text:
    STATE of Louisiana v. Michael P. ENCLARD.
    No. 03-KA-283.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 19, 2003.

      Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Appellant, Michael P. Enclard.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Court, Parish of Jefferson, Terry M. Boudreaux, Margaret E. Hay, Appellate Counsel, John Maestri Gordon R. Konrad, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   I «SUSAN M. CHEHARDY, Judge.

On May 17, 2001, the Jefferson Parish District Attorney’s Office filed a bill of information charging the defendant, Michael Enclard, with aggravated burglary, in violation of La. R.S. 14:60, and forcible rape, in violation of La. R.S. 14:42.1. The defendant was arraigned and pled not guilty.

On November 27, 2001, trial commenced. The following day, the twelve-person jury found the defendant guilty as charged of forcible rape and guilty of unauthorized entry of an inhabited dwelling, a responsive verdict to aggravated burglary.

Defendant filed motions for a new trial and for post-verdict judgment of acquittal, which the trial judge denied. On December 10, 2001, the trial judge sentenced the defendant to three years imprisonment at hard labor for unauthorized entry of an inhabited dwelling. On the forcible rape conviction, the judge [.¡sentenced defendant to fifteen years imprisonment at hard labor with the first two years without benefit of parole, probation or suspension of sentence. The trial judge also specified that defendant’s crime of forcible rape was a violent crime under La.C.Cr.P. art. 890.1, and, thus, defendant was not entitled to diminution of sentence for that conviction. The defendant filed a motion for appeal, which the trial judge granted.

Facts

By all accounts, A.Z. and the defendant had a stormy relationship that lasted approximately three years and produced two children, both of whom were less than three years old on March 11, 2001. The victim and defendant lived together for most of their relationship. According to the victim, the defendant frequently physically abused her by hitting, kicking, and punching her throughout their relationship, even while she was pregnant.

On November 27, 2000, the victim called the police to report that the defendant had hit her in the head. As a result, the defendant was arrested and the victim obtained a protective order dating from November 28, 2000 until May 28, 2001. Nevertheless, the victim continued living in the same house as the defendant until mid-December 2000.

In mid-December 2000, defendant again hit the victim. As a result, the victim developed a black eye. Thereafter, the victim moved out of the apartment |4that the two shared. Defendant admitted at trial that his elbow “accidentally” hit the victim’s right eye while they were wrestling during an argument.

In December of 2000, A.Z. and the children moved in with a friend. After A.Z. moved out, the defendant repeatedly called and harassed her at work and at her friend’s apartment. In February of 2001, A.Z. obtained her own apartment on York Street in Metairie. She testified that she did not tell the defendant her address or telephone number but, according to defendant, he discovered that information on the Internet.

On the night of March 11, 2001, A.Z. arrived home at about 7:00 p.m. with her two children. About forty-five minutes later, her son spilled something on the floor in the den. While she was on her hands and knees cleaning up the mess, the defendant came out of the closet behind her, held a sharp object to her throat, and told her not to scream or he would kill her. She later saw that the object was a screwdriver and that defendant had cut her on the neck with the screwdriver. Defendant told her that he wanted to kill her and that she drove him to “this” because she did not want to be with him anymore.

Defendant then directed her to put the children to bed. During this time, he followed her around the apartment with the screwdriver. Although she wanted to call the police, the only corded phone was unplugged and defendant had both of her cordless phones in his pants’ pocket.

After awhile, defendant asked A.Z. to remove her clothing but she refused. When defendant threatened to kill her, she removed her clothing from waist down. Defendant removed his pants, forced her to lie down on the floor and then vaginally raped the victim.

Afterwards, defendant made her turn onto her side with her back toward him and she felt defendant “doing something” with her hands behind her back. A.Z. begged him to let her go. Defendant remarked that he might leave if she let him tie |Rher up, closed her eyes, and went to sleep. Abruptly, he stopped “doing something” with her hands and told her to sit on the couch. Defendant then removed all of his clothing and raped A.Z. on the couch.

Afterwards, A.Z. asked defendant if she could put her clothes on and defendant agreed. Once she was clothed, A.Z. immediately ran out of the apartment to ask her upstairs neighbor to call the police. According to the 911 phone logs, the 911 call from the neighbor’s phone number was received at 1:39 a.m. on March 12, 2001.

Deputy Rose Eddy of the Jefferson Parish Sheriffs Office was one of several officers who responded to the scene. Shortly after 1:40 a.m., Deputy Eddy found A.Z. crying outside of her apartment. According to Deputy Eddy, A.Z. related that her ex-boyfriend had pried open the rear sliding door of her apartment, hidden in the living room closet, attacked her, and held her against her will for approximately six hours. A.Z. showed Deputy Eddy the direction defendant had fled and Deputy Eddy broadcast a description of the defendant on the police radio. Although they searched for him, the officers did not immediately find defendant.

At this point, A.Z. realized that the defendant had stolen her car keys after assaulting her. According to A.Z., the police told her to persuade the defendant to return to her apartment by telling him that she would not press charges against him.

A little later that morning, Sylvia McGarry, the victim’s best friend, arrived at A.Z.’s apartment. After all of the officers left, the defendant telephoned, and A.Z. convinced defendant to return to the apartment. A.Z. called 911 again to report that the defendant was on his way to her apartment.

At approximately 7:05 a.m., Deputy Steve Caravella responded. When Deputy Caravella interviewed A.Z., she related that the defendant had raped her and he was on his way back to her apartment. Deputy Caravella left to canvass the area for the defendant. While he was search-, ing for the defendant, Deputy | (¡Caravella received another call from dispatch that the defendant was knocking on A.Z.’s apartment door. Deputy Caravella returned and placed the defendant under arrest without incident. Deputy Caravella testified that, when he patted the defendant down, he found a “large bootlace” in the defendant’s pocket, but he did not find a screwdriver on defendant’s person.

After the defendant was arrested, Ms. McGarry took A.Z. to the hospital. Deborah Guzzardo LeBlanc was the triage nurse in the emergency room. Nurse Le-Blanc testified that she telephoned the police to ensure that a report for rape had been made, and the police told Nurse Le-Blanc that an officer would be sent to the hospital.

Nurse LeBlanc testified that A.Z. .was “tearful” and complained of abdominal pain. Additionally, Nurse LeBlanc testified that A.Z. had a “superficial laceration” on her neck that did not require stitches. A photograph of the laceration was taken and introduced into evidence at trial.

Deputy Caravella, who had responded to the victim’s 911 call and eventually arrested the defendant, went to the hospital to speak with the victim. When he realized that the rape allegation was not included in the initial report written by Deputy Eddy, he reported the rape allegation in a supplemental report.

Detective Jolyn Cummings of the Jefferson Parish Sheriffs Office Personal Violence Unit was alerted to the allegation and reported to the hospital. Detective Cummings testified that A.Z. cried when they began talking at the hospital. The doctor performed a rape kit examination and told Detective Cummings that seminal fluid was present. Detective Cummings acknowledged that the laboratory report indicated no seminal fluid was detected on the vaginal swabs, but was found on the victim’s underwear. The State and defense stipulated that the semen belonged to the defendant.

_[£The State also presented testimony from Joe Wool, an investigator for the Jefferson Parish District Attorney’s Office. Mr. Wool testified that when he was reviewing the file in preparation for trial, he noticed that the original crime scene photographs did not show any “direct pictures of the locking mechanism” on the sliding door.

The day before trial, Mr. Wool went to the apartment on York where the incidents occurred and asked the current residents (not the victim) if he could look at the door. Mr. Wool testified that he observed “visible pry” marks near the “locking mechanism” on the door. The shift sergeant for the Jefferson Parish Sheriffs Office met him at the apartment with a Polaroid camera. Mr. Wool took possession of the Polaroids after the sergeant photographed the door.

Defendant’s version of the events differed substantially from the victim’s. Defendant stated that, on March 10, 2001, he and A.Z. had arranged to go out to eat the next day. According to defendant, A.Z. picked him up on the evening of March 11, 2001, at the North Kenner Library, which was near the defendant’s residence. They decided against going out to eat, however, because she did not have any money so she suggested that they go to her apartment instead.

Defendant said that night he and A.Z. watched NASCAR with their son then put the children to bed around 10:30 p.m. According to defendant, he and A.Z. then had consensual sexual intercourse. After-wards, A.Z. gave him her car keys to go to the store for cigarettes. Defendant did not go to the store, however, because, he claims, they started talking about the past, which led to an argument. According to defendant, however, they reconciled and, subsequently, had consensual sexual intercourse again.

Shortly thereafter, at defendant’s insistence, A.Z. went to check on their infant who was crying. According to defendant, A.Z. was in the child’s room for approximately five minutes, when “all of a sudden, she came out the room, headed |sstraight for the front door, phone in her hand. I hear her press three numbers. I hear her say T need an officer out to 4817 York Street,' and she.was out the door.’” At that point, defendant dressed and left the apartment.

After leaving, defendant called his sister, Melissa Guillie, from a pay telephone. Ms. Guillie testified that she picked up the defendant between 1:00 and 2:00 a.m. at Webster’s Restaurant on Clearview Boulevard and they drove around in her car for a while. Ms. Guillie telephoned the victim after she picked up her brother and A.Z. did not really seem upset on the telephone. Ms. Guillie then dropped the defendant off at the Department of Motor Vehicles in Kenner and went home.

