Opinion
2016 KA 0081
09-16-2016
STATE OF LOUISIANA v. LOVIC WAYNE COTTON
Jerry Fontenot Covington, Louisiana Attorney for Appellant/Defendant, Lovic Wayne Cotton Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana Attorneys for Appellee, State of Louisiana
NOT DESIGNATED FOR PUBLICATION On Appeal from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana
Trial Court No. 526858, Div. "B" The Honorable August J. Hand, Judge Presiding Jerry Fontenot
Covington, Louisiana Attorney for Appellant/Defendant,
Lovic Wayne Cotton Warren L. Montgomery
District Attorney
Matthew Caplan
Assistant District Attorney
Covington, Louisiana Attorneys for Appellee,
State of Louisiana BEFORE: PETTIGREW, McDONALD, AND DRAKE, JJ. DRAKE, J.
The State of Louisiana charged the defendant, Lovic Wayne Cotton, by bill of information with sexual battery on a victim under the age of thirteen years, a violation of La. R.S. 14:43.1(C)(2). The defendant entered a plea of not guilty, and, following a trial, a jury found the defendant guilty as charged. The trial court denied the defendant's motion for post-verdict judgment of acquittal and motion for new trial. The trial court sentenced the defendant to forty years imprisonment at hard labor, with twenty-five years to be served without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, assigning error to the trial court's admission of hearsay and testimony on the ultimate issue of fact, to the trial court's denial of his motion for new trial, and to the constitutionality of his sentence. For the following reasons, we affirm the conviction and sentence.
STATEMENT OF FACTS
In early 2012, while T.T. (the victim) was seven years old and in the first grade, her step-grandfather (the defendant) began touching her inappropriately while she was at his and her grandmother's house after school. T.T.'s grandmother routinely picked her up after school from January 2012, until March 29, 2012, the day of the final incident of abuse. According to T.T.'s pretrial and trial statements, during that time period (on four or five separate after-school occasions) the defendant would "rub his hand back-and-[forth], in between [her] private part" as she sat with him in his recliner chair with a blanket covering her lower body. The victim confirmed that the term she used, "private part," was a reference to her vaginal area and that as to each incident the defendant touched her bare skin underneath her panties. T.T.'s grandmother was at home on these occasions. The defendant would immediately discontinue the touching after T.T. would either remove the blanket to preclude concealment, or stand up and move away from the chair.
Herein, we identify the victim only by her initials. See La. R.S. 46:1844(W).
On March 29, 2012, the day of the final incident, T.T. made a disclosure to her grandmother, who perceived the conveyed contact as nonsexual, "tummy rubs." Later that night, the victim's mother questioned her when she saw her touching her private area, and the victim first indicated that she was itching. After her mother asked if anyone had touched her, the victim divulged the defendant's actions to her mother who immediately halted the grandparent visits and subsequently moved out of her home, which was located within walking distance of the grandparents' residence. The victim was subsequently interviewed, examined, and counseled at the Children's Advocacy Center (CAC) Hope House and the New Orleans Children's Hospital Audrey Hepburn Center.
HEARSAY
In his first assignment of error, the defendant contends that the trial court erred in allowing the State's witness, Ann Troy, to testify under the hearsay exception for statements made for the purposes of medical treatment and medical diagnosis in connection with treatment. The defendant notes that Troy testified that she is a forensic nurse practitioner who does not provide medical treatment and that the victim was referred to her from the St. Tammany Parish Sheriff's Department. The defendant also notes that the State did not limit Troy's testimony to forensic findings or an opinion regarding the victim's injury or lack thereof. The defendant argues that the State presented repetitive factual accounts, that included Troy's testimony that was "draped in a mantle of authority and reliability," to emotionally appeal to the jurors and exaggerate the weight of the evidence. The defendant contends that Troy's prejudicial testimony, in conjunction with the other errors listed on appeal, caused irreparable harm.
