The defendant, Jean Paul Walston, was charged by an amended bill of information with attempted second degree rape {count one), a violation of La. R.S. 14:42.1 and La. R.S. 14:27, and sexual battery (count two), a violation of La. R.S. 14:43.1. He pleaded not guilty. A jury found the defendant guilty as charged on both counts. The trial court denied the defendants combined motion for post-verdict judgment of acquittal and/or new trial. The defendant was sentenced to ten years’ imprisonment at hard labor on each count, to be served consecutively. The trial court denied the defendants motion to reconsider sentence. He now appeals, assigning error to the sufficiency of the evidence, the trial courts denial of his motions for mistrial, and the constitutionality of the sentences. For the following reasons, we affirm the convictions, vacate the sentences, and remand for resentencing.
STATEMENT OF FACTS
On October 23, 2016, C.H.
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(the victim) was at a gathering of a group of her friends when she received an Instagram direct message from the defendant, a friend whom she met on social media.
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The defendant arranged to visit C.H. at Hidden Oaks Apartments in Baton Rouge, where the gathering was taking place. After the defendant arrived, C.H. went outside to greet him before inviting him into the apartment and introducing him to her friends. The defendant asked for a kiss while they were in the apartment and C.H. agreed to the initial kiss and “a couple more kisses.” After being in the apartment for not more than fifteen minutes, the defendant told C.H. that he had to leave, and she decided to walk him out to the parking lot. Considering that she had been drinking alcohol that evening, as a precaution, C.H. told two of her friends, Kyle and Blaize, to come out to the parking lot if she did not return in five minutes.
As C.H. approached the defendants car, he asked her to enter the vehicle for what she thought would be “a chat ․ [to] get to know each other better.” According to C.H., they initially just talked before the defendant asked for a kiss, which C.H. agreed. As C.H. further testified at trial, she also allowed the defendant to touch her breast before agreeing to briefly “please him orally.” However, the defendant held C.H.’s head down with his hand as she tried to lift her head to discontinue. After she was able to lift her head, the defendant crossed over to her side of the vehicle and got on top of her. C.H. testified that the defendant then “roughly” pulled her pants and underwear down, digitally penetrated her vagina, pulled his own pants down, and then attempted to insert his penis into her vagina. At that point, Blaize approached and helped C.H. get out of the vehicle. After escorting C.H. back, to the apartment, Kyle called 911 and reported the incident. Corporal Jacquelyn Gosper, a uniform patrol officer with the East Baton Rouge Sheriffs Office, responded to the scene and took a statement from the victim. Corporal Cosper transported C.H. to Womans Hospital where a rape kit was collected.
ASSIGNMENT OF ERROR NUMBER ONE
In assignment of error number one, the defendant argues that the entire episode between him and C.H. was consensual. He contends that notwithstanding C.H.’s “self-serving” testimony, none of the witnesses at trial established that his contact with C.H. was with force, violence, or intimidation. Thus, the defendant argues that due to the presence of consent, a reasonable hypothesis of innocence was presented in his favor. He concludes that the presence of consent precludes his guilt as to each offense and therefore asks this court to vacate his convictions.
The State notes that based on the victims testimony, she clearly expressed her lack of consent by attempting to push the defendant away when he got on top of her and tried to penetrate her vagina with his penis. The State notes that in this case, in addition to the victims “credible testimony,” the jury had the benefit of medical, scientific, and physical corroborating, evidence and testimony. Further, the State notes that two witnesses saw the defendant on top of the victim in the passenger seat of his car, and that one of the witnesses saw the defendant holding C.H. down forcefully as she was trying to get him off of her.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. 1, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660. The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.
Louisiana Revised Statutes 14:41(A) defines rape, in pertinent part, as “the act of ․ vaginal sexual intercourse with a male or female person committed without the persons lawful consent,” Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime. La. R.S. 14:41(B). Louisiana Revised Statutes 14:42.1(A)(1) defines second degree rape, in pertinent part, as “rape committed when the ․ vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed ․ [w]hen the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.”