Defendant testified that, at approximately 7:30 a.m., he returned to A.Z.’s apartment to return her keys. While there, he was arrested. Defendant assumed that he was being arrested for violating the restraining order.

Patricia and Pete Whittington, the defendant’s mother and step-father, also testified for the defense. Mrs. Whittington testified that the defendant lived with her from November 27, 2000 through March 12, 2001. Mrs. Whittington further stated that A.Z. had a black eye on Christmas day of 2000. According to Mrs. Whitting-ton, the defendant explained the black eye had occurred when his elbow had hit A.Z.’s eye while the two of them were wrestling and playing. Mrs. Whittington acknowledged that A.Z. remained silent after defendant’s explanation.

Mrs. Whittington testified she did not believe the defendant was capable of harming A.Z. and denied she would lie for the defendant. Mr. Whittington stated that A.Z. often brought the children to the Whittington residence for the defendant to babysit.

The defense also called Patricia Pradat, the mother of a friend of the defendant, as a witness. Ms. Pradat testified that she saw the defendant and A.Z. at the Kenner City Hall in January of 2001 and that A.Z. appeared to be there of her 19own free will. Finally, the defense called A.Z.’s upstairs neighbor, Debbie Hillebrandt, as a witness. Ms. Hillebrandt testified that her fiancé answered the door at 1:30 a.m. on March 12, 2001 and that he called the police. Ms. Hillebrandt testified that she observed the defendant leaving the apartment complex.

In assignment of error number one, defendant argues that the trial court erred in admitting crime scene photographs taken the day before trial. The defendant points out that the Polaroid photographs of the rear door of the victim’s apartment were not disclosed to the defense until the morning of trial. Further, because the Polaroids depict “pry marks” on the doorframe that were not depicted in the original crime scene photographs, defendant contends that their introduction into evidence was not harmless error.

The rules of discovery are intended to eliminate unwarranted prejudice arising from surprise testimony, to permit the defense to meet the State’s case, and to allow proper assessment of the strength of its evidence in preparing a defense. State v. Statum, 390 So.2d 886, 889-90 (La.1980), cert. denied, 450 U.S. 969, 101 S.Ct. 1489, 67 L.Ed.2d 619 (1981). The failure of the State to comply with discovery rules does not bring automatic reversal; rather, prejudice must be shown. State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272, 1281, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1995).

First, we note that, on August 20, 2001, the defense made a motion to view the crime scene, which the trial judge denied. At the August hearing on defendant’s motion to view the scene, the defendant argued that he needed to view the scene in order to prepare a defense and the prosecutor informed the court that the crime scene no longer existed. He specifically stated:

lmJudge, it’s no longer even a crime scene. Everything has been repaired. The door that was damaged and broken into is now fixed. We have pictures that we’ve given to Defense Counsel. [Defense counsel] can look at those.
I don’t think there’s going to be anything that she can gain by going in there and snooping around somebody’s apartment.
* * *
There’s no scene, Judge. The crime scene processed it and took pictures.

When the defense attorney stated at that hearing that no photographs had been provided to her, the prosecutor invited the defense to view the crime scene photographs at any time. When asked by the court whether the crime scene “photographs show the point of entry and so on,” the prosecutor replied affirmatively. Thereafter, the trial judge denied the defendant’s motion to view the crime scene.

Three months later, on the first day of the trial, the prosecutor informed the court that the State obtained Polaroid photographs of the crime scene the previous night and had shown these to the defense on the morning of trial. Defense counsel objected to the Polaroids “[biased on the fact that we were not allowed to see the crime scene and the Defendant — or the District Attorney was allowed to go and view the crime scene and photograph additional pictures, which they just presented to us.”

The prosecutor, who had previously informed the defense that the crime scene no longer existed, responded that the State had obtained the photographs by merely asking the current occupant of the apartment (who was not the victim) for permission to take photographs. The trial judge noted defendant’s objection.

On appeal, defendant’s primary argument is that his defense to aggravated burglary was prejudiced by the admission of the Polaroids because they depict pry marks on the door that are not depicted in the original crime scene photographs. In However, when the State informed the court and defense before trial that it would seek to introduce newly obtained photographs, defense counsel’s objection was that they had not been allowed to view the scene. Defendant did not object to the photographs on the basis that their content was prejudicial.

To preserve the right to appellate review of an alleged trial court error, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. See La.C.Cr.P. art. 841(A); State v. Gaal, 01-376, p. 17 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, 949. The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that the problem may be cured by the judge, as well as to prevent the defendant from gambling on a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. State v. Ware, 01-194, p. 14 (La.App. 5 Cir. 8/28/01), 795 So.2d 495, 504.

Both this Court and the Louisiana Supreme Court have held that a new basis for an objection may not be raised for the first time on appeal. State v. Cooks, 97-999 (La.9/9/98), 720 So.2d 637, 644, cert. denied, 526 U.S. 1042, 119 S.Ct. 1342, 143 L.Ed.2d 505 (1999); State v. Burdgess, 434 So.2d 1062, 1067 (La.1983); State v. Myers, 584 So.2d 242, 255 (La.App. 5 Cir. 1991), writ denied, 588 So.2d 105 (La.1991), cert. denied, 504 U.S. 912, 112 S.Ct. 1945, 118 L.Ed.2d 550 (1992). Both Cooks and Myers, supra, held that the defendant’s arguments were not preserved for review because the arguments were not raised in the trial court.

In State v. Winfrey, 97-427 (La.App. 5 Cir. 10/28/97), 703 So.2d 63, 77, writ denied, 98-264 (La.6/19/98), 719 So.2d 481, this Court addressed defendant’s assigned error only on the basis of the objection raised at trial, not the new basis urged for the first time on appeal. Accord, State v. Gaal, 01-376 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, 950. We will therefore address defendant’s assigned error on the basis of the objection raised at trial, which was that he had not been allowed to view the scene.

In this case, during the pre-trial hearing on defendant’s motion to view the scene, the prosecutor specifically told the defendant and the trial judge two things during the hearing: first, that the available crime scene photographs accurately depicted the point of entry and, second, that the crime scene no longer existed because the damage had been repaired. In this instance, the State’s responses at the August motion hearing may have lulled defendant into a misapprehension of the strength of the State’s case.

In his brief on appeal, defendant contends that he was prejudiced by the introduction of the Polaroid photographs because he was “unprepared to defend against physical proof that tended to corroborate one of the allegations [since] the defendant ... [was] denied the right to ... investigate the crime scene and get the pictures for himself.” Apparently, defendant’s reference to “allegations” is to the charged crime of aggravated burglary.

Here, the State responds that, even if the photographs were not properly admitted, their admission was harmless because the defendant cannot establish that he was prejudiced by their introduction. The State points out that the photographs were cumulative of Deputy Eddy’s testimony regarding the condition of the doorframe on the night of the incident.

|1sWe decline to comment on the apparent lack of truthfulness on the part of the prosecutor at the August hearing on defendant’s motion to view the scene. We do, however, mention that, in our opinion, the prosecutor knew or should have known that, before the State sought this new evidence on the eve of trial, that the defense should have been alerted to the State’s intention and, further, that the defense should have been offered the opportunity to be present to view the new evidence.

Ultimately, although we agree that the introduction of the Polaroid photographs was erroneous, we find that the defendant has failed to demonstrate that his defense was prejudiced by this error. First, the State presented other evidence which tended to prove unauthorized entry into the victim’s apartment. The victim herself testified that the defendant, who was not supposed to be in her house, was hiding in a closet in her living room when she arrived home.

Moreover, defendant was allowed to thoroughly cross-examine Deputy Eddy regarding her memory of the crime scene on the night of the attack. Furthermore, in her cross-examination of Investigator Joe Wool, defense counsel elicited that the photographs were taken the day before trial and that Wool could not testify when the damage depicted in the photographs was caused.

With regard to the defendant’s invitee defense, we find that even without the Polaroid photographs, a reasonable jury could have concluded that this defense was without merit. The victim testified that the defendant harassed her for months before this incident. Further, she had a restraining order that was in effect at the time of the incident. Moreover, she testified that she did not tell defendant her address or phone number and that he claimed that he found it through a search on the Internet.

The victim’s testimony is corroborated by Sylvia McGarry’s testimony that the defendant was harassing the victim at work. Further, Ms. McGarry was staying | uovernight at the victim’s apartment for several weeks before this incident because the victim was afraid of the defendant. This testimony directly negates the defendant’s contention that the victim invited him over to her apartment that night.

Finally, the defendant failed to proffer any alternative defense that he would have offered if he had known about the photographs before trial. See, State v. Moore, 99-2684, pp. 12-13 (La.App. 4 Cir. 12/20/00), 777 So.2d 600, 608, unit denied, 01-365 (La.12/14/01), 803 So.2d 986.

In sum, we find that even without the erroneously introduced Polaroid photographs, the evidence forms an ample basis for the jury verdict. Accordingly, we find that the defendant has failed to show that he was prejudiced. This assignment of error lacks merit.

In his second assignment of error, defendant argues that the State failed to provide sufficient evidence to support the conviction for forcible rape because the State did not establish beyond a reasonable doubt that non-consensual sexual activity occurred.

