Opinion
NUMBER 2016 KA 1123
02-21-2017
STATE OF LOUISIANA v. DON MICHAEL ANDREW, JR.
Hillar C. Moore, III, D.A. Dylan C. Alge, A.D.A. Baton Rouge, Louisiana Attorneys for Appellee State of Louisiana Sherry Watters La. Appellate Project New Orleans, Louisiana Attorney for Appellant Defendant - Don Michael Andrew, Jr.
NOT DESIGNATED FOR PUBLICATION
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge, Louisiana
Trial Court Number 11-12-0531 Honorable Anthony J. Marabella, Jr., Judge Hillar C. Moore, III, D.A.
Dylan C. Alge, A.D.A.
Baton Rouge, Louisiana Attorneys for Appellee
State of Louisiana Sherry Watters
La. Appellate Project
New Orleans, Louisiana Attorney for Appellant
Defendant - Don Michael Andrew, Jr. BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ. WELCH J.
The defendant, Don Michael Andrew, was charged by bill of information with attempted forcible rape, in violation of La. R.S. 14:42.1 and 14:27, and pled not guilty. After a trial, the defendant was found guilty as charged by a unanimous jury. The trial court denied the defendant's motion for new trial and motion for post-verdict judgment of acquittal. The trial court sentenced the defendant to fifteen years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, assigning error to the sufficiency of the evidence and the trial court's denial of his motion to quash the jury venire. For the following reasons, we affirm the conviction and sentence.
Prior to amendment by 2015 La. Acts No. 184 § 1.
STATEMENT OF FACTS
On or about November 3, 2011, S.Y. (the victim's mother) left her fifteen-year-old daughter T.Y. (the victim), her three-year-old son, and her two-year-old nephew in the care of the defendant (S.Y.'s first cousin), while she and her father went to a nearby Walmart. S.Y. and the children lived in a two bedroom apartment in Baker at the time. According to the victim (who was nineteen years old when the trial took place), the defendant approached the victim while she was sitting on the sofa and grabbed her hand and kissed it. The victim, becoming afraid, pulled her hand back, told the defendant not to do that, and moved away from him. As the victim questioned him about his actions, the defendant took the two toddlers to S.Y.'s bedroom. The defendant closed S.Y.'s bedroom door and pushed the victim away, as she tried to enter her mother's bedroom with the other children.
The victim's date of birth is July 18, 1996. Herein, we use the initials of the victim and her immediate family in order to keep her identity confidential in accordance with La. R.S. 46:1844(W).
Earlier that day, the defendant and his uncle (S.Y.'s father and the victim's grandfather) had given S.Y. and her children a ride to the hospital where the victim was treated for a finger injury that she sustained at school.
The defendant then grabbed the victim by the shoulders and shoved her into the other bedroom, while the victim attempted to get away. The defendant pushed her onto the bed, as she stated, "This can't happen, I don't want this to happen." The defendant told her not to tell anyone, as he got on top of the victim and forced her arms above her head. The victim continued to attempt to get away, but the defendant held her hands at the wrists above her head. The defendant's feet dangled off the bed as his body and legs were on the bed over the victim's body. The defendant again told the victim not to tell anyone, as he pulled the victim's pants partially down, pulled his own pants down, and as the victim further indicated, "tried to put his penis inside of me, but it just wouldn't fit."
S.Y. learned of the incident when the victim requested a family meeting in February of 2012. The request for a meeting prompted S.Y. to read the victim's diary. One of the victim's entries (dated February, 2012) stated in part that she needed to tell her mother that she had been "rape (sic) by [her] cousin Don Andrew." S.Y. reported the incident to the Baker Police Department, and on February 9, 2012, she was interviewed by Detective Avery Johnson. Detective Johnson further interviewed the victim and her grandfather before obtaining a warrant for the defendant's arrest.
Detective Johnson did not record the interview of the victim. He testified that it was against police policy to record interviews of children and that the department did not have access to the Children's Advocacy Center because it was in the process of being developed at the time.
ASSIGNMENT OF ERROR NUMBER ONE
In the first assignment of error, the defendant argues that the victim's account is unworthy of a rational juror's belief due to inconsistencies and embellishments, along with the lack of corroborative or forensic evidence. The defendant contends that the victim's timeline is inconsistent with the timeline presented by her mother and grandfather. The defendant contends that while the victim's mother and grandfather indicated that they were at the nearby store for less than an hour, the victim stated that she watched television and used the computer for hours while they were gone. The defendant also claims that the victim's account of how the incident unfolded are physically impossible, and inconsistent.
