Defendant now appeals urging the following five assignments in a counseled brief 1 The trial court erred in denying defendant challenges for cause of s jurors Ms Primeaux and Mr Mosbey forcing the defense to use a peremptory challenge on Ms Primeaux and in the case of Mr Mosbey forcing the defense to have him on the jury 2 The trial court erred in failing to find that the state violated the discovery rules and in allowing the state to repeatedly use a tape recorded statement of the alleged victim that they had not provided to the defense nor made the defense specifically aware of prior to trial 3 The trial court erred in denying the motion to recuse and the motion for change of venue 4 The evidence was insufficient to sustain the jury verdicts s 5 The trial court imposed excessive consecutive sentences In a separate pro se brief defendant again challenges the sufficiency of the s state evidence in support of the convictions Finding no merit in the assigned errors we affirm defendant convictions habitual offender adjudication and s sentences 2 FACTS In March 2008 N an eight yearold third grader at Abney Elementary C School Abney in Slidell Louisiana advised his mother that the janitor at his school touched him inappropriately in the school bathroom immediately reported the matter to the police s C N mother In an interview with Bethany Case of the Children sAdvocacy Center N stated defendant touched his penis C and his buttocks with his hand In March 2008 another incident of sexual abuse by the janitor at Abney Elementary School was reported B J a special education student told his father that the janitor touched him inappropriately inside the school restroom s B J father tape recorded the verbal disclosure and immediately contacted the police to report the matter J later told Jobeth Rickles a forensic interviewer B at the Children Advocacy Center that the janitor anally raped him inside the s school restroom on more than one occasion Defendant worked as a janitor at Abney Elementary School In connection with the police investigation of the sexual abuse allegations both C N and J identified defendant from a photographic lineup as the janitor B who sexually abused them Defendant was arrested and charged with the aggravated rape of J and molestation of N B C DENIAL OF CHALLENGES FOR CAUSE In his first assignment of error defendant contends that the trial court abused its discretion in denying the defense challenges for cause on prospective juror Linda Primeaux and juror Brian Mosbey He argues that the trial court s erroneous denial of his cause challenges causing him to expend a peremptory challenge to exclude Ms Primeaux and to accept Mr Mosbey as a juror on the case warrants reversal of his convictions and sentences Both the federal and state constitutions provide a criminal defendant the right to be tried by an impartial jury of his peers U Const amend VI LSA S In accordance with LSA R 46 the victims herein are referenced only by their initials S 1844W 3 Const art 1 16 Louisiana Code of Criminal Procedure article 797 provides the grounds for challenges for cause The article states in pertinent part The state or the defendant may challenge a juror for cause on the ground that 2 The juror is not impartial whatever the cause of his partiality An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror if he declares and the court is satisfied that he can render an impartial verdict according to the law and the evidence 4 the court The juror will not accept the law as given to him by When a defendant exhausts all of his peremptory challenges a trial s court ruling that erroneously denies a defendant challenge for cause deprives s said defendant of his constitutional and statutory rights and therefore requires reversal See State v Jacobs 99 1659 p 5 La 6 789 So 1280 01 29 2d 1284 State v Robertson 922660 p 3 La 1 630 So 1278 1280 94 14 2d 81 To prove that there has been error warranting the reversal of the convictions and sentences defendant need only show 1 the erroneous denial of a challenge for cause and 2 the use of all of his peremptory challenges See State v Lutcher 96 2378 p 5 La 1 Cir 9 700 So 961 966 App 97 19 2d writ denied 97 2537 La 2709 So 731 98 6 2d A refusal by a trial court to excuse a prospective juror on the ground that he is not impartial is not an abuse of discretion where after further inquiry or instruction he has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence State v Copeland 530 2d So 526 534 La 1988 cert denied 489 U 1091 109 S 1558 103 S Ct 2d Ed L 860 1989 However the trial court should sustain a challenge for cause despite a prospective juror professed impartiality if his answers reveal s facts from which bias prejudice or inability to follow the law may be reasonably implied State v Robertson 92 2660 at p 3 630 So at 1281 A trial court 2d is vested with broad discretion in ruling on challenges for cause and its ruling 0 will be reversed only when a review of the entire voir dire reveals the court abused its discretion State v Jacobs 99 1659 at p 5 789 So at 1284 2d see also State v Parfait 961814 p 4 La 1 Cir 5 693 So App 97 9 2d 1232 1236 writ denied 971347 La 10 703 So 20 97 31 2d The record before us reflects that defendant peremptory challenges in selecting the jury used all twelve of his Thus the central issue in this assignment is whether the trial judge refusal to remove the jurors at issue was s an abuse of discretion Linda Primeaux Defendant contends that Ms Primeaux should have been excluded for cause because her voir dire responses