In reviewing the sufficiency of the evidence, due process requires the reviewing court to determine “whether, after viewing the evidence in the fight most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Under Jackson, review of a criminal conviction record for sufficiency of evidence does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. A reviewing court is required to consider the whole record, and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. The actual trier of fact is presumed to have acted rationally until it appears otherwise. State v. Mussall, 523 So.2d 1305 (La.1988).

|1BIn the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding. State v. Stec, 99-633, p. 4 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787. The victim’s testimony alone is sufficient to establish the elements of forcible rape, even in the absence of other physical evidence of rape. State v. Tapps, 02-547, p. 9 (La.App. 5 Cir. 10/29/02), 832 So.2d 995, 1001, writ denied, 02-2921 (La.4/21/03), 841 So.2d 789.

Forcible rape is defined by La. R.S. 14:42.1, in pertinent part, as:

[R]ape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the. act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

In support of his argument that the victim’s testimony lacked credibility, the defendant asserts that the victim did not initially report the rape. Although the victim acknowledged that she did not say the word “rape” to the initial investigating officers, she testified that she told one of the police officers that the defendant had “made [her] have sex with him.” The victim recounted that the scene was chaotic because there were several police officers at her apartment, the phones were ringing, and people were going in and out. She thought that, after the officers searched for the defendant, an officer would return to her apartment to complete the investigation and she could relate what had happened in a more private setting.

Moreover, Ms. McGarry, the victim’s friend, testified that the victim called McGarry early that morning and reported to Ms. McGarry’s boyfriend, who answered the phone, that she had been raped. Further, when Deputy Caravella responded, he remembered that the victim told him that she had been raped and she had reported this information to the officers who were at her apartment a few hours [ 16earlier. Finally, immediately after the defendant was apprehended, the victim was taken to the hospital by McGarry for a rape exam.

Although defendant asserts there was no evidence of force, Detective Cummings testified the mark on the victim’s throat indicated the sexual intercourse was forced, not consensual. At trial, defendant testified that the mark on the victim’s neck was from his son scratching the victim.

In this case, the victim’s testimony and the defendant’s testimony directly conflicted. The victim consistently testified that the defendant held her against her will, threatened to kill her if she did not comply with his demands, and raped her. The defendant contended that the victim invited him to her apartment and had consensual sex with him.

When faced with the conflict, the jury apparently chose to believe the victim. This is a credibility determination and it is not the function of the appellate court to evaluate the credibility of witnesses nor to overturn the trier of fact on its factual determination of guilt. State v. Gentras, 98-1095, p. 6 (La.App. 5 Cir. 3/30/99), 733 So.2d 113, 118, unit denied, 99-1302 (La.10/15/99), 748 So.2d 464. Based on the foregoing, our review of the whole record reveals that a rational trier of fact would have found that the State proved the elements of the crime of forcible rape beyond a reasonable doubt.

Finally, the record was reviewed for errors patent, according to La.C.Cr.P. art. 920. First, we note discrepancies between the minute entries and the transcript. First, the trial minute entry reflects that defendant was found guilty as charged on both counts. However, the transcript reflects that the defendant was only found guilty as charged on the forcible rape count, not both counts. Rather, the transcript reflects that defendant was found guilty of unauthorized entry of an inhabited dwelling, which is a responsive verdict to the charged offense of aggravated burglary.

117Second, the commitment reflects that defendant was found guilty of an “amended charge 14:62.3.” Again, the transcript does not reflect an amendment by the State. Rather, as noted above, the jury convicted the defendant of unauthorized entry of an inhabited dwelling, a violation of La. R.S. 14:62.3, which is a responsive verdict to the charged offense of aggravated burglary. In general, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand for the trial judge to correct the commitment and the trial minute entry to reflect that the defendant was convicted of the responsive verdict of unauthorized entry of an inhabited dwelling, a violation of La. R.S. 14:62.3.

Finally, we note that, at sentencing, the trial judge did not provide written notification to the defendant, who was convicted of a sex offense, of the registration requirements of La. R.S. 15:642, as required by La. R.S. 15:543(A). We remand in order for the trial court to inform defendant of the registration requirements in La. R.S. 15:542 by sending appropriate written notice to defendant within ten days of this opinion and to file written proof in the record that defendant received such notice. See, State v. Dickerson, 01-1287, pp. 16-17 (La.App. 5 Cir. 6/26/02), 822 So.2d 849, 859, writ denied, 02-2108 (La.2/21/03), 837 So.2d 627.

AFFIRMED; REMANDED FOR LA. R.S. 15:543 NOTIFICATION.

      .That same day, the Jefferson Parish District Attorney's Office also filed a separate bill of information charging defendant with false imprisonment (of the same victim) while armed with a dangerous weapon, in violation of La. R.S. 14:46.1. After trial, the jury found defendant guilty of false imprisonment, which is a misdemeanor. See La. R.S. 14:46. That conviction is not before this Court in this appeal. Further, in a third bill of information, defendant was charged with one count of stalking (La. 14:40.2), three counts of violating a protective order (La. 14:79), and two counts of making threatening phone calls (La. 14:285). The trial judge heard the case with respect to these misdemeanor charges and found defendant guilty as charged on each count. These convictions are also not before this Court on appeal.

      . See La.C.Cr.P. art. 814(A)(41).

      . Although defendant prematurely filed his motion for appeal five days before he was sentenced, that prematurity was cured because his appeal was not granted until December 10, 2001, the day he was sentenced. State v. Hayes, 01-736 (La.App. 5 Cir. 12/26/01), 806 So.2d 816, 826, fn. 2, writ denied, 02-0263 (La.10/25/02), 827 So.2d 1169.

      . La. R.S. 46:1844(W) provides, in part:
      (1) In order to protect the identity and provide for the safety and welfare of crime victims who are ... victims of sex offenses, all public officials, ... including but not limited to ... judicial officers ... shall not publicly disclose the name, address, or identity of crime victims who ... are ... victims of sex offenses.

      (2) For purposes of this Section, “sex offense” shall include the perpetration ... of forcible rape (R.S. 14:42.1)....

      . The victim explained that she believed that she had to obtain a court order to force the defendant to leave the apartment that they shared since his name was on the lease.

        . Deputy Eddy identified the original crime scene photographs of the inside of the sliding glass door as well as the Polaroids. Deputy Eddy also testified that the pry marks on the exterior doorframe depicted in the Polaroids were present on the night of the incident and were consistent with forced entry.

      . This Court denied the defendant’s writ application on the basis that the defendant failed to make the required showing in the trial court. State v. Enclard, 01-1072 (La.App. 5 Cir. 10/4/01), unpublished writ disposition.

      . During Mr. Wool’s testimony, the defense objected to the use of the photographs on the basis that Mr. Wool did not actually take the photographs. After Mr. Wool’s testimony, the State offered the photographs into evidence again. Over the defense’s general objection, the court allowed the Polaroids into evidence.

      . When a defendant is “lulled into misapprehension of the strength of the State's case" through the failure of the prosecution to timely or fully disclose and the defendant suffers prejudice, basic unfairness results which may constitute reversible error. State v. Harris, 00-3459, p. 8 (La.2/26/02), 812 So.2d 612, 617. However, the failure of the State to comply with the discovery procedure will not automatically result in reversal. Rather, the defendant must show prejudice before his conviction will be reversed. Id.

      . Aggravated burglary, as defined, in pertinent part, by La. R.S. 14:60, is the "unauthorized entering of any inhabited dwelling ... with the intent to commit a felony or any theft therein, if the offender, (1) is armed with a dangerous weapon; or (2) after entering arms himself with a dangerous weapon; or (3) commits a battery upon any person while in such place, or in entering or leaving such place.”


source: Caselaw Access Project

author: J^SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Jeffrey WALLACE v. STATE of Louisiana and Dr. James J. McKinnie and Dr. John Daniel Andress.
    No. 03-CA-229.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 19, 2003.

      Richard P. Ieyoub, Attorney General, G. Scott Vezina, Kelli M. khalaf, Special Assistants Attorney General, Gretna, LA, For Defendants-Appellants, The State of Louisiana, Dr. James J. McKinnie and Dr. John Daniel Andress.
    Camilo K. Salas, III, New Orleans, LA, for Plaintiff-Appellee, Jeffrey Wallace.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   J^SUSAN M. CHEHARDY, Judge.

This suit involves a claim for medical malpractice, in which the plaintiff seeks damages for the death of his wife on May 1, 1996. On this appeal the defendants seek review of the trial court’s denial of their motion to extend the life of a medical review panel convened to review the plaintiffs allegations against two of the alleged tortfeasors. We affirm, finding no abuse of discretion.

This proceeding began on August 16, 2000 with a Petition to Allot Case for Discovery, in which the State of Louisiana and Doctors James McKinnie and John Andress asserted that the plaintiff, Jeffrey Wallace, had instituted a medical review panel proceeding on June 6, 2000 pursuant to La.R.S. 40:1299.39.1. The defendants sought the protection of the Medical Malpractice Act and requested that the court allot them a case number and division for the filing of compulsory process for the purposes of discovery to obtain evidence for presentation before the medical review panel.

|sOn September 15, 2000 plaintiff filed a petition to remove the case to federal court. On November 7, 2000 the federal district court ordered that the matter be remanded to the state court, because the plaintiff had added Drs. McKinnie and An-dress as defendants in his federal suit and a medical review panel proceeding had to be instituted on the claims against them.

On January 28, 2002 the defendants filed a Motion to Extend Medical Review Panel Deadline, which was granted. The deadline was extended from February 22, 2002 to August 22, 2002.

On February 28, 2002 the plaintiff filed a second petition for removal of the case to federal court. The defendants filed a motion to remand; on April 25, 2002, the federal court granted the motion and again remanded the matter to the state court.

