|aDefendant seeks review of his conviction and sentence for failure to register as a sex offender in violation of La. R.S. 15:542. For the following reasons, we affirm.
Procedural History
On August 16, 2013, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Denis Flores, with failure to register as a sex offender in violation of La. R.S. 15:542. On August 19, 2013, defendant pleaded not guilty at arraignment. Thereafter, defendant filed omnibus motions, including a motion to declare La.C.Cr.P. art. 782 unconstitutional, which the trial court denied. On February 12, 2014, after a two-day trial, a 12-person jury found defendant guilty as charged. On March 21, 2014, the trial court denied defendant’s motions for post-judgment verdict of acquittal and new trial. The trial court thereafter sentenced defendant to imprisonment at hard labor for a term of three years to be served without benefit of parole, probation, or suspension of sentence.
|aThe State filed a multiple bill of information alleging defendant to be a third felony offender. On March 31, 2014, following a hearing, the trial court adjudicated defendant a third felony offender. The trial court vacated defendant’s original sentence and resentenced him pursuant to La. R.S. 15:529.1 to eight years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The trial court ordered that the sentence run concurrently with any other sentence defendant was serving. On that date, the trial court granted defendant’s timely motion for appeal. Defendant’s appeal follows.
Officer Brad Thibodeaux of the Gretna Police Department testified at trial that on May 27, 2013, he arrested defendant for having an open alcoholic container in public. Defendant initially identified himself to Officer Thibodeaux as “Ariel Silva;” however, upon being processed into the Jefferson Parish Correctional Center (“JPCC”), he identified himself as “Daniel Lobo.” Defendant was thereafter released. Subsequently, on June 7, 2013, JPCC notified Officer Thibodeaux that defendant’s fingerprints revealed defendant’s identity as Denis Flores. At that time, Officer Thibodeaux issued an arrest warrant for defendant in his proper name. On June 24, 2013, Officer Thibodeaux again came into contact with defendant when he again observed defendant with an open alcoholic container in public. This time, defendant identified himself to Officer Thibodeaux as “Daniel Lobo.” Officer Thibodeaux recognized defendant as Denis Flores, confirmed that his arrest warrant was still valid, and placed defendant under arrest on the open warrant, as well as public intoxication and resisting arrest by failing to identify himself. Officer Thibodeaux further testified that at all times during all interactions with defendant, defendant understood the English language and | ¿responded in the English language. At no time did Officer Thibodeaux feel that he needed to request the assistance of a Spanish-speaking officer.
Deputy Christopher Ohlmeyer of the Jefferson Parish Sheriff’s Office testified that he was working at JPCC on May 27, 2013. Deputy Ohlmeyer testified that on that date, he processed defendant as “Ariel Silva.” Upon doing so, Deputy Ohlmeyer became aware that “Ariel Silva” was a sex offender. Accordingly, Deputy Ohlmeyer filled out an Acknowledgement of Registration for Sex Offenders with defendant, further explaining to defendant that he had three days to register as a sex offender. Deputy Ohlmeyer testified that defendant signed the form as “Ariel Silva” and was given a copy of the form upon his release. Deputy Ohlmeyer additionally testified that defendant conversed with him in English.
Lieutenant Luis Munguia of the Jefferson Parish Sheriffs Office testified that as Commander of the Fingerprint Identification Division, he is in charge of the sex offender registry for Jefferson Parish. Lieutenant Munguia testified that in May 2009, defendant was sent to the office of Probation and Parole to begin his sex offender registration as a result of his conviction of indecent behavior with a juvenile. Lieutenant Munguia identified the Sex Offender Contract that he personally completed with defendant. The contract informed defendant of the necessary steps that must be taken to complete and maintain his registration as a sex offender. Defendant placed his initials, “D.F.,” next to all of the enumerated items informing him of his requirements and defendant signed the form. Lieutenant Munguia confirmed ^tjhat since defendant’s initial registration date of May 13, 2009, defendant did nothing to complete or maintain his registration. Lieutenant Munguia further testified that defendant spoke “perfectly good English” |fiand that if defendant had not been able to communicate in English, he would have communicated with defendant in Spanish.
