author: pAMY, Judge.

text:
    STATE of Louisiana v. Blaine Andre WILLIAMS.
    No. 02-0707.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      Michael Harson, District Attorney, Lafayette, LA, for Appellee State of Louisiana.
    Frederick Kroenke, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant Blaine Andre Williams.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   pAMY, Judge.

The defendant was charged with forcible rape and ultimately entered a plea of no contest to the amended charge of molestation of a juvenile. After the defendant filed a motion to withdraw his no contest plea, the trial court denied the defendant’s motion and sentenced him to serve ten years at hard labor. The defendant appeals his conviction and sentence. For the following reasons, we affirm and remand with instructions.

Factual and Procedural Background

On January 9, 2001, the State filed a bill of information charging the defendant, Blaine Andre Williams, with forcible rape. After initially entering a plea of not guilty, the defendant entered a plea of no contest to the amended charge of molestation of a juvenile on September 25, 2001. The transcript of the defendant’s change of plea reveals that the trial court informed him of the following rights: the right to an attorney; the right to a trial by jury; the right against self-incrimination; the right to confrontation and cross-examination; the right to compulsory process; the right to attack the composition and makeup of the jury; and, the right to appeal. Further, the transcript reveals that the defendant stated that he understood that he was waiving each of these rights. The transcript additionally provides that the trial court informed the defendant of the sentencing range for the offense to which he was pleading guilty and the time period in which he could file for post-conviction relief. The defendant stated that he had not been threatened and that he was entering the plea on his own free will. The plea agreement form signed by the defendant and his attorney also explained each of the rights addressed by the court. Yet, review of the | ¡^record reveals that the defendant did not receive either oral or written notice of the sex offender registration requirements.

On November 28, 2001, the defendant filed a motion to withdraw his no contest plea, alleging that the victim had stated that the defendant did not “mess with her.” At the hearing concerning the defendant’s motion, the defendant testified that he discovered that the victim told Vanity Edmonds that he did not commit the alleged crime. The defendant then claimed that he obtained a letter regarding what Ms. Edmonds was told by the victim. Since this letter did not contain all of the same information that the defendant had discovered, the defendant stated that he had his girlfriend, Tamisha Ross, speak to Ms. Edmonds about writing another letter. Ms. Ross testified that she spoke to Ms. Edmonds and that she wrote down what Ms. Edmonds told her. Ms. Ross asserted that she asked Ms. Edmonds three times if she overheard the victim state that the defendant did not commit the alleged crime and that Ms. Edmonds affirmatively answered. The defendant subsequently picked up the document transcribed by Ms. Ross and gave it to Ms. Edmonds who rewrote and signed the document.

However, when Ms. Edmonds testified, she denied making any statement concerning the defendant’s innocence. Rather, Ms. Edmonds testified that the victim told her that the defendant committed the offense. Ms. Edmonds explained that the defendant told her to write the letter and that she never read exactly what she wrote in the letter. Ms. Edmonds also stated that some of the information in the letter came from Ms. Ross. Upon the conclusion of the hearing, the trial court denied the defendant’s motion stating that it “found absolutely no credibility in any of the |3testimony that was submitted.” Thereafter, the trial court sentenced the defendant to serve ten years at hard labor. On January 18, 2002, the defendant filed a motion to reconsider his sentence which was subsequently denied. Now, the defendant appeals, alleging the following assignments of error:

1. The trial court erred in denying the defendant’s motion to withdrawal [sic] his no contest plea and in failing to advise the defendant of the reporting requirements of La.R.S. 15:541 et seq [.] prior to accepting his change of plea.
2. The trial court erred in imposing a sentence herein which is unconstitutionally excessive.

Discussion

The No Contest Plea

In the brief submitted on behalf of the defendant, appellate counsel asserts that the trial court failed to notify the defendant of the sex offender registration requirements. Appellate counsel argues that, since the trial court failed to inform the defendant of the sex offender registration requirements, the defendant did not freely and voluntarily enter the no contest plea. As such, appellate counsel contends that the trial court erred in denying the defendant’s motion to withdraw his no contest plea. We find that this assignment of error lacks merit.

Initially, we note that the argument regarding the sex offender registration requirements was never presented to the trial court in support of the motion to withdraw the plea. Instead, the defendant relied on the alleged statement made by the victim. In light of the testimony given by Vanity Edmonds and the arguments presented to the trial court, we find that the trial court did not abuse its discretion when it denied the defendant’s motion to withdraw his no contest plea. See La.Code Crim.P. art. 559; State v. Grogan, 00-1800 (La.App. 3 Cir. 5/2/01); 786 So.2d 862. However, due to the .constitutional nature of the defendant’s argument that his plea was not freely and voluntarily entered, we will consider whether the trial court’s failure to inform the defendant of the sex offender registration requirement invalidated his no contest plea under the particular facts and circumstances of this case. See State v. Jordan, 98-101 (La.App. 3 Cir. 6/3/98); 716 So.2d 36.

In State v. Montalban, 00-2739, pp. 3-4 (La.2/26/02); 810 So.2d 1106, 1108-09, the Louisiana Supreme Court stated:

The entry of a guilty plea must be a free and voluntary choice on the defendant’s part. State v. Nuccio, 454 So.2d 93 (La.1984). Due process requires that pleas of guilty be voluntary and intelligent relinquishments of known rights. The court must make an independent determination of whether the defendant’s plea is made knowingly and intelligently through a colloquy wherein the defendant is questioned about his decision and the constitutional rights he is waiving. State v. Age, 417 So.2d 1183 (La.1981). A court may not set aside a guilty plea after sentence is imposed unless the plea is constitutionally deficient. State v. Smith, 406 So.2d 1314, 1315 (La.1981).
For a guilty plea to be valid, there must be a showing that the defendant was informed of and waived his constitutionally guaranteed right to trial by jury, right of confrontation, and right against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). In addition, La.Code Crim. Proc. Ann. art. 556.1 requires the trial court to inform the defendant of:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if financially unable to employ counsel, one will be appointed to represent him.

(Footnotes omitted.) In addition, a panel of this court stated: “When the record establishes that a defendant was informed of and waived the privilege against self-incrimination and the right to confrontation and trial by jury, then the burden shifts |fito the defendant to prove that nevertheless, her guilty plea was constitutionally infirm.” State v. Senterfitt, 00-415, p. 5 (La.App. 3 Cir. 9/27/00); 771 So.2d 198, 201, writ denied, 00-2980 (La.9/28/01); 798 So.2d 107.

When dealing with pleas to sex offenses, the trial court must also act in accordance with La.R.S. 15:543(A), which provides “[t]he court shall provide written notification to any defendant charged with a sex offense of the registration requirements of R.S. 15:542.” “Such notice shall be included on any guilty forms and judgment and sentence forms provided to the defendant.” Id.

In State v. Calhoun, 96-786 (La.5/20/97); 694 So.2d 909, the Louisiana Supreme Court held that, in light of the totality of circumstances under which the defendant pled guilty to a sex offense, the trial court abused its discretion in denying the defendant’s motion to withdraw the plea. The supreme court found that the following factors undercut the voluntariness of the defendant’s plea:

(1) the failure of the trial court to notify defendant of the sex offender registration requirements at the guilty plea stage, (2) the lack of preparedness of defendant’s then-counsel when he advised [the defendant] that it was in his “best interest” to plead guilty, and (3) the fact that the defendant steadfastly maintained his innocence, which supports defendant’s contention that he pled guilty only because his attorney told him that there were no possible defenses to the charges.

Id. at 12; 915. As a result, the supreme court reversed the trial court and granted the defendant’s motion to withdraw his plea. Id.

In State v. Blanchard, 00-1147 (La.4/20/01); 786 So.2d 701, the Louisiana Supreme Court upheld the trial court’s denial of a motion to withdraw a plea. After noting that the failure to advise a defendant of the sex offender registration requirements was simply a factor which could undercut the voluntary nature of a plea, the supreme court found that the defendant was well aware of the sex offender | ¿registration laws before entering his plea and that the defendant erroneously assumed that he would not be subject to the registration laws because he entered a “best interest” plea. Notably, the supreme court also found that the defendant did not attribute that assumption to any representations made by the trial court, prosecutor, or defense counsel. After emphasizing the significance of the ineffective assistance of counsel claim in Calhoun, the supreme court concluded:

The court conducted a thorough plea colloquy with respondent during which it fully advised him of the trial rights he was waiving and obtained respondent’s assurances that he understood his trial rights, that he was waiving them voluntarily, and that he was satisfied with the representations he had received from defense counsel. Unlike the case in Calhoun, in which the admission by trial counsel that he simply “blew it” with regard to pre-trial preparation played an important part in our determination to set aside the guilty plea, Calhoun, 96-0786 at 10-11, 694 So.2d at 914-915, respondent’s attorney testified at the ev-identiary hearing that “we were prepared to refute the allegations of the two juveniles.”

Id. at p. 9; 707. In light of these circumstances, the supreme court upheld the defendant’s plea.

Similarly, although the record does not provide any indication that the defendant received notice of the sex offender registration requirements, the transcript of the plea colloquy in this case provides that the defendant was informed of and waived his right to a trial by jury, right to confrontation, and the right against self-incrimination. The transcript also provides that the trial court informed the defendant of the sentencing range for the offense to which he was pleading. In addition, the transcript indicates that the defendant was represented by counsel at the time of the plea and that the defendant stated that he was satisfied with his attorney’s advice and services. In contrast to Calhoun, the defendant in this case did not claim lack of notification of the sex offender registration requirements as grounds to withdraw his |7plea and has not asserted an ineffective assistance of counsel claim. As a result, the record before us does not establish that the totality of circumstances under which the defendant pled no contest warrants invalidation of his plea.