On April 29, 2002 defendants filed a Motion to Amend and to Reset the Motion to Extend Medical Review Panel Deadline. On August 15, 2002 the trial court granted the motion and extended the deadline to November 22, 2002.

On November 8, 2002 the defendants filed a third motion to extend the medical review panel deadline. On November 21, 2002 the trial denied that motion. At the hearing the trial judge commented that he agreed with the plaintiffs position and stated:

This has gone on long enough and there’s no guarantee that even if I was able to take the requested action and took that action, that these doctors would be in a different position than the last group of doctors. But this has just gone on too long now and I’m going to deny the motion.

Defendants have taken a suspensive appeal.

On November 21, 2002 the district court rendered judgment that denied the request for a further extension of the November 22, 2002 deadline. Defendants 14filed a Motion For New Trial And To Reconsider, which was denied on December 2, 2002, whereupon they filed this sus-pensive appeal.

In this Court, defendants assert the trial court abused its discretion in denying the motion to extend the medical review panel deadline, which denied the appellants the opportunity to have their claim reviewed by a medical review panel in accordance with La.R.S. 40:1299.39.1.

La.R.S. 40:1299.39.1 provides for medical review panel in claims against the state, its agencies, or other persons covered by that part. It gives the medical review panel one year within which to render its opinion, but permits the panel to be extended for good cause shown.

La.R.S. 40:1299.39.1(B)(l)(b) states that if an opinion is not rendered by the panel within 12 months after the date of notification of the selection of attorney chairman, suit may be instituted. The statute provides, however, that either party may petition a court of competent jurisdiction for an order extending the twelve-month period “for good cause shown.” After the 12-month period or any court-ordered extension thereof, the state medical review panel shall be dissolved without the necessity of obtaining a court order of dissolution.

In a case such as this, the inquiry is whether the trial judge abused his discretion in determining that the hospital did not show good cause for extending the panel’s life. In re Medical Review Panel Initiated by Mark Gerard Chiasson, 99-671, p. 3 (La.App. 5 Cir. 11/30/99), 749 So.2d 796, 797.

The reasons given by defendants for requesting the first extension were that nominees had been unable to serve due to conflicts of interest; there had been delays in completing discovery; the case was pending in federal court; and there | ¿was difficulty obtaining experts in defendants’ area of specialty, electrophysiology, in Louisiana.

In the second request for extension, defendants cited the remand of the federal case to state court and difficulty in completing discovery — allegedly due to noncompliance by plaintiff and plaintiffs counsel — as the grounds for requesting the second extension.

In the third request for extension, the defendants stated that defense counsel had been contacted by the attorney chairman of the medical review panel, who advised that the panel members had excused themselves from the panel due to their lack of experience and qualification regarding electrophysiology. Thus, the panel would not be able to complete its opinion within the established time frame. Defendants also repeated that there had been delay in forming the panel because of nominees having conflicts of interest and because of the case in federal court. They sought more time in order to find new panel members with the appropriate expertise.

In opposition to the appeal plaintiff asserts that the defendants have not shown that they are entitled to the appointment of a “brand new” panel to review this case. Plaintiff points out that defendants waived their right to select one panel member and did not object to the appointments of panel members made by the panel chairman. Plaintiff argues that the work of the panel is complete and there is no need to extend the deadline because the panel selected has indicated that it cannot give an opinion due to lack of qualifications and because defendants are not entitled to form a new panel. Plaintiff argues the trial court recognized this and correctly denied the third extension.

| fiPlaintiff also contends that defendants have tried to distort the record with allegations that are not true. He notes that the medical review panel was already formed, with all its members, as of September 5, 2000. On that date the panel chairman set an October 4, 2002 deadline for the submission of evidence. On September 19, 2002 the panel chairman substituted one of the panel members due to a conflict of interest. Plaintiff asserts there was nothing stopping defendants from going forward with the administrative panel review, even though plaintiff removed this case to federal court when defendants filed their motion for the first extension.

In reviewing the record and the arguments, we are unable to say the trial court abused its discretion. The matter was in the medical review panel process from June 6, 2000 until November 22, 2002. The composition of the panel changed several times, as nominees refused to serve or dropped out due to conflicts of interest and, later, as they determined they had insufficient knowledge of the defendants’ specialty. We deem it within the court’s discretion to find there the panel should be dissolved.

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellants.

AFFIRMED.

      . According to documents in the record, plaintiff’s claim centers around the drug Cor-dorone, which was administered to his wife while she was in the West Jefferson Medical Center and which she continued taking by prescription following her discharge from the hospital. Plaintiff alleges that the medication was improperly prescribed in too large a dosage and that it intensified toxic effects of another medication plaintiff's wife was taking, so that she experienced ventricular tachycardia.

      . We note that this medical specialty is spelled several ways in pleadings and documents in the record: electrophysiology; elec-trophysicology; electrophysiciology. An Internet search reveals websites that use each; we were unable to determine whether any of the variants was incorrect. Accordingly, we have selected the first as the spelling we prefer to use.


author: JgSUSAN M. CHEHARDY, Judge. 11 DALEY, J.,

text:
    Marcelle McCarty PRICE v. John M. PRICE.
    No. 03-CA-272.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 19, 2003.

      Theodore Wm. Nass, Nass Tiemann & Nass, Gretna, LA, for Defendant-Appellant, John M. Price.
    Roy M. Bowes, Mark A. Moeller, Roy M. Bowes & Assoc., Gretna, LA, for Plaintiff-Appellee, Marcelle McCarty Price.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   JgSUSAN M. CHEHARDY, Judge.

This appeal arises in a proceeding to partition community property. The husband seeks reversal of a judgment against him on a motion to compel discovery, entered by the trial court several months after rendition of a consent judgment partitioning the community property. We dismiss the appeal because the judgment on the motion to compel is interlocutory and not appealable.

Marcelle McCarty Price and John M. Price were divorced in 1996. On March 23, 1998 Marcelle Price filed a Petition for Partition of Community Property. On October 1, 2002 the district court signed a Consent Judgment Partitioning Community Property. The Consent Judgment stated that the matter had come before the court for trial in November 2000 and apportioned numerous items of property between the parties in an eight-page listing. The consent judgment was signed by both parties and by their attorneys.

On October 22, 2002 Marcelle Price filed a Motion to Compel Discovery. That motion stated that her current counsel had been retained to represent her in February 2002 and that her former counsel had propounded discovery requests in May 1998 to which John Price had never responded. The motion recited that Mrs. Price’s current counsel had sought responses to the discovery without success and prayed for judgment compelling' Mr. Price to respond to the discovery requests and for sanctions against him. The Motion to Compel Discovery made no mention of |athe recent consent judgment of partition, although counsel filing the motion on behalf of Mrs. Price was the same who had signed the consent judgment.

John Price filed an Objection to Motion to Compel Discovery on the ground that “the parties have signed a community property partition agreement and the requested information is moot.”

On January 10, 2003 the district court signed a Judgment on Motion to Compel Discovery. In it the court ordered that the motion be granted for costs in the amount of $59.50 incurred by Marcelle Price for filing of the motion to compel, but denied attorney’s fees. The judgment also included orders directing John Price to “comply with all federal government requirements” and to “complete all required forms for the processing and the obtaining of all necessary court orders” to implement the community property partition hereto relating to the parties’ respective CSRS/FERS pension plans, Thrift Saving Plan(s) and 401(k) stock plans, as set out in the consent judgment. The court directed that such was to be done at John Price’s expense within 90 days or on or before March 17, 2003. The judgment farther directed that John Price cancel the recordation of two judicial mortgages.

John Price has appealed suspensively.

In his brief on appeal, Mr. Price admits he never responded to the written discovery requests of Mrs. Price, but states, “Nevertheless, the community was fully and finally compromised by consent judgment on October 1, 2002.” (Emphasis in original.) Mr. Price asserts the only issue raised in Mrs. Price’s motion to compel was that Mr. Price had failed to respond to the discovery and the only relief sought was to have the discovery answered and to be awarded court costs and attorney’s fees for having to bring the motion.

14Mr. Price contends the trial court erred in hearing the motion when the case had been ended by the written and court-approved compromise and, further, in granting costs for the motion without directing that the discovery requests be answered. Instead, the trial court not only required that Mr. Price prepare and/or produce additional forms and court orders, but also directed cancellation of two judgments recorded against the parties’ property, none of which were mentioned in the motion.

Mr. Price asserts that, as a result of the order issued by the trial court on the motion to compel, his counsel was required to perform the task of preparing additional settlement documents, which resulted in Mr. Price’s incurring additional legal fees of $1,500.00. Further, he argues, the court erred in ruling on issues that never appeared in the motion to compel and that were not before the court under that motion. He notes that the judgment “specifically recited that only the motion to compel had been before the court on the date of the hearing.”

Mr. Price contends the trial court committed reversible error by granting the motion to compel discovery after the litigation had been settled, by hearing an unscheduled matter without notice and ordering relief never requested by the mover, and by not awarding attorney’s fees and court costs for defense of the post-compromise litigation.

In her brief Mrs. Price points out that the consent judgment partitioning the community property is interlocutory, pursuant to La.R.S. 9:2801(B), which provides in pertinent part:

Those provisions of a domestic relations order or other judgment which partitions retirement or other deferred work benefits between former spouses shall be considered interlocutory until the domestic relations order has been granted “qualified” status from the plan administrator and/or until the judgment has been approved by the appropriate federal or state authority as Rbeing in compliance with applicable laws. Amendments to this interlocutory judgment to conform to the provisions of the plan shall be made with the consent of the parties or following a contradictory hearing by the court which granted the interlocutory judgment. The court issuing the domestic relations order or judgment shall maintain continuing jurisdiction over the subject matter and the parties until final resolution.

