State Of Louisiana VS Harley White
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NOT DESIGNATED FOR PUBLICATION STA E QF LOUISIANA COITR" OF APPEAL. I' FIRST CIIZCUI I' 1'' O. 2013 I. A ( 6' 7 STATE OF LOUISIANA y VERSUS HARLEY WHITE Judgment Rendered: EB t $ 6' On Appeal from the 22nd Judicial District Court, In and far the Parish of St, Tammany, State of Louisiana Trial Court No. 500307 The Honarable William J. Knight, Judge Presiding Walter P. Reed, Attorneys for Plaintiff/Appellee, District State of Louisiana Attorney, Covington, Louisiana and Kathryn W. Landry Baton Rouge, Louisiana Lieu T. Vo Clark Mandeville, Louisiana Attorney for DefendantfAppellant, Harley VVhite BEFORE: WHIPPLE, C. J., WELCH, AND CRAIN, JJ. CRAIN, J. The defendant, Harley White, was charged by bill of information with one count of sexual battery, a violation oi Louisiana Revised Statute 14: 43. 1. 1 He pled not guilty and, following a jury trial, was fc und guilty as charged. After denying the defendant' s motions for postverdict judgment of acquittal and new trial, the trial court sentenced the defendaiat to forty years at hard labor, with the first twenty-five years to be served without the benefit of probation, parole, or of suspension sentence. The trial court denied the defendant' s motion to reconsider sentence. The State subsequently filed a multiple offender bill of information? Following a hearing, the defendant was adjudicated a second- felony habitual offender. The trial court vacated the forty-year sentence and resentenced the defendant to seventy-five years at hard labor, with the first twenty- five years to be served without the benefit of probation, paroie, or suspension of sentence. 3 The defendant now appeals, contending that the evidence was insufficient to support his conviction and therefore the trial court should have granted his motion for post- verdict judgment of acquittal, and that the sentence is excessive. We affirm the conviction and the habituaY offender ajudication. We vacate the defendant' s habitual offender sentence and remand for resentencing. The bill of information also charged the defendant with one count of simple kidnapping, a violation of Louisiana Revised Statute 1A: 45. That count vas severed prior to trial. Z The defendant' s predicate offense was set forth as a November 7, 1979 conviction for aggravated rape in the 228th District Court for the County of Harris, Texas, under docket number 301, 233. 3 or The minutes indicate that the sentence was im P osed without benefit of p arole probation, , of sentence. However, the sentencing transcript reflects that the trial court suspension imposed the sentence with only the first twenty- five years to be served without benefit of parole, probation, or suspension of sentence. Where a discrepancy exists between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So. 2d 732, 734 ( La. 1983). 2 FACTS On October 21, 2010, eight-year- old N.T. was walking with friends when he was lured to the defendant' s home by the d fendant' s promise of giving N.T. The defendant then money. grabbed snto tlhe defendant brough? N;T. .' N.T. Iiving room While the defendant wus in the clothes. with escape. As he anyone, [ I' ll] kill and ± him into the house. The uched N.T.' s pEnis over his atiiroom, th child. en who had been r including his brother; entered the house and helped N.T. N.T., walking and pa! lled was running home, N.T. heard the defendant say, " If you tell you." N.T. did not tell his parents. One of the children reported the incident to his mother, who called N.T.' s parents. N.T.' s parents reported the incident to the Slidell Police Department and notified officers that they had recently received notice that a registered sex offender was living in the neighborhood. Sergeant Brian Nicaud with the Slidell Police Department investigated the incident. He spoke with N.T.' s father and set up an appointment for N.T. to be interviewed at the ChildrEn' s Advocacy Center ( CAC). In the interview, N.T. consistently maintained that he was touched over his clothes on his private and was able to get away because his friends came in and got him. After N.T.' s interview, Sergeant Nicaud showed N.T. a six-person photographic lineup. N.T. did not want to look at the photographs and appeared visibly which shaken. one of In an attempt to put him at ease, Sergeant Nicaud asked N.T. the photographs was not the person who grabbed him. N.T. eliminated five of the six photographs. The remaining photograph was that of the defendant. Sergeant Nicaud asked N.T. if the person in the remaining photograph was the person who grabbed him, and N,T., who appeared afraid to look at the photograph, said, " I don' t know." 3 Sergeant Nicaud also shewed the photographic lineup to N. T.' s brother, who quickly identified the defendant as the person who grabbed N.T. The other children involved refused ta view the photographic li neup. N.T.' s mother testified that sh