In his second assignment of error, the defendant raises hearsay claims regarding the testimony of the State's witness Earnisha Lott, a CAC counselor. Claiming that the defense did not call the victim's veracity or credibility into question, the defendant notes that the State presented repetitive hearsay testimony under the guise of rebutting a charge of recent fabrication or improper influence or motive. The defendant argues that comments and hypothetical concepts addressed during voir dire do not equate to positions taken at trial. The defendant further contends that the defense's opening argument claim that the jury would not believe the State's case was clarified during the defense's closing arguments that the victim was mistaken. Citing the cross-examination of JoBeth Rickles, an expert witness for the State, and closing arguments, the defendant contends that the defense merely argued that the victim may have been mistaken on one or more points but that he was not challenging the victim's veracity or accusing her of maliciously lying. The defendant further argues that Lott's testimony should not have been admitted under the hearsay exception for statements made for the purposes of medical treatment and medical diagnosis in connection with treatment. The defendant notes that Lott was tendered as a fact witness despite being initially called as an expert witness. The defendant contends that any testimony by Lott as to counseling lacked foundation as to the type of treatment she provided. The defendant also contends that the CAC, of which Lott was an associate, played a forensic role in the investigation. In arguing that the admission of Lott's testimony at issue was not harmless, the defendant notes that the State was allowed to repeatedly introduce evidence of the victim's claims, including her own testimony, her taped CAC interview, her mother's testimony, and Rickles's testimony.
Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801(C). Hearsay is not admissible except as otherwise provided by the Louisiana Code of Evidence or other legislation. La. C.E. art. 802. A relevant declaration may be legally inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misapplication by the jury. See La. C.E. art. 403.
Testimony of Ann Troy
As the defendant notes on appeal, during the trial the State elicited testimony from Ann Troy, a nurse practitioner at the Children's Hospital, regarding her interview and examination of the victim on April 18, 2012. Troy was accepted as an expert in medical forensic examination, diagnosis of sexually transmitted diseases, and head-to-toe evaluation of the body to insure genitals were not injured. The defense objected to the State's broad inquiry on Troy's direct examination regarding the victim's account to her of the sexual abuse. The trial court stated that it would allow some latitude for Troy's response. Regarding the victim's account, Troy testified, "She provided a history that she had been in the living room chair, that there was a blanket placed over her. And that she was on the chair with pawpaw, and that he touched her front vaginal area." As Troy attempted to relay the rest of the victim's account, the defense objected followed by the trial court's stating that Troy had given a sufficient factual history. The trial court agreed with the defense's argument that the State should ask specific questions regarding Troy's physical findings as opposed to eliciting a narrative from her.
Following the trial court's ruling, there were no further defense objections. The State asked Troy what history of sexual abuse the victim relayed that facilitated a medical diagnosis. In response, Troy testified, "She told me that there was vaginal contact more than one time under her clothing, and that she told her grandmother and then told her mother who believed her." Troy described the victim's statements as "clear, and detailed, and spontaneous and consistent." Noting that her examination took place eighteen days after the final incident, Troy stated that her physical findings were consistent with the history provided by the victim. Troy testified that the victim had a normal hymen, which she stated was consistent with ninety-five percent of the children she examines, and nonspecific redness to her labia. On cross-examination, Troy confirmed her role as a forensic nurse practitioner who sees children who have a concerned parent or pediatrician.
Louisiana Code of Evidence article 803(4) allows an exception to the hearsay rule for statements made for the purposes of medical treatment and medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis in connection with treatment. Such statements are not excluded by the hearsay rule under Article 803(4) and are therefore admissible as substantive evidence.
The hearsay exception provided by Article 803(4) has received particular application in cases of child sexual abuse, including statements of fault, because the legislature has expressed an overriding interest in protecting child victims of sexual abuse by encouraging the admission of reliable hearsay evidence for the trial court to weigh. State v. Koederitz, 2014-1526 (La. 3/17/15), 166 So. 3d 981, 985-86 (per curiam); Folse v. Folse, 98-1976 (La. 6/29/99), 738 So. 2d 1040, 1050; State v. Brown, 97-2260 (La. App. 4 Cir. 10/6/99), 746 So. 2d 643, 648 (quoting Folse and upholding admission of six-year old victim's statement to a hospital physician that her father had put his penis in her).
While the defendant argues that Troy's testimony did not fall within the hearsay exception of Article 803(4), because her testimony in part conveyed the forensic nature of her role in the case, we note that Troy was the first medical professional to see the victim. Troy examined the victim for the purposes of medical diagnosis and treatment. Troy defined a nurse practitioner as an advanced nurse in terms of her qualifications to diagnose and to treat independently. Troy testified that she sent urine samples taken from the victim to be tested for gonorrhea and chlamydia and examined the victim for herpes and genital warts. Troy further testified that parents were routinely instructed to bring the children back for additional testing such as blood work for HIV or syphilis diagnoses, if the history continued. Thus, Troy's interview and examination of the victim supplied Troy with critical information so that she might recommend treatment if necessary. The fact that the victim did not require treatment in this case does not preclude the application of the statutory exception. See State In Interest of D.S., 96-1820 (La. App. 1 Cir. 9/24/96), 694 So. 2d 327, 331 (per curiam), writ denied, 96-2395 (La. 12/6/96), 684 So. 2d 930. Thus, we find that Troy's testimony was properly admitted pursuant to La. C.E. art. 803(4).