Mrs. Price states that the benefits being partitioned in this case were Mr. Price’s CSRS/FERS pension plan, thrift savings plan, and 401(k) stock plan related to his employment with the U.S. Postal Service and Mrs. Price’s U.S. Department of the Navy CSRS pension plan and a thrift savings plan. Thus, she argues, the motion to compel was made in order to force Mr. Price to disclose necessary information for the drafting of court orders that would comply with federal government requirements for partition of the pension plan benefits. In addition, the mortgages Mr. Price was ordered to cancel are for debts that became his responsibility under the partition judgment. Hence, she asserts, the trial court’s ruling satisfied what is necessary to enforce the partition judgment and it should be affirmed.

Mrs. Price also points out that a judgment on a motion to compel discovery is an interlocutory judgment that is not appeal-able in the absence of irreparable injury. In the alternative to this Court’s affirming the judgment, she asserts the appeal should be dismissed because the judgment is not final and appealable.

In Morgavi v. Morgavi 01-1296 (La.App. 5 Cir. 3/26/02), 811 So.2d 1291, this Court dismissed the appeal of a judgment on a motion to compel, stating: “The judgment before us is not a final judgment because it does not determine the merits, in whole or in part. LSA-C.C.P. art. 1841. A motion to compel is a discovery measure.” 01-1296 at p. 2, 811 So.2d at 1292. We noted that under La.C.C.P. art.2083, an appeal may be taken from an interlocutory judgment upon a | fishowing of irreparable injury, but the appellant had not made the necessary showing of irreparable harm. Id.

We stated further, “[T]his Court does not engage in the practice of converting appeals to applications for supervisory writs. This Court has issued an order effective January 1, 1995 which requires that all non-appealable matters filed as appeals must be dismissed. In accordance with that order we dismiss this appeal. See, Meany v. Meany, 96-585 (La.App. 5 Cir. 11/26/96), 685 So.2d 356.” We did, however, grant the parties thirty days from the date of the ruling to file an application for writs.

We find this matter is not properly before us on appeal because it is an interlocutory judgment and appellant has failed to make a showing of irreparable harm.

For the foregoing reasons, the appeal is dismissed. In the interest of justice, we grant the appellant thirty days from the date of our judgment of dismissal to file an application for writs that fully complies with Uniform Rules — Courts of Appeal, Rule 4, and we note that this action must be included in the writ application for compliance with the uniform rules.

Costs of this appeal are assessed against the appellant, John M. Price.

APPEAL DISMISSED.

DALEY, J., dissents with reasons.

11 DALEY, J.,

DISSENTS WITH REASONS:

I respectfully dissent from the majority’s dismissal of this appeal. I would maintain the appeal and reverse the judgment.

Under Art. 1841. Judgments, interlocutory and final:

A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment.

LSA-C.C.P. art.2083 states that an appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury. I find that this judgment, whether considered final or interlocutory, causes irreparable harm to Mr. Price, and therefore I would maintain the appeal.

The partition judgment contains a mechanism whereby the parties can obtain “any additional information ... needed to transfer title to any of the properties transferred herein.” According to the judgment, each party shall call upon the other to do so in writing, whereupon the other party shall immediately execute such additional documentation, or be subject to a finding of contempt for failure to_[¿do so. It does not appear from the record that Mrs. Price followed these necessary steps to obtain the additional information she alleges was necessary to implement this judgment.

The relief granted by the trial court was not the relief requested in the Motion, which would have been to order Mr. Price to answer the interrogatories. Instead, the court ordered him to prepare settlement documents, at his cost, that the partition judgment ordered Mrs. Price to prepare at her cost. In this respect, the judgment modified the Partition Judgment, which was not the requested relief. Further, the judgment ordered Mr. Price to cancel two mortgages. The final partition judgment ordered Mr. Price to assume liability for the two judgments underlying these judicial mortgages; it did not, however, order him to cancel these mortgages. A request for this relief was not before the court on the Motion to Compel and the trial court was without authority to order this relief in this posture. See Littleton v. Littleton, 514 So.2d 248 (La.App. 5 Cir.1987). Accordingly, I would reverse the judgment on the Motion to Compel in its entirety, and remand for further proceedings.

      . Normally, a judgment on a Motion to Compel determines preliminary matters. In this case, however, the Motion to Compel was filed and heard after the final judgment. In this highly irregular procedural posture, it cannot be said that it was filed to determine a preliminary matter. According to the mover, Mrs. Price, in her appellate brief, it was filed to obtain information needed to implement a final judgment. The motion itself, however, simply alleges that these interrogatories went unanswered and does not specify that this information is needed to implement the final judgment.


author: | .MARION F. EDWARDS, Judge.

text:
    BRIGHTWAY SERVICES, INC. v. Tae-Il CHUN d/b/a Plus Insurance Agency.
    No. 03-CA-281.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 19, 2003.

      Thomas E. Dunn, Mandeville, LA, for Appellant.
    William H. Reinhardt, Jr., Dara Hansen Mason, Metairie, LA, for Appellee.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   | .MARION F. EDWARDS, Judge.

This is an appeal from the trial court’s judgment in favor of Brightway Services, Inc., in this suit on an open account. For the following reasons, the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

Tae-Il Chun, doing business as Plus Insurance Agency (hereinafter referred to collectively as “Chun”), approached Brightway Services, Inc. (“Brightway”), for the purpose of having a sign awning manufactured and placed outside of Chun’s new office location in Jefferson Parish. After reviewing several options, Chun approved a final design for the sign and, on December 10, 1997, entered into a contract with Brightway. Brightway subsequently completed and installed Chun’s sign.

Shortly after the sign was installed, Chun contacted Brightway and informed them that the sign was not made according to his specifications. | ¡¡Specifically, Chun alleged that the sign in question, when lighted at night, showed the aluminum support “ribs” beneath, which obscured the lettering on the sign, making it harder to read. After Chun’s request to have the sign altered was not granted, Chun indicated that he would not pay the balance due. On March 10, 2000, Brightway filed A Petition For Suit On An Open Account in First Parish Court for the Parish of Jefferson. Chun answered the suit on March 22, 2000, and filed a reconventional demand.

Trial of the matter was held on September 30, 2002. On that date, the trial court ruled in favor of Brightway, awarding $3,129.00. The trial court dismissed Chun’s reconventional demand. Chun timely filed the present appeal.

LAW AND ANALYSIS

On appeal, Chun raises four assignments of error: 1) That the trial court erred in accepting the testimony of Brightway’s representatives that Chun had not specifically told them that he wanted a sign without “ribs” showing when lighted; 2) The trial court erred in failing to apply the proper law concerning the interpretation of contracts; 3) The trial court erred in directly questioning Chun at the conclusion of the trial without allowing Chun to complete his answer, and; 4) The trial court erred in forming its conclusion that the lines in the photograph it had before it were caused by “ribs” when Brightway’s representatives testified that the “ribs” of the sign were before the lights and thus were not possible to observe when the sign was lighted.

In his first assignment of error, Chun asserts that the trial court erred in accepting the testimony of Brightway’s representatives that Chun had not specifically told them that he wanted a sign without “ribs” showing when lighted.

14At trial, Chun testified that when he initially contacted Brightway to manufacture the sign for him, he indicated that he wanted a sign comparable to that of the “Herbert Wiltz” insurance company, which Brightway had also manufactured. Chun stated that he specifically liked the fact that there were “no lines on the face of the [Herbert Wiltz] design,” but that he realized that any sign he would have made would be different in dimension and shape. Chun further stated that he had no knowledge or understanding that his sign would have the aluminum support “ribs” showing through. Chun also said that in the proposed drawings of the sign that he approved, there were no indications that the “ribs” would be visible. Chun testified that he did not have any written documentation that shows he had specifically indicated that the sign be made without support ribs showing.

Brightway’s vice president and sales representative, Warren Sciortino, testified that he had met with Chun on several occasions regarding the manufacturing of the sign. He said that Chun had indicated to him that he wanted a sign similar to the ‘Wiltz” canopy sign, but that a sign comparable in size was not within Chun’s budget. Sciortino stated “most of the awnings that are built all have ribs.” Sciortino indicated that that, in some cases, the lighting can be placed over the internal supports, thereby eliminating the shadows, but that it would not have been possible to do so with Chun’s sign, because the slant of the sign would have made the text unreadable. Sciortino said that none of Brightway’s renderings show ribs in the awnings. Sciortino further stated that at no time during his conversations with Chun did the issue of ribs in the awning ever come up.

IfiThe court of appeal may not set aside the trial court’s findings of fact, in the absence of manifest error or unless the findings are clearly wrong. Furthermore, “where two permissible views of the evidence exists, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.”

After a review of the record, we cannot say that the trial court was clearly wrong in finding that the testimony of Bright-way’s representatives was credible. Accordingly, we find this assignment to be without merit.

We next address Chun’s assertion that the trial court erred in failing to apply the proper law concerning the interpretation of contracts. The contract in question, signed by Sciortino and Chun on December 12,1997, was entered into evidence at trial. The contract called for Brightway to “Manufacture and install 32' awning with egg crate per Design # 7230” at a cost of $4,896.00.