However, we conclude that corrective action must still be taken because there is no indication in the record as to whether the defendant is aware of the sex offender registration requirements. Therefore, we remand this matter to the district court to provide appropriate written notice to the defendant of the sex offender registration requirements within ten days of the rendition of the opinion and to file written proof that the defendant received notice in the record of the proceedings.

Excessive Sentence

In support of the second assignment of error, the defendant asserts that the sentence imposed is more than half the maximum sentence available to the trial court. Further, the defendant argues that, due to his personal background, he is a good candidate for rehabilitation. As such, while the defendant concedes that some punishment may be required, the defendant contends that his background requires a substantial reduction in the sentence imposed. Otherwise, the defendant claims that his sentence is a purposeless and needless infliction of pain and suffering. We disagree.

La. Const. art. 1, § 20 ensures that “[n]o law shall subject any person to ... cruel, excessive, or unusual punishment.” A punishment is considered constitutionally excessive if it “(1) makes no measurable contribution to acceptable penal goals of punishment and hence is nothing more tha[n] the purposeful and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” State v. Wilson, 96-1392, p. 3 (La.12/13/96); 685 So.2d 1063, 1065(citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). When reviewing a sentence, the appellate court must be mindful that the trial court is in the best position to consider the aggravating and mitigating circumstances of each case and that the trial court is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957. As such, the reviewing court will determine whether the trial court abused its broad discretion, not whether another sentence may have been more appropriate. Id.

The trial court must state for the record the considerations taken into account and the factual basis for the sentence. La.Code Crim.P. art. 894.1(C). Although the trial court need not refer to every factor listed in Article 894.1(A), the record should affirmatively reflect that adequate consideration was given to codal guidelines in particularizing the defendant’s sentence. State v. Iron, 00-1238 (La.App. 3 Cir. 2/15/01); 780 So.2d 1123, writ denied, 01-1232 (La.3/15/02); 811 So.2d 898. Yet, when the trial court fails to adequately address the factors of La.Code Crim.P. art. 894.1, “the trial court’s reasoning alone will not necessitate the need for re-sentencing as long as an adequate factual basis is found within the record.” State v. Butler, 98-1258, p. 7 (La.App. 3 Cir. 2/3/99); 734 So.2d 680, 684.

The trial court may also consider other factors not provided by La.Code Crim.P. art. 894.1. Specifically, when the offense to which the defendant has pled guilty inadequately describes the entire course of the defendant’s conduct, the court may consider the benefit obtained by the defendant through the plea bargain. State v. Lanclos, 419 So.2d 475 (La.1982). The trial court should particularly make such considerations where the plea bargain results in a significant reduction in the defendant’s potential exposure to imprisonment. State v. Robinson, 33,921 (La.App. 2 Cir. 11/1/00); 770 So.2d 868; State v. Waguespack, 589 So.2d 1079 (La.App. 1 Cir.1991), writ denied, 596 So.2d 209 (La.1992). In addition, the trial court may consider other criminal activity which did not result in a conviction. State v. Texada, 98-1647 (La.App. 3 Cir. 5/5/99); 734 So.2d 854, writ denied, 00-2751 (La.6/29/01); 794 So.2d 824.

The record indicates that, pursuant to the plea agreement, a pre-sentence investigation report was completed prior to sentencing. This report provides that, during the time of the offense, the victim was a twelve-year-old girl who was employed by the defendant as a baby sitter. The report further states that the defendant had sex with the victim approximately ten times over the period of a year. During the last incident, the report states that the defendant’s three-year-old son walked into the room. In addition, the record indicates that the plea agreement between the defendant and the State provided a sentencing range from one to fifteen years. The transcript of the plea colloquy also provides that the trial court informed the defendant of this possible sentencing range when he entered his no contest plea; and, the defendant did not raise any objection to this sentencing range.

After denying defendant’s Motion to Withdraw the No Contest Plea, the trial court gave the following oral reasons for imposing the sentence on the defendant:

[T]his Court, after listening to your testimony and listening to actions taken by you, with regards to the scheduled sentencing today, finds that you have not owned up to your responsibility. To the contrary, you have sought to conspire and gotten others to conspire in hopes of somehow getting you out of the legal entanglement that you find yourself entangled in today. So, in effect, you’re in denial. You’re still denying that you did this or that you were involved. And I don’t take kindly to that, particularly given your age, thirty-five years of age and someone who’s asked to babysit your kid, a twelve year old, a baby and you’re having sex with a baby.
_Lm-•••
All right, it’s the sentence of this Court that you serve ten years at hard labor, right now.

Although the trial court did not specifically refer to the factors provided of La.Code Crim.P. art. 894.1, the trial court’s oral reasons for imposing the sentence indicate that the trial court considered several facts as aggravating factors toward particularizing the defendant’s sentence. Specifically, the trial court noted: (1) the defendant’s failure to take responsibility for his actions; (2) the trial court’s perceived dishonesty of the defendant to have his no contest plea withdrawn; (3) the seriousness of the defendant’s actions; and, (4) the age of the victim. Due to these considerations as well as the facts provided in the record, we find a sufficient factual basis for the defendant’s sentence.

Further, the defendant greatly benefited through the plea agreement. In exchange for the defendant’s plea, the State reduced the defendant’s charge from forcible rape to molestation of a juvenile. In turn, the defendant’s potential exposure to imprisonment was reduced from forty to fifteen years. See La.R.S. 14.42.1(B); La. R.S. 14.81.2(C). In light of the substantial benefit received by the defendant through his no contest plea, we also conclude that the sentence of ten years at hard labor is not excessive.

Errors Patent

All appeals are reviewed for errors patent on the face of the record. La.Code Crim.P. art. 920. After reviewing the record, we find two such errors.

First, we find an error concerning the bill of information. The defendant was originally charged with forcible rape and ultimately pled to molestation of a juvenile, a crime which is not responsive to forcible rape. See La.Code Crim.P. art. 814; La. Code Crim.P. art. 815. However, the record before us does not indicate that the Inbill of information was amended. Addressing whether the bill of information should be amended in such situations, a panel of this court stated:

[Wjhere ... the defendant enters a plea of guilty to a crime nonresponsive to the original indictment when such plea is acceptable to the district attorney, the defendant is fully aware of the charge to which he pleaded as shown by extensive BoyMnization, and the plea is not prejudicial to the defendant, any error caused by a failure to formally amend the indictment is harmless.

State v. Rito, 96-1444, p. 3 (La.App. 3 Cir. 10/8/97); 700 So.2d 1169, 1171 (quoting State v. Barclay, 591 So.2d 1178, 1182 (La.App. 1 Cir.1991), writ denied, 595 So.2d 653 (La.1992)). The record in this case indicates that the plea was acceptable to the State and that the defendant was extensively Boykinized and advised of the possible sentencing range. Due to the benefit received by the defendant from the plea, we find that the error, if any, was harmless.

Second, we find that the trial court informed the defendant of the two-year period for filing post conviction relief at the time of the guilty plea rather than at the time of sentencing as required by La.Code Crim.P. art. 930.8(C). In State v. Green, 94-617 (La.App. 3 Cir. 12/7/94); 647 So.2d 536, a panel of this court ruled that such notice is sufficient. However, out of an abundance of caution, the Green panel asked the district court to inform the defendant of the prescriptive period for filing post-conviction relief by sending appropriate written notice within ten days of the rendition of the opinion and to file written proof that the defendant received notice in the record of the proceedings. Likewise, we order the trial court to make the same notification.

Therefore, we remand this matter to the district court to provide appropriate written notice of the prescriptive period for filing post-conviction relief within ten | i?days of the rendition of the opinion and to file written proof that the defendant received notice in the record of the proceedings.

DECREE

For the foregoing reasons, the conviction and sentence of the defendant are affirmed. In accordance with La.R.S. 15:543 and La.Code Crim.P. art. 930.8, respectively, this matter is remanded, and the trial court is instructed to provide the defendant appropriate written notice within ten days of the rendition of this opinion and to file written proof that the defendant received notice in the record of the proceedings of the following: (1) the defendant will be subject to the sex offender registration requirements of La.R.S. 15:542; and, (2) the defendant has two years from the date when the judgment of his conviction and sentence becomes final to timely apply for post-conviction relief.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . See La.R.S. 14:42.1.

      . See La.R.S. 14:81.2.

      . The testimony established that Ms. Ed-monds was the defendant's cousin.


source: Caselaw Access Project

author: | ¶ GLENN B. GREMILLION, Judge. hCOOKS, J.,

license: Public Domain

text:
    STATE of Louisiana v. Roy James SHEPHERD, aka Ray James Shepherd.
    No. 02-1006.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      Michael Harson, District Attorney, Lafayette, LA, for Plaintiff/Appellee, State of Louisiana.
    G. Paul Marx, Attorney at Law, Lafayette, LA, for DefendanVAppellant, Roy James Shepherd.
    Ray James Shepherd, In Proper Person.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   | ¶ GLENN B. GREMILLION, Judge.

The defendant, Roy James Shepherd, a/k/a Ray James Shepherd, was found guilty by the trial court of criminal trespass and guilty by the jury of unauthorized use of a motor vehicle and of attempted theft of property having a value of three hundred dollars or more. He was sentenced to eighteen months at hard labor on the unauthorized use of a motor vehicle charge, to one year in the parish jail on the attempted theft charge, and to six months in the parish jail on the criminal trespass charge, all to run concurrently and with credit for time served. Defendant appeals claiming that the trial court erred in recalling his peremptory challenges by holding that he did not show race-neutral reasons for the challenges; and the evidence was insufficient to support his conviction for attempted theft. For the following reasons, we affirm.