Last, Deputy Nikki Passalaqua of the Jefferson Parish Sheriff’s Office crime lab testified as an expert in fingerprint analysis and comparison. The fingerprints contained in defendant’s certified conviction packet for his conviction of indecent behavior with a juvenile were not of good quality so she looked to his arrest card in that conviction. Ms. Passalaqua examined the
Defendant did not call any witnesses at trial.
Discussion
Sufficiency of the Evidence
In his first assignment of error, defendant argues that the State failed to establish the elements of the offense of failure to register as a sex offender. Therefore, defendant asserts that the trial court erred in denying defendant’s motions for post-verdict judgment of acquittal and new trial. Conversely, the State argues that the evidence at trial was sufficient to support the conviction.
The appropriate standard of review for determining the sufficiency of the evidence was established in Jackson v. Virginia,
Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Williams,
Defendant was convicted of failure to register as a sex offender in violation of La. R.S. 15:542. In order to support a conviction of La. R.S.. 15:542, the State must prove that defendant was convicted of a sex offense as defined in La. R.S. 15:541, that he resided in Louisiana for the period during which he was required to register, and that he failed to register within the requisite time allotted for registration. La. R.S. 15:542; State v. Watts,
Defendant additionally asserts that in order to sustain a conviction under La. R.S. 15:542, the State must prove that: 1) a defendant must understand what is required of him in order to register; and 2) a defendant must have the financial ability to comply with the cost of registration. Defendant’s appreciation of La. R.S. 15:542 is misplaced. Neither asserted requirement is an “element” of the charged offense. Nonetheless, the record contains no evidence that defendant did not understand the sex offender registration requirements at the time they were | ^explained to him initially by Lieutenant Munguia in May 2009 or by Deputy Ohl-meyer in May 2013. To the contrary, Lieutenant Munguia testified that during his review of the Sex Offender Contract with defendant, no interpreter was present and defendant “spoke perfectly good English.” Similarly, in reviewing the Ac-knowledgement of the Registration for Sex Offenders with defendant upon his arrest on May 27, 2013, Deputy Ohlmeyer testified that defendant communicated with him “sufficiently in English,” acknowledging what Deputy Ohlmeyer was communicating to him.
Defendant’s second argument, which suggests that it is illegal “to convict someone of a felony offense and incarcerate them for a violation of the sex offender registration requirements when they simply can’t pay the costs of the registration,” similarly is without merit. The Louisiana Supreme Court addressed the issue of costs associated with sex offender registration in State ex rel. Olivieri v. State, 00-0172 (La.2/21/01),
Considering the foregoing, we find that the evidence is sufficient to support defendant’s conviction of failure to register as a sex offender. As such, we find the trial court properly denied defendant’s motions for post-verdict judgment of acquittal and new trial.
In his second assignment of error, defendant asserts that the trial court erred in failing to sustain defense objections to statements made during the State’s rebuttal argument to the jury. Specifically, defendant argues that the State’s remark relative to defendant’s claim that he could not understand English was “inappropriate and undesirable” and further “undermined” him in front of the jury.
The prosecutor made the following comment during rebuttal closing argument: THE STATE:
There’s been a big issue made about [defendant’s] ability to understand English. Every single law enforcement officer that testified said they had absolutely no problem talking to him. This is a smokescreen.
Defense counsel objected, and the trial court overruled the objection. Twice more during closing arguments, the State made similar references to defendant’s claimed inability to understand English as a “smoke screen.” Defense counsel did not object further.
Pursuant to La.C.Cr.P. art. 774, argument at trial shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. Closing arguments shall not appeal to prejudice. Id. The State’s rebuttal argument shall be confined to answering the argument of the defendant. Id.