Under La. R.S, 14:27(A), a person is guilty of an attempt to commit an offense when he has a specific intent to commit a crime and “does or omits an act for the purpose of and tending directly toward the accomplishing of his object.” Thus, to support a conviction for attempted second degree rape, the State had to prove beyond a reasonable doubt: (i) that the defendant had the specific intent to commit second degree rape; and (2) that he did an act for the purpose of, and tending directly toward, the accomplishing of his objective. See La. R.S. 14:27 and 14:42.1: State v. Alexander, 2014-1619 (La. App, 1st Cir. 9/18/15), 182 So.3d 126, 130, writ denied, 2015-1912 (La. 1/25/16), 185 So.3d 748. Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Cousan, 94-2503 (La. 1J/25/96), 684 So.2d 382, 390. Specific intent need not be proven as a tact but maybe inferred, from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126, 1127 (La. 1982). The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. Alexander, 182 So.3d at 130.
Louisiana Revised Statutes 14:43.1(A)(1), defines sexual battery, in pertinent part, as “the intentional touching of the -genitals of the victim by the offender using ․ any part of the body of the offender, directly or through clothing, or the touching of the . . genitals of the offender by the victim using ․ any part of the body of the victim, directly or through clothing, when ․ [t]he offender acts without the consent of the victim.” Thus, to support a conviction for sexual battery, the State had to prove beyond a reasonable doubt: (1) that the defendant touched the genitals of the victim, or that the victim touched the genitals of the defendant; and (2) that the touching was without consent of the victim. State v. Jaramillo, 2006-1377 (La. App. 3d Cir. 3/7/07), 953 So,2d 146, 150, writ denied, 2007-0732 (La. 11/2/07), 966 So.2d 600:
At trial, C.H. testified that when the defendant began to fondle her in the vehicle, it was not what she expected, but she allowed it. C.H. asked the defendant if he was “horny,” and he admitted he was. She testified that she offered to give the defendant a “hand job” and stated that the offer was made “in hopes of him being satisfied without having to do anything further.” However, after the “hand job,” the defendant then asked C.H. to perform oral sex on him. C.H. noted that the defendant was “persistent” and “kept asking” her, so she agreed to do so “for a second.” C.H. testified that after the second ended, she tried to lift her head, but the defendant placed his hand on the back of her head and neck and pushed her head downward to get her to continue. C.H. said as she continued to try to pull her head up, the defendant relented and allowed her to do so. C.H. further testified that she assumed the defendant was “disappointed.” She noted that the defendants cell phone rang, and he told her to wait while he talked to his grandmother.
C.H. testified that after the telephone conversation, she tried to distract the defendant by starting a new topic of conversation, but the defendant crossed over to her side of the vehicle, positioned himself on top of her, and began pulling her pants down. C.H. stated that while trying to push the defendant off of her, she was also trying to pull her pants back up, but the defendant ultimately succeeded in “roughly” pulling her pants and underwear down. C.H. testified that the defendant began to “roughly finger” her as she tried to push him back, and the digital penetration caused her to feel “a little pain.” C.H. told the defendant to “stop” and tried to push him away, as he proceeded to pull his pants down, push his body up against her, and “was trying to insert his penis into [her].” When asked if she felt the defendants penis touching her vaginal area, C.H. testified, “[y]es.” When asked how close his penis was to her vagina, she stated, “[i]t was pretty much there, but it wasnt inside” and noted that the defendant kept trying as she was simultaneously “pushing him back.” She stated that after Blaize helped her exit the vehicle, she told him “I think I mightve been raped.”
C.H. clarified that everything that occurred after the agreed-to moment of oral sex was nonconsensual. She further responded negatively when specifically asked if she consented to the defendant putting his fingers or putting (or trying to put) his penis inside of her vagina. She admitted that she had drinks before the defendant arrived, specifying that she had about three drinks and may have smoked marijuana out of a bong.