SUFFICIENCY OF EVIDENCE

We will review Defendant’s sufficiency of evidence claim first because a finding of insufficient evidence may result in an outright acquittal. State v. Hearold, 603 So.2d 731 (La.1992). Defendant claims the State did not prove the verdict of attempted theft because it did not prove the identity nor the value of the items allegedly subject to the crime. In State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27, this court held:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the | ^respective credibility of the witnesses. Therefore, the appellate court should not second guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

“The state must prove the value of the stolen property, for upon this proof depends the determination of the severity of the theft, and the punishment for a convicted offender.” State v. Bolton, 99-80, p. 5 (La.App. 5 Cir. 6/30/99), 739 So.2d 364, 366 (citations omitted). The trier of fact is to consider the value that the stolen items have to the victim. See State v. Harris, 97-778 (La.3/4/98), 708 So.2d 387. “Unless it is shown the owner lacks knowledge of the value of a movable, his testimony as to value is generally admissible, with its weight being left to the jury.’ State v. Stack, 97-1176, p. 7 (La.App. 5 Cir. 4/15/98), 710 So.2d 841, 844 (quoting State v. McCray, 305 So.2d 433, 435 (La.1974)).” State v. Carthan, 99-512, p. 7 (La.App. 3 Cir. 12/8/99), 765 So.2d 357, 362, writ denied, 00-0359 (La.1/12/01), 778 So.2d 547. “Further, the testimony of an owner of stolen property can constitute ample evidence of the property’s value.” State v. Davis, 569 So.2d 131, 135 (La.App. 5 Cir.1990) (citation omitted).

Kevin Fitch, owner of Lafayette Auto Salvage in Lafayette, testified that on Sunday, April 22, 2001, at approximately 9:00 a.m., he observed a vehicle parked in the lot adjacent to his seventy acre salvage yard. He said that no one worked at his yard on Sunday and that the stores in the shopping center were not yet open, so the parked vehicle aroused his suspicions. He said that he stopped at the salvage yard, climbed on top of a fence post, and saw someone driving his “yard truck” inside the fence. He then jumped off the fence and ran to the area where Defendant was driving |athe truck. According to Fitch, the truck stopped and he heard the sounds of a tire tool unscrewing lug nuts. He observed Defendant taking rims off a vehicle without a jack, which he said was very unusual. Fitch testified that he saw Defendant physically pick up each side of the vehicle, remove three rims, and place them in the back of the truck. Fitch then returned to his vehicle just outside the salvage yard and called the police. While waiting for the police, Fitch observed Defendant leave the salvage yard.

Although he did not bring any documentation to trial to show the price of the rims, Fitch testified that the cost of new rims similar to those Defendant attempted to take would be $300 each at the Ford dealership. He said that he sold those rims for $200 each, the center caps for $50 each, and that the tires should also have some value.

Sergeant Daniel Viator of the Lafayette Police Department testified that he saw Defendant about two feet from the salvage yard fence “getting up on all fours, which led [him] to believe that he had crawled under the fence” and walked from the salvage yard to his vehicle in the shopping center parking lot. At that time, Sergeant Viator arrested Defendant. He said he spoke to Fitch, who directed him to a vehicle parked in the salvage yard. When he viewed the vehicle, there were several rims missing.

Viewing the testimony in the light most favorable to the prosecution, the jury could have easily concluded, beyond a reasonable doubt, that the State identified the items stolen and that the rims in question had a value in excess of three hundred dollars. This assignment of error is without merit.

PREVERSE BATSON CHALLENGE

In this assignment of error, Defendant argues the trial court erred in holding a hearing to test the race-neutral reasons for his peremptory challenge of the jury venireman Michael Carriere, and in recalling the challenge for being racially discriminatory. Defendant asserts that his right to make peremptory challenges has constitutional magnitude. However, he acknowledges that a criminal defendant may not use peremptory challenges to purposefully discriminate on the basis of race. See State v. Knox, 609 So.2d 803 (La.1992). Such an objection by the State is sometimes referred to as a “reverse Batson” in reference to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See State v. Moore, 93-1632 (La.App. 3 Cir. 5/4/94), 640 So.2d 561, writ denied, 94-1455 (La.3/30/95), 651 So.2d 858.

The supreme court explained in Knox, 609 So.2d at 806, quoting Georgia v. McCollum, 505 U.S. 42, 60, 112 S.Ct. 2848, 2359, 120 L.Ed.2d 33 (1992):

Accordingly, if the State demonstrates a prima facie case of racial discrimination by the defendants, the defendants must articulate a racially neutral explanation for peremptory challenges.

In addition to Knox and related jurisprudence, we note La.Code Crim.P. art. 795, which states in pertinent part:

C. No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.
D. The court shall allow to stand each peremptory challenge exercised for a racially neutral reason either apparent from the ^examination or disclosed by counsel when required by the court. The provisions of Paragraph C and this Paragraph shall not apply when both the state and the defense have exercised a challenge against the same juror.
E. The court shall allow to stand each peremptory challenge for which a satisfactory racially neutral reason is given. Those jurors who have been peremptorily challenged and for whom no satisfactory racially neutral reason is apparent or given may be ordered returned to the panel, or the court may take such other corrective action as it deems appropriate under the circumstances. The court shall make specific findings regarding each such challenge.

In the present case, Defendant implies that a prima facie case of discrimination was not made. However, he does not elaborate upon the argument, and the record reveals Defendant volunteered race-neutral reasons for all of his challenges, including the challenge of Carriere. During the course of jury selection, the State raised four objections to Defendant’s peremptory challenges, arguing Defendant, who was black, was using them in a discriminatory manner against white venire members. The trial court denied these objections. Subsequently, the State raised an objection to the fifth peremptory challenge raised by Defendant, which was against Carriere. Defendant claimed his race-neutral reason for challenging Carri-ere was related to Carriere’s responses to his questions about reasonable doubt and his right to remain silent as it effects his presumption of innocence. The State disagreed and objected to that as a race-neutral reason for the challenge. After a discussion with the State and Defendant, the trial court recalled Carriere to the witness stand and questioned him at length on those issues. Both sides were given the opportunity to question him, but both declined. After removing Carriere from the courtroom, this colloquy occurred:

BY THE COURT: And what is your reason for challenging him?
|fiBY DEFENSE COUNSEL: Judge, my reason was — and my client had requested that I challenge Mr. Carriere for cause — I mean, peremptorily. I’m merely abiding by his wishes; I was challenging him peremptorily.
The race neutral issue was I wasn’t sure that he understood our discussion of my client exercising his right to remain silent, which I think is evident by your questioning to him. But if you— again, it’s your call. If you’re satisfied that the colloquy you had with him was curative of that, Mr. Shepherd still, I think, wants me to exercise a peremptory challenge at this time.
BY THE COURT: But you have no basis for it?
BY DEFENSE COUNSEL: No.

The trial court then seated Carriere on the jury. Thus, the issue of whether a prima facie case of discrimination had been made was effectively mooted. State v. Jacobs, 99-991 (La.5/15/01), 803 So.2d 933, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002). Perhaps for this reason, Defendant’s argument centers on the next step, i.e., whether he gave a race-neutral reason for the peremptory challenge at issue.

Thus, the record shows two key points bearing upon Defendant’s current arguments. First of all, he did not object to the trial court’s individual questioning of Carriere. Therefore, he failed to preserve the issue with a contemporaneous objection, as required by La.Code Crim.P. art. 841. See also Moore, 640 So.2d 561. In State v. Spencer, 93-571 (La.App. 5 Cir. 1/25/94), 631 So.2d 1363, writ denied, 94-488 (La.2/3/95), 649 So.2d 400, the trial court further questioned the venireman at issue in chambers. Although the procedure was not at issue, the Spencer court noted the trial court’s further examination of the venireman with apparent approval. Id. Further, Defendant in this case explicitly abandoned his reason for the peremptory objection. In the context of a reverse-Batson objection, this amounts to withdrawing |7the peremptory challenge. Stated another way, the record clearly shows that Defendant acquiesced to the trial court’s ruling.

We are cognizant of the jurisprudence cited by Defendant, but he does not take into account the jurisprudence that grew out of Knox, and thus, that jurisprudence does not bear directly upon the instant case. Defendant correctly points out that a party’s race-neutral explanation need not be “persuasive, or even plausible.” State v. Ball, 00-2277, p. 5 (La.1/25/02), 824 So.2d 1089, 1097. However, in reverse-Batson situations, trial courts have rejected defendants’ race-neutral explanations as lacking factual bases. In other words, a defendant would give a race-neutral reason in regard to a venire member, and the trial court would reject the reasoning based upon its observation of the venire member. The appellate courts have upheld such rulings. See, e.g., State v. Tyler, 97-338 (La.9/9/98), 723 So.2d 939, cert. denied, 526 U.S. 1073, 119 S.Ct. 1472, 143 L.Ed.2d 556 (1999) (trial court did not clearly err by choosing not to believe defendant’s race-neutral explanation); State v. Dugas, 96-49 (La.App. 3 Cir. 10/9/96), 683 So.2d 1253, writ denied, 96-2652 (La.4/4/97), 692 So.2d 417 (trial court did not agree with defendant’s assessment of venire member’s facial expressions; the issue was gender, not race); Moore, 640 So.2d 561 (defendant argued his challenge was based upon advanced age of venire members, but court observed defendant accepted a sexagenarian); State v. Schexnayder, 96-98, p. 9 (La.App. 5 Cir. 11/26/96), 685 So.2d 357, 364, writ denied, 97-0067 (La.5/16/97), 693 So.2d 796, cert. denied, 522 U.S. 839, 118 S.Ct. 115, 139 L.Ed.2d 67 (1997), writ denied, 97-2251 (La.1/16/98), 706 So.2d 973 (defendant’s explanation that he was “simply not comfortable” with venire member was “practically no reason at all”). These cases |sshow that a trial court’s rejection of a factual basis of a defendant’s race-neutral explanation will not be reversed absent an abuse of discretion. As the Schexnayder court explained, persuasiveness of the explanation does come into play in the third step of a Batson/Knox analysis, when a trial court determines whether the moving party has carried the burden of proving purposeful discrimination. Id. at 364.