Testimony of Earniesha Lott
Prior to Earniesha Lott's trial testimony, the defense raised a hearsay objection, noting in part that Lott was a counselor as opposed to a medical provider. Further the defense counsel argued that the probative value of Lott's testimony would be outweighed by its prejudicial effect, citing La. C.E. arts. 402 and 403. The State argued that Lott's testimony was admissible under La. C.E. art. 801(D)(1)(b), to rebut consistent implications by the defense that the victim was lying, specifically citing the voir dire and cross-examination of JoBeth Rickles. The State further argued that Lott's testimony could be allowed under La. C.E. art. 804(B)(5) as a trustworthy complaint of sexually assaultive behavior made by a person under the age of twelve years. The trial court ruled that Lott would not be allowed to testify from her report, but that the State would be allowed to elicit testimony from her regarding the nature of the complaint and consistency of the victim's factual basis for counseling or treatment. The defense counsel then argued that the victim's veracity was never questioned. In response, the trial court stated that the defense counsel had previously suggested that there were "perhaps influences or suggestions" made to the victim that may explain "why the child believes what she believes."
After the trial court's ruling, the State elicited testimony from Lott regarding the history given by the victim that caused her to need counseling. In response, Lott testified that the victim disclosed that she had been touched on her vaginal area by her grandfather, the defendant. Lott confirmed that during the time period that she counseled the victim, from April 17 through the summer of 2012, there were no inconsistencies. She further indicated that she assisted the victim emotionally.
At the outset we note that La. C.E. art. 804(B)(5) is not applicable to Lott's challenged testimony and though raised by the State, was not relied upon by the trial court. Article 804(B)(5) provides that a statement is not excluded by the hearsay rule if the declarant was unavailable as a witness and the statement was made by a person under the age of twelve and was one of initial or otherwise trustworthy complaint of sexually assaultive behavior. State v. Johnson, 97-1519 (La. App. 4 Cir. 1/27/99), 726 So. 2d 1126, 1131, writ denied, 99-0646 (La. 8/25/99), 747 So. 2d 56. In this case, the declarant, T.T., was available and did in fact testify as a witness.
We now turn to the trial court's basis for admitting Lott's testimony. A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive. La. C.E. art. 801(D)(1)(b). Herein, the defendant argues that his statements during voir dire and opening arguments should not be considered in determining whether the defense made a charge of fabrication or improper influence or motive. However, in State v. Domino, 97-0261 (La. App. 1 Cir. 2/20/98), 708 So. 2d 1143, this court found otherwise. In Domino, the prosecutor sought to introduce taped witness statements under Article 801(D)(1)(b) to rebut the defense's assertion that the witnesses were biased because of their relationship to the victim. In upholding the trial court's admission of the taped statements, this court noted that the defense counsel suggested during voir dire and in his opening statement that the State might not be presenting the whole story, and that the witnesses may have been biased against the defendant therein. Domino, 708 So. 2d at 1145. Moreover, the Handbook on Louisiana Evidence Law cites Domino, in pertinent part, in interpreting Article 801(D)(1)(b):
Robert Force & Gerard A. Rault, Jr., Handbook on Louisiana Evidence Law 675, Authors' Note (3) to La. C.E. art. 801 (2015). --------
The Subparagraph speaks of response to an express or implied "charge" rather than to the introduction of "evidence." State v. Domino, 708 So. 2d 1143 (La. Ct. App. 1st Cir. 1998) seems correct, therefore, in concluding that the required charge may come by way of opposing counsel's voir dire and opening statement suggestions that the witness-declarants may be biased or may have colluded against his client.