befare the incident that the defendant receiv c a noti cation in the mail weeks was a rz istered unsure whether the noYice contained a photo raph. sex offender. She was She testified that she did not show N.T. the registration that she received in the maiL SUFFICIENCY OF THE EVIDENCE In his first and second assignments of error, the defendant argues that the trial court erred in denying his motion for post-verdict judgment of acquittal where the evidence is insufficient to prove beyond a reasonable doubt his identity as the perpetrator of the instant offense. Specifically, he argues that conflicting testimony concerning the identity of the man who grabbed N.T, creates reasonable doubt as to whether any of the identifications can be considered reliable. In reviewing claims challenging the sufficiency of the evidence, this court must consider " whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." . Iackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 ( 1979). See also La. Code Crim. Pro. art. 821B; State v. Mussall, 523 So. 2d 1305, 1308- 09 ( La. 1988). The Jackson standard, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circurristantial, for reasonable doubt. State v. Petitto, 121670 ( La. App. 11/ 22/ 13), 126 So. 3d 477; State v. Patorno, 01- 2585 ( La. App. 1 Cir. 6/ 21/ 02), 1 Cir. 4/ 26/ 13), ll6 So. 3d 761, 766, writ denied, 13- 1183 ( La. 822 So. 2d 141, 144. When a convietion is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by 4 viewing that evidencu in he li nt os favorable to the prosecution. State v. Wright, 98- 0601 ( La. App. 1 Cir. 2/ 19/ 991, 73q So. 2d 4$ 5, 487, writ denied, 990802 (La. 10/ 29/ 99), Wright v. 748 So. 2d liS7, and writ denied sub nom, State ex rel. State, 00- g95 ( I circumstantial evidence, a. 11/ 17" OOj, ? 73 Louisia aa e So. 2ri 732. ised ' Yatute 15: 43 When analyzing rovides that the fact finder must b satis ed the or erall e5 id nc,e xcPude, every reasonable hypothesis of innocence. Petitto, ll6 So. 3d at 766; ' caPorno, 822 So. 2d at 144. The facts then established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient far a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 730 So. 2d at 487. Furthermore, when the key issue is the defendant' s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. Positive identification by a single witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibilities of the witnesses, and courts will generally not secondguess those determinations. See State v. 1'ughes; OS- 0992 ( La. 11/ 29% 06), 943 So. 2d 1047, 1051. The defendant does not dispute the fa t that the instant offense occurred. Rather, he denies any involvetiient. He claim s thaf the witnesses' x stimony at trial was conflicting, and that, although N.T. identzfied him in court as the perpetrator, N.T. was unable to make a positive identification in the days following the incident. The defendant also argues that N.T, stated in his CAC interview that the man who grabbed him had gray and black hair whide the video of the recorded statement given by the defendant a few days after the incident reveals no gray hair. 5 At trial, referring to thE last of the six + hotographs in the photographic lineup, the State asked N.T. whether ti t was " the guy that dia it:" N.T. nodded affirmatively. The State then asked N.T. if he s w anyone in court that " did this to him]," and N.T. identified the d fenda t. On cross- examinati n, defense counsel asked N.T. whether he was sur whc? arabbed him whe he looked at the lineup, and N.T. nodded affirmatively N.T.' s brother testified that he was playing with N.T. on the day of the incident. He was eight years old at the time of trial and six years old at the time of the incident. He testified that he and two other children helped N.T. get out of the man' s house who had pulled him inside. He stated that the man was in the bathroom when they went inside to help his brother get out. He testified that he never saw the man' s face, but positively identified the defendant in a six-person photographic lineup shown to him by Sergeant Nicaud. He testified that he was telling the police the truth about what he saw when he signed the lineup. When asked if he recognized anyone in the courtroom, he responded that he did not. One of the other children with N.T. and his brother at the time of the incident testified that a man told N.T. to come inside because he had a treat for him. The child testified that he saw the man grab N.T. and drag him into the house, then indicated that N.T. walked into the house. According to this child' s testimony, the man kicked N.T. This child also testified that he kicked the man in the face, causing him to bleed. The defendant testified at trial. He said that he lived on Pine Street in October 2010. He denied offering nioney or treats to a child, or threatening a child in any way while he lived there. He further denied forcing a child to come into his home. According to the defendant, he never saw any of the children who testified priar to triaL 6 defendant' The arguments s the que tiora fact finder' s credibility determinations. The jury appar.ently chose ta bellieve the Stat' s Lvitnesses. The trier of fact is fre to accept or rejec, i w hole or in part, the testimony of any witness. When there is c,onflictin testimon a out faetual matters; the resolution of which depends upon a d termiraation o'" the credibility o matter is one of ti e weight ot the evic en;, n t ats su the uitnesses, the er fictenes-. 