In support of his position, the defendant points to the evidence that the victim stated that she returned to the living room to watch television with the defendant after the alleged incident. Further, the defendant asserts that after he left she did not call her mother to tell her about the incident in question, and that when the adults returned she showed no signs of being in a tussle or in tears. The defendant notes the delay in the victim reporting the incident, noting that the victim did not mention the allegations to her family, friends, or anyone at school until February 2012, when she wanted approval to celebrate Mardi Gras. The defendant asserts that the victim's journal entry, written three months after the incident, indicated that the victim's clothes were not removed and was inconsistent with her subsequent claims. The defendant maintains that the victim's conflicting account is not rational, and that the State failed to prove that he had the specific intent to penetrate T.Y. or that he did an act tending directly toward penetration.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, § 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. C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308- 1309 (La. 1988). 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.
Rape is defined, in pertinent part, by La. R.S. 14:41(A) as, "the act of ... vaginal sexual intercourse with a male or female person committed without the person's 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). Forcible rape is defined, 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." La. R.S. 14:42.1(A)(1).
To support a conviction for attempted forcible rape, the State must prove the defendant had the specific intent to commit forcible rape and 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, 129-30, writ denied, 2015-912 (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. 11/25/96), 684 So.2d 382, 390. Specific intent need not be proven as a fact but may be 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.
S.Y. testified that she and the defendant had a good familial relationship before the incident in question, noting that the defendant would sometimes provide her with transportation and she, in turn, would help him with computer projects. Based on her recorded police statement and trial testimony, S.Y. decided to read the victim's diary after the victim requested a family meeting during the Mardi Gras season of 2012. That day, the victim wanted to go to New Orleans for Mardi Gras, but S.Y. did not allow her to do so. When S.Y. later began questioning the victim about the reason for the meeting, the victim remained secretive. S.Y. went into the victim's bedroom, while the victim was in another room, and began searching the victim's diary for a clue regarding the reason for the request for a family meeting and saw the entry written that day. The single-page entry states as follows:
I have to tell my mother something. But I am afraid of telling her. Because I don't know how to tell her. What I have to tell her is that I have been rape by my cousin Don Andrew. I am going to tell you how it all happen. Ok, that Thursday at school I had cut my finger wide open. And I had to go to the hospital. I couldn't go that same day because I didn't have a way. So that night my mom called papa and told him what happen. And he said he will be up here in the morning. My mom said ok. Papa had come with Don. When they got here my mom was in the back room. And papa was in the kitchen. I ask my mom to tie my shoe and papa told Don to tie my shoe. And took my hand and kiss it. I am going to get straight to the point. [entry ends].
S.Y. did not regularly read her daughter's diary, noting that she had only read it "maybe once" before this day. However, the victim had been increasingly verbally combative. S.Y. specifically described the victim's behavior as follows, "having words ... If I say something ... how teenagers have word for word with their parents." After S.Y. read the diary entry, she called her sister, E.J., and her father, D.J. While S.Y. was on the phone, T.Y. heard her referring to the diary and got upset about her mother reading it, stating that it was personal and not her mother's business. After the victim confirmed the information in the diary, S.Y. called the Baker Police Department. S.Y. indicated that the victim did not say whether or not the defendant was able to penetrate her. Later, on February 22, 2012, S.Y. took the victim to Baton Rouge General Hospital where a pregnancy test was conducted and confirmed that the victim was not pregnant. A rape kit was not performed due to the fact that the incident was alleged to have occurred nearly four months before the victim was taken to the hospital.
S.Y. had difficulty recalling specific dates and the chronology of events, noting that the incident happened long before the trial. During cross-examination, S.Y. stated that she took the victim to the hospital before she spoke with the police. However, subsequent testimony, documentation in the record (the hospital release forms signed by S.Y. on February 22, 2012), and the date of her recorded police interview, indicate that she was interviewed by the police before the victim was taken to the hospital. Detective Johnson specifically confirmed that his interview was a follow-up to the initial complaint taken by Sergeant Keith London.