As the defendant admits on appeal, in the instant case the defendant raised the victim's credibility during voir dire and opening statements, as was done in Domino. During the voir dire, the defense attorney included lengthy prologues in questioning the potential jurors about their duty to determine whether they believe or do not believe each witness. Noting that such a credibility determination could involve the possibility of a witness being mistaken, the defense attorney further stated in part, "it's probably too simple to say either someone is telling you the truth or they're lying." The discussion on credibility continued as the defense attorney stressed the possibility of mistakes or inaccuracies, specifically stating for example, "Because if children are very honest and it doesn't really matter if they're more honest or less honest than adults -- are they always as accurate?"
The defense further raised the issue of "suggestible power" that one person may have over another and asked the jurors if they believed that a child would not make a sexual abuse accusation if nothing happened to them. The State made several objections as the defense continued to present scenarios regarding the tendency to believe or disbelieve a child witness. The defense attorney raised the same issues with the second jury panel, including lengthy presentations before questioning the jurors individually.
During opening arguments, the defense attorney stated that the victim's accusations would be repeated by several witnesses, asking the jury to listen for discrepancies, and to make note of the source. The defense attorney concluded, "And I can tell you 1,000 different ways why the evidence is not going to add up. You are just not going to believe the things that you hear. The repetitive accusation. The lack of detail." The defense then informed the jury that they would hear the defendant's own "powerful" statement that he was not guilty.
In addition to his voir dire and opening statement, the defense attorney raised the victim's credibility during the questioning of several witnesses, including Rickles. In addition to raising the possibility of the victim being mistaken, the defense attorney also asked questions with implications as to improper influence or suggestibility. The defense attorney questioned witnesses as to whether the victim made pretrial statements that conflicted with her trial testimony by inconsistently indicating that the defendant touched her above her genitals or in a "higher area." Moreover, the defense attorney questioned the victim as to whether her father would rub her on the belly, or touch her in the way that she claimed the defendant had touched her while in the recliner.
Finally, as the defense attorney informed the jury in opening arguments, the defendant testified that he was not guilty. The defendant testified that he sometimes gave the victim back and belly rubs when she would ask (at or around the ages of four or five years) but discontinued as she got older, and that he did not rub her belly on the date that she made the accusation. The defendant also indicated that the victim's mother did not like him. The defendant testified that he was in shock when the victim made accusations that he described as follows, "she said I rubbed her belly too low." During his pretrial interview and trial testimony, the defendant specifically denied ever touching the victim's private area.
We agree with the trial court's determination that defense counsel's strategy was to suggest the victim was not being truthful or consistent and was being influenced. Given the highly probative value of the evidence in question in assisting the jurors in assessing the victim's credibility, we find that the danger of unfair prejudice, confusion, or misapplication was substantially outweighed. Considering all of the foregoing conclusions, we find no error in the trial court's admission of the challenged testimony of Troy and Lott. Assignments of error numbers one and two lack merit.
OPINION TESTIMONY BY JOBETH RICKLES
In his third assignment of error, the defendant contends that the trial court erred in allowing the State's expert witness, JoBeth Rickles, to testify regarding the ultimate issue of fact. The defendant specifically notes the State was allowed to question Rickles on her opinion as to the victim's truthfulness, which formed the basis for a defense objection that was overruled and a motion for mistrial that was denied. The defendant argues that the questioning, when combined with the introduction of impermissible hearsay, resulted in an unfair trial. The defendant argues that the ultimate issue was taken from the jury and placed in the hands of the State's expert witness.
Rickles, a forensic interviewer with the CAC and expert in forensic interviewing of sexually abused children, interviewed the victim on April 3, 2012. While acknowledging that Rickles's testimony was in general legally permissible, the defendant challenges the following line of questioning during the State's redirect examination:
Q. Now, let's take this hypothetical since defense counsel reminded me I could do that. If you have a first disclosure that is exactly equivalent to the second disclosure to another person, that's exactly equivalent to a third disclosure to another person, and a fourth disclosure that is exactly similar to another person, all are consistent, in your opinion, is the consistency of those disclosures a valid complaint indicating the victim is telling the truth?
***
A. All right. Consistency is a factor in whether a child is telling the truth whenever they're at a young age. It counts for something, most definitely.
Just before Rickles answered the above question, the defense attorney objected and requested a bench conference. The defense specifically argued that the question was outside of the realm of Rickles's expertise. He contended that Rickles should not be allowed to testify to the victim's truthfulness, and that the argumentative nature of the question would render her response impermissible testimony on the ultimate issue and constitute grounds for a mistrial. The trial court overruled the objection.