At trial, Blaize also testified that they had drinks and smoked marijuana that evening. Blaize noted that when the defendant arrived, he thought the defendant was “shady” because the defendant was not being social and wore his hat low, adding, “[y]ou could hardly see his face.” According to Blaize, the defendant briefly stayed in the apartment before leaving, and C.H. walked out with the defendant just after asking Blaize to call her if she did not return in five minutes. About ten minutes later, Blaize realized that C.H. had not returned and told Kyle to come with him outside to check on her. Blaize stated that he was aware that C.H. had met the defendant online and feared for her safety. Blaize testified that when he approached the passenger side of the defendants vehicle, C.H. was in the passenger seat, the seat was “all the way back,” and the defendant was “on top of her pulling her down” as she tried tc “wriggle free and get out of the car.” Blaize further stated, “it was immediately evident since before I reached the car that she was not where she wanted to be.” He added, “[sjhe was trying to leave. She was trying to get him to get off of her.” He further stated, “[h]e was holding her down forcefully. She was physically trying to escape.” Blaize further testified that when he approached the vehicle, the defendant jumped off of C.H., adding, “I aint never seen a man jump up that quick in my life. ․ I mean its like when you catch a kid with his hand in the cookie jar. ․ He knew what he was doing was wrong.”
Blaize noted that when he got C.H. out of the vehicle, she was “shook up.” He added she was “distraught” and “almost shivering.” Blaize recalled giving a statement when the police arrived. Blaize confirmed that he would not lie for C.H. and that they had not spoken much after the incident, as the group of friends did not remain close. He stated that he was testifying because he wanted the defendant to go to jail, adding, “Ive got four sisters and a daughter on the way. I dont want his likes on the street.”
Kyle similarly testified that he was drinking that night and confirmed that a few of them had smoked marijuana. C.H. asked him if the defendant could come over and he agreed. He noted that the defendant did not say much when he arrived, kept his hat low, and seemed “sketchy,” He testified that the defendant stayed in the apartment for “maybe an hour, if that.” When the defendant was ready to leave, C.H. said that she would walk him outside and would be right back. Kyle testified that C.H. was outside with the defendant for five or ten minutes. As to why and/or when they decided to go to check on C.H., Kyle testified that he and Blaize looked at each other and agreed to go outside to look for C.H. if she did not return in five minutes. When they went outside to the parking lot, they began looking in vehicles, as they did not know which vehicle belonged to the defendant. Kyle testified that when they found the vehicle, the defendant was on top of C.H. on the passenger side. When the defendant saw them, he jumped off of C.H. and put his pants back on. Kyle noted that they were about five feet away when they first realized it was the defendants vehicle. Kyle noted that it was dark outside but that there were some lights in the parking lot and that the vehicle was on the side of a stairwell, such that there was enough light to see into the front of the vehicle,
Kyle further testified that once they helped C.H. out of the vehicle, “[s]he started to look at me and tell me, [‘]I think I was raped. [’]” He stated that when they got back to the apartment, they asked C.H. if she wanted to call the police, she replied in the affirmative, and he did so. Kyle, his girlfriend Emily, and Blaize followed when the police took C.H. to the hospital. Emily, who also testified at trial, stated that she had been friends with the victim for over three years at the time of the trial. She noted that C.H. was “really upset’’ and “hysterical” when she returned to the apartment with Blaize and Kyle, though she was normally a happy and “bubbly” person.
Officer Shannon Broussard and Detective Leigh Rice of the East Baton Rouge Parish Sherriff s Office investigated the incident. Officer Broussard arrived at the hospital and took statements from the victim and Blaize. He subsequently obtained an arrest warrant and DNA search warrant for the defendant and a search warrant for the defendants cell phone. Officer Broussard later interviewed the defendant at his apartment. After being advised of his Miranda 3 rights, the defendant admitted to contacting and meeting C.H. on the date in question at her friends apartment. He stated that during that time, they mutually kissed, but he denied touching C.H.’s vagina, that any oral or vaginal intercourse took place, or that he forced C.H. to have any oral or vaginal intercourse. After the interview, Detective Rice collected a DNA sample from the defendant and the defendants cell-phone was seized.
Allison Kunjappy, a registered sexual assault nurse with the East Baton Rouge Parish Coroners Office and Womans Hospital, performed the sexual assault examination in this case. She testified at trial as an expert in sexual assault and trauma. During the physical examination of the victim, Nurse Kunjappy found two injuries to the victims vagina consisting of a laceration at the four oclock area and an abrasion at the eight oclock area.