After learning of the incident, S.Y. recalled the day in question, noting that the defendant had given her and the children a ride to the emergency room because T.Y. had badly injured her finger at school and her son was sick. S.Y.'s father, D.J., who lived in New Orleans, arrived to Baton Rouge with the defendant that day. After they stopped to get medicine, the defendant took them back to the apartment. S.Y. asked the defendant to take her to the Wal-Mart (which she estimated as being located about six minutes from the apartment), but he declined, stating that he was too tired. Instead, her father used the defendant's vehicle to take her to Wal-Mart, while the defendant stayed at the apartment with the children. She noted that they shopped at Wal-Mart for about an hour before attempting to leave, but the defendant's vehicle would not start. After looking for help, they called the defendant. By the time the defendant arrived on foot, they had found someone with jumper cables to help them start the vehicle. The defendant then drove them back to the apartment. After S.Y. brought her groceries in, the defendant suddenly stated that he had to go pick someone up from the bus station and hurriedly left the house, leaving S.Y.'s father behind. S.Y.'s sister had to take their father back to New Orleans.
E.J., the victim's aunt and S.Y.'s sister, testified at the trial. E.J. stated that she came to Wal-Mart on the day in question to help her father and sister start the defendant's car. Her father then called her, as she was on her way home from the Wal-Mart parking lot, and told her that he needed a ride back to New Orleans. He stated that the defendant had left him even though he had paid him to bring him to Baton Rouge and back home. E.J. brought her father home at his request. E.J. also recalled the telephone conversation with S.Y. (presumably regarding the instant incident), noting that S.Y. was crying, disturbed, and emotional. E.J. subsequently took S.Y. and the victim to the hospital in February 2012. E.J. stayed at the hospital while the victim was evaluated. She noted that her sister was disturbed, upset, and angry at the time, and the victim appeared sad, distant, and ashamed.
D.J., the victim's maternal grandfather and the defendant's uncle, also testified. D.J. confirmed the sequence of events as indicated by S.Y. and E.J., noting that he lived in the New Orleans area and that the defendant brought him to Baton Rouge on the day in question to bring the victim to the hospital for an injury to her hand that happened at school. He further noted that his grandson was also sick that day. D.J. also confirmed that he subsequently used the defendant's van to take S.Y. to the Wal-Mart located two miles or less from the apartment. D.J. noted that the defendant did not want to go to the store, and that they were gone for "probably over an hour." He noted that when they tried to leave the store, the defendant's vehicle would not start and they asked several customers for assistance before calling E.J. and asking her to bring battery cables. He also recalled calling the defendant, but noted that someone else helped them before either E.J. or the defendant could assist. D.J. stated that he did not know how the defendant got to the Wal-Mart, but noted that he was on-foot when he saw him, and that his van was working when he arrived. When they got back to the apartment, the defendant stated that he received an emergency phone call from someone in New Orleans requiring his immediate presence and that he had to go. D.J. did not actually see the defendant on the phone before the defendant left. D.J. called his daughter E.J., who came to the apartment and gave her father a ride home. D.J. also recalled subsequently getting a telephone call from S.Y. about the incident in question, after which he called the defendant and questioned him about the allegations. While D.J. was not examined regarding the defendant's response to his inquiries, he stated that he felt different about the defendant after the allegations. D.J. also questioned the victim, noting that she was irritated and upset.
The victim similarly testified as to the events leading up to the offense. She had injured her hand and her finger at school in a wood shop class and her finger was further injured while still at school that same day. The next day the defendant, whom she referred to as "Don," and her grandfather ("Papa") took her to the hospital. After she was treated at the hospital, they went to the pharmacy to get her prescription, and then they went back to the apartment. She recalled S.Y. asking Don to take her to the store, and Don stating that he was too tired. The victim initially watched television before using the computer for a while, and returning to the living room sofa to watch more television.
At that point the defendant approached her, grabbed her hand, and kissed her hand before placing the small children into S.Y.'s bedroom and forcing the victim into her bedroom. The victim testified that she was crying, nervous, and scared during the incident and that the defendant, who was forty-years old at the time, was able to force her into the bedroom onto the bed and pull down her clothing because he was bigger, taller, and stronger than her, as well as aggressive. The victim saw the defendant's penis when he pulled his pants down. She recounted fighting to try to pull her clothes back up, as the defendant unbuckled her pants and pulled them down to "about" or "above" her kneecaps. The victim testified that she was scared and would "kind of blank out" as the defendant attempted to penetrate her with his penis; however, it would not fit. She noted that she squirmed and tried to get up, but did not know what to do as the defendant forcefully used both of his hands.