indicated that she would have difficulty affording defendant the presumption of innocence based on information she learned from the pretrial publicity surrounding the case Defendant argues that although the trial court attempted to rehabilitate Ms Primeaux based upon her voir dire responses as a whole Ms Primeaux should have been excluded for cause During the voir dire of the first panel of prospective jurors the trial court asked if the jurors had heard anything about the case In response Ms Primeaux admitted she had heard some general information regarding the case However she indicated that her knowledge of the case was very limited She had only heard that the perpetrator was a janitor at the school where the incidents occurred When the trial court asked if Ms Primeaux had already formed an opinion regarding defendant guilt or innocence she replied n s ot really But whenever you hear things like that there is a reason why someone is accused even though I know they are supposed to be innocent until proven guilty On appeal defendant takes issue with this particular response He argues that the response showed that Ms Primeaux would not apply the appropriate burden of proof and she would have difficulty affording defendant the presumption of innocence He notes that in response to the trial court s 5 rehabilitation efforts Ms Primeaux only managed a weak think so I regarding her willingness to afford defendant the presumption of innocence The record before us reflects that after her initial response regarding the reason why individuals are accused of crimes the trial court asked Ms Primeaux if she believed that innocent persons are sometimes charged with crimes responded o yes h She The court then asked the prospective juror if she believed that a person charged with a crime should be considered innocent until proven guilty She again responded affirmatively The court went on to ask Ms Primeaux if she could set aside anything she heard about the case and decide the matter on the evidence presented She stated I think I could Later when defense counsel questioned Ms Primeaux regarding whether it was going to be difficult for her to afford defendant the presumption of innocence she stated maybe so In her subsequent voir dire responses Ms Primeaux suggested that in deciding the case she would require proof of guilt from the state or proof of innocence from the defense At this point the trial court thoroughly explained the state burden of proof and presumption of innocence s to Ms Primeaux The following exchange occurred THE COURT And I need to make sure you understand when you say that they would have to prove that he not guilty The State bears the s burden and I will instruct the jury as to the burden of proof that the State bears the burden to prove each and every element of the crime against this defendant beyond a reasonable doubt If the State proved each and every element beyond a reasonable doubt then the law says that that they are guilty if they do not prove each and every element beyond a reasonable doubt do you as a juror feel that you could find the defendant not guilty MS PRIMEAUX Yes THE COURT Okay So you understand that it is the State responsibility s to convince you beyond a reasonable doubt that he is guilty MS PRIMEAUX Right THE COURT Okay And if they don do that would you still hold the t defense to some burden at that point if the State does not convince you MS PRIMEAUX No because they haven convinced me yet t In reviewing all of Ms Primeaux voir dire responses particularly the s aforementioned exchange we note that although she initially indicated that she would expect defendant to prove his innocence after being instructed on the appropriate burden of proof and the presumption of innocence Ms Primeaux indicated that she would not require any proof from defendant if the state failed to meet is burden of proving all of the elements of the offense beyond a reasonable doubt Therefore despite defendant contention to the contrary we s do not find that Ms Primeaux voir dire responses indicate that she would not s afford defendant the presumption of innocence Therefore we find no abuse of discretion in the trial court ruling denying the challenge for cause of Ms s Primeaux Brian mosbev Defendant further asserts that juror Brian Mosbey should also have been excluded for cause because he revealed that he had been exposed to pretrial publicity about the case and admitted it would be hard and difficult for him to remain fair and impartial Specifically defendant points to the portion of the voir dire where in response to the court inquiry regarding whether he formed any s opinions regarding defendant guilt or innocence Mr Mosbey stated I have s two young children so I definitely probably do the guilty thing before innocent And I apologize for that Defendant claims this response clearly illustrates prejudice and partiality from which Mr Mosbey was never successfully rehabilitated Our review of the record reveals that during the voir dire defense counsel challenged Mr Mosbey for cause based upon the fact that his wife is a teacher 7 and because he indicated it would be an extra burden for him In denying the cause challenge the trial court noted Most of them expressed some feelings about their sensitivity to it because of their own children and I don think that t disqualifies them I do recall Mr Mosbey I think he is the one that lives next door to Mr Fontenot But I do remember specifically several times him saying that if he was selected as a juror that he knew that it was his