Louisiana Code of Evidence article 702 dictates the admissibility of expert testimony. Under Article 702, in part, a qualified expert may testify in the form of an opinion or otherwise if "[t]he expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine fact in issue." Competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge whose rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So. 2d 1219, 1239-40, cert. denied, 546 U.S. 883, 126 S. Ct. 182, 163 L. Ed. 2d 187 (2005). Credibility determinations are made by the trier of fact. See State v. Taylor, 97-2261 (La. App. 1 Cir. 9/25/98), 721 So. 2d 929, 932.
Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused. La. C.E. art. 704. Thus, an expert's opinion in a criminal case is not inadmissible merely because it embraces an ultimate issue to be decided by the jury, except that the expert cannot express an opinion as to the guilt or innocence of the accused. State v. Trahan, 93-1116 (La. App. 1 Cir. 5/20/94), 637 So. 2d 694, 704-05.
We find that Rickles's testimony did not consist of an unequivocal expression of her opinion as to the defendant's guilt or innocence. Rickles simply stated that consistency would be a factor or "counts for something" in deciding whether a child is telling the truth. Noting that the victim only made one disclosure in her presence, Rickles was unable to confirm whether the victim in the instant case had been consistent or inconsistent. Thus, we find that Rickles's testimony did not violate La. C.E. art. 704, and the trial court did not abuse its discretion by admitting such testimony. Assignment of error number three is without merit.
MOTION FOR NEW TRIAL
In his fourth assignment of error, the defendant argues that the trial court erred in denying his motion for a new trial based on the prosecutor's behavior and alleged improper line of questioning that "poisoned" the jury and deprived him of a fair trial. The defendant contends that the prosecutor flagrantly ignored the trial court's rulings that were not in the State's favor and made repeated improper and disruptive objections (even in voir dire and opening arguments). The defendant further contends that the State misstated the primary line of defense in order to present inadmissible hearsay (see assignment of error number two). Further, the defendant contends that the State misquoted the defense counsel and/or witnesses, citing the State's claim that the defense counsel argued that the instant case was brought due to leading questions by the State's expert JoBeth Rickles during her pretrial interview of the victim. Finally, the defendant contends that the State prejudiced the jury against the defendant with non-evidentiary, non-probative allegations by asking blatantly improper and prejudicial questions (such as asking the defendant whether he ever wanted to sit on the victim's face).
In the defendant's motion for a new trial, he specifically argues that the trial court improperly admitted prejudicial evidence that was used solely to bolster the victim's credibility. The motion further states that the prosecutor engaged in a prejudicial pattern of behavior that disregarded the court's ruling. In support of the motion, the defense attorney argued that the prosecutor's unprofessional, unethical conduct prevented the defendant from having a fair trial.
The only particular example given by the defendant at the hearing and re-raised herein on appeal relates to the State asking the defendant during cross-examination whether he ever expressed any interest in having the victim sit on his face. The defense attorney objected to the question, arguing that it was ridiculous and inappropriate, and requested a mistrial. The trial court granted the objection, instructed the State to rephrase the question, and admonished the jury to ignore the question. The trial court granted the defense attorney's subsequent objection after the State asked the defendant if he ever told the victim that he wanted to sit on her face. The State then rephrased the question by vaguely asking the defendant if he ever expressed an interest "to do that" with the victim. The defense attorney objected again and re-urged his motion for a mistrial. The trial court denied the motion, stated it would re-admonish the jury, and instructed the State to generally ask the defendant if he ever suggested anything sexual to the victim. The trial court informed the jury that it considered the State's initial question offensive and noted that the State was instructed to rephrase the question in a more appropriate manner. As instructed, the State asked the defendant if he asked the victim to do anything sexually inappropriate with him, which he also denied.
Prior to the challenged line of questioning detailed above, the State questioned the defendant regarding his pretrial and trial claim that a few months before the victim's instant accusations, she told the defendant that she wanted to sit on his face, which he testified that he found unusual but did not report. The defendant was further questioned on the issue on redirect examination at which time the State objected when the defendant confirmed that he did not consider the victim's statement to be sexual.
The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded. La. C.Cr.P. art. 851(A). Article 851, in pertinent part, further states that the court, on motion of the defendant, shall grant a new trial whenever the court's ruling on a written motion, or an objection made during the proceedings, shows prejudicial error. La. C.Cr.P. art. 851(B)(2). The trial court's denial of a motion for new trial will not be disturbed absent a clear abuse of discretion. State v. Maize, 94-0736 (La. App. 1 Cir. 5/5/95), 655 So.2d 500, 517, writ denied, 95-1894 (La. 12/15/95), 664 So. 2d 451.