'I'1-ie tr+ of fact' s determination of the weight ca be given evidenc is not subject to appellate review. State v. Taylor, 97- 2261 ( La. App. 1 Cir. 9% 98,; 721 So. 2d 929, 932. Appellate 25/ courts are constitutionally precluded from acting as a " thirteenth juror" in assessing what weight to give evidence in criminal cases. 10/ 17/ 00), 772 So. 2d 78, 83. State v. Mitchell, 99- 3342 ( La. Thus, this court cannot reweigh the evidence to overturn a fact finder' s determination of guilt on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 07- 2306 ( La. 1121/ 09), 1 So. 3d 417, 418 (per curiam); Taylor, 721 So. 2d at 932. Based upon the evidence presented, the jury reasonably and rationally rejected the defendant' s hypothesis of innocence that he had b en misiden ified as the perpetrator of this crime. Viewing the evidence in the ligYat nxost favorable to the State, we find that any rational trier of fact 4ould have found beyond a reasonable doubt, and to the exc[usion of every reasonable hypothesis of innocence, that the defendant was guilty of sexual battery. Therefore, the evidence is sufficient to support the jury' s verdict. Th se assignments of error have no merit. Accordingly, we affirm the defendant' s conviction. SF,NTENCIIVG ERR R The defendant does n t challen.ge the ha, i uap offender adjudication, but challenges his sent nce as excessive. Loazisiana Aevised Statu te 15: 529. 1A(2)( a) sets forth the sentencing requiremenas fts?r a szcc md- feYony offender, as foilows: A. Any peta n who, after k3aving b en c.cr icted within thf; state of a been. coacvic d under the lav,s of any felonv, other state o of the L,nited States, crr n fto: eagn govern: nerrt of a crime which, if earnmit# iyi tl is stafie voald be a felony, thereafter ed or who, after h via; commits any subsequent feloY y within this siate, upon conviction of said felony, shall be punished as follows: 2)( a) If the second felony and the prior felony are sex offenses as defined in [Louisiana Revised Statute] 15: 541, or the prior felony would be a sex offense as defined in [Louisiana Revised Statute] 15: 541, except it occurred prior to June 18, 1992, or the conviction was obtained under the laws of any other state, the United States, or any foreign government, the person shall be sentenced to imprisonment at hard labor for a determinate term not less than two- thirds of the longest possible sentence for the conviction and not more than three times the longest possible sentence prescribed for a first conviction, without benefit of probation, parole, ar suspension of sentence. The defendant' s felony offenses are sexual battery and aggravated rape, making Section S29. 1A( 2)( a) appl?cable to his sentencing. Considering the present felony offense of sexual battery, the defendant was subject to a sentencing range of sixty-six to two- hundred-ninety-seven years, all without benefit of probation, parole, or suspension of sentence. La. R. S. 15: 529. 1A(2)( a). He was sentenced to seventy- five years imprisonment at hard labor; however, only the first twenty-five years were imposed without benefit of probation, parole, or suspension of sentence. Therefore, the sentence does not comply with the legislatively mandated sentencing range set forth in Louisiana Re, ised Statute 15: 529. 1A( 2)( and is a), illegally lenient. An illegal sex tence may be corrected at any tiane by an appellate court on review. La. GCr.P. art. 882A. The defendant has no constitutional or statutory right to an illegally lenient sentence. State v. Williams, 2000- 1725 ( La. 11/ 28/ O1), s 800 So, 2 i 790, sentence. discretion, 7?. Because we accordance with per cuNiam}; Therefe y axa_ r e i h.i saHitea;; th va:. i tkba s rq ust remaxid tki_ anatter t See SzaPe la_ State v v. . Risner, 12- d f ndant' s ncing ran ? abitual Offender nvc lvas trial court the tri 1 cour ro res ntencing in a nes, 04- X 93 ( I,a. 12! lOr"04). 889 So. 2d 224 893, 2G V: 2484249 ( La. _ pp. 1 Cir. 6/ 7/ 13) unpublished decisi n).$ CONVICTION AND HABITUaL HABITUAL OFF`ENDER AFFIRMED. MATTER REMANDED FOR R OFFENDER ADJUDICATION SENTENCE VACATED, AND SEN'IENCING. 4 Because the sentencing error reqaires that we va ate the habitual ofFe der sentence and remand the mattex for resentencing, v e pretermit discussioxi of the defendant' s final assignm ent of error, which was that his habituaa offender sentence is excessive. 9
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