duty to be fair and impartial and that he could set those feelings aside Upon reviewing the entire voir dire transcript we find that although Mr Mosbey initially rehabilitated showed partiality in his responses he was successfully When the trial court asked Mr Mosbey if he believed that defendant was guilty he replied I can say that sir That prejudging Mr t s Mosbey admitted that the case was more sensitive to him because he has two young daughters in the public school system but he indicated that he could sit as a fair and impartial juror if chosen to do so Mr Mosbey explained that although his familial situation would make remaining impartial difficult it would not render it impossible Mr Mosbey demonstrated an understanding of what is required of a juror and indicated he was willing to follow the law if selected Throughout his voir dire responses Mr Mosbey acknowledged that defendant has rights and is presumed innocent while the state carries the burden of proving their case beyond a reasonable doubt Mr Mosbey indicated without hesitation that he would set aside all of his personal feelings and decide the case based on the state evidence He would afford defendant the presumption s of innocence and hold the state to its burden of proof Considering the foregoing we find no error or abuse of discretion in the trial court denial of this s challenge for cause This assignment of error lacks merit DISCOVERY VIOLATION In this assignment of error defendant asserts the state violated the rules of discovery by not specifically informing the defense of the statement made by 0 B J and tape recorded by his father when the abuse was initially disclosed and in failing to provide the defense with a copy of said statement prior to trial He argues that as a result of the state failure to comply with the rules of s discovery the statement in question should have been deemed inadmissible at the trial Although he notes that the state provided openfile discovery defendant argues that openfile discovery alone does not absolve the state of its duty to inform the defense of the evidence against the defendant In response the state notes that in compliance with defendant discovery request s the state copied its current file materials and provided the copies to the defense According to the state the recording in question was referenced in the copies of the file materials provided to defense counsel The state further advised the defense that all physical evidence was available upon request for inspection Thus the state contends that defense counsel failure to inspect the evidence in s question does not constitute a discovery violation and it does not render the evidence inadmissible The purpose of pretrial discovery procedures is to eliminate unwarranted prejudice to a defendant that could arise from surprise testimony State v Mitchell 412 So 1042 1044 La 1982 Discovery procedures enable a 2d defendant to properly assess the strength of the state case against him in order s to prepare his defense State v Roy 496 So 583 590 La 1 Cir 2d App 1986 writ denied 501 So 228 La 1987 2d If a defendant is lulled into a misapprehension of the strength of the state case by the failure to fully s disclose such a prejudice may constitute reversible error State v Ray 423 2d So 1116 1118 La 1982 On appeal defendant does not deny that the statement in question which was introduced at the trial in connection with J testimony was mentioned in s B the discovery response provided by the state Instead he complains that the statement in question was mentioned only once or twice in the 700 1000 pages provided to the defense He argues that h the reference among that iding N documentation is ineffective notice of the statement and that providing notice of the statement in this manner was token compliance only In denying defendant discovery violation claim the trial court reasoned s The objection was to the use of the apparent microcassette tape recording that was taken of B His statement the tape was recorded by his father at the time that the alleged incident was disclosed to his father at his home That microcassette according to the discovery that was produced was delivered over to the Slidell Police Department specifically to Detective Mistretta on March 10th of 2008 There are several references to the delivery of the microcassette tape to the Slidell Police Department I understand that discovery was requested of the State under Code of Criminal Procedure Article 718 that in response to that discovery request that the State produced some 700 plus documents in their file and it also advised that they were making open file discovery available to the defendant I find that the tape was sufficiently identified in the response to discovery and find that the State complied to the extent m requested and I not going to exclude it based on that fact Upon reviewing the record and evidence we find no error by the trial court in its ruling on the discovery objection by the defense The record reflects that in response to defendant initial discovery motion the state agreed to s provide openfile discovery and provided a voluminous discovery response package Thus defendant was provided access to any and all evidence in the s state file As the trial court noted the statement was referenced several times in the documents provided by the state A Case Resume document in the state s discovery response clearly refers to the statement in question and notes that it was turned over to the police by J father An evidence receipt included in s B the