In denying the motion for new trial, the trial court noted that the jury was admonished and that the prosecutorial statements did not rise to the level to cause a mistrial. The prosecutor's apparent intent in this line of questioning was to rebut the defendant's claim that the victim made an inappropriate request to the defendant. We find that the references did not substantially prejudice the defendant such that he was deprived of any reasonable expectation of a fair trial, and the trial court's admonition was sufficient to assure the defendant a fair trial. After carefully reviewing the record, we are convinced that there was no abuse of discretion in the trial court's denial of the motion for new trial. The defense failed to show that alleged prosecutorial misconduct had caused the defendant injustice. See State v. McCants, 93-1703 (La. App. 1 Cir. 10/7/94), 644 So. 2d 752, 758.
EXCESSIVE SENTENCE
In his final assignment of error, the defendant argues that the sentence imposed by the trial court is excessive. The defendant contends that the trial court acknowledged the imposed sentence as basically a life sentence but failed to consider whether such a sentence was appropriate in this case. The defendant notes that he was seventy-one years old at the time of the sentencing and apparently had no prior convictions. The defendant further notes that the instant case did not involve any evidence of violence, threats, or sexually oriented statements, communications, or desires made to the victim or anyone else. The defendant contends that the trial court failed to consider aggravating and mitigating circumstances as statutorily required, failed to articulate a factual basis or the specific considerations, and failed to particularize the sentence to the defendant, a self-described insulin dependent diabetic who needs regular and consistent medical care. The defendant concludes that the interests of justice demands a less severe sentence or, alternatively, a meaningful sentence hearing.
Article I, Section 20 of the Louisiana State Constitution prohibits the imposition of excessive punishment. Although a sentence may fall within statutory limits, it may nevertheless violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979). Generally, a sentence is considered constitutionally excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. State v. Dorthey, 623 So. 2d 1276, 1280 (La. 1993). A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. State v. Reed, 409 So. 2d 266, 267 (La. 1982). A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lanclos, 419 So. 2d 475, 478 (La. 1982). See also State v. Savario, 97-2614 (La. App. 1 Cir. 11/6/98), 721 So. 2d 1084, 1089, writ denied, 98-3032 (La. 4/1/99), 741 So. 2d 1280.
Article 894.1 of the Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the guidelines. State v. Herrin, 562 So. 2d 1, 11 (La. App. 1 Cir.), writ denied, 565 So. 2d 942 (La. 1990). In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Watkins, 532 So. 2d 1182, 1186 (La. App. 1st Cir. 1988). Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. Lanclos, 419 So. 2d at 478.
Louisiana Revised Statutes 14:43.1 provides for an enhanced sentence when the victim of sexual battery is under the age of thirteen years and the offender is over the age of seventeen years. Section 14:43.1 provides, in pertinent part, "[w]hoever commits the crime of sexual battery on a victim under the age of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years." La. R.S. 14:43.1(C)(2). The statute additionally provides that at least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. La. R.S. 14:43.1(C)(2). As noted herein, the trial court sentenced the defendant to forty years imprisonment at hard labor and ordered that he serve twenty-five years without the benefit or parole, probation, or suspension of sentence.
Before imposing the sentence, the trial court noted that it reviewed the record and the facts and circumstances surrounding the trial. The trial court also noted that the defendant was seventy-one years of age at the time of the sentencing and the State's recommendation for the maximum sentence. After noting its consideration of the nature of the allegations, the trial court imposed a mid-range sentence with the minimum statutorily required years of parole restriction. The victim was repeatedly forced to recall and describe the defendant's conduct and to testify at a young age. The defendant's actions left the victim with psychological trauma that she will have to live with for the rest of her life. Based on our review of the record, we cannot say the trial court abused its discretion in imposing the sentence in this case. The fifth assignment of error lacks merit.
CONCLUSION
We find no error in the trial court's admission of testimony in this matter. Likewise, we find no error in the trial court's denial of the defendant's motion for new trial. Finally, we do not find the sentence imposed by the trial court to be constitutionally excessive. Based on the foregoing, we affirm the defendant's conviction and sentence.
CONVICTION AND SENTENCED AFFIRMED.