While the trial judge has broad discretion in controlling the scope of closing arguments, prosecutors enjoy wide latitude in choosing closing argument tactics. State v. Brumfield, 96-2667 (La.10/20/98),
In State v. Martin,
In Here, defense counsel during closing argument argued to the jury that defendant could not have completed his registration as a sex offender because he could not afford to and because he did not understand the registration process as Spanish is his native language. The State in rebuttal argued that defendant understood English and the requirements placed upon him and defendant’s claim that he did not understand English was a smoke screen. Upon review of the record, we find that the prosecutor’s remark was the State’s opinion of the evidence and in direct rebuttal to defense counsel’s argument. Moreover, the trial court minimally twice instructed the jury that argument is not evidence. Under the facts and evidence presented in this case, we do not find that the prosecutor’s remark influenced the jury or contributed to the guilty verdict. Accordingly, we do not find that the trial court abused its broad discretion in controlling the scope of closing arguments.
Constitutionality of La.C,Cr.P. art. 782
In his third assignment of error, defendant contends that the trial court erred as a matter of law in failing to find La.C.Cr.P. art. 782(A), which provides for non-unanimous jury verdicts, unconstitutional and affirming an 11 to one jury verdict.
Both the Louisiana Constitution of 1974 and the Louisiana Code of Criminal Procedure provide that criminal cases in which the punishment is necessarily confinement at hard labor shall be tried before a jury of 12 persons, ten of whom must concur to render a verdict. La. Const. Art. I, § 17(A); La.C.Cr.P. art. 782(A). Pursuant to La. R.S. 15:542.1.4, a defendant, upon first conviction, shall be imprisoned with hard labor. Accordingly, defendant was tried before a 12-person jury and convicted by a jury verdict of 11 to one.
| ^Defendant’s assertion that La.C.Cr.P. art. 782(A) is unconstitutional is foreclosed by the decisions previously rendered by the United States and Louisiana supreme courts. In Apodaca v. Oregon,
Likewise, the Louisiana Supreme Court has consistently held that non-unanimous jury verdicts for 12-person juries are not unconstitutional in non-capital cases. See State v. Edwards,
Due to this Court’s prior determinations that Article 782 withstands constitutional scrutiny, and because we are not presumptuous enough to suppose, upon mere speculation, that the United States Supreme Court’s still valid determination that non-unanimous 12 person jury verdicts are constitutional may someday be overturned, we find that the trialcourt erred in ruling that Article 782 violated the Fifth, Sixth, and Fourteenth Amendments. With respect to that ruling, it should go without saying that a trial judge is not at liberty to ignore the controlling jurisprudence of superior courts.
Id. at 743.
Further, in accordance with Bertrand, supra, this Court has consistently upheld the constitutionality of Louisiana law which allows for non-unanimous jury verdicts in non-capital cases. See State v. Napoleon,
Accordingly, this claim lacks merit.
Multiple Offender Adjudication
In his fourth assignment of error, defendant contends that the trial court erred in adjudicating him a third felony offender because the State’s evidence of his predicate convictions was insufficient. Specifically, defendant argues that the State failed to introduce the Boykin
In State v. Shelton,
If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of 114the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State- to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boy-kin rights.
Id. at 779-780.
Once the State establishes a prior felony conviction, then it must offer
At the multiple offender hearing, the State introduced as State’s Exhibit Two the certified conviction packet of defendant’s previous guilty plea entered on November 15, 2010, in the 24th Judicial District Court, case number 10-3609, for the offense of unauthorized entry of an inhabited dwelling committed on or about May 20, 2010. That conviction packet contains copies of the bill of information, the July 30, 2010 minute entry reflecting defendant’s arraignment, and the November 15, 2010 minute entry indicating that defendant pleaded guilty after the trial judge advised him of his right to trial by judge/ jury, right to confront his accusers, and right against self-incrimination. The packet also contains Defendant’s Acknowledgment of Constitutional Rights and Waiver of Rights on |1fiEntry of a Plea of Guilty, which reflects that defendant was represented by counsel. Defense counsel signed the form certifying that he informed defendant of his rights and was satisfied that defendant understood the consequences of his plea of guilty.