discovery response also lists the microcassette tape as evidence collected in connection with the case Therefore it is clear that the state fulfilled its obligation of notifying defendant of the existence of the taped statement It was then incumbent on defendant to request access to the tape for review in preparation for trial Furthermore even if a discovery violation occurred it would not constitute reversible error without actual prejudice to the defendant case See State v s 10 Francis 00 2800 pp 5 6 La 1 Cir 9 809 So 1029 1033 App 01 28 2d In J s B Defendant has failed to demonstrate any prejudice to his case interview at the Children Advocacy Center he stated that his father recorded s the initial disclosure of the abuse The Case Resume document provided with the state discovery response also provides details regarding the content of the s statement It is noted that in his initial disclosure J only claimed that the B janitor fondled his genitals and anus Thus it is clear that even without a copy of the actual taped recording defendant was not lulled into a misapprehension of the strength of the state case s This assignment of error lacks merit DENIAL OF MOTION TO RECUSE AND MOTION FOR CHANGE OF VENUE In this assignment of error defendant asserts the trial court erred in denying his motion for a change of venue 2 Specifically defendant contends that the pretrial publicity surrounding the crime in the local media made it impossible for him to receive a fair trial in southeast Louisiana Louisiana Code of Criminal Procedure article 622 provides A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence or that for any other reason a fair and impartial trial cannot be obtained in the parish where the prosecution is pending In deciding whether to grant a change of venue the court shall consider whether the prejudice the influence or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial A defendant is guaranteed an impartial jury and a fair trial art I LSAConst 16 Accordingly a defendant is entitled to a change of venue when he can establish inability to obtain an impartial jury or a fair trial in the original venue State v Morris 99 3075 pp 7 8 La 1 Cir 11 770 So App 00 3 2d 908 915 writ denied 00 3293 La 10 799 So 496 cert denied 535 01 12 2d S U 934 122 S 1311 152 L 220 2002 Ct 2d Ed Absent the unusual Z Although this assignment of error specifies motion to recuse and motion for change of venue sbrief is devoid of any argument regarding any recusal motion defendant s 11 circumstance where the trial atmosphere has been entirely corrupted by press coverage or is lacking in the solemnity and sobriety to which a defendant is entitled see State v David 425 So 1241 1246 La 1983 the burden is on 2d the defendant to show actual prejudice State v Morris 993075 at p 8 770 2d So at 915 See also State v Goodson 412 So 1077 1080 La 1982 2d Extensive knowledge in the community of either the crimes or the defendant is not sufficient by itself to render a trial unconstitutionally unfair State v Hart 960697 p 6 La 3 691 So 651 655 The defendant must prove 97 7 2d more than mere public knowledge of facts surrounding the offense to be entitled to have his trial moved to another parish State v Comeaux 514 So 84 2d 90 La 1987 A defendant is not entitled to a jury that is entirely ignorant of his case and he cannot meet his burden of proof on a motion for change of venue by merely showing a general level of public awareness of the case State v Thompson 516 So 349 352 La 1987 cert denied 488 U 871 109 2d S Ct S 180 102 L 149 1988 2d Ed Whether the defendant has made the requisite showing of actual prejudice is a question addressed to the trial court s sound discretion the exercise of which will not be disturbed on appeal absent an affirmative showing of error and abuse of discretion Morris 993075 at p 8 770 So at 915 State v Hoffman 98 3118 p 5 La 4 768 So 2d 00 11 2d 542 552 cert denied 531 U 946 121 S 345 148 L 277 2000 S Ct 2d Ed Factors to consider in determining whether actual prejudice exists warranting a change of venue include 1 the nature of the pretrial publicity and the particular degree to which it has circulated in the community 2 the connection of governmental officials with the release of the publicity 3 the length of time between the dissemination of the publicity and the trial 4 the severity and notoriety of the offense 5 the area from which the jury is to be drawn 6 other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant and 7 any factors likely to affect the candor and veracity of the prospective jurors on voir dire State v Bell 315 So 307 311 La 1975 2d 12 In the instant case defendant presented a motion for change of venue on the first day of trial When the court asked if the defense wanted to be heard on the motion counsel for defendant replied No Your Honor we would expect that we would try to pick a jury We just have that in case we can Or if we t run into problems we may point our motion out to the court The court noted that the motion would remain a pending motion that you can assert if and when it is appropriate to do so The trial court prosecutors and defense counsel conducted an extensive thorough voir dire of two panels of 20 prospective jurors Each juror was asked by the trial court whether they had heard or read anything about the case Several of the prospective jurors indicated a vague familiarity with the case Eventually a jury of twelve with two alternates was picked from the two panels The change of venue motion was not mentioned during the voir dire At the