Chun argues that the contract between himself and Brightway failed to address whether or not support “ribs” would be visible on the sign, and that this omission constitutes a defect that must be interpreted against Brightway, who furnished the text of the contract. Chun further claims that the testimony of Brightway’s sales representative, Warren Sciortino, that Chun had not specified that he did not want the ribs to show through the sign, was not credible.

Conversely, Brightway argues that the sign was constructed and delivered pursuant to the specifications that Chun approved in the contract. Brightway further points out that Chun testified that he had nothing in writing to indicate that he wanted a sign where no ribs were visible.

|fiLa. C.C. art.2045 provides that the interpretation of a contract is the determination of the common intent of the parties. "When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. The meaning and intent of the parties to a written instrument is ordinarily determined from the four corners of the instrument, and extrinsic (parol) evidence is inadmissible either to explain or to contradict the terms of the instrument.

After a review of the record, we cannot say that, based upon the evidence presented, the trial court erred in finding that Chun’s intent was clearly expressed within the four corners of the contract. Accordingly, we find this assignment to be without merit.

Chun’s third and fourth assignments of error relate to the trial court’s finding that the “Herbert Wiltz” sign, which Chun showed to Brightway as an example of the type of sign he wanted, contained visible ribs.

At trial, photographs of the “Herbert Wiltz” sign were introduced as exhibits by Brightway. Chun first argues that the trial court erred in directly questioning him about the photographs of the sign at the conclusion of the trial without allowing him to fully complete his answers. Specifically, Chun refers to the following exchange:

THE COURT: But if you look at [exhibits] one and two, on the corner of this this [sic] is ribs are they not?
CHUN: Right.
THE COURT: And there is another rib coming down here, and there is [sic] three of four ribs on the front; is that correct?
CHUN: Right. But mine, this line keep [sic] coming—
|7THE COURT: I know that but that is the way they’re built. You can’t build these signs without ribs, can you? Even this sign has ribs that show does it not Mr. Chun?
CHUN: Yes, sir. It shows on the top not going—
THE COURT: Then what is this line going down the “R”, is that a rib? The line going down the “R”? It’s a black line is it not? There is a black line going down the “E”. Look at it over here between the T and the Z there is a black line going down it. Look on this side. You can see them sticking out between the T and the Z and right behind the Z. This one does have ribs that shows in spots.

Chun asserts that by not allowing him to fully respond to the questions asked, the trial court came to an erroneous conclusion that the shadows in the photograph were caused by the support ribs.

While it appears that Chun did not complete his answers to questions asked by the trial court, the record shows that Chun testified earlier in the proceedings that the sign he showed as an example to Bright-way did not contain visible ribs on the face of the sign. Chun also testified earlier in the trial that the support ribs in his sign show through the awning at night, and was therefore different from the sign that he used as an example. We find that the questioning by the court did not prevent Chun from presenting his case, as he had an opportunity to disclose his position earlier in the trial.

Finally, Chun argues that the trial court erred in finding that the lines in the photograph of the were caused by the support ribs after testimony from Bright-way representatives that the “Herbert Wiltz” sign contained lights that were on top of the support ribs, thereby making the ribs impossible to observe when lit.

At trial, Brightway’s representative, Warren Sciortino, was questioned about the physical make up “Herbert Wiltz” sign. Sciortino testified that the size of the “Wiltz” awning made it possible to bring the rib supports approximately two feet back from the inside face of the sign, and to place it |sover the ribs so that no shadows were visible. Sciortino also pointed out, however, that on certain portions of the “Wiltz” sign’s face, ribs actually were visible through the awning.

As Chun offered no alternate explanation at trial as to what may have caused the shadows on the “Wiltz” sign, we do not find the trial court’s conclusion, that the shadows were actually caused by the support ribs, to be erroneous.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

      . Stobart v. State, 617 So.2d 880, 882-883 (La.1993).

      . La. C.C. arts.2056 and 2057.

      . La. C.C. art.2046.

        . Ortego v. State, DOTD, 96-1322 (La.2/25/97), 689 So.2d 1358.


author: | .PEATROSS, J.

text:
    STATE of Louisiana, Appellee, v. Peter Anton SHAW, Appellant.
    No. 37,168-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Louisiana Appellate Project, by James E. Beal, Jonesboro, Indigent Defender Board, by Andrew Jacobs, for Appellant.
    James M. Bullers, Schuyler Marvin, District Attorneys, Robert Randall Smith, Dale N. Montgomery, II, Assistant District Attorneys, for Appellee.
    Before PEATROSS, DREW, & KOSTELKA (Pro Tempore), JJ.
   | .PEATROSS, J.

Defendant, Peter Anton Shaw, was charged with one count of unauthorized use of a movable valued at over $1,000, in violation of La. R.S. 14:68, and with two counts of simple criminal damage to property valued at greater than $500, in violation of La. R.S. 14:56. Defendant was tried by a jury and convicted as charged. Subsequently, the State filed an habitual offender bill of information charging Defendant as a second-felony offender. The trial court found Defendant to be a second-felony offender and sentenced him to serve six years at hard labor on the count of unauthorized use of a movable and three years on each count of simple criminal damage to property. The trial court ordered these sentences to run concurrent with each other, but consecutive with any other sentence Defendant must serve. Defendant now appeals his convictions and sentences. For the reasons stated herein, we affirm.

FACTS

At approximately 2:00 a.m. on Sunday, August 19, 2001, Defendant drove his truck on the property of Mark and Patty Villarreal (“the Villarreals”), in Haughton, Louisiana, where their house was under | ¡¡.construction. Defendant stopped his truck at a driveway leading to the garage. Inside the garage was a tool trailer containing equipment, tools ■ and also a new motorcycle, collectively valued at approximately $10,000, according to the State. The driveway had not been completed; however, Defendant was able to get his truck close to the garage because 60 feet of “form works” that stood between the driveway and the garage had been removed, allegedly by Defendant.

It had rained on the preceding Saturday and Defendant’s vehicle became stuck in mud that had formed in the driveway. Defendant admitted to pulling up some form works to put under the tires of his vehicle for traction, but he said he did not pull up several feet of form works. When he failed to get his vehicle out of the- mud, Defendant decided to use a tractor with a front-end loader, which was sitting on the construction site, to try and pull his vehicle out of the mud. The tractor was owned by Rick McAnn (“McAnn”), a landscape contractor. The key to the tractor was in the tractor ignition and Defendant did use it, but his attempt to get his truck out of the mud failed. Defendant then called a friend, Mike Harris (“Harris”), who came and pulled Defendant’s truck out of the mud with a tow truck.

IsWhile using the tractor, Defendant ran over several of the form works and damaged most of the carpentry work that had been completed in preparation of pouring the concrete on Monday. The Villarreals had to pay an additional $800 to their builder to repair the damage. Furthermore, while using the tractor, Defendant damaged the tractor when he broke the key in the ignition. McAnn also found that the tractor was “off kilter” because the front end loader/main frame was bent. Over $2,000 in damage was done to the tractor.

The next day, Defendant informed the Villarreals and McAnn that he was the person who caused the damage to their property. McAnn and Defendant, however, disagreed about the damage to the ignition and front end loader/mainframe of the tractor. Defendant claimed that all he thought he damaged on the tractor was the key when it broke in the ignition. He denied that there was any other damage done to the tractor. Defendant later made conflicting statements about whether or not he used the front end loader/mainframe to try to pull his truck out of the mud. Subsequently, he agreed to pay for all the damage that he caused.

Defendant, however, failed to pay for any of the damage he caused to the property of the Villarreals or to the property of McAnn. On November 5, 2001, Defendant was charged by bill of information with the crime of unauthorized use of a movable valued at an amount greater than $1,000. On January 31, 2002, the bill of information was amended to add the charge of two counts of simple criminal property damage amounting to a sum greater than $500.

14A jury trial commenced on May 15, 2002. During the course of his opening statement, the prosecutor stated that:

Some time late Saturday night, early Sunday morning, however you’d call it, around 2:00 a.m. or so, an attempt was made to enter that property. On that property was a tool shed. In that tool shed was equipment and tools and other things, $10,000.00 in value or so. And the driveway led straight up to that tool shed. One little problem in that was that driveway was in the process of being constructed. It had concrete form works built up around it. So in other words, you couldn’t drive up to it without running over the concrete.

Defendant did not object to this particular statement at the time of the opening argument, but now argues that these were prejudicial remarks because they alluded to an attempted simple burglary for which Defendant was not charged.

At trial, the jury heard testimony from Bobby Ball (“Ball”), a witness for the State. Ball testified that someone had pulled up forms which would allow access into the garage area or area where the tool trailer was located. He further testified that “... the form being taken up and moving around, moved around, it had to be done by hand because there was no vehicle involved. Somebody intentionally pulled that form up and moved it around so it would be open.” Finally, he testified about the damage that was done to the Villarreals’ construction works and he also testified that Defendant admitted to him what he had done on the night of the incident:

District Attorney: What did Mr. Shaw tell you about his use of the tractor?
Mr. Ball: He stated that he came in there with his truck and he got stuck. He went and got on the tractor, |Bstarted the tractor and tried to use the front end loader to pick up the back of the truck to unstick it. He said when he picked it up the bucket slipped and did some damage to the back of his truck but he could not move the truck with the tractor.
D.A.: Did Mr. Shaw admit to you that he had run over the-some of the concrete forms?
Mr. Ball: Yes, sir, he told me when we walked up there that he did all the damage with his truck.