In the present case, since Defendant effectively admitted at trial that he did not have a race-neutral reason for the peremptory challenge, the trial court’s ruling was not erroneous. Therefore, this assignment of error lacks merit.

ERRORS PATENT

After reviewing the record for errors patent on its face in accordance with La.Code Crim.P. art. 920, we note one such error and one abnormality in the verdict form. First, the sentencing proceeding commenced immediately after the trial court’s denial of Defendant’s Motion for Post Verdict Judgment of Acquittal and Alternatively, for a New Trial. La.Code Crim.P. art. 873 mandates a twenty-four-hour delay between the denial of such motions and the imposition of sentence. In general, this error is not reversible unless the defendant has been prejudiced by the lack of a sentencing delay. State v. Dauzat, 590 So.2d 768 (La.App. 3 Cir.1991), writ denied, 598 So.2d 355 (La.1992) and State v. Bishop, 98-1147 (La.App. 3 Cir. 2/3/99), 734 So.3d 674, writ denied, 99-2499 (La.2/11/00), 754 So.2d 932. Since Defendant has not alleged any prejudice by the trial court’s failure to delay sentencing and has not challenged his sentence on appeal, we find this error to be harmless.

The abnormality involves the jury’s verdict. Defendant was charged with theft of tire rims having a value over five hundred dollars. The jury returned a 19verdict of attempted theft of property having a value of three hundred dollars or more. At the time of trial, La.Code Crim.P. art. 814(A)(26) listed the following responsive verdicts for theft as follows:

Guilty of theft of property having a value of five hundred dollars or more. Guilty of theft of property having a value of one hundred dollars or more, but less than five hundred dollars.
Guilty of theft of property having a value of less than one hundred dollars. Guilty of attempted theft of property having a value of one hundred dollars or more.
Guilty of attempted theft of property having a value of less than one hundred dollars.
Guilty of unauthorized use of movables having a value in excess of one thousand dollars, but only if a value in excess of one thousand dollars is stated in the indictment.
Guilty of unauthorized use of movables having a value of one thousand dollars or less.
Not guilty.

(Emphasis added)

However, at the time of the commission of the offense and at the time of trial, the grades of the offense were broken down in La.R.S. 14:67(B) as follows:

(1) Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.
(2) When the misappropriation or taking amounts to a value of three hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.
|in(3) When the misappropriation or taking amounts to less than a value of three hundred dollars, the offender shall be imprisoned for not more than six months, or may be fined not more than five hundred dollars, or both. If the offender in such cases has been convicted of theft two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.

(Emphasis added)

Prior to its amendment in 1999, the grades of theft listed in La.R.S. 14:67 corresponded to the responsive verdicts listed in La.Code Crim.P. art. 814, that is both reflected that theft of amounts over one hundred dollars were felony grade offenses. In 1999, the legislature increased the amount of the theft from one hundred dollars to three hundred dollars to reach the felony grade in La. R.S.14:67, but did not make the corresponding change to Article 814(A)(26). Accordingly, it appears the legislature simply failed to amend Article 814 when it amended La.R.S. 14:67. We note that “[w]hen responsive verdicts are mandated by Article 814, the trial court is without authority to vary or to add to the prescribed verdicts.” State v. Thibodeaux, 380 So.2d 59, 60 (La.1980). However, in Thibodeaux, the trial court added two charges to the responsive verdicts (possession with intent to distribute and attempted possession with intent to distribute) which were not listed as responsive verdicts in Article 814(A)(45). The jury returned the verdict of guilty of possession with intent to distribute. Clearly, in Thibodeaux, the trial court varied and added to the prescribed verdicts.

The situation in the instant case is much different than in Thibodeaux. It is true that the trial court varied the prescribed responsive verdicts, but if it had presented the jury with the responsive verdicts listed in Article 814, it is possible and lleven probable that the jury would have returned a verdict which would not have fit into the scheme of La.R.S. 14:67. Because the responsive verdicts are provided for in Article 814, La.Code Crim.P. art. 815 does not apply in this case. The trial court found itself on the horns of a dilemma and chose substance over form which prevented a verdict for which there was no penalty. The legislature’s last change to La. R.S. 14:67 indicates a change to the substantive law. Because it was the most recent change, it was proper for the trial court to conform the responsive verdict to reflect the legislative intent.

The supreme court wrote in State v. Ste. Marie, 98-1167 (La.12/18/98), 723 So.2d 407, 409:

As a general rule, “[t]he plain meaning of legislation should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters’ [in which case] the intention of the drafters, rather than the strict controls.” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 243, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)); see also State v. Bennett, 610 So.2d 120, 122 (La.1992) (“When the literal construction of a statute produces absurd or unreasonable results, the letter must give way to the spirit of the law and the statute construed so as to produce a reasonable result.”) (internal quotation marks and citation omitted).

The plain meaning of the legislature was to increase the minimum amount for a | ^misdemeanor theft from one hundred dollars to three hundred dollars. To have charged the jury according to the literal language of Article 814 would have produced a result “demonstrably at odds with the intentions of [the] drafters” of the change to R.S. 14:67. Id. In charging the jury as it did, the trial court avoided an “absurd and unreasonable result.” Id. Therefore, we do not find any error in the trial court’s decision on this issue. We simply point out this abnormality and the trial court’s application of Article 814 to La.R.S. 14:67 until the legislature corrects its omission.

CONCLUSION

Defendant’s conviction is affirmed.

AFFIRMED.

COOKS, J., Dissents in Part, with written reasons.

hCOOKS, J.,

Dissents in part:

In State v. Thibodeaux, 380 So.2d 59 (La.1980), the Louisiana Supreme Court clearly held: “When responsive verdicts are mandated by Article 814, the trial court is without authority to vary or to add to the prescribed verdicts.” When the jury returns a verdict which is not responsive under La.Code Crim.P. art. 814, the verdict is invalid and “because a sentence based on an invalid verdict is itself invalid (La.C.Cr.P.art.872), the conviction and sentence of defendant must be set aside.” Thibodeaux, 380 So.2d at 61. Thibodeaux is very clear and is controlling. Despite the clear dictates of Thibodeaux, the majority, while admitting the trial court varied the verdict, reasons as follows:

It is true that the trial court varied the prescribed responsive verdicts, but if it had presented the jury with the responsive verdicts listed in Article 814, it is possible and even probable that the jury would have returned a verdict which would not have fit into the scheme of La.R.S. 14:67.... The trial court found itself on the horns of a dilemma and chose substance over form which prevented a verdict for which there was no penalty.

The majority also notes “prior to the 1999 amendments, the grades of theft in La.R.S. 14:67 corresponded to the responsive verdicts listed in La.Code Crim.P. art. 814, that is both reflected that theft of amounts over one hundred dollars were felony grade offenses.” It is true, as the majority points out, theft over one hundred dollars but less than five hundred dollars was treated as a second grade felony offense vis a vis theft over five hundred dollars which fell in the highest grade. Equally worth noting, however, prior to the 1999 amendment, the offenses listed in La. R.S. 14:67 | ato identify the grades of theft did not in fact correspond with the “attempted” responsive verdicts found in La.Code Crim.P. art. 814. The only verdicts for attempted theft the jury was allowed to return was “Guilty of attempted theft of property having a value of one hundred dollars or more” or “Guilty of attempted theft of property having a value less than one hundred dollars.” Attempted theft of property having a value over five hundred dollars was not listed as a responsive verdict; neither was attempted theft of property having a value over one hundred dollars but less than five hundred dollars. Thus, contrary to the majority’s view, the offenses listed in the pre-1999 theft statute and the attempted responsive verdicts did not correspond. State v. Wright, 598 So.2d 493 (La.App. 2 Cir.1992).

When the jury returned one of the only proper verdicts, i.e., “Guilty of attempted theft of property having a value of one hundred dollars or more,” the courts imposed the sentence under La.R.S. 14:67(B)(2) even though the amount actually taken and charged may have been greater than five hundred dollars. The courts, therefore, placed a cap on the jury’s verdict and imposed the sentence nearest in amount to that “over hundred dollars,” which was then a second grade felony. The courts did not take liberty to add a responsive attempted verdict for theft “over five hundred dollars” or to vary the possible verdict form, “over one hundred dollars or more,” to match the language found in La. R.S. 14:67(B)(2).

The lowest grade theft nearest in amount to “over hundred dollars” is now a misdemeanor and is found in La.R.S. 14:67 B(3). The amended statute provides in all instances when the taking or misappropriation is less than three hundred dollars, defendant shall not be sentenced for more than six months or fined not more than five hundred dollars or both. The amendment, in effect, downgrades defendant’s sentence exposure from a felony to a misdemeanor. This is the reality the majority finds vexing. However, there are times when we are without authority to solve the problem, though it might be reasonable to conclude it resulted from oversight or | ¡¡inadvertence. That authority is reserved to the legislature when and if it sees fit to amend the attempted responsive theft verdicts to correspond with the grades provided in La.R.S. 14:67.

In this case, adherence to the holding in Thibodeaux requires that we set aside the jury’s verdict as non-responsive and reverse defendant’s conviction and sentence.

      . La.Code Crim.P. art. 815 states:
      In all cases not provided for in Article 814, the following verdicts are responsive: (1)Guilty;
      (2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense is a misdemeanor; or
      (3) Not Guilty.


author: 11WOODARD, Judge.

text:
    STATE of Louisiana v. Cleveland WRIGHT, Jr.
    No. 02-1268.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.

      J. Eddie Knoll, District Attorney, David Lafargue, 1st Assistant District Attorney, Marksville, LA, for State/Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Cleveland Wright, Jr.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and BILLY HOWARD EZELL, Judges.
   11WOODARD, Judge.

The Defendant, Mr. Cleveland Wright, Jr., was arrested for the murder of Rosalind Greenhouse. A jury convicted him of second degree murder for which he was sentenced to life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. He challenges his conviction. We affirm.

