State v. Ball

• Decision Date: 07 December 2016
• Docket Number: 16–653
• Citation: 209 So.3d 793
• Parties: STATE of Louisiana v. Joshua Jerome BALL
• Court: Court of Appeal of Louisiana — District of US

209 So.3d 793

STATE of Louisiana
v.
Joshua Jerome BALL

16–653

Court of Appeal of Louisiana, Third Circuit.

December 7, 2016

Annette Roach, Louisiana Appellate Project, P. O. Box 1747, Lake Charles, LA 70602–1747, (337) 436–2900, COUNSEL FOR DEFENDANT/APPELLANT: Joshua Jerome Ball

Honorable James P. Lemoine, District Attorney, Thirty–Fifth Judicial District Court, Rhea Renee Nugent, Assistant District Attorney, P. O. Box 309, Colfax, LA 71417–0309, (318) 627–3205, COUNSEL FOR APPELLEE: State of Louisiana

Court composed of Jimmie C. Peters, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.

GREMILLION, Judge.

Defendant, Joshua Jerome Ball, was convicted of carnal knowledge of a juvenile in Pointe Coupee Parish in 2005, and, as a result, was required to comply with the sex offender registration and notification requirements set forth in La.R.S. 15:540, et seq.

Defendant was charged by bill of information with failure to register as a sex offender, a violation of La.R.S. 15:542 ; failure to notify law enforcement of a change of address, a violation of La.R.S. 15:542.1.2 ; and failure to provide notification as a sex offender, a violation of La.R.S. 15:542.1. Defendant entered a plea of not guilty. Following a jury trial, Defendant was found guilty as charged. Thereafter, Defendant filed a "Motion for a New Trial" and "Memorandum in Support of Motion for a Post Verdict Judgment of Acquittal or (in the Alternative) a New Trial," which were denied by the trial court.

Defendant was sentenced on May 12, 2016, to serve three and one-half years at hard labor, with the first two years to be

209 So.3d 796

served without benefit of probation, parole, or suspension of sentence, on each count, to run concurrently. Defendant was also ordered to pay a fine of five hundred dollars, court costs, and seven hundred fifty dollars to the Public Defender's Office.

Defendant timely appealed and asserts the following three assignments of error: 1) he received ineffective assistance of counsel when counsel failed to seek quashal of the bill of information and failed to object to erroneous jury instructions; 2) the trial court erred in questioning witnesses during the trial, in the presence of the jury, without his consent; and 3) the evidence introduced at the trial was insufficient to prove, beyond a reasonable doubt, all of the elements of the charged offenses. For the following reasons, Defendant's convictions are affirmed. His sentences for failure to notify law enforcement of a change of address and failure to provide notification as a sex offender are affirmed. However, his sentence for failure to register as a sex offender is vacated, and the matter is remanded for resentencing.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, Defendant contends that the evidence introduced at the trial of this case, when viewed under the Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard, was insufficient to prove, beyond a reasonable doubt, all of the elements of the charged offenses. When the issues on appeal relate to both sufficiency of the evidence and one or more trial errors, we first determine the sufficiency of the evidence. State v. Hearold , 603 So.2d 731 (La.1992). The rationale is that when the entirety of the evidence is insufficient to support the defendant's conviction, the defendant must be discharged as to that crime, and any issues regarding trial errors become moot. Id. Accordingly, we will first address Defendant's third assignment of error.

In reviewing the sufficiency of the evidence to support a conviction, this Court has recognized that an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia , [443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ].State v. Tate , 01–1658 (La. 5/20/03), 851 So.2d 921, 928 (citing State v. Captville , 448 So.2d 676, 678 (La.1984) ). Under this standard, an appellate court "must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt." Tate , 851 So.2d at 928.

....

This Court has held that the trier of fact may make reasonable inferences from the evidence presented. In State v. Spears , we stated:

When evaluating circumstantial evidence, the trier of fact must consider the circumstantial evidence in light of the direct evidence, and vice versa, [and] the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes

209 So.3d 797

every reasonable hypothesis of innocence.

05–0964 (La. 4/4/06), 929 So.2d 1219, 1222 (citing State v. Chism , 436 So.2d 464, 469 (La.1983) ). In Chism , we further held that "[t]he gist of circumstantial evidence, and the key to it, is the inference, or process of reasoning by which the conclusion is reached. This must be based on the evidence given, together with a sufficient background of human experience to justify the conclusion." 436 So.2d at 469.

State v. Bryant , 12–233, pp. 4–7 (La. 10/16/12), 101 So.3d 429, 432–33, writ denied , 12–229 (La. 1/25/13), 105 So.3d 61.

The bill of information states that "on or about March 13, 2014," Defendant did commit the following offenses in Grant Parish:

COUNT I: committed the offense of FAILURE TO REGISTER AS A SEX OFFENDER in violation of R.S. 15:542 in that he was an adult living in this state who has pled guilty to, or been convicted of a sex offense and did fail to register with the sheriff of the parish of his residence, and with the chief of police as required by R.S. 15:542.

COUNT II: committed the offense of FAILURE TO NOTIFY LAW ENFORCEMENT OF CHANGE OF ADDRESS in violation of La. R. S. 15:542.1.2 in that he failed to appear at the Sheriff's Office to update his information as required by law.

COUNT III: committed the offense of FAILURE TO PROVIDE NOTIFICATION AS A SEX OFFENDER in violation of La. R. S. 15:542.1 in that he failed to give notice for the crime he was previously convicted.

On the date of the offenses, as set forth in the bill of information, La.R.S. 15:542.1.4 provided, in pertinent part:

A. (1) A person who fails to register, periodically renew and update registration, provide proof of residence or notification of change of address or other registration information, or provide community notification as required by the provisions of this Chapter, and a person who knowingly provides false information to a law enforcement agency as provided in R.S. 15:542(C)(3), shall, upon first conviction, be fined not more than one thousand dollars and imprisoned with hard labor for not less than two years nor more than ten years without benefit of parole, probation, or suspension of sentence.

....

(3) An offender who fails to pay the annual registration fee in accordance with the provisions of R.S. 15:542 shall be fined not more than five hundred dollars, imprisoned for not more than six months, or both. Upon a second or subsequent conviction for the failure to pay the annual registration fee, the offender shall be punished in accordance with the provisions of Paragraphs (1) and (2) of this Subsection.

Sex offender registration requirements are set forth, in pertinent part, in La.R.S. 15:542, which provided as follows on March 13, 2014:

B. (1) The persons listed in Subsection A of this Section shall register in person with the sheriff of the parish of the person's residence, or residences, if there is more than one, and with the chief of police if the address of any of the person's residences is located in an incorporated area which has a police department. If the offender resides in a municipality with a population in excess of three hundred thousand persons, he shall register in person with the police department of his municipality of residence.

209 So.3d 798

(2) The offender shall also register in person with the sheriff of the parish or parishes where the offender is an employee and with the sheriff of the parish or parishes where the offender attends school. If the offender is employed or attends school in a municipality with a population in excess of three hundred thousand persons, then he shall register only, pursuant to this Paragraph, with the police department of the municipality where he is employed or attends school. The offender shall also register in the parish of conviction for the initial registration only. No registration in the parish of conviction is necessary if the offender is incarcerated at the time of conviction or immediately taken into custody by law enforcement after the conviction.

....

C. (1) The offender shall register and provide all of the following information to the appropriate law enforcement

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