conclusion of the jury selection the trial court asked if the defense intended to assert the venue motion and counsel noted that the jury had already been picked but in an abundance of caution counsel requested that the court rule on the motion since it was still pending The court ruled The defense filed a motion to change venue in this matter based on pretrial publicity I deferred ruling on that motion until after we made an attempt to pick a jury And in fact we selected a jury of twelve and two alternates fourteen people out of two panels of twenty so I going to deny the motion for change of m venue There was no further discussion of the change of venue motion We have thoroughly reviewed the change of venue motion and the entire jury selection transcript There was no argument or evidence introduced in connection with the venue motion The record reveals that defendant failed to prove that a change of venue was necessary in this case While the voir dire responses showed that there was general knowledge within the community about the case defendant failed to present sufficient evidence of an overriding prejudice within the community collective mind that prevented him from s receiving a fair trial As such the trial court did not err or abuse its discretion in 13 denying the motion for change of venue See State v Hulls 950541 pp 15 16 La 1 Cir 5 676 So 160 171 72 writ denied 96 1734 La App 96 29 2d 97 6 1 685 So 126 This assignment of error lacks merit 2d SUFFICIENCY OF THE In his fourth counseled assignment of error and his pro se brief defendant argues that the evidence presented by the state is insufficient to support the convictions because the only evidence of the alleged offenses came in the form of testimony of the two minor victims whose versions of the events varied each time they were told Defendant argues that the testimony of both victims was unbelievable and insufficient to meet the state burden of proving s his guilt beyond a reasonable doubt In response the state asserts there was ample evidence presented at defendant strial to support the convictions The standard for reviewing the sufficiency of evidence is set forth in Jackson v Virginia 443 U 307 99 S 2781 61 L 560 1979 see S Ct 2d Ed also LSA C art P Cr 821 Under Jackson the standard for testing the sufficiency of evidence requires that a conviction be based on proof sufficient for any rational trier of fact viewing the evidence in the light most favorable to the prosecution to find the essential elements of the crime beyond a reasonable doubt Jackson 443 U at 319 99 S at 2789 State v James 022079 S Ct p 3 La 1 Cir 5 849 So 574 579 App 03 9 2d This standard of review in particular the requirement that the evidence be viewed in the light most favorable to the prosecution obliges the reviewing court to defer to the actual trier of fact rational credibility calls evidence weighing s and inference drawing See State v Mussall 523 So 1305 130811 La 2d 1988 Thus the reviewing court is not permitted to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence See State v Burge 515 So 494 505 La 1 Cir 1987 writ 2d App denied 532 So 112 La 1988 2d When there is conflicting testimony about factual matters the resolution of which depends upon a determination of the credibility of the witnesses the 14 matter is one of the weight of the evidence not its sufficiency State v Woods 00 2147 p 5 La 1 Cir 5 787 So 1083 1088 writ App 01 11 2d denied 01 2389 La 6 817 So 1153 As the trier of fact the jury was 02 14 2d free to accept or reject in whole or in part the testimony of any witness See State v Johnson 99 0385 p 9 La 1 Cir 11 745 So 217 223 App 99 5 2d writ denied 00 0829 La 11 774 So 971 This court will not assess 00 13 2d the credibility of witnesses or reweigh the evidence to overturn a fact finder s determination of guilt State v Marshall 99 2884 p 5 La 1 Cir App 00 8 11 808 So 376 380 2d The crime of aggravated rape is defined in LSA R 14 which S 42 provides in part as follows A Aggravated rape is a rape committed where the anal oral or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances 4 When the victim is under the age of thirteen years Lack of knowledge of the victim age shall not be a defense s Rape is the act of anal oral or vaginal sexual intercourse with a male or female person committed without the person lawful consent s LSA R S 41A 14 Emission is not necessary and any sexual penetration when the rape involves vaginal or anal intercourse however slight is sufficient to complete the crime LSA R 14 S 416 Louisiana Revised Statutes 14 defines molestation of a juvenile as 2A 81 Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen where there is an age difference of greater than two years between the two persons with the intention of arousing or gratifying the sexual desires of either person by the use of force violence duress menace psychological intimidation threat of great bodily harm or by the use of influence by virtue of a position of control or supervision over the juvenile Lack of knowledge of the juvenile s age shall not be a defense At the trial of this matter M N mother testified she was at home C C s looking at an article on the internet about defendant when N walked in the C 15 room Upon seeing defendant picture on the computer screen N started s C trembling and became very terrified C N told his mother that defendant was the bad man at school who hurt him N told his mother defendant touched C him on his genitals and anus C N testified that one day he was using the secondgrade restroom when