In April of 1998, Rosalind Greenhouse, a seventeen-year-old female, was reported missing. Two years later, human remains found under a house were believed to be hers. DNA testing supported this assumption, although it was not conclusive. Rosalind was last seen entering an apartment where Mr. Wright resided. It was across the street from the house under which the remains were discovered. Before they were found, Mr. Wright had made various statements indicating that he had shot Rosalind, cut her up, and hid her body. Eventually, he was arrested and a grand jury indicted him with one count of second degree murder, a violation of La. R.S. 14:30.1(A)(1). He waived formal arraignment and entered a plea of not guilty. However, a jury found him guilty as charged. Mr. Wright requested a new trial and a post-verdict judgment of acquittal, both of which were denied. The trial court sentenced him to life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. The court ordered the sentence to run consecutive to any other sentence previously imposed. Mr. Wright challenges his conviction.

Errors Patent

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the record’s face. After reviewing the record, we find none. However, we do note that at the sentencing proceeding, the judge stated, “[a]s required by law, I inform you that this offense is a crime of violence. Your sentence is not subject to diminution for good behavior, because it is without benefit of probation, parole or suspension of sentence as required by law.” The judge was in error in the reason he gave. Mr. Wright’s ineligibility for diminution of his sentence for good behavior is not automatically determined by law; rather, it is within the judge’s discretion under La.Code Crim.P. art. 890.1. That article clearly gives the judge this discretion in cases where the crime is one of violence. Since the judge did reference this fact in his reasoning, correction of this technical error is not warranted.

We must decide: 1) whether the evidence is sufficient to prove Mr. Wright’s specific intent; 2) whether the trial court erred in denying his request for a new trial; and, 3) whether evidence of his drug dealings was erroneously admitted.

Specific Intent — Sufficiency of Evidence

Mr. Wright claims the evidence was insufficient to prove that he had the specific intent to kill or inflict great bodily harm on Rosalind Greenhouse. He argues that, independent of his own statements, no direct evidence was presented showing that a murder occurred or that Rosalind Greenhouse was the victim; the evidence was entirely circumstantial and did not exclude every reasonable hypothesis of innocence. We disagree.

On February 23, 2000, Detective John Augustine was notified that a plumber found a human skull lying on a sheet under a house. According to the Detective, Rosalind Greenhouse, a seventeen-year-old female, had been reported missing in April of 1998 and was still missing when the skull was found. No other persons had been reported as missing. Believing the skull belonged to Rosalind, he obtained a DNA sample from Rosalind’s mother, Janet Greenhouse, and submitted the sample, along with the skull and other bones found under the house, to a crime lab for testing. He noted that the report submitted by the lab “was consistent with the bones being related to Mrs. Janet Greenhouse ...” After several witnesses were interviewed, Mr. Wright was arrested.

Janet Greenhouse testified that she last saw Rosalind in April 1998. Rosalind was living at home but had mentioned going to Mississippi with a friend, Kimble Brow-ders. Over her mother’s objection, Rosalind went to Kim’s house to visit one evening. When she returned, she ate supper and went to bed. The next morning, Mrs. Greenhouse went to check on Rosalind and discovered that all of her belongings were Isgone. One of Rosalind’s friends told Mrs. Greenhouse that Rosalind had gone to Mississippi.

Ms. Browders testified that in the first part of 1998, she moved into Apartment Number 14 on Scallan Street, almost directly across the street from the house under which the bones were found. About a month after she moved in, Mr. Wright moved in with her. According to Ms. Browders, Mr. Wright supported himself by doing odd jobs and selling crack cocaine. She testified that Rosalind, who watched her little girl from time to time, also moved in with her about two weeks to a month after Mr. Wright’s arrival. Approximately two to three weeks later, Ms. Browders, her little girl, and Rosalind went to live in Mississippi, while Mr. Wright remained in the apartment. They were in Mississippi by the latter part of March 1998.

In the early part of April 1998, Ms. Browders returned to Marksville to bring Rosalind home. She dropped her off at the apartment and went in to get some paperwork but she did not see Mr. Wright at that time. She did not know if the electricity was still on. She suspected the water had been cut off because the toilet was full of feces. She left Rosalind at the apartment and headed back to Mississippi.

Brenda Coleman, Ms. Browders’ neighbor, remembered Ms. Browders and Rosalind going to Mississippi in March 1998 and returning about a month later. She stated that Ms. Browders went into her apartment to get a few things and then left; Rosalind came to the apartment later. Ms. Coleman also saw Mr. Wright at the apartment later that night. When asked what she heard going on in Ms. Browders’ apartment, she replied, “I heard a lot of banging against the wall, like a headboard was hitting against the wall about two (2) or three (3) hours. I didn’t know what that was.” She assumed the noise was from a man and a woman having intercourse. She saw Mr. Wright, through his open backdoor, sweep mopping the kitchen floor and later saw him leave with a big garbage bag. She never saw Rosalind again.

Nina Jones testified that she and her brother and sister had been out drinking with Mr. Wright on one occasion and Mr. Wright had said to them: “Let me trip ya’Il out. I killed that girl. That girl is dead.” When Ms. Jones asked him who he was talking about, he replied, “Rosalind.” Further, Ms. Jones testified:

A. He said they was fighting. Well, he said he fought, then he said he cut her. He shot her and he cut her.
|4Q. Did he catch her doing anything? Did he ...
A. It all boiled down to something about the dope. She took his dope, this and that.
Q. She took his dope and he said he did what?
A. And he killed the bitch.
Q. And that’s how he put it; he killed the bitch? And you say he said he cut her up?
A. That’s what he said. But you know, a lot of people say things and it be some lies.

Ms. Jones did not believe him at the time because “he would say stuff like that all the time.” She changed her mind when the bones were found. She also remembered her sister calling her crying because Mr. Wright had shown her a bone. When asked if he ever told her what he did with the body, she stated, “Yeah. He put it in— wrapped it in some sheets or a blanket and put it in a garbage bag.” She testified that he told her that the murder occurred at that apartment and he indicated that he tried to clean the apartment and had asked others to help him clean it.

America Malbrough, Mr. Wright’s cousin, testified that when Mr. Wright would get drunk, he would cry and say he did something wrong. She testified that her mother went to Arizona in April of 1998 for three days and, during this time, Mr. Wright brought two bags of clothes for America to wash. One bag contained bloody white T-shirts and the other contained colored shirts. Mr. Coleman, who was checking on the house in Ms. Malb-rough’s absence, corroborated this. They both saw the blood on the shirts before America washed them. When America’s mother came home, she threw half of the clothes away. Shortly after her mom returned home, Mr. Wright asked America if she and her brother could help him clean the apartment, but their mother said no.

Michael Malbrough, America’s brother, went with him to the apartment on Seallan Street, sometime in April of 1998. He testified that he would not go in. He stopped at the door because there was a foul, rotten smell coming from the apartment. He also testified that the sofa and chairs were turned over, like Mr. Wright was moving out.

IsCharlene Boyer, an acquaintance of Mr. Wright, testified that he once told her that he would have something to tell her in ten years. He then called her outside and showed her a long bone. She said that the bone looked like it came out of a leg. When asked if they ever had a conversation concerning Rosalind Greenhouse, Ms. Boyer testified that Mr. Wright told her that Rosalind stole his dope. He told her that he shot Rosalind. He never told her where the body was but said that they would never find his clothing. When the bones were found, Ms. Boyer went to see a detective.

Darrell Stanley, a fellow inmate, was asked whether Mr. Wright ever talked about the charge of murder against him. Mr. Stanley said the Defendant “looked at [him] dead serious in the face and told [him] he did kill her.”

Carol Dominick had known Mr. Wright for three or four years. She testified that once while he was drinking, he told her that he killed Rosalind and dismantled her parts. Specifically, he said that he raped the victim, killed her, and cut her up.

Monique Alexander, who dated Mr. Wright for two years, stated that she was drinking with him one night at a nightclub when he said, “I killed that bitch;” however, she did not know that he was talking about Rosalind.

Byron Badeaux was incarcerated with Mr. Wright for approximately six weeks. Mr. Badeaux reported that the following conversation took place between them:

A. He spoke of the situation where he — he was guilty of the crime. He said he had killed the girl. He never specified any way, how of the actual murder. But there was a cane knife spoken of that was talked about to cut the body up, to get rid of the corpse.
Q. So he said he killed her. He didn’t tell you exactly how?
A. That’s correct.
Q. But he did indicate that he cut the body up with a cane knife?
A. Yes, sir.
Q. Did he indicate why he killed her?
A. It was over — it was over a drug situation. I’m not exactly sure. He didn’t specify what type. But it was over drugs.

UThe Defense called one witness — Brenda Coleman, the woman who lived next door to Kim Browders’ apartment on Seal-lan Street. She testified that she did not hear a gunshot the night she heard Rosalind and Mr. Wright in the apartment next door.

Detective Augustine’s report from the day of Mr. Wright’s arrest reads: “[h]e [Mr. Wright] stated to me he would write everything down that happened in reference to the death of Rosalind Greenhouse. He stated he had to get it off his mind.”

Mr. Wright claims the State failed to establish that the victim was Rosalind Greenhouse. However, all of the evidence points to Rosalind Greenhouse. She was the only missing person reported. Moreover, considering the State’s two experts’ testimonies, one in DNA analysis and the other in forensic anthropology, along with the evidence of Mr. Wright’s own admissions, Mr. Wright has failed to show that the evidence, indicating the remains belonged to Rosalind Greenhouse, was insufficient.