When asked again about the possibility of penetration, the victim testified, "No Ma'am, 'cause by the -- 'cause I was tight." When asked how the defendant stopped, she stated that she was ultimately able to maneuver her body from underneath the defendant and ran into her mother's bedroom where the other children were located. She stated that the incident lasted for about ten minutes, and that she took the other children into the bathroom with her as she tried to clean herself, noting that she felt dirty. The victim then sat on the floor in the hallway until the defendant left after receiving a call from the victim's mother after his van "had broke down." The victim testified that she was "kind of happy" that they called the defendant for help, but she was still "nervous, scared." The victim did not say anything about the incident when her mother and grandfather got back home. She stated that she was not crying, but just could not say anything. According to the victim, after the incident she felt as if her life was over. She subsequently testified that she started getting into more trouble at school, and was even arrested when she was sixteen-years old for an incident involving marijuana.
The victim testified that she was going to tell her mother about the incident when she requested the family meeting in February of 2012, noting that she was depressed, kept thinking about it over the months, would cry herself to sleep every night, and that her grades started falling. She stated that writing it in her diary first helped her cope with her feelings. She explained that her mother found the diary before she could finish writing all of the details of the incident as she planned. The victim stated that she was surprised that her mother read her diary, but thought that the truth was finally coming out. The victim was upset and crying, noting that her mother called her grandfather and other family members.
The victim re-identified the body parts on the anatomical diagrams in evidence, including the identification of a penis as the part of the body the defendant used to touch her. When questioned again about whether she told Detective Johnson that the defendant did not penetrate her, the victim testified, "Penetration is when he tried to go inside and I told him that he didn't go inside of me, that it just touched me. He tried to put his penis in me [her vagina], but it didn't go because I was tight."
Detective Johnson interviewed the victim after receiving permission from her mother, noting that he picked her up from school and brought her to the Baker Police Department days after the recorded interview of her mother. He testified that the victim's mother did not indicate that the victim had been penetrated, but stated that the defendant pulled the victim's pants partially down (to her upper hip area) according to her daughter. He also confirmed that S.Y. indicated that the victim told her that the defendant pushed her on the bed and gotten on top of her, pulled his pants down and exposed his penis, that he pulled the victim's pants down as she tried to pull them back up, and that he was on top of the victim when his penis was exposed. Detective Johnson did not ask the victim if the defendant's penis was touching her body when he was on top of her.
The defendant herein presented the hypothesis of innocence that there was no attempt at penetration or that the victim was not credible. In finding the defendant guilty of attempted forcible rape, the jury believed the testimony and pretrial statements of the victim and rejected the defense's claim. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, 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. Richardson, 459 So.2d 31, 38 (La. App. 1st Cir. 1984). The testimony of the victim alone is sufficient to prove the elements of the offense. State v. Hampton, 97-2096 (La. App. 1st Cir. 6/29/98), 716 So.2d 417, 418. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984).
The victim vividly and consistently described the situation wherein the defendant forcefully pushed her onto the bed, pulled down his pants, and exposed his penis, during which she was physically unable to prevent him from getting on top of her. The defendant pulled down the victim's pants and tried to put his penis in her vagina, but was physically prevented from doing so because of the victim's physical condition. Under the circumstances herein, the jury could have reasonably concluded that the defendant had the specific intent to penetrate the victim by force and that he committed acts in furtherance of his intent. In reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662. 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. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). Viewing the evidence presented in this case in the light most favorable to the State, we are convinced that any rational trier of fact could find that the evidence proved beyond a reasonable doubt, and to the exclusion of the hypotheses of innocence raised by the defendant, all of the elements of attempted forcible rape. Thus, we find that the first assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER TWO
In assignment of error number two, the defendant contends that the trial court erred in failing to quash the petit jury venire. The defendant notes thirty percent of his petit venire were African-American and that they were all female, despite the 2013 Census Bureau estimation that African-American males represented forty-six percent of the adults in East Baton Rouge Parish and forty-two percent of the registered voters. The defendant further notes that he was not allowed a hearing on whether the use of voter registration rolls was discriminating against African-American males and was further not allowed to subpoena the officials need to further establish his claim. The defendant argues that his jury venire was formed in a way that systematically excluded African-Americans and, more specifically, African-American males. The defendant contends that in an attempted rape case, gender disparity is as significant as racial disparity. The defendant concludes that the case should, at the very least be remanded for a hearing on the method for empaneling the petit jury venire.