defendant entered and fondled his genitals inside the school restroom According to N his pants were still down a little and defendant used his hands C to touch N on his bare skin N stated he pulled away from defendant and C C ran out of the restroom C N claimed he returned to his classroom and did not report the incident because defendant told him not to tell C N eventually disclosed defendant inappropriate behavior to his mother and he was taken to s the Children Advocacy Center to be interviewed The videotaped interview was s played for the jury at trial In the interview N told Bethany Case the forensic C interviewer that defendant touched his penis and anus several times C N demonstrated where defendant had touched him using an anatomical drawing He claimed defendant touched him on top of his clothing Later when questioned regarding the inconsistencies in his reports of the abuse N C admitted that he initially told Ms Case that defendant touched him on top of his clothing because he was embarrassed C N identified defendant in open court as the school janitor who fondled him He also testified that he previously identified defendant in a photographic lineup provided by the investigating officers B J testified and provided details regarding several incidents of abuse by defendant B J claimed that on at least two separate occasions defendant approached him in the restroom forced him into a stall and pulled his pants down According to J defendant inserted his penis into his rectum and B started going in and out On both occasions defendant threatened to kill J if B he told anyone B J explained that he never told anyone about the rapes because he was afraid that defendant would kill him 16 B J explained that he finally told his father about the abuse after the school sent home a note advising parents to speak with their children regarding possible sexual abuse at school He explained that he did not tell his father everything at first The tape recorded statement which was played at the trial revealed that J initially claimed that defendant only fondled his genitals He B did not report any sexual penetration or rape J explained that he was afraid B to provide full details of the abuse because he believed defendant would come and kill him In his initial interview at the Children Advocacy Center J told JoBeth s B Rickles that defendant forced him into a stall inside the restroom and touched him under his clothing in personal places He claimed that defendant used only his hand At this time J indicated that the abuse occurred only once and no B one else was present In a subsequent interview J told Ms Rickles he came back to talk to B her because he had more to tell He advised that in addition to the initial incident there were two other incidents wherein defendant put his penis inside s B J anus After each of the anal rapes defendant threatened to kill J if he B ever told anyone s B J trial testimony was consistent with this report of two anal rapes It is well settled that if found to be credible the testimony of the victim of a sex offense alone is sufficient to establish the elements of the offense even where the state does not introduce medical scientific or physical evidence to prove the commission of the offense by the defendant See State v Hampton 972096 p 3 La 1 Cir 6 716 So 417 418 App 98 29 2d Therefore the victims testimony which the jury obviously found credible was sufficient to prove all elements of aggravated rape and molestation of a juvenile Defendant presented testimony from Kathleen Katsorchis the principal of Abney Elementary She testified that defendant worked as a long term sub custodian at Abney Elementary According to Katsorchis the school practice is to use the buddy system or teacher escort system in allowing students to use 17 restroom facilities She further testified that it is school policy that all restroom doors are to remain open It is also school policy that janitors are not to remain in the restroom if a student enters If the janitor is in the restroom he is to place a sign or cleaning cone outside the restroom to indicate that it is being cleaned Katsorchis testified that when defendant first started working at Abney she received a report indicating that defendant failed to follow policy and leave the restroom when a student was present She explained that she addressed the situation with defendant and had no further problems of this sort Katsorchis testified that she did not receive any complaints from students regarding defendant in the 2008 school year According to Katsorchis because there is a classroom that shares a wall with the restroom where the sexual abuse allegedly occurred and since the policy mandates that the doors remain opened any noise inside the restroom is usually heard by a teacher or other faculty member Lisa Nanias another custodian at Abney Elementary testified on behalf of the defense She explained that the school policy mandated that the restroom doors remain opened She also testified that the janitors were aware that they were not to be in the restrooms when students were present She claimed she never observed defendant violate the policy nor did she know of any student complaints regarding defendant Nanias further testified regarding the structure of the school building She explained that the building is a modular type with thin walls She believed that if a child was to scream or yell there was no reason the sound would not be heard Defendant did not testify at the trial In the present case the jury obviously chose to believe the