Dr. Pat Wojtkiewicz, accepted as an expert in the field of DNA analysis, testified that his lab tested a tooth, an arm bone, and a reference sample Rosalind’s mother provided. The latter was used to determine, through mitochondria DNA, whether the bones could belong to a maternal relative of Mrs. Greenhouse. Mitochondria DNA is not highly individual between persons; rather, as Dr. Wojtkiewicz testified:

It’s only passed from the mother to the children. And this is primarily the type of DNA that’s used to type skeletal remains or bones from ancient sites and so forth.... And its type is used for skeletal remains because it’s a longer lasting and more numerous a quality of that DNA. So typically, when we do skeletal remains, we’ll do mitochondria DNA typing.

Dr. Wojtkiewicz explained that the type of mitochondria DNA samples examined in the present case has not been found in Caucasian, Hispanic, Asian or Native Americans. Further, it has been observed only in two of 928 African samples.

Additionally, Dr. John Verano, accepted as an expert in forensic anthropology, examined the remains found in the present case and concluded that the skeletal remains were consistent with an African American female, approximately 16 to 20 years of age. According to Rosalind’s mother, Rosalind’s teeth were in perfect condition when she disappeared. This is consistent with Dr. Verano’s testimony that he did not observe any cavities or fillings in the skull.

|7He noted that none of the human bones showed carnivorous damage and that the head was partially mummified, both of which were indications that the body was not placed under the house right away. Dr. Verano had previously mentioned damage to the elbow, which he agreed could have occurred if the body was being dismembered. When asked if the death of the person to whom the skeletal remains belonged could have been accidental, Dr. Verano stated:

I guess what I would say is that the circumstances under which the remains were found are highly suspicious and what I would say is that in my opinion it would be highly unlikely that someone died accidently or committed suicide and ended up under that house without human aging. And my argument comes from the fact that, that skull shows so much dry tissue that in my opinion it must have been kept somewhere protected from flies, protected from carnivores[.]

Dr. Verano further stated that he saw “human factors in manipulation of the body.”

Mr. Wright claims the State failed to establish corpus delicti. In other words, the State’s only proof that Rosalind died from a criminal act was Mr. Wright’s own uncorroborated confessions. However, the independent proof necessary to satisfy corpus delicti may be either direct or circumstantial and does not have to go to every element of the offense; it need only establish the commission of a criminal act.

We find that the State introduced sufficient evidence that the bones found were the remains of Rosalind Greenhouse. Although this evidence included Mr. Wright’s statements, there was sufficient independent evidence to prove the remains belonged to Rosalind. Additionally, the State introduced independent evidence that Rosalind died because of criminal activity. The victim’s body was found under a house located across the street from the apartment where she was last seen and in which Mr. Wright lived. Dr. Verano testified that because of various reasons, he believed that the victim’s body was kept somewhere for a period of time before it was placed under the house. Additionally, the skull was found lying on a sheet, a fact which corroborates Mr. Wright’s statement that he wrapped her body in some sheets or a blanket and put it in a garbage bag. The day after Brenda Coleman heard noises coming from the | «apartment next door, she saw him sweep mop the kitchen floor and leave with a big garbage bag. He brought his cousin two bags of clothes containing bloody T-shirts to be washed. Finally, his cousin, Michael Malbrough, stated that he smelled a rotten, foul odor in the Defendant’s apartment and noticed that furniture was turned over. Even though the evidence is circumstantial, it excludes every reasonable hypothesis of innocence.

While Mr. Wright acknowledges that he made many statements indicating that he killed Rosalind Greenhouse, he stresses the fact that those statements were made while he was drinking heavily and they differed from one recipient to another. He also characterizes these witnesses’ testimonies as being highly questionable. Notwithstanding, they were examined about the circumstances under which the statements were made, about the fact that they did not believe him when he first made the statements, and, when pertinent, about their respective criminal records. Nonetheless, the jury apparently chose to believe at least some of them.

Mr. Wright’s final argument challenging the sufficiency of the evidence asserts that the State failed to rule out the possibility that Rosalind was killed by provocation or in the heat of passion. He argues that if the trier of fact believed that he made the statements which the State’s witnesses asserted, the trier of fact should have also believed that he killed Rosalind “over an argument concerning missing drugs.” However, the burden of proving provocation or “heat of blood” is not the State’s burden. Mr. Wright has the burden of proving these mitigating factors. On review, we ask only whether, viewing the evidence in the light most favorable to the prosecution, the trier of fact could have found that he had not established these factors.

In the instant case, the jury could have easily determined that he failed to prove that the killing was precipitated by Rosalind stealing his drugs, that the stealing immediately preceded the killing, or that the stealing alone would have been sufficient provocation to reduce the verdict to manslaughter.

| ^Request por New Trial

Mr. Wright filed a motion entitled Motion for Post-Verdict Judgment of Acquittal, but, in substance, it also included a motion for new trial. La. Code Crim.P. art. 851 provides for the granting of a new trial whenever “[t]he verdict is contrary to the law and the evidence.... ” “When ruling on a motion for new trial, the trial court must apply the ‘thirteenth juror’ standard and review the weight of the evidence.” La.Code Crim.P. art. 821, on the other hand, provides for the granting an acquittal “if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.” Mr. Wright’s arguments under both articles are essentially the same.

He maintains that when the trial court ruled on the motion for new trial, it failed to consider whether the verdict was contrary to the law and evidence. He asserted that the evidence did not sufficiently show that Rosalind Greenhouse was the victim nor that the victim died because of a criminal offense. After making additional arguments regarding the sufficiency of the evidence, he urged that a new trial should have been granted because testimony was introduced that referred to him as a “drug dealer,” as a person who was “slinging dope,” as a person who raped the victim, and as a person who was always running from the police. He argued that all of these references were to inadmissible other crimes evidence. Finally, he contended that none of his statements should have been admitted before the court’s determination that corpus delicti had been sufficiently proven.

After allowing the State to present its arguments, the trial court denied the motion for post-verdict judgment of acquittal, finding that in “[t]he light most favorable to the state, the evidence certainly justify [sic] their conviction without question.” The trial court denied the motion for new trial, ruling as follows:

Now, as to the New Trial, we previously discussed, on the record several times, this court’s belief on the other crimes’ evidence, and in this case, they squarely fit the presentation as presented by Mr. Lafargue, for the state squarely fits under the Code of Evidence; and was admissible to prove all matters submitted by the State.
| ^Certainly, there was a lot of circumstantial evidence in this ease, and ended up being of an overwhelming nature. But, this court is convinced that the other crime [sic] evidence was properly admitted.
AND, THEREFORE, the Motion for New Trial is also DENIED.

The trial court did not specifically state that it was considering whether the verdict was contrary to the law and evidence when it ruled on the motion for new trial; however, although it was in the written motion, defense counsel did not orally argue that claim before the trial court. Consequently, he waived it. Furthermore, he did not object to the trial court’s failure to rule on it; therefore, he is precluded from raising the issue on appeal.

Additionally, it is apparent from the trial court’s ruling on the motion for post-verdict judgment of acquittal that it actually considered the evidence as a thirteenth juror. Thus, it ruled on Mr. Wright’s claim that the verdict was contrary to the law and evidence. In his ruling on the motion for post-verdict judgment of acquittal, the trial court stated:

And, in this cae [sic], the state started with a — like a puzzle from when we were kids; and they didn’t have, really, any pieces to it, except some bones. And, they started with that puzzle. And, quite frankly, before trial, I never thought they were going to build the puzzle. But, they built it in such a manner that every piece fit exact. They started off with these bones; ended up identifying, and, through experts, Mr. Wright made various statements; they had more witnesses than I knew, as to the statements that he made, and also the physical things, the most compelling being the night Ms. Coleman sees the young lady in the apartment does not leave.... And then, Mr. Wright begins to tell people what he’s done. He shows the bones. He tells people that he’s killed her. He was his own worst enemy, after the fact, by telling so many people.

When the trial court ruled on the motion for new trial, it stated that the evidence was circumstantial and “ended up being of an overwhelming nature.” These statements reflect the trial court’s consideration, as a thirteenth juror, of the weight of the evidence introduced to the jury.

lnFinally, Mr. Wright asserts that the trial court failed to properly consider the sufficiency of the evidence claim. However, in addressing his motion for post-verdict judgment of acquittal, the trial court considered the sufficiency of the evidence and found that in “[t]he light most favorable to the state, the evidence certainly justify [sic] their conviction without question.” Thus, the court properly considered the sufficiency of the evidence claim. The trial court’s ruling was correct.

Admissibility of Evidence Relating to Drug Use

Lastly, Mr. Wright claims the evidence of his selling crack cocaine was improperly admitted at trial and, alternatively, that his attorney was ineffective for failing to object and for failing to request a Prieur hearing. At the close of the State’s case, defense counsel moved for a mistrial, claiming that evidence of Mr. Wright’s drug dealing was improperly admitted. However, Mr. Wright was given notice of the State’s intent to introduce the evidence and that such evidence was admissible to prove motive. In fact, Mr. Wright, himself, stated that he killed the victim because she stole his “dope.” Thus, the trial court denied the motion for mistrial, stating: “Notice was given. The evidence of other crimes goes to show motive as to the drug dealing ...”

Apparently acknowledging that the Defense received notice of the State’s intent to offer such evidence at trial, appellate counsel claims that no formal Prieur hearing was held in advance of trial. However, the record does not indicate that defense counsel requested a Prieur hearing after being notified of the State’s intent to introduce such evidence. This fact would undermine any assertion that a contemporaneous objection was made. Furthermore, appellate counsel has failed to point to any in the record.

Although a mistrial was ultimately requested, it was too late since it was not made at the time that the alleged errors occurred. However, the record does indicate that the admissibility of the evidence of Mr. Wright’s drug dealing was discussed, Neither, during a bench conference or at some other point during trial. Therefore, we will address the merits of his argument.

Appellate counsel claims that evidence of Mr. Wright’s drug dealing was not res gestae or a necessary incident to the murder. Thus, the State could have easily presented its case without referring to the evidence. Appellate counsel makes no argument, however, concerning whether the evidence could have been admitted to prove motive — the purpose for which the trial court approved it admission.