The State also presented testimony from the Villarreals and McAnn, the victims in this incident. Mr. Villarreal testified that his driveway was set and ready for concrete pouring on Monday, August 20, 2001. He also testified that the form laid for the driveway had been destroyed and he and his wife had to pay an additional $800 to the contractor to repair the damage.

McAnn testified to the damages done to his tractor, including the tractor key being broken off in the ignition, the damage to the ignition and the damage to the front end loader. The estimate of the damages caused to McAnn’s tractor was approximately $2,200.

Ball, Mr. Villarreal and McAnn testified that Defendant agreed to meet with them and pay them for the damages. Defendant, however, never met with the victims as promised, nor did he pay for the damages. On the morning he promised to meet with the victims, Defendant drove past the Villarreals’ house and never stopped or came back. Defendant claimed he hdid not pay for the damages because the contractor, Wendell Hammitt (“Ham-mitt”), was demanding that he pay Ham-mitt $3,000 for the damages. Defendant did not call Hammitt as a witness to corroborate his story. None of the victims had any contact with Defendant after he failed to meet with them to pay for the damages.

After hearing the testimony of the State’s witnesses, Defendant took the stand and first testified that the reason he went to the Villarreals’ house was to leave a flyer advertising his business. He later stated, however, that he left a sign, not a flyer at the Villarreals’ house. Defendant then testified that, after his truck got stuck in the mud, he removed the sign.

There were also conflicting statements by Defendant regarding the damage to the tractor and his truck. Ball and Mr. Villarreal testified that Defendant admitted to them that he used the tractor and the front end loader to try to get his truck out of the mud. According to Mr. Villarreal, Defendant told him that the twist in his rear bumper and the dent in his quarter panel came from using the front end loader. Defendant later told police, however, that he used the tractor and damaged the switch, but he did not know whether he damaged the loader. During trial, Defendant testified that he drove the tractor, backed it up, the key broke and he never tried to lift the truck. He further testified that no damage was done to his truck.

Furthermore, during trial, Defendant stated that he pulled into the Villarreals’ driveway and, when he backed out, the rear of his truck sank and slid to one side in the mud. Defendant’s own witness, Harris, testified however, that he had to pull Defendant’s truck out of the mud by hooking |7chains to the front of Defendant’s truck because the rear of Defendant’s truck was completely stuck in the mud closest to the garage area.

In his closing argument the prosecutor stated:

There were tools and a tool trailer with valuables on the property. Now let’s cover this issue the prosecution smokescreen. To S-3, which as you were shown by Ms. Villarreal where he had over in this corner the shed and the form that was moved out and you can see on this picture. There’s no tractor tracks or anything. It was what looks like footprints over there.

Defendant did not object to these statements at the time of trial, but now claims that these remarks were prejudicial and that they also alluded to an attempted simple burglary for which Defendant was not charged.

During the rebuttal phase of closing arguments, the prosecutor stated:

The only person that stands to gain from any of this. He stands to gain to walk free for something he did and something he doesn’t want to pay for. Not only does he not want to pay for that, he doesn’t want to pay for a good lawyer. Andrew Jacob is a good lawyer.

Defense counsel did object to this statement and the trial judge advised the jury that statements and arguments made by the attorneys are not evidence. Counsel did not request a mistrial to these or any of the comments made by the prosecutor.

After Defendant was found guilty and the State filed the habitual offender bill of information charging Defendant as a second-felony offender, the trial judge adjudicated Defendant as a second-felony offender pursuant to La. R.S. 15:529.1, and sentenced him to six years for ^unauthorized use of a movable and to three years on each count of simple criminal property damage. The trial judge ordered the sentences to run concurrent with each other, but consecutive with any other sentence Defendant must serve. The trial judge further ordered that, in the event Defendant is paroled, he must make restitution to the Villarreals in the amount of $800 and to McAnn in the amount of $2,200.

On October 1, 2002, Defendant filed a motion to reconsider sentence, which was subsequently denied by the trial judge. Defendant now appeals, raising the following assignments of error (verbatim):

1. The evidence is insufficient to convict the defendant of the crimes of simple criminal damage to property.
2. The State made improper remarks during opening and closing arguments which so prejudiced the jury that guilty verdicts were rendered despite a lack of evidence with regard to any intentional criminal damage to property.
3. A sentence of six years at hard labor is excessive for this defendant under these circumstances.

DISCUSSION

Sufficiency of the Evidence

Defendant asserts that, as far as the counts of simple criminal damage to property are concerned, the State failed to argue that Defendant committed any intentional acts and that this is a civil matter. He argues that the State failed to meet its burden of proof.

On the other hand, the State argues that Defendant’s intentions the night of the incident were not “civil in nature” and that the jury properly inferred that he intended to commit the crime for which he was charged. |fl The State further argues that Defendant’s testimony and intentions were contradicted by several witnesses, including the victims in this case. Also, the State contends that Defendant’s ultimate lack of credibility in the eyes of the jury also persuaded them that his intentions at 2:00 a.m. on a Sunday morning were not “civil in nature” as he claimed. The State points out that the jury believed that an honest businessman would have come at a more appropriate time of day to do what Defendant claimed he was there to do in this case.

The standard of appellate review for a sufficiency of the evidence claim 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 v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writs denied, 00-3070 (La.10/26/01), 799 So.2d 1150, 01-2087 (La.4/19/02), 813 So.2d 424. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or re-weigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

Simple criminal damage to property is the intentional damaging of any property of another, without the consent of the owner, and except as |inprovided in La. R.S. 14:55, by any means other than fire or explosion. La. R.S. 14:56(A). State v. Owens, 606 So.2d 876 (La.App. 2d Cir. 1992). To support a conviction for simple criminal damage to property, the state must prove an intentional damaging of another’s property. State v. Barnes, 496 So.2d 1056 (La.App. 4th Cir.1986). An essential element of the crime of simple criminal damage to property is that the damage was done without the consent of the owner. La. R.S. 14:56. State v. Perry, 408 So.2d 1358 (La.1982).

Criminal intent may be specific or general. The crime of simple criminal damage to property requires only general criminal intent. See La. R.S. 14:11. La. R.S. 14:11 provides:

The definitions of some crimes require a specific criminal intent, while in others no intent is required. Some crimes consist merely of criminal negligence that produces criminal consequences. However, in the absence of qualifying provisions, the terms “intent” and “intentional” have reference to “general criminal intent.” (Emphasis added.)

The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Owens, supra, quoting, State v. Huizar, 414 So.2d 741 (La.1982); State v. Dean, 528 So.2d 679 (La.App. 2d Cir.1988). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. In State v. Owens, supra, quoting State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir. 1986), writ denied, 499 So.2d 83 (La.1987). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. State v. Anderson, 343 So.2d 135 (La.1976).

In State v. Alessi, 258 La. 753, 247 So.2d 858 (1971), a landlord filed a criminal complaint against former tenants for property damage. The State charged the tenants with simple criminal property damage. The supreme court held that:

The mere fact that the landlord has a civil remedy for recovery for the damage inflicted does not prevent the state from prosecuting an offending tenant for an act which has been declared also to constitute criminal conduct.

The reason why Defendant entered onto the Villarreals’ property was disputed at trial. Defendant claimed he stopped by the house to drop off a flyer or put up an advertising sign. The State, through testimony of its witnesses, however, disputed this as the real reason Defendant went by the house. With this conflict in testimony, it was the jury’s duty to make the determination as to which witnesses were credible and what actually happened early Sunday morning on August 19, 2001. It was within the jury’s province to decide whether or not Defendant intentionally damaged the property of others.

Here, the jury found that the State met its burden of proving that Defendant had the general criminal intent required to be convicted of simple l^criminal damage to property. By using the tractor to attempt to free his truck from the mud, Defendant “must have adverted to the prescribed criminal consequences as reasonably certain to result from his act.” See La. R.S. 14:56. The damage done to the construction works, which were in close proximity to Defendant’s truck, was reasonably certain to result from Defendant’s intentional use of McAnn’s tractor to try to lift his truck out of the mud. Further, damage to the tractor was reasonably certain to result from Defendant’s use of the tractor outside its scope of intended use.

Defendant’s argument that this is a civil matter does not override the criminal aspects of his actions. The jury found that Defendant intended to damage the property of the Villarreals and McAnn; and, after viewing the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could have found that the State proved all the essential elements of simple criminal damage of property beyond a reasonable doubt. Defendant’s first assignment of error is without merit.

Prosecutorial Remarks to Jury

Defendant also argues that, during opening and closing statements, the prosecutor made improper references to a crime of attempted simple burglary with which he had not been charged. He also accuses the prosecutor of making an attack against his attorney during trial. Defendant claims a mistrial should have been requested by Defendant’s trial counsel and granted based on the comments made by the prosecutor. Moreover, he asserts that the trial court did not admonish the jury after his objection to the comments made by the prosecutor during opening and closing arguments. |-^Defendant argues that the remarks by the prosecutor in opening and closing statements alluded to an attempted simple burglary for which he was not charged and prejudiced the jury to render a guilty verdict despite a lack of evidence.

The State argues that the mentioning of the tool trailer and its valuable contents, along with the removal of the forms blocking access to the garage area where the tool trailer was located, was part of res gestae events. Moreover, the State contends that it is not prevented from including the res gestae events in its statements, allowing the jury to conclude that Defendant’s actions had been criminal in nature. The State further argues that it made a reference to Defendant’s attorney in closing arguments as rebuttal to defense counsel’s sympathy argument that Defendant had a “free lawyer” and that Defendant’s arguments are not valid. We agree.