The State additionally introduced as State’s Exhibit Four the certified conviction packet of defendant’s prior guilty plea also entered on November 15, 2010, in the 24th Judicial District Court, case number 10-2805, for the offense of failure to maintain sex offender registration. That packet contains the bill of information and the November 15, 2010 minute entry indicating that defendant pleaded guilty after the trial judge advised him of his three Boykin rights. The packet also contains Defendant’s Acknowledgment of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty, which reflects that defendant was represented by defense counsel. Defense counsel additionally signed the form as he did in State’s Exhibit Two.
Nikki Passalaqua, the expert in fingerprint analysis and comparison, identified State’s Exhibit One as defendant’s fingerprints taken by her earlier that day. Deputy Passalaqua testified that defendant’s fingerprints taken that day and the fingerprints on both arrest registers for defendant’s prior offenses of unauthorized entry of an inhabited dwelling and failure to maintain sex offender registration matched. She determined that defendant was the same individual arrested in the predicate offenses.
Defendant also testified at the hearing with the assistance of a Spanish-speaking interpreter. He admitted that he pleaded guilty on November 15, 2010, to unauthorized entry of an inhabited dwelling and failure to maintain sex offender registration; however, he claimed he did not understand the consequences of pleading guilty to those offenses because the waiver forms that he signed were in English.
| ¶(¡Based upon the above testimony and evidence, we find that the State satisfied its initial burden of proving the existence of the prior convictions and that defendant was represented by counsel. Accordingly, the burden shifted to defendant to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of either of the
We find defendant’s self-serving testimony, that he did not understand the consequences of his pleas of guilty because the waiver of rights forms were in English, insufficient to shift the burden back to the State. Defendant admitted that he pleaded guilty to both predicate convictions. Further, the minute entries relative to both predicate guilty pleas indicate that an interpreter was present and sworn in during the Boykin colloquy with the trial judge. Moreover, the trial court heard the trial testimony of Officer Thibodeaux, Deputy Ohlmeyer, and Lieutenant Munguia that defendant sufficiently communicated with them in the English language.
Based on the foregoing, we find the evidence sufficient to establish defendant’s adjudication as a third felony offender.
Excessive Sentence
In his final assignment of error, defendant asserts that the trial court imposed an unconstitutionally excessive sentence. The State contends that defendant’s sentence was within the statutory range and that courts have imposed even greater sentences for similar offenses.
Upon adjudicating defendant a third felony offender, the trial court vacated defendant’s original sentence and resentenced him pursuant to La. R.S. 15:529.1 to | ^imprisonment at hard labor for a term of eight years without benefit of parole, probation, or suspension of sentence.
While defendant did object to his adjudication as a third felony offender, he did not file a motion to reconsider sentence. La. C.Cr.P. article 881.1(E) provides that the “[fjailure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the State or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” “The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, merely limits a defendant to a bare review of the sentence for constitutional excessiveness.” State v. Adair,
“A sentence is constitutionally excessive if it is grossly out of proportion to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering.” State v. Lobato,
Under the penalty provision for failure to register as a sex offender, upon first conviction, defendant faced a sentencing range of imprisonment at hard labor for a term of not less than two years nor more than ten years without benefit of | ^parole, probation, or suspension of sentence. La. R.S. 15:542.1.4(1). Under La.
In State v. Washington, 44,864 (La.App. 2 Cir. 12/9/09),
In State v. Mueller,
Similarly, in this case, we find defendant’s imposed sentence is not constitutionally excessive. The imposed sentence of eight years is within |1flthe statutory range and the record reflects that defendant has prior felony convictions, including indecent behavior with a juvenile, unauthorized entry of an inhabited dwelling and a separate conviction for failure to register as a sex offender. Accordingly, we find that the trial court did not abuse its broad sentencing discretion as the imposed sentence is neither grossly disproportionate to the severity of the offense, nor shocking to the sense of justice.
Errors Patent
The record was reviewed for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux,
Decree
Considering the foregoing, we affirm defendant’s conviction and sentence for violation of La. R.S. 15:542.
AFFIRMED.
Notes
. Boykin v. Alabama,