testimony of the young victims regarding defendant actions s Although there were some inconsistencies between the young victims trial testimony and the pretrial statements to their parents the police and the Children Advocacy Center s interviewers the jury determined that the victims progressively disclosed the incidents of abuse and that the incidents described in their trial testimony are IM what actually occurred Simply because the defense witness suggested the incidents could not have happened the way the children claimed children are not typically alone in the restroom this does not automatically render the testimony provided by the child victims incredible make a credibility determination The jury was required to The jury obviously chose to believe the victims The fact that the record contains evidence that conflicts with testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient See State v Busch 515 So 605 609 La 1 Cir 2d App 1987 Therefore after carefully reviewing the record in this case we find that any rational trier of fact viewing the evidence in the light most favorable to the prosecution could have concluded that the state proved beyond a reasonable doubt that defendant committed the aggravated rape of J and molestation of B C N a juvenile This assignment of error lacks merit SENTENCE In his final assignment of error defendant argues that the trial court erred in ordering that his sentences be served consecutively versus concurrently Defendant claims that the consecutive sentences are unconstitutionally excessive and amount to dog piling the punishments The state argues that the trial court properly exercised its discretion under LSAC art 883 in ordering P Cr consecutive sentences under the circumstances presented in this case We note that defendant sexcessive sentence assignment of error does not appear to contest the length of either individual sentence as excessive Instead s defendant argument on excessiveness focuses on the consecutive rather than concurrent nature of these sentences The imposition of consecutive sentences is governed by LSAC art P Cr 883 which provides in pertinent part If the defendant is convicted of two or more offenses based on the same act or transaction or constituting parts of a common scheme or plan the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively Other sentences of imprisonment shall be 19 served consecutively unless the court expressly directs that some or all of them be served concurrently Here the crimes consisted of two separate offenses they affected different victims at different times and at different locations The two incidents did not arise out of a single transaction nor were they part of a common scheme or plan Therefore under LSAC art 883 defendant sentences were to P Cr s be served consecutively unless the court expressly directed that some or all of them be served concurrently We find no abuse of discretion in the trial court s order that the sentences are to be served consecutively Defendant an adult figure sexually abused these young boys at their elementary school these circumstances the consecutive sentences are neither Under grossly disproportionate to the severity of the offenses committed nor shocking to the sense of justice The assigned error lacks merit REVIEW FOR ERROR In his brief defendant asks that this court examine the record for error under LSAC art 920 This court routinely reviews the record for such P Cr 2 error whether or not such a request is made by a defendant Under LSAC P Cr art 920 we are limited in our review to errors discoverable by a mere 2 inspection of the pleadings and proceedings without inspection of the evidence After a careful review of the record in these proceedings we have found a patent sentencing error At the pertinent time herein LSAR 2E 81 14 S provided that wcommits the crime of molestation of a juvenile when hoever the victim is under the age of thirteen years shall be imprisoned at hard labor for not less than twenty years nor more than life imprisonment five At least five twenty years of the sentence imposed shall be served without benefit of probation parole or suspension of sentence Under the habitual offender law LSAR 15 provides that i the second felony is such that upon S 529 a 1 1A f a first conviction the offender would be punishable by imprisonment for any term less than his natural life then the sentence to imprisonment shall be for a 20 determinate term not less than onehalf the longest term and not more than twice the longest term prescribed for a first conviction Therefore defendant s year twenty sentence as a second felony habitual offender for the molestation of N a child under thirteen years old is illegally lenient However since the C sentence is not inherently prejudicial to defendant and neither the state nor defendant has raised this sentencing issue on appeal we decline to correct this error See State v Price 05 2514 p 22 La 1 Cir 12 952 So App 06 28 2d 112 12425 en banc writ denied 070130 La 2976 So 1277 08 22 2d For the foregoing reasons we affirm defendant convictions habitual s offender adjudication and sentences CONVICTIONS HABITUAL OFFENDER ADJUDICATION AND SENTENCES AFFIRMED 3 We further note that defendant sentence on count 1 is life imprisonment at hard labor s without the benefit of probation parole or suspension of sentence and remanding this matter to correct the illegally lenient sentence on count 4 would serve little purpose other than expending judicial resources 21
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