In State v. Cotton, our supreme court stated:

As a general matter, “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” However, such evidence may be admissible to prove “motive, opportunity, intent, plan, knowledge, identity [or] absence of mistake or accident.” The inquiry, however, does not end with the determination that the other bad acts evidence is admissible for one of the article 404(B) purposes. For, “even if independently relevant, the evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.”

(Citations omitted.)

According to witnesses, Mr. Wright stated that he killed the victim because she stole his “dope.” Thus, the State’s proof of motive was based on his anger at the victim for stealing his drugs. The fact that he sold drugs was relevant in establishing this motive because it shows that he would be angry for losing the money he would have made had he been able to sell the drugs. Furthermore, the probative value of such evidence outweighed any prejudicial effect it may have had on his case. Consequently, the trial court correctly found that evidence of Mr. Wright’s selling drugs was admissible to prove motive.

CONCLUSION

For the foregoing reasons, we affirm Mr. Wright’s conviction.

AFFIRMED.

      . State v. Narcisse, 97-3161 (La.6/26/98); 714 So.2d 698.

      . La.Code Crim.P. art. 890.1(B).

      . State v. Thibodeaux, 98-1673 (La.9/8/99); 750 So.2d 916, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000).

      . Id.

      . La.R.S. 15:438.

      . State v. Hamilton, 99-523 (La.App. 3 Cir. 11/3/99); 747 So.2d 164.

      . Id.

      . State v. McCullough, 00-983, p. 39 (La.App. 3 Cir. 12/6/00); 774 So.2d 1105, 1127, writ denied, 01-533 (La.1/25/02); 806 So.2d 669.

      . See State v. M.M., 00-1296 (La.App. 3 Cir. 8/29/01); 802 So.2d 43, writ denied, 01-3370 (La.10/4/02); 826 So.2d 1121.

        . See State v. King, 96-1303 (La.App. 3 Cir. 4/2/97); 692 So.2d 1296.

      . State v. Cooks, 97-999 (La.9/9/98); 720 So.2d 637, cert. denied, 526 U.S. 1042, 119 S.Ct. 1342, 143 L.Ed.2d 505 (1999).

      . See State v. Stracener, 94-998 (La.App. 3 Cir. 3/1/95); 651 So.2d 463, writ denied, 97-696 (La.11/7/97); 703 So.2d 1261.

      . 00-850, p. 12 (La.1/29/01); 778 So.2d 569, 578.


author: hPETERS, J.

text:
    Mary Emelda COLOMB v. STATE FARM INSURANCE COMPANIES, et al.
    No. 02-1279.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      Mark L. Riley, Onebane Law Firm, Lafayette, LA, for Defendant/Appellant, Highlands Insurance Company.
    Jarvis J. Claiborne, A Professional Law Corporation, Opelousas, LA, For Secondary Plaintiff/Appellant, Mary Emelda Co-lomb.
    Jerry J. Falgoust, Dauzat, Falgoust, Ca-viness and Bienvenu, L.L.P., Opelousas, LA, for Defendant/Appellee, Elizabeth Marie LeBlanc.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   hPETERS, J.

By separate appeals, Mary Emelda Co-lomb and Highlands Insurance Company (Highlands) appeal the trial court’s denial of Ms. Colomb’s request for a continuance of the trial on the merits and dismissal of her suit. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

The litigation arises from an August 12, 1998 St. Landry Parish automobile accident in which the vehicle driven by Ms. Colomb was rear-ended by the vehicle driven by Elizabeth M. LeBlanc. Ms. Co-lomb brought suit, on August 9, 1999, against Ms. LeBlanc and State Farm Mutual Automobile Insurance Company (State Farm), Ms. LeBlanc’s automobile liability insurer, to recover the damages she sustained in the accident. At the time of the accident, Ms. Colomb was employed by Rehab Center of Opelousas (Rehab Center) and was in the course and scope of her employment. Highlands, Rehab Center’s workers’ compensation insurer, paid Ms. Colomb weekly benefits and medical expenses related to the accident. After Ms. Colomb instituted her suit against Ms. LeBlanc and State Farm, Highlands intervened, seeking recovery of the benefits it had paid Ms. Colomb.

State Farm petitioned the court for a coneursus proceeding and permission to deposit a sum equivalent to its policy limits, plus legal interest, into the registry of the court pursuant to La.Code Civ.P. art. 4651 et seq. The trial court signed an order dated June 25, 2001, granting State Farm’s petition. By joint stipulation recorded on November 13, 2001, Ms. Colomb and Highlands agreed to a division of the deposited policy limits. On the same day, the trial court signed a judgment effecting the stipulation.

In a telephone scheduling conference held on December 27, 2001, the trial _[2.court set a trial date of April 4, 2002. By an order signed on February 26, 2002, the trial court upset the April 4 trial date and reset the trial for May 9, 2002. On the morning of May 9, neither Ms. Colomb nor her counsel appeared for trial. Instead, the trial court was informed by telephone that Ms. Colomb’s counsel was in the hospital suffering from food poisoning. Additionally, Ms. Colomb’s counsel faxed to the trial court a motion to continue the trial. The faxed motion did not mention counsel’s hospitalization, but instead asserted that Ms. Colomb and Highlands were in settlement negotiations which could resolve the litigation and that she was a college student with final exams scheduled for May 9. She asserted in her motion that Ms. LeBlanc objected to the continuance. Counsel for Ms. LeBlanc was present in court on the morning of May 9. Through her counsel, Ms. LeBlanc announced that she was ready for trial and objected to the continuance. The trial court granted the continuance in open court and scheduled a status conference for May 24, 2002. At the status conference, the trial court rescheduled the trial for June 6, 2002. However, on June 5, 2002, the trial court informed counsel for the litigants that it was forced to reschedule the trial for June 11, 2002.

When the trial court called the matter on June 11, Ms. Colomb’s counsel announced that she was not present. In doing so, he stated the following:

Your Honor, my client is not here. Uh, she was notified of the court date today. We wrote her a letter. Plus my secretary called her yesterday to remind her. I have searched the halls for her. I called her house just now and left a message on the answering machine and she is not present. So, I cannot proceed without my client Your Honor. I wanted to request a continuance until I can contact my client. Hopefully within the next few days.

The trial court denied the continuance, stating, “This case has been reset a number of times and we’re here and ready to dispose of it. You know I met with you all in lachambers and we discussed this case before coming on the bench. You know my position on it.”

Counsel for Ms. Colomb then introduced a copy of the letter dated June 5, 2002, that he forwarded to his client, informing her that the trial had been rescheduled for June 11 at 1:30 p.m. Again, counsel informed the trial court that his office had telephoned Ms. Colomb on June 10, as well as the morning of the trial, to remind her of the setting. However, he had no evidence to present on behalf of his client regarding the merits of the suit. Neither Ms. Colomb’s counsel nor Highlands’ counsel presented any evidence in support of their claims. The trial court then dismissed both the initial action and the intervention. In their appeals, both Ms. Co-lomb and Highlands assert that the trial court abused its discretion in denying the motion for continuance and in dismissing their claims.

OPINION

Louisiana Code of Civil Procedure Article 1672(A)(1) provides that “[a] judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case, the court shall determine whether the judgment of dismissal shall be with or without prejudice.” (Emphasis added.) Ms. LeBlanc did not invoke the mandatory language of this Article. Instead, after the motion for continuance had been denied, counsel for Ms. LeBlanc stated the following:

Your Honor we’re prepared to go to trial here today. I mean you could proceed but I mean I’m not going to stipulate to, you know to, since it’s an attempt to get an excess judgment against my insured, I’m not going to stipulate to any liability or any of the medical causa-tions or anything because of the circumstances.

In other words, Ms. LeBlanc relied on Ms. ■Colomb’s inability to carry her burden of Lproof at trial as a basis for the dismissal. See La.Code Civ.P. art. 1672(B). Thus, the sole issue on appeal is whether the trial court erred in denying the motion for a continuance.

Louisiana Code of Civil Procedure Article 1601 provides that “[a] continuance may be granted in any case if there is good ground therefor.” We review the denial of a motion for continuance under the abuse of discretion standard. Jackson v. Royal Ins. Co., 97-723 (La.App. 3 Cir. 12/17/97), 704 So.2d 424.

Ms. Colomb asserts in brief that the matter before the trial court was an uncomplicated bench trial involving local attorneys and witnesses, that she had only requested one continuance in the past, and that there was a valid reason for her failure to appear. She further asserts that the trial court had other options available to it, including the grant of a short recess or one-half day continuance to allow her counsel to locate her. While we agree that the trial court had these options, Ms. Co-lomb’s counsel did not seek this relief — he sought only a continuance of the complete trial.

While Ms. Colomb asserts that a valid reason exists for her absence at trial, the record contains no evidence of that reason. Additionally, she suggests in brief that the trial court had expressed reasons in chambers concerning his ruling on the motion for continuance other than those expressed in open court. Neither the reason for her absence nor the reasons allegedly asserted by the trial court in chambers are contained in the appellate record. Therefore, we can neither speculate concerning the content of these reasons nor consider these reasons on appeal.

| RThe record before us does not establish that the trial court abused its discretion in denying Ms. Colomb’s motion for continuance. Highlands did not protect itself by subpoenaing Ms. Colomb to trial and cannot now complain of her absence. Thus, when Ms. Colomb and Highlands failed to present any evidence to support the relief they requested, the trial court did not err in dismissing their claims. We find no merit in the assignments of error asserted by Ms. Colomb and Highlands.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s judgment in all respects. We assess one-half of the costs of this appeal to Mary Emelda Colomb and one-half to Highlands Insurance Company.

AFFIRMED.