First, we find no basis in Defendant’s argument concerning a mistrial. La. C. Cr. P. art. 770(2) mandates a mistrial if the prosecutor refers to “[ajnother crime committed or alleged to have been committed by the defendant as to which evidence is not admissible ... however, a defendant must object and move for a mistrial after his objection to the prosecutor’s statements. The absence of a timely motion for mistrial under La.C.Cr.P. art. 770 constitutes a waiver of the defect. State v. Gatch, 27,701. (La.App.2d Cir.2/28/96), 669 So.2d 676, writ denied, 96-0810 (La.9/20/96), 679 So.2d 429; State v. Shepherd, 566 So.2d 1127 (La.App. 2d Cir.1990); State v. Hookfin, 476 So.2d 481 (La.App. 1st Cir.1985). In reviewing the record in the instant case, we find that Defendant did not make a timely motion for a mistrial after any of the prosecution’s statements; and, therefore, this constituted a waiver of his claim of error on appeal.

In addition, we note that, though generally inadmissible, evidence of other crimes, wrongs or acts may be introduced when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. art. 404(B)(1); State v. Coates, 27,287 (La.App.2d Cir.9/27/95), 661 So.2d 571, writ denied, 95-2613 (La.2/28/96), 668 So.2d 365. In such cases, there must be a close connexity between the charged and uncharged conduct to insure that “the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving the immediate context of happenings near in time and place.” State v. Colomb, 98-2813 (La.10/1/99), 747 So.2d 1074. The test of integral act evidence simply is not whether the state might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive its case of narrative momentum and cohesiveness, with power not only to support conclusions, but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. State v. Colomb, supra, quoting from Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). See also, State v. Constantine, 364 So.2d 1011 (La.1978); State v. Lincoln, 34,770 (La.App.2d Cir.6/22/01), 794 So.2d 56.

There are exceptions to the prohibition of reference to other crimes, and included among those are offenses admissible as part of the category formerly known as the “res gestae ” and evidence admissible to establish a motive for the commission of the crime charged. State v. McKnight, 539 So.2d 952 (La.App. 2d Cir. 1989), writ denied, 548 So.2d 322 (La.1989), citing State v. Willis, 510 So.2d 411 (La.App. 2d Cir.1987), writ denied, 534 So.2d 440 (La.1988). In the instant case, the prosecutor’s statements regarding the tool shed/trailer, the valuables inside the tool shed/trailer and Defendant’s removal of the forms which blocked the entrance to the area where the tool shed/trailer was located were part of the “narrative momentum and cohesiveness” which falls into the res gestae exception of admission of other crimes evidence. His reference to these items is admissible because it is intertwined with the charged offense to such an extent that the prosecutor could not accurately present his case without the reference. The prosecutor’s statement about these items was an integral part of the narration of events that occurred on August 19, 2001, and it made a complete fact pattern for the jurors, giving the jury a clearer picture of the events that occurred. It allowed the jurors to draw the inferences necessary to reach an honest verdict and it showed them that Defendant had another reason for being at the Villar-reals’ house in the early morning hours besides his own self-serving reason of dropping off a flyer or sign. Finally, the prosecutor’s statements regarding Defendant’s counsel 11fiwere not prejudicial. Defendant’s second assignment of error is without merit.

Defendant’s Sentences

Defendant argues that, but for the fact that he was a second-felony offender, his maximum sentence should only have been five years for the unauthorized use of a movable. He emphasizes that even the victims requested that he not receive jail time for his crime, but, instead, they only wanted him to pay them restitution for the damages.

The State argues that Defendant was a second-felony offender, having been previously convicted of two counts of attempted distribution of controlled dangerous substances, and that Defendant’s sentence as an habitual offender was proper. In addition, the State argues that, with sentences being run concurrent, a total sentence of six years for all three charges is not excessive.

A trial court has wide discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, unit denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of discretion, a sentence is not set aside as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Washington, 29,478 (La.App.2d Cir.4/2/97), 691 So.2d 345; State v. Square, 433 So.2d 104 (La.1983). If the record supports the sentence imposed, the appellate court shall not set aside a sentence for excessiveness. State v. Shipp, 30,562 (La.App.2d Cir.4/8/98), 712 So.2d 230, unit denied, 98-1199 (La.9/25/98), 724 So.2d 775.

117Since the sentence imposed for the habitual offender adjudication is prescribed by statute, the trial court’s compliance with La. C.Cr.P. art. 894.1 is not required. State v. Gay, 34,371 (La.App.2d Cir.4/4/01), 784 So.2d 714; State v. Owens, 32,642 (La.App.2d Cir.10/27/99), 743 So.2d 890, writ denied, 00-0438 (La.9/29/00), 769 So.2d 553. A sentence violates La. Const, art. 1, § 20, however, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864; State v. Richardson, 545 So.2d 714 (La.App. 2d Cir.1989).

In the case sub judice, Defendant was sentenced under La. R.S. 15:529.1, the Habitual Offender Law, to six years for unauthorized use of a movable and to three years for each count of simple criminal property damage. Defendant had a previous felony conviction for attempted distribution of amphetamines and/or cocaine. La. R.S. 15:529.1(A)(l)(a) provides:

If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

118For a conviction of unauthorized use of a movable, La. R.S. 14:68(B) provides, in pertinent part:

Whoever commits the crime of unauthorized use of a movable having a value in excess of one thousand dollars shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than five years, or both.

For a conviction of simple criminal damage to property, La. R.S. 14:56(B) provides, in pertinent part:

Where the damage amounts to five hundred dollars but less than fifty thousand dollars, the offender shall be fined not more than one thousand dollars, or imprisoned, with or without hard labor, for not more than two years, or both.

Defendant’s sentences were ordered to run concurrently with each other, but consecutive with any other sentence Defendant must serve. Under La. R.S. 15:529.1, the trial court could have sentenced Defendant to up to ten years for the unauthorized use of a movable and up to four years for each simple criminal property damage charge, for a total of 18 years. The fact that the trial court ran the sentences concurrent yielded a total of six years for Defendant to serve, with the likelihood of early release through parole.

Even though the trial judge did not have to take cognizance of the criteria set forth in La.C.Cr.P. art. 894.1, he did so anyway and found that Defendant was a high risk for recidivism. The trial judge found that there was undue risk that Defendant would commit another crime, that Defendant was on probation when he committed these crimes and that Defendant is in need of correctional treatment that can only be provided by his commitment 119to an institution. Any lesser sentence, the trial judge concluded, would deprecate the seriousness of the offenses committed.

Considering the criminal background of Defendant and the factual circumstances surrounding the commission of the offenses, we cannot say that the trial judge abused his discretion in imposing the sentences here, which, under the facts and circumstances, are not constitutionally excessive. These sentences imposed are lawful and neither grossly disproportionate to the severity of the offenses, nor shocking to our sense of justice. Defendant’s final assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant, Peter Anton Shaw, are affirmed.

AFFIRMED.

      . La. R.S. 14:68(A) provides:
      Unauthorized use of a movable is the intentional taking or use of a movable which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices or representations, but without any intention to deprive the other of the movable permanently. The fact that the movable so taken or used may be classified as an immovable, according to the law pertaining to civil matters, is immaterial.

      . La. R.S. 14:56(A) provides:
      Simple criminal damage to property is the intentional damaging of any property of another, without the consent of the owner, and except as provided in R.S. 14:55, by any means other than fire or explosion.

      . Defendant has stated that he went to the house in order to drop off a flyer advertising his landscaping business. He has also claimed that he put a sign advertising his business on the Villarreals' property, but he took it down the same night he put it up.

      . On the Friday before the incident, the Vil-larreals had formed up their driveway in preparation for the concrete which was to be poured on Monday. Forming involves the use of forms for holding in the liquid concrete. The forms had been erected along the sides of the driveway and the dirt had been leveled so that the concrete could be poured. The forms were erected in the area in front of the garage, so by pulling the forms out of the ground, it allowed easy access to the area directly in front of the garage. Whoever removed these forms would have had easy access to get into the garage.

      . Ball is the father of Mrs. Villarreal.

      . The State queries that, if Defendant pulled into the driveway as he claims, then how could Harris hook his truck to the front of Defendant's truck to pull him out of the mud. The more likely scenario, according to the State, is that Defendant must have backed into the driveway near the garage area, since the back of his truck was what was stuck in the mud.

      . Defendant does not challenge the conviction for unauthorized use of a movable valued over $1,000.

      . Specific criminal intent is that state of mind which exists when the offender actively desires the prescribed criminal consequences to follow his act or failure to act; intent may be inferred from the circumstances, and the presence or absence of specific intent is ultimately to be resolved by the finder of fact. La. R.S. 14:10(1); State v. Fenner, 94-1498 (La.App. 4th Cir. 11/16/95), 664 So.2d 1315, writ denied, 95-3001 (La.4/26/96), 672 So.2d 679, referencing, State v. Govan, 593 So.2d 833 (La.App. 4th Cir. 1992), writ denied, 600 So.2d 654 (La.1992). General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2); State v. Fenner, supra.

      . What Defendant was doing at the house is largely in dispute because of the odd time he chose to visit the house and because no flyer or sign was found on the property.

      . The res gestae is evidence that is admissible because it is so related and intertwined with the charged offense that the State could not have accurately presented its case without reference to it. State v. Brewington, 601 So.2d 656 (La.1992).