A motion to quash based on the ground the petit jury venire was unconstitutionally drawn should be filed in writing prior to the beginning of the jury selection. See La. C.Cr.P. arts. 521, 532(9) and 535(C); State v. Pooler, 96-1794 (La. App. 1st Cir. 5/9/97), 696 So.2d 22, 39, writ denied, 97-1470 (La. 11/14/97), 703 So.2d 1288. Herein, the record shows that the defendant's initial challenge of the jury venire, orally in open court, came after the voir dire of the first panel of prospective jurors. The defendant's written motion to quash was filed the next day, after several jurors had been selected, sworn, and empaneled from two panels of prospective jurors. Therefore, the defendant did not timely raise his challenge to the jury venire's composition and any grounds for that potential motion were waived. See La. C.Cr.P. art. 535(D).
Moreover, a general jury venire "shall not be set aside for any reason unless fraud has been practiced, some great wrong committed that would work irreparable injury to the defendant, or unless persons were systematically excluded from the venires solely upon the basis of race." La. C.Cr.P. art. 419(A). The defendant bears the burden of proving the grounds for setting aside the venire. State v. Liner, 397 So.2d 506, 516 (La. 1981); State v. Manning, 380 So.2d 54, 57 (La. 1980). That burden of proof requires that the defendant show more than the underrepresentation of African-Americans on the petit jury venire in order to prove a systematic exclusion of African-Americans. Id.; State v. Anderson, 315 So.2d 266, 267 (La. 1975). The law requires that there must not be a systematic exclusion of African-Americans in the source or sources from which jury venires are chosen. Further, a defendant is not entitled to a petit jury which reflects the population of the community in every respect. "Defendants are not entitled to a jury of any particular composition." Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690 (1975); see also State v. George, 371 So.2d 762, 764 (La. 1979), cert. denied, 444 U.S. 953, 100 S.Ct. 430, 62 L.Ed.2d 325 (1979). A jury comprising a complete representation of the various groups within the community would be virtually impossible to seat. State v. Lee, 559 So.2d 1310, 1313-14 (La. 1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991).
Herein, the defendant failed to show or even argue that the venire should be quashed because "persons were systematically excluded from the venires solely upon the basis of race." La. C.Cr.P. art. 419(A). During the argument on the motion to quash, the defense counsel did not specifically allege fraud and offered no evidence of discrimination or irreparable injury attributable to the petit jury venire. Other than arguing that no African-American males were in the venire, seemingly conceding the trial court's recognition of the presence of African-American females, the defendant made no effort to establish his claim. In his motion to quash, the defendant notes that East Baton Rouge Parish relies heavily on voter registration in the composition of its petit jury venires. We note that La. C.Cr.P. art. 408.1 specifically allows for the exclusive use of voter registration rolls to call jury venires. It is well settled that the use of voter registration lists as the sole source from which a venire is compiled is a constitutionally sound practice unless the defendant can show that such a practice discriminates against a certain class of persons to the extent that the venire does not represent a fair cross section of the community. State v. Berry, 95-1610 (La. App. 1st Cir. 11/8/96), 684 So.2d 439, 446, writ denied, 97-278 (La. 10/10/97), 703 So.2d 603. Based on the record before us, we find that the trial court properly denied the defendant's motion to quash the petit jury venire. The second assignment of error is without merit.
The defendant's request for a subpoena of the jury summons, any excusals, and the list of jurors assigned to each section of the court, was contained in the motion to quash filed the day after the oral objection (the second day of the jury examination). A court shall vacate or modify a subpoena if it is unreasonable or oppressive. La. C.Cr.P. art. 732. Herein, the defendant chose to wait until the second day of the trial to make such a request, further asking for at least three days to analyze the data upon its receipt. We find no error in the trial court's denial of the defendant's request. See State v. Graham, 422 So.2d 123, 135 (La. 1982); State v. Tucker, 49,950 (La. App. 2nd Cir. 7/8/15), 170 So.3d 394, 417, writ denied, 2013-0814 (La. 5/24/13), 117 So.3d 104. --------
For the foregoing reasons, the defendant's conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.