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She testified that the injuries were fresh and were consistent with the victims pre-examination account in which she stated, in part, that the defendant tried to penetrate her vaginally with his penis after penetrating her with his fingers. On cross-examination, Nurse Kunjappy confirmed that the victims injuries could also be associated with consensual intercourse or other unknown causes. On redirect examination, she confirmed that injuries are not commonly caused by sexual intercourse, even in alleged assault cases, stating, “I guess, less than a twenty percent chance.”
Ashley Malone, a forensic DNA analyst with the Louisiana State Police Crime Lab, performed a DNA analysis in this case and testified at trial as an expert in DNA analysis. Malone testified that the Y-STR DNA profile obtained from the internal vaginal swab of the victim was consistent with the Y-STR DNA profile obtained from the reference sample taken from the defendant. She concluded that the defendant and all of the male individuals within his biological paternal lineage cannot be excluded as the donor of the mix of the male DNA in the profile.
If believed, the testimony of the victim alone, with no other evidence, is sufficient to prove the elements of the offense. Also, if believed, and in the absence of internal contradiction or irreconcilable conflict with the physical evidence, the testimony of one witness is sufficient to support a factual conclusion, Alexander, 182 So.3d at 131.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Further, where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Lavy, 2013-1025 (La. App. 1st Cir. 3/11/14), 142 So.3d 1000, 1006, writ denied, 2014-0644 (La. 10/31/14), 152 So.3d 150. The trier of facts determination of the weight to be given evidence is not subject to appellate review. Alexander, 182 So .3d at 131. Accordingly, on appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finders determination of guilt. Lavy, 142 So.3d at 1006.
The verdicts rendered in this case indicate that the jury rejected the defendants theory that the acts were .consensual. In reviewing the evidence presented at trial, we cannot say that the jurys determination was irrational under the facts and circumstances presented. See Ordodi, 946 So.2d at 662. Two witnesses saw the defendant and the victim in the vehicle. Blaize, consistent with the victims testimony, testified that it was apparent to him that the victim was attempting to free herself from the defendant. Blaize, Kyle, and Emily all testified as to the victims distraught demeanor after the Incident. Further, the results of the physical examination of the victim were consistent with her claim of forceful digital penetration and attempted forceful penal penetration. Finally, while in his pretrial statement the defendant denied any penetration of the victim, his DNA was found in the sample collected during a vaginal swab of the victim. Lying raises the inference of a guilty mind and an awareness of wrongdoing. See State v. Frickey, 2015-0511 (La. App. 1st Cir. 9/18/15), 2015 WL 5516300, at *4, writ denied, 2015-1966 (La. 11/18/16), 210 So.3d 283.
An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). A court of appeal impinges on a fact finders discretion beyond the extent necessary to guarantee the fundamental protection of due process of law in accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder. See State v. Mire, 2014-2295 (La. 1/27/16), 269 So.3d 698, 703 (per curiam). After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence in the light most favorable to the State, could find that the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of attempted second degree rape and sexual battery. Assignment of error number one lacks merit.
ASSIGNMENT OF ERROR NUMBER TWO
In assignment of error number two, the defendant argues the trial court erred in denying his motions for mistrial based on the following four grounds: (1) the trial court calling defense counsel a public defender; (2) the trial courts statement during voir dire implying that “we” (apparently including itself with the State) would be presenting evidence at trial; (3) the admission of hearsay testimony; and (4) the trial courts refusal to allow defense counsel to elicit testimony regarding drug use by C.H. and her friends. First, he argues the trial courts reference to his attorney as a public defender caused the jury to know that he was indigent and prompted the jury to consider him guilty based on his financial status. Second, he argues the trial court unjustly aligned itself with the prosecution when it stated, in part, “we havent put on any evidence” while addressing potential jurors during voir dire. Noting that the trial court offered an admonishment, the defendant argues the damage was already done as his presumption of innocence had been tainted. The defendant describes the trial courts statement as an acknowledgment that the evidence was enough to warrant the instant charges. Third, he argues that the trial courts allowance of hearsay statements allegedly made by the defendant forced the jury to accept it for the truth of the matter unless he agreed to testify to refute it. Thus, he argues the trial court violated his right under the Sixth Amendment to the United States Constitution by ruling that the hearsay statements were admissible. Finally, he contends the trial court prohibited him from challenging C.H.’s credibility by not allowing defense counsel to explore the extent of drug use among C.H. and her friends before the incident.