      . Ms. LeBlanc asserts in brief that the upset of the April 4 trial date was at Ms. Colomb’s request. The record only establishes that the trial court issued a per curiam order resetting the trial for May 9, 2002.


author: hPICKETT, Judge.

text:
    Robert CHASTANT, D.D.S., A Professional Dental Corporation v. OASYS IMAGING, INCORPORATED.
    No. 02-1218.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      Alex A. Lopresto, III, Roy, Forrest & Lopresto, New Iberia, LA, for Plaintiffs/Appellee, Robert Chastant, D.D.S., A Professional Dental Corporation.
    Glenda Huddleston, New Iberia, LA, for Defendant/Appellant, Oasys Imaging, Inc.
    Court composed of NED E. DOUCET, JR., Chief Judge, ULYSSES GENE THIBODEAUX and ELIZABETH A. PICKETT, Judges.
   hPICKETT, Judge.

FACTS

Dr. Robert Chastant, an orthodontist, attended an orthodontic conference in 1994. He was in the market for an imaging system for his orthodontic practice. This system would be used to make digital images of his patients. Those images would be used to assist in prescribing the correct treatment and communicating with the referring dentists regarding the treatment.

Dr. Chastant had already put a deposit down with Dolphin Imaging when he met Tom Gwaltney, the president of Oasys Imaging, Inc. He discussed his computer needs with Gwaltney and eventually decided to purchase an imaging system from Oasys instead of Dolphin.

One of Chastant’s concerns was that his system be able to interface with the Or-thotrac Management Software (OMS) already in use at his office. He wanted to be able to enter information into one system that could be read by both. Gwaltney knew that Chastant wanted this and agreed he could do it. The main problem was that OMS was a UNIX-based system and Oasys was Windows-based. Oasys agreed to design software to make the interface possible.

On April 25, 1994, Dr. Chastant entered into a contract with Rockfort Industries, Inc., to provide the software and the hardware with the specifications to run the software. Oasys sold the hardware and software to Rockfort, who leased the hardware to Chastant. Included in the agreements were service contracts with Rock-fort for the hardware and with Oasys for the software.

Dr. Chastant claims the problems with the Oasys system began almost immediately. The computers would lock up when attempting to get the OMS and Oasys to interact. Error messages frequently appeared during routine functions. | gThey were unable to retrieve information stored on back-up systems. Images were not of high quality, and they could not print the images. The voice recognition system which would have allowed one technician to take pictures would not work, so two technicians were required to do the job. In initial consultations, instead of being able to use the computer terminal in the room set aside for that purpose, the technician would often have to take the images and then leave the room to enter data into another terminal. When images were sent to referring dentists, the wrong name would be on the image, misidentifying the patient. Chastant’s office manager, Liz-ette Breaux, testified that it was often difficult to get someone from Oasys on the phone to help correct the problems.

Although Oasys did attempt to help solve the problem, Chastant claims they were never able to get the OMS and Oasys systems to interface. In 1997, Chastant abandoned use of the Oasys system.

On November 6, 1996, Oasys sent Chas-tant a demand letter for payment for certain computer equipment and unpaid maintenance contracts. Chastant, in turn, canceled their contract with Oasys alleging defects in the computer system. On April 4, 1997, Chastant filed suit in redhibition against Oasys, seeking the return of the purchase price of the system, interest, expenses, damages, and attorney fees.

This matter went to trial on April 5, 1999, and was continued on October 9, 1999. The trial court issued Reasons for Judgment on March 30, 2001, and First Amended and Supplemental Reasons for Judgment on May 30, 2001. A Motion to Fix Attorney’s Fees was heard on September 7, 2001, and written reasons for judgment on that motion were issued on October 10, 2001. A formal judgment was signed on November 30, 2001, awarding Chastant damages in the amount of | s$88,636.00 plus legal interest from the date of judicial demand, attorney fees in the amount of $12,469.50 plus legal interest from the date of judicial demand, and casting Oasys with all costs. It is from this judgment Oasys appeals.

ASSIGNMENT OF ERROR

Oasys alleges four assignments of error, as follows:

1) The trial court erred when it found that Chastant was entitled to recission of the contract of sale for equipment with Oasys.
2) The trial court erred by finding that the Oasys imaging system was defective because it could not interface with Or-thotrac.
3) Alternatively, the trial court erred by failing to Award a reduction in the purchase price rather than recission of the sale.
4) The trial court erred by awarding attorney fees.

DISCUSSION

Redhibition is defined in La.Civ.Code art. 2520:

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain recission of the sale.
A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

An action in redhibition only lies if the defect existed at the time of delivery. La.Civ.Code art. 2530. In this case, the trial court relied on La.Civ.Code art. 2545 in assessing damages, which governs the liability of a seller who knows of a redhibi-tory defect. It states:

A seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality that he |4knows it does not have, is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees. If the use made of the thing, or the fruits it might have yielded, were of some value to the buyer, such a seller may be allowed credit for such use of fruits.
A seller is deemed to know that the thing he sells has a redhibitory defect when he is a manufacturer of that thing.

Since Oasys developed the software in this case, they are considered to be the manufacturer and are thus presumed to know of any defect.

This court discussed the meaning of “defect” in a redhibitory action in Harper v. Coleman Chrysler-Plymouth-Dodge, Inc., 510 So.2d 1366, 1369 (La.App. 3 Cir.1987):

The term “defect”, as contemplated by Article 2520, means a physical imperfection or deformity; or a lacking of necessary components or level of quality. Ezell v. General Motors Corporation, 446 So.2d 954 (La.App. 3rd Cir.1984), writ denied, 449 So.2d 1350 (La.1984); Williams v. Louisiana Machinery Company, Inc., 387 So.2d 8 (La.App. 3rd Cir.1980). The defectiveness of the thing sold is a factual determination by the trier of fact, whose factual conclusions will not be disturbed on appeal absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The Louisiana Supreme Court discussed the burden of proof in a redhibition action in Rey v. Cuccia, 298 So.2d 840, 843 (La.1974):

The buyer may prove the existence of redhibitory defects at the time of the sale not only by direct evidence of eyewitnesses, but also by circumstantial evidence giving rise to the reasonable inference that the defect existed at the time of the sale. [Citations omitted.] As stated in Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151, 155: * * * proof by direct or circumstantial evidence is sufficient to constitute a preponderance when, taking the evidence as a whole, such proof shows the fact or causation sought to be proved is more probable than not.’

The appellant’s first assignment of error relates to the trial court’s finding that Chastant was entitled to recission of the sale for equipment purchased from the | ¡¡appellant. The appellant argues that a lightning strike in 1994, a month after the system was installed, was the cause of Chastant’s problems, not a defect in the system. The appellant further argues Oa-sys was not allowed an opportunity to remedy any defects, and, since Chastant was still using some of the equipment for word processing or emulation, Chastant should, at most, be allowed only a reduction in purchase price.

The trial court heard evidence regarding the lightning strike and did not find it to be the cause of the problems in the system. This is a finding of fact by the trial court that is supported by the record and, therefore, not manifestly erroneous. Oa-sys, in fact, was afforded an opportunity to remedy the problems. Breaux and Chas-tant both testified they called Oasys repeatedly about the problems with the system. In addition, Gwaltney or a member of Oasys staff went to New Iberia to investigate these problems on four separate occasions. We find no error on the part of the trial court in determining Oasys was given the opportunity to remedy the problems. Finally, the trial court chose not to give Oasys a credit for the equipment still being used by Chastant. Considering the costs of the system and the intended use, the function for which it is being used is a very minor function. As there is no evidence as to the value this equipment possesses for the manner in which it is being used, we find no error on the part of the trial court. This assignment of error lacks merit.

The second assignment of error addresses the trial court’s determination that the Oasys imaging system was defective because it could not interface with the OMS system. The trial court heard extensive testimony on this point. The trial court ultimately determined that the system’s inability to interface with the OMS system constituted a redhibitory defect. We agree. Dr. Chastant specifically discussed with | fiGwaltney his need for a system that would interface with the OMS system he had in place. He was assured by Gwaltny that the Oasys system would meet all his needs and was specifically told the Oasys system would interface with OMS. It would not. The trial court heard expert testimony, which it accepted, that the Oasys system was defective and was not capable of performing the functions Gwaltney assured Chastant it would perform. La.Civ.Code art. 2545 specifically states that “a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer for the return of the price with interest from the time it was paid, for the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees.” As the manufacturer, Oasys is deemed to have known of the defects in the system. The trial court made findings of fact supported by the record and correctly applied applicable law. We find no error in the trial court’s ruling that the software was defective and the defect constituted a redhibitory defect.

In the third assignment of error, the appellant alternatively argues Dr. Chastant was only entitled to a reduction of the purchase price rather than recission of the sale as the evidence establishes only a partial failure of consideration, citing La.Civ.Code art. 2541 which provides, in part:

In an action for rescission because of a redhibitory defect the court may limit the remedy of the buyer to a reduction of the price.

(Emphasis added.)

The price reduction that may be granted under this article is the difference between the sale price and the price a reasonable buyer would have paid if he had known of the defect. Capitol City Leasing Corp. v. Hill, 404 So.2d 935 (La.1981). The trial court chose not to reduce the price, instead determining Dr. Chastant was entitled to a total recession of sale. Based on the record, we do not find this determination to be clearly wrong.

In their final assignment of error, Oasys argues the trial court erred in awarding attorney fees in this matter because Dr. Chastant faded to prove knowledge of the defect. This assignment of error lacks merit. Oasys is in fact the manufacturer of the software at issue and, as such, under the provisions of La.Civ.Code art. 2545, is deemed to know of the defects. We find no error in the trial court’s award of attorney fees.

CONCLUSION

We find no error on the part of the trial court in it’s determination that Dr. Chas-tant was entitled to rescission of the sale of the Oasys system because of redhibitory defects present in the system at the time of the sale. We find no error in the trial court’s grant of attorney’s fees. We affirm the judgment of the trial court in all respects.

AFFIRMED.