The State argues the trial court did not abuse its discretion in denying a mistrial. As to the first ground for mistrial asserted on appeal, the State notes the defendant has not cited any authority or provided an explanation to support his assertion that his financial status might incline the jury to convict him of the non-financial crimes in this case. The State further notes that while the trial court denied the motion for mistrial, it agreed to discontinue use of the reference. Further, the State cites State v. Banks, 612 So.2d 822 (La. App. 1st Cir. 1992), writ denied, 614 So.2d 1254 (La. 1993), a case in which this court similarly rejected such a basis for mistrial. As to the second ground asserted, the State notes the defendant did not immediately object to the trial courts comment made to the second panel of potential jurors but waited until the close of voir dire on the third day of trial.
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The State further argues the trial courts admonishment following the statement coupled with jury instructions at the end of the trial provided sufficient clarification. Regarding statements challenged as inadmissible hearsay, the State argues they are not hearsay, as they are exculpatory and were not introduced for the truth of the matter asserted. Further, the State argues the defendants own statements are hot hearsay pursuant to La Code Evid. art. 801(D)(2)(a). As to the final ground, the State notes the defendant was given “unprecedented leeway” in questioning the victim and her friends regarding alcohol and marijuana use. Further, the State contends the defendant did not refer to any specific objection or ruling regarding the final ground asserted on appeal.
Mistrial is a drastic remedy and warranted only when substantial prejudice will otherwise result to the accused to deprive him of a fair trial. State v. Booker, 2002-1269 (La. App. 1st Cir. 2/14/03), 839 So.2d 455, 467, writ denied, 2003-1145 (La. 10/31/03), 857 So.2d 476. A trial courts ruling denying a mistrial will not be disturbed absent an abuse of discretion. State v. Givens, 99-3518 (La. 1/17/01), 776 So.2d 443, 454. Credit should be given to the good sense and fair-mindedness of the jurors who have seen the evidence and heard the arguments. State v. Bridgewater, 2000-1529 (La. 1/15/02), 823 So.2d 877, 902, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003).
Louisiana Code of Criminal Procedure article 770 provides that a defendant may move for a mistrial when the judge, district attorney, or a court official makes a remark or comment within the hearing of the jury , during the trial or in argument, which directly or indirectly refers to: (1) race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury; (2) another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible; (3) the defendants failure to testify in his own defense; or (4) the judges refusal to direct a verdict. Louisiana Code of Criminal Procedure article 771 allows the State or the defendant to request that the court promptly admonish the jury to disregard irrelevant or prejudicial remarks made by the judge, district attorney, or a court official when the remarks are not within the scope of La. Code Crim. P. art. 770, or made by a person other than the judge, district attorney, or court official, regardless of whether or not the remark is within the scope of La. Code Crim. P. art. 770. The court may grant a mistrial on the defendants motion if it is satisfied that an admonition is insufficient to assure the defendant a fair trial. La. Code Crim. P. art. 771; State v. Brown, 95-0755 (La. App. 1st Cir. 6/28/96), 677 So.2d 1057, 1068. A mistrial under La. Code Crim. P. art. 771 is at the trial courts discretion and should be granted only where the prejudicial remarks make it impossible for the defendant to obtain a fair trial. See State v. Miles, 98-2396 (La. App. 1st Cir. 6/25/99), 739 So.2d 901, 904, writ denied, 99-2249 (La. 1/28/00), 753 So.2d 231.
The defendant first notes that the trial court made reference to the public defenders office in reference to his attorney during opening remarks of the voir dire. As this court noted in Banks, the-remark at issue does not fall under the mandatory provisions of La. Code Cr. P. art. 770. Further, we find that the remark did not require a mistrial, as it was not so prejudicial that it deprived the defendant of a fair trial. See La. Code Crim. P. art. 771; Banks, 612 So.2d at 825. Moreover, we note that the defendant did not request an admonition, and the trial court agreed to discontinue use of the reference.
Regarding the trial courts use of the word “we” in referencing the fact that evidence had not yet been introduced,
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the defendant concedes that the trial court admonished the jury, but points out that the defense did not agree to the admonishment as sufficient to remedy the error. While the defendant claims he immediately objected, the State contends that the defendants objection was not contemporaneous to the statement at issue. Under La. Code Crim. P. art. 841, a contemporaneous objection is required to preserve an error for appellate review. The purpose of the contemporaneous objection rule is to allow the trial judge the opportunity to rule on the objection and thereby prevent or cure an error. State v. Hilton, 99-1239 (La. App. 1st Cir. 3/31/00), 764 So.2d 1027, 1035, writ denied, 2000-0958 (La. 3/9/01), 786 So.2d 113. Herein, while the comment at issue was made on the second day of trial, to the second panel of potential jurors, the objection was made on the third day of trial, after the voir dire of the third and final panel but before all twelve jurors were selected and sworn. Even assuming the defendants objection was timely, we note that the remark does not fall under the mandatory provisions of La. Code Crim. P. art. 770. Further, we find that the remark at issue did not require a mistrial, as it was not so prejudicial that it deprived the defendant of a fair trial.
Regarding the testimony presented by the Officer Broussard, the officer who interviewed the defendant before the trial, we find that the statements made by the defendant were admissible against him as a party admission under La. Code Evid. art. 801(D)(2)(a). Moreover, evidence of exculpatory, but false, statements is competent and admissible to establish some inference of guilt. The prosecution may prove such declarations of the accused, and then prove their falsity. State v. Roshto, 222 La. 185, 194-95, 62 So.2d 268, 271 (1952); State v. Rubin, 2016-456 (La. App. 3d Cir. 2/1/17), 211 So.3d 532, 543, writ denied, 2017-0406 (La. 12/15/17), 231 So.3d 641 (quoting State v. McFadden, 476 So.2d 413, 419 (La. App. 2d Cir. 1985), writ denied, 480 So.2d 739 (La. 1986).
The defendants fourth claim, that he was not allowed to challenge C.H.’s credibility by exploring the extent of drug use among C.H. and her friends before the incident, is not supported by the record. The record is replete with lengthy examinations of witnesses (including the victim) by defense counsel regarding the use of marijuana and the consumption of alcohol during that time period and on the night in question. Moreover, the witnesses, on direct and cross- examination, readily admitted to their alcohol and drug use that night. The State at one point objected to the relevancy of the line of questioning, which the trial court overruled, noting that the questioning went to the witnesses’ state of mind. Over the States objection, the trial court even allowed defense counsel latitude as he inquired about who became “more social” when drugs were being consumed.
By the time the trial court finally sustained an objection, when the defense counsel asked one of the witnesses who would become the most likely to do things they normally would not do, the jury had already been presented with an abundance of state of mind testimony. Moreover, defense counsel was allowed to proceed with the line of questioning after the trial courts ruling. As the Supreme Court found in Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973), few rights are more fundamental than that of an accused to present witnesses in his own defense. See U.S. Const. amend. VI; La. Const. art. I, § 16. However, the fundamental right to present a defense does not require the trial court to admit irrelevant evidence or evidence with such little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. State v. Ludwig, 423 So.2d 1073, 1079 (La. 1982); State v. Dillon, 2018-0027 (La. App. 1st Cir. 9/21/18), 2018 WL 4520463, at *8. The record shows that the trial as a whole was conducted fairly, and there was ample evidence of the defendants guilt. As previously stated, much credit is accorded to the good sense and fair-mindedness of the jurors who have seen the evidence and heard the arguments and have been instructed by the trial judge that arguments of counsel are not evidence. Bridgewater, 823 So.2d at 902. We do not find that the statements at issue deprived the defendant of a fair trial. Thus, we conclude that the drastic remedy of a mistrial was not warranted in this case. We further find that the defendant was not deprived of his right to present a defense. Thus, we find no merit in assignment of error number two.
PATENT ERROR
Pursuant to La. Code Crim. P. art. 920, this court routinely conducts a review for error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. After a careful review of the record, we have found patent sentencing errors. Specifically, we note that when imposing the sentences, the trial court did not state a parole restriction, as statutorily required on both counts. See La. R.S. 14:42.1(B) (prior to amendment by 2020 La. Acts, No. 32, § 1) (“At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.”); La. R.S. 14:43.1(C)(1) (“without benefit of parole, probation, or suspension of sentence, for not more than ten years.”). While La. R.S. 15:301.1(A) provides that any applicable “without benefits” provision is self-activating, that statute cannot apply where the district court must exercise discretion concerning any portion of the sentence that is to be served without benefit of parole, probation, or suspension of sentence. State v. McKinney, 2015-1503 (La. App. 1st Cir. 4/25/16), 194 So.3d 699, 708-09, writ denied, 2016-0992 (La. 5/12/17), 220 So.3d 747. No such discretion exists, concerning the portion of the sentence to be served without benefits, with respect to the defendants sentence for sexual battery. See La. R.S. 14:43.1(C)(1); see also State v. David, 2006-1050 (La. App. 1st Cir. 2/9/07), 2007 WL 437779, at *1 n.2. However, the defendants sentence for attempted second degree rape is subject to such discretion, as the exact portion of the sentence that would be subject to restriction of benefits is not mandated by the relevant applicable sentencing provision. See La. R.S. 14:42.1(B).
Hence, allowing La. R.S. 15:301.1 (A) to act by operation of law with respect to the defendants sentence for attempted second degree rape would impinge upon the trial courts sentencing discretion. Further, we find the instant case warrants vacating both sentences and remanding to the trial court for resentencing. See State v. Lott, 399 So.2d 1173, 1174 (La. 1981) (“Nevertheless, we cannot say that the error, if made, could have had no impact on the trial courts sentencing determination for either count, or its articulation of sentencing reasons under La. Code Crim. P. art. 894.1.”); State v. Badeaux, 2018-0020 (La. App. 1st Cir. 6/4/18), 251 So.3d 1134, 1139, writ denied, 2018-1066 (La. 3/18/19), 267 So.3d 85 (“The discretion involved in sentencing this defendant on multiple counts distinguishes this case from those where we have corrected a single sentence, and warrants vacating both sentences and remanding to the trial court for resentencing.”). Thus, we vacate the defendants sentences and remand this matter to the trial court for resentencing. See State v. Haynes, 2004-1893 (La. 12/10/04), 889 So.2d 224 (per curiam). Due to the foregoing, it is at this time premature to review the merits of the defendants excessive sentence claims raised in assignment of error number three. See State v. Thompson, 2010-2254 (La. App. 1st Cir. 6/10/11), 2011 WL 3423798, at *1.
CONCLUSION
For the forgoing reasons, the defendants convictions are affirmed, his sentences are vacated, and this matter is remanded to the trial court for resentencing.
CONVICTIONS AFFIRMED, SENTENCES VACATED, REMANDED FOR RESENTENCING.
FOOTNOTES
1
. The victim was twenty years old at the time of the offenses. Herein, due to the nature of the offenses and to protect the victims identity, we will use initials to identify her or refer to her as the victim. See La. R.S. 46:1844(W). The victims friends will be referenced herein by first name only.
2
. Prior to that date, C.H. and the defendant had been communicating for a year on the social media platform Instagram.
3
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, .16 L.Ed.2d 694 (1966).
4
. Nurse Kunjappy defined laceration as an uneven splitting of the skin caused by blunt force trauma. She defined an abrasion as injury caused by friction or rubbing. Nurse Kunjappys report also notes, in part, that the victim refused a speculum exam and that in doing so, the victim stated “she was a virgin and scared of the speculum[.]”
5
. Herein, voir dire was conducted over the course of three days, with one panel of potential jurors being presented for possible selection each day.
6
. Specifically, during voir dire of the second panel, just prior to a lunch break, the trial court stated, “No need to talk about the case — of course we havent put on any evidence and certainly even had an opportunity to be questioned by defense counsel. But lets keep all of that — just — just dont talk about the matter.”
THERIOT, J.